Strasbourg, 8 October 2007

Dear Mr X,

On 19 February 2007, you submitted a complaint to the European Ombudsman against the European Commission concerning its alleged failure to reply to your letters of 8 December 2006, 23 January and 3 February 2007. You alleged that this failure to reply constituted an instance of discrimination.

On 21 February 2007, you sent me further documents related to your complaint.

On 21 March 2007, I forwarded the complaint to the President of the Commission.

On 13 June 2007, you sent me further documents related to your complaint.

The Commission sent the English version of its opinion on 2 July 2007 and the Spanish version of it on 9 July 2007.

On 11 July 2007, I forwarded it to you with an invitation to submit observations. On 15 July 2007, you sent me your observations.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts were, in summary, as follows:

By registered mail dated 8 December 2006, the complainant wrote to the Commissioner for Economic and Monetary Affairs, Mr Joaquin Almunia. In this letter, the complainant alleged that a Spanish bank infringed Spanish and European competition law rules.

On 23 January 2007, the complainant sent a letter to the Head of Unit of Directorate B of the Directorate-General for Health and Consumer Protection. The complainant made the same allegations as in his letter to Commissioner Almunia.

On 3 February 2007, the complainant sent a further letter to Commissioner Almunia in which he repeated his allegations. In this letter, he further stated that he had not received any acknowledgment of receipt of his letter of 8 December 2006.

In his complaint to the European Ombudsman, the complainant alleged that he had not received any reply from the European Commission to his three letters of 8 December 2006, 23 January and 3 February 2007. He further alleged that this lack of reply constituted an instance of discrimination, because in his view, "no one is above the Law".

Telephone conversation between the Ombudsman’s services and the complainant

On 21 February 2007, the Ombudsman’s services telephoned the complainant in order to ask him to send the Ombudsman copies of the letters he had sent to the Commission.

On the same day, the complainant sent the Ombudsman the requested documents.

Further contacts between the Ombudsman’s services and the complainant

By e-mail of 7 March 2007, the Ombudsman’s services contacted the complainant in order to ascertain whether the Commission had replied to the complainant’s letters after his telephone conversation of 21 February 2007 with the Ombudsman's services.

By e-mail of 9 March 2007, the complainant stated that he had not received any replies.

THE INQUIRY

The Commission's opinion

In its reply, the Commission made, in summary, the following statements:

The Commission stated that the complainant had addressed several letters to it, in particular to the Directorate-General for the Information Society ("DG INFSO"); the Directorate-General for Health and Consumer Protection ("DG SANCO"); and the Cabinets of Commissioners Almunia and McCreevy.

DG INFSO, DG SANCO and the Cabinets of Commissioners Almunia and McCreevy replied to a number of letters sent by the complainant to the Commission.

Regarding the alleged failure to reply to the complainant's letter of 23 January 2007

The Commission stated that, on 4 January 2007, DG SANCO sent a substantive reply to the complainant's e-mail dated 29 November 2006. The Commission also stated that the complainant had received a holding reply from DG INFSO on 11 December 2006, informing him that his claim could not be treated by the Commission as it could not interfere in disputes between citizens and financial institutions. In its holding reply, DG INFSO also provided the complainant with the contact details of the complaint services section of the Bank of Spain.

By letter dated 23 January 2007, the complainant sent further information. As the letter did not contain any specific request, DG SANCO considered that it was sent for information purposes only and did not reply.

On 17 April 2007, the Commission did, however, reply to the issue raised by the complainant when it replied to his further letter dated 3 April 2007.

Regarding the alleged failure to reply to the complainant's letters of 8 December 2006 and 3 February 2007

On 8 December 2006 and 3 February 2007, the complainant wrote to Commissioner Almunia. By letter dated 28 February 2007, the Cabinet of Commissioner Almunia informed the complainant that his case had been brought to the attention of the Cabinet of Mr McCreevy. However, due to an administrative oversight, the documents were only sent to the Cabinet of Commissioner McCreevy on 15 May 2007.

By letter dated 11 June 2007, a member of the Cabinet of Commissioner McCreevy, the commissioner responsible for the Directorate-General for the Internal Market and Services ("DG MARKT"), informed the complainant that DG MARKT's analysis of his file had led to the same conclusions as those reached by DG SANCO.

The Commission concluded that it had replied to the complainant's letters and therefore rejected his argument that he had been the victim of discrimination. The Commission sincerely apologised for the delays in its replies.

The complainant's observations

In his observations, the complainant maintained his allegation that he had been the victim of discrimination and that his letters were only sent to the responsible Cabinet of Commissioner Mr McCreevy on 15 May 2007.

