Background to the complaint

1. In April 2017, the complainant submitted an infringement complaint to the European Commission claiming that the United Kingdom (UK) was in breach of EU law on the recognition of professional qualifications (the Professional Qualifications Directive)[1]. In particular, the complainant argued that a scheme introduced by the UK authorities[2] imposed additional requirements on persons who had obtained professional qualifications as doctors in another EU Member State before giving them access to the profession in the UK. He argued that this was at odds with the system of automatic recognition of qualifications under the Professional Qualifications Directive.

2. In October 2022, the Commission informed the complainant that it had launched an infringement procedure against the UK on its own initiative in relation to the issue raised in his complaint. However, as the UK had left the EU on 31 January 2020, it would no longer pursue the infringement procedure, and it also intended to close his case. The Commission invited the complainant to submit any observations within a period of four weeks, which the complainant did.

3. On 28 April 2023, the Commission replied to the complainant, stating that it had closed his complaint on 26 January 2023. It also said that the infringement procedure to which it had previously referred was opened against the UK in reaction to the complainant’s complaint “and to several other[s]”,[3] and was part of a “batch” of infringement procedures that were launched against 27 Member States for their breaches of the Professional Qualifications Directive. The Commission provided details on how the procedure had progressed, but stated that it had decided to close the case after the UK’s exit from the EU.  

4. Dissatisfied with how the Commission had dealt with his infringement complaint, the complainant turned to the Ombudsman.

The inquiry

5. The Ombudsman opened an inquiry into the time taken by the Commission to deal with the complaint as well as its reasons for not pursuing the infringement procedure against the UK.

6. In the course of the inquiry, the Ombudsman received the reply of the Commission on the complaint. The complainant did not submit comments on the Commission’s reply.

The time taken by the Commission to assess the infringement complaint

Arguments presented to the Ombudsman

7. The Commission stated that it assessed the complainant’s infringement complaint in the broader context of the ongoing compliance checks at the time for the Professional Qualifications Directive. These compliance checks ultimately resulted in the preparation of two ”batches” of infringement procedures against Member States.

8. On 25 January 2019, as a part of the second batch, the Commission sent a letter of formal notice[4] to the UK. Among other issues, the Commission claimed that the UK breached Article 55 of the Professional Qualifications Directive by requiring doctors who had obtained professional qualifications as general practitioners in another Member State to undergo a period of supervised practice before being registered/approved by the UK national health insurance fund and thus have full access to the profession.

9. The Commission initiated the infringement procedure against the UK on its own initiative. Since the subject matter of the complainant’s complaint was related to the infringement procedure, the Commission linked the complaint to the infringement procedure on 25 February 2019. The Commission made this change in its internal application for managing infringement complaints, which is a standard procedural arrangement in such cases, but it did not inform the complainant.

10. The time the Commission took to follow up on the complaint was related to the complexity of the underlying issue, the necessity to establish the facts surrounding the UK’s administrative practices, and the fact it grouped all relevant complaints into one infringement procedure. The Commission then entered into negotiations with the UK authorities.

11. The Commission acknowledged that, once the letter of formal notice was sent and the complainant’s complaint was linked to the ongoing infringement procedure, it should have informed the complainant. While the Commission found a draft message to the complainant to this end, it had no record of the message actually being sent. It is thus possible that the message might not have been sent. The Commission had no evidence of any correspondence with the complainant between the registration of his complaint in April 2017 and 28 October 2022, when the Commission sent its ‘pre-closure letter’ informing him of its intention to close his case. The Commission acknowledged that this was not in line with the procedural rules and has since taken measures to address this.

12. As regards the decision to close the infringement procedure, the Commission referred to EU case-law[5], which has established that it has discretion to decide whether to start and conclude an infringement procedure even if the related breach of the EU law persists or has not been entirely addressed.

