The background to the complaint

1. The complainant, an SME, is a Polish producer of lubricating oil which is neither intended for use, nor used as a heating or motor fuel, nor offered for sale as such (the 'lubricating oil in question'). The complainant bought components for its product in other Member States. The complaint to the European Ombudsman concerns the Commission's handling of the complainant's infringement complaint concerning taxation in Poland for the lubricating oil in question.

2. In 2008, a Polish statute on excise duty ('PL law') entered into force. The complainant took the view that the PL law levies excise duty on lubricating oils, including the lubricating oil in question, regardless of their intended use. At the same time, the statute introduces a cumbersome system of exceptions from such excise duty. Moreover, the formalities required by the PL law and related to the use of the above exceptions are more demanding for EU trade than for domestic trade.

3. On 3 April 2009, the complainant lodged with the Commission an infringement complaint against Poland (received by the Commission on 16 April 2009). The complainant took the view that the PL law contravenes the following EU law provisions:

(i) Directive 92/12[1] (replaced by Directive 2008/118 of 16 December 2008[2]), the so-called 'Harmonisation Directive', which provides for the general arrangements for energy products subject to excise duty ('excise goods') as regards the holding, movement and monitoring of such goods (in particular the first subparagraph of Article 3(3) which provides that "Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States");

(ii) Directive 2003/96[3], the so-called 'Energy Taxation Directive', imposing a minimum rate of taxation on electricity and energy products, which provides: (a) at Article 2, that it shall not apply to, inter alia, "energy products used for purposes other than as motor fuels or as heating fuels" (that is, the lubricating oil in question); and (b) at Article 20, an exhaustive list of energy products which shall be subject to the control and movement provisions of Directive 92/12 ("Only the following products …"). In that list, the lubricating oil in question is not included;

(iii) Article 110 TFEU which in substance prohibits all forms of discrimination against the products of other Member States. Article 110 TFEU provides that: "No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products."

4. The complainant referred in detail to the Polish law. It gave examples of concrete provisions which, in its view, are contrary to EU law. It also referred to a number of Polish court judgments which relied on the judgment of the Court of Justice of the European Union (CJEU) in Fendt Italiana delivered in 2007[4]. The complainant took the view that the lubricating oil in question should not be subject to excise duty and, therefore, that the PL law is incompatible with EU law. The complainant also informed the Commission that, following the above-mentioned judgments of the Polish courts, a process of amending the PL law started and that the complainant has advanced its viewpoints. However, the amendment process had so far been unsuccessful.

5. On 13 May 2009, the Secretariat-General of the Commission informed the complainant that it registered the complainant's correspondence as a complaint and assigned it to DG Taxation and Customs Union ('DG Taxation').

6. On 19 November 2009, the complainant sent additional documents and informed the Commission that the discussions on the amendments of the PL law had recommenced in the Polish parliament. It also asked to be informed of the progress of its file.

7. On 8 February 2010, the Commission sent the complainant a letter informing it that the complaint was being treated within the framework of another case concerning the same subject.

8. On 31 March 2010, the complainant renewed its request to be informed of the progress of its file. It also forwarded to the Commission the most recent judgments in which the Polish courts held that the PL law is incompatible with the relevant EU law. It stated that, although there were altogether 18 such enforceable judgments, the Polish state still applies cumbersome procedures making it difficult to trade the lubricating oil in question in Poland.

9. On 21 April 2010, DG Taxation informed the complainant that it was currently drafting a letter of formal notice to the Polish authorities. DG Taxation added that the final decision to send such a letter "belongs to the Commission" and would depend on the results of internal consultations with other Commission services. This could take "some time". DG Taxation promised to inform the complainant of any new developments in its case.

10. On 21 June 2010, the complainant sent the Commission further information concerning the amendments of the PL law. The complainant submitted that the entire process was unsuccessful. On 29 June 2010, the complainant added that the draft amendments to the PL law ultimately reinforced the dominant position of two major energy firms in Poland (ORLEN and LOTOS) against the interests of SMEs.

