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Decision in case 1330/2017/JAP on the European Commission’s handling of an infringement complaint against Ireland

Langues disponibles : en
  • Affaire : 1330/2017/JAP
    Ouvert le 7 nov. 2017 - Décision le 7 nov. 2017
  • Institution(s) concernée(s) : Commission européenne

The case concerned the European Commission’s alleged failure to pursue an infringement complaint against the Irish Data Protection Commissioner for failure to respect the applicable data protection rules. The complainant, an Irish citizen, considered that the European Commission did not adequately deal with her complaint. She thus turned to the Ombudsman.

The Ombudsman inquired into the issue and considered the Commission’s stance to be reasonable. Since there was no evidence of maladministration, the Ombudsman closed the case.

Background to the complaint

1. The complainant, an Irish citizen, made a complaint to the Office of the Irish Data Protection Commissioner (‘national authority’) alleging that her employer had refused to disclose certain personal data related to her. In the course of the national authority’s investigation, on 30 November 2016, the complainant lodged a complaint against that national authority with the European Commission because she was dissatisfied with the manner in which the national authority was dealing with her complaint. In particular, she contended that the national authority had not followed the applicable data protection rules and the European Convention on Human Rights.

2. In a letter dated 19 May 2017, the Commission informed the complainant of its intention to close the case. It set out the legal and factual context and provided the complainant with its analysis of the issue complained about. It explained that it was “up to relevant national supervisory authorities and courts to ensure the proper enforcement of data protection rules”. It also noted that it was not possible to conclude that the national authority had refused to act following her complaint. The Commission informed her of the available remedies at national level[1] and said that it could “intervene only in specific situations, for instance in case of violation of EU law due to continuous general administrative practice”. The Commission invited the complainant to provide comments within the following four weeks.

3. The complainant in reply challenged the Commission’s views. Subsequently, the Commission closed the case in July 2017. It pointed out that the investigation by the national authority had not yet been closed, pending additional information and documentary evidence to be submitted by the complainant.

4. Dissatisfied with the handling of her infringement complainant, the complainant turned to the Ombudsman.

The inquiry

5. The Ombudsman opened an inquiry into the complaint and identified the following issue:

The Commission wrongly decided not to pursue the infringement complaint.

6. In the course of the inquiry, the Ombudsman´s inquiry team duly considered the information provided in the complaint. The Ombudsman's decision takes into account the arguments and views put forward by the parties.

Arguments presented to the Ombudsman

7. In her complaint, the complainant said that the Commission was colluding with the national authorities in Ireland. She thought that her complaint had not been adequately investigated by the Commission and its investigation into the conduct of the national authority lacked transparency. She explained that she could not “specifically identify the missing information” required by the national authority and thus challenged the Commission’s analysis. Finally, she insisted that the Commission take action against the national authority.

The Ombudsman's assessment

8. It is the Commission’s role as Guardian of the Treaties to ensure that Member States comply with EU law[2]. This means that the Commission can open an infringement procedure against a non-compliant Member State. However, it follows from the case-law[3] of the Court of Justice of the European Union that a practice of misapplication of EU law must be, to some degree, consistent and general to enable the Commission to act. It is not the purpose of infringement proceedings to resolve specific cases of misapplication of EU law involving one or just a small number of citizens. The Commission has a margin of discretion when deciding whether practices are sufficiently consistent and general in nature to lead to the opening of an infringement procedure. However, it must explain why it used its discretion in a particular way.

9. The Commission has explained in detail its powers and the situations in which it will pursue an infringement complaint. The Commission has also noted that the national authority has not yet concluded its investigation of the complainant’s complaint. It noted that individual issues of this kind are best resolved at the national level and it suggested possible avenues of redress available in Ireland.

10. The Commission’s explanation as to why it decided not to pursue the complainant’s complaint against the national authority was reasonable. The complainant has not submitted any grounds on which to conclude that the Commission’s decision was incorrect.

11. As there is no evidence of maladministration, the case is closed.


Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There is no evidence of maladministration in the Commission’s handling of the complainant’s infringement complaint.

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


Marta Hirsch-Ziembińska

Head of Inquiries and ICT - Unit 1

Strasbourg, 07/11/2017


[1] The Commission stated: “[a]s mentioned, in case you believe that your rights may have been breached, it is up to

national data protection supervisory authorities to ensure the supervision and enforcement of national data protection rules. Alternatively, you may consult your national ombudsman (the list is available at: http://www.ombudsman.europa.eu/en/atvourservice/nationalombudsmen.faces) or regional ombudsman (the list is available at: http://www.ombudsman.europa.eu/en/atvourservice/regionalombudsmen.faces

Should you consider that your claim was not addressed properly by your national supervisory authority or a national/regional ombudsman, you should address a national court to seek redress. This is the most appropriate solution in case you consider that your rights have been violated. You may find more information about access to justice at: https://e-iustice.europa.eu/home.do?action=home&plang=en&init=true “.

[2] Article 258 of the Treaty on the Functioning of the European Union.

[3] See, for example, Judgment of the Court of Justice in case C-287/03, Commission v Belgium, ECLI:EU:C:2005:282, paragraph 29.