THE BACKGROUND TO THE COMPLAINT

1. This case concerns an infringement complaint which was submitted to the European Commission against Denmark concerning an alleged breach of EU social legislation. The complainant is a Polish national who has lived in Denmark for many years. She is now a pensioner. Because she has not lived long enough in Denmark to receive a full pension (the 'accrual principle'), she receives a pro rata pension. It is possible to receive a supplement to compensate for the reduced pension. The complainant considers, however, that the method for calculating this supplement is contrary to EU law. She therefore submitted an infringement complaint to the European Commission.

2. The Commission informed the complainant that it had asked the Danish authorities to examine the matter in light of EU regulations 1408/71[1] and 574/72[2], which concern free movement and social rights. It subsequently informed the complainant of the Danish authorities' reply, in light of which the Commission found the complainant's infringement complaint to be unjustified.

3. The complainant put forward detailed arguments to challenge the Commission's finding. The Commission thereafter asked the Danish authorities to examine the matter, and informed the complainant accordingly. The Danish authorities replied at the end of 2008. They argued that there had been no breach of EU law.

4. In February 2009, not having heard further from the Commission, the complainant turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

5. On 19 March 2009, the Ombudsman opened the present inquiry into the following allegation and claim:

Allegation:

The Commission failed adequately to examine and respond to the complainant's infringement complaint.

Claim:

The Commission should adequately examine and respond to her infringement complaint.

6. In his letter to the Commission, the Ombudsman also asked the institution to clarify whether a letter dated 11 April 2008, in which its service in question informed the complainant that the Commission could not help her, contained an invitation for the complainant to submit comments, in accordance with Point 10 of the Commission's Communication on the handling of infringement complaints[3]. If this was not the case, the Ombudsman asked the Commission to provide reasons for this.

THE INQUIRY

7. The Ombudsman sent the complaint to the Commission, asking it to submit an opinion. The Commission submitted its opinion on 15 July 2009. The opinion was forwarded to the complainant, who submitted her observations on 16 August 2009. She submitted further correspondence on 23 August 2009 and 3 September 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

8. The present complaint is one of two very similar complaints received from Polish citizens living in Denmark, the other being 219/2009/PB. In both cases, the Commission expressed doubts as to whether the subject matter of the infringement complaint was within the scope of EU law. The complainant in case 219/2009/PB informed the Ombudsman that the Danish National Social Appeals Board[4] (Ankestyrelsen) is currently reviewing the core issues raised by the present complainant. The Danish National Social Appeals Board has applied the classification 'case(s) on issues of principle'. Such cases have important precedent value for the application of the legislation concerned[5].

9. It is likely that the relevant future decision of the Danish National Social Appeals Board will bring to light essential, relevant facts and points of law. In particular, it should reveal how the relevant Danish rules are, and should be, applied in practice. That decision is likely to become essential for assessing the issues raised by the complainant in review procedures at national or EU-level, or both. Moreover, it appears that the Danish Ombudsman has been asked to investigate the matter by the complainant in case 210/2009/PB. The European Commission may also be invited to examine a new infringement complaint, or it may include the relevant issues in a so-called general investigation that is currently underway (see the Commission's opinion further below). The Commission stated in its opinion in the present inquiry that it will keep the complainant duly informed about the results of that general investigation.

10. In light of the above, the Ombudsman considers it neither appropriate nor necessary specifically to carry out, at this point, a substantive assessment of the Commission's above-mentioned position regarding the applicability of the EU legislation here concerned.

11. The present case, therefore, primarily focuses on the Commission's procedural response at the time of the complaint to the Ombudsman. The Ombudsman would like to draw attention at this point to his further remark at the end of this decision.

A. Allegation of failure adequately to examine and respond to the complainant's infringement complaint

Arguments presented to the Ombudsman

12. The complainant doubted whether the Commission had handled her infringement complaint in an adequate manner. She felt that the Commission had been too hasty to accept the Danish authorities' position.

13. In its opinion on the complaint, the Commission gave the following account of how it viewed/interpreted the case, which it divided into 'background' and 'the complaint' sections.

Background

14. On 28 February 2008, the complainant sent an e-mail to the Commission drawing attention to her situation as a beneficiary of a Danish pro rata invalidity pension and a monthly supplement granted on the basis of Article 27a of the Law on Active Social Policy. She took the view that the grant of the supplement was discriminatory with regard to non-Danish EU nationals.

