The background to the complaint

1. The complainant is the "Trade Union of Health and Social Care Employees of Latvia" ('LVSADA')[1]. Its complaint was submitted by the Trade Union's chairman, a Latvian doctor, as well as the Chairman of the Latvian Umbrella Body for Disability Organizations ('Sustento') and the Director of the Latvian Patients' Ombudsman office.

2. On 17 February 2009, the complainant sent a letter to the Commission's Representation in Latvia ('the Representation') and asked it "to do everything possible" to prevent high quality and accessible healthcare from deteriorating in Latvia. It pointed out that Latvia had one of the lowest amounts of state funding for public healthcare in the EU (3.7% of GDP). It stated in this respect that, contrary to relevant EU law, the social dialogue was ignored by the Latvian Government.

3. On 16 March 2009, the Head of the Commission's Representation replied to the complainant's above letter. She explained that the social and healthcare policy was "the responsibility of the individual Member States under Articles 2 and 152 of the Treaty establishing the European Community. National policies could be supplemented by Community action or joint political agreements by the Member State. Upon its accession to the EU, Latvia undertook to implement national policy that would bring it closer to the EU's objectives". She recalled that the Commission continuously monitored how Latvia complied with its obligations. According to the Head of the Representation, it was very important that, during a time of economic crisis, Member States took measures to prevent anyone from suffering as a result of shortcomings in the social system. In 2009, the Commission published its "usual recommendations, expressing serious concerns about the health-care situation in Latvia". The Head of the Representation further explained that Latvia already had access to: (i) Structural Funds which had been used to establish five primary healthcare centres in Latvia; and (ii) The European Social Fund which financed the training of healthcare employees. She recalled that the EU granted a loan of EUR 3.1 billion to Latvia in order to facilitate the implementation of its economic stabilisation programme. Finally, the Head of the Representation recognised that the timely and constructive involvement of social partners was a prerequisite for good policy and a way of ensuring their support. The Head of the Representation continued, stating the following: "Your open letter and the 7500 signatures received show that significant improvements are needed to the Government's dialogue with its social partners." She confirmed that she would "notify the Minister for Health (…) of this."

4. According to the complainant, on 1 June 2010, a meeting took place in Riga concerning the above issues, in which the Commission's representative took part as well.

The subject matter of the inquiry

5. The complainant alleged that the Commission failed to take appropriate action against the Latvian authorities following the allegations concerning the Latvian healthcare system that it had raised in its letter dated 17 February 2009 and during the meeting of 1 June 2010.

6. It claimed that the Commission should take appropriate measures to ensure that Latvian citizens have access to proper healthcare.

The inquiry

7. On 22 November 2010, the Ombudsman opened an inquiry regarding the complainant’s above allegation and claim.

8. On 23 March 2011, the Commission sent its opinion. The Ombudsman forwarded it to the complainant with an invitation to make observations, which it sent on 17 June 2011.

The Ombudsman's analysis and conclusions

A. Alleged failure to take appropriate action following the complainant's allegations concerning the Latvian healthcare system

Arguments presented to the Ombudsman

9. In its complaint, the complainant argued that it had informed the Commission's representatives of the allegedly poor state of the Latvian health-care system in its letter dated 17 February 2009 and during a meeting in Riga on 1 June 2010, but the Commission took no action. The complainant referred in this respect to the content of the letter, dated 16 March 2009, which it received from the Representation. In the complainant's view, the Commission should have acted "in order to reinforce the guarantees provided for the population in Latvia in Article 6 (a)[2] and 9[3] of Part I of the TFEU and Article 35 of the Charter of Fundamental Rights of the European Union[4]." The complainant also provided detailed data concerning the public healthcare system in Latvia.

10. In its opinion, the Commission first stated that there were no records in the Commission's files of a meeting dated 1 June 2010.

11. Furthermore, the Commission referred to a multilateral financial assistance package which the EU, the International Monetary Fund, and the World Bank provided in support of the Latvian authorities' economic stabilization program. When the Commission received the request for financial assistance at the end of 2008, Latvia was facing dramatically falling budget revenues and concomitantly, its expenditure, including expenditure on healthcare systems, had grown significantly within a few years. Accordingly, public expenditure had to be reduced significantly during 2009-2010, with further budget consolidations required in the future. However, these expenditure reductions would have been much greater without the EU financial assistance.

