Strasbourg, 26 April 2005

Dear Mrs S.,

On 19 August 2003, you wrote to the European Ombudsman complaining against both the European Commission and the European Parliament, in connection with the alleged use of discriminatory business practices by a Belgian bank.

Since your allegations were addressed against two institutions, I decided to register them under two different file numbers. Your allegations against the European Parliament were registered under complaint number 1967/2003/JMA, and those against the Commission were registered with the reference 1618/2003/JMA.

Your complaint against the European Parliament, concerning the alleged failure of this institution to reply to your letter of 15 February 2003 was the object of a separate inquiry which I concluded by a decision dated 10 December 2004.

The present decision therefore deals only with your complaint against the Commission, involving the alleged failure of the institution to properly investigate your formal complaint to that institution regarding the alleged use of discriminatory business practices by a Belgian bank, despite your numerous requests.

On 21 October 2003, I forwarded your complaint to the President of the Commission with a request for comments. On 23 November 2003, you sent additional information to me. I received the Commission's opinion on 9 February 2004, which I forwarded to you with an invitation to make observations. On 23 January 2004, you forwarded to me a copy of your previous letter of 23 November 2003. On 27 March 2004, you sent your observations on the Commission's opinion to me. On 15 September 2004, you wrote to me requesting clarification as regards the scope of the Ombudsman's inquiries pertaining to both of your complaints, and asking for access to all the documents related to your cases. On 28 October 2004, I replied to your request.

Following an informal suggestion from my Secretariat, the Commission forwarded additional information about its investigation of your complaint against the Belgian bank on 27 January 2005. I sent it to you on 1 March 2005. On 25 March 2005, you sent your observations on this additional information to me.

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 facts of the case according to the complainant are, in summary, as follows:

The complainant, a Finnish national, opened an account with a Belgian bank in April 1997. Because of her status as a foreign national living in another EU Member State, she was asked at the time to make a deposit of 15,000 Belgian Francs (approximately EUR 372) in order to cover a potential default of her obligations towards the bank. The Bank did not justify its request on the basis of any written regulation. The complainant was informed that no interest would be paid on her deposit.

The complainant also referred to a number of business practices followed by the bank which, in her view, were unfair, in particular as regards foreign currency exchanges. She explained, for instance, that after having requested a particular foreign exchange transaction, the operation was not carried out until the rate of exchange became more favourable for the financial institution. The complainant mentioned as well that, in August 2000, the bank issued statements indicating that, for part of that year, her funds had been kept in a USD current account and not, as had been usual and customary since 1997, in a savings account. This omission on the part of the bank caused a loss of interest for the account holder. In spite of its mistake, the bank refused to compensate her for the loss.

The complainant noted that for operations concerning her account, the bank decided that fax or phone orders would no longer be carried out. As a result, orders for financial transactions required that the account holder be physically present on the bank’s premises. This practice was, in the complainant's view, an arbitrary and discriminatory practice constituting a disguised restriction on the free movement of capital and payments, contrary to the Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

Moreover, the complainant referred to a number of technical mistakes on the part of the bank involving financial transactions which resulted in losses for her.

The bank decided to close the complainant's account on 8 July 2002.

In order to find a solution to the numerous problems with her Belgian bank, the complainant turned to a number of EU officials and institutions for help. She hoped to pursue an extra-judicial course of action and thus avoid time-consuming and expensive litigation. As regards the European Commission, she sent letters to its President, Mr Prodi, to Commissioners Diamantopoulou and Bolkestein, to the Directorate General for Consumer Affairs, to the Legal Service, and to the Secretariat General.

Her letter to Commissioner Diamantopoulou, dated 26 August 2002, was replied to on 24 October 2002. In her reply, Commissioner Diamantopoulou explained that the matter was not within her remit, and that she had therefore passed the letter on to the Commissioner responsible for the Internal Market, Mr Bolkestein. It turned out that the services responsible for the internal market were not competent to deal with the case. Thus, the complainant noted that, in reply to her letter of 19 August 2002, Commissioner Bolkestein pointed out that his services could not intervene in a private dispute, and suggested that she contact the Finnish Ombudsman for Banks. It appears that the matter did not fall within the remit of the Finnish Ombudsman for Banks. The complainant therefore concluded that the replies given by both Commissioners constituted maladministration, since they were contrary to Article 15 of the European Code of Good Administrative Behaviour (obligation to transfer to the competent service), and Article 10 (legitimate expectations).