11. On 30 June 2010, the Commission answered by e-mail and stated that it had suspended the process of sending the letter of formal notice until September 2010, when the amendments of the PL law should enter into force.

12. The amendment of the PL law was finally adopted on 22 July 2010 and entered into force on 1 September 2010. On 18 August 2010, the complainant requested that its case be investigated once more as the new law had not changed the situation in Poland concerning the lubricating oil in question . On 6, 27 and 30 September and 14 and 16 October 2010, the complainant sent additional information and documentation to the Commission, including further judgments of national courts in individual cases concerning excise duty on lubricating oils. It also asked to be informed about the progress of its file.

13. On 18 March 2011, DG Taxation answered the complainant's complaint and further correspondence. The Commission first summarised the complaint and noted that it included allegations of the infringement of Article 110 TFEU, Directive 2003/96, and Directive 2008/118 which repealed Directive 92/12. The Commission took the view that there were no grounds to consider that the PL law, which provides that the lubricating oil in question is covered by harmonised excise duty and that its trade should be controlled pursuant to Directive 2008/118, is contrary to Article 2(4)(b) and Article 20 of Directive 2003/96. Although Directive 2003/96 excludes from its scope of application the lubricating oil in question, it does not exclude the possibility that taxes, which differ from the harmonised excise tax, may be levied on that oil provided that this does not increase cross-border formalities laid down by EU customs' provisions. Such a tax may indeed be similar, or even identical to, the excise duty. In this respect, the Commission referred to the judgment in Fendt Italiana. The complainant's case presented no element of "border-crossing formalities". In the Commission's view, Article 20 of Directive 2003/96, which provides an exhaustive list of energy products which should be subject to the control and movement provisions of Directive 92/12 on harmonised excise duty, constitutes an exception to the obligations imposed on Member States in Directive 2008/118 repealing Directive 92/12. This means that if the Member States are applying non-harmonised taxation they are, nevertheless, allowed to use the same procedures as those applicable to harmonised taxation. As regards the alleged infringement of Article 110 TFEU, the situation in which a Member State levies a tax on goods which are not subject to taxes in their country of origin (as in the present case) is not covered by that article. The PL law applies the same taxes to Polish and foreign lubricating oils equally and therefore is not discriminatory. In light of the above, DG Taxation did not consider that the PL law was contrary to EU law and therefore it proposed, in agreement with the Commission's Legal Service, to close the case. DG Taxation invited the complainant to submit observations on this proposal within the next four weeks.

14. On 24 March, 8 April, 11 May and 23 August 2011, the complainant submitted the said observations. It did not agree with DG Taxation's conclusions. It was surprised that, on 21 April 2010, DG Taxation had confirmed in substance that the infringement existed and yet one year later changed its mind completely. This 'change' of mind could not result from the amendments to the PL law because the amendments did not concern the questions alleged in the infringement complaint. The Commission's justification for its new stance was at the very least 'illogical'. If Article 20 of Directive 2003/96 does not list the lubricating oil in question as a product subject to the provisions on harmonised excise goods provided for in Directive 92/12 (replaced by Directive 2008/118), the same procedures as in the case of harmonised excise goods could not logically apply to that oil. The complainant cited the judgment of the Polish Administrative Appeal Court in Warsaw of 28 September 2009. In this judgment that court referred to the judgement of the CJEU in Fendt Italiana and found that the excise duty levied on the lubricating oil in question as introduced in the PL law, could not be considered as 'another consumption tax'. The complainant further took the view that, even if one accepts that this is another consumption tax, the PL law increases the border-crossing formalities contrary to Directive 2008/118. Moreover, the complainant referred to the judgment of the Polish Supreme Administrative Court, of 22 March 2011, that the Polish authorities cannot exempt from excise duty goods which are not covered by the EU principles of harmonised excise duty in the first place. The complainant further pointed out that the Polish Ministry of Finance had already adopted the above mentioned court's views in a number of decisions on individual cases. The complainant also pointed out that some parts of DG Taxation's letter appeared to be a 'copy paste' of the position previously taken by the Polish Ministry of Finance in its contacts with the complainant. This position ultimately needed to be changed following the Supreme Court's judgment referred to above. Finally, the complainant stated that a tax similar, or even identical, to the excise duty applies to the lubricating oil in question only in Poland and this makes it difficult for Polish producers to compete fairly with producers of that oil from other Member States. The complainant also pointed out that the Commission took two years to assess the case.

