The background to the complaint

1. The complainant is a German citizen.

2. Article 11 of Directive 2006/66[1] (henceforth referred to as 'the Directive') provides that Member States shall ensure that manufacturers design appliances in such a way so that waste batteries and accumulators "can be readily removed". The complainant considers the fact that end-users cannot remove accumulators contained in a growing number of tablet computers, smartphones and ultrabooks not to be in line with Article 11 of the Directive. He sought to raise this issue with the Commission in January 2012. After having unsuccessfully tried to make contact with Commissioner Kroes through her social media accounts, the complainant sent an infringement complaint to the Commission's dedicated mailbox. The mailbox was however bouncing incoming messages. He then sent his complaint to another Commission mailbox and asked for his complaint to be forwarded to the competent Directorate-General. Although he received an acknowledgement of receipt, he did not receive any further reply. On 12 May 2012, he once again sent his complaint to the Commission's dedicated mailbox. The complainant pointed out that he did not receive an acknowledgement of receipt or a case number.

3. On 15 June 2012, the complainant turned to the Ombudsman.

The subject matter of the inquiry

4. In his complaint, the complainant submitted the following allegation and claim:

Allegation

(1) The Commission failed to send an acknowledgement of receipt and assign a case number for the infringement complaint submitted by the complainant on 12 May 2012.

Claim

(1) The Commission should acknowledge receipt of the complainant's infringement complaint and assign a case number to it.

5. After the Ombudsman's services made contact with the Commission's services, the latter sent the complainant a reply dated 12 June 2012 (see paragraphs 9-10 below).

6. In its reply, the Commission stated that Article 11 of the Directive requires Member States to ensure that manufacturers design appliances in such a way that waste batteries and accumulators can be readily removed. Moreover, appliances into which batteries and accumulators are incorporated shall be accompanied by instructions showing how they can be removed safely and, where appropriate, informing end-users of the type of batteries and accumulators incorporated. The Commission stated that, in its understanding, Article 11 of the Directive requires that batteries and accumulators can be readily and safely removed either by end-users or by professional services, such as service centres or waste disposal facilities. The Commission added that instructions should also indicate who, according to the manufacturer, is best suited for removing batteries and accumulators. It concluded by saying that all Member States correctly transposed Article 11 of the Directive into national law. Accordingly, the issues raised by the complainant do not, in the Commission's view, amount to an infringement of the said provision.

7. The Commission's reply was forwarded to the complainant for observations (see paragraph 11 below). In his observations, the complainant confirmed that he had received the Commission's reply. He stated that it was deplorable that the Commission's perspective was limited to the disposal of old appliances, including the proper removal of batteries and accumulators. According to him, given that it tends to regulate every single aspect of life, such, for example, as the ban on regular light bulbs in the EU, the Commission's position on this issue was unsatisfactory and not easily understood from a consumer's point of view or from the perspective of environmental protection. The complainant therefore asked the Ombudsman to assess whether the Commission's position is in conformity with the aims pursued by the Directive. The complainant indicated that, if this were the case, he would ask for information on how to pursue the matter raised by him, given that the substance of the Commission's reply did not help him any further and the Ecodesign Directive (Directive 2009/125[2]) also provided no solution in this regard.

8. In view of the complainant's observations on the Commission's reply, the Ombudsman understood that the complainant wished to raise the following further allegation and claim.

Allegation

(2) The Commission's interpretation of Article 11 of the Directive is not in conformity with the aims of that Directive and, in particular, the objective of minimising the negative impact of batteries, accumulators, and waste batteries and accumulators on the environment.

Claim

(2) The Commission should (i) reconsider its interpretation of Article 11 of the Directive in light of the aims pursued by the Directive and (ii) proceed with the complainant's infringement complaint accordingly.

The inquiry

9. On 5 July 2012, the Ombudsman's services informed the complainant that they had been asked by the Ombudsman to contact the Commission in order to explore the possibility of finding a rapid solution to the complainant's original allegation and claim.

10. On 9 July 2012, the Commission forwarded to the Ombudsman's services the reply it had sent the complainant on 12 June 2012.

11. On 10 July 2012, the Ombudsman's services forwarded the Commission's reply to the complainant for observations, which he sent on that same day.

12. On 23 July 2012, the Ombudsman asked the President of the Commission for an opinion on the complainant's further allegation and claim. The Commission's opinion was forwarded to the complainant for observations by 31 December 2012. No observations were received by that or a later date.

The Ombudsman's analysis and conclusions

A. As regards the complainant's first allegation and claim

Arguments presented to the Ombudsman

13. The complainant alleged that the Commission failed to send an acknowledgement of receipt and assign a case number for the infringement complaint which he submitted on 12 May 2012. He claimed that the Commission should acknowledge receipt of his infringement complaint and assign a case number to it.

14. In its reply to the complainant, the Commission explained its interpretation of Article 11 of the Directive and stated that the issues raised by him do not amount to an infringement of the said provision.