On 11 December 2002, the complainant wrote to the Commission's Directorate General for Consumer Affairs. In its reply of 8 January 2003, the responsible services informed her that the dispute fell outside their mandate. In the complainant's view, the content of the reply ran counter to the institution's practice and therefore constituted an instance of maladministration, in breach of Article 10 of the European Code of Good Administrative Behaviour (legitimate expectations).

The complainant also wrote to the Commission's Legal Service on 11 December 2002. On 15 January 2003, the Legal Service replied to the complainant, suggesting that she contact the Belgian Ombudsman for Banks and/or the Finnish Consumer Complaint Board. In a second letter to the Legal Service dated 15 February 2003, the complainant requested a formal legal opinion on the possibilities of using alternate means for dispute resolution in her case. In its reply of 4 April 2003, the Legal Service explained that it could not provide legal opinions for cases involving private disputes and recommended that the complainant address the EEJ-NET and SOLVIT schemes. In the complainant's view, both replies seemed to be contradictory and did not mention alternative means for dispute resolution, notwithstanding that these means appear to be a priority in the EU approach to consumer problems. The complainant therefore argued that the position taken by the Commission's Legal Service constituted maladministration, since it did not comply with Article 10 of the European Code of Good Administrative Behaviour (legitimate expectations).

On 15 February 2003, the complainant wrote to the Secretary-General of the European Commission. The reply to her letter, dated 3 March 2003, stated that the responsible services had concluded that the subject-matter of the complainant's query did not fall within the Commission’s competence. Since the person who signed the reply letter appeared to be an employee of the Mail Distribution Unit, the complainant wrote again to the Secretary-General, stating that her complaint had erroneously been returned to her. She enclosed a letter to the President of the European Commission, entitled "Complaint/Petition to the Commission of the EU", which was never delivered to the final addressee. She considered that this constituted maladministration, since it did not comply with Article 5 of the European Code of Good Administrative Behaviour (discrimination), Article 7 (abuse of power), Article 14 (acknowledgement of receipt), Article 15 (obligation to transfer to the competent service), Article 18 (duty to state grounds for decision) and Article 19 (indication of possibilities of appeal).

The complainant noted that since the autumn of 2002, she had unsuccessfully tried to have her complaint delivered to the President of the European Commission.

In her complaint to the Ombudsman, the complainant referred to a number of legal cases from different national courts in support of her position that the practices carried out by her Belgian bank were abusive. She also mentioned several other complaints dealt with by the Ombudsman in which the Commission had carried out formal inquiries in cases of private disputes between individuals and private firms. As regards the legal basis of her complaint, the complainant pointed out that the provisions of Directive 2000/43/EC on implementing the principle of equal treatment between persons irrespective of racial or ethnic origin were applicable to her case. She considered that the Directive prohibits treatment that is different, negative and adverse when people access various services. It requires that Member States have the power to impose sanctions in the form of compensation to victims. The Directive creates possibilities for third parties to engage in procedures in support of the victims of discrimination.

In the light of the information submitted by the complainant, the Ombudsman opened an inquiry against the European Commission. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following:

The complainant alleged that the European Commission failed to properly investigate the alleged use of discriminatory business practices by a Belgian bank, despite her numerous requests. The complainant pointed out that, following the Ombudsman's decision in case 1045/2002/GG, the institution had reconsidered its previous position, and had launched an inquiry into a very similar situation.

On 23 November 2003, the complainant wrote to the Ombudsman. In her letter, she explained that there appeared to be a technical mistake, since her first complaint to the European Ombudsman which she had sent on 19 August 2002, had been registered and assigned reference number 1532/2002/VK. The complainant pointed out that her complaint against a Belgian bank concerned not only its fraudulent behaviour in financial transactions and its discriminatory practices, but also mental terror and incessant harassment over a number of years. The complainant noted that after her complaint with the Ombudsman was lodged, yet another Belgian bank decided to close her account.