15. On 11 April 2008, the Commission services replied to the effect that they were aware of the situation of persons living on reduced Danish invalidity pensions. They went on to say that they had already asked the Danish Ministry of Welfare to clarify the application of the Law on Active Social Policy with regard to such persons, as well as the application of regulations 1408/71 and 574/72, which provide for rules on the coordination of social security schemes for people who have been covered by such schemes in more than one Member State.

16. In the same letter, the Commission services also informed the complainant that the Ministry had replied to the effect that the matter related to the application of Danish legislation on social assistance. Typically, those concerned were Danish nationals who had spent many years abroad or immigrants who had only spent a few years in Denmark. The Ministry also explained that the assistance was granted on the basis of need and with due consideration to the general financial situation of the person concerned, taking into account whether he/she or his/her spouse had any other form of income. The Ministry stated that the National Social Appeals Board had established rules on the granting of this assistance, which also included certain supplements, and that any rejected claim for benefit could be appealed in accordance with national provisions.

17. The Commission services informed the complainant that they would take no further action, since the object of her grievance did not constitute an infringement of her rights under the above-mentioned regulations.

18. On 30 April 2008, the complainant wrote to the Commission services again, stating that she was not satisfied with the Commission's reply. She stated that neither the Danish authorities nor the National Social Appeals Board applied regulations 1408/71 and 574/72 to the benefit granted on the basis of the Law on Active Social Policy. She went on to say that there were examples of indirect discrimination in the Danish legislation, one example being the legislation on invalidity pensions, which specified a certain minimum period of residence in order to be entitled to the benefits.

19. The complainant's e-mail dated 30 April 2008 was seen to introduce a new point which was unrelated to her grievances regarding the supplement, namely, an allegedly discriminatory condition contained in the pension legislation. On the basis of that new allegation, the Commission services decided to ascertain whether the Danish legislation on invalidity pensions stipulated conditions that were discriminatory in relation to non-Danish EU nationals. The Commission informed the complainant of this investigation on 26 June 2008.

20. By letter dated 9 July 2008, the Commission services asked the Danish authorities to investigate the matter. The request was made in accordance with the cooperation procedure established with the Members of the Administrative Commission on Social Security for Migrant Workers (CASSTM) for a problem-solving mechanism relating to the application of Regulation 1408/71. Under that cooperation procedure, the Commission services have access to the CASSTM network to resolve complaints and find solutions to problems raised by individuals. In 2004, following discussions in CASSTM, improved procedures were agreed upon (Doc. CASSTM 279/04, point II). This cooperation procedure with the Member States is based on Articles 81, 84 and 84a of Regulation 1408/71 and is in line with the 2007 Commission Communication 'A Europe of results: Applying Community law' (COM(2007) 502 final).

21. On the same day (9 July 2008), the Commission received a letter from the complainant referring to a statement by the Minister of Welfare in the Danish Parliament concerning the complainant's situation. The Minister clarified the situation regarding the Danish legislation and its application with respect to the grant of pro rata invalidity pensions and benefits in accordance with social policy.

22. On 2 September 2008, the Commission services received a reply from the Danish Ministry of Welfare referring to the above-mentioned statement. Since that reply did not clarify the situation as regards the alleged conditions involving indirect discrimination in the Danish legislation, the Commission services wrote to the Danish authorities on 19 November 2008 requesting additional clarifications. That request was made using the cooperation procedure established with the CASSTM network described above.

23. Since the Commission services received no reply to their request to the Danish authorities, they sent a reminder on 2 February 2009. Following bilateral contacts with the Danish authorities, the Commission services were informed that a reply was being finalised and would be sent shortly[6].

The complaint

24. In accordance with Danish legislation, the complainant was awarded an invalidity pension based on her periods of residence in Denmark. She was granted a pro rata pension amounting to 23/40 of an unreduced pension. It can be assumed, therefore, that at the time the pension was granted, she had resided in Denmark for 23 years.

25. The complainant's grievances concern the grant of a supplement on the basis of the Law on Active Social Policy (Article 27a Lov om Aktiv Socialpolitik) and the application of that Law, which allegedly gives rise to indirect discrimination against non-Danish EU nationals. She appears to argue that all pro rata pensioners are not automatically granted a supplement that increases their pensions to the amount of a full invalidity pension.

26. It follows from the foregoing that, when the Commission services dealt with the complainant's original request, they had already written to the Danish authorities regarding a similar case and had asked them to clarify the application of Law on Active Social Policy. That request was made using the CASSTM network outlined above. On the basis of the reply received from the Danish authorities, the Commission services took the view that the economic support provided to the complainants in the form of a supplement to their pro rata invalidity pensions did not constitute a social security benefit within the meaning of regulations 1408/71 and 574/72. The supplement in fact had the characteristics of social assistance, in so far as the benefit was granted on the basis of the respective person's individual needs.

