The background to the complaint

1. On 27 May and 20 July 2011, an Italian citizen (hereinafter referred to as the 'complainant') lodged a number of complaints with the Ombudsman against the European Commission, namely, complaints 1214/2011/(IP)EIS, 1215/2011/(IP)EIS, 1216/2011/(IP)EIS and 1217/2011/(IP)EIS. They concerned the Commission's alleged failure to reply to the complainant's correspondence. The Ombudsman decided to open inquiries into the complainant's complaints and instructed the legal officer in charge of the cases to seek a rapid solution by providing the Commission the possibility to address the complainant's concerns.

2. Subsequently, on 26 July 2011, the Commission's Secretariat General sent a letter to the complainant, referring to the fact that, in the space of two years, the latter had sent 57 infringement complaints to the Commission's dedicated mailbox. In addition, 68 letters or e-mails had been registered in the correspondence register of the Commission's Secretariat-General. In addition, there appeared to be a number of unregistered messages not included in the aforesaid figures. According to the Commission, if many citizens were to submit as many complaints and other letters as the complainant did, it would not be in a position to handle complaints and other correspondence properly. In this respect, it added that citizens exercising their right to submit an infringement complaint should do so "in a proportionate and reasonable way". Moreover, the Commission stated that the large number of complaints submitted by the complainant reduces the capacity of its services to dedicate time to complaints submitted by other Union citizens. Consequently, the Commission reserved the right to discontinue correspondence with the complainant and invited him to stop writing to it in the future, in order "to allow the Commission services to reply to letters and requests from citizens who address the Commission in a reasonable manner".

3. Dissatisfied with the Commission's above letter, the complainant again turned to the Ombudsman[1].

4. In the interest of procedural economy, the Ombudsman decided to deal with the complainant's complaints jointly in the framework of the present own-initiative inquiry. Hence, he closed his separate inquiries into the aforementioned complaints.

The subject matter of the inquiry

5. The Ombudsman included the following allegation and claim in his inquiry.

Allegation:

The Commission wrongly decided not to reply to the complainant's present and future correspondence.

Claim:

The Commission should reply to the complainant's e-mails and revoke its decision to interrupt correspondence with the complainant.

6. In his opening letter, the Ombudsman noted that the present inquiry concerns the right set out in Article 20(2) TFEU[2] and Article 41(4) of the Charter of Fundamental Rights[3] to address the Union institutions. He also noted that Point 4 of the European Commission's Code of Good Administrative Behaviour (CGAB)[4] explicitly provides that its standard rules concerning replies to correspondence do not apply to “correspondence which can reasonably be regarded as improper, for example, because it is repetitive, abusive and/or pointless”. Article 14(3) of the European Code of Good Administrative Behaviour contains a similar provision.

7. The Ombudsman also asked the Commission if it could clarify, in the context of its opinion, (i) to what extent it considered that the complainant's infringement complaints were justified, and (ii) whether it considered the complainant's correspondence to be “improper” and, if so, why.

8. In the letter opening his own-initiative inquiry, the Ombudsman also pointed out that the object of this own-initiative inquiry includes, in addition to the specific points relating to the complainant's case, the identification of generally useful guidelines for such cases.

9. Finally, the Ombudsman recognised the fact that the complainant is a source of a very large amount of correspondence, requests and complaints, and that, overall, the Commission's services had so far dealt diligently and professionally with the complainant's correspondence.

The inquiry

10. On 19 September 2011, the Ombudsman opened an inquiry and invited the Commission to submit an opinion. On 23 November 2011, he transmitted further documents to the Commission which he had meanwhile received from the complainant. The Ombudsman asked the Commission to also take these documents into account in its opinion on the case. The Commission sent its opinion to the Ombudsman on 22 March 2012. The opinion was forwarded to the complainant, who sent observations on 10 May 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

11. Considering the close connection between the allegation and claim included in his own-initiative inquiry, the Ombudsman will deal with them jointly.