15. On 25 November 2011, DG Taxation replied. It stated that its position of 21 April 2010 was based on an initial assessment of the complaint. This position changed as a result of "an analysis of the information submitted" and internal consultations with the other Commission services. The Commission reiterated that although the lubricating oil in question is not a harmonised excise good, this does not mean that taxes cannot be levied on it if such taxes comply with Article 110 TFEU and Article 1(3) of Directive 2008/118 ("...the levying of such taxes may not, in trade between Member States, give rise to formalities connected with the crossing of frontiers."). In the Commission's view, there are no legal reasons for such taxes to be similar to the excise duty. In the Commission's further view, the formalities for the exemption from a tax similar or even identical to the excise duty appear to be "standard administrative formalities in collecting excise duty" and not the formalities to which Article 1(3) of Directive 2008/118 refers. These kinds of formalities are not contrary to EU law (the Commission referred to the judgment in case C-2/09 Kalinchev[5]). The Commission maintained its intention to close the case.

16. On 14 December 2011, the complainant reacted to the above letter. It stated that DG Taxation did not refer in more detail to the stance taken by other Commission DGs and this would have been important in order to understand the radical change of the Commission's views on the alleged infringement. Moreover, the Commission did not refer at all to the judgments of the Polish courts, the substance of which the complainant had forwarded to the Commission. Similarly, the Commission did not refer to the opinion either of an independent expert on EU law or of the Polish Advisory Council on Legislation, both of which the complainant had submitted to the Commission. Finally, the complainant pointed out that the judgment in Kalinchev, referred to by the Commission, is not applicable to its case. The judgment in Kalinchev applies to products after they have been imported to one Member State from another and not before intra-Community trade takes place. Moreover, the Polish producers of the lubricating oil in question have first to pay excise duty before applying for an exemption from that duty. However, the lubricating oil in question should not have excise duty levied on it at all. Because of the formalities imposed by the PL law, Polish producers need to buy the lubricating oil in question from firms in which the Polish state has shares and cannot buy it from other Member States.

17. On 26 January 2012, the Commission decided to close the complainant's infringement case. On the same date, the Commission closed another case concerning the same issue (point 7 above).

18. On 7 February 2012, the Commission replied to the complainant's letter of 14 December 2011. The Commission stated that it had assessed the compliance of national law with EU law on the basis of: (i) all information submitted; and (ii) the judgments of the CJEU. The Commission "is not bound [in its assessment] by the judgements of national courts and opinions submitted by external experts." The Polish administrative procedures, to which the complainant referred, appeared to be aimed rather at controlling excise duty and preventing tax fraud. Such measures were not contrary to EU law. The Commission stated that the complainant's case was definitively closed.

The subject matter of the inquiry

19. In his complaint, the complainant alleged that the Commission failed to: (i) handle its infringement complaint with due diligence; and (ii) provide it with an appropriate statement of reasons for the closure of its case.

20. The complainant claimed that the Commission should explain more effectively why it decided to close its infringement case.

The inquiry

21. On 8 March 2012, the Ombudsman asked the Commission for its opinion on the complaint. On 20 July 2012, the Commission submitted its opinion in English and subsequently its translation into Polish. The translation was forwarded to the complainant for observations. He submitted initial observations on 7 August 2012 and finalised them on 10 September 2012. On 31 October 2012, the Ombudsman addressed further questions to the Commission. The Commission replied on 4 February 2013. This reply was forwarded to the complainant for observations. The complainant replied on 8 March 2013. In the meantime, on 6 December 2012, the Ombudsman's services carried out an inspection of the Commission's file. The inspection covered documents which, with the exception of the judgment of the Polish Supreme Administrative Court of 29 October 2012, the Commission classified as confidential[6]. On 24 January 2013, the report on the inspection was sent to the Commission and the complainant.