27. In order to support this legal interpretation, the Commission pointed to the case-law of the European Court of Justice, in particular, the judgment in Case C-299/05[7]. Here, the Court held that a benefit is regarded as a social security benefit where it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a statutorily defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation 1408/71 (paragraph 56 of the judgment).

28. In their letter of 11 April 2008, the Commission services informed the complainant of their position referred to above.

29. In relation to point 10 of the Commission's 2002 Communication on the handling of infringement complaints, the Commission services drew the Ombudsman's attention to point 3 of that Communication. That point makes clear that complaints do not need to be registered in the central registry of the Secretariat-General if they concern grievances that clearly fall outside the scope of Community law.

30. The complainant's grievance concerned her individual situation. Her right to benefit under the Law on Active Social Policy was a matter to be determined on the basis of a discretionary assessment of her personal needs. It was, consequently, not a matter to be determined under Community law, but solely by the application of the national legislation in question.

31. The Commission services therefore took the view that the non-registration of her grievance is fully in compliance with that Communication and point 3 thereof on the recording of complaints. Consequently, point 10 of the Communication is not applicable to the situation in question.

32. Without prejudice to the foregoing, the Commission services pointed out that they are in the process of carrying out a general, own-initiative investigation of the Danish legislation in question. However, it is unconnected with the issue of granting the complainant the supplement under the Law on Active Social Policy. Should that investigation indicate that any condition in the Danish legislation is likely to be contrary to Community law, the Commission services will take the measures necessary to commence formal infringement proceedings against Denmark. The complainant was informed of that investigation by letter of 26 June 2008 and will be informed of any developments relating to it.

The Ombudsman's assessment

33. The Commission's 2002 Communication for handling infringement complaints provides the following:

"Recording of complaints

Any correspondence which is likely to be investigated as a complaint shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission.

Correspondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints, if:

[…]

- it sets out a grievance which clearly falls outside the scope of Community law."(Point 3)

"Where the Commission departments decide not to register the correspondence as a complaint, they shall notify the author to that effect by ordinary letter setting out one or more of the reasons listed in the second paragraph of point 3.

(Point 4)

The following rule features under the section 'acknowledgement of receipt'. The notification mentioned in this rule shall therefore logically occur during the initial handling of the complaint. It is clearly not foreseen that it occurs after several weeks, let alone following a formal or provisional investigation involving national authorities.

"Unless there are exceptional circumstances requiring urgent measures, where a Commission department intends to propose that no further action be taken on a complaint, it will give the complainant prior notice thereof in a letter setting out the grounds on which it is proposing that the case be closed and inviting the complainant to submit any comments within a period of four weeks."

(Point 10)

34. In addition to the above rules, the Commission is bound by the general obligation of service-mindedness towards the individuals with whom it communicates. It goes without saying that this obligation must be interpreted in its context.

35. The registration ('recording') of infringement complaints is a basic procedural step. It aims, among other things, to ensure that such complaints are handled in accordance with the rules in the 2002 Communication. These include the rule, cited above, that the Commission must hear the complainant before it decides to close the complaint file. The hearing is obviously not a mere gesture towards the complainant. It also helps to ensure that the Commission itself is adequately informed before it decides how to proceed with the case.

36. In the present case, the complainant's infringement complaint was not registered ('recorded') in the Commission's central registry of complaints in the Secretariat-General.

37. In its opinion, the Commission put forward that the infringement complaint did not have to be registered. It referred to Point 3 of that Communication, stating that complaints do not need to be recorded in the central registry of the Secretariat-General where they concern grievances that "clearly fall outside the scope" of EU law.

38. The decision not to register correspondence as an infringement complaint (when the correspondence is clearly intended to put forward such a complaint) must, as noted above in relation to Point 4. of the Commission's 2002 Communication, be communicated to the individual concerned at an early stage. If the Commission in fact concluded, early on, that the object of the infringement complaint here concerned "clearly" fell outside the scope of EU law, the Commission failed to follow this rule in the present case.