On 23 January 2004, the complainant sent another copy of her letter of 23 November 2003, pointing out that she had received no reply to her first letter, and indicating that she would reply to the Ombudsman's letter of 16 December 2003 by 31 January 2004.

THE INQUIRY

The European Commission's opinion

In its opinion, the Commission first described the background of the case.

As regards the complainant's correspondence with the Commission services, the institution stated that her dispute with a Belgian bank was a matter to be dealt with by the competent national authority, in this case the Belgian authorities, rather than the European institutions. The Commission argued that in its role as “Guardian of the Treaty”, it must ensure that Community law is respected. However, its competence is limited to the relationship with or between the Member States. Disputes between individual citizens and enterprises within a Member State fall outside the competence of the Commission.

In the Commission's view, all the letters which the complainant had sent to its services had been answered according to the Commission’s Code of good administrative conduct. The Commission considered that the problem encountered by the complainant did not fall within the competence of the EC Treaty, and moreover that its replies to her properly explained the reasons for the institution's position. The Commission then addressed the reply given by its services to each one of the complainant's letters:

1. Letter to Commissioner Diamantopoulou: The complainant's letter to Commissioner Diamantopoulou did not fall within the remit of her services, namely employment and social affairs. Commissioner Diamantopoulou thus forwarded the letter to Mr Bolkestein as the responsible Commissioner for the Internal Market, and informed the complainant of the transfer.

2. Letter to Commissioner Bolkestein: In a letter dated 19 August 2002 to Commissioner Bolkestein, transferred to the responsible Commission department on 4 September 2002, the complainant asked the Commission to help her, so that her bank would return the disputed money and ensure normal access to her bank account. The reply from the responsible Commission department dated 13 September 2002 informed the complainant that the Commission had no competence to mediate or interfere in a private dispute.

The Commission pointed out that its obligations under Article 211 of the EC Treaty are fulfilled by conducting investigations and, possibly, infringement procedures against Member States. The use of these powers against natural and legal persons is therefore exceptional. The Commission could not carry out an inquiry into the complainant's problem since it does not have the power either to investigate the contractual relationship between the complainant and her bank, or to adopt measures against the financial institution. In order to help the complainant, the responsible Commission services referred her to the Finnish Banking Ombudsman who may have been able to settle the dispute, for example through contacts with the Belgian Ombudsman Service for the Financial Sector.

3. Letter to DG Health and Consumer Protection: The Directorate-General replied on 8 January, 18 July and 14 October 2003, to three successive letters of the complainant. These letters did not provide any additional information on the issue. The Commission services' replies repeated the explanation that Commissioner Bolkestein had given earlier, namely that disputes between individuals and enterprises, even if they are caused by an infringement of Community law, fall outside the competence of the Commission.

4. Letter to the Legal Service: The Commission noted that, in its letter of 15 January 2003 to the complainant, the Director-General of the Legal Service stated that the case should be dealt with by the competent national authorities and, in line with Commissioner Bolkestein's suggestion, referred the complainant to the Belgian Ombudsman Service for the Financial Sector as well as to the corresponding body in Finland. On 15 February 2003, the complainant sent yet another letter to the Legal Service stating that the Belgian Ombudsman for banks considered her case outside his jurisdiction. The complainant then asked the Legal Service for advice as to the course of action to be followed, in particular as regards any alternative means of dispute resolution. The Director-General of the Legal Service replied on 4 April 2003, providing four additional addresses of settlement bodies and explaining that the Legal Service could not give the legal advice sought, since it acts as an in-house legal adviser to the Commission and its services, and represents the Commission before the Courts but is not competent to provide legal advice to citizens concerning private disputes. The complainant was therefore advised to contact an attorney.

