THE BACKGROUND TO THE COMPLAINT

1. This case concerns an infringement complaint which was submitted to the European Commission against Denmark concerning an alleged breach of EU social legislation. The complainant is a Polish national who has lived in Denmark for many years. She is now a pensioner. Because she has not lived long enough in Denmark to receive a full pension (the 'accrual principle'), she receives a pro rata pension. It is possible to receive a supplement to compensate for the reduced pension. The complainant considers, however, that the method for calculating this supplement is contrary to EU law. She therefore submitted an infringement complaint to the European Commission.

2. The Commission informed the complainant that it had asked the Danish authorities to examine the matter in light of EU regulations 1408/71[1] and 574/72[2], which concern free movement and social rights. It subsequently informed the complainant of the Danish authorities' reply, in light of which the Commission found that the complainant's infringement complaint was unjustified.

3. The complainant replied to the Commission outlining that it appeared either to have misunderstood the subject matter of her infringement complaint, or it had failed to examine the case properly. The Commission replied, maintaining its position.

4. The complainant then turned to the European Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

5. On 19 March 2009, the Ombudsman asked the Commission to respond to the following allegation and claim:

Allegation:

The Commission failed adequately to examine and respond to the complainant's infringement complaint.

Claim:

The Commission should adequately examine and respond to her infringement complaint.

6. The Ombudsman also asked the Commission, among other things, to clarify specifically why the complainant was not invited to submit her comments in response to the Commission's letter of 15 April 2008, as foreseen in the Commission's rules for handling infringement complaints[3]. He also drew the Commission's attention to a reply from the Danish Ministry of Welfare to a parliamentary question, in which the Ministry concluded that the EU Regulation 1408/71 does not apply to the kind of pension supplement here concerned.

THE INQUIRY

7. The Commission submitted its opinion on 15 June 2009. The opinion was forwarded to the complainant, who submitted her observations on 15 September 2009. She sent further documents on 21 October 2009. The documents submitted by the complainant included evidence of her approaches to the Danish Parliamentary Ombudsman, who for reasons of admissibility did not open an inquiry into the subject matter of her case. She also submitted a statement published by the Danish National Social Appeals Board[4], in which the latter stated that it had initiated the examination of a case which, in summary, concerns the core issues raised by the complainant in her complaint. The case is a so-called case on issues of principle. Such cases have precedent value for the application of the legislation concerned. In the present case before the European Ombudsman, the complainant stated that, in September 2009, the Board predicted a period of approximately five months before it could reach its relevant findings[5].

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

8. The present complaint is one of two very similar complaints received from Polish citizens living in Denmark, the other being 294/2009/PB. In both cases, the Commission expressed doubts as to whether the subject matter of the infringement complaint is within the scope of EU law. In the present case, the complainant has informed the Ombudsman that the Danish National Social Appeals Board[6] (Ankestyrelsen) is currently reviewing the core issues raised by the complainant here involved. The Danish National Social Appeals Board has applied the classification 'cases on issues of principle'. Such cases have important precedent value for the application of the legislation concerned[7].

9. It is likely that the relevant future decision of the Danish National Social Appeals Board will bring to light essential and relevant facts and points of law. In particular, it should reveal how the relevant Danish rules are, and should be, applied in practice. That decision is likely to become essential for assessing the issues raised by the complainant in review procedures at national or EU-level, or both[8]. Moreover, it appears that the complainant has asked the Danish Ombudsman to look at the matter. The European Commission may also be invited to examine a new infringement complaint, or it may include the relevant issues in a so-called general investigation that is currently underway (see the Commission's opinion further below). The Commission stated in its opinion in the present inquiry that it will keep the complainant duly informed about the results of that general investigation.

10. In light of the above, the Ombudsman considers it neither appropriate nor necessary to specifically carry out, at this point, a substantive assessment of the Commission's above-mentioned position regarding the applicability of the EU legislation here concerned.

11. The present case, therefore, primarily focuses on the Commission's procedural response at the time of the complaint to the Ombudsman. The Ombudsman would like to draw attention, at this point, to his further remark at the end of this decision.

