Strasbourg, 13 December 2004

Dear Mr M.,

On 4 April 2004, you made a complaint to the European Ombudsman concerning the European Commission's alleged failure to ensure that Spain complies with Directive 97/67/EC.

On 22 April 2004, I forwarded the complaint to the President of the European Commission.

An opinion was originally requested for 30 June 2004. After the Commission had requested an extension of time, I decided on 3 May 2004 that the opinion should be sent by 31 July 2004. You were informed accordingly the same day.

On 25 June 2004, you sent me a copy of a letter dated 15 June 2004 that you had received from the Spanish regulatory authority and of your reply of 25 June 2004.

The Commission sent its opinion on 2 August 2004. I forwarded it to you on 16 August 2004 with an invitation to make observations, which you sent on 22 August 2004.

On 30 August 2004, I asked the Commission for further information in relation to your complaint.

On 1 September 2004, you forwarded to me a copy of a letter you had addressed to the Spanish Ombudsman that day. In your letter, you referred to a complaint that you had submitted to the Spanish Ombudsman on 10 June 2004.

On 15 September 2004, you submitted further information relating to your complaint to me.

In a letter of 21 September 2004, the Spanish Ombudsman informed me that he had received a complaint from you and that he would look into your case.

On 4 October 2004, the Commission replied to my request for further information. I forwarded this reply to you on 7 October 2004 with an invitation to make observations, which you sent on 11 October 2004.

On 16 November 2004, the Commission submitted further information to me. I forwarded a copy of the Commission's letter to you on 18 November 2004 with an invitation to make observations, which you sent on 21 November 2004.

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

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

THE COMPLAINT

The relevant rules

Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 no L 15, p. 14; modified by Directive 2002/39/EC of 10 June 2002, OJ 2002 no L 176, p. 21) establishes, among other things, common rules concerning “the setting of quality standards for universal service provision and the setting-up of a system to ensure compliance with those standards” (cf. Article 1 of the Directive). Paragraph 1 of Article 3 (“Universal service”) provides that Member States “shall take steps to ensure that users enjoy the right to a universal service involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users”.

Article 3 (3) specifies that Member States “shall take steps to ensure that the universal service provider(s) guarantee(s) every working day and not less than five days a week, save in circumstances or geographical conditions deemed exceptional by the national regulatory authorities, as a minimum: one clearance [and] one delivery to the home (…) or, by way of derogation, (…) to appropriate installations.” Any exception or derogation granted in accordance with this provision must be communicated to the Commission and to all national regulatory authorities.

Article 3 (4) of the Directive provides that these universal service requirements apply to postal items (a term which is defined as including, in addition to letters and postcards, items such as newspapers, periodicals and postal packages containing merchandise) up to two kilograms and to postal packages up to ten kilograms. Notwithstanding these limits, Article 3 (5) provides that Member States have to ensure that postal packages received from other Member States and weighing up to 20 kilograms are delivered within their territories.

According to Article 19, Member States shall ensure that transparent, simple and inexpensive procedures are drawn up for dealing with users' complaints.

Article 22 provides that Member States shall designate one or more national regulatory authorities for the postal sector. These authorities have the particular task of “ensuring compliance with the obligations arising from this Directive”.

The Directive was to be implemented by January 1999 (see its Article 24).

The facts as described by the complainant

The complainant, a German citizen, lives in “La Marina”, a fledgling new settlement that belongs to the municipality of San Fulgencio. According to the complainant, the settlement has the size of a small town and is in full expansion. The area appears to belong to the postal administration of Alicante.

According to the complainant, there are only two mailboxes in the whole settlement. The complainant submitted that the post office was an old, decrepit building. According to the complainant, it was impossible to send postal packages from there. If a postal package arrives at the post office, the addressee was informed and invited to collect the item. There was thus no delivery of postal packages. Still according to the complainant, normal postal deliveries are irregular and unreliable. In January and February 2003, there were only five deliveries in each month. The intervals between deliveries reached up to two weeks. The complainant alleged that it was not infrequent that letters were left behind the windscreen wipers of the car instead of being dropped into the letterbox. A neighbour had his mail delivered “by air”, that is to say it was thrown into his garden. Newspapers that the complainant received from Germany rarely reached him, and if they did, they had travelled three weeks. The complainant added that the postal operator increasingly used clusters of letterboxes for certain areas. This meant that customers had to come and collect their mail from these letterboxes (which could be 1 to 2 kilometres from their home). In addition to that, they had to pay for the use of these letterboxes.

