Strasbourg, 22 March 2004

Dear Mr C.,

On 6 May 2003, you lodged a complaint with the European Ombudsman against the European Commission. Your complaint concerns the Commission's decision of 10 April 2003 to close a formal complaint you had submitted to it on 5 September 2002, against the authorisation, by the Portuguese authorities, of bullfighting spectacles, at the end of which the bull is killed.

On 24 July 2003, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 9 September 2003. I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

In September 2002, the complainant lodged a formal complaint with the European Commission against the Portuguese authorities. His complaint concerned the newly adopted Portuguese legislation, which legalised the Spanish type of bullfighting in which the bull is killed.

The complainant explained that after having submitted a complaint to the Commission, he received a communication from the Directorate General for Health and Consumer Protection, dated 10 April 2003, which he enclosed with his complaint to the Ombudsman. The letter informed the complainant that the Commission intended to close the case on the grounds that there was no sufficient legal basis to pursue infringement proceedings against the Portuguese authorities. He considered that the Commission's reply was insufficient since it only referred to a Protocol to the EC Treaty, but did not address the potential application of existing EC rules. The legal basis for the complainant's allegations were to be found in the provisions of Directive 93/119/EC which, in the complainant's view, had been ignored.

In his complaint to the Ombudsman, the complainant alleged, in summary, that the Commission's decision to close his complaint did not take proper account of existing Community rules, in particular of Directive 93/119/EC on the protection of animals at the time of slaughter or killing.

In view of the information submitted in the complaint, the Ombudsman noted that the letter from the Commission services to the complainant dated 10 April 2003, announcing the institution's intention to close the case, did not offer him any opportunity to put forward his observations. The Ombudsman therefore asked the Commission also to comment on this matter.

THE INQUIRY

The European Commission's opinion

In its opinion, the Commission recalled the facts of the case and described how its services had handled the complaint. It noted that on receipt of the complainant's letter, an acknowledgement of receipt was sent to the complainant on 1 October 2002 by the Directorate General for Health and Consumer Protection. On 10 October 2002, the Commission's Secretariat General informed the complainant of the reference number given to his complaint. The responsible services subsequently carried out a thorough examination of the alleged facts of the case.

As regards the Commission's position on the legal status of bullfighting, the institution noted that its services had received, and continue to receive, many submissions from animal welfare organisations and concerned citizens questioning the compatibility of bullfighting -which is legal in Spain, Portugal and parts of Southern France- with Community law.

The Commission referred to the Protocol to the EC Treaty on the protection and welfare of animals, which requires the Community and its Member States to pay full regard to the welfare requirements of animals, while respecting the provisions and customs of the Member States relating to cultural traditions. The institution explained that bullfighting is a cultural tradition and part of the regional heritage of a number of Member States that allow its practice.

The Commission acknowledged that, in addition to the above Protocol, there are additional Community rules relevant to the animal welfare aspects of bullfighting, in particular Council Directive 93/l19/EC on the protection of animals at the time of killing and slaughter. However, the Directive is not applicable to animals which are killed in cultural or sports events.

As regards the handling of the complaint lodged by the complainant, the Commission explained that, having thoroughly assessed it, its legal service expressed a strong doubt as to whether the protocol applied at all to bull fighting because as spectacle or entertainment, it fell outside the scope of the policies mentioned in the protocol. In addition, the Commission noted that Council Directive 93/119/EC does not apply to animals killed in cultural or sports events, so the killing of a bull in a legally held bullfighting in Portuguese territory would not infringe this provision.

The Commission services took the view that the allegations made by the complainant, namely that the practice of Spanish-type bullfighting in a part of the Portuguese territory was incompatible with the provisions of Community law, were not sufficiently well founded to open an infringement procedure under Article 226 of the EC Treaty. Accordingly, the Commission services concluded that a recommendation to close the file was to be proposed to the Commission.

The position of the Commission services on this matter was summarised in a letter to the complainant dated 10 April 2003. The complainant did not react to this letter.

The Commission regretted, however, that due to an omission, the letter from its services dated 10 April 2003 did not specifically invite the complainant to submit his observations, if he so wished. Since the complaint had not yet been closed at the time the Ombudsman requested an opinion on the case, the Commission services sent a new letter to the complainant on 4 August 2003 inviting him to supply any further observations he wished to make.

The complainant's observations

The Ombudsman has not received any observations from the complainant.

THE DECISION

1 Evaluation of the complainant's allegations by the Commission

1.1 The complainant alleges that the Commission's decision to close his complaint did not take proper account of existing Community rules, in particular of Directive 93/119/EC on the protection of animals at the time of slaughter or killing.

1.2 The Commission argues that upon receipt of the complaint, its responsible services carried out a thorough examination, as a result of which it concluded that the complainant's allegations that the practice of Spanish-type bullfighting in a part of the Portuguese territory was incompatible with the provisions of Community law, were not sufficiently well founded to open infringement proceedings against the Portuguese authorities under Article 226 of the EC Treaty.

The institution expresses a strong doubt as to whether the protocol applies at all to bull fighting because, as spectacle or entertainment, it falls outside the scope of the policies mentioned in the protocol. In addition, the Commission notes that Council Directive 93/119/EC does not apply to animals killed in cultural or sports events, so the killing of a bull in a legally held bullfighting in Portuguese territory would not infringe this provision.

1.3 The Ombudsman notes that a number of EC provisions regarding animal welfare might have an impact on the legality of bullfighting, in particular Protocol No 33 to the EC Treaty on the protection and welfare of animals and Council Directive 93/119/EC(1) on the protection of animals at the time of slaughter or killing. Both legal instruments, however, contain specific clauses which address bullfighting activities.

The Protocol to the EC Treaty on the protection and welfare of animals recognises the need to

"[R]espect[ing] the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage."

In the case of Directive 93/119/EC, its Article 1 (2) specifically excludes its application to situations in which animals are killed in cultural or sports events.

1.4 From the information submitted in the course of the inquiry, it appears that the Commission referred in detail to the above provisions in order to justify its position, not only in its opinion to the Ombudsman, but also in its letter to the complainant of 10 April 2003, in which it announced the intention of its services to close the case.

In view of the above provisions, the Ombudsman takes the view that the Commission's decision not to pursue infringement proceedings against the Portuguese authorities and, accordingly, to close the formal complaint submitted by the complainant appears to be reasonable.

The Ombudsman has therefore concluded that the Commission acted within the limits of its legal authority in deciding not to pursue infringement proceedings against the Portuguese authorities, and that it gave the complainant a reasonable justification for its decision. The Ombudsman therefore finds no evidence of maladministration in relation to this aspect of the case.

2. Commission's failure to offer the complainant the opportunity to put forward his observations

2.1 The Ombudsman asked the Commission to comment on the fact that the letter from the Commission services to the complainant dated 10 April 2003, announcing the institution's intention to close the case, did not offer him any opportunity to put forward his observations.

2.2 The Commission regrets that its services did not invite the complainant to submit his observations in its letter of 10 April 2003. It noted that such failure was merely the result of an omission. The institution added that its services had sent a new letter to the complainant on 4 August 2003 inviting him to supply any further observations he wished to make.

2.3 The Ombudsman recalls that the Commission’s Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(2) provides that, where the Commission intends to propose that no further action be taken on a complaint, it will give the complainant prior notice thereof in a letter setting out the grounds on which it is proposing that the case be closed and inviting the complainant to submit any comments within a period of four weeks.

The Ombudsman notes that the Commission has recognised its failure to invite the complainant to submit comments in this case and apologised for it. Having done so, it sought to redress the situation by giving the complainant the opportunity to submit his observations if he so wished. The Ombudsman therefore does not find it necessary to pursue further inquiries as regards this aspect of the case.

3. 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

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(1) Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing Official Journal L 340 , 31/12/1993 P. 0021 - 0034.

(2) Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law (COM/2002/0141 final); OJ C 244 , 10/10/2002, p. 5.