Strasbourg, 31 May 2006

Dear Mr X,

On 14 April 2004, I received your complaint against the European Commission concerning the Commission's handling of the complaint you had lodged with it on 20 November 2001.

On 22 April 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 4 August 2004 and I forwarded it to you with an invitation to make observations, if you so wished, by 30 September 2004. No observations were received from you by that date. On 28 October 2004, I received a letter from you in which you noted that you had received no reply to the letter that you had sent to me on 23 September 2004, asking for an extension of the deadline to submit your observations.

On 15 November 2004, I therefore sent you a letter informing you that, having checked in my Office's database, it appeared that your letter of 23 September 2004 had not in fact been received. On 15 December 2004, I received your letter in which you acknowledged receipt of my letter of 15 November 2004 together with your observations on the Commission's opinion.

In the light of these observations, it appeared that it was necessary to conduct further inquiries. On 2 March 2005, I therefore wrote to the Commission, asking the institution to provide additional information on the case. On 8 June 2005, I received the Commission's reply, which I forwarded to you on 16 June 2005 with an invitation to make observations, if you so wished, by the end of July 2005. No observations were received from you.

On 14 September 2005, I addressed a draft recommendation to the Commission and asked the institution to provide me with its detailed opinion on the draft recommendation by the end of November 2005. On 20 September 2005, I sent you, for your information, a Portuguese translation of the draft recommendation.

On 12 December 2005, the Commission informed me that its reply would be delayed. On 10 January 2006, the institution sent me a further letter informing me that its reply to my draft recommendation would be further delayed due to difficulties encountered during the internal consultation procedure. On 10 February 2006, I received a translation into Portuguese of the Commission's detailed opinion which I forwarded to you on 14 February 2006 with an invitation to submit observations by 15 March 2006. I received no observations from you by that date.

I am writing now to inform you about the results of the inquiries that have been made.

THE COMPLAINT

On 20 November 2001, the complainant made a complaint to the Directorate-General for Competition of the European Commission ("DG Competition"), concerning state aids granted by the regional Government of the Azores islands to Portuguese maritime transport companies.

On 4 December 2001, DG Competition informed the complainant that it was not competent to deal with his case and that this case would be dealt with by the Directorate-General for Energy and Transport of the European Commission ("DG Energy and Transport").

On 3 March 2003, the complainant wrote a letter to DG Energy and Transport and asked to be informed about the situation of his case. According to the complainant, the only information he received was a letter of 22 May 2003, by which DG Energy and Transport informed him that the case was still under investigation by its services.

In his complaint to the Ombudsman, the complainant alleged that the Commission did not properly deal with the case he had lodged with the institution on 20 November 2001.

THE INQUIRY

The European Commission's opinion

In its opinion on the complaint, the Commission summarised the relevant facts as follows.

On 20 November 2001, the complainant complained to DG Competition concerning allegedly illegal state aids granted to two Portuguese maritime companies which operate within the Azores archipelago.

In his complaint, the complainant stated that, in 2001, the regional government of the Azores granted state aids to a maritime company (Situr Jorgense) to compensate it for the interest due on a banking loan of EUR 1.22 million required by the company to purchase the catamaran Expresso de Triãngulo. The relevant grant had been the object of resolution No 177/2001 published in the Official Journal of the Autonomous Regions of Azores on 2 August 2001. The complainant further alleged that the government of the Azores had granted, on the basis of a decision of 30 November 2000 taken by the Regional Secretariat of Economy, an illegal aid amounting to EUR 461 000 in favour of the company Açorline.

On 2 February 2003, the complainant wrote to DG Energy and Transport acknowledging receipt of the letter in which DG Competition had informed him that his complaint had been transferred to DG Energy and Transport. By letter of 22 May 2003, DG Energy and Transport informed the complainant that it was dealing with both aspects of the complainant's case and that he would be informed of any future development in the case.

On 13 May 2004, DG Energy and Transport's services sent a letter to the Portuguese authorities asking for information concerning the facts alleged by the complainant. In light of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty(1), ("Regulation 659/1999") the Commission could not decide on a complaint before having received the observations of the Member State concerned.

The Commission regretted the delay which had occurred in dealing with the complainant's case and added that, in accordance with Article 20 of Regulation 659/1999, it would inform the complainant in due time of any development in his case.

The complainant's observations

In his observations on the Commission's opinion, the complainant stressed that he had no further comments to make as regards the information given by the Commission. However, he wished to reaffirm his allegation that the Commission had not properly dealt with the complaint he had lodged with the institution on 20 November 2001.

Further inquiries
Request for further information

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. On 2 March 2005, the Ombudsman therefore wrote to the Commission. In his letter, he asked the institution (i) to explain the reasons why it had taken almost two and a half years before it decided to ask the Portuguese authorities to provide information on the case; and (ii) to inform him whether, in the meantime, it had received the information which it had requested from the Portuguese authorities on 13 May 2004 and how it proposed to proceed in this matter.

The Commission's reply

In its reply, the Commission stated that, as regards the first question put by the Ombudsman, it had received numerous complaints in the field of state aids, namely, related to maritime transport. The Commission therefore had had to establish priorities for handling these complaints on the basis of criteria such as the magnitude of the allegations, the clarity of the submissions and the importance of the potential damage to the complainant. As regards the present case, it had initially been necessary to translate the documents submitted by the complainant in February 2003. Subsequently a careful analysis of these documents had been required before an investigation of the case could be started. After this examination, the Commission's services had decided to send an information request to the Portuguese authorities. This request had been sent to the Portuguese authorities on 13 May 2004. The Commission regretted the delay that had affected the treatment of the file in question.

