# Decision of the European Ombudsman on complaint 295/2004/JMA against the European Commission
- Autore: Mediatore Europeo
- Data: 2005-04-07T00:00+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/it/decision/it/2083)
---
> The complainant lodged a formal complaint with the Commission in January 2003, against the lack of food safety in Spain, and pointed to the responsibility on this matter of a number of public authorities and private enterprises. According to the complainant, this situation was in breach of existing EU legislation on this matter, in particular the provisions of Regulation 178/2002 laying down the general principles and requirements of food law. In November 2003, the complainant was informed of the Commission's intention to close the complaint. In his complaint to the Ombudsman, the complainant alleged that the Commission's decision to close his formal complaint was arbitrary. He complained about the long delay in the handling of his case; the lack of information received; and the institution's flawed legal interpretation of the applicable EU legislation.
> 
> The Commission argued that the assessment of the complaint had been carried out within the normal time for the review of complaints and furthermore that the information included with the complaint did not allow its services to clearly identify its object. As regards the alleged failure by the Spanish authorities to inform consumers of existing risks, the Commission noted that the provisions of the Regulation concerning information to consumers were not applicable, since Member States enjoy a transitional period until 1 January 2007.
> 
> The Ombudsman noted that the procedures to be followed by the Commission in its handling of complaints are set out in its Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law[\[1\]](/#_ftn1 ""). He therefore assessed whether the specific allegations made by the complainant had any foundation in the light of the provisions of that Communication.
> 
> As regards the time taken to handle the case, the Ombudsman noted that the complainant submitted his complaint to the Commission in January 2003 and that, having completed its inquiry, the Commission informed him in November 2003 of its proposal to close the case. Accordingly, the Ombudsman concluded that the Commission had completed its examination of the complaint within the one-year rule set out in its own Communication.
> 
> In his decision the Ombudsman also assessed whether or not the complainant had received sufficient information. The Ombudsman concluded that the complainant had been informed in writing through several communications of all the steps taken by the Commission in relation to his complaint, in accordance with the criteria set out in its own Communication.
> 
> As regards the Commission's interpretation of the pertinent EU rules in this case, the Ombudsman carefully reviewed the general principles and requirements governing the Union's food law laid down in Regulation (EC) no 178/2002 and concluded that the Commission's reliance on Article 4 (3) of the Regulation which requires that *"\[e\]xisting food law principles and procedures shall be adapted as soon as possible and by 1 January 2007 at the latest \[...\]"* appeared to be reasonable.
> 
> The Ombudsman therefore took the view that the Commission acted within its legal authority when it decided to close the case after having considered that, on the basis of the information contained in the complaint, there were no grounds to initiate infringement proceedings against Spain.  
> 
> *** ** * ** ***
> 
> [\[1\]](/#_ftnref1 "") OJ C 244 of 1.10.2002, p. 5.
> 
Strasbourg, 7 April 2005   

Dear Mr L.,

On 19 February 2004, you lodged a complaint with the European Ombudsman
against the European Commission. Your complaint concerned the Commission's
decision to close a formal complaint you had lodged with that institution,
in which you alleged that the Spanish authorities were not complying with
the existing EC Directives on health safety.

On 15 December 2003, you had sent a previous complaint to the Ombudsman
concerning the same subject matter (reference 168/2004/JMA), which was
declared inadmissible on 13 February 2004.

On 15 March 2004, I forwarded your new complaint to the President of
the European Commission. The Commission sent its opinion on 23 June 2004,
and I forwarded it to you with an invitation to make observations. You
sent me your observations on 3 and 25 July, 29 August 2004, and 27 January
2005.

I am writing now to let you know the result of the inquiries that have
been made. I apologise for the length of time it has taken to deal with
your complaint.

THE COMPLAINT
-------------

On 15 December 2003, the complainant had first lodged a complaint with
the Ombudsman against the Commission. The complaint was registered under
file number 168/2004/JMA.

The facts of that case were, in summary, as follows:

On 17 January 2003, the complainant lodged a formal complaint with the
Commission in which he generally complained against the lack of food safety
in Spain, and pointed to the responsibility on this matter of a number
of public authorities, private enterprises and associations. He stated
that, as a result of the situation, systemic violations of the public
right to health were taking place in Spain. He also explained that the
existence of cartels in the food industry and their monopolistic practices
were detrimental to the interests of consumers. He referred to the existing
EU legislation on this matter, in particular to the provisions of Regulation
178/2002 laying down the general principles and requirements of food law
which, in his view, were blatantly ignored in Spain.

