The background to the complaint

1. The present case concerns the handling by the European Commission of an infringement complaint regarding the implementation in Italy of Regulations (EC) 1782/2003[1], 2237/2003[2] and 1973/2004[3] establishing, inter alia, a quality premium for durum wheat producers. The quality premium regime foresees that farmers who produce certain varieties of durum wheat, selected by Member States according to a set of quality parameters, receive a monetary aid.

2. The complainant is a stakeholder of a company, which holds the commercial rights for several varieties of durum wheat. Since 2004, the complainant repeatedly contacted the Commission to complain against the measures adopted by Italy to select the wheat varieties that could benefit from the quality premium regime and which, according to the complainant, resulted in the unfair exclusion of its company's seeds. On several occasions, the Commission replied that the selection of the wheat varieties eligible for the premium was the responsibility of the Member States and invited the complainant to have recourse to national remedies. The complainant subsequently brought an action before the Italian administrative tribunal of the province of Latium and also turned to the European Anti-Fraud Office ('OLAF').

3. On 18 January 2008, the complainant submitted a further complaint to the Commission. He identified 20 alleged irregularities in the management by the Italian authorities of the quality premium scheme for durum wheat, which in his view amounted to violations of the relevant EU rules, and asked the Commission to open an infringement procedure against Italy. The Commission registered the complaint (INF/2008/4147) and accepted to hold meetings with the complainant's lawyer in May 2008, and with the complainant on 7 November 2008.

4. On 6 January 2009, the Commission informed the complainant that, on that same day, it had requested certain information from the Italian authorities and that the one-year deadline for the handling of the complaint set by the Commission Communication on relations with the complainant in respect of infringements of Community law[4] (henceforth referred to as the 'Communication') could therefore not be respected, given the nature of the matter. The Italian authorities provided the requested information on 17 April 2009.

5. On 20 May 2009, upon the complainant's request for an update on the state of affairs concerning his complaint, the Commission informed him that Regulation (EC) 73/2009[5] would repeal the quality premium scheme for durum wheat as of 1 January 2010 and integrate it into a unified income support scheme for farmers ("single payment scheme"). Pending the adoption of detailed implementing rules for the new scheme, the Commission deemed it appropriate not to take a final decision on the complaint without having a complete picture of the new legal framework. In the exchange of correspondence that followed, the complainant expressed the view that the Commission's approach was unconvincing and dilatory and asked for an assessment of the merits of his allegations. In its replies, however, the Commission maintained its position.

6. On 29 July 2009, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

7. The Ombudsman opened an inquiry into the following allegation and claim:

Allegation

The Commission failed to provide valid and adequate grounds for not yet having taken a decision on infringement complaint INF/2008/4147.

Claim

The Commission should take a decision on infringement complaint INF/2008/4147 with no further delay.

The inquiry

8. On 8 October 2009, the Ombudsman requested the Commission to submit an opinion on the complainant's allegation and claim by 31 December 2009. The Commission's opinion was forwarded to the complainant with an invitation to make observations, which the complainant sent on 7 May 2010.

Further developments

9. On 1 December 2009, the Commission informed the complainant that the regulations implementing Regulation 73/2009 had recently been adopted and had clarified the legal framework. As a consequence, the Commission announced to be able to take a decision on the infringement complaint shortly.

10. On 15 March 2010, the Commission informed the complainant of its intention to close infringement complaint INF/2008/4147. The Commission stressed that several reasons made it pointless for it to deal with the merits of the complaint. To start with, the legal basis for an infringement procedure had ceased to exist following the adoption of Regulation 73/2009. Moreover, the subject matter of the complaint fell within the competence of the Member States. Finally, the alleged infringement by Italy was not supported by sufficient evidence, and the complainant had also submitted a complaint to a national administrative court. All these considerations prompted the Commission to exercise its discretion not to open an infringement procedure in the complainant's case[6]. The Commission invited the complainant to submit observations on its conclusions within a month.

11. In its observations sent to the Commission on 2 April 2010, the complainant argued that the reasons provided by the Commission were erroneous, unfounded and insufficient, since they failed to address the merits of the allegations raised in the infringement complaint. The complainant therefore asked the Commission to reconsider its conclusions. By letter of 9 August 2010, the Commission confirmed its original position.

12. On 1 September 2010, the complainant again turned to the Ombudsman and put forward a number of allegations concerning the Commission's announced intention to close infringement complaint INF/2008/4147. This complaint was registered as complaint 2004/2010/IP. On 24 February 2011, the Ombudsman decided that there were insufficient grounds to open an inquiry into that complaint. The Ombudsman reasoned that the Commission's view, according to which the provisions that had allegedly been infringed had ceased to exist, appeared reasonable and appropriate. There were therefore insufficient grounds to open an inquiry into complaint 2004/2010/IP.