13. The decision to close the infringement procedure against the UK was based on the specific circumstances of the case. First, the issue concerned only one particular category of doctors. Second, the UK authorities showed their willingness to review the scheme, which also affected UK citizens who had obtained qualifications as general practitioners in the UK. The UK authorities initially contended that there was no breach of Article 55 of the Directive. However, in the subsequent correspondence with the Commission, they declared that they were willing to carry out a full review of the scheme and to introduce changes if necessary.

14. In addition, as it was difficult for the Commission to monitor the compliance of UK law and administrative practices with EU law following the withdrawal of the UK from the EU, the Commission considered that there was no purpose in pursuing the infringement procedure.

The Ombudsman's assessment

15. The Commission has recognised the crucial role of complaints not only to detect infringements of EU law[6], but also to reinforce the infringement procedures the Commission launches on its own initiative, as in this case. In either case, the Commission should deal with complaints in a timely manner and ensure complainants receive regular updates on their complaints.

16. According to the Commission’s own rules[7] it aims to reach a decision to issue a formal notice or to close the case within one year after the registration of the infringement complaint. Where the Commission cannot meet this deadline, it should inform complainants in writing. The complainant’s infringement complaint was registered in 2017. Even if the Commission’s own-initiative procedure, to which the complaint was linked in 2019, started later, the fact remains that the Commission does not appear to have provided any information to the complainant during this two-year period. 

17. The Commission itself acknowledged that it failed to communicate with the complainant in an adequate and timely manner. While it appears to contend that this was due to a technical error, the fact remains that, for a period of over five years, the complainant received no information on how the Commission was dealing with his infringement complaint. Furthermore, although the Commission acknowledged this error in its reply to the Ombudsman, it does not appear to have apologised to the complainant. This amounts to maladministration.

18. However, as the Commission has now closed the case and provided explanations for this, there would be no purpose served by making recommendation, also given the Ombudsman’s ongoing strategic initiative into delays in how the Commission handles infringement complaints and how it communicates with complainants. [8] The Commission could, however, consider apologising to the complainant for failing to keep him updated.

19. As regards the time taken to conclude the infringement procedure, the Commission provided reasonable explanations to justify the delay. The Commission stated that it was simultaneously pursuing multiple infringement procedures concerning the application of the Professional Qualifications Directive in different Member States[9]. Moreover, the Commission appears to have been active in pursuing the infringement procedure, conducting negotiations with the UK authorities, which committed to change the relevant rules. The Commission also provided reasonable explanations as to why it decided to close the infringement procedure after the UK’s withdrawal from the EU. This is in line with the Commission’s wide discretion in how to conduct infringement procedures[10].  

Conclusion

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

There was maladministration by the European Commission in failing to keep the complainant informed on how it was handling his infringement complaint over a period of five years.

The Commission provided adequate explanations for the time taken to conduct the related own-initiative infringement procedure, and the decision to close the procedure.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 07/11/2024

 

[1] Directive 2005/36/EC on the recognition of professional qualifications - https://eur-lex.europa.eu/eli/dir/2005/36/oj - as amended by Directive 2013/55/EU - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0055

[2] The Inclusion and Refresher Scheme

[3] Infringement procedure INFR(2018)2308.

[4] More detail on how the Commission conducts infringement procedures: https://commission.europa.eu/law/application-eu-law/implementing-eu-law/infringement-procedure_en

[5] Judgment of the Court of 14 February 1989, Starfruit v Commission, 247/87: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0247

[6] In its communication EU law: Better results through better application, C/2016/8600: https://eur-lex.europa.eu/legal-content/EN/TXT/?toc=OJ%3AC%3A2017%3A018%3ATOC&uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG

[7] Ibid.

[8] SI/6/2024/JN https://www.ombudsman.europa.eu/en/case/en/65549

[9] 25 then EU Member States were the subject of infringement procedures: https://ec.europa.eu/commission/presscorner/detail/cs/ip_19_1479

[10] Judgment of the Court of 14 February 1989, Starfruit v Commission, 247/87: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0247