Dear Mr B.,

On 6 July 2001, you made a complaint to the European Ombudsman concerning the Commission's handling of a complaint lodged by a group of 15 Italian citizens on 29 February 2000.

On 17 July 2001, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 8 November 2001. I forwarded it to you with an invitation to make observations, which you sent on 21 December 2001.

On 6 March 2002, I decided that it was necessary to conduct further inquiries, and asked the Commission for a second opinion. The Commission sent its second opinion on 3 June 2002, and I forwarded it to you for observations. On 29 July 2002, you submitted your observations.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts were as follows:

On 29 February 2000, the complainant, an Italian lawyer, made a complaint to the European Commission, on behalf of a group of 15 Italian citizens, against law n° 28 of 20 December 2000 adopted by the region of Lombardia (Italy) on the reduction of the petrol price at the stations at the border between Italy and Switzerland. The complainant alleged that this law did not respect Directive 92/81/EEC on the harmonisation of the structure of excise duties on mineral oils(1), since it introduced unjustified obstacles for the Internal Market and breached the principle of non discrimination.

On 27 April 2000, the Commission informed the complainant that it could not deal with the matter until the regional law would be put into effect. This happened on 31 May 2001, when the Regional Council of Lombardia adopted deliberation n° 7/26, which was modified on 28 July 2000 by deliberation n°7/603. The Commission was informed accordingly by the complainant who sent it a copy thereof.

On 10 April 2001, the complainant contacted the Commission to be informed about the progress of the inquiry and asked the institution for a prompt closing of the case. It appears however, that in July 2001, the case was still pending and the complainant had not received a reply as requested.

The complainant therefore lodged a complaint with the Ombudsman, in which she alleged that:

The European Commission failed to act with due diligence when dealing with complaints lodged by individuals under article 226 of the Treaty. The Commission had still not given information on the follow-up of her complaint lodged on 29 February 2000.

The Commission's opinion

The complaint was forwarded to the Commission for an opinion. In its opinion, the Commission stated that the first letter received by the complainant is dated 21 February 2000. It relates to law n° 28 adopted by the Region of Lombardia, Italy, on 20 December 1999, introducing a reduction system of the petrol price at the stations at the border between Italy and Switzerland. According to Article 3(6) of the Law, residents of the concerned border region which have a registered car, shall benefit from a reduction of the petrol price. The petrol station keepers shall be reimbursed for their financial losses by the Region which will devote part of the excise duties to this purpose.

The Regional Council adopted the implementing measures to make the law applicable on 1 July 2000.

According to the complainant, the entry into force of this law would result in the application of a different excise duty for the purchase of petrol by the residents of the border region of Lombardia. These measures would be in contrast with Directive 92/81/EEC, since it appears that the Italian authorities have not been authorised to derogate to the general rules on excise duties taxation, as foreseen by its Article 4 (8): "The Council, acting unanimously on a proposal from the Commission, may authorise any Member State to introduce further exemptions or reductions for specific policy considerations. A Member State wishing to introduce such a measure shall accordingly inform the Commission and shall provide also the Commission will all relevant or necessary information (...)".

On the basis of the information given by the complainant in her letter of 21 February 2000, it appeared that there was no prima facie infringement of Community law by the Italian authorities. The Commission's services informed the complainant of this preliminary conclusion and pointed out that it was impossible to pursue the inquiry before the implementing measures of the Regional Law concerned would be adopted.

Several contacts by phone and by mail took place between the Commission and the complainant over the years 2000 and 2001.

Once in possession of the implementing measures adopted by the Regional Council (Giunta) of Lombardia by Deliberation of 31 May 2001, the Commission noted that it concerned an experimental stage and that the regional authorities were responsible for the proper implementation of the Law. The Commission informed the complainant that it would be better to wait until the adoption of possible further measures, before taking a decision on the case. The Regional authorities adopted further implementing measures on 1 December 2000 and 8 August 2001. The Commission studied them and concluded that no new relevant elements had been introduced to make it possible to change its original position. It considered that there were no reasons to start an infringement procedure against Italy and informed the complainant thereof by letter of 6 August 2001.

The Commission considered it appropriate, however, to forward the whole dossier to the competent services to carry out an investigation concerning the implementation of Community law as concerns the state aids in the public transport sector. The institution underlined that this point has not been raised by the complainant.

As regards the administrative procedure followed in dealing with the complainant's case, the Commission recognised that its services failed to act in accordance with the commitments undertaken by the institution with the European ombudsman in its reply to his own initiative inquiry into the Commission's administrative procedures in relation to citizens' complainants about national authorities(2). The Commission was therefore ready to register the complainant's letter of 21 February 2000 as a complaint, to re-examine the complaint's grounds and to keep the complainant informed of the outcome of the inquiry and of the Commission's legal assessment of her case.

The Commission finally underlined that, despite the fact that the complaint was not registered as such, it has been the object of an in-depth study by its services. Furthermore, the complainant was regularly informed of the progress of the investigations.