15. In his observations, the complainant criticised the substance of the Commission's reply[3], but did not revert to the issue of the alleged failure to acknowledge receipt of his complaint.

16. In its opinion, the Commission also commented on its handling of the complainant's complaint. It referred to point 3 of its Communication on relations with the complainant in respect of the application of Union law[4] (the 'Commission's Communication'), which provides that a complaint shall not be investigable if it fails to refer, explicitly or implicitly, to a Member State to which the measures or practice contrary to EU law may be attributed, or if it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant. The Commission went on to state that, given that the complainant's letter did not contain any indication of a breach of EU law by Germany or any other Member State or any evidence to that effect, in line with point 3 of the Commission's Communication, it could by definition not be treated as a complaint. Thus, his letter could only be treated as a request for information regarding the interpretation of the Directive and was answered accordingly within a month.

17. The Commission concluded by stating that, in its view, it handled the correspondence with the complainant in full respect of the applicable rules on handling complaints by, and correspondence with, citizens.

18. The complainant did not submit any observations on the Commission's opinion.

The Ombudsman's assessment

19. The complainant's allegation and claim concern the Commission's alleged failure to acknowledge receipt of his infringement complaint and to assign a case number to that complaint. The Ombudsman points out that the Commission's Communication, which was adopted in 2002 and updated in 2012, sets out certain fundamental procedural guarantees for the benefit of complainants submitting infringement complaints to it. It is for the Ombudsman to ensure that the Commission, in its handling of complaints submitted to it by citizens, complies with its Communication.

20. As for the registration of infringement complaints, point 3 of the Commission's Communication requires, as a rule, that any complaint about the application of Union law by a Member State shall be recorded in the "central application for the registration of complaints on the application of Union law by a Member State". However, point 3 also provides for certain exceptions to this rule. Thus, correspondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the application, if, for instance, (i) it fails to refer, explicitly or implicitly, to a Member State to which the measures or practice contrary to EU law may be attributed, or if (ii) it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant.

21. The Ombudsman notes that, in the present case, the Commission relied on both of the aforesaid exceptions to support its position that it was not required to register the complainant's infringement complaint. With respect to the first of these exceptions, the Ombudsman considers that there could be doubts about the Commission's position, given that it emerges from the complainant's complaint that he considered all Member States to be in breach of the Directive (in particular, from section 7 of the complainant's infringement complaint). It would therefore be only logical to assume that the complainant, at least implicitly, referred to Member States to which, in his view, a breach of EU law is attributable. With respect to the second of these exceptions, the Commission's position could also give rise to doubts. While it is true that the Commission published information about its interpretation of the Directive on its website, that information does not, at first sight, contain a clear and explicit position as to the substantive issue raised by the complainant. In any event, the Commission should have informed the complainant in its reply of 12 June 2012 about the reasons for which, in line with its Communication, it considered that it was not obliged to register the complainant's infringement complaint.

22. The above considerations notwithstanding, the Ombudsman notes that, in his observations on the Commission's reply of 12 June 2012, the complainant did not revert to the alleged failure to acknowledge receipt of his complaint and to assign a case number. It therefore appears that the complainant's main concern is the Commission's position on the merits of his complaint. As a consequence, the Ombudsman considers that there are no grounds for further inquiries into the alleged failure to send an acknowledgement of receipt of, and assign a case number to, the complainant's infringement complaint.

B. As regards the complainant's second allegation and claim

Arguments presented to the Ombudsman

23. The complainant alleged that the Commission's interpretation of Article 11 of the Directive is not in conformity with the aims of that Directive and, in particular, with the objective of minimising the negative impact of batteries, accumulators, and waste batteries and accumulators on the environment. In support of this allegation, the complainant argued that the limited life span of accumulators and batteries leads to a waste of resources in cases where it is not possible for end-users readily and safely to remove them. The complainant also argued that a situation in which end-users may have accumulators and batteries removed and replaced by service centres is not practical and does not sufficiently address the problem of waste of resources. The complainant claimed that the Commission should (i) reconsider its interpretation of Article 11 of the Directive in light of the aims pursued by the Directive and (ii) proceed with his infringement complaint accordingly.

24. In its opinion, the Commission stated that its reply of 12 June 2012 set out its interpretation of the Directive, which it had already published on the website of DG Environment ("Q&A on the Batteries Directive 2006/66/EC")[5]. After quoting Article 11 of the Directive, the Commission submitted that the primary objective of the Directive is to minimise the negative impact of batteries and accumulators and waste batteries and accumulators on the environment, thereby contributing to the protection, preservation and improvement of the quality of the environment. As indicated by recital 2 of the Directive, this aim is to be achieved, in particular, by reducing the quantities of hazardous substances in waste and, in cases where the generation of waste cannot be avoided, by reusing or recovering that waste for its material or energy. The Commission added that the attainment of these objectives is ensured if batteries can be readily removed from appliances, either by the end-user or a professional, and can be sent for recovery or recycling. The Commission added that, according to the information available to it, all Member States have correctly implemented this provision. It went on to point out that only the Court of Justice is competent to give a legally binding interpretation of EU law.