In the Commission's view, both replies fully addressed the queries made by the complainant in her letters. None of them, however, constituted a legal opinion since the Legal Service can only provide legal advice to the Commission and its services. They instead provided information to a citizen on different bodies which could deal with the facts described.

5. Letter to the Secretary-General: The complainant's first letter to the Secretary-General was dated 15 February 2003. Even though it was entitled complaint to the Commission, the letter repeated the arguments already set out in previous letters and to which the Commission's services had replied.

In its reply of 3 March 2003, the Commission's Secretariat General concluded that the matters raised in the letter did not fall within the Commission’s competence. The facts set out by the complainant did not disclose any breach of Community law in the areas of banking or discrimination. The Commission explained that, when the Secretary-General receives files which are not within Community competence, the original letters are generally sent back with the reply, since these files are often voluminous and the authors must pay large amounts to copy them.

In reply to the complainant's allegation that the first letter had been returned erroneously and in a hasty way, the Commission pointed out that the Secretariat-General normally assigns incoming mail within 24 hours. It was therefore not unusual that the registration and the reply to the complainant’s letter took place on the same day. The second letter addressed to the Secretary-General was dated 15 May 2003 and it referred to a number of instances of non-compliance with Community law. In the Commission's view, none of them constituted a breach of Community law or added any further argument. Accordingly, the reply of the Secretariat-General dated 1 July 2003 stated that the complaint did not raise any question of European law, and that a general allegation mentioning the public interest was not sufficient. The institution added that its services did not find any additional enclosure with a separate letter addressed to the Commission President.

The Commission explained that its Secretariat General replied to a third letter from the complainant on 25 August 2003, indicating that the contents of that letter were repetitive, and reserving the right to discontinue the exchange of correspondence. A further letter from the complainant addressed to the Secretary-General dated 28 August 2003 was not replied to for the above-mentioned reasons.

The institution added that its services have no knowledge of letters or faxes addressed to its President, further to the letters mentioned above.

In reply to the complainant's argument whereby the actions taken by her Belgian bank were contrary to the provisions of Directive 2000/43/EC, the Commission explained that this rule implemented the principle of equal treatment between persons irrespective of racial or ethnic origin. The complainant in this case is a Finnish national and her complaint concerns the treatment she received by a private Belgian bank. In the Commission's view, Article 3 (2) of the Directive makes it clear that it does not cover differences of treatment on grounds of nationality, which was the basis of the complainant's allegation, since she did not appear to be complaining about discrimination based on her ethnic or racial origin. Accordingly, the Commission did not consider the Directive to be relevant in this case.

As regards the Ombudsman's conclusions in case 1045/2002/GG, concerning the Swedish company Telia, the Commission noted that in this case, its services were competent to examine Telia’s practice under Article 82 of the EC Treaty requiring a dominant market position by the company in question.

The Commission therefore took the view that its services replied to the letters of the complainant correctly, and that there was no instance of maladministration.

The complainant's observations

In her observations on the Commission's opinion, the complainant restated the allegations made in her complaint.

She raised, however, a number of preliminary points. She noted that several EU officials had not replied to her letters at the time she submitted her complaint to the Ombudsman. She had not mentioned this fact in her original complaint to the Ombudsman because her first phone inquiries had led her to believe that the replies were forthcoming. In the absence, however, of any reply, the complainant wished to add this aspect to her complaint to the Ombudsman.

The complainant also explained that a second financial institution had closed her account on the same grounds as the first one, and asked for this additional element to be included in her original complaint.

As regards the Commission's opinion, the complainant pointed out that the institution had focused its comments on only one of the fourteen pages of her complaint. She noted that out of the 146 lines of the incomplete comments of the Commission, only 27 lines, namely about 18 %, were relevant to the issues raised in her complaint. She highlighted what she regarded as the insufficiencies of the Commission's opinion, and referred to a number of details which, in her view, confirmed that the institution had not properly replied to her requests.

