Dear Mr M.,
On 2 June 1998, you submitted a complaint against the European Commission which concerned Commission Regulation (EC) No. 1001/98 of 13 May 1998 amending Regulation (EEC) No. 556/93 laying down detailed rules on the application of the additional levy on milk and milk products.
On 24 June 1998, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 23 September 1998 and I forwarded this opinion to you on 12 October 1998 with an invitation to make observations, if you so wished. I did not receive any observations from you.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

Regulation No. 1001/98 was adopted on 13 May 1998 and published in the Official Journal on 14 May 1998. Pursuant to its Article 2, it entered into force on the seventh day following its publication in the Official Journal. The regulation provides for certain penalties if purchasers (i.e. the dairies to whom the milk is delivered by producers) do not forward to the national competent authorities information on deliveries by 14 May each year.
The complainant argues that the institutions of the EU should not adopt a regulation on the day before it is to be applied and publish it on the day when it is to be applied. He is of the opinion that compliance with the regulation was very much put at risk in view of the fact that the national authority in Italy had not yet made available the relevant instructions and forms in the German language.

THE INQUIRY

The Commission's opinion
The Commission points out that the obligation for purchasers to provide the relevant information to the national authorities before 15 May each year was established by Article 3 (2) first subparagraph of Regulation No. 536/93 (which was not modified by Regulation No. 1001/98). Article 3 (2) second subparagraph of Regulation No. 536/93 provided for certain penalties in case that this information was not supplied in time. The penalty to be paid was the amount of levy due for a 0.1 % overrun of the reference quantity. It could not exceed ECU 20 000, however.
The penalty was the same, regardless of whether the purchaser was one day late in providing the information or three months. This was perceived to be inappropriate. Article 3 (2) second subparagraph was therefore modified by Regulation No. 1001/98. According to the Commission, the new version of this subparagraph provides for the same penalty of an amount equal to the levy due for a 0.1 % overrun on quantities of milk delivered as the old version of this subparagraph, provided that the information is supplied after 14 May but before 1 June. Increased penalties are however laid down for cases where the communication is made after 31 May but before 16 June, after 15 June but before 1 July, and after 30 June. In addition, minimum amounts of penalty are now fixed for all these cases. According to Article 2 of Regulation No. 1001/98 these minimum amounts are however only applicable from 1999.
On the basis of the above, the Commission draws the following conclusions:
1 The deadline for the transmission of the relevant information (14 May) was not changed by Regulation No. 1001/98.
2 For communications made between 15 May and 31 May the penalty applicable was exactly the same as under the original version of Regulation No. 536/93, with the sole exception that a minimum penalty was fixed.
3 Article 2 of Regulation No. 1001/98 expressly provided that the minimum penalties did not apply until 1999.
4 A purchaser was therefore in no different a position as a result of the modifications unless he had still failed to transmit the communication by 31 May 1998.
As to the difficulty to meet the deadline of 14 May as a result of the lack of instructions and forms in the German language, the Commission observes that the obligation of the purchasers to provide the relevant information was established by Regulation No. 536/93 and has been applicable since 1 April 1993. Purchasers in all member states must therefore be fully aware of this deadline. In the Commission's view, there is no possible connection between the availability of such instructions and forms in the German language and the provisions of Regulation No. 1001/98, as the instructions and forms are to be provided by the Italian authorities.
The Commission finally notes that no previous administrative approaches were made to it by the complainant.

THE DECISION

1. Admissibility
In its opinion, the Commission draws attention to the fact that no prior administrative approaches were made to it by the complainant. It has to be pointed out, however, that Article 2 (4) of the Statute of the Ombudsman(1) requires that a complaint be preceded by the "appropriate administrative approaches". The Ombudsman considers that the present case concerns a claim brought in the public interest (actio popularis) where such prior administrative approaches are not necessarily appropriate.
2. Date of applicability of Regulation No. 1001/98
2.1 The complainant alleges that Regulation No. 1001/98 was adopted on the day before it was to be applied and published on the day when it was to be applied (14 May). It would therefore have been difficult for purchasers (i.e. the dairies to whom the milk is delivered by producers) to comply with their obligation to forward, by 14 May, to the national competent authorities information on deliveries. The Commission replies that the relevant date had already been fixed by Regulation No. 536/93 and that, notwithstanding the modifications in relation to penalties for non-compliance with this obligation that were introduced by Regulation No. 1001/98, a purchaser was in no different position than before, unless he had still failed to transmit the communication by 31 May 1998.
2.2 The Commission correctly points out that the obligation of purchasers to supply the relevant information to the national authorities by 14 May each year was already introduced by Regulation No. 536/93 in 1993. Regulation No. 1001/98 only deals with the penalties which accrue in cases where this deadline is not respected. It has therefore no impact on the ability of purchasers to comply with the obligation to provide information imposed on them by Regulation No. 536/93, and the fact that it was published on a 14 May is therefore of no importance in this respect.
2.3 Although it does not expressly address this issue, the complaint could also be understood as querying the applicability in time of the new penalties established by Regulation No. 1001/98. The Commission at least appears to have interpreted the complaint in such a way since it compared the penalties fixed by the two respective regulations and discussed the question as to when the new sanctions would become applicable. In this respect, the Commission correctly pointed out that the new minimum penalties provided for by Regulation No. 1001/98 would (pursuant to Article 2 of this regulation) only become applicable in 1999.
3. Lack of instructions and forms in German
3.1 The complainant relies on the fact that the Italian authority in charge of matters relating to milk quotas had not made the necessary instructions and forms available in the German language before 14 May 1998. The Commission retorts that Regulation No. 1001/98 has nothing to do with the deadline of 14 May which had already been fixed by Regulation No. 536/93 and that the instructions and forms were in any event to be provided by the Italian authorities.
3.2 As the Commission points out, the obligation for purchasers to provide the relevant information was already set by Regulation No. 536/93. Purchasers thus had to be aware of this obligation since 1993 at least. The alleged lack of instructions and forms in the German language does not affect this conclusion. In any event, the responsibility to provide such instructions and forms would appear to rest with the Italian authorities. The alleged failure of the Italian authorities could thus not be examined by the Ombudsman whose mission consists of investigating possible instances of maladministration on the part of Community institutions or bodies.
4. Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission.
The President of the Commission will also be informed of this decision.
Yours sincerely,
Jacob Söderman

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(1) Decision no. 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the Ombudsman's duties