The background to the complaint

1. The complainant, Ryanair, is a European low fares airline company. Its Chief Executive was invited by the Commission to a conference, held in Brussels on 5-6 December 2011. In the course of making his travel arrangements the complainant's Chief Executive received an e-mail from the Commission's travel agent that "the Commission did not allow [them] to book low cost flights, so [they] can only arrange transfers from/to Brussels [Zaventem] Airport but not from/to [Brussels-South] Charleroi Airport ". On 30 November and 19 December 2011, its Chief Executive wrote to the Commissioner for Research, Innovation and Science asking her to investigate whether this information was correct and the reasons for such a policy.

2. On 23 January 2012, the Director of the Commission's [...]* replied to the above-mentioned two letters, providing clarifications on the staff travel policy of the Commission. In his letter, the Director explained that the Commission had chosen to organise the majority of its travel arrangements through a framework contract with a travel agency. The terms of that contract prevented the said travel agency "from booking tickets with 'low cost' airlines". The basic reason for this policy was that "such tickets require immediate purchase by credit card and offer limited flexibility in terms of changes and cancellations. Such conditions are often not suited to [the Commission's] travel needs which may be subject to frequent changes and would in such circumstances generate significant additional costs for the Institution". In his letter, the Director further stressed that "the Commission's rules also encourage staff to use the most appropriate and cost effective means of transport for their travel and that they do allow officials to book 'low cost' flights and to fly to and from the corresponding airports. Indeed the possibility to use 'low-cost' carriers is explicitly set out in § 3.4 of our Mission Guide".

3. On 5 March 2012, the complainant wrote to the Secretary-General of the Commission to complain about the Commission's allegedly discriminatory policy towards low fares airlines (LFAs). In its letter, the complainant qualified the Commission's staff travel policy as an "inexcusable and unjustified waste of public resources in contravention of the principle of sound financial management" It provided examples of return flights from Brussels to a number of European destinations, comparing the complainant's and other LFAs' low fares to those of "traditional airlines". It also noted that travel agents have no incentive to reduce the Commission's costs by booking LFA flights, and that they would "continue to boycott flights with LFAs as long as they are allowed to get away with it, in order to protect and maximise their revenue ". The complainant announced that it would bring an action for damages against the Commission unless it received an undertaking by 6 April 2012, that the Commission would comply with the following three requests ("the three requests"):

(i) amend its travel policy by removing any discrimination between LFAs and other airlines

(ii) introduce a rule to its travel expenses policy whereby the LFAs became the default travel option on the basis that such rule is "cost effective" and "efficient", and

(iii) make a donation of one million euro to a charitable organisation of Ryanair's choice as a symbolic compensation for the damage to consumers and competition the Commission's discriminatory travel policy had caused.

4. On 30 March 2012, the Director of the [...], in reply to the above letter, rejected the complainant's assertion that the Commission's staff travel policy was discriminatory towards LFAs and had thus to be amended, reiterating that under the Commission's "Guide to Missions", officials are free to use the services of the Commission's approved travel agency or those of any other agency. It also considered the complainant's request that the Commission give precedence to LFAs over traditional airlines to be a potential breach of the very same principle of non discrimination the complainant accused the Commission of having violated. He thus concluded that the request for a symbolic compensation of EUR 1 million was "wholly unfounded". By another letter of the same day, the Commission also provided the complainant with a copy of its "Guide to Missions", and granted it partial access to its contract with its approved travel agency.

5. On 30 April 2012, the complainant wrote back to the Commission, reiterating its allegation that the Commission's travel policy was discriminatory towards LFAs, and requesting that the Commission confirm, by 11 May 2012, that it would comply with the three requests. On 23 May 2012, the Director of the [...] forwarded to the complainant a copy of his letter dated 10 May 2012, in reply to the complainant's letter of 30 April 2012, which it might not yet have received. In that letter, the Director of the [...] referred to his previous replies and explanations, and reiterated his conclusion that the Commission's staff travel policy did not discriminate against LFAs.

6. On 1 June 2012, the complainant wrote back to the Commission pointing out that the latter had failed to address the issues raised in all its previous correspondence. It requested that its three above-mentioned requests be put before the College of Commissioners for consideration and decision.