On 10 January 2003, the complainant wrote to the European Commission’s Secretariat-General in order to complain about the Spanish postal operator. He pointed out that complaints to Correos y Telégrafos (the postal operator that is entrusted with the provision of the universal service in Spain) had been unsuccessful and that the Commission’s Representation in Madrid had failed to take up the case. The complainant expressed the view that the Spanish postal operator was clearly playing for time and that the Commission should intervene.

In its reply of 7 March 2003, the service in charge at the Commission (the unit Postal Affairs of Directorate-General Internal Market) pointed out that according to Directive 97/67/EC, the regulatory authorities in the Member States had to take the appropriate measures, where necessary, to ensure compliance with the provisions of the Directive. The Commission informed the complainant that it therefore normally only dealt with complaints lodged by customers where no adequate solution could be achieved on the level of the Member State concerned. The complainant was thus requested first to turn to the regulatory authority (which is part of a national Ministry) in Spain.

On 23 March 2003, the complainant wrote to the Commission in order to ask for a reply to his letter of 10 January 2003.Given that its letter of 7 March 2003 thus did not appear to have reached the complainant, the Commission forwarded a copy of this letter to the complainant by e-mail on 1 April 2003.

The complainant wrote to the regulatory authority on 2 April 2003. In the absence of a reply, he again turned to the Commission in a letter of 15 October 2003. In its reply of 12 November 2003, the Commission informed the complainant that it had contacted the regulatory authority and that the latter had promised to write to the complainant “instantly”. A copy of the Commission’s letter to the Spanish postal regulator of 12 November 2003 was enclosed with the letter to the complainant.

Not having received any reply to his letter of 15 October 2003, the complainant sent an e-mail to the Commission on 7 December 2003 in order to lodge a complaint (“Dienstaufsichtsbeschwerde”) against the persons in charge at the Commission for having failed to handle his complaint promptly. In its reply sent by e-mail on 8 December 2003, the Commission regretted that the complainant had not received its letter of 12 November 2003, a copy of which it enclosed.

In a further e-mail of 9 December 2003, the complainant pointed out that the fact that he had not previously received the letter of 12 November 2003 showed that the Spanish postal operator had remained inactive. He also informed the Commission that the Spanish regulatory authority had not yet answered and asked what else he could do now. On 29 December 2003, the complainant sent a further e-mail to the Commission.

On 19 March 2004, the complainant turned to the Commission again. He complained about the lack of activity on the part of the Commission and asked the latter again to see to it that the Directive was complied with in Spain.

The complaint to the European Ombudsman

In his complaint to the Ombudsman of 4 April 2004, the complainant pointed out that he had still not heard from the Spanish regulatory authority. The complainant alleged in substance that the Commission had failed properly to handle his complaint concerning Spain’s failure to comply with the Directive. He further alleged that his e-mail of 29 December 2003 and his letter of 19 March 2004 had been left unanswered. The complainant claimed that the Commission should take steps to ensure that the Directive was respected and implemented in Spain.

The complainant's e-mail of 25 June 2004

On 25 June 2004, the complainant sent to the Ombudsman a copy of a letter dated 15 June 2004 that he had received from the Spanish regulatory authority and of his reply of 25 June 2004. In its letter of 15 June 2004, the Spanish regulatory authority noted that it had asked the Spanish postal operator for information in relation to the complainant's case. In its reply, the Spanish postal operator had provided certain explanations and indicated that measures had already been taken or would be taken to improve the situation. The Spanish regulatory authority indicated that it would shortly carry out an "in situ" inspection in order to ascertain that this had been done. In his reply of 25 June 2004 (which appears to have been written both in German and in Spanish), the complainant submitted that the Spanish postal operator had made deliberately wrong and incorrect statements. He expressed his surprise at the fact that the Spanish regulatory authority seemed to be ready to accept these statements and announced that he would make a complaint in this regard.

