Dear Mr G.,
On 21 January 1997 you lodged a complaint with the European Ombudsman concerning the alleged failure by the European Commission to ensure the correct transposal of the Council Directive 80/987/EEC by the Italian authorities and the Commission handling of the complaint you had made on 12 March 1994.
On 27 January 1997, I forwarded the complaint to the President of the European Commission. On 21 July 1997 I received the Commission's comments which I forwarded to you on 24 July 1997 with an invitation to make observations if you so wished. I received your observation on 5 and 18 August 1997.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

On 12 March 1994, Mr G. had sent a complaint to the European Commission in which he claimed that the Italian authorities were not respecting the obligations of Directive 80/987/EEC (1). He therefore asked the Commission to bring the case before the European Court of Justice in use of its powers under article 169 of the Treaty. He argued further in additional letters of 1 August 1994 and 5 September 1996 to the Commission.
In his complaint to the European Ombudsman, the complainant explained that the reply of the Commission on 25 October 1996 was unsatisfactory. It did not respond to his arguments.
He complained to the Commission about the allegedly unfair decision taken by the Labour Chamber of the Court of Milan on a claim for compensation filed by Mr G. on 25 February 1993. The complainant had been working for 36 years for the Italian firm Ditta fabbrica Italiana Tubi - Ferrotubi S.p.a., which went into bankruptcy in 1982. Under the terms of Directive 80/987/EEC, in the event of the employer's insolvency, the employees should have the right to obtain compensation. This compensation should be given, in the absence of any other means, by guarantee institutions set up by the Member State. In this case, however, the Court of Milan concluded that the complainant could not benefit from these provisions, since the insolvency of his firm had taken place before the entry into force of the Directive.
Mr G. took the view that he was still entitled to some type of compensation, on the basis of the State liability doctrine as developed by the Court of Justice in its Francovich ruling(2). In order to obtain such compensation, he asked the Commission to lodge a case with the Court of Justice against Italy for its failure to comply with the obligations laid down in Directive 80/987/EEC.
In the reply of the Commission to the complainant dated 28 October 1996, it considered that no infringement of EC law had occurred in this case. Its services, having reviewed the findings made by the Court of Milan regarding the entry into force of Directive 80/987/EEC, concluded that they seemingly corresponded with the obligations of article 11. Therefore, since the Directive had entered into force after the facts denounced by the complainant took place, its provisions were not applicable.
Mr G. considered that the Commission had not properly replied to his claim. He asked the Commission again to lodge a case with the Court of Justice against Italy. In his complaint of 21 January 1997 to the Ombudsman, the complainant put forward two claims, concerning respectively: (i) the length of time taken by the Commission to reply to his letters; (ii) the Commission's failure to address his claim, and its decision not to start an infringement procedure against Italy under article 169 of the Treaty on the basis of the Francovich ruling.

THE INQUIRY

The Commission's opinion
In its comments on the complaint the Commission explained the factual and legal background of the case.
The Commission acknowledged that there had been a failure to promptly reply to the complainant's letters. It pointed out that this long delay was due to the fact that the responsible Commission services had to assess the conformity of the Italian implementing legislation (Decree of 27 January 1992, published in the Italian Official Journal n 36 of 13.02.92) with Directive 80/987/EEC(3). The Commission added, however, that it had replied to the letters sent by the complainant on 28 October 1996. In this reply, the institution had apologized for the long delay, and explained to the complainant the reasons not to start infringements proceedings.
The Commission believed that the responsible national authorities, in particular the national courts, were in a better position to deal with the matter, since it involved an evaluation of factual elements. On that basis, the Commission was not in position in this case to seek a solution to the problem by taking a Member State to the Court of Justice.
The Commission explained that the nature of an infringement procedure against a Member State for the non-transposal of a Directive, is entirely different from an individual legal action against national authorities seeking compensation for damages suffered as a result of the non-transposal of that Directive. Whereas in the first case the Commission has the powers to pursue such infringement before the Court of Justice under article 169 of the Treaty(4), it has no role in an action for damages before a national judge which is to be decided on the basis of national rules on State liability. This action can only be undertaken by individuals suffering damages as a result of the non-transposal of a Directive by a Member State. The Commission could only intervene in this type of action if the responsible national judge address a question relating to the interpretation of EC law to the Court of Justice under article 177 of the Treaty.
The complainant's observations
The Ombudsman forwarded the Commission's comments to the complainant with an invitation to make observations.
In his replies, Mr G. repeated the arguments put forward in his original complaint. The complainant, however, acknowledged the institution's apologies for the delay in replying to his correspondence.