A. Allegation of failure adequately to examine and respond to the complainant's infringement complaint

Arguments presented to the Ombudsman

12. The complainant argued that the Commission's handling of her infringement was superficial, lacked specificity regarding her individual situation, and even addressed wrong or irrelevant points.

13. After examining the documents submitted to him, the Ombudsman concluded that the complainant's allegation did not appear to be without some merit. He therefore concluded that there were grounds for opening an inquiry. The relevant points identified by the Ombudsman are examined in his assessment below, following the account of the Commission's opinion (next).

14. In its opinion on the complaint to the Ombudsman, the Commission made the following comments.

Background

15. On 17 November 2007, the complainant sent an e-mail to the Commission services alleging that non-Danish EU nationals were discriminated against in the field of invalidity pensions in Denmark. She stated that she was a Polish national who had resided in Denmark for 17 years and had been awarded a Danish pro rata invalidity pension equal to 18/40 of the full pension. This amounted to DKK 6 661. In addition, she received DKK 2 298 under Article 27a of the Law on Active Social policy, giving her a total of DKK 8 959.

16. The complainant also said that, under Danish law, the municipalities could grant a supplement that could bring the amount up to that of a full Danish invalidity pension, but this legislation was not applied by the municipality in which she lived. She had appealed to the Danish National Social Appeals Board to no avail.

17. On 21 December 2007, the Commission services wrote to the complainant, informing her that they would contact the Danish authorities and ask them to investigate, which they did on the same day.

18. The request to the Danish national authorities to investigate the case was made in accordance with the cooperation procedure established with the Members of the Administrative Commission on Social Security for Migrant Workers (CASSTM) for a problem-solving mechanism relating to the application of Regulation (EEC) No 1408/71. Under that cooperation procedure, the Commission services have access to the CASSTM network to resolve complaints raised by individuals. In 2004, following discussions in CASSTM, new and improved procedures were agreed (Doc. CASSTM 279/04, point II). This cooperation procedure with the Member States is based on Articles 81, 84 and 84a of Regulation (EEC) No 1408/71 and is in line with the 2007 Commission Communication A Europe of results: Applying Community law' (COM(2007) 502 final).

19. On 18 March 2008, the Commission services received a reply from the Danish Ministry of Welfare stating that its reply was coordinated with the Ministry of Labour because the issue of the supplement fell within the responsibility of the latter. The Ministry went on to say that the complainant's complaint related to the application of the legislation on social assistance to people on reduced invalidity pensions. Typically, those concerned were Danish nationals who had spent many years abroad or immigrants who had only spent a few years in Denmark. The Ministry also explained that the assistance was granted on the basis of need and with due consideration to the general financial situation of the person concerned, taking into account whether he/she or his/her spouse had any other form of income. Lastly, the Ministry said that the Danish National Social Appeals Board had established rules on granting this assistance, which also included certain supplements, and that, under national provisions, any rejected claim for benefit could be appealed against.

20. By letter of 15 April 2008, the Commission services informed the complainant of the contents of the letter from the Ministry of Welfare. They concluded that, in light of the Ministry's clarifications, the complainant's infringement complaint did not contain sufficient elements to substantiate an infringement of her rights under Community law, as contained in Regulations 1408/71 and 574/72. The Commission services said they were therefore not in a position to assist her in the matter.

21. By letter of 5 May 2008, the complainant replied to the effect that she could not accept the position taken by the Commission services. She stressed that her grievance concerned the fact that she had not been granted a supplement to bring her pension up to the amount of a full invalidity pension.

22. By letter of 27 June 2008 to the complainant, the Commission services referred to a letter from the Danish Ministry of Welfare, containing information about Danish legislation and its application, which they found to be satisfactory. They also pointed out that they were not in a position to intervene and resolve an individual case. If the complainant was not satisfied with the outcome of her claim for benefit, they suggested that she should rely on national means of redress, which enable her to assert her rights directly and personally under national procedures.

