Strasbourg, 18 January 2005

Dear Mr X.,

On 16 January 2004, you sent me a complaint concerning the Commission's handling of an infringement complaint [ complaint 3 ]. I understood your complaint to be against the Commission's substantive decision in the matter, and I therefore rejected it because I had already decided on that matter in my decision on [complaint 2].

In a telephone conversation on 29 April 2004, you informed my services that you were also not satisfied with the Commission’s correspondence relating to your infringement complaint. You identified the allegations in your letter of 16 January 2004 which you wanted me to investigate. You also stated that you would send the Ombudsman a copy of a letter from the Commission, which you did, on that same day. On that same date, I registered the present complaint.

On 7 May 2004, my services telephoned the Commission regarding one aspect of your complaint. On 24 May 2004, I received a copy of a letter sent to you by the Commission.

On 2 June 2004, I opened my inquiry into your complaint by letter to the President of the European Commission. The Commission sent its opinion on 31 August 2004. I forwarded it to you with an invitation to make observations, which you sent on 27 September 2004.

You sent an email on 30 November 2004, making inquiries about my response to your observations. On 8 December 2004 I replied to your email, informing you that you would receive my findings on your complaint than by the end of January 2005 at the latest.

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

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.

The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT

Background

On 14 April 1999, the chairman of the European Parliament's Committee on Petitions transmitted a petition to the Ombudsman, suggesting that it be dealt with as a complaint against the European Commission. The petitioner, the complainant in the present case, considered that the Commission had failed in its duty to ensure that a Community directive was properly applied in the United Kingdom. The directive was the Non-Life Insurance Directive (EC Directive 73/239/EEC(1)) the allegedly improper implementation of which was by some believed to have led to financial losses for Lloyd's underwriters (the so-called Names). The case was registered as [ complaint 1 ], and the complainant was subsequently informed that the complaint was inadmissible because no previous administrative approaches had been made.

On 16 January 2004, the complainant submitted a new complaint to the Ombudsman [ complaint 3 ]. After a careful examination of that complaint, it appeared that the allegation against the European Commission concerned the United Kingdom's alleged breaches of Directive 73/239/EEC in the period before 2000. That issue had already been considered by the Ombudsman in his decision on [ complaint 2 ] in 2003, in which he concluded that :

"the Commission is entitled to focus its Article 226 investigation on whether there is an infringement of Community law following the entry into force of the [ United Kingdom ] Financial Services and Markets Act 2000. The Ombudsman therefore finds no maladministration in relation to this aspect of the complaint."

As it appeared that the complainant, in his complaint of 16 January 2004, wanted a review of the Commission's position on whether the United Kingdom had acted in breach of Community law before 2000, the complaint was rejected.

The Ombudsman also noted in his reply to the complainant that he appeared to express dissatisfaction with the way in which the Commission had corresponded with him. However, the Ombudsman did not find that those remarks were precise enough to be taken up for inquiry as specific allegations. The Ombudsman informed the complainant accordingly, stating that he was free to submit precise allegations regarding the correspondence between himself and the Commission.

The present complaint

In a telephone conversation on 29 April 2004, the complainant informed the Ombudsman's services that he was not satisfied with the Commission’s correspondence relating to his infringement complaint. He identified the points in his complaint of 16 January 2004 (cf. above) which he wanted the Ombudsman to investigate. They were:

(i) Failure to supply an interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State;

(ii) Unsatisfactory and questionable explanations for the failure to reply to the complainant’s letter of 29 May 2003 to Mr T. (a Commission official);

(iii) Unsatisfactory or missing replies to three questions addressed by the complainant to Mr T. in the same letter;

(iv) Failure to provide information as to an established procedure in the United Kingdom which enables a citizen to obtain compensation for loss and/or damage caused by the infringement of Community law.

Points (i), (ii) and (iii) were mentioned on the fourth page of the complainant’s letter of 16 January 2004. They related to the letter addressed to the complainant by the Commission (signed by Mr Th., another Commission official) on 10 December 2003.