12. The Commission, the International Monetary Fund, and the World Bank maintained from the very beginning of the above Latvian program that those who are most vulnerable socially should receive as much protection as possible. As a direct result of this and with assistance from the World Bank, an emergency social safety net was established in 2009 to finance all co-payments for health services and pharmaceuticals for households in Latvia that qualified for the Guaranteed Minimum Income (GMI). In addition, the Commission was in favour of redirecting part of the European Social Fund in order to provide temporary jobs for the unemployed.

13. The Commission challenged data provided by the complainant as regards the percentage of nominal healthcare expenditures and did not agree with its contention that the Latvian Government had not made any plans to improve the healthcare system in the future. It referred in this respect to the assessment carried out by the World Bank.

14. The Commission concluded that, if the Latvian Government continues to take action which focuses on key priorities in the health sector, while also building on the assistance received from international organisations, this should result in a better healthcare system for the population and in a more equitable, effective, and efficient use of citizens' money.

15. In its observations, the complainant challenged the figures provided by the Commission in its opinion. In its view, the Commission failed to carry out an independent analysis of the Latvian healthcare system and did not consult with the Latvian social partners.

16. The complainant further stated that the Commission should not have denied that, on 1 June 2010, its representative and the Latvian social partners had a meeting at the Ministry of Finance in Riga, during which the international lenders were informed about the opinions of the Latvian trade unions and other partners concerning the progress and results of reforms in Latvia. In this context, he enclosed an attestation from the Latvian Association of Free Trade Unions (LAFTU). According to this attestation, "[o]n 1 June 2010 at 10.00 a meeting was held at the Ministry of Finance, room 304, between the Government, the social partners (LAFTU, Latvian Employers' Confederation), the cooperation partner (the Latvian Chamber of Trade and Industry) and official representatives of the IMF and the EC, Iveta Sulca, Head of Representation of the European Commission in Latvia, also took part".

17. In sum, the complainant stated that the Commission expressed an optimistic opinion on the possible action to be taken by the Latvian Government in order to improve healthcare in the future, but failed to provide a specific answer as to how this would be achieved, taking into account the facts and the EU law he had referred to in his complaint. Instead of finding actual solutions to the problems, the Commission looked for "shortcomings" in the complaint.

The Ombudsman's assessment

18. According to Article 228 of the Treaty on the Functioning of the European Union[5] ('TFEU'), the Ombudsman shall help to uncover maladministration in the activities of the Union institutions, bodies, offices and agencies. However, the latters' exercise of political authority such as the Council and/or Commission's decisions on how or to what extent EU financial should be provided assistance to Latvia do not raise an issue of maladministration and are therefore not covered by the Ombudsman's mandate.

19. The Ombudsman's role in the present case is thus to assess whether, in its opinion and in its letter to the complainant dated 16 March 2009, the Commission properly addressed the complainant's main concerns.

20. The Ombudsman understands these concerns to be, in the first place, that, in light of a number of Union law provisions, namely, Article 6(a) of the TFEU[6] in conjunction with Article 9 of the TFEU[7], and Article 35 of the Charter of Fundamental Rights of the European Union, enshrining the right to healthcare, the Commission should have been more active as regards the allegedly poor state of the Latvian public healthcare system.

21. In reply to the above concerns, the Commission has already explained in its letter dated 16 March 2009 that national health matters fall within the exclusive competence of the Member States. It recalled, however, that national policies could be supplemented by Union action or joint political agreements by the Member States. This explanation, as provided by the Commission, is obviously correct.

22. Indeed, while Latvia's public health matters fall within the exclusive competence of Latvia[8], the Union, although it cannot harmonise law in this area, can, on the basis of Article 6(a) of the TFEU[9], undertake actions to support, coordinate or supplement Latvian actions, without superseding Latvian competence. The Union's powers in this regard are thus related to the Union's objective to improve public health, as set out in Article 168 of the TFEU.[10]

23. Moreover, the Commission rightly referred in its opinion to the financial assistance it had provided to Latvia and was, thus, able to demonstrate how it exercised the supporting competences of the EU.