7. On 12 June 2012, the Director of the [...] replied to the complainant's above-mentioned letter, expressing his regrets that the latter had not found any of his previous explanations "sufficiently clear". As regards the three requests, the Director of the [...] reiterated once again that: (i) since Commission staff is entirely free to use LFAs, "there is no discrimination to remove"; (ii) if LFAs' tickets cannot be booked directly by the Commission's travel agency that was because the complainant had chosen not to affiliate itself with any of the global reservation systems, and (iii) there was "nothing the Commission [had] to compensate anyone for". In light of these considerations, the Director of the [...] concluded that he was not "in a position to agree to [Ryanair's'] request to submit these [three] points to the College of Commissioners, since the factual situation is already clear".

8. On 6 July 2012, the complainant formally requested the Director of the [...] to put its three requests before the College of Commissioners for consideration and decision.

9. On 16 July 2012, the Head of the Commission's [...].2 Unit replied to the complainant's above letter stating that "given your letter [of 6 July 2012] restates the points made in your previous correspondence without adding any new elements, I have nothing to add to what [the Director of the [...]] already stated in his letter dated 12 June 2012".

10. On 15 August 2012, the complainant wrote to the Commissioner for Financial Programming and Budget making reference to its previous correspondence with the Director of the [...] and the latter's alleged refusal to address its concerns regarding the Commission's staff travel policy. In that letter, the complainant again asked that the College of Commissioners consider and decide upon its three requests.

11. On 11 September 2012, the Director of the [...] replied to the complainant on behalf of the Commissioner. In his letter, the Director of the [...] stated that he had already replied, on a number of occasions, to all the points raised by the complainant, and that in the absence of any new elements, there was nothing for him to add to his previous letters.

12. On 5 November 2012, the complainant turned to the Ombudsman.

The subject matter of the inquiry

13. The Ombudsman opened an inquiry into the following allegation:

Allegation:

The Commission failed to deal properly with Ryanair's complaint against its discriminatory staff travel policy vis-à-vis "low fares airlines".

In support of its allegation, the complainant argued that:

(i) the Director of the Commission's [...] refused, without any valid justification, to put the issues raised by the complainant before the College of Commissioners for consideration and decision; and

(ii) when the complainant subsequently wrote to the Commissioner for Financial Programming and Budget requesting that he put the matter before the College of Commissioners, the Commissioner should have asked for a new independent assessment of the request instead of referring the matter back to the Director of the [...].

Claim:

Ryanair's complaint should be brought to the College of Commissioners for consideration and decision, without any further consideration by any other individual or official within the Commission.

The inquiry

14. On 7 December 2012, the Ombudsman asked the Commission for an opinion on the complaint. On 25 February 2013, the Commission sent its opinion, which was then forwarded to the complainant for its observations. On 28 March 2013, the complainant submitted its observations.

The Ombudsman's analysis and conclusions

A. Alleged failure of the Commission to deal properly with the complainant's complaint against its allegedly discriminatory staff travel policy

Arguments presented to the Ombudsman

15. The complainant argued that a Commissioner who takes his responsibilities to European taxpayers seriously would not refer a request that was made to him because of the failure of his member of staff to deal with it, back to that same individual for further consideration. However, by doing so, the Commission's services, and the Office of the [...] in particular, had undermined a European citizen's right to have his or her concerns considered appropriately by the Commission. The complainant considered this behaviour to be offensive, and in breach of Article 41 of the Charter of Fundamental Rights guaranteeing the right to good administration. It submitted that, in the present case, the Commission showed disregard for the citizens of the EU and a lack of sincerity regarding transparent decision-making and accountability within the institution.

16. In its opinion, the Commission stressed that it replied to all the letters sent by the complainant within the time limit stipulated by the 'Code of Good Administrative Behaviour for staff of the EU in their relations with the public'[1] even though these letters had the same substance. It reiterated that its Guide to Missions gives officials the option to book flights with LFAs, while the Commission's own travel agency is obliged to provide the lowest rate available at the time of a reservation in accordance with the 'cost effective means of transport principle' set out in the Guide to Missions. Therefore, it was unnecessary to amend the Commission's policy on this matter, and there was nothing which could or should have been put on the Commission's agenda.