Point (iv) was mentioned on the fifth page of the complainant’s letter of 16 January 2004. The complainant explained to the Ombudsman's services that this point related to a different letter signed by Mr Th. The letter in question was dated 3 May 2002, bore the reference VM/430/2002 and was addressed to another of the Lloyd’s Names. The complainant stated that he would fax a copy of the letter to the Ombudsman. The fax was received on 29 April 2004.

The present complaint was registered on that basis and dated 29 April 2004.

On 7 May 2004, the Ombudsman's services telephoned the Commission regarding the complainant's first allegation referred to above. The relevant Commission official stated that he would look into the matter. He subsequently informed the Ombudsman's services that the interpretative communication had not yet been published. He would send a letter to the complainant giving him this information. On 24 May 2004, the Ombudsman received a copy of the Commission's letter to the complainant, dated 13 May 2004. The letter explained that the communication had not yet been prepared by the Secretariat-General due to its heavy workload. The first allegation therefore appeared to have been dealt with, and the Ombudsman accordingly decided to take up for inquiry only allegations (ii), (iii) and (iv). The complainant was informed accordingly by letter of 2 June 2004.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission addressed, in summary, the complainant's allegations as follows:

Allegation (ii)(2)

The Commission's services acknowledged receipt of the complainant's letter dated 29 May 2003 (registered on 3 June 2003). A reply was promptly prepared by the relevant official. The Commission's records clearly showed that this draft letter was prepared and last saved on the common 'j' drive of the relevant unit. The official concerned signed the letter and assumed that the letter had been sent out. No further checking was made as regards the dispatching of the letter.

It was important to bear in mind the extraordinary volume of work involved in the Lloyd's case. The Commission received 35 formal complaints, some of which on behalf of large associations. Correspondence was also received from interested parties and in particular from many members of the European Parliament. In addition to formal complaints, the Commission also received correspondence from 61 persons or organisations.

In the case at hand, the complainant wrote to the Commission again by letter dated 29 August 2003. Although this letter stated that "letters to members of the European Commission are, for whatever reason, not always acknowledged or answered", it did not state that the complainant had not received a reply to his letter dated 29 May 2003. The Commission replied by letter dated 16 September 2003 within the time-limit set out in its Code of Good Administrative Behaviour.

The complainant then wrote again on 23 November 2003, this time specifying that he had not received a reply to his letter dated 29 May 2003. The Commission services promptly investigated the matter and were surprised to find that the signed letter had not been sent.

The Commission immediately replied by letter dated 10 December 2003, again in accordance with its Code of Good Administrative Behaviour. It apologised for the failure to reply to the letter dated 29 May 2003.

The Commission apologised again to the complainant for the oversight, referring to its very heavy workload.

Allegation (iii)

The Commission first referred to the fact that the substantive issues in the complainant's letter of 29 May 2003 had already been raised on the complainant's behalf by Mr Perry, Member of the European Parliament, in a letter to the Commission dated 16 April 2002. A detailed response had been made by letter dated 6 June 2002.

The Commission submitted that it had addressed the three issues raised in the complainant's letter of 29 May 2003 as follows:

As regards the first issue, the complainant had asked why "in 1978, the European Commission withdrew the planned infringement proceedings against the United Kingdom government for failure to transpose the Insurance Directive 73/239 into English law (after allowing the maximum extension of time)".

The Commission stated that it could only repeat the information and conclusions that it had previously given to the complainant, i.e. that the Commission services were satisfied with the United Kingdom's undertaking to adopt the required legislation. The United Kingdom authorities had submitted draft regulations and had confirmed that they were using their discretionary powers to operate United Kingdom supervision in conformity with the Directive. The Commission added that this was specifically confirmed by a letter from the United Kingdom authorities dated 20 December 1977.

The Commission added that it did not know why there had been a delay of four years between the United Kingdom's commitment and its adoption of legislation on the matter.

As regards the second issue, the complainant had asked why "the European Commission allowed the United Kingdom competent authority to let Lloyd's continue to trade for four years outside Community law until 1982 when the Directive was finally transposed into English law through the Insurance Companies Act of that date".