The Ombudsman's analysis and conclusions

Preliminary remarks

22. The Ombudsman notes that the complaint refers to the alleged failure of the Polish authorities to comply with EU legislation. The Ombudsman recalls that, according to Article 228 TFEU, the Ombudsman has the power to receive and examine complaints about maladministration in the activities of the EU institutions, bodies and agencies. No action by any other authority or person may therefore be the subject of a complaint to the Ombudsman.

23. It is thus not the task of the Ombudsman to examine the merits of EU or national legislation and whether the national authorities correctly applied national or EU law. For the above reasons, in his inquiry into the present complaint, the Ombudsman will deal exclusively with the issue of possible maladministration on the part of the Commission. The Ombudsman's inquiries in this context are limited to investigating whether the Commission, in its handling of infringement complaints under Article 258 TFEU, has acted in accordance with the procedural rules and principles binding upon it, within the limits of its legal authority and whether it provided the complainant with both a reasonable reply to his complaint and the reasoning for its decision.

A. Alleged mishandling of the infringement complaint

Arguments presented to the Ombudsman

24. In its complaint, the complainant argued that DG Taxation, took one year to conclude its initial assessment of the infringement complaint before it decided to ask some of the Commission's other services for an opinion. Overall, the Commission took almost two years to decide on the closure of its infringement complaint.

25. In its opinion, the Commission referred in detail to its exchange of correspondence with the complainant (as summarised in points 5-18 above) and provided copies of that correspondence.

26. It also pointed out that the official responsible for the case in the Commission's services was in constant telephone contact with the complainant informing its representatives 'on demand' about the progress that was being made in the case and about the Commission's next procedural steps such as consulting with other units in DG Taxation and with the Commission's Legal Service, and that the latter's agreement was needed.

27. The Commission pointed out that between September 2010 and March 2011 (the date when it decided that the file should be closed) it, once again, consulted with the relevant units and the Legal Service and analysed again the documents provided and the legislation.

28. The Commission argued that the case was of a very complex nature, requiring an in-depth knowledge of the field of excise duty as well as an analysis of numerous documents and developing legislation, both at EU level (for instance on 1 April 2010, Directive 2008/118 repealed Directive 92/12) and at national level (the PL law, namely Excise Duty Law of 6 December 2008 was amended on 22 July 2010 and the Regulation of 24 February 2009 on exemption from excise duty was replaced by the Regulation of 23 August 2010 on exemption from excise duty).

29. In reply to the Ombudsman's further question as to whether there had been any contacts with the Polish authorities concerning the complainant's infringement complaint, the Commission stated that, most of the time, the Commission's services contact the authorities of the Member States participating in the EU Pilot before sending them a letter of formal notice. However, at the time of the assessment of the case, Poland was not participating in this scheme, nor were there any other particular reasons to contact the Polish authorities before taking a decision on the further actions in the case.

30. In reply to the Ombudsman's further question as to whether the Commission relied on the 2010 amendments to the Polish law in its final assessment, the Commission submitted that its assessment always concerns the current law in force. It analysed the amendments to the PL law and found that they were not relevant to the case at hand because they did not change the rules governing lubricating oils.

The Ombudsman's assessment

31. In 2002, the Commission issued a Communication to the European Parliament and the European Ombudsman on relations with the complainants in respect of infringements of EU law (‘the Communication’). The Communication was updated in 2012)[7].

32. The Ombudsman recalls that the Communication establishes that "[a]s a general rule, Commission departments will investigate complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint by the Secretariat-General." The Ombudsman is convinced that this rule cannot be interpreted to mean that one year is granted to each Commission department which may successively deal with the infringement complaint. Rather, it means that one year is granted to the Commission 'as a whole.' In the present case, the complainant submitted the infringement complaint to the Commission in April 2009. On 18 March 2011, DG Taxation officially informed the complainant of the proposed closure of its case. It follows that the Commission's departments took almost two years (one year and 11 months) to arrive at the view that no letter of formal notice should be sent and that the case should be closed. Subsequently, the Commission closed the case on 26 January 2012.

