Strasbourg, 19 January 2005

Dear Mr X.,

On 23 October 2003, I received your complaint against the European Commission concerning its alleged failure to reply to letters and its handling of a file.

On 17 November 2003, I forwarded your complaint to the Commission. The Commission sent its opinion on 19 February 2004, which I forwarded to you with a request for observations.

On 18 March 2004, you sent your observations including annexes.

On 2 May 2004, you sent copies of documents concerning the situation of your company in the proceedings before a national court, which appeared not to be related to your complaint.

At your request, your complaint has been dealt with confidentially.

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

I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The complainant appears to be the accountancy consultant of Y, a private telecommunications company in Luxembourg.

According to the complainant, the relevant facts were as follows.

In 2001, the manager of Y submitted a complaint to the Commission Directorate General for Competition against EPT, the public network operator in Luxembourg, concerning its refusal to give access to its local loop for his company. The Commission Directorate General for Competition was approached about this matter on December 2001 and 15 January 2002 by the Y manager and on 25 January 2002 by the latter's lawyer.

The complainant addressed the Commission for the first time on 4 February 2003. He sent other letters to the Commission on 9 and 17 February 2003 and on 14 April 2003. The Commission did not reply to his letters and did not send acknowledgements of receipt of them.

In his letters to the Commission of 9 and 17 February 2003, the complainant referred to what he considered to be unfair commercial practices in the telecommunications sector in Luxembourg. In his letter of 14 April 2003, he informed the Commission that, in March 2003, EPT had cut off access to its local loop for Y.

According to the complainant, Y’s manager and the latter’s lawyer corresponded with the Commission. In an e-mail sent to the Y manager on 13 December 2002, the Commission stated that during one year the responsible Commission official had had no time to deal with Y's case and that a secretary had lost a document concerning the case.

On 1 June 2003, the complainant wrote to the President of the Commission regarding the problems of Y and received a reply on 23 June 2003, signed on behalf of the President by a head of unit. In its letter, the Commission informed the complainant that its inquiries concerning Y’s complaint were ongoing but that it did not consider the complainant to be its interlocutor in this case, given that the complaint was submitted to the Commission by somebody else (the manager of Y). The complainant replied to this letter on 30 June 2003 but did not receive an answer.

On 19 October 2003, the complainant lodged a complaint with the Ombudsman and attached a number of annexes to his complaint (copies of the correspondence with the Commission and documents related to Y's financial and legal situation).

He alleged that the Commission neither answered nor acknowledged receipt of a number of letters concerning Y's case (namely the letter of the Y manager dated 15 January 2002, the letter of the lawyer of the Y manager dated 25 January 2002 and the complainant’s letters of 4, 9 and 17 February 2003, 14 April 2003 and 30 June 2003).

He also alleged that the Commission admitted in its e-mail of 13 December 2002 that it had not conducted an inquiry into Y's complaint for one year and justified such a delay by putting forward that it had had no time and that a document from the file on the case had been lost.

Finally, he alleged that the Commission did not verify (in the light of Y's complaint submitted to the Commission) EPT's assertion that Y’s connection was cut off because Y had not paid its bills.

On 2 May 2004, the complainant sent to the Ombudsman copies of documents which appeared not to be related to the complaint as they concerned the financial situation of Y and proceedings before the national court concerning access to the local loop.

THE INQUIRY

The Commission's opinion

The opinion sent by the Commission can be summarised as follows.

On 25 April 2001, the Commission received a complaint concerning the refusal by EPT, the telecommunications operator of the fixed public telephone network in Luxembourg, to provide access to its local loop to Y. The complaint was submitted by the manager of Y and registered under reference number COMP 38136.

Since that date, the Commission has regularly exchanged correspondence with the parties concerned with the case: the manager of Y (5 communications sent and 12 communications received between 25 April 2001 and 25 June 2003) and EPT. The Commission services also went to Luxembourg in order to check the circumstances of the case.

On 4 February 2003, concurrently with the investigation of the complaint, the Commission started receiving communications from the complainant, who, according to the Commission, was apparently a relative of the manager of Y. The Commission received 5 communications: faxes dated 4, 9 and 17 February 2003 and 14 April 2003 and a letter to Mr Prodi dated 1 June 2003.