39. The Commission's argument that the infringement complaint concerned grievances that "clearly" fell outside the scope of EU law, and that this is what its service concluded at the time, is, however, not credible. The Commission appears to repeat this point in its opinion on the similar complaint 219/2009/PB. In that case, the Ombudsman concluded that the Commission's position was not credible because the alleged conclusion that the grievances "clearly" fell outside the scope of EU law was simply not consistent with its own related actions. On the basis of the relatively detailed facts in the infringement complaint in case 219/2009/PB, the Commission identified and informed the complainant of the possibly relevant EU legislation. It submitted the infringement complaint to the Danish authorities under a formal cooperation procedure and informed the Danish authorities that "[w]e have received a complaint …", and asked them to "investigate" the matter and inform it of their "findings". The Commission never actually informed the complainant that it considered the object of her infringement complaint to be outside the scope of EU law. Instead, it informed her that the applicable Danish legislation was consistent with – not outside the scope of, or irrelevant to – the EU legislation in question. The same observations essentially apply to the present case.

40. The Commission also failed – possibly as a consequence of (apparently) overlooking the 2002 Communication –subsequently to invite the complainant to submit comments on its intention to close the file on her infringement complaint.

41. The Commission service did, however, communicate its decision not to pursue the infringement complaint further, and the complainant, although not being invited to do so, contested that decision. It is relevant, therefore, to examine briefly whether the Commission service's decision substantively complied with the relevant hearing-rule in its 2002 Communication.

42. It is recalled that Point 10 of the 2002 Communication guarantees the complainant the possibility to submit comments in response to "grounds" communicated to him/her by the Commission. For this possibility to be meaningful, the "grounds" must be sufficiently clear and pertinent. In the present case, the Commission's letter merely summarised a reply from the Danish authorities, and referred to "a number of" administrative appeals decisions referred to therein. The summary was merely descriptive of the Danish legislation or practices. It contained no information or explanations enabling the complainant to know why the Commission considered that there was no breach of EU law. Disregarding the issue of whether the Commission service actually overlooked the 2002 Communication, it must, therefore, be concluded here that the letter of 11 April 2009 did not substantively fulfil the requirements in the Communication to set out "the grounds" for closing its handling of the infringement complaint.

43. In an email dated 30 April 2008, the complainant challenged the Commission's position. Her e-mail was detailed, well-written, and raised a number of seemingly reasonable legal points. The Commission replied in a short letter dated 26 June 2008. It set out, in the first paragraph, the object of the complainant's complaint, namely, the application of Danish legislation regarding pro rata pensions and the compatibility with relevant EU legislation (regulations 1408/71 and 574/72). The Commission then informed the complainant that it had asked the Danish authorities to examine the matter. It also stated that, "[a]s soon as it we have received a reply, you will hear from us".

44. In her complaint to the Ombudsman (dated 4 February 2009), the complainant stated that she understood her above e-mail of 30 April 2008 to have been considered and registered as a new infringement complaint, under the number appearing on the Commission's letter (EMPL/E/3 CI/CT/ns Poulsen D(2008) 13322). She also pointed out that she had not heard from the Commission following its letter of 26 June 2008, despite her several calls requesting information on the state of the Commission's investigation.

45. At this point, the Commission's procedural handling of the matter became unclear. The Commission's above-mentioned letter of 26 June 2008 was, as noted, a follow-up to her previous and individual infringement complaint. It contained the above-quoted reference number, which includes her name. The letter stated that she would be informed as soon as the Commission had heard from the Danish authorities. It was natural, therefore, that the complainant understood that, one way or another, the Commission was handling an individual infringement complaint in her name.

46. However, it appears from the Commission's opinion in the present inquiry that the above-mentioned letter of 26 June 2008 was meant to inform the complainant of a 'general investigation' undertaken by the Commission ("The Commission informed the complainant of this [general] investigation on 26 June 2008.")

47. In this respect, the Commission's response to the complainant was also inconsistent with its 2002 Communication, which aims to establish a clear and transparent framework for the handling of infringement complaints.

48. In light of the omissions pointed out in the foregoing paragraphs, the Ombudsman cannot conclude that the response to the complainant's infringement complaint was procedurally adequate within the framework established in the Commission's 2002 Communication. The Ombudsman does not, however, consider that further inquiries, or a critical remark, are required. He refers, in this respect, to the considerations set out in paragraph 8-10 above and his further remark at the end of this decision.

49. The Ombudsman nevertheless wishes to put on record that the Commission services involved – while apparently overlooking the 2002 Communication – dealt with the issues raised by the complaint in a swift and committed manner. Having received the complainant's first letter, the Commission service quickly contacted the Danish authorities. When the complainant asked for a revision of the Commission's initial position (submitting more information and arguments) the Commission contacted the Danish authorities and insisted on being informed in detail about the relevant legislation and its implementation. The Commission's letter of 19 November 2008 to the Danish authorities was firm, and implicitly criticised the Danish authorities for not having responded adequately in their first letter. It also set a short deadline for reply.