THE DECISION

1 The Commission’s alleged failure to reply to the complainant’s letters which constituted an alleged instance of discrimination

1.1 By registered mail dated 8 December 2006, the complainant wrote to the European Commissioner for Economic and Monetary Affairs, Mr Joaquin Almunia. In this letter, the complainant alleged that a Spanish bank had infringed Spanish and European competition law rules. On 23 January 2007, the complainant sent a letter to the Head of Unit of Directorate B of the Directorate-General for Health and Consumer Protection ("DG SANCO") in which he made the same allegations as he had made in the letter to Commissioner Almunia. On 3 February 2007, the complainant sent a further letter to Commissioner Almunia, in which he repeated his allegations. In this letter, he further stated that he had not received any acknowledgment of receipt of his letter of 8 December 2006. In his complaint to the Ombudsman, the complainant alleged that he had not received any reply from the Commission to his letters of 8 December 2006, 23 January and 3 February 2007, and added that such failure to reply constituted an instance of discrimination.

1.2 In its opinion, the Commission stated that, concerning the alleged failure to reply to the complainant's letter of 23 January 2007, DG SANCO sent, on 4 January 2007, a substantive reply to his e-mail dated 29 November 2006. The Commission also stated that, on 11 December 2006, the Directorate-General for the Information Society ("DG INFSO") sent the complainant a holding reply. In that communication, DG INFSO informed the complainant that his claim could not be treated by the Commission, since the latter could not interfere in disputes between citizens and financial institutions. DG INFSO also provided the complainant with the contact details of the complaint services section of the Bank of Spain. By letter dated 23 January 2007, the complainant sent DG SANCO further information. As the letter did not contain any specific request, DG SANCO considered that it was sent for information purposes only and did not reply. On 17 April 2007, the Commission did, however, reply to the issue raised by the complainant in his letter of 23 January 2007, when it replied to his further letter dated 3 April 2007. Regarding the alleged failure to reply to the complainant's letters of 8 December 2006 and 3 February 2007, the Cabinet of Commissioner Almunia informed the complainant, by letter dated 28 February 2007, that his case had been brought to the attention of the Cabinet of Mr McCreevy. However, due to an administrative oversight, the documents were only sent to the Cabinet of Commissioner McCreevy on 15 May 2007. By letter dated 11 June 2007, a member of the Cabinet of Commissioner McCreevy, who was responsible for the Directorate-General for the Internal Market and Services ("DG MARKT"), informed the complainant that DG MARKT's analysis had led to the same conclusions as those reached by DG SANCO. The Commission concluded that it had replied to the complainant's letters and therefore rejected his allegation that he had been the victim of discrimination. The Commission sincerely apologised for the delays in its replies.

1.3 It is good administrative practice for the administration to reply to letters or e-mails it receives within a reasonable period of time and in an adequate way. The Ombudsman also finds it useful to recall that, pursuant to Article 17 of the European Code of Good Administrative Behaviour(1), "[t]he official shall ensure that a decision on every request or complaint to the Institution is taken within a reasonable time-limit, without delay, and in any case no later than two months from the date of receipt. (...)".

1.4 In his complaint, the complainant alleged that the Commission failed to reply to his three letters of 8 December 2006, 23 January and 3 February 2007. Given that replies appear to have been sent to these letters in the course of the present inquiry, the Ombudsman considers that what needs to be examined here is whether the Commission sent its replies within a reasonable period of time.

In this context, the Ombudsman notes that, in his letter of 8 December 2006 to the Commission, the complainant alleged that a Spanish bank had infringed Spanish and European competition law rules. On 23 January 2007, the complainant sent a further letter to the Commission. The Commission considered that this letter did not contain any specific request and filed it as information only. On 3 February 2007, the complainant sent yet another letter to Commissioner Almunia in which he stated that he had not received any acknowledgment of receipt of his letter of 8 December 2006. The Ombudsman notes that it emerges from the documents attached to the Commission's opinion that, on 28 February 2007, the Commission acknowledged receipt of the complainant's letter of 8 December 2006 and informed him that his comments had been brought to the attention of the member of the Cabinet of the Commissioner responsible for this matter, namely, Commissioner McCreevy. The Ombudsman further notes that the Commission replied to the complainant’s letters on 11 June 2007 that is, more than six months after the complainant’s first letter. The Ombudsman considers that the time it had taken for this response to be sent went manifestly beyond what could be considered to be a reasonable period of time for answering such requests.

The Ombudsman, however, notes that, in its opinion, the Commission apologised for the delay that occurred when replying to the complainant’s letters and explained that this was due to an administrative oversight in sending the said letters to the Cabinet of the responsible Commissioner. In these circumstances, while recognising that there was a lamentable failure to deal efficiently with correspondence from a citizen, the Ombudsman considers that there appears to be no grounds for further inquiries into this allegation.

1.5 In his complaint, the complainant argued that the Commission's failure to reply to his letters constituted an instance of discrimination. In this regard, the Ombudsman considers that the reason invoked by it in order to justify its delay, namely, an administrative oversight in the sending of the complainant’s letters to the Cabinet of the responsible Commissioner, while reflecting a lamentable failure to deal efficiently with correspondence, does not give rise to a conclusion that the complainant was discriminated against. Furthermore, the Ombudsman is of the view that the complainant has not submitted any evidence to suggest that he was discriminated against. In these circumstances, the Ombudsman considers that the complainant’s argument that Commission’s lack of reply to his letters constituted an instance of discrimination cannot be sustained.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to be no grounds for further inquiries into the complaint. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The European Code of Good Administrative Behaviour is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).