THE BACKGROUND TO THE COMPLAINT

1. A complaint was made to the Commission on behalf of a company. The complaint concerned allegedly illegal state aid. The present complaint concerns the Commission's failure to adopt a decision on a State aid complaint.

2. On the date of the present complaint, the Commission had not yet informed the complainant or its lawyer whether it would commence proceedings against the Member State concerned, nor when a decision to do so would be taken.

3. The complainant contacted the Commission in the above matter. Not having received a satisfactory response, the complainant turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

4. The Ombudsman opened his present inquiry into the following allegation and claim.

Allegation:

The Commission has failed to respect its duties under Article 88 EC Treaty, as well as Article 10(1) and Article 13(1) of the Council Regulation 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 of the EC Treaty, since the Commission has, within what at present amounts to a 70 month-long period, failed to adopt a decision on the state aid complaint here concerned, which was submitted in accordance with Article 4(2), (3) or (4), of Regulation 659/1999.

Claim:

The Commission should adopt a decision on the matter as soon as possible.

THE INQUIRY

5. On 17 January 2008, the Ombudsman sent the complaint to the Commission, with a request for its opinion. On 1 September 2008, the Commission submitted its opinion. The opinion was sent to the complainant's lawyer for observations. The Ombudsman did not receive any observations, but was subsequently informed by the complainant's lawyer that the claim could be considered settled and that the complainant considered that the case could be closed without an assessment of the allegation.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged breach of duty

Arguments presented to the Ombudsman

6. The complainant's lawyer submitted a detailed legal analysis of the Commission's relevant duties. In light of the conclusion below, it is not necessary to set out that analysis in the present decision.

7. In its opinion, the Commission confirmed that the case-handling time had been long. It did not consider, however, that the delay amounted to a breach of its legal obligation. The Commission stated that, when it received the reply from the national authorities, it had been its firm intention to take a definitive position on the complaint as quickly as possible.

8. The Commission subsequently sent the Ombudsman a copy of a letter that it had sent to the complainant's lawyer. In this letter, the Commission stated that:

"I would like to inform you that the Commission decided (...) to initiate the procedure of Article 88(2) EC Treaty with respect to measures identified in the complaint lodged by your client ([...]) regarding the above mentioned subject. The Commission took this decision because of doubts on the presence of State aid and on the compatibility with the common market.

In the light of the foregoing considerations, the Commission requested [the Member State involved] to submit its comments and to provide all information which may help to assess the [issues involved].

The Commission will also inform interested parties by publishing the decision and a meaningful summary of it in the Official Journal of the European Union. Like all interested parties, you will be invited to submit your comments within one month of the date of such publication."

9. The Ombudsman did not receive any subsequent observations from the complainant. In response to subsequent contacts with the complainant's lawyer, however, the latter informed the Ombudsman that, although her client still believed the allegation to have been clearly justified, the claim could, nevertheless, be considered settled and therefore the case could be closed without assessment of the allegation.

The Ombudsman's assessment

10. In light of the events and correspondence referred to above, the Ombudsman finds that the complainant's claim has been settled by the institution. Since the complainant has stated that the case can be closed without assessment of the allegation, the Ombudsman considers it appropriate to end the inquiry. The Ombudsman wishes to stress that this decision is specific to the facts of the case. It does not confirm that the Commission's actions in relation to the state aid complaint were adequate, nor does it validate the arguments contained in the Commission's opinion submitted in the course of the present inquiry.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The claim has been settled and no further inquiries are necessary with regard to the complainant's allegation.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 20 August 2009