24. On the other hand, the Ombudsman notes that the Commission did not refer in its opinion to the complainant's argument which was based on Article 35 of the Charter of Fundamental Rights of the European Union. This Article provides that "[e]veryone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities." The Commission's silence in this respect may, however, be justified on two grounds.

25. First, Article 51(2) of the Charter provides that "[t]he Charter does not extend the field of application of European Union law beyond the powers of the Union and it does not establish any new power or tasks for the Union, or modify powers and tasks as defined in the Treaties". As stated above, the Commission's powers in the context of health matters are supportive only and it is hard to imagine what else the Commission could have said in the opinion, apart from describing the financial assistance it had provided to Latvia.

26. Second, the complainant's submissions were not the kind of submissions that would necessarily lead the Commission to consider whether Latvia had infringed the Charter.[11] Indeed, the complaint did not include explicit allegations that Latvia infringed EU law.

27. In light of the above, the Ombudsman considers that the Commission properly addressed the substance of the complainant's main concerns. Furthermore, although in its opinion the Commission committed some minor errors[12] and contested some statistical indicators provided by the complainant, this does not mean that the Commission's overall opinion was flawed. The Ombudsman regrets that the Commission was not able properly to check the files of its Representation in Riga as regards the participation of the Head of the Representation in the meeting of 1 June 2010 in the Latvian Ministry of Finance. Nevertheless, the document related to the meeting, which was provided by the complainant together with its observations, does not refer to the agenda and thus does not demonstrate that there were points discussed in that meeting which were not addressed by the Commission in the opinion and in its letter of 16 March 2009.

28. Finally, as regards the complainant's concerns, elaborated in its observations, that the Commission's assessment of the situation in Latvia was not independent and that it provided the financial assistance on the basis of information submitted to it by the Latvian government while ignoring the fact that no social dialogue had taken place, the Ombudsman does not consider that further inquiries in this respect are justified. If the complainant was concerned that the Commission's assessment followed the Word Bank's assessment, such concerns were unfounded. It is reasonable not to repeat an assessment if another provider of multilateral financial assistance had already done so. As regards the argument related to social dialogue, the Ombudsman points out that, in its reply of 16 March 2009, the Representation recognised that "improvements were needed to the Government's dialogue with its social partners" and that it would "notify the Latvian Minister for Health accordingly". There is no reason to believe that such notification was not given.

29. In light of the above, the Ombudsman concludes that there are no grounds for further inquiries into the present complaint.

B. Conclusions

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

There are no grounds for further inquiries into the present complaint.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 13 March 2012

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[1] According to the complainant, LVSADA seeks better health and social care for employees and Latvian citizens, in general, in Latvia.

[2] Article 6(a) of the TFEU states the following:

"The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:

(a) protection and improvement of human health (...)"

[3] Article 9 Part I of the TFEU states the following: "In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health."

[4] Article 35 ("Health care") of the Charter of Fundamental Rights of the European Union states the following:

"Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities."

[5] Article 228 of the TFEU provides as follows:

"A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them."

[6] Article 6(a) of the TFEU states the following:

"The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be

(a) protection and improvement of human health (...)".

[7] Article 9 of the TFEU reads as follows:

"In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health."

[8] However, the Union shares competence with the Member States with respect to some aspects of public health, where the scope for Union intervention is greater: Article 4(2) k and Article 168(4) TFEU.

[9] Article 6(a) of the TFEU states the following:

"The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be

(a) protection and improvement of human health (...)".

[10] Article 168(7) of the TFEU reads as follows:

"Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood."

[11] The Court has recently held, in its judgment of 15 November 2011 ('Dereci and others') in relation to the Charter's right to private and family life, that EU law provisions on the citizenship of the Union, even if the concerned citizen never exercised his right to freedom of movement, must be interpreted by taking into account the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union (Case C-256/11, Dereci and others, judgment of 15 November 2011, paragraph 74, not yet published).

[12] In its observations, the complainant pointed out, for instance, that in its opinion, the Commission made a mistake as regards the year of the relevant correspondence (it mentioned 2010 instead of 2009).