The background to the complaint

1. This complaint concerns the European Commission's rejection of a complaint about an alleged infringement by the UK of Directive 2003/8/EC to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (the 'Legal Aid Directive')[1].

2. The complainant is a Union citizen who worked in bank of another Member State. In 2008, he took leave on medical grounds. His employment contract was then terminated. In May 2008, he submitted an action to a court against his employer, alleging unfair dismissal. The court struck out the action. The complainant then sought to appeal that ruling to the Court of Appeal. He stated that he missed the deadline to appeal because he could not find a lawyer willing to take his case on a free legal aid basis. The complainant continued with his efforts to find a lawyer. He outlined that he contacted several bodies, including the Legal Services Commission (LSC[2]). His efforts were unsuccessful.

3. In August 2009, he complained to the European Commission about an alleged breach of the Legal Aid Directive by the Member State in question. In September 2009, the Commission informed him that, on the basis of the facts communicated to its services, it did not appear that there had been an infringement of the Legal Aid Directive by the Member State in question.

4. The complainant was unhappy with the position taken by the Commission. He thus turned to the European Ombudsman.

The subject matter of the inquiry

5. The Ombudsman decided to open an inquiry into the following allegation.

Allegation:

The Commission wrongly rejected the complainant's infringement complaint and failed to provide sufficient reasons for its rejection.

The inquiry

6. The complaint was submitted to the Ombudsman on 14 October 2009. On 4 December 2009, the Ombudsman asked the Commission to submit an opinion on the above allegation by 31 March 2010.

7. The Commission sent its opinion on 29 March 2010. The opinion was forwarded to the complainant, who submitted his observations on 3 May 2010.

The Ombudsman's analysis and conclusions

A. Allegation that the Commission wrongly rejected the complainant's infringement complaint and failed to provide sufficient reasons for its rejection

Arguments presented to the Ombudsman

8. The complainant alleged that the Commission wrongly rejected his infringement complaint and failed to provide sufficient reasons for its rejection. In support of his allegation, he argued that the issue was not his eligibility for legal aid, but the impossibility for him to find a solicitor willing to take on his case on a legal aid basis. In this regard, he referred to the following reply from the LSC: "I regret that the Legal Services Commission has experienced some difficulty in locating solicitors who are willing to take on cases under the Council Directive 2003/8/EC of 27 January 2003. I advise that you contact solicitors who hold a contract with the Commission directly, who will then make an application for legal aid on your behalf."

9. In its opinion, the Commission first gave an account of the numerous e-mail messages and letters that the complainant sent to its services since December 2008. The Commission stated that it had always explained its views and given sufficient reasons for not taking action in the complainant's case.

10. As regards the substance of the case, the Commission stated that the Legal Aid Directive was not infringed in the complainant's case. The purpose of the Legal Aid Directive is indeed to improve access to justice in cross-border civil cases by establishing common minimum rules relating to free legal aid. It seeks to give persons who do not have sufficient resources the right to legal aid when they are faced with litigation in a Member State in which they are not resident.

11. The Ombudsman understands that the Commission took the view that the Legal Aid Directive does not impose obligations on specific lawyers to deal with specific litigation.

12. The Commission appeared to refer to the advice given to the complainant by the Legal Services Commission, which stated that he should "contact solicitors who hold a contract with the Commission directly, who will then make an application for legal aid on your behalf." In this regard, the Commission noted that it does not have information on legal professionals who might deal with individual cases. It stated that persons seeking legal aid can request information from the competent national authorities.

13. The Commission went on to underline that the complainant's difficulties in finding a lawyer to take his case, which appear to constitute the complainant's main problem, cannot be addressed through any particular action by the Commission. That is why the Commission advised the complainant to seek a solution with the relevant national authorities.

14. With regard to the infringement complaint, the Commission underlined that the Court of Justice has consistently held[3] that the Commission alone is competent to decide whether it is appropriate to initiate the procedure under Article 258 of the Treaty on the Functioning of the European Union (TFEU)[4]. Moreover, the Commission enjoys a discretion which "excludes the right for individuals to require it to adopt a specific position"[5]. In the present case, the Commission did not find any infringement of Union law that would require it to launch a procedure under Article 258 TFEU. The Commission concluded its opinion by stating that it replied to the complainant's grievances in a sufficient way.

15. In his observations, the complainant maintained his complaint. He observed that "despite one may claim, in every day life EU Law is not applied, even though the British Authorities have been pointed out for their failure in this matter" (sic). He added that there was "a strong necessity for a review; or else it will keep reoccurring therefore in contradiction with the principle of equality, justice and welfare in Europe."