13. On 11 October 2010, the Commission informed the complainant that it had decided, on 30 September 2010, to close infringement complaint INF/2008/4147.

The Ombudsman's analysis and conclusions

Preliminary remarks

14. To avoid any misunderstanding, it is important to recall that the scope of the present inquiry is limited to assess the timeliness of the Commission's handling of infringement complaint INF/2008/4147.

15. The Ombudsman notes that the Commission has adopted, in the meanwhile, a decision to close the infringement complaint. The complainant submitted a separate complaint to the Ombudsman concerning the merits of the Commission's decision (complaint 2004/2010/IP) that the Ombudsman has already dealt with. The Ombudsman therefore does not have to address this issue in his present decision.

16. In its opinion, the Commission pointed out that the Ombudsman had limited his investigation to only some of the many arguments put forward by the complainant, and in particular decided to focus his inquiry on the handling of complaint INF/2008/4147 since its submission in January 2008. According to the Commission, any action preceding that date would therefore not be relevant. The complainant strongly disagreed with the Commission's position. In his observations, he stressed that the Ombudsman did not expressly exclude from his assessment the Commission's conduct prior to January 2008. Moreover, this conduct would be relevant to clarify the overall picture and to explain and contextualise the subsequent events.

17. The Ombudsman notes that it is not in dispute that the complainant submitted complaint INF/2008/4147 on 18 January 2008. It should further be noted that the object and scope of the Ombudsman's inquiry is set by the allegations and claims included in the opening letter, as the Ombudsman understands them to emerge from a particular complaint. While the Ombudsman's present inquiry is about the Commission's handling of complaint INF/2008/4147, this does not prevent the Ombudsman from taking into consideration any actions taking place before the registration of the relevant infringement complaint whenever these actions are relevant to assess the reasonableness of the Commission's behaviour in handling the said complaint.

A. As regards the Commission's handling of the infringement complaint

Arguments presented to the Ombudsman

18. In his complaint to the Ombudsman, the complainant alleged that the Commission failed to provide valid and adequate grounds for not having yet taken a decision in infringement complaint INF/2008/4147. In support of his allegation, the complainant argued that the Commission's decision to postpone its decision on the infringement complaint for as long as the legislative reform had not been completed did not comply with the duty to take a timely decision. He claimed that the Commission should take a decision forthwith.

19. In its opinion, the Commission pointed out that it informed the complainant of the registration of the complaint on 14 February 2008 and held meetings with the complainant and/or his lawyer in April and November 2008. Only the intervention of the complainant's lawyer made it possible fully to identify the issues, on which a request for information to Italy appeared necessary. The request for information was drafted in December 2008 and in the beginning of January 2009 and required a particularly thorough examination of the file, including consultations of the services concerned within the Commission's Directorate-General Agriculture and in other Directorates-Generals. The Commission considered that it had complied with the Communication and, in particular, had informed the complainant that the one-year deadline for the handling of the complaint could not be respected, given the nature of the matter.[7]

20. The Commission also pointed out that Regulation 73/2009 had repealed the pre-existent regime for a quality premium for durum wheat and, as a consequence, the case differed clearly from the case dealt with by the Ombudsman in his decision on complaint 3453/2005/GG. In that case, the Ombudsman found that, pending the adoption of a change in the relevant legislation, the Commission could not simply abstain from taking action on an infringement complaint, but had to decide whether to reject it or open infringement proceedings. The Commission pointed out that, unlike in that case, in the present one, issues concerning the implementation of the quality premium regime by Member States "with effect from January 2009 [...] were no longer legally actionable" and, in any case, that infringement proceedings had become inappropriate. The Commission recalled that the purpose of infringement proceedings is to ensure that the conduct of Member States which is contrary to EU law ceases and that such proceedings should therefore not be used in relation to facts that occurred in the past or where the objective sought had already been achieved more quickly by other means, such as by virtue of a change of EU law.

21. The Commission also stressed that its decision to wait for the publication of the regulations implementing Regulation 73/2009 before taking a decision on the infringement complaint represented an appropriate exercise of its discretion in the domain of infringement proceedings and was in line with the principles of legal certainty and the appropriate use of resources in procedures. In the given context, the Commission also stated that, in particular in its letter to the complainant of 20 May 2009, it made reference to the need to have a complete picture of the new legal framework before taking a decision.

