BACKGROUND

1. The complainant in the present case is a Romanian national. On 3 February 2009, he submitted a complaint to the European Commission Directorate-General for Competition (DG COMP) concerning Romanian legislation which imposed a tax on second-hand cars upon their first registration in the country. In the complainant's view, the above legislation infringed EU rules on State aid (Article 107[1] and 108[2] of the Treaty on the Functioning of the European Union (TFEU)). The complainant asked the Commission to inform him about the measures it would take against the Romanian authorities.

2. On 18 February 2009, DG COMP sent him an acknowledgement of receipt concerning his complaint. It stated that it "would carry out the necessary investigations in connection with the information provided" by the complainant and that it "would inform [him] of the outcome as soon as possible".

3. On 25 September 2009, the complainant contacted Europe Direct concerning his complaint of 3 February 2009. He explained that he had not received a substantive reply and asked for advice. Europe Direct advised him to contact the Secretariat-General of the Commission directly regarding the matter.

4. On the same day, the complainant sent an e-mail to the Commission's Secretariat-General. He argued that the Commission had failed to provide him with a substantive reply to his complaint of 3 February 2009. The complainant also asked whether the Romanian authorities had replied to the Commission's letter of formal notice dated 25 June 2009, in which the Commission requested the Romanian authorities to modify the legislation concerning the aforementioned tax. The complainant also asked the Commission to explain him which measures it had taken against the Romanian authorities, given that the controversial tax was introduced in 2007.

5. The complainant did not receive a reply from the Commission in relation to his complaint of 3 February 2009 and his e-mail of 25 September 2009.

6. On 7 November 2009, the complainant turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

7. In his complaint, the complainant alleged that the Commission failed properly to handle his complaint.

8. He claimed that the Commission should provide him with a substantive reply to his complaint

THE INQUIRY

9. On 12 November 2009, the Ombudsman opened an inquiry and asked the Commission to provide an opinion by 28 February 2010.

10. On 26 February 2010, the Commission sent its opinion, which was drafted in English. On 4 March 2010, the Commission provided a translation into Romanian of its opinion, which was forwarded to the complainant with an invitation to submit observations. The complainant did not submit observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of failure properly to handle the complainant's complaint

Arguments presented to the Ombudsman

11. In support of his allegation, the complainant argued that the Commission failed to answer his complaint of 3 February 2009 and his reminder of 25 September 2009. Moreover, he argued that the Commission failed to inform him (i) whether it had registered his complaint of 3 February 2009, and (ii) about its progress in the matter, although it had promised to do so.

Arguments presented to the Ombudsman

12. In its opinion, the Commission argued that it properly handled the complainant's complaint of 3 February 2009 and duly informed him of its assessment of the case by letters dated 29 April and 28 October 2009[3].

13. First, the Commission emphasised that the complaint of 3 February 2009 was registered as a State aid complaint and handled in accordance with the provisions of Regulation 659/1999[4]. On 18 February 2009, it sent the complainant an acknowledgement of receipt of his complaint, which was registered under reference number CP58/09.

14. By letter dated 29 April 2009, DG COMP informed the complainant of its preliminary assessment of his complaint (the Commission enclosed a copy of this letter with its opinion). DG COMP took the view that the measures adopted by the Romanian authorities did not constitute State aid under Article 107 TFEU[5]. It further explained that, in its view, the Romanian legislation appeared to lack the "selective element" which was required by the EU law for a measure to be considered as State aid. The Romanian legislation seemed rather to benefit Romanian consumers and applied to all vehicles registered after a certain date in any Member State of the EU. DG COMP pointed out, however, that the above-mentioned analysis was not its definitive position, but only its preliminary view, based on the information provided by the complainant. Therefore, in its letter dated 29 April 2009, it invited the complainant to submit further comments within one month of receiving the letter.

15. In response to the complainant's letter dated 25 September 2009, which was addressed to the Commission's Secretariat-General, and in which he alleged that he did not receive a reply to his complaint, DG COMP sent him a further reply (the Commission enclosed a copy of this letter with its opinion) on 28 October 2010. In this reply, DG COMP stated that it had already sent him a letter on 29 April 2009 setting out its preliminary analysis of the complaint. It also reiterated its preliminary view that, on the basis of the available information, the Romanian legislation in question could not be qualified as State aid. DG COMP also gave the complainant a new period for submitting comments. Finally, it informed the complainant that its Directorate-General for Taxation and Customs Union (DG TAXUD) was investigating the Romanian legislation in question to determine whether it infringed any EU rules forbidding discriminatory taxation. DG COMP added that DG TAXUD sent a letter of formal notice to the Romanian authorities regarding the matter. In this respect, DG COMP provided the complainant with the relevant press release and invited him to contact DG TAXUD directly for any further information relating to its investigation procedure.

16. The Commission stressed that it did not receive any further submission from the complainant following its letter of 28 October 2009.

17. The Commission regretted that the complainant did not receive its letter dated 29 April 2009 and apologised that it failed to respect the deadline of 15 working days, pursuant to its Code of Good Administrative Behaviour, to reply to the complainant's letter dated 3 February 2009[6].

The Ombudsman's assessment

18. According to the Commission's rules[7] concerning the handling of complaints against alleged unlawful State aid, which are published on its website[8], the Commission committed itself to (i) registering complaints regarding alleged unlawful State aid and (ii) sending an acknowledgment of receipt within 15 working days. The Commission shall also inform the complainant whether there are sufficient grounds to investigate the complaint.

19. In the present case, the Commission registered the complainant's complaint of 3 February 2009 as a State aid complaint. On 18 February 2009, it sent him an acknowledgement of receipt. On 29 April and 28 October 2009, the Commission provided the complainant with a substantive reply to his complaint and invited him to submit further comments. The complainant failed to do so.

20. In its replies, the Commission also informed the complainant about the progress of an infringement procedure opened against the Romanian authorities concerning the tax in question. This was a parallel procedure that did not result from the complainant's complaint.

21. In light of the above, the Ombudsman considers that the Commission complied with its own rules of procedure concerning the handling of complaints against unlawful State aid. He therefore does not find an instance of maladministration in relation to the present complaint and closes the case accordingly.

22. In its opinion on the present complaint, the Commission apologised for not complying with the deadline of 15 working days to reply to the complaint dated 3 February 2009. The Ombudsman welcomes the Commission’s apology.

B. Conclusions

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

The Ombudsman finds no maladministration.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 10 August 2010

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[1] Article 107(1) TFEU reads as follows: "Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market."

[2] Article 108(2) TFEU reads as follows: "If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the internal market having regard to Article 107, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission…"

[3] In its opinion, the Commission provided copies of its replies dated 29 April and 28 October 2009.

[4] Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (now Article 108), OJ L 83/1, 27.03.1999, p. 1-9.

[5] Article 107(1) TFEU reads as follows: "Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market."

[6] The Commission's Code of Good Administrative Behaviour reads as follows: "A reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter by the responsible department."

[7] Council Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 TFEU, OJ 1999 L 83, pp. 1-9.

[8] The procedural rules for dealing with State aid complaints are available at the following address: http://ec.europa.eu/competition/forms/intro_en.html.