The complainant indicated that, as an owner of a meat-processing company,
he has been unable to trace the origin and health conditions of his supplies.
The complaint included a number of press clipping concerning food safety
in Spain, as well as copies of the complainant's correspondence with various
national authorities.

As regards his complaint to the Commission, the complainant argued that
the institution had not properly investigated it. His complaint to the
Ombudsman, however, did not include any information on his exchanges with
the Commission, or the representations made by the Commission services.

In view of the available information, the Ombudsman considered that
the object of the complaint could not be identified, as required by Article
2 (3) of his Statute. He therefore declared the complaint inadmissible
on 13 February 2004.

On 19 February 2004, the complainant forwarded additional information,
including some of the correspondence he had had with the Commission services
regarding his formal complaint. In view of this new evidence, the Ombudsman
decided to register the complainant's letter as a new complaint (reference
295/2004/JMA) and to start a new inquiry.

The complainant also enclosed a copy of his original complaint to the
Commission, which had been filled out on a standard Commission complaint
form. In section 7 of the complaint regarding the organisation against
which the complaint was addressed, the complainant referred to the Spanish
administration, the regional authorities, business organisations, in particular
the food industry, the Institute for the Defence of Consumers, as well
as television and national press. The complainant alleged in section 8
that current practices by both private and public entities would lead
to the collapse of the regulatory scheme, as a result of the lack of information
given to consumers on food safety and on "traceability"[(1)](#(1)){#Footnote1},
in breach of Regulation 178/2002/EEC \[the Regulation, henceforth\]. The
complaint included nine enclosures concerning essays on food safety and
traceability; speeches given by the complainant; announcement of a seminar
being cancelled; documents from the Spanish Ministry of Agriculture on
the slaughter of one animal; the development of a traceability system;
examples of slaughter practices on a pig; examples of cheese production;
a plan to develop a website; and a practical example of the situation
of a herd of cows.

The complainant also included a letter from the Commission services dated
17 November 2003, informing him of their intention to propose that the
Commission close the complaint. The grounds for this decision were that
some of the allegations contained in the complaint did not concern the
public authorities of the Member State, and therefore the Commission was
not competent under Article 226 of the EC Treaty to deal with the matter.
As regards those allegations involving the Spanish authorities, the Commission
stated that the relevant EU rules in the Regulation would not enter into
force until 1 January 2007.

The complainant took the view that the manner in which the Commission
had handled the complaint was inadequate because of the long delay in
dealing with the case (ten months), the lack of information which he had
received; and its legal interpretation of the Regulation. He noted that
the Regulation also contains obligations for private firms (Articles 17,
18 and 19), and that some of its obligations were to enter into force
at an earlier date, namely on 1 January 2005 (Article 18).

In the light of the information submitted in the complaint, the Ombudsman
opened an inquiry against the Commission. The allegation on which the
Ombudsman asked the Commission to submit an opinion was the following:

The complainant alleges that the Commission's decision to close the complaint
he had lodged with that institution was arbitrary.

THE INQUIRY
-----------

**The Commission's opinion**   

In its opinion, the Commission first described the factual and legal
aspects of the case. It explained that, on 17 January 2003, the complainant
submitted a formal complaint to the Commission in which he denounced the
violation of the EU rules on food safety, in particular of Regulation
178/20002/EC, as a result of a "systematic obstruction and the refusal
to give access to information to the detriment of consumers". The
complaint was registered under file number 2003/4208.

The Commission explained that, as a result of the large number of documents
enclosed with the complaint, which often had to be translated, the assessment
of the situation took a certain time, even though it was carried out within
the normal time for the review of complaints, and therefore within the
limits of good administration.

As regards the aspects of the complaint concerning private firms, the
Commission concluded that it had no power to intervene under Article 226
of the EC Treaty. In connection to actions undertaken by public authorities,
the Commission explained that the information included with the complaint
did not allow its services to clearly identify its object, in particular
the allegations against the Spanish authorities. The Commission pointed
out, however, that pursuant to Article 4 (3) of the Regulation concerning
the communication of risks and information to consumers, Member States
enjoy a transitional period to amend their national legislation until
1 January 2007.

Having reviewed the situation and on the basis of the above arguments,
the Commission services proposed that the case be closed. The complainant
was duly informed by letter of 17 November 2003, which also invited him
to submit observations before the Commission's adoption of its final decision.
In the absence of any comments from the complainant, the Commission closed
the case on 30 March 2004.