On 11 February 2002, the Commission forwarded to the Ombudsman a copy of two letters sent to the complainant on 10 December 2001 and on 16 January 2002 informing her of the above and giving information on the procedure which would be followed.

The complainant's observations

In her observations on the Commission's opinion, the complainant firstly thanked the Ombudsman for the attention given to her complaint. As a consequence of the Ombudsman's inquiry, the Commission has explicitly recognized that it did not follow the principles of good administration when dealing with her case, which would now be registered as a complaint.

The complainant pointed out that the Commission's behaviour is, however, in no way excusable, since when she lodged the complaint in February 2000, she used the standard complaint form published by the Commission(3).

She expressed her concerns on the possible length of time which the new procedure proposed by the Commission may take. Since the institution is aware of all the relevant elements of the case, it should take a definitive decision and close the case as soon as possible, after almost two years from the lodging of the complaint.

Furthermore, she pointed out that the matter concerning state aids in the public transport sector is not relevant in this case. The fact the Commission's services are studying the file from this point of view could only cause a useless further delay in the handling of her case.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

In a letter dated 6 March 2002, the Ombudsman asked the Commission to comment on (i) the complainant's concerns about the possible length of time which the new procedure might take; (ii) the complainant's claimed that the institution should take a decision on the complaint she lodged almost two years before; (iii) the complainant's argument that the matter concerning state aids in the public transport sector is not relevant for the study of the case and that an analysis from that point of view could only cause a useless further delay in the handling of the case.

The Commission's second opinion

As regards the handling of the complaint, the Commission recalled that in its first opinion to the Ombudsman, it acknowledged that its services had failed to live up to its commitments on the handling of complaints about infringement of Community Law. In order to remedy this shortcoming, the Commission undertook (i) to register the complainant's letter of February 2000 as a complaint; (ii) to re-examine the complaint in substance and to inform the complainant of the conclusions; (iii) to pursue the inquiry also from the point of view of state aid in the field of public transport sector. After an in-depth examination of all the information in the possession of the Commission, its services had not found any infringement of Community law. By letter of 21 May 2002(4), they informed the complainant of the intention to close the case as well as of the reasons for this decision.

As regards the examination of the complaint from a point of view of state aids in the field of the public transport sector, the Commission pointed out that when examining a complaint related to an alleged infringement of Community law, it has the discretion to determine under which legal angles the case should be examined. The relevance of such angle can be determined only by the Commission which is not limited in its examination by the arguments put forward by the complainant. The Commission was aware of the considerable time elapsed since the complainant's initial complaint and therefore its services had striven to reach a definitive decision in a reasonable time. In the letter of 21 May 2002, the complainant was informed of the outcome of the examination of her case also under the aspect of state aid in the public transport sector.

On 12 August 2002, the Ombudsman received a copy of a letter sent by the Commission to the complainant on 19 July 2002. In this letter, the Commission confirmed its decision to close the case at one of the next meetings since its services had not found any element to open an infringement proceedings under Article 226 of the Treaty.

The complainant's further observations

In her observations on the Commission's second opinion, the complainant expressed her disagreement about the Commission's preliminary decision to close the examination of her case. She basically maintained the points raised in her original complaint to the Commission. In the complainant's view, the measures adopted by the authorities of Lombardia to introduce a reduction system of the petrol price at the stations at the border between Italy and Switzerland should have been authorised by the Italian authorities, according to Article 4 (8) Directive 92/81/EEC. However, it seems that the Commission failed to consider this aspect properly.

As regards the inquiries carried out by the Ombudsman, the complainant thanked him for his work and asked him to call on the Commission to respect the content of its communication of 20 March 2002 on relations with the complainant in respect of infringements of community law.

THE DECISION

Introductory remarks

To avoid misunderstanding, 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.

The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

1. The Commission's handling of the complaint

1.1 The complainant alleged that the European Commission failed to act with due diligence when dealing with complaints lodged by individuals under article 226 of the Treaty. The Commission had still not given information on the follow-up of her complaint lodged on 29 February 2000.

1.2 The Commission recognised that its services failed to act in accordance with the commitments undertaken by the institution with the European ombudsman in its reply to his own initiative inquiry into the Commission's administrative procedures in relation to citizens' complainants about national authorities. The Commission is ready to register the complainant's letter of 21 February 2000 as a complaint, to re-examine the complaint's grounds and to keep the complainant informed of the outcome of the inquiry and of the Commission's legal assessment of her case. The Commission also underlined that, despite the fact that the complaint was not registered as such, it has been the object of an in-depth study by its services. Furthermore, the complainant was regularly informed of the progress of the investigations.

1.3 In her observations, the complainant claimed that the institution should take a decision on the complaint she lodged almost two years before.

1.4 In its second opinion, the Commission undertook to (i) to register the complainant's letter of February 2000 as a complaint; (ii) to re-examine the complaint in substance and to inform the complainant of the conclusions; (iii) to pursue the inquiry also from the point of view of state aid in the field of public transport sector. After an in-depth examination of all the information in the possession of the Commission, its services had not found any infringement of Community law. By letter of 21 May 2002(5), they informed the complainant of the intention to close the case as well as of the reasons for this decision.