The Commission stated, again, that the United Kingdom authorities had confirmed that they were using their discretionary powers to operate United Kingdom supervision in conformity with the Directive. It furthermore stated that there had been a range of United Kingdom insurance legislation applicable to insurers under the Insurance Companies Act 1974 and related legislation. Consequently, it could not reasonably be concluded that the Commission was allowing United Kingdom insurers to trade in breach of Community law.

As regards the third issue, the complainant had stated the following:

"I would like to question the compatibility of the Lloyd's Act 1982 with Directive 73/239. As this may require a definitive judgement by the European Court of Justice, please advise me how to achieve this. It is unlikely that such a judgment could be made by a Member State's own national courts where the outcome would tend to be heavily biased in the Member State's favour".

The Commission stated that it had always tried to make the point to complainants that national courts were competent to rule on the past conformity of national legislation with EU law.

As regards proceedings against a Member State before national courts, extensive details, including references to relevant case-law of the Court of Justice, had been provided in the Commission's letters to the complainant. The Commission referred to its letter of 10 December 2003 (referred to above), in which it had also been made clear to the complainant that any redress had to be sought before a national court. No recommendation was given to the complainant to make an application to the Court of Justice as such an application was almost certain to be inadmissible.

As regards action by the Commission to obtain a definitive ruling by the Court of Justice, the Commission had repeatedly made clear to all complainants in the "Lloyd's file" that the "objective of the infringement proceedings under EU law is to establish or restore the compatibility of national law with EU law - and not to rule on past compatibility or incompatibility of a national law".

Allegation (iv)

As regards the complainant's fourth allegation, the Commission considered that an appropriate response had been provided to this in its explanations relating to the third allegation.

The Commission also made additional remarks to underline the size and complexity of the Lloyd's file and to demonstrate that it had communicated extensively with the complainant.

The complainant's observations

In his observations, the complainant expressed dissatisfaction with the Ombudsman's handling of the present complaint and the related complaint [ C ], stating the following:

1) He did not consider that the Ombudsman had read the text of his initial [ complaint 3 ] carefully enough ("there are several other issues I have raised which [ your staff ] has not selected to be investigated [ in the present inquiry ]. A full response to all, not just some, of my concerns would be appreciated").

2) He considered that the Ombudsman’s reply to his initial [ complaint 3 ] was wrong in that the decision on inadmissibility was (according to the complainant) based on an Ombudsman decision that did not concern the issues of concern to him (i.e. the decision on complaint A); he stated that the Ombudsman's decision referred to only concerned breaches of Community law in the period after 2000, whereas the issues raised by himself related to alleged breaches in the period 1978-2000.

The complainant also stated that on 20 December 2001, the Commission had issued a press release in which it had stated that it "will decide whether or not it considers there is a violation of Community law". He wanted the Ombudsman to inquire into why no such decision had ever been made.

In relation to the allegation that had not been taken up for inquiry, i.e. the allegation concerning a failure to supply the interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State, the complainant appeared to allege that the Commission had wrongly failed to publish the said communication.

THE DECISION

1 Introductory remarks

1.1 On 16 January 2004, the complainant sent the Ombudsman a [ complaint 3 ] concerning the Commission's handling of an infringement complaint relating to alleged breaches of EC Directive 73/239 by the United Kingdom. The Ombudsman understood the complaint to be against the Commission's substantive decision in the matter and therefore rejected it because he had already decided on that matter in his decision on [ complaint 2 ]. In a telephone conversation on 29 April 2004, the complainant informed the Ombudsman's services that he was also not satisfied with the Commission’s correspondence relating to his infringement complaint. He identified the allegations in his letter of 16 January 2004 which he wanted the Ombudsman to investigate. The Ombudsman opened the present inquiry accordingly.

1.2 In his observations, the complainant expressed dissatisfaction with the Ombudsman's handling of his present complaint and of [ complaint 3 ]. He essentially raised two issues: 1) the Ombudsman had not identified all his allegations for the present inquiry; 2) the Ombudsman had, in his decision on his [ complaint 3 ], wrongly referred to his previous decision on [ complaint 2 ], as that decision according to him only concerned the period after 2000. In addition to these two issues, he put forward (1) that the Commission had wrongly failed to publish a decision on whether there was a breach of Community law by the United Kingdom, despite having stated in a press release that it would do so, and (2) that the Commission had wrongly failed to publish the interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State(3).