17. As regards the handling of the complaint, the Commission referred to its Rules of Procedure[2], and more specifically to Article 21, which provides that "the Commission shall establish a number of Directorates-General and equivalent departments forming a single administrative service to assist it in the preparation and performance of its tasks, and in the implementation of its priorities and the political guidelines laid down by the President." Thus, it would be perfectly normal for the Commission's departments to respond on behalf of the Commissioners to correspondence and requests coming from outside bodies.

18. The Commission underlined that the fact that each letter contained phrases such as "have been passed to me for reply" or "to which I have been asked to reply" explicitly indicated that the recipient of the letter had deemed it appropriate to handle the correspondence in this fashion. It concluded that, far from giving rise to maladministration, such delegation of responsibilities is within its rights to delegate to the appropriate level the handling and treatment of correspondence (in this case, to the Head of the department concerned) as well as a sign of good and efficient administration, all the more so since each letter received a response within the required deadline.

19. The Commission added that a copy of the replies of the Director of the [...] to letters which the complainant had addressed or copied to Commissioners was always sent to the Commissioners concerned, who were thus fully aware of the correspondence exchanged.

20. With regard to the complainant's specific request that its concerns be put on the College of Commissioners' agenda for discussion, the Commission emphasized that although as an administration it has an obligation to reply substantively to complaints received, it does not have an obligation to comply with the request of a complainant as regards the method by which it responds to it.

21. In its observations, the complainant underlined that it did not dispute that it was normal that the Commission's departments respond to correspondence on behalf of Commissioners. However, it pointed out that it was not normal in any administration that values transparency and fair treatment that a complaint regarding the failure of an individual to deal with a given matter is referred back to that same individual for consideration and reply. According to the complainant, both the Commissioner for Financial Programming and Budget, and the Director of the [...] colluded in closing its complaint without it receiving any proper consideration by the Commission.

22. In the complainant's view, the Commission's statement that the respective Commissioners were copied in the correspondence exchanged between the complainant and the Director of the [...] only exacerbated the maladministration about which it complained.

The Ombudsman's assessment

23. As a preliminary remark, the Ombudsman notes that the substance of the complaint before him is not the issue that was originally raised in the complainant’s correspondence with the Commission, i.e., the allegedly discriminatory staff travel policy of the Commission towards LFAs. Rather, the present complaint concerns the allegedly improper manner in which the Commission dealt with the complainant's request that the issues raised in its original complaint be put before the College of Commissioners for further consideration and ultimately, decision. More particularly, the complainant criticised the fact that the Commissioner for Financial Programming and Budget referred Ryanair's correspondence back to the Director of the [...] who, according to Ryanair, had already refused without any valid reason properly to address the issues raised by it in the first place. Thus, the Ombudsman's inquiry focuses on (i) whether the refusal of the Director of the [...] to ensure that the three requests made by Ryanair were put on the agenda of the Commission's weekly meetings constituted an instance of maladministration, and (ii) whether delegated to the Director of the [...] the task of replying to the complainant's correspondence was in line with principles of good administration.

24. With regard to the refusal of the Director of the [...] to ensure that the complainant's three requests were put on the agenda of the Commission's weekly meetings, the Ombudsman notes that, as its inquiry showed, through the rather lengthy correspondence that the complainant exchanged with the Director of the [...], the latter appears not only to have always provided the complainant with a timely reply, but also with adequate explanations as to why (i) the complainant's allegations that the Commission's staff travel policy was discriminatory were unfounded, and why, as a result, (ii) he could not agree with its three related requests being put before the College of Commissioners for further consideration and, ultimately, decision.

25. Furthermore, in its opinion, the Commission submitted that although it was under an obligation to reply substantively to complaints it received, it does not have an obligation to comply with the request of a complainant as regards the method by which it responds to such a complaint. The Ombudsman considers the Commission's position to be well-founded. As regards, more particularly, the agenda of weekly meetings of the College of the Commissioners, it follows from the relevant rules that it is decided primarily by the President of the Commission while Commissioners have the possibility to propose the inclusion of specific items to it. Members of the general public therefore do not have any right to demand that a specific point be added to the Commission's weekly meetings' agenda. Accordingly, the complainant's argument that the Director of the [...] refused, without any valid justification, to ensure that the issues raised in its complaint were put before the College of the Commissioners cannot be accepted.