THE INQUIRY

The Commission's opinion

In its opinion submitted on 15 July 2004(1), the Commission made the following comments:

The Commission had verified that Spain had adopted all necessary measures to guarantee the provision of a universal service, including the designation of a universal service provider. Spain had furthermore introduced mechanisms to monitor and enforce the obligations of the universal service provider, and a system for investigating users' complaints on the grounds of inadequate postal services.

This was the reason why the Commission had replied to the complainant's first message of 10 January 2003 by referring him to the competent Spanish authorities.

The letters that the complainant had sent to the Commission during 2003 could not be considered as new complaints, as they had merely provided information about the status of the complaint and stated the complainant's concern about the lack of progress regarding this complaint. In spite of this, the Commission services had written to the Spanish postal authorities on 12 November 2003 in order to try and speed up the handling of the complaint by these authorities. The complainant had been informed accordingly.

In December 2003, the complainant had provided the Commission with new evidence on the absence of any developments regarding his complaint at the national level and had asked the Commission to intervene.

On the basis of these messages, the Commission had considered that an investigation of the possibly delayed treatment of the complaint by the national authorities was justified. On 15 January 2004, the Commission had informed the complainant that it would ask the Spanish authorities whether his complaint had been properly addressed, as required by Directive 97/67. The same day a letter had been sent to the Spanish authorities inquiring about the status of the complaint and re-stating the Commission's concerns. This letter had so far remained unanswered.

On 19 March 2004, the complainant had written to ask about the status of his complaint. The Commission services had not replied to this letter immediately.

On 26 April 2004, the Commission had received a further letter from the complainant.

In the absence of a reply from the Spanish authorities to its letter of 15 January 2004 and to its informal reminders, the Commission's services had formally required the Spanish authorities on 2 June 2004 to provide the Commission with information on the status of the complainant's complaint, on the basis of the Member States' obligation to co-operate. Other actions would be considered if this information was not provided in a timely way.

On 29 June 2004, the Commission had also replied to the complainant's letter of 26 April 2004 and apologised for the delay in replying to his letter of 19 March 2004.

The Commission had provided an adequate attention to this case, and the complainant had received sufficient information on the development of his complaint within a reasonable period of time, taking into account the relative importance of the case.

The treatment of complaints referring to individual citizens' experience of insufficient postal services was not one of the Commission's priorities. Its priority in this field was rather to ensure that a proper working system for investigating users' complaints was in place in all Member States.

This position took into account the fact that under Directive 97/67 it was primarily the Member States that were responsible for addressing users' complaints. It also took into account the fact that the significant number of such complaints would require a considerable amount of resources on the level of the EU.

The complainant's observations

In his observations, the complainant maintained his complaint. The complainant pointed out that the situation had still not improved. He also expressed the view that it appeared that the Commission was powerless as regards the Spanish post.

Further inquiries

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

Request for further information

On 30 August 2004, the Ombudsman therefore asked the Commission to provide him with a copy of its letter to the Spanish authorities of 2 June 2004 and to inform him as to (a) whether a reply had been received from the Spanish authorities in the meantime and (b) how the Commission proposed further to proceed in this case.

The Commission's reply

Together with its reply of 28 September 2004(2), the Commission submitted a copy of its letter to the Spanish regulatory authority of 2 June 2004.

In its reply, the Commission made the following comments:

The reply of the Spanish authorities of 24 June 2004 had reached the Commission in July 2004. According to this letter, the Spanish authorities had asked Correos y Telégrafos to inform them about the provision of the universal service in the complainant's area. Correos had also stated that a number of measures had already been taken to improve the provision of services in that area. The Spanish authorities had also informed the Commission that, in the application of their duties, the complainant would receive a visit from the "Postal inspection" services to monitor the provision of postal services in his area. Once this inspection had taken place, the Spanish authorities might decide to arrange for mail to be delivered daily, if all conditions for this were met.

The information received from the Spanish authorities showed that the latter were now complying with their duty to address the complainant's concerns, as required by Article 19 of Directive 97/67/EC. The Commission had been informed of such actions by the Spanish authorities in previous cases and had no reason to believe that the latter would fail to comply with their duties in the present case.

As to the reason for the delay in the treatment of the complaint at the national level, the Spanish authorities had pointed out that the complaint had been in German and that all the documents had had to be translated.