33. The question arises as to whether the 11-month delay was justified. This would be so if the Commission could have shown that between April 2009 and 18 March 2011, it kept taking appropriate steps to find out whether the alleged infringement justified the pre-litigation procedure or not.

34. The Ombudsman's inspection of documents showed that, between April 2009 and 18 March 2011, there was indeed a relevant internal exchange of views within in DG Taxation. However, there was a large unexplained interval between these exchanges (the gap was June-July 2009 to October 2010). In addition, DG Taxation exchanged views with the Commission's Legal Service, but it appears that this took place only on three occasions: in January 2010, and in October and November 2010.

35. The Ombudsman also notes, as acknowledged by the Commission in the further reply, that there was no contact with the Polish authorities in order to clarify the infringement case. If they had taken place, such contacts would perhaps have been time consuming and might, perhaps, have explained the time the Commission took to deal with the infringement case.

36. Moreover, the Ombudsman notes that there were apparently only two complaints concerning the same issue under the Commission's consideration. There are no reasons to consider that the Commission needed more time to deal with both instead of dealing with one even though they were complex and included a substantial amount of evidence.

37. In addition, the Ombudsman is convinced that DG Taxation has the finest specialists in the field of EU taxation working for it. DG Taxation could thus have been expected to be able to analyse the infringement complaint within a sufficient time for the whole Commission to comply with the one year provided for in the Communication, regardless of how complicated the EU/national law under its consideration was. The Ombudsman notes in this respect that there was some lack of certainty within the Commission's services concerning the final solution to the infringement complaint. In fact, two letters of formal notice were drafted, albeit neither was sent out. However, the evidence available does not allow the Ombudsman to ascertain the clear reasons for this hesitation.

38. Finally, it does not appear that the 2010 amendments to the PL law had a real impact on the timing of the Commission's analysis since; ultimately, the amendments did not concern the subject matter of the infringement complaint. Nevertheless, the Ombudsman may accept that the Commission was justified in putting on hold the administrative handling of the infringement complaint before the relevant Polish legislative process ends. Therefore, 2 months of the 11-months delay could be justified by the suspension of the Commission's investigation while awaiting amendments to the PL law.

39. In light of the foregoing, the Ombudsman considers that the Commission failed to explain in a clear and convincing manner why it needed, in total, one year and 9 months to decide that there was no infringement.

40. However, the Ombudsman notes that the Commission acted in accordance with the principles of good administration when it regularly updated the complainant about the investigation, by sending it letters and speaking to its representatives by telephone on a regular basis. In view of this positive administrative behaviour towards the complainant in an infringement case, the Ombudsman considers it unnecessary to seek explanation of the Commission's delay. With an eye to helping the Commission improve its handling of future infringement cases, however, the Ombudsman makes a further remark below.

B. Allegation of insufficient statement of reasons

Arguments presented to the Ombudsman

41. The complainant argued that the Commission failed to explain convincingly its decision that there was no infringement. The complainant pointed out that the decision did not take into account (a) the judgments of the Polish Courts which all showed, in the complainant's view, that the PL law does not comply with EU law; and (b) the opinions of scientific experts.

42. The complainant also argued that the Commission did not indicate the exact position of other DGs in order to explain more effectively the difference between the initial and the final position of DG Taxation.

43. In the opinion, the Commission stated that it is not obliged to reveal to the complainant the exact position of each service and DG having taken part in the decision-making process, "as it is exclusively an internal issue." The Commission's initial letter to the complainant informing it about the intention to send a letter of formal notice was based on the current assessment of the situation at that time. However, following internal consultation it was concluded that the Polish taxation of the lubricant oils in question did not breach EU law.

44. The Commission took the view in the opinion that its reasons for the above findings were properly and exhaustively explained to the complainant in the pre-closure letter of 18 March 2011 and in the closure letters of 25 November 2011 and 14 February 2012.

