Strasbourg, 25 February 2004

Dear Mr C.,

On 9 December 2002, you lodged a complaint with the European Ombudsman, on behalf of the "Asociación Asturiana de Médicos Internos". Your complaint concerns the allegedly improper way in which the Commission handled a complaint you had lodged on 18 October 2001 (file number 2001/5059, SG (2001) A711819) regarding access to the medical profession in Spain, and the discrimination against doctors who have not completed their medical degree ("médicos internos").

On 10 February 2003, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 25 March 2003. I forwarded it to you with an invitation to make observations, which you sent on 23 May 2003.

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

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

The complainant lodged a formal complaint with the European Commission on 18 October 2001, on behalf of the "Asociación Asturiana de Médicos Internos". His complaint concerned access to the medical profession in Spain. He alleged that the Spanish authorities were imposing unreasonable barriers against doctors who have not completed their medical degree but who have served practical periods ("médicos internos", henceforth “interns”) for the exercise of the medical profession. The complainant therefore considered that the Spanish interns were being discriminated against. The Commission registered the complaint under file number 2001/5059, SG (2001) A711819.

In order to discuss the problem, the complainant contacted Mr RP, the official in the Commission responsible for the handling of the complaint. The complainant was informed that the subject-matter of the complaint did not appear to raise a Community aspect since it did not involve a cross border issue, but rather a purely national one. On 28 January 2002, Mr S., Head of Unit responsible for the handling of complaints in the Commission's Internal Market DG, sent the complainant a letter informing him of the institution's intention to close the case unless further supportive evidence was submitted. In reply to this request, the complainant forwarded additional information on 21 February 2002. By letter dated 11 March 2002, Mr RP informed the complainant that, in view of the necessary time to translate the additional documents, the Commission's reasoned reply would be sent to him within two months. In view of these considerations, and taking into account that the official in charge of the file was not familiar with the language in which the documents were drafted (Spanish), the complainant took the view that all documents included in his initial complaint (160 pages) could not have been translated into Spanish, and therefore properly taken into account by the time the Commission informed him of its intention to close the case on 28 January 2002.

On 6 May 2002, the complainant formally requested a meeting with Mr RP in order to discuss the information submitted. He had previously been told that a meeting would not be possible due to the Commission services' heavy workload. After lengthy negotiations, the Commission's services agreed to hold a meeting on 18 November 2002. Even though the meeting gave both sides the opportunity to exchange their points of views, the complainant was unsuccessful in convincing the Commission to change its position and proceed against the Spanish authorities.

The complainant believes that the Commission's position did not take account of the fact that the Spanish authorities were not properly applying the provisions of Directive 93/16/EEC on the free movement of doctors and the mutual recognition of their diplomas. He considered that the institution's interpretation of the Court of Justice's ruling in case C-69/96 (Garofalo) was incorrect, and noted that the right of Member States to define the conditions under which doctors can exercise their duties cannot lead to the practical elimination of an entire segment of the medical profession. The complainant also contested the Commission's reliance on Article 46 of the Treaty (public health exception to the principle of free movement) to close his complaint.

In the complainant's view, the handling of his complaint by Mr RP had not been adequate. He mentioned a number of irregularities, namely the responsible official’s decision to recommended that the complaint be closed before having read all relevant documents, his refusal to meet the complainant in breach of the Commission's communication on formal complaints, and his failure to reply properly to all correspondence. As regards this last aspect, the complainant referred to the fact that a letter sent by the Commission on 24 May 2002, only reached him three months later.

In summary, the complainant alleges that the Commission:

i) decided to close the case without having taken into account all relevant information sent by the complainant;

ii) did not respect the provisions of its own communication on infringement proceedings by refusing to meet the complainant; and,

iii) acted without due diligence when sending some of its correspondence, in particular the letter from its services dated 24 May 2002, which only reached the complainant three months later.

THE INQUIRY

The European Commission's opinion

In its opinion, the Commission made, in summary, the following comments:

The Commission first provided some background on its services' handling of the file. Upon the registration of the complaint under file number 2001/5059, it was subsequently transmitted to the DG responsible for the Internal Market on 30 October 2001. A letter of acknowledgement was sent to the complainant on 31 October 2001. In the complaint, the complainant alleged that the Spanish medical students qualified as interns were being discriminated against as regards the number of points attributed to them by the national Social Security Scheme, which would therefore be in breach of the relevant provisions of Directive 93/16 EEC.