In order to continue monitoring the handling of the complainant's complaint by the Spanish authorities, the Commission's services had asked the Spanish authorities to inform them about the result of their investigation and, eventually, the measures they intended to take to ensure the daily delivery of letters in the complainant's area.

The complainant's observations

In his observations, the complainant basically alleged that the Spanish postal operator used excuses and lies in order to deceive all parties involved and that no improvements had been made. The complainant also noted that the visit announced by the Spanish regulatory authority had not yet taken place.

The Commission's letter of 16 November 2004

On 16 November 2004, the Commission forwarded to the Ombudsman further information that it had received from the Spanish authorities. According to this information, (1) the "in-situ" inspection had now taken place and a report on the inspection had been drawn up on 30 July 2004, (2) Correos y Telégrafos had replied to this report on 15 September 2004, indicating the measures that it had adopted to improve the postal service in the relevant area, and (3) the reply from Correos y Telégrafos had been sent to the complainant on 14 October 2004, in order to confirm that he was now receiving the appropriate mail service. The Commission pointed out that the Spanish regulatory authority would adopt a decision if necessary once the complainant's reply had been received.

According to the Commission, the above information confirmed that the Spanish authorities had proceeded with the treatment of the complaint, as they had promised in their letter of June 2004. The Commission would continue its contacts with the Spanish authorities in order to monitor the development of the procedure until it was closed.

The complainant's observations

In his observations on the Commission's letter, the complainant stressed that no change or improvement had occurred as regards the delivery of mail.

THE DECISION

1 Alleged failure to ensure compliance with directive 97/67/EC

1.1 Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 no L 15, p. 14; modified by Directive 2002/39/EC of 10 June 2002, OJ 2002 no L 176, p. 21) establishes, among other things, common rules concerning “the setting of quality standards for universal service provision and the setting-up of a system to ensure compliance with those standards” (cf. Article 1 of the Directive). Paragraph 1 of Article 3 (“Universal service”) provides that Member States “shall take steps to ensure that users enjoy the right to a universal service involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users”. Article 3 (3) specifies that Member States “shall take steps to ensure that the universal service provider(s) guarantee(s) every working day and not less than five days a week, save in circumstances or geographical conditions deemed exceptional by the national regulatory authorities, as a minimum: one clearance [and] one delivery to the home (…) or, by way of derogation, (…) to appropriate installations.” Any exception or derogation granted in accordance with this provision must be communicated to the Commission and to all national regulatory authorities.

The complainant, a German citizen, lives in “La Marina”, a fledgling new settlement that belongs to the municipality of San Fulgencio. According to the complainant, Correos y Telégrafos (the postal operator that is entrusted with the provision of the universal service in Spain) does not at all comply with its universal service obligations in that area.

On 10 January 2003, the complainant wrote to the European Commission’s Secretariat-General in order to complain about the Spanish postal operator.

In his complaint to the Ombudsman lodged in April 2004, the complainant alleged in substance that the Commission had failed properly to handle his complaint concerning Spain’s failure to comply with the Directive.

1.2 In its opinion, the Commission pointed out that it had asked the Spanish regulatory authority for information on the case. In the absence of a reply from the Spanish authorities to this letter, the Commission's services had formally required the Spanish authorities on 2 June 2004 to provide the Commission with information on the status of the complainant's complaint, on the basis of the Member States' obligation to co-operate. Other actions would be considered if this information was not provided in a timely way.

The Commission further submitted that under Directive 97/67, it was primarily the Member States that were responsible for addressing users' complaints.

1.3 In its reply to a request for further information made by the Ombudsman, the Commission pointed out that it had received a reply from the Spanish authorities in July 2004. According to this reply, the Spanish authorities had asked Correos y Telégrafos to inform them about the provision of the universal service in the complainant's area. The Spanish authorities had also informed the Commission that, in the application of their duties, the complainant would receive a visit from the "Postal inspection" services to monitor the provision of postal services in his area. The Commission submitted that the information received from the Spanish authorities showed that the latter were now complying with their duty to address the complainant's concerns, as required by Article 19 of Directive 97/67/EC. It added that it had no reason to believe that the Spanish authorities would fail to comply with their duties in the present case. In order to continue monitoring the handling of the complainant's complaint by the Spanish authorities, the Commission's services had asked the Spanish authorities to inform them about the result of their investigation and, eventually, the measures they intended to take to ensure the daily delivery of letters in the complainant's area.

