Strasbourg, 12 December 2003

Dear Mr H.,

On 12 December 2002, you made a complaint to the European Ombudsman on behalf of Proper Foods Ltd. The complaint was against the Commission and concerned the way in which it dealt with requests for clarification of Commission Regulation (EC) No 954/2002 of 4 June 2002.

On 23 January 2003, your complaint was forwarded to the President of the Commission. On 28 January 2003, you sent additional information, which was forwarded to the Commission on 11 February 2003. The Commission sent its opinion on 15 April 2003. I forwarded it to you with an invitation to make observations, which you sent on 10 June 2003.

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

THE COMPLAINT

In December 2002, a complaint was made to the Ombudsman on behalf of an Irish company, concerning the way in which the Commission had dealt with requests for clarification of Commission Regulation (EC) No 954/2002(1) (hereafter "the Regulation").

According to the complainant, the relevant facts are, in summary, the following:

Immediately after the publication of the Regulation, several Member States approached the Commission to ask for clarification of Article 9 (1). This article contains a deadline for submission of applications for import licenses with regard to frozen beef, namely "before 14 June 2002". However, the Member States adopted different deadlines for the acceptance of such applications: either 13 or 14 June 2002. Ireland, where the complainant company is based, laid down 13 June 2002 as the deadline.

A clarification of Article 9 (4) of the Regulation was also requested. This provision explains under which circumstances, and how, Member States shall verify that applicants are not related to one another. It also states that, where related applicants are identified, all applications concerned shall be rejected.

Despite constant reminders from the Member States, the Commission only gave its clarification on 14 June 2002, i.e. after the deadline for submitting applications in certain Member States, including Ireland, had passed.

In a meeting as late as 12 June 2002, the Irish authorities advised the complainant company not to submit an application in the absence of clarification of Article 9 (4). The reason was that the Irish authorities believed that the Commission would interpret Article 9 (4) in a way that meant there would still be a relationship between the complainant company and another company from which it had been purchased. This would lead to rejection not only of the complainant company’s application, but also of the application from the company that had previously sold the complainant company. This dissuaded the complainant company from making an application on 13 June 2002.

When the Commission issued its explanatory note on 14 June 2002, it became clear that the complainant company would be eligible for an import license. The complainant company therefore submitted an application the very same day. The Irish authorities rejected this application since it was not submitted before 14 June 2002, in accordance with the Irish authorities' interpretation of the deadline in Article 9 (1) of the Regulation.

The policy of the Irish administration regarding the eligibility of applications was thus heavily influenced by the Commission's explanatory note. If the note had been available earlier, the Irish authorities would not have adopted the position they did in the meeting on 12 June 2002.

In substance, the complainant makes the following allegations:

(i) The Commission failed to issue clarification of Commission Regulation (EC) No 954/2002 in due time.

(ii) The complainant was discriminated against in comparison with applicants in other parts of the European Union.

The complainant claims the issue of a licence, or the payment of compensation.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The Regulation in question opens an annual import quota of frozen beef as required from the Community by WTO-schedule CXL. This quota has in the past been characterised by an increasing level of speculation. It was therefore decided to provide stricter criteria for participation, to avoid, in particular, the registration of fictitious operators. The sixth recital of the Regulation states that, where there are obvious reasons to suspect that fictitious operators have applied for registration, Member States should proceed to a more detailed examination of the applications.

To reflect this aim, Article 9 (4) of the Regulation specifies that where two or more applicants have, or are registered for VAT purposes at, the same postal address, or where Member States have any other serious grounds to suspect that operators are related, Member States shall verify that such applicants are not related to one another within the meaning of Article 143 of Commission Regulation (EEC) No 2454/93(2).

The text of Article 9 (4) of the Regulation and of Article 143 of Regulation 2454/93 are self-evident and can easily be construed by potential applicants. The explanatory note to the Member States is not decisive in this context. Concerning Article 9 (4), the note could not go much further than explaining, in obvious terms, that "the '143-scrutiny' is not a systematic scrutiny /.../ it shall be made only /.../ where Member States have serious grounds to suspect that applicants are related in the sense that they are not independent from one another in terms of management, staff and operations." The criteria set out in Article 143 of Regulation 2454/93 are mandatory, stating that "persons shall be deemed to be related only if: /.../".

When the complainant decided not to submit an application, allegedly taking into consideration the possible implications for the company from which the complainant company was purchased, he did this based on strictly subjective reasons and a personal assessment of commercial risk.

As far as the deadline for applications is concerned, it is irrelevant whether it was 13 or 14 June 2002. This question has already been dealt with in the letter to the complainant of 30 August 2002(3). All interested parties had sufficient time to prepare their applications, irrespective of whether the national authorities fixed the deadline as 13 or 14 June 2002.

In the light of the above, the complainant's claim is unfounded.

The complainant's observations

In his observations, the complainant repeats, in substance, his earlier arguments. He also makes, in summary, the following new points:

The Commission still has not addressed the actual issue leading to the complaint about discrimination, i.e. why two different deadlines were allowed in different Member States and why the explanatory note was only issued on 14 June 2002, despite constant reminders from several Member States.

The complainant's decision not to submit an application before the explanatory note was issued was not based on his own interpretation of Article 9 (4) of the Regulation, but on the Commission's failure to deal in time with requests for clarification of the position of companies under new ownership. It is not true that Article 9 (4) of the Regulation and Article 143 of Regulation 2454/93 are self-evident. By issuing the explanatory note, the Commission itself conceded that further clarifications were needed.

Furthermore, it is not true that the explanatory note was not decisive in the case in question. It is indisputable that the Irish authorities, in their information to the complainant, were depending fully on a clarification from the Commission. Neither it is true that it is irrelevant whether the deadline was 13 or 14 June 2002, since applicants in Member States with the later deadline could benefit from the clarifications made in the explanatory note before submitting their applications.