45. In its observations, the complainant took the view that, by refusing to reveal or explain the results of the internal consultations and because it failed to submit arguments on how the final assessment was based, the Commission failed to conduct the complainant's case in a transparent manner.

46. The complainant considered that the Commission failed to provide unambiguous legal and substantive reasons for finding no infringement. The complainant, therefore, took the view that, in reality, the closure of its case was based on political considerations. Finally, the Commission did not take into account all the information provided by the complainant.

47. In reply to the Ombudsman's further request to explain more effectively the difference between the initial and the final position of DG Taxation by revealing the position of other DGs (apart from DG Taxation) as regards the complainant's case, the Commission stated that DG Taxation requested the opinion of the internal unit responsible for the drafting of legislative texts as well as that of the Legal Service. No other DGs were involved in the assessment of the questions asked by the complainant as the issue concerned fell within the remit of DG Taxation.

48. The Ombudsman asked the Commission to explain why: (i) in its assessment, which led to the conclusion that there was no infringement, the Commission did not take into account the Polish court judgments referred to by the complainant which, according to the complainant, concluded, in substance, that the Polish legislation in question did not comply with EU law; and (ii) whether it considered that it took into account the principle of sincere cooperation/mutual respect[8] when it stated in its letter to the complainant of 7 February 2012, that it "is not bound [in its assessment] by the judgments of national courts".

49. The Commission gave the following answers. First, it stated that, in its assessment of compliance, it takes into account the judgments of national courts, in particular as a means of understanding the national legislation and its interpretation by the national authorities. Therefore, the Commission's position cannot be understood in the sense that it systematically disregards the views of national courts. In the present case, a closer look at the legal analysis provided by the national courts shows that the judgments issued on individual cases differed in their assessment of national legislation and facts and consequently in their conclusions. The Commission added that, on 29 October 2012, the Polish Supreme Administrative Court issued a resolution where it discussed different approaches to the subject matter in the Polish administrative courts' case-law and came to the same opinion as the Commission.

50. In its observations on the above reply, the complainant pointed out that the resolution of the Polish Supreme Administrative Court of 29 October 2012 concerned the Polish law in force in 2004-2008. Regardless of this resolution, the Polish Supreme Administrative Court appeared still to have doubts about the interpretation of Polish law in light of EU law. Therefore, on 5 March 2013, it made another resolution and decided to stay the proceedings in a case concerning the same matter as the complainant's infringement case before the Commission and to refer the following question to the CJEU for a preliminary ruling: "Article 3 indent 3 of Directive 92/12 of 25 February 1992 and Article 1 indent 3 (a) of Directive 2008/118 of 16 December 2008 revoking Directive 92/12 shall be interpreted in a way that they do not oppose that the Member State levies a excise duty on [lubricating oil in question] pursuant to the rules on harmonised excise duty imposed on consumption of energy products[9]?"

The Ombudsman's assessment

51. When dealing with the present allegation, it is necessary to distinguish between the infringement of the duty to state reasons as a procedural requirement, on the one hand, and its function as an indicator of a substantive defect in the decision to be examined on the other hand.[10]

52. Bearing this in mind, the Ombudsman first recalls that the complainant was not satisfied with the quality of the Commission's explanation for its decision that there was no infringement of EU law by the Polish authorities. This reasoning was included in the Commission's letters to the complainant of 18 March and 25 November 2011, and 7 February 2012. The Ombudsman has sympathy for the complainant’s view that the quality of the Commission's statement of reasons was not as good as it could have been in the circumstances.

53. First, the complainant's thorough analysis and, most importantly, detailed references to the judgments of the Polish courts could have received more exhaustive answers from the Commission than those summarised in points 13, 15 and 18 above. Even if it would not have been appropriate for the Commission to discuss the judgments of the Polish courts, nothing prevented it from stating which judgments reflected its own position and which did not.

