Dear Mr X,

On 21 October 2021 and on 3 February 2022, you submitted complaints to the European Ombudsman about how the European Commission dealt with your complaint against the Netherlands (concerning alleged violations of Article 47 of the EU Charter of Fundamental Rights). These complaints concern the same issue, which is why they will be dealt with jointly. The Ombudsman has asked me to deal with your complaint.

In your complaint, you contend that the Commission was wrong not to act when you informed it that a Dutch court had refused to allow you to represent a client. The ground(s) for the refusal from the Dutch court is not clarified. You argued that this is an infringement of EU law, as it contravenes article 47 of the EU Charter of Fundamental Rights.

The Commission stated that the Charter does not apply to this situation, and gave reasons for its position.

In your complaint, you also expressed the suspicion that the Commission representative that dealt with your complaint may not have acted with impartiality. You therefore asked the Commission to confirm that it had consulted its legal service in relation to this matter.

After a careful analysis of all the information you have sent us, I must inform you that there is no evidence to conclude that how the Commission dealt with your complaint amounts to maladministration.

The Commission enjoys wide discretion in deciding whether and when to launch an infringement procedure. Its policy on infringements of EU law is set out in its Communication “EU law: Better results through better application”.^[1] The role of the European Ombudsman in infringement complaints is therefore limited. The Ombudsman may seek to ensure that the Commission has explained properly how it has exercised its discretion, but she cannot take a position on how the Commission exercises its discretion.

Regarding the procedural aspects, the Ombudsman may investigate whether the Commission has properly informed the complainant about the progress of the case and its final position on the case. In addition, the Ombudsman may examine whether the complainant has been given an opportunity to comment on the Commission's position. I note that the Commission gave you the opportunity to comment on its position. I also consider that the Commission provided you with clear information as regards why it closed the infringement complaint.

Regarding the substance of a complaint about a possible infringement, the Ombudsman can intervene only if there are indications that the Commission has made a manifest error in its presentation of the facts or the law. In this case, the Commission stated that the EU Charter, in line with its Article 51(1), only applies to the implementation of EU law, which is not the case with the situation described in your complaint. The Commission also said that article 47 of the Charter (concerning the right to an effective remedy and a fair trial in court proceedings) concerns only national proceedings that relate to the alleged infringement of rights and freedoms derived from EU law or the application or implementation of the provisions of EU law. The Commission indicated that this is not the case for the procedure that your complaint concerns. There is no indication that the Commission has made a manifest error of assessment of the facts or the law in this regard.

In your complaint, you also state that you asked the Commission to demonstrate that it consulted its legal service concerning your complaint.  Individuals have a right to request public access to documents held by an EU institution. Your request could be interpreted as such a request for public access to documents. In this context, please note that EU institutions must apply specific rules when dealing with such requests for public access to documents (Regulation 1049/2001).^[2] However, as mentioned above, the Commission has wide discretion in deciding how to deal with infringement complainants, including if and how it conducts internal consultation, such as with its legal service.

I understand that this may not be your desired outcome, but I hope you find this explanation helpful.^[3]

Thank you for contacting the European Ombudsman.

Yours sincerely,

 

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 07/02/2022

 

[1] See: https://ec.europa.eu/info/publications/communication-commission-eu-law-better-results-through-better-application_nl

[2] Please find more information on requests for public access to EU documents: https://www.ombudsman.europa.eu/en/access-to-documents].

[3] Full information on the procedure and rights pertaining to complaints can be found at  

  https://www.ombudsman.europa.eu/en/document/70707.