A. Allegation that the Commission wrongly decided not to reply to the complainant's present and future correspondence and related claim

Arguments presented to the Ombudsman

12. In his complaints leading to the Ombudsman's own-initiative inquiry, the complainant alleged that the Commission wrongly decided not to reply to his present and future correspondence. He claimed that the Commission should reply to his e-mails and revoke its decision to interrupt correspondence with him.

13. In its opinion, the Commission made the following points.

14. Concerning the applicable provisions, the Commission first recalled its commitment to comply with the provisions of the CGAB and observed that it attaches great importance to replying to correspondence and complaints within the deadlines laid down in that Code. Furthermore, the Commission stated that it also attaches great importance to respect for the guarantees for complainants set down in its 2002 Communication[5]. In this respect, it pointed to the Commission's 28th annual report on monitoring the application of EU law[6], which places special emphasis on the efficient management of cases, and reports on the new system introduced in September 2009 which is specifically designed for the registration and management of complaints and enquiries by citizens on the application of EU law by a Member State (this so-called 'CHAP' system).

15. As regards the Commission's handling of the complainant's correspondence and complaints, as well as its decision not to reply to them, the Commission made the following remarks:

-With regard to complaint 1214/2011/(IP)EIS, it stated that, following the Ombudsman's inquiry, its services provided a full reply and subsequently informed the complainant of the closure of the file. The Commission further regretted that it did not send an acknowledgment of receipt and that it did not reply within one year. It stated, however, that in the meantime the complainant received a full reply.

-Concerning complaint 1215/2011/(IP)EIS, the Commission noted that it had duly acknowledged receipt of the complainant's e-mail and regretted that it did not reply to the complainant within one year. It added that a complete answer has since been given to the complainant.

-Regarding complaint 1216/2011/(IP)EIS, it conceded that it failed to reply in a timely fashion to the complainant's follow-up e-mails. At the same time, it stated that a complete reply to the initial correspondence had been given. A final reply has been sent in the meantime.

-With reference to complaint 1217/2011/(IP)EIS, the Commission stated that it duly replied to the complainant and that it reserved the right to suspend repetitive correspondence.

-As to complaint 1527/2011/EIS, the Commission stated that its "letter of 26 July 2011 to the complainant referred to his six emails sent to the SG in June and July, about various subjects, and observed that he had submitted in the last two years at least 125 mail items visible to the SG[7] in databases open to it (adding that other mail items addressed to other services and not then visible to the SG would increase that number). The letter also recalled that Commission services had already suspended correspondence with the complainant on at least five subjects. In these circumstances, and while underlining the usefulness of citizens' complaints to the Commission in its examination of the application of European law by Member States, the Commission letter of 26 July 2011 invited the complainant to cease writing to the Commission so that the services might be able to give proper treatment to other citizens' correspondence, and stated that any future abusive correspondence might not receive a reply. The complainant replied on 27 July 2011 dismissing the Commission suggestions, and following that reply and the Ombudsman's letter of 19 September 2011, the Commission registered all six emails of June and July 2011 to which the letter of 26 July 2011 referred, and replied requesting further information. On receipt of the further information in respect of three of the emails, the Commission registered them in CHAP (email of 17 June 2011 as CHAP(2011)2964, email of 11 July 2011 as CHAP(2011)2970 and email of 17 July 2011 as CHAP(2011)2966) and attributed them to the competent services for reply. The complainant does not appear to have responded to the Commission's request in respect of his three emails of 22 June 2011, 23 June 2011, and 26 June 2011. Since then, all his new complaints have been continued to be registered in CHAP". Finally, the Commission stressed that, although it had invited the complainant, in its letter of 26 July 2011, to stop writing to it, it has continued to deal with the complainant's previous and subsequent correspondence in the usual way.

As far as the further documents which the Ombudsman transmitted to the Commission in the course of his inquiry are concerned, the Commission provided detailed information on how it dealt, or is still dealing, with them. It regretted delays regarding certain correspondence, such as deciding within one year on how to proceed concerning an infringement complaint, and, on occasions, the failure to acknowledge receipt of certain infringement complaints submitted by the complainant. It assured the Ombudsman that its services are giving considerable attention to the complainant's infringement complaints and apologised for the aforesaid incidents.