FURTHER INFORMATION FROM THE COMMISSION

Following an informal suggestion by the Ombudsman's Secretariat, the Commission forwarded additional information on 27 January 2005. The institution noted that, on 13 January 2005, the Secretary-General requested the opinion of the services responsible for competition matters on the allegation made by the complainant of use of discriminatory business practices by a Belgian bank. The opinion of the services responsible for competition matters stated that there are no indications that, (i) the responsible Bank would be in a dominant position; (ii) the practices complained of would be implementing an agreement between undertakings; (iii) trade between Member States would be appreciably affected; or (iv) competition between banks would be appreciably restricted. The opinion therefore concluded that there were no grounds to consider that the alleged practices carried out by a particular Belgian bank may constitute an infringement of the rules of the EC Treaty on competition (Articles 81 and 82).

In her observations on this additional information, the complainant underlined that, in the preparation of her complaint, she was under no obligation to specify the legal provisions which might have been infringed. Accordingly, she argued that the Commission should have been primarily responsible to identify the legal aspects at stake in this case. In her view, the Commission's statement whereby there appeared to be no previous agreements between the responsible firms was hardy understandable. She argued that the position of the responsible Belgian banks was no different from that of the firm Telia in case 1045/2002/GG. She also referred to a number of additional EU institutions and bodies against which she wished to complain, namely the Economic and Social Committee, the European Monitoring Centre on Racism and Xenophobia, the Council of the EU, and Solvit. The complaint also mentioned that two other Belgian banks had decided to close her accounts.

THE DECISION

1 Preliminary remarks
Scope of the Ombudsman’s inquiry

1.1 The complaint to the Ombudsman concerns the Commission’s handling of a complaint made to it about the alleged use of discriminatory business practices by a Belgian bank.

1.2 To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries into this complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission. The Ombudsman has no competence to inquire into the complainant’s allegations against her Belgian bank.

In view of the above considerations on the remit of the European Ombudsman, the request made by the complainant in her observations to have her dispute with a second financial institution included in the original complaint was not relevant for the purposes of the European Ombudsman’s inquiry, which concerned only the Commission. The Ombudsman finds that there appears to be no direct relationship between this new element and the actions undertaken by the European Commission in response to the complainant's complaint.

Previous complaints lodged with the Ombudsman

1.3 In her exchanges with the Ombudsman, the complainant indicates that her first letters to the European Ombudsman were sent in August and October 2002. The Ombudsman registered these letters under file number 1532/2002/VK. Accordingly, the complainant stresses that the date of her complaint to the Ombudsman should be August 2002 rather than August 2003.

1.4 As the Ombudsman has already pointed out in his decision on complaint 1967/2003/JMA involving a related case, it appears that the complainant's first complaint of 19 August 2002 (registered under file number 1532/2002/VK) concerned the actions of a private firm. Since these actions were outside the Ombudsman's remit, the complaint was declared inadmissible.

Her complaint to the Ombudsman of 19 August 2003, which was registered as 1618/2003/JMA and is the object of the present decision, was against the European Commission, and involved allegations different from those contained in complaint 1532/2002/VK.

The Ombudsman therefore considered it appropriate for the two complaints submitted by the complainant respectively on 19 August 2002 and 19 August 2003 to be registered under different file numbers and dated accordingly.

New allegations against various Community Institutions and bodies in the complainant’s observations

1.5 In her observations on the Commission's opinion, the complainant notes that a number of EU officials had not replied to her letters at the time she submitted her complaint to the Ombudsman. In the absence of any reply, she wishes to add this element to her original complaint.

Similarly, in her observations on the further information sent by the institution on 27 January 2005, the complainant refers to a number of additional EU institutions and bodies against which she wishes to complain, namely the Economic and Social Committee, the European Monitoring Centre on Racism and Xenophobia, the Council of the EU and Solvit.

1.6 The European Ombudsman is mindful of the fact that the alleged failure of a number of EU officials to formally reply to the letters from the complainant constitutes a new allegation which was not made in the original complaint. The same consideration applies to the complainant's request to expand the scope of her complaint to a number of additional EU institutions and bodies. In all those cases, the responsible institution or body has not been asked to submit an opinion on the matter during the framework of the present inquiry, and thus has had no opportunity to explain its position.