In a further letter of 16 November 2004, the Commission forwarded to the Ombudsman further information that it had received from the Spanish authorities. According to this information, (1) the on-spot inspection had now taken place and a report on the inspection had been drawn up on 30 July 2004, (2) Correos y Telégrafos had replied to this report on 15 September 2004, indicating the measures that it had adopted to improve the postal service in the relevant area, and (3) the reply from Correos y Telégrafos had been sent to the complainant on 14 October 2004, in order to confirm that he was now receiving the appropriate mail service. The Commission pointed out that the Spanish regulatory authority would adopt a decision if necessary once the complainant's reply had been received. According to the Commission, the above information confirmed that the Spanish authorities had proceeded with the treatment of the complaint, as they had promised in their letter of June 2004. The Commission would continue its contacts with the Spanish authorities in order to monitor the development of the procedure until it was closed.

1.4 The Ombudsman considers that the Commission's argument that it is primarily the task of Member States and their authorities to ensure that the provisions of Directive 97/67 are respected as regards the provision of the universal service appears to be correct. He further considers that the evidence submitted to him shows that the Commission has taken measures to ascertain that the national authorities are carrying out a proper control in so far as the area where the complainant lives is concerned. The Ombudsman notes that in his e-mail of 21 November 2004, the complainant stressed that notwithstanding the steps that had been taken so far no change or improvement as regards the delivery of mail had occurred. It should however be noted that the investigation started by the Spanish regulatory authority does not appear to have been finalised. According to the Commission, the Spanish regulatory authority will adopt a decision if necessary once the complainant's reply has been received. . In these circumstances, the Ombudsman considers that there is not yet sufficient evidence that the Spanish authorities are not complying with their duties under Directive 97/67 in the present case. The Ombudsman further notes that the Commission has committed itself to monitoring the procedure until it is finalised.

1.5 The Ombudsman therefore considers that the evidence submitted to him does not justify a finding of maladministration. However, a further remark will be made with regard to a procedural issue.

1.6 The Ombudsman considers it useful to add that the complainant remains free to submit a new complaint to the Commission if he should arrive at the conclusion that the Spanish authorities fail to comply with their duties under Community law. In such a case, the complainant could also turn to the Spanish Ombudsman. The Ombudsman notes that it appears that the complainant has already submitted his complaint against the Spanish postal operator to the Spanish Ombudsman.

2 Failure to reply to letters

2.1 The complainant alleged that his e-mail of 29 December 2003 and his letter of 19 March 2004 had been left unanswered.

2.2 In its opinion, the Commission pointed out that it had replied to the e-mail of 29 December 2003 by letter of 15 January 2004. It further noted that on 29 June 2004, it had replied to the complainant's letter of 26 April 2004 and apologised for the delay in replying to his letter of 19 March 2004.

2.3 The Ombudsman notes that the complainant has not called into doubt the Commission's explanations regarding the reply to his e-mail of 29 December 2003. It thus appears that the Commission's reply was indeed sent by mail on 15 January 2004 but did not reach the complainant. The Ombudsman further notes that in its letter of 29 June 2004, the Commission apologised for the delay in replying to the complainant's letter of 19 March 2004.

2.4 In these circumstances, the Ombudsman considers that there is no need to conduct further inquiries as regards this aspect of the complaint.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to be no maladministration on the part of the European Commission. The Ombudsman therefore closes the case.

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

FURTHER REMARKS

In its Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(3), the Commission pointed out that any correspondence which is likely to be investigated as a complaint "shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission" (point 3 of the Communication) and that such a complaint shall be handled in accordance with the said Communication. The Ombudsman notes that this does not appear to have been done in relation to the complaint lodged by the complainant on 10 January 2003. The Ombudsman considers that the Communication should be applied in future cases of complaints against national authorities in the postal sector.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The translation into German (the language of the complainant) was sent to the Ombudsman on 2 August 2004.

(2) The German translation of this text was sent to the Ombudsman on 4 October 2004.

(3) OJ 2002 no C 244, p. 5.