16. In this context, the Commission also provided a general description of the complainant's complaints, which represent a challenge to its services due to their subject, volume and structure. In this respect, it observed that the content, length and layout of the complainant's e-mails vary considerably. They rarely give details of any approaches made to national administrative authorities (whether central, regional or local) or to a national or regional ombudsman, and lack details concerning recourse to national courts or other procedures. Often they are very short, making it difficult to classify his correspondence as complaints. The complainant regularly forwards documents or links to blogs or articles on the internet, or references to television broadcasts with invitations to the Commission to read or view the material, and without any description of the situation which could represent a breach of EU law. The Commission added that the complainant addresses his follow-up correspondence to the Commission's Secretariat-General, instead of the relevant services in charge. The complainant's correspondence is unusual in that it covers many subjects and may stretch over several years. Whereas most complaint cases consist of a complaint, followed by an acknowledgement, a reply, and a closure letter, many of the complainant's cases become long and complicated exchanges of multiple e-mails. The complainant also seeks to re-open complaint cases which were previously closed. However, the Commission stressed that its comments about the complainant's correspondence do not constitute a criticism, but merely explain why it may be difficult to deal with it.

17. In reply to the Ombudsman's request (i) to clarify to what extent the complainant's infringement complaints were justified, and (ii) whether it considered the complainant's correspondence to be improper, the Commission observed that it is difficult to reply unequivocally.

18. As regards (i), the Commission databases show that seven items of correspondence from the complainant were registered as complaints in the Commission's official infringements database in the period 2008-2009. It added that doing so was in line with the procedure applicable before the introduction of CHAP in September 2009. One of these complaints is open, while six have been closed. Only one complaint from the complainant led to a letter of formal notice to a Member State. However, the Commission added that it is not possible to say exactly how many of the complainant's very numerous complaints are either justified or unjustified, as some of them may have been addressed without any need for sending a letter of formal notice.

19. Concerning (ii), as it reminded the complainant by letter of 26 July 2011, the Commission had, on numerous previous occasions, already suspended its correspondence with him on various subjects, on the grounds that his e-mails were repetitive in character. The Commission considered the correspondence referred to in its letter of 26 July 2011 "improper", in the sense of justifying suspension as repetitive under the provisions of the CGAB. It added, however, that it did not consider the complainant's correspondence in general to be "improper" under the provisions of the CGAB.

20. As far as the identification of generally useful guidelines for cases in which it discontinues correspondence with a complainant is concerned, the Commission noted that the applicable provisions (referred to under point 14 above) already provide sufficient guidelines for its staff. In this respect, it explained that its services assume responsibility for the decision to suspend correspondence with a citizen concerning a particular subject. They do not take such a decision lightly. The Commission added that it has not issued any further guidance about the interpretation of the term "improper" in the CGAB.

21. Finally, the Commission apologised for any failings and omissions in dealing with certain correspondence and complaints from the complainant, and added that the failure to do so only concerns a very small proportion of the complainant's overall correspondence.

22. In his observations, the complainant stressed that he already made all his comments and wished the Ombudsman rapidly to conclude his inquiry in order not to lose more time.

The Ombudsman's assessment

23. At the outset, the Ombudsman notes that, in its 2002 Communication, the Commission acknowledged the vital role which citizen complaints play in helping it to detect infringements of Union law. As long as a citizen contacts the Commission and identifies alleged violations of Union law, the Commission should therefore diligently deal with the information it receives. Failing to do so would also prejudice the right of citizens, enshrined in Article 20(2) TFEU and Article 41(1) of the Charter of Fundamental Rights of the European Union, to address the Union institutions.

24. The allegation included in the Ombudsman's inquiry concerns the Commission's handling of the complainant's 'present and future correspondence'. In this regard, the complainant's 'present correspondence' refers to the correspondence related to the complainant's complaints 1214/2011/(IP)EIS, 1215/2011/(IP)EIS, 1216/2011/(IP)EIS, 1217/2011/(IP)EIS and 1527/2011/EIS. It also covers those items of correspondence that the complainant submitted to the Ombudsman and which the Ombudsman forwarded to the Commission in the framework of the present inquiry. However, the reference to the complainant's present correspondence does not include the correspondence which the complainant sent to the Commission on other occasions in the past.