54. Indeed, national courts are the first guardians of EU law and any alleged infringements may be dealt with more efficiently through national means of redress rather than at EU level. The citizens, however, may also use the complaint procedure established by the Commission. It is worth recalling, in this respect, the clear wording of the European Court of Justice in its 50-year old judgment of Van Gend en Loos[11]: "the fact that the Treaty places at the disposal of the Commission ways of ensuring that obligations imposed upon [the Member States] by the Treaty are observed, [does not] preclude the possibility, in actions between individuals before a national court, of pleading infringements of these obligations." In the same judgment, the Court also held that: "the vigilance of individuals concerned to protect their rights [before national courts] amounts to an effective supervision in addition to the supervision entrusted by [the then] Articles 169 and 170 to the diligence of the Commission and of the Member State" (emphasis added). In its subsequent judgment in Molkerei-Zentrale, the CJEU added that: "proceedings [at national level] are intended to protect individual rights in a specific case, whilst intervention by the Community authorities has as its object the general and uniform observance of Community law.[12]"

55. The present case constitutes an example of parallel proceedings, brought by the Commission and before the national courts, concerning the same alleged infringement of EU law by the Polish authorities. Even if the Commission's conclusion is different from that of the national courts, the Commission certainly should not disregard national judicial proceedings. As the Ombudsman acknowledged in other decisions following complaints lodged with him[13], the Commission may indeed choose to await the outcome of the relevant ongoing national judicial review before deciding on how to deal with a complaint which has previously been registered and covered by that review.

56. Although in the present case the Commission has chosen a different path, the Ombudsman is pleased with the Commission's clarification given in its further reply, on its approach to national judicial proceedings in infringement cases. In addition, the Ombudsman notes that, in that reply, the Commission stated that in its judgment of 29 October 2009 the Polish Supreme Administrative Court came to the same opinion on the issue as the Commission. This effectively complements its earlier replies to the complainant.

57. Second, as DG Taxation informed the complainant, on 21 April 2010, that it was currently drafting the letter of formal notice to the Polish authorities, it would have been appropriate to explain, at least in outline, to the complainant why, one year later, DG Taxation decided to change its initial stance. Merely to state that the change resulted from internal consultations does not constitute such an explanation. The Ombudsman regrets the fact that the Commission did not make full use of the opportunity provided to it in the course of his inquiry and did not complete to a sufficient standard its earlier replies to the complainant in the opinion, which was composed of a two-page description of facts and only a half-page analysis.

58. In this respect, the Ombudsman reiterates that good administration does not only mean compliance with legal obligations but also requires acting transparently and proactively by meeting citizens' reasonable expectations. In the present case, the complainant was justified in expecting the Commission to explain clearly the change in its assessment in light of the internal exchange of views among its services. Indeed, acting transparently also means putting the facts on the table. After having inspected the documents in the file, the Ombudsman does not see why the Commission failed to do so[14].

59. In sum, the Ombudsman considers that the Commission's failure to explain why it changed its position in light of the internal exchange of views within its services, negatively affected the quality of the explanation for its decision that there was no infringement.

60. However, the Ombudsman notes that on 25 June 2013, the Polish Supreme Administrative Court referred the question to the CJEU for a preliminary ruling on the very same matter[15]. Since only the CJEU can provide an authoritative interpretation of EU law, the Ombudsman decides that no further inquiries are justified into the Commission's overall explanation for its decision that there was no infringement[16]. Again with an eye to helping the Commission improve its handling of future infringement cases, the Ombudsman makes a second further remark below.

C. Conclusions

The Ombudsman considers that further inquiries would not be justified and therefore closes the case.

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

Further remarks

In order to give full effect to point 8 of its 2012 Communication[17], the Ombudsman suggests that the Commission could make clear to its services that the need for inter-service consultations does not, in itself, justify exceeding the one-year deadline.

The Ombudsman suggests that, when giving reasons for its decisions in infringement cases, the Commission take into account that proactive disclosure, at least in outline, of different views taken by its services could help to convince complainants and citizens generally that the stated reasons underlying the closure of the case are genuine.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 25 September 2013

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[1] Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

[2] Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2008 L 9, p. 12).

