Dear Mr B.,

On 1 August 2001, you submitted a complaint against the European Commission's Secretariat-General concerning procedure 2000/4594 SG(2000) A/8078.

On 27 August 2001, I forwarded the complaint to the Commission for its comments.

The Commission sent its opinion on your complaint on 27 November 2001. I forwarded the Commission's opinion to you on 29 November 2001 with an invitation to make observations, if you so wished, by 31 December 2001 at the latest. I received no such observations by that date.

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

THE COMPLAINT

The complainant, a German national, travels by train from Venice to Bremen nearly every year. He claims that both on the Italian/Austrian and the Austrian/German border passports are regularly checked. The complainant notes that according to information provided by train attendants, some 80 % of passengers are affected. He considers that these controls are incompatible with both the letter and the spirit of the Schengen Agreement.

After having unsuccessfully approached the German government, the complainant lodged a complaint with the Commission on 8 April 2000. According to the complainant, it was only after the complainant's MEP had intervened that the Commission informed the complainant, in a letter of 20 July 2000, that the complaint had been registered (reference 2000/4594 SG(2000) A/8078). On 1 April 2001, the complainant wrote to the Commission in order to inquire as to the state of affairs regarding the Commission's examination of his complaint. According to the complainant, the Commission only replied after his MEP had again intervened.

In his complaint submitted to the Ombudsman in August 2001, the complainant made the following allegations:

1. The Commission failed to reply to his letter of 8 April 2000 within a reasonable period
2. The Commission failed to reply to his letter of 1 April 2001 within a reasonable period
3. The Commission failed to decide on whether or not to open infringement proceedings

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The complainant's letter of 8 April 2000 had been received on 25 April 2000. A reply in which the complainant was informed that the Commission's services would contact the two member states concerned (Germany and Austria) and formally register the complaint, was sent on 22 June 2000. The service in charge apologised for the delay that was due to an administrative re-organisation. On 20 July 2000, the Secretary-General sent a letter to the complainant to inform him that his complaint had been formally registered. On 1 September 2000, the unit in charge informed the complainant that the Commission's services had contacted the two member states concerned.

Austria's reply was received by the service in charge on 12 January 2001. The reply from Germany was only received - after a reminder and several contacts by telephone made by the Commission's services - on 10 May 2001 by the service in charge.

It appeared that the complainant's letter of 1 April 2001 had not reached the Commission. The unit in charge had only learnt of it from a letter of 6 May 2001 in which the complainant had complained about not having received a reply to his letter of 1 April 2001. The unit in charge had replied on 11 June 2001 and informed the complainant that the German reply had arrived only recently and that the Commission's services were in the process of examining the replies from the two member states.

The Commission's services had commenced the examination of the replies from the Austrian and German authorities with a view to ascertaining their compatibility with Community law. The compatibility of controls carried out on passengers of trains within the Schengen area raised difficulties of interpretation. In principle, and according to the Schengen acquis (Article 2 (1) of the Convention implementing the Schengen Agreement) that had been integrated within the framework of the EU with the entry into effect of the Treaty of Amsterdam, internal borders may be crossed at any point without any checks on persons being carried out. This meant that travellers were, regardless of their nationality, exempt from controls carried out by the border police on account of their crossing the border. However, Article 2 (3) of the Convention stipulated that "the abolition of checks on persons at internal borders shall not affect (.) the exercise of police powers throughout a Contracting Party's territory by the competent authorities under that Party's law". Internal borders and the adjacent area did thus not become a prohibited area where no controls whatsoever could be carried out.

In its programme for 2001, the Commission envisaged submitting a legislative proposal regarding this matter. This proposal would include provisions such as to overcome the difficulties as to the interpretation of the legislation currently in force.

In so far as the complainant's case was concerned, the Commission would shortly decide whether to pursue the complaint or file it. The complainant would be kept informed of future developments.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Failure to reply to the complainant's letter of 8 April 2000 within a reasonable period

1.1 In April 2000, the complainant, a German national, submitted a complaint regarding the compatibility of border controls carried out by Austrian and German authorities with the Schengen acquis to the Commission. In his complaint submitted to the Ombudsman in August 2001, the complainant alleges that the Commission failed to reply to his letter of 8 April 2000 within a reasonable period.

1.2 The Commission explains that it received the letter of 8 April 2000 on 23 April 2000 and replied to it on 22 June 2000. In this letter, it informed the complainant that the Commission's services would contact the two member states concerned (Germany and Austria) and formally register the complaint. The Commission points out that the service in charge apologised for the delay that was due to an administrative re-organisation.

1.3 The Ombudsman considers that in the light of the Commission's comments there is no need for him to continue his inquiry into this aspect of the complaint.

2 Failure to reply to the complainant's letter of 1 April 2001 within a reasonable period

2.1 The complainant claims that the Commission failed to reply to his letter of 1 April 2001 (in which he inquired as to the state of affairs regarding the Commission's examination of his complaint) within a reasonable period.

2.2 The Commission claims that the complainant's letter of 1 April 2001 had not reached it and that the unit in charge had only learnt of this letter from a reminder sent by the complainant on 6 May 2001. According to the Commission, the unit in charge replied on 11 June 2001 and informed the complainant that the German reply had arrived only recently and that the Commission's services were in the process of examining the replies from the two member states.

2.3 The Ombudsman considers that it has not been established that the Commission obtained knowledge of the complainant's letter of 1 April 2001 before it received the complainant's further letter of 6 May 2001. He further notes that the Commission seems to have sent its reply to this letter on 11 June, that is to say little more than a month after the complainant had written to the Commission.

2.4 In these circumstances, there appears to be no maladministration on the part of the Commission in so far as the second aspect of the complaint is concerned.

3 Failure to decide on whether or not to open infringement proceedings

3.1 The complainant claims that the Commission has failed to decide on whether or not to open infringement proceedings.

3.2 The Commission points out that its services have started examining the replies from the Austrian and German authorities (the latter only having been received on 10 May 2001) with a view to ascertaining their compatibility with Community law. It notes, however, that the compatibility of controls carried out on passengers of trains within the Schengen area raises difficulties of interpretation in the light of the wording of the Convention implementing the Schengen Agreement. Finally, the Commission points out that it would shortly decide whether to pursue the complaint or file it and that the complainant would be kept informed.

3.3 The Ombudsman notes that upon receiving the complaint the complainant had lodged with it, the Commission wrote to both member states concerned to ask for information. He further notes that the reply of one of these member states only appears to have been received by the Commission in May 2001. In the light of the relevant provisions of Community law, it further appears that the Commission's view according to which the relevant issue raises difficulties of interpretation is not without foundation. It is good administrative practice to take decisions within a reasonable period. The Ombudsman considers that in the circumstances of the present case, this period had not yet lapsed when the complaint was submitted to him or when the Commission sent its opinion on the complaint. The Ombudsman further notes that the Commission has announced that the decision would be taken shortly, and he has no reason to assume that the Commission should fail to do so.

3.4 In these circumstances, there appears to be no maladministration on the part of the Commission in so far as the third aspect of the complaint is concerned.

4 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, it appears that there is no maladministration on the part of the European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN