Strasbourg, 15 December 2004

Dear Mr N.,

On 20 November 2003, you sent me a letter in which you stressed that you had received no reply from my office to your letter of 25 September 2003, that you had sent in relation to your complaint 2035/2002/ADB. On 15 January 2004, you sent me a further letter in which you asked for a reply to your letter of 25 September 2003.

On 17 February 2004, I sent you a letter in which I apologised for the failure to reply to your letter of 25 September 2003. I also informed you that your letter of 20 November 2003, jointly with the previous letter of 25 September 2003, had been considered as a new complaint against the Council of the European Union and that it had been registered under reference number 2396/2003/IP.

On the same date, I forwarded the complaint to the Secretary General of the Council of the European Union. The Council sent its opinion on 27 May 2004. I forwarded it to you with an invitation to make observations, which you sent on 28 June 2004. I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

Background information

On 21 November 2002, the complainant made a complaint (2035/2002/ADB) to the European Ombudsman against the Council of the European Union. This complaint concerned the Council's alleged failure to reply to the complainant's letter of 5 September 2002. Since it appeared that no prior administrative approaches had been made by the complainant, this case was closed on the basis of Article 2(4) of the Statute of the European Ombudsman.

The present complaint

On 4 July 2002, the complainant wrote to the Council of the European Union asking the institution to give an "authentic interpretation" of points 2, 5 and 7 (1) of Annex II ("knowledge, skill and behaviour for driving a power-driven vehicle") of Council Directive 91/439/EEC on driving licences, the transposition of which by Italy had been the object of a previous complaint made by the complainant to the European Commission. In his letter of 4 July 2002, the complainant also asked the Council to oblige the Commission to take action against the Italian authorities and to revise its monitoring criteria to ensure the correct application of Community law by Member States.

An exchange of correspondence took place between the Council and the complainant during the following months. However, it appeared that the complainant was not satisfied with the Council's position on the points he had raised and that he had received no reply by the Council to a letter that he had sent on 11 June 2003.

He therefore made a complaint to the Ombudsman in which he alleged: (i) lack of transparency and failure by the Council to deal properly with his complaint of 4 July 2002; (ii) failure by the Council to reply to his letter of 11 June 2003.

THE INQUIRY

The Council's opinion

In its opinion, the Council stated that the complainant had addressed several letters to its Legal Service.

On 18 December 2002, the Director of the Legal Service, Mr J., had replied to the complainant's letter of 5 September 2002. In this letter, he had pointed out that "the General Secretariat of the Council has no power to give a ruling on the application of Community law by the Member States, especially with regard to the interpretation of legal acts adopted by the Community legislator. It is for the Court of Justice of the European Communities and the Commission, within the limits of the powers conferred upon them by the Treaty, to ensure compliance with the law in interpreting and applying Community provisions".

The complainant had subsequently sent a further letter on 16 January 2003, which had been replied to by Mr J. on 7 February 2003. The complainant had been informed that, in accordance with Article 211 of the EC Treaty, it was for the Commission to ensure that the provisions of the Treaty and of the measures adopted by the institutions pursuant thereto were applied. The Council had also pointed out that it did not have the power to rule on the legitimacy of the position taken by the Commission on the application of Community law. Furthermore, it had stated that the interpretation of the principle of subsidiarity was a matter for the Court of Justice of the European Communities under Article 220 of the EC Treaty.

On 19 May 2003, the complainant had addressed an additional letter to the Council. The institution had replied on 3 June 2003 informing him that the letter concerned had been forwarded to the Commission, as the competent institution for the control of the implementation of Community law by Member States. If necessary, the Commission could have taken action against the Italian authorities.

The Council took the view that detailed and reasoned replies had been regularly given to the complainant's letters.

As regards the alleged failure to reply to the complainant's letter of 11 June 2003, the Council put forward that since no new elements had been contained in this letter, it had not considered it necessary to provide him with a further reply.

The complainant's observations

In his observations, the complainant argued that in its opinion, the Council gave only a partial account of the events and failed to refer to the fact that his letters had given rise to many complaints on his part which he had put forward in a letter of 17 March 2003. Since he had received no reply to this letter, the complainant had sent a copy of it to the Secretary General of the Council on 19 May 2003, in which he had also asked to obtain a decision on his complaint made on 4 July 2002. On 3 June 2003, he had been informed that his letter of 19 May 2003 had been forwarded to the Commission.

Furthermore, as regards the Council's point that it had not considered it necessary to provide him with a reply to his letter of 11 June 2003 since it did not contain any new element, the complainant argued that this was incorrect. He pointed out that, by his letter of 11 June 2003, he had asked the Council to confirm to him the forwarding of his letter of 19 May 2003 to the Council(1) and to provide him with evidence of this transmission in order to give him the possibility to follow the development of the case.

The complainant finally took the view that the Council's opinion was ambiguous and biased as regards the description of the events, and that the Council tried to minimise the lack of action of its Legal Service.

THE DECISION

1 The Council's handling of the complainant's complaint

1.1 In his complaint, the complainant alleged lack of transparency and failure by the Council to deal properly with his complaint of 4 July 2002.

In his letter of 4 July 2002, the complainant had asked the Council of the European Union to give an "authentic interpretation" of points 2, 5 and 7 (1) of Annex II ("knowledge, skill and behaviour for driving a power-driven vehicle") of Council Directive 91/439/EEC on driving licences, the transposition of which by Italy had been the object of a previous complaint made by the complainant to the European Commission. The complainant also asked the Council to oblige the Commission to take action against the Italian authorities and to revise its monitoring criteria to ensure the correct application of Community law by Member States.