On 23 June 2003, the Commission replied to the complainant. In this letter, the Commission thanked the complainant for his correspondence. However, it did not understand in what capacity he was intervening in the case, because until that date the official contact of the Commission appeared to be the manager of Y. The Commission also indicated in this letter that the investigation of the complaint had been suspended given that the Commission had not received a reply to that request for further information that it sent to the Y manager on 1 April 2003 (with a copy sent to the latter's lawyer on 25 June 2003).

The complainant sent an answer to the Commission on 30 June 2003. He put forward in his letter that he was intervening in the case of Y because of his oath of office (that he would inform the authorities about punishable facts of which he has knowledge). He also pointed out that it was possible to contact the lawyer of Y's manager.

In its opinion to the Ombudsman, the Commission argued that its letter of 23 June 2003 constituted an answer to all the communications previously sent by the complainant (from 4 February 2003 until 1 June 2003).

The Commission also considered that the communications from the complainant, dated 4, 10 and 17 February and 14 April 2003, did not call for an individual and specific reply for the following reasons:

The complainant's fax of 4 February 2003 was an answer to an e-mail from the Commission dated 13 December 2002 and was therefore allocated to the file of the Y complaint. His fax of 9 February 2003 was a request to be given the address of M. Buigues and M. Monti and a reply was not necessary given that the requested addresses were known by the manager of Y and accessible on the Commission's website and through the Commission's office in Luxembourg. In the fax dated 17 February 2003, the complainant asked the Commission to take into account the documents provided by him and to include them in the file of the Y complaint submitted to the Commission. By fax dated 14 April 2003, the complainant sent a press article concerning the opening of the telecommunications market in Luxembourg, with a short introductory letter. The Commission stated that it did not answer this fax because, on 1 April 2003, it had contacted Y for information on the basis of documents previously provided by the complainant. The Commission also considered it unnecessary to answer specifically to this letter given that it had already started to prepare the complex answer to all four letters (i.e. the letters of 4, 9 and 17 February and 14 April 2003) sent previously by the complainant.

As regards the letter from the complainant dated 30 June 2003, in which the complainant clarified why he was intervening in the Y case and also, inter alia, gave contact details for the lawyer of Y's manager, the Commission states that it took "due note" of this letter. The Commission also pointed out that this letter contained elements which had already been referred to by the Commission in its letter to the complainant dated 23 June 2003. The Commission also added that the person empowered to act as regards the complaint of Y was the manager of Y and that the Commission had been waiting for the answer of the latter in order to be able to pursue its inquiries into his complaint.

The Commission also stated that, contrary to the complainant's allegations, it had sent a copy of its letter addressed to the manager of Y to his lawyer and in support of this statement attached the acknowledgement of receipt.

As regards the correspondence with the manager of Y, the Commission explained that on 1 April 2003 it had sent him the request for additional information (and on 25 June 2003 a copy to his lawyer) and up to the date of the opinion had not received his answer.

In summary, the Commission took the view that it has handled the communications from the complainant, as well as those from the manager of Y, in a proper way.

The Commission also put forward that according to its practice, when dealing with cases which require a large correspondence, the documents sent to the Commission "down-stream" (one after another) are stored for a complex analysis. However, the Commission declared that it sends an acknowledgement of receipt and/or a substantive reply to every electronic communication, letter or fax which it receives.

Finally the Commission explained that its statement that the case was dropped for one year given the lack of time was relevant only for the year 2002 when it had to give priority treatment to the Deutsche Telecom and Wanadoo cases. In this context, the Commission stated that according to the case law of European courts (namely Case T-24/90 (1991) paragraph 77) its action was compatible with Community law.

As regards the Commission's statement in the same correspondence with the complainant that a document was lost by a secretary, the Commission acknowledged its administrative error and put forward that very soon after this correspondence the document in question was found. The Commission stressed that it acted frankly in its relations with the complainant.