After the translation of all the materials and a careful analysis of this file, the services informed the complainant on 28 January 2002 of the Commission's reasoned conclusions on the case. In the institution's view, the Spanish scheme did not infringe the relevant provisions of Directive 93/16/EEC on acquired rights (Article 35 and following). This conclusion was supported inter alia by reference to the case law of the Court of Justice (C-69/96; Garofalo). The complainant was informed that the services had found no grounds to initiate the administrative stage of an infringement procedure. The complainant was thus invited to provide further information which may justify a change in this position. He was also advised that, in these circumstances, the most suitable avenue to pursue his claims would be through the national courts. By letter of 21 February 2002, the complainant expressed his disagreement with the Commission's legal reasoning and sent a supplementary document. Having acknowledged the additional material on 3 March 2002, the Commission replied to the complainant's new arguments on 24 May 2002. In its reply, the institution confirmed its earlier position and answered the specific legal arguments raised by the complainant. While the factual situation was clear, the services concluded that a disagreement existed with the complainant on the legal conclusion to be drawn from those facts.

The Commission concluded that all letters from the complainant had been properly analyzed and answered in accordance with its Code of good administrative behaviour. In the institution's view, all obligations resulting from the Code had been fully respected in this case, including polite, correct and prompt responses to telephone calls.

As regards the complainant's request for a meeting, the Commission noted that its services had initially expressed reluctance to meet the complainant by letter of 31 May 2002. The institution noted that, as set out in point 7, paragraph 3 of the Commission's communication on infringement proceedings, there is no general unconditional obligation for the Commission services to meet all complainants in person upon request. Accordingly, the Commission services have the right to refuse a request for a meeting if it seems clear that it would serve no useful purpose.

The institution explained that despite its initial reticence, its services agreed to meet the complainant. On 18 November 2002, the meeting took place in Brussels and allowed each party to put forward their different points of view.

As regards the complainant's statement that the Commission had acted without due diligence when sending some of its correspondence, in particular its letter of 24 May 2002, which reached the complainant three month later, the institution stated that the allegation was unjustified. The Commission's letter had responded to the complainant's correspondence of 21 February 2002. The postal code used by the complainant in his letter (E-28694) - and which was used in the Commission's reply - did not appear to be a valid one. Upon the return of the Commission's letter by the postal service, its services immediately contacted the complainant by telephone and transmitted a copy of the letter to him by e-mail that very day. The letter therefore arrived two months after it had been initially dispatched as a result of the complainant's fault, since he had given the Commission services an incorrect version of his own post-code.

The Commission concluded by stating that its services had handled the complaint in accordance with both its Code of good administrative behaviour and its communication on infringement proceedings.

The complainant's observations

In his observations, the complainant repeated the allegations made in his original complaint.

He considered that the Commission could not have taken into account all relevant information, since at the time the institution informed him of its intention to close the case on 28 January 2002, all documents included in his complaint could not have been translated. Since Mr RP was not familiar with the language in which the documents were prepared (Spanish), he could not possibly have assessed its contents adequately.

In the complainant's view, upon his request for a meeting, the Commission should have agreed to meet him as laid down in Article 7 of its communication on infringements proceedings. A refusal would result in a breach of the complainant's right of defence.

The complainant concluded by acknowledging that he might have included a wrong postal code in his letter of 21 February 2002. Nevertheless, he pointed out that the Commission should have been aware of his correct address, on the basis of their previous exchanges.

THE DECISION

1 The allegation that the Commission closed the case without taking into account all relevant information

1.1 The complainant alleges that the Commission closed his complaint without taking into account all the relevant information he had sent. He takes the view that all the documents included in his initial complaint (160 pages) could not have been translated into Spanish, and therefore properly taken into account, by the time the Commission informed him of its intention to close the case on 28 January 2002.

The complainant believes that the Commission's position did not take account of the fact that the Spanish authorities were not properly applying the provisions of Directive 93/16/EEC.

1.2 The Commission argues that only after the translation of all the materials and a careful analysis of this file, its services informed the complainant on 28 January 2002 of its reasoned conclusions. As a result of the evaluation of the case, the Commission concluded that the Spanish scheme did not infringe the relevant provisions of Directive 93/16/EEC on acquired rights(1) (Article 35 and following). This conclusion was supported by reference to the relevant case law of the Court of Justice.

Following a review of the additional evidence submitted by the complainant on 21 February 2002, the Commission concluded on 24 May 2002 that there were no grounds to modify its previous position.

1.3 In view of the information submitted in the course of his inquiry, the Ombudsman notes that the Commission announced its intention to close the case in a letter sent to the complainant on 28 January 2002, in which a number of substantive arguments were addressed:

"I refer to the correspondence concerning this complaint and more particularly, the exhaustive documentation received from you on 31 October 2001. We have carefully studied your letter as well as the annexed documentation.