As regards the second question put by the Ombudsman, the Commission stated that, by letter of 6 July 2004, the Portuguese authorities had replied to the request for additional information made by its services. The content of the reply and the voluminous annexes were not fully translated into a working language of the Commission until December 2004. The Commission's services were still analysing the relevant answer and thus did not have a final view on the complainant's case.

The Commission finally concluded that it would inform the complainant in due course of the outcome of the ongoing investigation.

The complainant's observations

No observations were received by the complainant on the Commission's reply.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 14 September 2005, the Ombudsman addressed, in accordance with Article 3(6) of the Statute of the European Ombudsman, the following draft recommendation to the Commission:

The European Commission should deal with the complainant's complaint as rapidly and as diligently as possible.

This draft recommendation was based on the following considerations:

1. Principles of good administration require that an institution should deal with complaints made by citizens in a reasonable period.
   From the information available to him, the Ombudsman notes that nearly two and a half years passed between the lodging of the complaint and the Commission's decision to request information from the Portuguese authorities. In its reply to the Ombudsman's request for further information, the Commission submitted that the length of time taken by its services had been due to the need to translate and carefully analyse the submissions made by the complainant.
   The Ombudsman considers that, when dealing with complaints, the institution does indeed need to act diligently and therefore has to examine the complainant's submissions very carefully. However, even if the time that is needed to do so is duly taken into account, two and a half years cannot be considered a reasonable period for a decision on whether or not to start an investigation. The Ombudsman therefore takes the view that the Commission has not given any convincing explanation to justify the delay which occurred in the handling of the complainant's case. This constitutes an instance of maladministration.
2. The Ombudsman takes note of the fact that, first, in its opinion and, second, in its reply to his request for further information, the Commission regretted the delay that had occurred. It should be noted, however, that it has taken the Commission another five months to translate the documents submitted by the Portuguese authorities on 6 July 2004. Furthermore, it emerges from the Commission's reply to the Ombudsman's request for further information, which was sent to him in June 2005, that the Commission still did not have a final view on the complainant's case.
3. In these circumstances, the Ombudsman considers it necessary to address the draft recommendation to the Commission that it should deal with the complainant's complaint as rapidly and as diligently as possible.

The Commission's detailed opinion

In its detailed opinion, the Commission informed the Ombudsman that, in accordance with his draft recommendation, it had definitively dealt with the complainant's case and that it had informed him of the outcome of the inquiry which it had carried out by letter of 11 January 2006(2).

The complainant has submitted no observations on the Commission's detailed opinion, which was forwarded to him on 14 February 2006.

THE DECISION

1 The Commission's handling of the complainant's case

1.1 On 20 November 2001, the complainant made a complaint to the Commission concerning state aids granted by the regional Government of the Azores islands to Portuguese maritime transport companies.

In his complaint to the Ombudsman, the complainant alleged that the Commission had not properly dealt with the case he had lodged with the institution on 20 November 2001.

1.2 In its opinion sent to the Ombudsman on 4 August 2004, the Commission regretted the delay which had occurred in dealing with the complainant's case and stated that, in accordance with Article 20 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty(3), it would inform the complainant in due time of any development in his case. The Commission further noted that on 13 May 2004, it had sent a letter to the Portuguese authorities asking for information concerning the facts alleged by the complainant.

1.3 In his observations, the complainant maintained his allegation that the Commission had not properly dealt with the case he had lodged with the institution on 20 November 2001.

1.4 On 2 March 2005, the Ombudsman wrote to the Commission and asked it (i) to explain the reasons why it had taken almost two and a half years before it decided to ask the Portuguese authorities to provide information on the case and (ii) to inform him whether, in the meantime, it had received the information requested from the Portuguese authorities on 13 May 2004 and how it proposed to proceed in this matter.

1.5 In its reply, the Commission stated that, as regards the first question, it had received numerous complaints in the field of state aids, namely, related to maritime transport. The Commission therefore had had to establish priorities for handling these complaints on the basis of criteria such as the magnitude of the allegations, the clarity of the submissions and the importance of the potential damage to the complainant. As regards the complainant's case, it had been initially necessary to translate the documents submitted by the complainant in February 2003. Subsequently, a careful analysis of these documents had been required before an investigation of the case could be started. After this examination, the Commission's services had decided to send, on 13 May 2004, an information request to the Portuguese authorities.

As regards the second question put by the Ombudsman, the Commission stated that by letter of 6 July 2004, the Portuguese authorities had replied to the request for additional information made by its services. The contents of the reply and the voluminous annexes were not fully translated into a working language of the Commission until December 2004. The Commission services were still analysing the relevant answer and thus they did not yet have a final view on the complainant's case. The complainant has submitted no observations.

1.6 Principles of good administration require that an institution should deal with complaints made by citizens in a reasonable period.

The Ombudsman concluded that the fact that when it replied to his request for further information in June 2005 the Commission still did not have a final view on the complainant's case, lodged in November 2001, constituted maladministration. On 14 September 2005, he therefore addressed a draft recommendation to the Commission according to which the latter should deal with the complainant's complaint as rapidly and as diligently as possible.

1.7 In its detailed opinion, the Commission stated that it had definitively dealt with the complainant's case and that it had informed him, by letter of 11 January 2006, of the outcome of the inquiry carried out. The complainant has submitted no observations.

2 Conclusion

2.1 On the basis of his inquiries, the Ombudsman concludes that the Commission has accepted the Ombudsman's draft recommendation and that the measures taken by the Commission to implement it are satisfactory.

2.2 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) OJ 1999 L 83, p. 1.

(2) A copy of the letter sent to the complainant was forwarded by the Commission to the Ombudsman as an enclosure to the institution's detailed opinion. It emerges from that letter that the Commission decided to close the complainant's case on the grounds that it considered that the Portuguese authorities had not infringed Community law.

(3) OJ 1999 L 83, p. 1.