The Commission considered that its services had acted properly and that,
on the basis of the information contained in the complaint, there were
no grounds to initiate infringement proceedings against Spain.
**The complainant's observations**   

The complainant repeated the allegations made in the complaint. He stressed
that the Commission's interpretation of Article 4 (3) of the Regulation
was overly lax. He considered that these provisions could be implemented
in a fairly short period of time, and explained that the technical means
to trace the existence of dangerous substances in food could be easily
developed. In the complainant's view, the Commission chose to ignore Article
65 of the Regulation which establishes that Articles 11, 12 and 14 to
20 should apply from 1 January 2005. The complainant also noted that the
Regulation imposes a number of obligations on food and feed business operators.

The complainant also described in detail the failure of most national
authorities involved in regulation and control of food safety to reply
to his requests.

THE DECISION
------------

**1 The Commission's decision to close a complaint**   

1.1 The complainant lodged a formal complaint with the Commission on
17 January 2003, against the lack of food safety in Spain, and pointed
to the responsibility on this matter of a number of public authorities,
private enterprises and associations. According to the complainant, this
situation was in breach of existing EU legislation on this matter, in
particular the provisions of Regulation 178/2002 laying down the general
principles and requirements of food law. On 17 November 2003, the complainant
was informed of the Commission's intention to close the complaint.

In his complaint to the Ombudsman, the complainant alleges that the Commission's
decision to close his formal complaint was arbitrary, because of the long
delay with which the case was dealt; the lack of information received;
and the institution's flawed legal interpretation of the applicable EU
legislation.

1.2 The Commission argues that as a result of the large number of documents
enclosed with the complaint, which often had to be translated, the assessment
of the situation took a certain time, even though it was carried out within
the normal time for the review of complaints. The Commission also argues
that, insofar as the complaint was against public authorities, the information
included with the complaint did not allow its services to clearly identify
its object. The Commission adds, however, that as regards those allegations
involving the Spanish authorities concerning its failure to inform consumers
of existing risks, Member States enjoy a transitional period to amend
their national legislation until 1 January 2007.

Finally, the Commission explains that its services proposed the closure
of the case after having considered that, on the basis of the information
contained in the complaint, there were no grounds to initiate infringement
proceedings against Spain. The complainant was informed of this proposal
by letter of 17 November 2003 and, in the absence of any further information,
the Commission closed the case on 30 March 2004.

1.3 The Ombudsman notes that, in its role of "Guardian of the Treaty"
under Article 211 of the EC Treaty, the Commission has to ensure that
Community law is applied.

In carrying out its duty, the Commission investigates possible infringements
of Community law which come to its attention largely as a result of citizens'
complaints. If as a result of its inquiry, the Commission considers that
a Member State has failed to fulfil its obligations under the Treaty,
Article 226 gives it the power to start infringement proceedings against
the responsible Member State and, eventually, to bring the matter before
the European Court of Justice.

1.4 The procedures to be followed by the Commission in its handling of
complaints are set out in a Communication to the European Parliament and
the European Ombudsman on relations with the complainant in respect of
infringements of Community law[(2)](#(2)){#Footnote2}.

The Ombudsman will therefore assess whether the specific allegations
made by the complainant have any foundation in the light of the provisions
of that Communication.
*++Delay to deal with the complaint++*   

1.5 As regards the time limit for investigating complaints, the Communication
establishes in Article 8 of its Annex the following:
> *"As a general rule, Commission departments will investigate
> complaints with a view to arriving at a decision to issue a formal notice
> or to close the case within not more than one year from the date of
> the registration of the complaint by the Secretary-General.*
>
> *Where this time limit is exceeded, the Commission department responsible
> for the case will inform the complainant in writing."*

1.6 From the available information, it appears that the complainant submitted
his complaint to the Commission on 17 January 2003 and that, having completed
its inquiry, the Commission informed him on 17 November 2003 of its proposal
to close the case. Accordingly, the Commission completed its examination
of the complaint within the one-year rule set out in its own Communication.

In the absence of any evidence which may lead one to believe that the
Commission unduly deferred action on the case, the Ombudsman therefore
concludes that there appears to be no maladministration as regards this
aspect of the case.
*++Lack of information++*   

1.7 As regards the information which the complainant should receive from
the Commission, the Communication establishes in Article 7 of its Annex
("Communications with the complainants") the following:
> *"The Commission departments will contact the complainants in
> writing, after each Commission decision (formal notice, reasoned opinion,
> referral to the Court or closure of the case), of the steps taken in
> response to their complaint."*