THE DECISION

Scope of the case before the European Ombudsman
1.1 The problem denounced by the complainant stems from the fact that the court of Milan took the view that some Community provisions were not applicable to the complainant's case, and accordingly set aside his claims.
1.2 It is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. Furthermore, it states that the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling.
1.3 The Ombudsman's inquiries have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission when dealing with the complaint.
2 Alleged undue delay in replying to correspondence
2.1 The complainant alleged that the Commission failed to promptly reply to his letters of 12 March 1994, 1 August 1994 and 5 September 1996.
2.2 As the European Ombudsman has stated in similar cases, the Commission as a public administration has a duty to properly reply to the queries of citizens. By not doing so in the present case, the Commission has not abided by good administrative principles.
2.3 The European Ombudsman notes, however, that the Commission has recognised this failure and apologised to the complainant, and that the complainant was satisfied with the Commission's explanation. No further remarks by the Ombudsman therefore appear to be necessary.
3 Commission's decision not to intervene under article 169 of the Treaty
3.1 In view of the decision of the national courts not to apply the provisions of Directive 80/987/EEC to his case, and on the basis of the State liability doctrine laid out by the Community courts, the complainant asked the Commission to lodge a case with the Court of Justice against Italy for its failure to comply with the obligations laid out in Directive 80/987/EEC.
3.2. The Commission has argued firstly that in actions for damages against a Member State for the non-transposal of a Directive, the affected individual should seek redress before a national judge, on the basis of the applicable national rules governing State liability.
Secondly, as regards its failure to use the infringement procedure provided for in Article 169 of the Treaty, the Commission had concluded in its letter to the complainant of 28 October 1996 that the situation did not breach EC law. Its services concluded that Directive 80/987/EEC was not applicable at the time in which Mr G.'s case occurred. Furthermore the Commission believed that the national courts were better placed to deal with this matter since it involved an evaluation of factual elements.
3.3. As regards the actions for damages against a Member State, the European Ombudsman notes that, as stated by the Court of Justice, the recognition of State liability is a means for the protection of individual rights granted by Community law. Thereby this type of action constitutes a right vested on citizens who have suffered damages as a result of non-compliance of Community law by a Member State, and hence a right which only those citizens can exercise(5).
3.4. As for the Commission's failure to start an infringement procedure in this case, it should be recalled that under Article 155 of the Treaty, the Commission's duty as the Guardian of the Treaty is to ensure that Community law is applied. If the Commission considers that the Member State has failed to fulfill an obligation under the Treaty, Article 169 provides for it to deliver a reasoned opinion on the matter. If the Commission chooses not to pursue an inquiry into the matter, there must be some reasoning supporting such a course of action. Those reasons should provide the basis for a inquiry by the European Ombudsman to ensure that no maladministration has taken place.
The Ombudsman notes that, since Directive 80/987/EEC was to enter into force on 20 October 1983(6), its provisions could not apply to the situation denounced by the complainant which took place in 1982, as the Commission had concluded.
3.5. In reviewing the action chosen by the Commission, the European Ombudsman finds that the institution acted within the limits of its legal authority and therefore no instance of maladministration has been established.

CONCLUSION

On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer OJ L 283 , 20.10.1980 p. 23

(2) Joined cases C-6/90 and C-9/90, Andrea Francovich and Daniela Bonifaci and others v Italian Republic; References for a preliminary ruling: Pretura di Vicenza et Pretura di Bassano del Grappa; [1991] ECR I-5357

(3) This thorough assessment was concluded with a report of the European Commission adopted on 15.06.95; COM (95) 164.def

(4) As the Commission had actually done against Italy on 28.01.1987 for its non-transposal of Directive 80/987/EEC. The Court of Justice condemned Italy in its judgement of 2.02.1989, Case T- 22/87, Commission v. Italy, [1989] ECR 143 ss.

(5)See supra, joined cases C-6/90 and c-9/90, par. 33.

(6) Article 11, par. 1 of Directive 80/987/EEC provides that, "Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within 36 months of its notification". The notification of the directive to Member States took place on 22 October 1980.