[3] Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

[4] Joined cases C-145/06 and C-146/06 Fendt Italiana Srl v Agenzia Dogane [2007] ECR I-5884. The Court interpreted Directive 92/81/EEC and Directive 92/12/EEC.

[5] C-2/09 Regionalna Mitnicheska Direktsia-Plovdiv v PD Kalinchev [2010] I-04939. This preliminary ruling concerns the taxation of imported used vehicles which is higher than that imposed on vehicles which are already in circulation in the territory of Bulgaria. The Commission referred to paragraph 27 of the judgment: "…Although the declaration had to be submitted at the time of the intra-Community acquisition of the vehicle, and thus at the time of crossing a border, that formality would, however, relate not to that 'crossing' for the purposes of the first subparagraph of Article 3(3) of Directive 92/12, but to the obligation to pay the excise duty. In that case, the purpose of that declaration being to ensure payment of the debt corresponding to the excise duty, that formality would thus relate to the event giving rise to the excise duty".

[6] In accordance with Article 4(1) of the Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom, OJ 1994 L 113, p. 15) and the implementing provisions adopted by the Ombudsman and last amended on 3 December 2008, neither the complainant nor the public have access to confidential documents obtained by the Ombudsman's services during an inspection.

[7] The Commission's communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (OJ 2002 C 244, p. 5).

[8] Article 4(3) TEU: "Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties...".

[9] The translation from the Polish by the Ombudsman's services of the relevant part of resolution I GSK 780/11 Postanowienie NSA. The full text in Polish reads:

"Czy art. 3 ust. 3 dyrektywy Rady 92/12/EWG z dnia 25 lutego 1992 r. w sprawie ogólnych warunków dotyczacych wyrobów objetych podatkiem akcyzowym, ich przechowywania, przeplywu czy kontrolowania (Dz.Urz. UE L 76 z 23 marca 1992 r., s.1, z pózn. zm.; Dz.Urz. UE Polskie wydanie specjalne - Rozdzial 9., t. l, s. 179) - oraz aktualnie odpowiednio art. 1 ust. 3 lit a) i akapit pierwszy dyrektywy Rady 2008/118/WE z dnia 16 grudnia 2008 t. w sprawie ogólnych zasad dotyczacych podatku akcyzowego, uchylajacej dyrektywe 92/12/EWHG (Dz.Urz. UE L 9 z 14 stycznia 2009 r., s. 12, z pózn. zm.) - nalezy interpretowac w ten sposób, ze nie sprzeciwia sie nalozeniu przez panstwo czlonkowskie na oleje smarowe oznaczone kodem CN 2710 19 71 - 2710 19 99, wykorzystywane do celów innych niz napedowe i grzewcze, podatku akcyzowego, wedlug regul wlasciwych dla ujednoliconego podatku akcyzowego nakladanego na konsumpcje produktów energetycznych?"

[10] The Ombudsman recalls that, as a direct consequence of Article 296 TFEU, the obligation to state reasons is intrinsic to every step of the decision-making process at EU level, as well as to any administrative procedure before an EU institution, agency or body. According to Article 41 of the Charter of Fundamental Rights of the European Union, this forms an essential part of the right to good administration.

[11] Case 26/62 Van Gend en Loos [1963] ECR 1.

[12] Case C-28/67 Molkerei-Zentrale Westfalen [1968] ECR 143, p. 154.

[13] Case 822/2009/BU, paragraph 34 (www.ombudsman.europa.eu).

[14] See Footnote 6 above.

[15] Case C-349/13 Oil Trading Poland, reference for a preliminary ruling of the Naczelny Sad Administracyjny (Polish Supreme Administrative Court), not yet published in the Official Journal.

[16] Article 1(3) of the Ombudsman's Statute provides that he "[m]ay not intervene in cases before courts or question the soundness of a court's ruling." Similarly, according to Article 2(7), "[w]hen the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively."

[17] Communication from the Commission to the Council and the European Parliament updating the handling of relations with the complainant in respect of the application of Union law (COM(2012)154 final.