In these circumstances, the Ombudsman will not deal with these points in his decision, which is limited to the allegations set out in his opening letter to the Commission. The complainant is however free to lodge a new complaint on these points, if she so wishes, providing full details of the correspondence concerned.

2 Commission's alleged failure to investigate the complainant's allegations

2.1 The complainant alleges that the Commission failed to properly investigate the alleged use of discriminatory business practices by a Belgian bank, despite her numerous requests. The complainant points out that, following the Ombudsman's decision in case 1045/2002/GG, the institution reconsidered its previous position, and launched an inquiry into a very similar situation.

The complainant argues that none of the letters she sent to different members of the Commission, namely to President Prodi and to Commissioners Diamantopoulou and Bolkestein, as well as to the Commission services, including those to the Directorate General for Consumer Affairs, to the Legal Service, and to the Secretariat General, were replied to in accordance with the European Code of Good Administrative Behaviour.

2.2 The Commission argues that its obligations under Article 211 of the EC Treaty are fulfilled by conducting investigations and, eventually, infringement procedures against Member States. The use of these powers against natural and legal persons is therefore exceptional. The Commission could not carry out an inquiry into the complainant's problem since it does not have the power either to investigate the contractual relationship between the complainant and her bank, or to adopt measures against the financial institution. Moreover, the facts set out by the complainant did not disclose any breach of Community law in the areas of banking, discrimination or competition.

The complainant's dispute with a Belgian bank was therefore a matter to be dealt with by the Belgian authorities.

In the Commission's view, all the letters sent by the complainant were answered by the respective services according to its code of good administrative conduct. The Commission notes that all its replies explained in detail the reasons for its position, namely that the complainant's problem did not fall within its field of competence under the EC Treaty.

Reply to the complainant's letters

2.3 On the basis of the information provided in the course of the Ombudsman's inquiry, it appears that the complainant addressed a number of letters to the Commission requesting the institution's intervention and assistance in her dispute with a private Belgian bank, in particular to the Commission President, Mr Prodi, to Commissioners Diamantopoulou and Bolkestein, to the Directorate General for Consumer Affairs, to the Legal Service, and to the Secretariat General.

2.4 The Ombudsman notes that the Commission's Code of Good Administrative Behaviour(1) addresses the standard of conduct which officials are expected to follow when replying correspondence from citizens in point 4 of its Annex. This provision states that:

"In accordance with Article 21 of the Treaty establishing the European Community, the Commission shall reply to letters in the language of the initial letter, provided that it was written in one of the official languages of the Community.

A reply to a letter addressed to the Commission shall be sent within 15 working days from the date of receipt of the letter by the responsible Commission department. The reply should identify the person responsible for the matter and state how he or she may be contacted.

If a reply cannot be sent within 15 working days, and in all cases where the reply requires other work on it, such as interdepartmental consultation or translation, the member of staff responsible should send a holding reply, indicating a date by which the addressee may expect to be sent a reply in the light of this additional work, taking into account the relative urgency and complexity of the matter.

If the reply is to be drawn up by a department other than the one to which the initial correspondence is addressed, the person making the enquiry should be informed of the name and office address of the person to whom the letter has been passed."

2.5 From the available information, it appears undisputed that, except for the correspondence addressed to the President of the Commission, all the other letters sent by the complainant to the institution were duly answered by the service receiving the letter, by the service to which the letter was transferred, and in some cases by both. It also appears that the replies from the Commission services all concurred in providing the same explanation, namely that the Commission had no powers to deal with the problem referred to in the complainant's letters, and suggested a number of alternative courses of action. The Ombudsman welcomes the effort made by the Commission services to assist the complainant. It is regrettable, however, that, in one case, the institution which the Commission advised the complaint to contact was not competent at all to deal with the problem.

As regards the letters which the complainant allegedly sent to the President of the Commission, the Ombudsman considers that there is no available information which may lead him to believe that those letters were lost or misplaced. It appears, however, that in its opinion to the Ombudsman, the Commission has provided the information which the complainant had requested in her letters to Mr Prodi.