25. The complainant did not submit any observations on the Commission's opinion.

The Ombudsman's assessment

26. The Ombudsman recalls at the outset that, as correctly pointed out by the Commission, it is for the Court of Justice, and the Court of Justice alone, to interpret EU law authoritatively. Still, this does not prevent the Ombudsman from taking a position on whether an institution's interpretation on a particular issue is in line with the law and principles of good administration.

27. The Ombudsman notes that the complainant and the Commission are in agreement as regards the aims pursued by the Directive, namely, to minimise the negative impact of batteries and accumulators and waste batteries and accumulators on the environment. Where the generation of waste cannot be avoided, waste should be reused or recovered for its material or energy. However, the complainant and the Commission disagree as to the means to achieve these aims. While the complainant took the view that a situation in which professionals remove and replace accumulators and batteries for end-users does not sufficiently address the problem of waste of resources, the Commission pointed out that the attainment of the objectives of the Directive is ensured if batteries can be readily removed from appliances, either by the end-user or a professional.

28. Article 11 of the Directive reads as follows:

"The Member States shall ensure that manufacturers design appliances in such a way that waste batteries and accumulators can be readily removed. Appliances into which batteries and accumulators are incorporated shall be accompanied by instructions showing how they can be removed safely and, where appropriate, informing the end-user of the type of the incorporated batteries and accumulators. These provisions shall not apply where, for safety, performance, medical or data integrity reasons, continuity of power supply is necessary and requires a permanent connection between the appliance and the battery or accumulator."

29. The Ombudsman notes that Article 11 of the Directive requires appliances to be designed in such a way that waste batteries and accumulators can be readily removed and to be accompanied by relevant instructions. It does not provide for a specific requirement, however, that end-users themselves be able to remove waste batteries and accumulators. It follows that the Commission's interpretation of Article 11 of the Directive, according to which the requirement of "can be readily removed" is fulfilled as long as waste batteries and accumulators can be removed either by end-users or professionals, is at first sight borne out by the wording of that provision. Still, there could be doubts about the Commission's interpretation, considering that the criterion of removability is qualified by "readily", which could imply that end-users themselves should be able to remove waste batteries and accumulators. This view could receive further support if one considers that the Commission's interpretation of Article 11 of the Directive would appear to cover situations in which professionals send appliances to producers in order to have waste batteries and accumulators replaced. Given that, in such cases, end-users would be left without their appliances for a certain period of time, they might consider acquiring a new appliance instead of having a battery or accumulator replaced, which could, in turn, give rise to a waste of resources, to which the complainant referred. It could therefore be doubtful whether the Commission's interpretation is in line with the aims pursued by the Directive, which include avoiding waste. In this context, it should be noted that Article 8 of the Directive covers collection schemes. In particular, Article 8 provides that Member States shall ensure that appropriate collection schemes are in place for waste portable batteries and accumulators. Such schemes shall, among other things, enable end-users to discard waste portable batteries or accumulators at an accessible collection point in their vicinity and require distributors, as a rule, to take back waste portable batteries or accumulators at no charge when supplying portable batteries or accumulators. It could therefore be argued that Article 8 of the Directive is relevant for the interpretation of Article 11 of the Directive. However, the Commission did not comment on this aspect.

30. In view of the above considerations, the Ombudsman takes the view that, at first sight, the complainant and the Commission have presented possible interpretations of Article 11 of the Directive. In order to arrive at a definitive view as to the compatibility of the Commission's interpretation of Article 11 of the Directive with the aims of the Directive, the Ombudsman would have to further probe that interpretation and therefore continue his inquiry. The Ombudsman notes that the complainant did not submit any observations on the Commission's opinion. At the same time, in his observations on the Commission's reply of 12 June 2012, he asked for information on how to pursue the matter, should the Commission's interpretation be considered to be in conformity with the aims of the Directive. In this context, the Ombudsman recalls that Article 227 of the Treaty on the Functioning of the EU gives citizens and residents of the EU the right to submit a petition to the European Parliament on a subject which comes within the European Union's fields of activity and which affects them directly. It could therefore be useful to contact Parliament in relation to the matter raised by the complainant. This consideration is further strengthened by the fact that adopting the complainant's interpretation of Article 11 of the Directive could require amending the Directive. Given Parliament's role as a co-legislator and thus its central role in making and revising EU legislation, the complainant could therefore consider submitting a petition to Parliament. In light of these considerations, the Ombudsman considers that there are no grounds for further inquiries.

C. Conclusions

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

There are no grounds for further inquiries.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 26 February 2013

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[1] Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC, OJ 2006 L 266, p. 1.

[2] Directive 2009/125 of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products (recast), OJ 2009 L 285, p. 10.

[3] This aspect will be assessed below under the heading of the complainant's second allegation and claim.

[4] COM(2012) 154 final.

[5] http://ec.europa.eu/environment/waste/batteries/pdf/qa.pdf