1.3 With regard to the complainant's first grievance against the Ombudsman's handling of his complaints, it was already made clear in the Ombudsman's reply to him [ complaint 3 ] that the many statements and remarks made in his complaint letter were not sufficiently specific to be taken up for inquiry as allegations or claims. During a subsequent telephone conversation between the Ombudsman's services and the complainant, the latter clarified his allegations and claims. The Ombudsman notes that, in accordance with his standard practice, he sent the complainant a letter that informed him about the allegations that had been taken up for inquiry. The complainant did not respond to that letter to inform the Ombudsman that he considered the list of allegations to be wrong or incomplete. The Ombudsman considers that including additional allegations at this stage of the inquiry would unnecessarily delay the review of the allegations that he has taken up for inquiry. The Ombudsman has therefore not examined the text of the [ complaint 2 ] in order to try and identify any such additional allegations. The complainant remains free, however, to submit a new complaint in which he sets out his precise allegations and claims.

1.4 With regard to the complainant's second grievance against the Ombudsman's handling of his complaints, it should be noted that the Ombudsman's decision on [ complaint 2 ] did not concern the period after 2000, but stated (as previously quoted) that "the Commission is entitled to focus its Article 226 investigation on whether there is an infringement of Community law following the entry into force of the [ United Kingdom ] Financial Services and Markets Act 2000. The Ombudsman therefore finds no maladministration in relation to this aspect of the complaint." (Emphasis added.) The Ombudsman therefore accepted the Commission's decision not to inquire into the period before the entering into force of the United Kingdom’s Financial Services and Markets Act 2000. As the complainant's concerns are with the period 1978-2000, the Ombudsman’s decision on [ complaint 2 ] was relevant.

1.5 With regard to the additional allegations (1) that the Commission had wrongly failed to publish a decision on whether there was a breach of Community law by the United Kingdom, despite having stated in a press release that it would do so, and (2) that it was also maladministration not to have published the interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State, the Ombudsman considers that neither of these allegations are necessary for the review of the allegations that he has taken up for inquiry. To avoid unnecessarily delaying a conclusion on those allegations, the Ombudsman has therefore not taken the additional allegations here referred to up for inquiry. The complainant is free, however, to submit a new complaint.

2 Failure adequately to explain lack of reply to the letter of 29 May 2003

2.1 The complainant alleged that he had received only an unsatisfactory and questionable explanation for the failure to reply to his letter of 29 May 2003 to Mr T. (a Commission official). In this letter, the complainant had asked questions relating to what he perceived to have been the Commission's wrongful failure to take action against the United Kingdom for failure to comply with EC Directive 73/239 in the late 1970s and the early 1980s.

2.2 In its opinion, the Commission explained that there had been a very heavy workload in the area concerned, and that its initial failure to reply had been due to an administrative oversight. The Commission explained that it had acknowledged receipt of the complainant's letter dated 29 May 2003 (registered on 3 June 2003), and that subsequently a reply had been promptly prepared by the relevant official. The official concerned had signed the letter and assumed that the letter had been sent out. When the complainant had informed the Commission on 23 November 2003 that he had not received a reply to his letter dated 29 May 2003, the relevant Commission services had promptly investigated the matter and realised that the letter had not been sent. The Commission concluded by stating that it had replied by letter dated 10 December 2003, apologising for the failure to reply to the letter dated 29 May 2003.

2.3 The Ombudsman has thoroughly examined the correspondence submitted to him by the complainant and the Commission. On the basis of that examination, the Ombudsman finds that the Commission appears to generally have made efforts to act diligently in its handling of communications from the complainant. When the complainant stated in a letter of 23 November 2003 that he had not received a reply to his letter dated 29 May 2003, the Commission investigated the matter immediately, replied by letter dated 10 December 2003, and apologised for its initial failure to reply.