In its opinion, the Commission considered that the complainant wrongly alleged that the Commission had not verified EPT's allegation concerning the Y bills (that the bills were not paid and for that reason the disconnection occurred). In this context, the Commission pointed out that it informed the complainant in its letter dated 23 June 2003 that, according to its information, the disconnection suffered by Y resulted from a commercial dispute concerning outstanding payments and that the case was being carefully dealt with by a national court. Therefore, the Commission did not find a Community interest to act at that stage of the investigation. However it may be possible to attach the issue submitted by the complainant to the Y case in the future, on the basis of convincing and explicit arguments.

The Commission attached a number of annexes to its opinion, including copies of all the communications mentioned in the opinion (from itself, the complainant and the Y manager and the acknowledgement of receipt for the Commission's fax of 25 June 2004).

The complainant's observations

In summary, the complainant did not agree with the comments of the Commission on his complaint.

THE DECISION

1 Alleged failure to reply to letters

1.1 The complainant alleges that the Commission neither answered nor acknowledged receipt of a number of letters concerning Y's case (namely the letter from the Y manager dated 15 January 2002, the letter of the lawyer of the Y manager dated 25 January 2002 and the complainant’s letters of 4, 9 and 17 February 2003, 14 April 2003 and 30 June 2003).

1.2 The Commission puts forward that it sends an acknowledgement of receipt and/or a substantive reply to every electronic communication, letter or fax which it receives.

The Commission states that it considered that the letters from the complainant dated 4, 9, 17 February and 14 April 2003 did not call for an individual and specific reply due to their content. The Commission also argues that its letter sent to the complainant on 23 June 2003 constitutes an answer to all the communications previously sent by the complainant (from 4 February 2003 to 1 June 2003). The Commission also states that it took "due note" of the complainant's letter dated 30 June 2003 and that this letter contained elements which had already been referred to by the Commission in its letter to the complainant dated 23 June 2003.

Finally, the Commission points out its concerns as regards the capacity in which the complainant was intervening in the case of Y, given that the official contact of the Commission in this case was another person.

1.3 The Ombudsman notes that the Commission's general statement in its opinion that it sends an acknowledgement of receipt and/or a substantive reply to every electronic communication, letter or fax which it receives is consistent with the Commission's own code of good administrative behaviour(1). According to the Commission’s code, a reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter by the responsible Commission's department. If a reply cannot be sent within the deadline mentioned above, a holding reply is to be sent, indicating a date by which the addressee may expect to be sent a reply.

1.4 As regards the Y manager’s letter dated 15 January 2002 and the letter from the manager’s lawyer dated 25 January 2002, the available information does not enable the Ombudsman to make a finding as to whether the Commission acknowledged and/or replied to these letters in due time.

1.5 As regards the complainant’s letters of 4, 9 and 17 February and 14 April 2003, the Ombudsman first points out that the capacity in which the complainant was addressing the Commission does not seem relevant to the duty of answering citizens' letters.

1.6 The Ombudsman notes that the Commission explained that the complainant's fax of 4 February 2003 was itself an answer to an e-mail from the Commission dated 13 December 2002. The Ombudsman considers that the Commission’s view that the fax did not therefore require an individual answer seems reasonable. However, the Ombudsman notes with surprise the Commission's view that a reply was not necessary to the complainant's request dated 9 February 2003 to be given the address of M. Buigues and M. Monti on the ground that the requested addresses were known by the manager of Y and accessible on the Commission's website and through the Commission's office in Luxembourg.

1.7 The Ombudsman also notes that although the Commission stated in its opinion that its letter to the complainant dated 23 June 2003 constituted an answer to the complainant's letters of 4, 9 and 17 February 2003 and 14 April 2003, the Commission’s letter of 23 June 2003 refers only to the complainant's e-mail "of 4 June 2003" (the Ombudsman understands: "of 1 June 2003") and does not mention the complainant’s earlier correspondence. The Ombudsman therefore does not understand how the Commission’s letter of 23 June 2003 can be considered as answer to the earlier correspondence.

1.8 The Ombudsman therefore takes the view that the Commission has not consistently applied its own code of good administrative behaviour in dealing with the complainant’s correspondence. This was an instance of maladministration. A critical remark will therefore be made as regards this aspect of the complaint.