1.8 From the available information, it appears that the Commission addressed
a number of communications to the complainant in relation to the handling
of his complaint, namely an acknowledgement of receipt, the proposal to
close the case, and the decision to close it. In the absence of any evidence
which may lead one to believe that the Commission sought to conceal any
information, the Ombudsman considers that the complainant was informed
in writing of all the steps taken by the Commission in relation to his
complaint, in accordance with the criteria set out in its own Communication.
The Ombudsman therefore concludes that there appears to be no maladministration
as regards this aspect of the case.
*++Interpretation of Regulation 178/2002/EC++*   

1.9 The Ombudsman notes that the general principles and requirements
governing the Union's food law are laid down in Regulation (EC) no 178/2002[(3)](#(3)){#Footnote3}.
As set out in its Article 1, the Regulation provides the basis for a high
level of protection of human health and consumers' interest in relation
to food. It establishes common principles and responsibilities, the means
to provide a strong science base, efficient organisational arrangements
and procedures to underpin decision-making in matters of food and feed
safety. It therefore lays down the general principles governing food and
feed in general, and food and feed safety in particular, at the Community
and national levels.

The main provisions of the Regulation concerning the protection of consumers'
interests and the dissemination of information are included in Articles
8, 9 and 10. Article 8 states that food law must aim at the protection
of the interests of consumers, and provide a basis for consumers to make
informed choices in relation to the foods they consume. Section 2 of the
Regulation, including Articles 9 and 10, concerns the "Principles
of Transparency" and lays down the need for an open and transparent
public consultation, directly or through representative bodies, during
the preparation, evaluation, and revision of food law. In the event that
food or feed may present a risk for human or animal health, Article 10
requires that authorities take appropriate steps to inform the general
public of the nature of the risk to health, identifying to the fullest
extent possible the food or feed, the risk that it may present, and the
measures to be taken to prevent, reduce or eliminate that risk.

In order to comply with the above provisions, Article 4 (3) of the Regulation
requires that,
> *"\[e\]xisting food law principles and procedures shall be adapted
> as soon as possible and by 1 January 2007 at the latest \[...\]".*

1.10 Having reviewed the contents of the complaint lodged with the Commission,
it appears that the specific allegations made by the complainant were
laid down in section 8 of the complaint. The complainant briefly stated
that current practices by both private and public entities would lead
to the collapse of the regulatory scheme, as a result of the lack of information
given to consumers on food safety and on traceability, in breach of the
Regulation. The additional enclosures included with the complaint did
not appear to add any further information to the content of these allegations.

The Ombudsman notes that, in response to these allegations, the Commission
argued that the information did not allow its services to identify the
object of the complaint, and that as regards the complainant's concerns
on the communication of risks and information to consumers, the relevant
provisions of the Regulation would not be applicable since Member States
had a transitional period to amend their national legislation until 1
January 2007.

1.11 The Ombudsman has carefully considered the provisions of the Regulation,
the specific allegations set out by the complainant in his formal complaint
to the Commission, and the legal analysis carried out by the institution
in response to these allegations. Taking into consideration the nature
of the allegations put forward by the complainant, the Ombudsman finds
that the Commission was entitled to consider that the object of the complaint
was unclear, and that the only specific allegations appeared to be related
to the failure of the Spanish authorities to act properly as regards the
communication of risks and the information to consumers. On the basis
of that judgement, the Ombudsman finds that the Commission's reliance
on Article 4 (3) of the Regulation which gives Member States a transitional
period to amend the relevant national legislation until 1 January 2007
appears to be reasonable.

The Ombudsman therefore takes the view that the Commission acted within
its legal authority when it decided to close the case after having considered
that, on the basis of the information contained in the complaint, there
were no grounds to initiate infringement proceedings against Spain. The
Ombudsman therefore concludes that there appears to be no maladministration
as regards this aspect of the case.
**2 Conclusion**   

On the basis of the Ombudsman's inquiries into this complaint, there
appears to have been no maladministration by the European Commission.
The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

*** ** * ** ***

[(1)](#Footnote1){#(1)} As defined in Article 3 (15)
of Regulation 178/2002/EC, "traceability" means the ability
to trace and follow a food, feed, food-producing animal or substance intended
to be, or expected to be incorporated into a food or feed, through all
stages of production, processing and distribution.

[(2)](#Footnote2){#(2)} OJ C 244 of 1.10.2002, p. 5.

[(3)](#Footnote3){#(3)} Regulation (EC) No 178/2002 of
the European Parliament and of the Council of 28 January 2002 laying down
the general principles and requirements of food law, establishing the
European Food Safety Authority and laying down procedures in matters of
food safety; OJ L 031 , 01/02/2002, p.1.