2.4 The Ombudsman first notes that the Commission's failure to reply to the complainant's letter of 29 May 2003 was clearly an instance of maladministration. The Commission did, however, take measures to rectify the matter, and apologised to the complainant for not replying. As regards the reasons for why the Commission failed to reply, the Ombudsman considers that the Commission's explanation appears credible, and he therefore has no reason to believe that this failure was due to any other reason than an isolated administrative oversight. The Ombudsman accordingly considers that the complainant's allegation that the Commission has failed to adequately explain the lack of reply to his letter of 29 May 2003 has not been substantiated, and there appears, therefore, to be no maladministration regarding this aspect of the complaint.

3 Alleged failure to reply to the questions in the letter of 29 May 2003

3.1 The complainant alleged that the Commission had either failed to reply or had given him unsatisfactory or no replies to three questions addressed by him to Mr T. in his letter of 29 May 2003. He had, in summary, asked why the Commission withdrew a planned infringement proceeding against the United Kingdom in 1978, why the Commission allowed (as he saw it) the United Kingdom to infringe Community law, and how he himself could obtain a judgement by the European Court of Justice.

3.2 In its opinion, the Commission referred to communications that it had sent either directly to the complainant or in response to a request made by a Member of the European Parliament on behalf of the complainant.

3.3 The three questions addressed by the complainant to Mr T. all concern the Commission’s actions related to the period before the entering into force of the United Kingdom’s Financial Services and Markets Act 2000. As noted above, the Ombudsman has concluded in his inquiry into [ complaint 2 ] that "the Commission is entitled to focus its Article 226 investigation on whether there is an infringement of Community law following the entry into force of the [ United Kingdom ] Financial Services and Markets Act 2000. The Ombudsman therefore finds no maladministration in relation to this aspect of the complaint." In the light of this, the Ombudsman points out that his inquiry into the complainant's second allegation is solely aimed at assessing whether the Commission has given adequate replies on the basis of the information available. His inquiry is not aimed at assessing whether the Commission re-examined the issue of whether the United Kingdom breached Community law in the period from 1978 to the entering into force of the United Kingdom's Financial Services and Markets Act 2000.

3.4 Having examined the Commission’s opinion and its reply to the complainant's letter of 29 May 2003, the Ombudsman notes that the Commission explained to the complainant (i) that the Commission's services had been satisfied with the United Kingdom's undertaking to adopt the required legislation, (ii) that it did not consider that it had allowed the United Kingdom to infringe Community law, and (iii) that the national courts would be competent to rule on the past conformity of national legislation with Community law. The Commission explained in its opinion that it had not recommended to the complainant to make an application to the Court of Justice as such an application was almost certain to be inadmissible.

3.5 In the light of the above, the Ombudsman considers that the Commission gave the complainant adequate replies to the questions posed in his letter of 29 May 2003. There has, therefore, been no maladministration with regard to this aspect of the complaint.

4 Failure to provide information on United Kingdom procedures

4.1 The complainant alleged that the Commission had failed to provide him with information as to an established procedure in the United Kingdom which enables a citizen to obtain compensation for loss and/or damage caused by infringement of Community law.

4.2 In its opinion, the Commission stated that extensive information, including references to relevant case-law of the Court of Justice, had been provided in its letters to the complainant, and that it had also been made clear to the complainant that any redress had to be sought before a national court.

4.3 The Ombudsman considers that it is reasonable for the Commission, in its communications with private individuals relating to concrete cases, to limit its information on issues of compensation claims against Member States to information on the rights established in the case-law of the Court of Justice. The Commission cannot, in the Ombudsman’s view, be obliged to provide legal advice regarding national rules of procedure. The Ombudsman therefore considers that the complainant’s fourth allegation has not been substantiated, and that there has therefore been no maladministration with regard to this aspect of the complaint.

5 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 European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) First Council Directive on the co-ordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, Official Journal 1973 L 228, p. 3.

(2) Allegation (i) was not taken up for inquiry for the reason explained above.

(3) This related to the complainant's first allegation (concerning a failure to supply an interpretative communication on the right to seek damages for loss sustained as a result of an infringement of Community law by a Member State) which was not taken up for inquiry because it appeared that there was no interpretative communication that could be supplied.