Dear Mr R.,
On 14 October 1997 you made a complaint to the Ombudsman against the European Commission, concerning the notice of proposed exemption for the standard leases of Whitbread plc, which it published in the Official Journal.
On 5 November 1997, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 8 January 1998. I forwarded it to you with an invitation to make observations, which you sent on 18 February 1998.
On 19 January 1998 and 10 February 1998, you informed the Ombudsman of the publication on 13 January 1998 and 3 February 1998 of similar notices, relating to Scottish and Newcastle plc and Bass plc respectively. On 23 April 1998, you wrote to the Ombudsman to inquire about progress in dealing with your complaint.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The background to the complaint is that Mr R. complained to the Commission in April 1993 about a United Kingdom law known as the "Guest Beer Provision" (GBP), which allows the tenants of large UK brewers also to buy one cask-conditioned beer of their choice. Mr R. considered that the GBP infringed Article 30 EC. The Commission registered his complaint and began an inquiry under Article 169 EC. At the beginning of March 1997, the UK authorities proposed an amendment to the GBP so as to allow tenants also to buy one brand of bottle-conditioned beer. The Commission considered the proposed amendment to be satisfactory and therefore suspended the Article 169 procedure. Mr R. subsequently complained to the Ombudsman concerning the Commission's handling of his complaint: this case was closed by a reasoned decision of the Ombudsman dated 16 February 1998. (1)
In the present case, Mr R.'s complaint concerns a notice of proposed exemption, which the Commission published in the Official Journal on 27 September 1997.(2) The notice indicated the Commission's intention to grant a retrospective exemption to a UK brewer (Whitbread plc) in respect of three standard forms of lease agreement with its tenants, all of which included conditions based on the GBP. The notice invited all interested third parties to submit their observations within one month. It referred to the GBP and to the proposed amendment concerning bottle-conditioned beer. However, it did not mention that the amendment had been proposed in the context of an Article 169 inquiry. Similar notices were subsequently published in relation to two other large UK brewers.
On 10 October 1997, Mr R. submitted observations on the proposed exemption of Whitbread's leases and expressed the view that the Commission's failure to mention that the amendment to the GBP was the result of an Article 169 procedure "leaves a great deal to be desired in terms of a balanced publication that is fair to all parties". He invited the Commission to issue an addendum to the Official Journal notice to rectify the position and to extend the deadline for submissions by one month to enable interested parties to take on board the implications of this information. In a telephone call on 14 October 1997, an official in the responsible service of the Commission (DG IV) informed Mr R. that the Commission would not agree to his proposal.
Mr R. then complained to the Ombudsman. He claims that the Commission acted unfairly by refusing to publish an addendum to the notice and to extend the deadline for submission of observations.

THE INQUIRY

The Commission's opinion
In summary, the Commission's opinion made the following points. A notice of proposed exemption is a summary document which cannot and need not be complete. The relevance of observations submitted by third parties is not limited to the wording of the notice. All relevant observations are duly assessed by the Commission services which, if necessary, may take further fact-finding measures to check and countercheck the information provided by the notifying party (in this case Whitbread plc) with that of the observations. Observations of a more legal nature are also assessed on their merits.
If the Commission decides that a negative clearance should be granted, its decision is published in the Official Journal. The decision must clarify and/or motivate all the relevant points raised in observations submitted by interested third parties. All such parties have the possibility to challenge the decision before the Court of First Instance.
In this particular case, the Official Journal notice was followed by a Commission press release which was sent, amongst others, to the relevant trade press in the UK. The Commission services subsequently received 135 observations from third parties within the time limit, including 23 who sent observations in a standard format made available to them by the complainant, who advertised in a specialist trade publication.
The Commission's opinion also re-affirmed the view, which it had expressed in direct correspondence with the complainant, that the compatibility or otherwise of the GBP with Article 30 EC is irrelevant, at this stage of the procedure, for Article 85 purposes.
The complainant's observations
In his observations, the complainant accepted that a notice of proposed exemption need not be complete, but considered that it must contain sufficient detail to enable third parties to submit their observations. He also explained that he made no criticism of the Commission's efforts to publicise the notice of proposed exemption and praised its use of the Internet for this purpose. He accepted that trade awareness of and response to the notice were satisfactory, although he considered this to be partly the result of his own advertisement, referred to in the Commission's opinion above.
The observations also explained the complainant's view that the issues raised in the Article 169 procedure concerning the GBP are relevant to the decision whether or not to give the negative clearance to leases which include conditions based on the GBP. He maintained his view that the deadline of one month should have been extended.

THE DECISION

1 The complaint concerns a notice of proposed exemption, under Article 85 (3) EC, of the standard leases of Whitbread plc. The notice was published by the Commission in pursuance of Article 19 (3) (3) of Regulation 17.(4) The complainant considered that the notice should also mention the Article 169 procedure, in which the question of the Guest Beer Provision's compatibility with Article 30 EC was raised. He requested the Commission to remedy this omission by publishing an addendum to the notice and extending the deadline for third-party submissions by a further month. The Commission rejected the request and the complainant claims that it thereby acted unfairly.
2 The aim of the requirement to publish a notice of proposed exemption is to inform interested third parties who may wish to submit observations. The notice should therefore contain sufficient information to enable interested third parties to identify relevant issues.
3 The Commission has made clear that a final exemption decision pursuant to Article 85 (3) is without prejudice to the Article 30 question and this is not disputed by the complainant.
4 The Commission has also explained its view that the compatibility of the GBP with Article 30 is irrelevant to the decision on negative clearance. The complainant has disputed this point in the observations he made in response to the Article 19 (3) notice. The Commission's decision concerning negative clearance should therefore explain and give reasons for its stand on this issue. The complainant will then have the opportunity to initiate proceedings before the Court of First Instance to challenge the Commission's decision.
5 It is common ground that interested third parties' awareness of and level of response to the Article 19 (3) notice was satisfactory, following publicity efforts by both the Commission and the complainant.
6 In these circumstances, the Commission's refusal of the complainant's proposal that the Commission publish an addendum to the Article 19 (3) notice and extend the deadline for submission of observations does not appear to have resulted in any unfairness to the complainant or to other interested third parties.
Conclusion
In view of the above findings, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob Söderman

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(1) Case 651/97/IJH.

(2) OJ 1997 C 294/2.

(3) "Where the Commission intends to give negative clearance pursuant to Article 2 or take a decision in application of Article 85 (3) of the Treaty, it shall publish a summary of the relevant application or notification and invite all interested third parties to submit their observations within a time limit which it shall fix being not less than one month...."

(4) OJ 1962 013, 0204 - 0211; English special edition, Series-I (59-62) p. 87.