THE DECISION

1 The Commission's alleged failure to issue clarifications in due time

1.1 The complaint concerns the way in which the Commission dealt with requests for clarification of Commission Regulation (EC) No 954/2002(4), concerning import quotas for frozen beef. The complainant alleges that, by issuing the explanatory note only after certain Member States' deadlines for submission of applications for import licences had passed, the Commission failed to issue the explanatory note in due time. Because of the advice given by the Irish authorities, the policy of which was heavily influenced by the Commission's explanatory note, the complainant refrained from submitting the complainant company's application before the explanatory note was issued, which was done only after the Irish deadline for submission of applications.

1.2 The Commission points out that the annual import quota of frozen beef has been characterised by an increasing level of speculation and that the Regulation therefore provides for stricter criteria for participation. Accordingly, Article 9 (4) of the Regulation specifies when Member States shall verify that applicants are not related to one another within the meaning of Article 143 of Commission Regulation (EEC) No 2454/93.

1.3 The Ombudsman understands from the Commission's opinions on two earlier complaints concerning the same facts, that the purpose of the explanatory note was to assist national authorities to process applications for import licences and that it was issued in time to fulfil this purpose.(5)

1.4 In the present case, the complainant argues that the Irish authorities advised him not to submit the complainant company's application before the explanatory note had been issued and that the note was issued only after the deadline for submitting applications in Ireland had passed. The Ombudsman takes the view that the Commission cannot be held responsible for national authorities relying on, or referring to, the explanatory note for purposes other than the processing of submitted applications.

1.5 In view of the above, the Ombudsman considers that the complainant has not shown that the Commission was under a duty to issue the explanatory note to the Member States earlier than it did. The Ombudsman therefore finds no maladministration by the Commission as regards this aspect of the complaint.

2 The allegation of discrimination

2.1 In his initial complaint, the complainant alleges that the complainant company was discriminated against in comparison with applicants in other parts of the EU because of the Commission allowing differences in deadlines for submission of applications for import licences: 13 June 2002 in Ireland and 14 June 2002 in several other Member States.

2.2 The Commission argues that all interested parties had sufficient time to prepare their applications irrespective of whether the national authorities fixed the deadline as 13 or 14 June 2002. The Commission refers to a letter to the complainant, in which it informed him that the legal position is clear as regards cases where differences in language versions occur: the provisions of the language version officially recognised in the Member State of application shall apply. The Ombudsman also notes, from one of the earlier complaints referred to in 1.3 above, that the Commission has taken the view that the Irish authorities' interpretation of the deadline in the Regulation was correct. The Commission has also explained that it does not dispose of any element to justify action against those Member States which construed the deadline differently.(6)

2.4 The Ombudsman considers that the Commission's arguments that it does not dispose of any element to justify action against the differences in deadlines between Member States and that all interested parties had sufficient time to prepare their applications irrespective of the deadline seem reasonable. There appears therefore to have been no discrimination by the Commission in this respect.

2.5 In his observations on the Commission's opinion, the complainant elaborates his allegation of discrimination. The Commission did not issue the explanatory note before the expiry of the deadline for submitting applications in Ireland, but did so before the expiry of the deadline in several other Member States. According to the complainant, this gave applicants from the other Member States an advantage by allowing them to benefit from the clarifications in the note before submitting their applications.

2.6 The Ombudsman notes that the Commission has already, in this case and in the two earlier cases referred to in 1.3 above, made its position regarding the facts of the case sufficiently clear to make it unnecessary to ask it for a further opinion on the elaborated allegation.

2.7 As regards the substance of the elaborated allegation, the Ombudsman would like to underline that the complaint, and thus the allegation of discrimination, is directed against the Commission, which issued the explanatory note for the sole purpose of assisting national authorities in processing applications for import licences. In view of the finding in 1.4 above, i.e. that the Commission cannot be held responsible for the use of the explanatory note for purposes other than the processing of applications, the Ombudsman considers that the Commission has not acted in a discriminatory way.

2.8 As a result of the findings in 2.4 and 2.7 above, the Ombudsman concludes that there has been no maladministration by the Commission as regards this aspect of the complaint.

3 Claims

In view of the Ombudsman's above findings, the complainant's claims cannot be sustained.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Commission Regulation (EC) No 954/2002 of 4 June 2002 opening and providing for the administration of a tariff quota for frozen meat of bovine animals covered by CN code 0202 and products covered by CN code 02062991 (1 July 2002 to 30 June 2003), 2002 OJ L 147/8.

(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, 1993 OJ L 253/1.

(3) This letter relates to the complainant's question concerning different deadlines in different Member States due to differences in the official language versions of the Regulation. The letter states that the legal position is clear as regards cases where differences occur, i.e. the provisions of the language version officially recognised in the Member State of application shall apply. In this particular case, no discrimination took place. The application process was simply a means to get on a list of approved operators without any economic advantage attached to that approval.

(4) Commission Regulation (EC) No 954/2002 of 4 June 2002 opening and providing for the administration of a tariff quota for frozen meat of bovine animals covered by CN code 0202 and products covered by CN code 02062991 (1 July 2002 to 30 June 2003), 2002 OJ L 147/8.

(5) Cases 1712/2002/(SM)IJH and 1343/2002/(SM)IJH. No maladministration was found in these cases. The decisions can be found on the European Ombudsman's website: http://www.ombudsman.europa.eu

(6) Case 1343/2002/(SM)IJH. No maladministration was found in this case. The decision can be found on the European Ombudsman's website: http://www.ombudsman.europa.eu