Strasbourg, 21 December 2006

Dear Mr M.,

On 16 March 2006, you made a complaint to the European Ombudsman against the European Commission concerning its handling of a complaint you had submitted in relation to Article 226 of the EC Treaty, on behalf of an Association of Doctors working for the National Health System in Greece.

On 11 May 2006, I forwarded your complaint to the President of the Commission with an invitation to submit an opinion. The Commission sent its opinion on 16 August 2006. I forwarded it to you with an invitation to make observations. You replied to me by letter dated 9 October 2006.

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

THE COMPLAINT

The complainant made, in summary, the following submissions. On March 2005, the complaint, a lawyer, filed on behalf of an Association of Doctors working for the National Health System a complaint relating to Article 226 of the EC Treaty (Article 226 complaint). This complaint concerned national provisions on working hours allegedly violative, in particular, of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work(1); Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(2); and Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time(3). By letter dated 21 April 2005, the Commission informed the complainant that his Article 226 complaint had been registered under reference number 2005/4354, SG(2005) A/2359/2. Since then, he had not received from the Commission (the Directorate-General for Employment, Social Affairs and Equal Opportunities) any information concerning the progress of its examination of his Article 226 complaint. The complainant attached to his complaint to the Ombudsman (i) a copy of his Article 226 complaint; (ii) a Commission document stating that the Commission received this complaint on 8 March 2005; and (iii) the Commission's above-mentioned letter of 21 April 2005.

On 11 May 2006, the Ombudsman opened an inquiry into the complainant's allegation that the Commission had failed properly to deal with his Article 226 complaint, since it had not informed him of the progress of its examination of the complaint.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission stressed that, by letter dated 21 March 2006, it informed the complainant that (i) because his Article 226 complaint concerned mainly the issue of on-call time, a decision on whether to proceed with the complaint depended on the further course of its proposal to amend Directive 2003/88/EC; (ii) this proposal includes amendments to the existing provisions applicable to on-call time; (iii) the above decision had therefore to be postponed. The Commission further noted that it would look at the complainant's Article 226 complaint (and other related complaints) in light of its foregoing proposal and on the basis of the discussions taking place within the other institutions and would take action as necessary. In conclusion, the Commission remarked that it informed the complainant on developments with regard to his Article 226 complaint as soon as it was in a position to do so. The Commission attached to its opinion, inter alia, a copy of its above-mentioned letter of 21 March 2006 to the complainant.

The complainant's observations

In his observations (letter of 9 October 2006), the complainant stated that, by letter dated 31 August 2006, the Commission had informed him of the latest developments on its proposal to amend Directive 2003/88/EC. In reply, the complainant sent a letter dated 5 September 2006, in which he posed certain questions regarding the application and the respect of Directive 2003/88/EC. The complainant remarked that the Commission had not replied to his letter of 5 September 2006 and that he was worried about the way the Commission intended to deal with the above problem. The complainant asked for the Ombudsman's intervention with a view to obtaining a clarification of the Commission's intentions in this context and as to how the Commission would deal with the flagrant violations by Greece of Community law on working time.

THE DECISION

1 Preliminary remark

1.1 In his observations, the complainant remarked that the European Commission had not replied to his letter of 5 September 2006 (sent in reply to the Commission's letter of 31 August 2006) and that he was worried about the way the Commission intended to deal with the problem of the application and respect of Directive 2003/88/EC. He requested the European Ombudsman's intervention with a view to obtaining a clarification of the Commission's intentions in this context and as to how the Commission would deal with flagrant violations of Community law on working time. In this regard, the Ombudsman would like to inform the complainant that, in the context of complaint 3453/2005/GG, where the complainant alleged that the Commission had failed to deal, within a reasonable time, with his infringement complaint against Germany, concerning Community law on working time and time spent on call by doctors in hospitals, he made the following draft recommendation: "The Commission should deal with the complainant's infringement complaint as rapidly and as diligently as possible." This recommendation was based on his finding that the Commission could not postpone indefinitely the reaching of a conclusion on the infringement complaint at issue on the grounds that the applicable law might be amended at some time in the future. The Ombudsman invited the Commission to send its detailed opinion on his above draft recommendation by 15 December 2006(4). The Ombudsman has not yet received this opinion. The Ombudsman, thus, notes (i) that he has already taken action of the kind requested by the complainant and (ii) that future progress in case 3453/2005/GG is likely to have implications for the Commission’s handling of similar infringement complaints, including that submitted by the complainant.

1.2 The Ombudsman further notes that the complainant's observation that the Commission had not replied to his letter of 5 September 2006 (sent in reply to the Commission's letter of 31 August 2006, referring to the latest developments on its proposal for amendments to Directive 2003/88/EC) concerns a matter which does not come within the scope of the present inquiry, as defined in his letters of 11 May 2006 to the complainant and to the Commission. However, the complainant may consider submitting a new complaint to the Ombudsman about this matter.

2 Allegation that the Commission failed to inform the complainant of the progress of its examination of the complaint

2.1 The Ombudsman notes that, by letter dated 21 March 2006 (sent to the complainant before the opening of his inquiry into the present complaint), the Commission informed the complainant of the status of his complaint relating to Article 226 of the EC Treaty, indicating that there was no progress in its examination of the complaint and the reasons why. Under these circumstances, the Ombudsman considers that the Commission has taken adequate action with respect to the subject-matter of the present complaint (lodged with the Ombudsman on 16 March 2006). The Ombudsman therefore finds no maladministration.

2.2 For the avoidance of doubt, the Ombudsman points out that the above finding concerns only the allegation of failure to inform the complainant and does not involve an evaluation of the substantive reasons given by the Commission for the absence of progress.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 1989 L 183, p. 1.

(2) OJ 1993 L 307, p. 18.

(3) OJ 2003 L 299, p. 9.

(4) A copy of this draft recommendation is attached to the present decision.