22. In his observations, the complainant stressed that, since June 2007, the Commission disposed of sufficient elements to conclude that the implementing measures for the quality premium for durum wheat adopted by Italy infringed EU law. Unlike what the Commission had stated, the alleged irregularities could easily be ascertained and did not require a complex technical assessment. Moreover, in June 2008, the complainant had submitted to the Commission a report drafted by an independent expert which showed in clear and objective terms that the methodology adopted by the Italian authorities to select the wheat varieties benefiting from the quality premium did not comply with Regulation 1782/2003. According to the complainant, extending the deadline for taking a decision on the infringement complaint was therefore not justified. He posited that the Commission had been reticent to deal with the merits of his allegations and had, throughout the proceedings, adopted a dilatory attitude, waiting that a change in the EU legislation would render his case moot.

23. However, in the complainant's view, the adoption of Regulation 73/2009 did not relieve the Commission of its duty to take a decision on infringement complaint INF/2008/4147, and the conclusions reached by the Ombudsman in his decision on complaint 3453/2005/GG were fully applicable to the present case. First, Regulation 73/2009 repealed the quality premium regime for durum wheat only as from 1 January 2010 and it was not correct to assert, as the Commission did, that the legal basis for an infringement procedure had ceased to exist before that date. Second, the complainant disagreed that the new legal situation would indeed have rendered his complaint moot, since the new regime, as implemented by Italian authorities, de facto extended the distortive effects of the previous system.

The Ombudsman's assessment

24. The Ombudsman recalls that complaints by citizens constitute an essential means for informing the Commission on possible infringements of EU law. They enable the Commission to effectively fulfil its role as "guardian" of the Treaties.

25. It follows from the settled case-law of the European Court of Justice that the Commission enjoys a wide margin of discretion when assessing complaints submitted by citizens and it is not obliged to commence infringement proceedings in every instance where a Member State has violated 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.

26. However, the Commission's discretion has to be exercised in line with principles of good administration. In particular, the Ombudsman notes that, in the Communication, the Commission has entered into certain commitments as regards the handling of infringement complaints.

27. In particular, point 8 of the Communication provides that "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 registration of the complaint". The Ombudsman has consistently taken the view that this provision signifies that the Commission has committed itself to using best endeavours to complete the investigation within one year and to decide whether to open infringement proceedings or to close the case, but that it is not excluded that more time may be needed in certain situations[8]. This understanding is corroborated by the last sentence of the same point, according to which, "where this time limit is exceeded, the Commission department responsible for the case will inform the complainant in writing".

28. The Ombudsman has moreover made it clear that exceeding the one-year time limit is only justified if the Commission provides specific and valid reasons for the delay[9] and, in any event, if it is indeed still investigating a case. In particular, in his Special Report to Parliament in case 3453/2005/GG, the Ombudsman stressed that the Commission's decision to abstain from taking any action whatsoever in an infringement proceeding pending the adoption of new EU legislation is not in line with the principles of good administration.

29. In the present case, the complainant submitted complaint INF/2008/4147 on 18 January 2008. In March 2010, the Commission informed the complainant of its intention to close the case. The Commission finally decided to close the infringement complaint only on 30 September 2010. The Ombudsman notes that the Commission has invoked two different arguments to justify why it had exceeded the one-year limit for taking a decision on the infringement complaint: (i) the issues raised by the complainant were various and complex and required a particularly thorough analysis; (ii) following the adoption of Regulation 73/2009, which repealed the quality premium regime for durum wheat, it was appropriate for the Commission to wait for the adoption of relevant implementing regulations before taking further action.

30. As regards the first argument, the Ombudsman recalls the following facts. The complainant stated that, since 2004, he had repeatedly signalled to the Commission the alleged violations of Regulation 1782/2003 by Italy. The Commission did not contest this statement. When the Commission finally decided to register complaint INF/2008/4147 on 28 January 2008, it had therefore already been informed in detail of most of the complainant's allegations. However, the only activities reported in 2008 were two meetings with the complainant's lawyer and the complainant himself, both organised upon the complainant's express request (May 2008 and November 2008).

31. The Ombudsman has no elements at his disposal which would call into doubt the Commission's assessment that the arguments raised by the complainant were complex. On the contrary, the analysis of the file shows that many of those arguments were indeed factually, legally and also technically intricate. However, the complexity of a case as such cannot justify a delay in the handling of an infringement complaint, if it emerges that the Commission has failed to take adequate steps in the period at its disposal.

32. The Ombudsman notes that in spite of the recognised complexity of the present case, the action taken by the Commission from January 2008 to December 2008 was rather limited. The Commission seems to suggest that what it perceived as a lack of clarity of the complainant's submissions amounted to a crucial obstacle to taking action. The Ombudsman is not convinced by this line of reasoning. Good administrative practice requires that institutions take a pro-active approach towards citizens, rather than waiting passively for external input. Had the complainant’s arguments indeed been unclear, nothing would have prevented the Commission from asking him for clarifications, and eventually from deciding to close the complaint. In the given context, it should also be recalled that the complainant had brought the alleged infringement to the Commission's attention from 2004 onwards, while the Commission registered his complaint on 28 January 2008 only.

