Dear Mr X,

In November 2021, you made a complaint to the European Ombudsman, on behalf of Confcooperative Bruxelles, about how the European Commission dealt with your infringement complaint CHAP(2018)03690 against Romania.

In your complaint to the Commission, you argued that the Romanian authorities had breached EU law on public procurement and state aid in the context of an EU-funded project for the construction of a motor racing track in Romania.  

In your complaint to the Ombudsman, you argue that, in assessing your infringement complaint, the Commission was not impartial, failed to take into account all the relevant facts and legal arguments, and relied on the assessment by the Romanian authorities instead of making its own assessment. You also allege that the Commission discriminated against you based on language, as, in response to your request for access to documents, it sent you documents in Romanian which you contend is not a working language of the EU. Finally, you consider that the Commission took too long to assess your complaint, that it unjustifiably refused to meet with you and that it should have referred your case to the European Anti-Fraud Office (OLAF).

After careful analysis of all the information provided with the complaint, we find no indication of maladministration by the European Commission. ^[1]

The Commission has wide discretion in dealing with infringement complaints^[2]. The Commission’s policy on infringements of EU law is set out in its communication EU law: Better results through better application^[3]. When it comes to infringement complaints, the Ombudsman may examine whether the Commission has clearly explained its position, has respected the deadlines set out in the communication and has given the complainant the opportunity to provide comments before closing a case. The Ombudsman may only intervene (by asking the Commission to look at the complaint again) in case there is an indication that the Commission was manifestly wrong in its presentation of the facts or of law.

In the light of this wide discretion, it is up to the Commission to decide which inquiry measures are most appropriate for the investigation of an infringement complaint. The Commission is not obliged to refer a case to OLAF if it does not find any indication of fraud or irregularity. It is also not obliged to grant a complainant a hearing in such circumstances.

In its correspondence with you, the Commission referred to the assessment of Romanian authorities and said that they are responsible for dealing with any further complaints you may have. This approach by the Commission is reasonable and you appear to have used this possibility by taking the matter to court in Romania. Furthermore, the approach is in line with the applicable rules (set out in the Structural Funds Regulation^[4]), which confer to Member States the responsibility of management and control of structural funds.

The Commission provided you with clear information as regards why it intended to close the case and gave you the opportunity to comment on its position before doing so. After you submitted comments, and as the one-year time limit to arrive to a decision had been exceeded, the Commission, in line with the rules laid down in the above-mentioned communication, informed you in writing that it would need additional time to assess your complaint^[5]. In its subsequent correspondence with you, the Commission addressed the main points you had raised.

We also find no indication of discrimination in the fact that the Commission sent you the requested documents in their original language, Romanian, which is one of the official languages and the working languages of the EU institutions^[6]. According to the applicable rules on public access to documents^[7], documents should be disclosed in an existing version and there is thus no obligation to provide a translation.

We thus find nothing to suggest a manifest error in how the Commission assessed your infringement complaint, nor that it failed to comply with the principles of good administration.

In light of the above, the Ombudsman closes the case.

While you may be disappointed with the outcome of the case, we hope that you will find the above explanations helpful. You may want to refer your concerns to the European Court of Auditors (ECA), which may take into account the information you provided for its future audit planning, if it considers it relevant.

Yours sincerely,

 

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 01/02/2022

 

[1] Full information on the procedure and rights pertaining to complaints can be found at https://www.ombudsman.europa.eu/en/document/en/70707. 

[2] See judgment of the Court of 14 February 1989, Starfruit v Commission, 247/87:(https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61987CJ0247&from=EN 

[3] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN

[4] See Article 58 of Regulation No 1083/2006, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006R1083&from=IT

[5] Point 8 of the Annex to the communication EU law: Better results through better application.

[6]As set out in Regulation No 1/58  (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:01958R0001-20130701&qid=1643356716433&from=EN)

[7] Article 10(3) of Regulation  No 1049/2001 (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=en#page=4)