2 The Commission’s handling of the Y file

2.1 The complainant alleges that the Commission admitted in its e-mail dated 13 December 2002 that it had not conducted an inquiry into Y's complaint for a period of one year and justified such a delay by putting forward that it had had no time and that a document from the file on the case had been lost.

2.2 The Commission explains that its statement that the case was dropped for one year for lack of time was valid only for the year 2002 when it had to give priority treatment to the Deutsche Telecom and Wanadoo cases. In this context, the Commission states that according to the case law of European courts (namely Case T-24/90 (1991) paragraph 77) its action was compatible with Community law.

The Commission acknowledges an administrative error as regards the Y document which was temporarily lost. The Commission points out that it acted frankly in its relations with the complainant.

2.3 The Ombudsman recalls that in the judgement of the Court of First Instance, quoted by the Commission(2), the Court stated that the fact that the Commission applies different degrees of priority to cases submitted to it in the field of competition is compatible with the obligations imposed on it by Community law. The Ombudsman has carefully examined the Commission’s e-mail dated 13 December 2002 and notes that it states that "for one year the official responsible for a Y's file has been very busy with two very important files and had not a moment to dedicate to the file of Y". The Ombudsman considers that the wording of the e-mail is regrettable since it is open to various interpretations, not all of which would be consistent with principles of good administration. The Ombudsman does not consider, however, that the e-mail in question is sufficient by itself to demonstrate that the Commission has failed to comply with its obligations in handling a complaint in the field of competition.

2.4 The Ombudsman also considers that the Commission’s temporary loss of a document was regrettable. However, the Ombudsman notes that the Commission explained the situation to the complainant promptly and frankly and that the document was soon found again. The Commission therefore took the necessary action to correct the administrative error that occurred.

2.5 In view of the above, the Ombudsman finds that no further inquiries are necessary as regards this aspect of the complaint.

3 Alleged failure to deal with a specific aspect of the case

3.1 The complainant alleges that the Commission did not verify (in the light of Y's complaint submitted to the Commission) the assertion of the public network operator in Luxembourg (EPT) that Y’s connection was cut off because Y had not paid its bills.

3.2 The Commission states that it informed the complainant in its letter dated 23 June 2003 that the disconnection suffered by Y resulted from a commercial dispute concerning outstanding payments and that the case is being carefully dealt with by a national court. Therefore, the Commission does not find a Community interest to act at the present. However it would be possible to attach the issue submitted by the complainant to the Y case in the future, on the basis of convincing and explicit arguments.

The Commission also points out that its investigation of the complaint submitted by Y is not closed and that it is waiting for Y's reply to a request for additional information.

3.3 The Ombudsman considers it useful to begin his evaluation of the Commission’s position by stating that his understanding of the respective roles of the Commission and the national court in the present case is as follows: the Commission is dealing with the case as regards possible unfair commercial practices under Community law, whilst the national court is dealing with a commercial dispute involving civil obligations, under national law.

The Ombudsman notes, furthermore, that as regards this specific aspect of the Y case, the issue presented to the Commission and the issue being dealt with by the national court appear to be the same in substance.

3.4 In this context, the Ombudsman recalls the principle of sincere cooperation of the institutions with national courts, under Article 10 (formerly 5) of the EC Treaty as established by case law(3) and that this principle requires the Commission to respect the decisions of national courts concerning the same subject matter(4).

3.5 In view of the above, the Ombudsman considers that the Commission's position that it does not find a Community interest to act at the present appears to be reasonable. The Ombudsman therefore finds no maladministration as regards this aspect of the complaint.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The Ombudsman takes the view that the Commission has not consistently applied its own code of good of administrative behaviour in dealing with the complainant’s correspondence. This was an instance of maladministration.

Given that this aspect of the case concerns specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Code of good administrative behaviour of the Commission, available on the Commission's website (http://ec.europa.eu/secretariat_general/code/index_en.htm).

(2) Case T-24/90, Automec Srl v Commission [1992] ECR II-02223.

(3) See case C-2/88 Zwartveld Order of the Court (1990)I-03365, paragraph 53.

(4) See case T-24/90 Automec Srl v Commission [1992] II-0223, paragraph 87 et seq.