The complaint

23. It appears from the facts of the case that, in accordance with Danish legislation, the complainant has been awarded an invalidity pension based on her periods of residence in Denmark. She was granted a pro rata pension amounting to 18/40 of a full pension. It can consequently be assumed that she had resided in Denmark for 18 years at the time the pension was granted.

24. Her grievance concerns the grant of a supplement on the basis of the Law on Active Social Policy (Article 27a in Lov om Aktiv Socialpolitik) and the application of that Law. She alleges that this law indirectly discriminates against non-Danish EU nationals, since all pro rata pensioners are not automatically granted a supplement that brings their pensions up to the amount of an unreduced invalidity pension.

25. When the Commission services dealt with the complainant's original request, they wrote to the Danish authorities and asked them to clarify the application of the Law on Active Social Policy. That request was made through the CASSTM network outlined above.

25. On the basis of the reply received from the Danish authorities, the Commission services took the view that the economic support provided to the complainant in the form of a supplement to her pro rata invalidity pension did not constitute a social security benefit within the meaning of Regulations (EEC) Nos 1408/71 and 574/72, but had in fact the characteristics of social assistance, in so far as the benefit was granted on the basis of the person's individual need.

26. In order to support this legal interpretation, the Commission referred to the case-law of the European Court of Justice. It highlighted, in particular, the Court's judgment in Case C-299/05[9] which stated that a benefit is regarded as a social security benefit where, without any individual and discretionary assessment of personal needs, it is granted to recipients on the basis of a statutorily defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (point 56 of the judgment).

27. In their letters of 15 April and 27 June 2008, the Commission services informed the complainant of their position.

28. In relation to point 10 of the Commission's Communication on the handling of infringement complaints, the Commission services drew the Ombudsman's attention to point 3 of that Communication. That point makes it clear that complaints do not need to be registered in the central registry of the Secretariat-General where they concern grievances that clearly fall outside of the scope of Community law.

29. The complainant's grievance concerned her individual situation. Her right to benefit under the Law on Active Social Policy was a matter to be determined on the basis of a discretionary assessment of her personal needs. It was consequently not a matter to be determined under Community law, but solely by the application of the national legislation in question. The Commission services therefore held that the non-registration of her grievance was fully in compliance with that Communication and point 3 thereof on the recording of complaints. Consequently, the Commission argued that point 10 of the Communication was not applicable to the situation in question.

30. Without prejudice to the foregoing, the Commission services pointed out that they are in the process of carrying out a general own-initiative investigation of the Danish legislation in question. However, it is unconnected with the issue of granting the complainant the supplement under the Law on Active Social Policy. Should that investigation indicate that any condition in the Danish legislation is likely to be contrary to Community law, the Commission services will take the measures necessary to commence formal infringement proceedings against Denmark.

31. In light of the above remarks, the Commission services take the view that the complaint to the Ombudsman is unfounded. They have adequately examined and responded to the complainant's complaint regarding the grant of a supplement in accordance with the Law on Active Social Policy.

32. In her observations on the Commission's opinion, the complainant maintained her case.

The Ombudsman's assessment

33. The Commission's 2002 Communication for handling infringement complaints provides the following:

"Recording of complaints

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.

Correspondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints, if:

[…]

- it sets out a grievance which clearly falls outside the scope of Community law."

(Point 3)

"Where the Commission departments decide not to register the correspondence as a complaint, they shall notify the author to that effect by ordinary letter setting out one or more of the reasons listed in the second paragraph of point 3.

(Point 4)

This rule features under the section 'acknowledgement of receipt'. The notification mentioned in this rule is therefore one that shall occur during the initial handling of the complaint. In other words, the notification is clearly not foreseen to occur after several weeks, let alone following a formal or provisional investigation involving national authorities.

"Unless there are exceptional circumstances requiring urgent measures, where a Commission department intends to propose that no further action be taken on a complaint, it will give the complainant prior notice thereof in a letter setting out the grounds on which it is proposing that the case be closed and inviting the complainant to submit any comments within a period of four weeks."