26. Next, as regards the complainant's argument that the principles of good administration required a new independent assessment before replying to the complainant's correspondence, instead of delegation to the Director of the [...], the Ombudsman notes that according to Article 14 of the Commission's Rules of Procedure "the Commission may, provided the principle of collective responsibility is fully respected, delegate the adoption of management or administrative measures to the Directors-General and Heads of Service, acting on its behalf and subject to such restrictions and conditions as it shall impose". Moreover, according to Article 19 of the same Rules, the Commission's departments exist to assist the Commission in the performance of its tasks.

27. The Ombudsman notes that, in its observations on the Commission's opinion, the complainant did not call into question the principle of delegation of powers from the Commission to its services as far as the adoption of management and administrative measures is concerned. As the complainant itself acknowledged, it is indeed good and efficient administrative practice that certain matters, and especially the handling of correspondence with Commissioners, can be delegated to and handled by the Commission's competent departments.

28. However, the complainant expressed its dissatisfaction with the fact that the Commissioner decided to reply to its letter by delegating that task to the very person, that is the Director of the [...], who had already rejected its request that its complaint be put before the College of Commissioners for discussion.

29. The Ombudsman observes that the reply sent to the complainant should not be read and understood as being the reply of the Director of the [...], but that of the Commissioner, and ultimately of the Commission itself. As explained above, the Heads of Service of the Commission's Directorates-General, act on behalf and within the scope of instructions received by the Commission. The complainant has not argued, nor has it emerged from the present inquiry, that when the Director of the [...] replied to it using the terms "I refer to your letter of 15 August 2012 to Commissioner Lewandowski, to which I have been asked to reply", he had not actually been asked to do so, or was acting outside the instructions he had received.

30. In addition to that, the Ombudsman notes that the complainant's letter to the Commissioner of 15 August 2012 did not set out any grievances against the behaviour of the Director of the [...], but merely aimed at having its request reconsidered by the Commissioner himself. However, the fact that the Commissioner decided to ask the Director of the [...] to reply to this letter shows that the Commissioner agreed with the position previously adopted by the latter, i.e., that there was no need to submit the issue raised by the complainant to the College of Commissioners.

31. A different approach would obviously have had to be taken if the complainant had wished to complain to the Commissioner about the behaviour of the Director of the [...]. In particular, if the complainant believed that in this particular case, the Director of the [...] found himself in a situation of possible conflict of interest or was not fully objective or independent, any such allegations would have had to be examined by someone other than the person complained about. However, the complainant did not make any such allegations concerning the Director of the [...]. The mere fact that the Director of the [...], in the exercise of his functions, had already rejected the complainant's previous request does not imply that, when asked by his hierarchical supervisor to reply on his behalf to the same request, he put himself in a situation of an actual or even potential conflict of interest. Otherwise, a citizen, each time an official rejects a request made by him or her, could turn to that official's hierarchical supervisor and simply ask that the same matter be addressed by another official.

32. Therefore, the Ombudsman does not see any reason why the Commissioner should have asked for a new and independent assessment of the complainant's request, rather than simply asking the Director of the [...] to reply on his behalf.

33. Furthermore, the Ombudsman finds it also worth pointing out that the above-mentioned reply given by the Director of [...] was copied not only to Commissioner Lewandowski, but also to Vice-President Šefčovič, to Vice-President Kallas, and to the President of the European Court of Auditors. Thus, far from colluding in shutting down Ryanair's complaint, the Director of the [...] appears to have taken appropriate steps to ensure in a transparent and open manner that the complainant's correspondence with the Commission was also brought to the attention of two more Commissioners as well as the President of the Court of Auditors, i.e., the body which is entrusted with scrutinising the Commission's management of the EU budget (including the use of funds for the Commission's staff travel expenses).

34. In light of the above considerations, the Ombudsman considers that the allegation that the Commission failed to handle properly its correspondence is unfounded. Likewise, the related claim that its complaint be placed before the College of Commissioners cannot be accepted either.

B. Conclusions

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

There has been no instance of maladministration in relation to the present complaint.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 September 2013

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* Where necessary the present decision has been redacted for the purposes of data protection rules.

[1] http://ec.europa.eu/transparency/civil_society/code/_docs/code_en.pdf

[2] OJ 2000 L 308, p. 26.