The Ombudsman's assessment

16. Complaints from citizens constitute one of the most important sources of information on possible infringements of EU law by Member States. Such complaints enable the Commission better to fulfil its role as Guardian of the Treaties. Therefore, it is good administrative practice for the Commission to deal with infringement complaints as diligently as possible. If citizens are unhappy with the way in which the Commission has dealt with their complaints, they have a right to complain to the Ombudsman either about how the Commission has acted, or how it has failed to act.[6]

17. The scope of the Ombudsman's mandate in such complaints is limited to examining whether the Commission acted with diligence in the case of the infringement complaint submitted to it. Diligence in this respect means (i) compliance with the rules and procedures established in the 2002 Communication on relations with the complainant in respect of infringements of Community law (the '2002 Communication')[7], which aims to establish a clear and transparent framework for the handling of infringement complaints; and (ii) the level of care which the Commission is expected to exercise when responding to infringement complaints submitted to it. The level of care includes explaining adequately (a) the reasons why the Commission chose a particular course of action and (b) the Commission's view that it has acted within the limits of its legal authority[8].

18. Point 4 (Acknowledgement of receipt) of the 2002 Communication provides that:

"The Secretariat-General of the Commission shall issue an initial acknowledgement of all correspondence within fifteen working days of receipt. Correspondence registered as a complaint shall be acknowledged again by the Secretariat-General within one month from the date of despatch of the initial acknowledgement. This acknowledgement shall state the case number of the complaint which must be quoted in any correspondence."

19. The Ombudsman notes that the first communication relevant in this case is an e-mail from the complainant, dated 21 August 2009 and addressed directly to the Commission's Secretariat-General, in which the complainant wrote:

"Please acknowledge this correspondence as a first step to review a complaint concerning failures by the [LSC] to provide as per the provisions of [the Legal Aid Directive]".

20. The Commission's Secretariat-General replied to the complainant on 2 September 2009 with the following statement:

"The Secretariat General of the European Commission has received on 31/08/2009 your correspondence dated 21/08/2009. It has been registered under reference SG/CDC(2009)A/8235. Your letter has been attributed to the relevant Directorate-General which will deal with it in the appropriate manner."

21. On the basis of the above, the Ombudsman finds that the Commission acted in accordance with the 2002 Communication when it acknowledged receipt of the complainant's complaint on 2 September 2009. This was within the required deadline of 15 working days.

22. Point 3 (Recording of complaints) of the 2002 Communication provides that:

"Any correspondence which is likely to be investigated as a complaint shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission. Correspondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints, if:

- it is anonymous, fails to show the address of the sender or shows an incomplete address;

- it fails to refer, explicitly or implicitly, to a Member State to which the measures or practice contrary to Community law may be attributed;

- it denounces the acts or omissions of a private person or body, unless the measure or complaint reveals the involvement of public authorities or alleges their failure to act in response to those acts or omissions. In all cases, the Commission shall verify whether the correspondence discloses behaviour that is contrary to the competition rules (Articles 81 and 82 of the EC Treaty);

- it fails to set out a grievance;

- it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant;

- it sets out a grievance which clearly falls outside the scope of Community law.

Where there is doubt as to the nature of an item of correspondence, the Secretariat-General of the Commission shall consult the department(s) concerned within fifteen calendar days of receipt. If the department(s) fail to reply within fifteen working days, the complaint shall be formally recorded at the central registry of complaints."

23. The Ombudsman notes that, by letter dated 10 September 2009, the Commission's Directorate General for Employment, Social Affairs and Equal Opportunities replied to the complainant as follows:

"Directives are addressed to EU Member States which are responsible for the transposition of these Directives into national law. The United Kingdom has transposed the [Legal Aid] Directive into national law. It is therefore for the national authorities, including the national courts, to ensure the implementation of national laws and regulations, including all questions of court procedure. As a result, a person who believes that his rights under the [Legal Aid] Directive have been breached must bring a case under the national law that transposes the Directive …

As mentioned in a previous letter sent to you by the European Commission on 18 February 2009, the Commission does not intervene in individual cases before the justice. In particular, the Commission is not competent as regards rules of procedures before the courts, and establishing the factual elements of the case is a matter for the national courts to decide. In interpreting the law, UK courts should take full account of the provisions of EC law and of relevant jurisprudence. The Commission may intervene if there is evidence of an incorrect transposition of EC law into UK law. However, from the mails received by the European Commission, there are no elements showing an incorrect transposition of the [Legal Aid Directive]." (emphasis added)

24. In a further e-mail of 21 September 2009, the Commission complemented its reply of 10 September 2009 as follows:

"[The Legal Aid Directive] gives an entitlement to legal aid, which is, however, dependant on the rules in force in each Member State… [T]he assessment of whether someone can meet the costs of proceedings or not is done at national level and under national law. The Commission cannot interfere in this process. Based on the above and my previous e-mail, we can only maintain that the issues you refer to do not show an infringement of Community law by the United Kingdom."