1.2 In its opinion, the Council took the view that detailed and reasoned replies had regularly been given to the complainant's letters addressed to it. As regards the substance of the complainant's request, the Council explained that it had informed the complainant, in a letter of 18 December 2002, that it had no power to give a ruling on the application of Community law by the Member States, especially with regard to the interpretation of legal acts adopted by the Community legislator. It was for the Court of Justice of the European Communities and the Commission, within the limits of the powers conferred upon them by the Treaty, to ensure compliance with the law in interpreting and applying Community law.

In a further letter of 7 February 2003, the Council had explained to the complainant that, in accordance with Article 211 of the EC Treaty, it was for the Commission to ensure that the provisions of the Treaty and of the measures adopted by the institutions pursuant thereto were applied. It had also pointed out that it did not have the power to rule on the legitimacy of the position taken by the Commission on the application of Community law.

On 3 June 2003, in its reply to a further letter from the complainant, the Council had informed him that it had decided to forward his letter to the Commission, which was competent for the control of the implementation of Community law by Member States.

1.3 In his observations, the complainant took the view that the Council's opinion was ambiguous and biased as regards the description of the events, and that the Council tried to minimise the lack of action of its Legal Service. He also stressed that what he had asked the Council to do, in his letter of 11 June 2003, was to confirm to him the forwarding of his letter of 19 May 2003 to the Commission.

1.4 From the information in his possession, the Ombudsman notes that on several occasions, the Council has explained to the complainant the reasons why it could not deal with his request. As indicated by the Council, it is not for the Council, but for the European Commission and for the Court of Justice, within the limits of the powers conferred upon them by the Treaty, to ensure compliance with the law in interpreting and applying Community provisions.

The Ombudsman furthermore notes that, when it decided that it could not deal with the complainant's complaint, the Council forwarded it to the Commission and informed the complainant accordingly by letter of 3 June 2003. The Ombudsman considers that the Council's decision to forward the complainant's complaint to the Commission appears to be reasonable.

1.5 On this basis, the Ombudsman takes the view that the complainant's allegation that the Council failed to act in a transparent way and to deal properly with his complaint is not grounded.

1.6 The Ombudsman therefore finds no maladministration in relation to the aspect of the case concerning the way in which the Council has dealt with the complainant's complaint.

2 Alleged failure to reply

2.1 In his complaint, the complainant alleged that the Council failed to reply to his letter of 11 June 2003.

2.2 In its opinion, the Council took the view that this letter did not contain any new element with respect to the complainant's previous correspondence and that it had therefore not considered it necessary to provide the complainant with a further reply.

2.3 In his observations, the complainant argued that in his letter of 11 June 2003 he had asked the Council to confirm to him the forwarding of his letter of 19 May 2003 to the Commission and to provide him with evidence of this transmission in order to give him the possibility to follow the development of the case.

2.4 Principles of good administration require that letters from citizens are replied to. The Ombudsman notes however that, in accordance with Article 9(4) of the Code of Good Administrative Behaviour of the Council(2), no reply needs to be provided where a reply has already been given to the same request from the same person. This appears to be a reasonable concept.

2.4 The Ombudsman has had the possibility to check the content of the letter of 11 June 2003, a copy of which had been forwarded to him by the complainant as an enclosure to the letter that he had sent on 25 September 2003. It appears from the content of this letter that the complainant referred to a transfer which in his view had been made by the Council and that he had asked the Council for a confirmation of such a transfer in order to follow the development of his case.

2.5 From the evidence in his possession, the Ombudsman notes that on several occasions the Council had explained to the complainant that it was not competent to deal with his case and that it finally informed him, by letter of 3 June 2003, that it had decided to transfer his case to the Commission. The complainant could thus be under no doubt that his complaint had been transferred to the Commission (and not to the Council as he seemed to assume when he wrote his letter of 11 June 2003).

In his observations, the complainant argued that in his letter of 11 June 2003 he had in effect asked the Council to confirm to him the forwarding of his letter of 19 May 2003 to the Commission and to provide him with evidence of this transmission in order to give him the possibility to follow the development of the case. The Ombudsman notes that it is not at all obvious from the letter of 11 June 2003 that this was what the complainant wanted.

The Ombudsman therefore considers that the position taken by the Council as regards the complainant's letter of 11 June 2003 and its decision not to reply to it appears to be reasonable. The complainant is however free to submit to the Council his request for obtaining evidence of the transmission of his complaint to the Commission.

2.6 On the basis of the above, the Ombudsman finds that there has been no maladministration by the Council in relation to 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 Council. The Ombudsman therefore closes the case.

The Secretary General of the Council of the European Union will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman notes that in the letter concerned, a copy of which was forwarded to the Ombudsman by the complainant, he had asked the Secretary General of the Council to confirm to him the forwarding of his letter of 19 May 2003 to the Council: "la ringrazio per la Sua lettera (…) del 3 giugno 2003 con la quale mi ha cortesemente informato di avere trasmesso al Consiglio la mia lettera del 19 maggio 2003. (…) la prego di volermi far pervenire conferma circa l'avvenuta trasmissione alla menzionata istitutione (…).

(2) Decision of the Secretary-General of the Council/High Representative for common foreign and security policy of 25 June 2001, published on the OJ L145 of 31 May 2001, p. 43.