Background to the complaint

1. The complainant is a Danish farmer who owns agricultural land in Latvia. He wrote to the European Commission. He urged it to intervene against Latvia with respect to a law adopted in May 2017 (‘the Latvian law’) restricting the acquisition of agricultural land in Latvia to individuals with a B2-level language proficiency in Latvian. The complainant contented that the Latvian law is a breach of EU law, notably the freedom of establishment^[1], the free movement of capital between Member States^[2] and the freedom to conduct business^[3].

2. In December 2018, the Commission replied that it had already launched an infringement procedure (NIF 2015/2029) against Latvia concerning its restrictions on acquisition of agricultural land, and that the complainant’s complaint would therefore be treated under this infringement procedure.

3. Not satisfied with the Commission’s reply, the complainant turned to the Ombudsman in January 2019. He claimed that the Commission had remained passive with regard to the infringement case under which his complaint was being treated.

The inquiry

4. The Ombudsman opened an inquiry into whether the European Commission has taken sufficient action with regard to the infringement procedure against Latvia concerning a law restricting the acquisition of agricultural land to proficient speakers of Latvian.

5. In the course of the inquiry, the Ombudsman received the reply of the Commission and, subsequently, the comments of the complainant in response to the Commission's reply.

Arguments presented to the Ombudsman

6. The Commission explained that it had already engaged in both formal and informal steps with regard to the infringement case at issue. It described all these steps in detail. The Commission opened an infringement procedure in 2015 in relation to the then Latvian law on purchase of agricultural land. In May 2017, Latvia replaced previous restrictions on the acquisition of agricultural land by the Latvian language requirement. This requirement appears to be still a constraint to the free movement of capital. The Commission stated however that it needs to carry out a comprehensive assessment of the justification provided by Latvia and proportionality of that restriction. Moreover, owing to the high sensitivity of questions concerning farmland in Latvian politics, the Commission argued that for the time being, it is more appropriate to continue the discussion with the Latvian government outside the formal infringement procedure.

7. The Commission also pointed out that in accordance with relevant case law, it enjoys wide discretionary power in deciding how to deal with an infringement case, which excludes the right for individuals to require the Commission to adopt a specific position in the infringement case^[4]. Finally, the Commission expressed its commitment to informing complainants about the follow-up to their complaints, which it considered to have observed in this case by informing the complainant on the state of play of his complaint on several occasions.

8. The complainant argued that none of the actions taken by the Commission with regard to the infringement procedure against Latvia had been efficient. Moreover, the complainant claimed that since the Commission has already recognised that Latvia is in breach of EU law, it should not limit its actions to informal meetings and workshops but refer the matter to the European Court of Justice.

The Ombudsman's assessment

9. The Ombudsman takes the view that the Commission provided a satisfactory reply to the complaint.

10. It referred in detail to all (formal^[5] and not formal^[6]) steps taken in relation to the infringement case under which the complainant’s complaint was being treated. In this way, it demonstrated that it was not passive when dealing with the case.

11. The Commission also explained why at this stage the informal steps are better placed to resolve the proficiency in Latvian language requirement than formal infringement steps^[7]. In this respect, the Ombudsman points to the Commission’s administrative discretion to decide which steps are more appropriate. As rightly stated by the Commission, it follows from settled case law of the Court of Justice of the European Union^[8] that the Commission enjoys wide discretion when assessing complaints submitted by citizens and it is not obliged to commence formal infringement proceedings in every instance where a Member State has breached EU law. Citizens are therefore not entitled to require the Commission to adopt a particular position with regard to the substance of their infringement complaints.

12. Finally, the Ombudsman notes that the Commission continuously informed the complainant of the state of play of his complaint^[9].

13. Thus, the Commission acted appropriately and in line with the Communication “EU law: Better results through better application”^[10].

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the Commission in this case.

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

 

Marta Hirsch-Ziembińska

Head of Inquiries and ICT - Unit 1

Strasbourg, 26/04/2019

 

[1] Article 49 of the Treaty of the Functioning of the European Union (TFEU)

[2] Articles 63-66 of the TFEU

[3] Article 16 of the Charter of Fundamental Rights of the European Union

[4] Case T-571/93 Lefebvre frères et soeurs and Others v Commission [1995] ECR II-2379, paragraph 60

[5] On 30 April 2015, the Commission sent a letter of formal notice to Latvia. As Latvia did not dispel the concerns raised, the Commission sent a reasoned opinion in May 2016. On 18 May 2017, Latvia abolished the restrictions challenged in the infringement procedure. At the same time, it introduced new restrictions for acquisition of agricultural land, which included the requirement for a potential buyer to be a proficient speaker of Latvian. The Commission could send to Latvia a complementary letter of formal notice.

[6] The Commission organised bilateral and multilateral meetings with Latvia and other Member States against whom infringement procedures on the same issue had been launched (Bulgaria, Hungary, Lithuania and Slovakia). This included several informal contacts with the Latvian AGRI attaché and a workshop held on 28 March 2017, with the aim to help the Member States in question to find a solution that could address their policy objectives in a way that would be compatible with EU law. Moreover, on 12 October 2017, the Commission adopted an Interpretative Communication on the Acquisition of Farmland and EU law, which provides guidance to Member States on how to protect agricultural land from threats such as excessive price speculation and ownership concentration and how to regulate their farmland markets in compliance with EU law. Following adoption of the Communication, the Commission services encouraged Member States, in bilateral and multilateral contacts, to assess their national laws in light of the Communication and to take the necessary steps to bring them in line with EU laws as soon as possible. This included a workshop organised on 14 November 2017.

Following the adoption of the new law in May 2017, providing for the Latvian language requirement, the Commission services also continue to assess the laws of the other Member States concerned by similar infringement procedures and to monitor legislative developments in those Member States, in order to find the most appropriate follow-up to all the pending infringements in a coherent manner.

[7] A formal infringement procedure follows a number of steps laid out in the EU treaties, each ending with a formal decision:

1. The Commission sends a letter of formal notice requesting further information to the country concerned, which must send a detailed reply within a specific period, usually two months.

2. If the Commission concludes that the country is failing to fulfil its obligations under EU law, it may send a reasoned opinion: a formal request to comply with EU law. It explains why the Commission considers that the country is breaching EU law. It also requests that the country inform the Commission of the measures taken, within a specified period, usually two months.

3. If the country still does not comply, the Commission may decide to refer the matter to the Court of Justice. Most cases are settled before being referred to the court.

4. If an EU country fails to communicate measures that implement the provisions of a directive in time, the Commission may ask the court to impose penalties.

5. If the court finds that a country has breached EU law, the national authorities must take action to comply with the Court judgment.

[8] See footnote 5.

[9] The Commission replied to the complainant on 11 January 2018, on 9 April 2018, on 7 August 2018 and on 19 December 2018.

[10] Communication from the Commission “EU law: Better results through better application”, OJ C 18, 19.1.2017, p. 18-20.