On 12 August 2002, the Ombudsman received a copy of a letter sent by the Commission to the complainant on 19 July 2002. In this letter, the Commission confirmed its decision to close the case at one of the next meetings since its services had not found any element to open an infringement proceedings under Article 226 of the Treaty.

1.5 One of the fundamental tasks of the Commission in its role of "Guardian of the Treaty" under Article 211 of the EC Treaty, is to ensure that Community law is correctly applied in all the Member States. In carrying out its duty, the Commission investigates possible infringements of Community law which come to its attention largely as a result of citizens' complaints.

1.6 As regards the procedural rules to be followed by the Commission in its handling of citizens' formal complaints, the relevant criteria had been set out by the institution in its reply to the Ombudsman's own initiative on administrative procedures for dealing with complaints concerning member States' infringement of Community law, as well as in the annex attached to its standard complaint form(6).

In its reply to the Ombudsman's own initiative, the Commission had made the following commitment:

"[.] complaints from individuals [.] enjoy procedural safeguards which the Commission has constantly developed and improved [.].

[..]All complaints which reach the Commission are registered and [that] no exceptions are made to this rule. Once the Commission receives a complaint, it acknowledged receipt by letter to the complainant with an annex attached, explaining the details of the infringement proceedings".

The annex attached to the Commission's complaint form explains in detail the procedural safeguards, which result from the registration of a letter as a complaint:

"(a) Once it has been registered with the Commission's Secretary-General, any complaint [.] will be assigned an official reference number. An acknowledgement bearing the reference number, which should be quoted in any correspondence, will immediately be sent to the complainant [.].

(b) Where the Commission's services make representations to the authorities of the Member States against which the complaint has been made, they will abide by the choice made by the complainant in Section 15 [confidentiality].

(c) The Commission will endeavour to take a decision on the substance [.] within twelve months of registration of the complaint [.].

(d) The complainant will be notified in advance by the relevant department if it plants to propose that the Commission close the case."

1.7 By not registering the letter sent by the complainant as a complaint, the Commission ignored the procedural safeguards which the institution itself set up to secure a proper procedure. This failure by the Commission's services constituted an instance of maladministration.

It has to be noted, however, that the Commission recognised its failure and apologised for it. It therefore registered the complainant's letter of 21 February 2000 as a complaint, and dealt with it accordingly. It furthermore appears that the examination of the case has been concluded by the Commission's services by the end of June 2001, as requested by the complainant. On 21 May 2002, the Commission informed the complainant of its intention to close the case because it did not find any infringement of community law by the responsible Italian authorities and invited her to submit observations within 30 days from the receipt of the letter, if she so wished. According to point 10 of the annex to Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law, of 20 March 2002, where the complainant's comments prompt the department concerned to reconsider its position, the investigation of the complaint will continue. By letter sent to the complainant on 19 July 2002, the Commission confirmed its decision to close the case since its services had not found any element to open an infringement proceedings under Article 226 of the Treaty.

In these circumstances, there appears to be no maladministration on the part of the Commission as regards this aspect of the case.

2 The Commission's decision to examine the complaint from the point of view of state aids in the public transport sector.

2.1 In her observations on the Commission's first opinion, the complainant argued that the matter concerning state aids in the public transport sector was not relevant in this case. The fact that the Commission's services were studying the file from this point of view could only cause a useless further delay in the handling of her case.

2.2 The Commission pointed out that when examining a complaint related to an alleged infringement of Community law, it has the discretion to determine under which legal angles the case should be examined. The relevance of such angle can be determined only by the Commission which is not limited in its examination by the arguments put forward by the complainant.

2.3 The Commission appears to have acted within the limit of its legal authority when deciding to deal with a possible infringement of state aids rules in the same administrative proceedings even when the complainant had not raised that aspect in her complaint. Furthermore, the Ombudsman notes that the examination of the complaint also from the point of view of state aids in the public transport sector, does not seem to have further delayed the Commission's examination of the case, as assumed by the complainant.

In these circumstances, there appears to be no maladministration on the part of the Commission as regards this aspect of the case.

Conclusion

On the basis of the 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 be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Published in the OJ L 316 of 31.10.1992, p 0012-0015.

(2) Decision in the own initiative inquiry 303/97/PD, European Ombudsman's Annual Report for 1997, pp. 271-272.

(3) Failure by a Member State to comply with community law: standard form for complaints to be submitted to the European Commission; OJ C 119, 30.04.1999, p.5.

(4) On 4 June 2002, a copy of this letter was forwarded by the complainant to the Ombudsman for his information.

(5) On 4 June 2002, a copy of this letter was forwarded by the complainant to the Ombudsman for his information.

(6) Failure by a member State to comply with community law: standard form for complaints to be submitted to the European Commission; OJ C 119, 30.04.1999, p.5.