25. In order to assess whether the complainant's allegation is founded, the Ombudsman needs to analyse how the Commission handled the relevant correspondence. The Ombudsman in particular needs to look at those instances where the Commission discontinued correspondence with the complainant and to examine whether the Commission's position, in this respect, was reasonable and in line with the CGAB.

26. The Ombudsman notes that, as regards the correspondence covered by the present allegation, the Commission informed the complainant by letter on 26 July 2011 of a possible future suspension of correspondence. While it is true that the Commission discontinued correspondence with the complainant on previous occasions, these are not covered by the present inquiry. As a consequence, in what follows, the Ombudsman merely needs to assess the implications of the Commission's letter of 26 July 2011.

27. In relation to the Commission's letter of 26 July 2011, the Ombudsman takes note of the Commission's statement that, even though it had, in the said letter, invited the complainant to stop writing to it and reserved the right to discontinue corresponding with him, it continued to deal with the complainant's correspondence in the usual way. Additionally, the Commission pointed out that it considered "improper" only certain e-mails sent by the complainant, and that it did not, therefore, intend to cease to reply to all of the complainant's correspondence. The complainant did not dispute this in his observations. Therefore, the Ombudsman concludes that, in spite of the fact that, through its letter of 26 July 2011, the Commission invited the complainant to cease writing to it and reserved the right to discontinue corresponding with him, it in fact continued dealing with the complainant's correspondence.

28. The Ombudsman also notes that the Commission regretted certain failings and omissions which occurred in its dealing with certain of the complainant's correspondence and complaints and apologised for certain instances of mishandling of his complaints. In addition, the Ombudsman cannot fail to note that the Commission provided him with a comprehensive and detailed overview of its efforts to dealing with the complainant's voluminous correspondence. This overview confirms the Ombudsman's preliminary view, set out in his opening letter, namely, that the Commission has, by and large, dealt thoroughly with the complainant's correspondence and complaints. In the given context, the Ombudsman welcomes and applauds the Commission's commitment diligently to deal with correspondence and infringement complaints in accordance with the applicable provisions. The Ombudsman further notes that the Commission has apologised for shortcomings that may have occurred in this context.

29. Lastly, as regards the identification of generally useful guidelines, the Ombudsman concurs with the Commission's view that the applicable rules provide a sufficient level of guidance to Commission staff. Nevertheless, bearing also in mind the importance of the rights referred to in paragraph 23 above, he considers it useful to highlight that any decision reaching the conclusion that correspondence sent by a citizen is improper, for example, because it is repetitive, abusive and/or pointless, must be based on an individual and substantive assessment of a citizen's correspondence.

30. In view of the above, the Ombudsman concludes that there are no grounds for further inquiries into the Commission's activities concerning the allegation and claim here under review.

B. Conclusion

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

There are no grounds for further inquiries into the Commission's activities concerning the allegation and claim here under review.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 29 July 2013

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[1] The complainant's complaint was registered under reference 1527/2011/EIS and concerned the Commission's alleged decision not to reply to the complainant's present and future correspondence.

[2] According to point (d) of the first subparagraph of Article 20(2) TFEU, "every citizen of the European Union has the right to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language". According to the second subparagraph of the same article, "[t]hese rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder".

[3] Article 41(1) of the Charter contains a provision very similar to that in Article 20(2)(d) TFEU.

[4] European Commission Code of Good Administrative Behaviour on relations with the public (OJ 2000 L 267, p. 63).

[5] Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law" (COM(2002) 141 final, OJ 2002 C 244, p. 5). The Ombudsman notes that the Commission has in the meantime updated its Communication in 2012 (Communication from the Commission to the Council and the European Parliament updating the handling of relations with the complainant in respect of the application of Union law (COM(2012) 154 final)).

[6] Report from the Commission, 28th Annual Report on Monitoring the Application of EU Law (2010) (Brussels, 29.9.2011, COM(2011) 588 final)

[7] 'SG' stands for Secretariat-General.