(Point 10)

In addition to the above rules, the Commission is bound by the general obligation of service-mindedness towards the individuals with whom it communicates. It goes without saying that this obligation must be interpreted in its context.

34. In the present case, the complainant's infringement complaint was not registered ('recorded') in the Commission's central registry of complaints of the Secretariat-General.

35. The Commission put forward, in its opinion, that the infringement complaint did not have to be registered. It referred to Point 3 of that Communication, stating that complaints do not need to be recorded in the central registry of the Secretariat-General where they concern grievances that "clearly fall outside the scope" of EU law.

36. The decision not to register correspondence as an infringement complaint (when the correspondence is clearly intended to put forward such a complaint) must, as noted above in relation to Point 4. of the Commission's 2002 Communication, be communicated to the individual concerned at an early stage. If the Commission in fact concluded, at an early stage, that the object of the infringement complaint here concerned "clearly" fell outside the scope of EU law, the Commission failed to follow this rule in the present case.

37. The Commission's argument that the infringement complaint concerned grievances that "clearly" fell outside the scope of EU law, and that this is what its service concluded at the time, is not credible and contradicts its own actions. On the basis of the relatively detailed facts in her infringement complaint, the Commission identified and informed the complainant of the possibly relevant EU legislation. It submitted the infringement complaint to the Danish authorities using a formal cooperation procedure. It informed the Danish authorities that "[w]e have received a complaint...", and asked them to "investigate" the matter and inform it of their "findings". Furthermore, the Commission never actually informed the complainant that it considered the object of her infringement complaint to be outside the scope of EU law. Instead, it informed her that the applicable Danish legislation was consistent with - and not outside the scope of, or irrelevant to - the EU legislation in question.

38. The Commission's opinion in the present case has given a succinct and precise account of why it considers that the infringement complaint should be considered as "clearly" falling outside the scope of EU law. That account is clear and appears to be based on relevant considerations, taking into account the facts available to the Commission at the time. However, there is no evidence in the case (such as internal notes or correspondence) to confirm that those conclusions were formulated at the time of handling the infringement complaint. If they were, it is not clear why they were not simply communicated to the complainant.

39. As further pointed out above, the infringement complaint was by no means overlooked - the service in question acted swiftly to deal with the complaint, and did so within the framework of a formal cooperation procedure. However, it does appear that the relevant administrative service simply overlooked the Commission's 2002 Communication.

40. If it is true, as appears to be the case, that an oversight occurred, it would have been appropriate to just recognise this, and to provide reasonable assurances as to how future similar infringement complaints will be dealt with in the framework of the Commission's 2002 Communication.

41. With regard to the correspondence exchanged with the complainant, it appears that the otherwise genuine and positive effort to deal swiftly with the infringement complainant had some impact on the adequacy of the Commission's response to the complainant. In summary, the following should be noted:

(a) The Commission initially conveyed to the complainant the impression that her concrete case would be investigated, but, in actual fact, the Commission essentially only examined whether the Danish legislation concerned was consistent with the EU legislation in question. The Danish reply to the Commission contained no information or comments on the complainant's case.

(b) The Commission's letters conveyed the impression that the complainant's grievance had not been adequately understood. The complainant specified that she complained about the calculation of a supplement that she received. When it rejected the infringement complaint, following the Danish authorities' response, the Commission stated that "[i]n your complaint, you allege that your invalidity pension has not been calculated on the same basis as the pension of a Danish national, and that you have also not been granted a supplement, which is discriminating" (emphasis added). As noted above, the complainant did in fact receive a supplement.

(c) The Commission initially identified and expressly pointed out specific EU legislation which would form the basis of its examination of the case. It subsequently informed the complainant that it had found no breach of EU law, and that it would close the case. It did not, however, make any comments or give any information as to how it arrived at this finding. It merely referred to the reply from the Danish authorities, and to three administrative appeals decisions referred to therein. Referring to those documents would, of course, have been entirely reasonable if they themselves contained adequate and clear information or comments on the issue of a possible breach of EU law. This was not, however, the case. They merely contained descriptions and elements of Danish law and practices.