33. The Ombudsman moreover notes that the Commission, on 6 January 2009, requested information from the Italian authorities which the latter provided on 17 April 2009. It follows that, when the complainant turned to the Ombudsman on 29 July 2009, the Commission had had more than three months to assess the information received. While such a period would not appear to be unreasonable as such, it should be noted that the Commission did not argue that it needed to complete the assessment of Italy´s reply in order to justify the time it took for handling the infringement complaint. Instead, it clearly results from its reply to the complainant of 20 May 2009 that the Commission had decided to suspend any activity on the case, pending the adoption of detailed implementing rules for the single payment scheme, which would be applicable to durum wheat farmers as of 1 January 2010.

34. As regards the second of the two arguments referred to in point 29, the parties disagree on whether the principle asserted by the Ombudsman in case 3453/2005/GG, namely, that the Commission cannot invoke a forthcoming reform of applicable EU legislation to avoid taking a decision on whether to open or not infringement proceedings, may be applied in the present context. The Commission denied that a comparison between the two situations may be drawn since (i) in the present case, the Commission was working on the complaint from its registration until the amendment of the relevant regulation and (ii) the new regulation had completely repealed the rules invoked by the complainant.

35. The Ombudsman recalls that in case 3453/2005/GG, he took the view that a possible future change in the relevant legislation as such could not justify the Commission's inaction. In that case, the Commission had, at the time when the complainant turned to the Ombudsman, submitted a proposal for amending the relevant legislation which had not yet been adopted.

36. The Ombudsman notes that, in the present case, the change in the relevant legislation took place with the Council adopting, on 19 January 2009, Regulation 73/2009 which repealed the existing premium regime for durum wheat as of 1 January 2010. Therefore, as of 19 January 2009, it was known that the existing premium scheme for durum wheat producers would cease to apply on 1 January 2010.

37. In the course of the inquiry into the present complaint, the Commission essentially submitted that it had to wait for the adoption of implementing regulations in order to have a complete picture of the new legal framework before taking a decision on the complainant's infringement complaint. However, given that the decision to repeal the existing premium regime for durum wheat as of 1 January 2010 had already been taken on 19 January 2009 and that it was this decision on which the Commission later based its decision to reject the complainant's infringement complaint, the Ombudsman sees no valid reason that could explain why the Commission would have had to wait for the adoption of the implementing provisions concerning the new scheme before deciding on the complainant's infringement complaint which concerned the old premium regime.

38. In light of the above, the Ombudsman considers that the Commission failed to take a decision on infringement complaint INF/2008/4147 within a reasonable time and did not provide valid reasons to justify its delay. This constitutes an instance of maladministration.

39. When the Ombudsman finds an instance of maladministration, he makes, where appropriate, a friendly solution proposal or a draft recommendation to the institution concerned. In the present case, however, it should be noted that the Commission has in the meanwhile adopted a decision to close infringement complaint INF/2008/4147. In these circumstances, the Ombudsman takes the view that it would not serve any useful purpose to make a friendly solution proposal or a draft recommendation as regards the issue of delay. This does not affect the conclusion reached above that there was undue delay on the part of the Commission. Accordingly, a critical remark will be made below.

B. Conclusions

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

It is good administrative practice to deal with infringement complaints within a reasonable time. In the present case, the Commission only informed the complainant of its intention to close the case more than one year after the relevant regulation had been adopted by the Council. The Commission did not provide valid reasons to justify its delay. This constitutes an instance of maladministration.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 July 2012

---

[1] Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, OJ 2003 L 270, p.1.

[2] Commission Regulation (EC) No 2237/2003 of 23 December 2003 laying down detailed rules for the application of certain support schemes provided for in Title IV of Council Regulation (EC) No 1782/2003, OJ 2003 L 339, p. 52.

[3] Commission Regulation (EC) No 1973/2004 of 29 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1782/2003 as regards the support schemes provided for in Titles IV and IVa of that Regulation and the use of land set aside for the production of raw materials, OJ 2004 L 345, p.1.

[4] COM (2002)141 final of 20 March 2002.

[5] Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003, OJ 2009 L 30, p.16.

[6] The Commission also partly addressed the merits of the complainant's allegations and concluded that some of them concerned matters that were of a purely domestic character while others were unfounded. However, not all the 20 allegations raised were specifically and individually addressed.

[7] See Point 8 of the Communication, quoted below in the text.

[8] See, for instance, the decision on complaint 2944/2004/(GK)(OV)ID, point 1.7 and the decision on complaint 706/2007/(WP)BEH, point 34.

[9] See references in footnote 8.