[H]owever, your letter does not concern any situation characterised by cross border elements. We understand that your concern is limited to a situation which is internal to one Member State.

By virtue of Directive 93/16/EEC, Member States were obliged to introduce a specific training in general medicine. [...] the above directive foresees that the acquired rights of general practitioners who do not possess a qualification referred to in Article 30 of the directive (specific training in general medical practice) should be guaranteed. However, the concrete determination of the conditions on the acquired rights to be recognised falls under the responsibility of the Member States. This has been confirmed by the European Court of Justice which clearly stated in its ruling in case C-69/96 (Garofalo), that Article 36 (2) of Directive 93/16 grants each Member State discretion in determining acquired rights.

[...] From the information you submitted, it is not possible to conclude that Article 37 of the directive, concerning the recognition of EU qualifications as well as of certificates from other Member States regarding acquired rights, has been infringed.

In addition, any Member State might invoke the protection of public health in order to justify granting a number of points to holders of an additional medical training [...].

We, therefore, conclude that on the basis of your argumentation there is no justification for opening an infringement proceeding against Spain. We therefore intend to propose that the Commission close this file [...]."

1.4 The Ombudsman notes that the Commission explained its legal position as regards the situation and addressed each of the allegations made by the complainant. There appears to be no evidence which may lead one to believe that, in reaching its conclusions, the Commission did not take into account all the documents sent by the complainant, on the grounds that its services failed to translate part of these documents.

In view of the evidence submitted in the course of the inquiry, it appears, therefore, that the institution gave a reasonable explanation of the reasons for which all the facts and points of law put forward in the complaint failed to demonstrate an infringement of EC law.

The Ombudsman therefore finds no maladministration in relation to this aspect of the case.

2 The complainant’s request for a meeting

2.1 The complainant alleges that the Commission did not respect the provisions of its own communication on infringement proceedings by refusing to meet him. In the complainant's view, upon his request for a meeting, the Commission should have agreed to meet him as laid down in Article 7 of its communication on infringement proceedings.

2.2 The Commission argues that there is no general unconditional obligation for its services to meet all complainants in person upon request. This is clear from the wording of point 7, paragraph 3 of the Commission's communication on infringement proceedings. The Commission therefore considers that its services have the right to refuse a request for a meeting if it seems clear that such a meeting would serve no useful purpose.

The institution explained that despite its initial reticence, its services agreed to meet the complainant. On 18 November 2002, the meeting took place in Brussels, and allowed each party to put forward their different points of view.

2.3 The Commission's communication on relations with the complainant in respect of infringements of community law(2) lays down specific standards to be expected from the Commission services. The third paragraph of Section 7 in the communication's annex states that,

"At any point during the procedure complainants may ask to explain or clarify to the Commission officials, on the spot and at their own expense, the grounds for their complaint."

2.4 The Ombudsman considers that the above-mentioned provision of the Commission's Communication creates a reasonable expectation for complainants that a request for a meeting will be accepted. However, the Ombudsman also finds it reasonable for the Commission to seek to clarify with the complainant the purpose of such a meeting.

In the present case, the Ombudsman notes that, following a number of exchanges, the Commission agreed to meet the complainant, and that a meeting between both parties took place on 18 November 2002. In view of this outcome, the Ombudsman does not find it necessary to pursue further inquiries as regards this aspect of the case.

3 Alleged failure to act with due diligence in the dispatching of correspondence

3.1 The complainant alleges that the Commission acted without due diligence when sending some of its correspondence, in particular the letter from its services dated 24 May 2002, which reached the complainant only three months later.

3.2 The Commission argues that this allegation is unjustified. The institution explains that its letter of 24 May 2002 responded to the complainant's correspondence of 21 February 2002. This letter included an erroneous postal code, which was used by the Commission in its reply. The Commission stresses that upon the return of its letter by the postal service, its services immediately contacted the complainant by telephone and transmitted a copy of the letter to him by e-mail that very day.

3.3 The alleged lack of diligence on the part of the Commission stems from the fact that its letter to the complainant of 24 May 2002 did not reach him but three months later because of the incorrect postal code included in the address. It appears that this incorrect postal code had been used by the complainant in his previous letter to the institution.

The Ombudsman finds that it is reasonable for the Commission to use the address which the complainant himself has given, unless there is an obvious and manifest error. Since this does not appear to be the case in this instance, the Ombudsman therefore finds no maladministration in relation to this aspect of the case.

4 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) Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications; OJ L 165, 7.7.1993, p. 1.

(2) Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law (COM/2002/0141 final); OJ C 244 , 10/10/2002, p. 5.