42. In light of the above, it is reasonable to conclude that the Commission's written response to the complainant's infringement complaint was not fully adequate.

43. The Ombudsman is well aware that the Commission receives a very large amount of correspondence concerning numerous issues. He is also aware of the efforts and investment that a thorough and detailed response to an infringement complaint may require. The Commission service here concerned made timely replies to the complainant and processed the infringement complaint using a relevant cooperation procedure. The above findings that the Commission arguably failed to adequately examine and respond to the complainant's infringement complaint do not, therefore, imply a finding that the infringement complaint in this case was handled carelessly overall. Rather, they highlight certain risks associated with disregarding or overlooking the Commission's 2002 Communication, and the importance of striking a reasonable balance between speed and thoroughness.

44. With regard to the complainant's claim that the Commission should now take up her infringement complainant for renewed examination, the Ombudsman concludes that, at the present point in time, no further inquires would be appropriate, since the substantive issue raised in complainant's infringement complaint against Denmark is likely to receive appropriate attention at national level (see paragraphs 8-10 of this decision). Any relevant follow-up could be either a redress action at national level, or a new infringement complaint to the Commission. With regard to the various above-mentioned shortcomings in the Commission's handling of the complainant's infringement complaint, the Ombudsman notes that the Commission has very recently taken measures to tighten up its handling of such complaints. The Ombudsman refers, in this respect, to his further remark below.

C. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

In light of the considerations set out in paragraph 45 of this decision, the Ombudsman considers that no further inquiries are necessary.

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

FURTHER REMARK

The Commission adopted its 2002 Communication on the handling of infringement complaint in response to calls for improvements by the European Ombudsman and the European Parliament. One aim of the Communication is to provide a procedural framework for the handling of infringement complaints. Among other things, this reassures the individual concerned that his or her infringement complaint is dealt with as such, and not only used as a source of information for the Commission's general supervision of the implementation of EU law.

The Commission has informed the Ombudsman that it has taken concrete measures to improve its handling of infringement complaints[10]. It has adopted new and improved practices, which became operational in September 2009. One expected outcome appears to be better practices regarding the registration of infringement complaints.

As part of this work, the Commission also intends to redraft its internal manual for handling infringement complaints. The Commission expects to finish that manual in spring 2010.

The Ombudsman welcomes the Commission's efforts. He looks forward to receiving concrete information on the implementation of the measures taken by the Commission, and on their specific impact on the handling of infringement complaints.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 27 April 2010

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[1] Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, OJ 1971 L 149, p. 2.

[2] Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, OJ 1972 L 74, p. 1.

[3] 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 2002 244, p. 5, point 10.

[4] The Board is the Danish authority for administrative complaints in cases involving legislation on social matters and employment.

[5] At the time of drafting the present decision, the Board appeared not yet to have published its decision.

[6] The Board is the Danish supreme authority for administrative complaints in cases involving legislation on social matters and employment. This has already been defined in footnote 4.

[7] On 5 March 2010, the complainant called the Ombudsman to let him know that on 25 February 2010, the Danish Social Appeals Board (Ankestyrelsen) had taken a decision in the case that it had initially classified as a "case on issues of principle". However, the Board had re-classified the case as not being of "principle" after all. It decided not to publish its decision. It did decide, however, to deal with another case (2100126-09) as "a case on issues of principle" relevant to the subject matter here concerned. The complainant was of the impression that the Board was simply acting to delay the matter. She therefore had contacted the Danish Ombudsman regarding the issue.

[8] It is noted that, on 7 January 2010, the complainant informed the Ombudsman that she continues to pursue her case at national level. She made a formal application to her local council for re-calculation of her pro rata pension. She also informed the Ombudsman, on 1 February 2010, that she had obtained recognition, and corresponding payments, of pension entitlements from the relevant Polish authorities, and that the latter had provided her with additional information relevant to her case.

[9] Case C-299/05 Commission v Parliament and Council [2007] ECR I-8695.

[10] Letter dated 6 November 2009 - not sent in the framework of the present inquiry - from the Commission's Secretary-General to the Ombudsman.