50. In light of the above, and in particular the Commission's decision to open a general investigation (which apparently covers issues relevant to the complainant's case and which, according to its opinion, it opened in 2008) the Ombudsman cannot conclude that the Commission had failed, at the time of the complaint to him, to take appropriate steps in order to examine the issues involved.

51. This finding is without any prejudice to any possible future assessment of the Commission's actions following the opening of the present inquiry. The complainant may, therefore, consider contacting the Commission again, with a view to obtaining information on the state of play of the Commission's investigation. In doing so, the complainant could consider awaiting the decision of the Danish National Social Appeals Board and, if she deemed it unsatisfactory to her situation, draw it to the Commission's attention.

52. With regard to the complainant's claim that the Commission should now take up her infringement complainant for renewed examination, the Ombudsman concludes that, at the present point in time, no further inquires would be appropriate, since the substantive issue raised in the complainant's infringement complaint against Denmark is likely to receive appropriate attention at national level (see paragraphs 8-10 of this decision). Any relevant follow-up could be either to start an action for redress at national level, or submit a new infringement complaint to the Commission. With regard to the various above-mentioned shortcomings in the Commission's handling of the complainant's infringement complaint, the Ombudsman notes that the Commission has very recently taken measures to tighten up its handling of such complaints. The Ombudsman refers, in this respect, to his further remark below.

C. Conclusion

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

In light of the considerations set out in paragraph 52 above, the Ombudsman considers that no further inquiries are necessary.

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

FURTHER REMARK

The Commission adopted its 2002 Communication on the handling of infringement complaints in response to calls for improvements by the European Ombudsman and the European Parliament. One aim of the Communication is to provide an appropriate procedural framework for the handling of infringement complaints. This reassures the individual concerned that his or her infringement complaint is dealt with as such, and not only used as a source of information for the Commission's general supervision of the implementation of EU law.

The Commission has informed the Ombudsman that it has taken concrete measures to improve its handling of infringement complaints[8]. It has adopted new and improved practices, which became operational in September 2009. One expected outcome appears to be better practices regarding the registration of infringement complaints.

As part of this work, the Commission also intends to redraft its internal manual for handling infringement complaints. The Commission expects to finish that manual in spring 2010.

The Ombudsman welcomes the Commission's efforts. He looks forward to receiving concrete information on the implementation of the measures taken by the Commission, and on their specific impact on the handling of infringement complaints.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 28 April 2010

---

[1] Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, OJ 1971 L 149, p. 2.

[2] Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, OJ 1972 L 74, p. 1.

[3] Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law, COM/2002/0141 final, OJ 2002, 244, p. 5 Point 10 provides as follows:

"10. Closure of the case

Unless there are exceptional circumstances requiring urgent measures, where a Commission department intends to propose that no further action be taken on a complaint, it will give the complainant prior notice thereof in a letter setting out the grounds on which it is proposing that the case be closed and inviting the complainant to submit any comments within a period of four weeks.

Where a number of complaints are lodged in relation to the same grievance, individual acknowledgements may be replaced by a publication in the Official Journal of the European Communities and on the European Communities' Europa server.

Where the complainant does not reply, or where the complainant cannot be contacted for reasons for which he/she is responsible, or where the complainant's observations do not persuade the department to reconsider its position, a proposal to close the case will be put forward. In that event, the complainant will be informed of the Commission's decision.

Where the complainant's observations persuade the department concerned to reconsider its position, investigation of the complaint will continue."

[4] The Board is the Danish supreme authority for administrative complaints in cases involving legislation on social matters and employment.

[5] On 5 March 2010, the complainant in case 210/2009/PB telephoned the Ombudsman to let him know that on 25 February 2010, the Danish Social Appeals Board (Ankestyrelsen) had taken a decision, in the case that it had initially classified as a "cases on issues of principle". However, the Board had re-classified the case as not being "on issues of principle" after all. It therefore decided not to publish its decision. It did decide, however, to deal with another case (2100126-09) as "a case on issues of principle" relevant to the subject matter here concerned. The complainant was of the impression that the Board was simply acting to delay the matter. She had, therefore, contacted the Danish Ombudsman regarding the issue.

[6] The Commission's opinion, dated 7 July 2009, contains no account of any additional correspondence between itself and the Danish authorities.

[7] Case C-299/05 Commission v Parliament and Council [2007] ECR I-8695.

[8] Letter of 6 November 2009 - not sent in the framework of the present inquiry - from the Commission's Secretary-General to the Ombudsman.