25. In a further e-mail sent on 22 September 2009, the Commission added:

"As mentioned in my previous mails, Directives are addressed to Member States, not individuals. It is thus for the United Kingdom to comply with the Directive by ensuring compatibility between its laws and the Directives. As mentioned previously, it does not appear from your communications that the United Kingdom is in violation of an EC Directive. I therefore consider that I have now completed the examination of your complaint. You should note that Directorate General for Justice, Freedom and Security is also currently examining your claims and will come back to you with its own response."

26. Finally, on 7 October 2009, the Commission's Directorate General for Justice, Freedom and Security wrote to the complainant as follows:

"Thank you for your e-mail [in which] you expressed concerns, in connection with a claim, about [the Legal Aid Directive]. We have given your email careful consideration, but I regret to inform you that the European Commission is unable to take action in this particular case. Under the terms of the Treaty establishing the European Community and of the Treaty on the European Union, the European Commission has no general powers to intervene in individual cases.

The purpose of the [Legal Aid Directive] is to improve access to justice in cross-border civil cases by establishing common minimum rules relating to legal aid, and to ensure that appropriate legal aid is granted, under certain conditions, to persons who are unable to meet the cost of proceedings owing to their financial situation. The Directive also puts in place certain mechanisms for judicial cooperation between the Member States' authorities, which are designed to facilitate the transmission and processing of applications for legal aid. Under the terms of Article 12 of the Directive, 'legal aid shall be granted or refused by the competent authority of the Member State in which the court is sitting'. The conditions relating to financial resources and to the substance of disputes are defined by each Member State.

Questions concerning the application of the Directive in relation to your case have to be considered under the relevant national law. The national authorities and courts, together with the European Court of Human Rights, may consider individual cases."

27. The Ombudsman concludes that the Commission explained clearly to the complainant why it considered that it was not appropriate to register his correspondence as a complaint. In sum, it stated that the complainant set out a grievance with regard to which the Commission has adopted a clear, public and consistent position. This position is that the Commission does not intervene in individual cases regarding the award of free legal aid and that, in any case, the issues communicated by the complainant (which were that he could not convince any lawyer to take up his case) do not show an infringement of EU law by the United Kingdom. This position was communicated to the complainant. The Ombudsman notes, in this respect, that the Legal Aid Directive cannot be used as a legal basis to force individual lawyers to take up a client's case.

28. The Ombudsman considers that the above explanations by the Commission were sufficiently clear and detailed enough in order to enable the complainant to understand why the Commission decided to reject his infringement complaint.

29. On the basis of the above provisions, the Ombudsman finds that the Commission advised the complainant correctly that he should turn to a national court with his request to enforce his rights guaranteed under the Legal Aid Directive.

30. In light of his findings in paragraph 21, 28 and 29 above, the Ombudsman concludes that the Commission acted in accordance with the relevant rules when it rejected the complainant's infringement complaint and provided sufficient reasons for its decision to do so.

B. Conclusions

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

The Ombudsman finds no instance of maladministration corresponding to the complainant's allegation.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 5 August 2011

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[1] Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes.

[2] The LSC works in partnership with lawyers and not-for-profit organisations to provide citizens with legal advice, information and help.

[3] Case C-255/05 Commission v Italy judgment of 5 July 2007, not yet published in the ECR.

[4] Article 258 of the TFEU provides: "If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union."

[5] Case T-571/93 Lefebvre frères et soeurs, GIE Fructifruit, Association des Mûrisseurs Indépendants and Star fruits Cie v Commission [1995] ECR II-2379.

[6] Decision of the European Ombudsman closing his inquiry into complaint 1561/2010/(MB)FOR against the European Commission.

[7] Commission Communication to the European Parliament and the European Ombudsman on Relations with the complainant in respect of infringements of Community law, COM(2002) 141 final, 20.3.2002.

[8] Where the Commission closes a case through the exercise of its broad margin of discretion, it should explain clearly to the complainant how it has exercised that discretion (see Decision of the European Ombudsman closing his inquiry into complaint 3307/2006/(PB)JMA against the European Commission, available on the Ombudsman's website).