In view of the above, the Ombudsman considers that the actions taken by the Commission services in relation to the several letters sent by the complainant appear to be in accordance with the obligations set out in the institution's own Code of Good Administrative Behaviour, which do not appear to diverge from those contained in the European Code of Good Administrative Behaviour. The Ombudsman has therefore concluded that there appears to be no maladministration as regards this aspect of the case.

Commission's inquiry on the complainant's formal letters of complaint

2.6 From the available information, it appears undisputed that the complainant's letters to the Commission's Secretary General dated 15 February, 15 May, 25 and 28 August 2003, were sent as formal complaints. As the Commission itself has quoted in its opinion, the complainant's letter of 15 February 2003 was headed "complaint to the Commission", and included the following text:

"I [...] submit a complaint dealing with my individual complaint and the matter of general concern and by extension requesting the Commission to take a stance on this matter of public interest. I hereby declare that [...] I have been discriminated against, refused to be treated equally with other people and prevented from enjoying the free movement of services and capital in the European Union [...]."

This letter, as well as the other letters sent by the complainant to the Secretariat General seemed to include a detailed description of the problems encountered by the complainant with her Belgian bank.

2.7 The Ombudsman recalls that one of the fundamental tasks of the Commission in its role as "Guardian of the Treaty" under Article 211 of the EC Treaty is to ensure that Community law is correctly applied in all the Member States. In carrying out its duty, the Commission investigates possible infringements of Community law which come to its attention largely as a result of citizens’ complaints.

If, as a result of its inquiry, the Commission considers that a Member State has failed to fulfil its obligations under the Treaty, Article 226 gives it the power to start infringement proceedings against the responsible Member State, and if necessary, to bring the matter before the European Court of Justice.

The serious implications of this course of action makes it necessary that its implementation is fully respectful of the applicable substantive and procedural rules in order to preserve the rights of all parties concerned.

2.8 As regards the procedural rules to be followed by the Commission in its handling of formal complaints submitted by citizens, the Ombudsman notes that the relevant criteria have been set out in the Commission's Communication to the European Parliament and the European Ombudsman on Relations with the Complainant in respect of infringements of Community law(2) [henceforth, the Communication]. Complaint is defined in the text as:

"[...] any written approach made to the Commission pointing to measures or practices contrary to Community law."(3)

The Communication requires that any correspondence likely to be investigated as a complaint should be recorded in the central registry of complaints kept by the Secretary-General of the Commission. The correspondence which is not to be investigated as a complaint, includes written communications which are anonymous, fail to show an address, do not mention the Member State which the measure concerns, fail to set out a grievance regarding EC law, and also the ones which denounce,

"[...] the acts or omissions of a private person or body, unless the measure or complaint reveals the involvement of public authorities or alleges their failure to act in response to those acts or omissions. In all cases, the Commission shall verify whether the correspondence discloses behaviour that is contrary to the competition rules (Articles 81 and 82 of the EC Treaty)."(4)

2.9 In view of the available information, it appears that the letters sent by the complainant to the Commission's Secretary-General constituted written approaches pointing to practices allegedly contrary to Community law. It also appears that that correspondence clearly identified the sender, the Member State where the practice occurred, the alleged grievance and the Community legal rules and principles allegedly breached.

As regards the object of the complaint, it is undisputed that it was addressed against the actions of a private firm, even though it is unclear whether the complaint revealed the involvement of public authorities, or alleged their failure to act in response to those acts or omissions. The Ombudsman has found no information which might lead him to believe that the facts of the case revealed some type of involvement of the Belgian authorities in this case, or that the complainant had specifically alleged in her complaint any failure to act on the part of the Belgian authorities.

In view of these circumstances and taking into account that the complainant's letters to the Commission's Secretariat General denounced acts of a private entity, the Ombudsman finds that the Commission was entitled to consider under the rules of its Communication that the complainant's correspondence should not have been investigated as a formal complaint and therefore not registered in the Commission's central registry of formal complaints.

2.10 The Ombudsman recalls, however, that, as set out in point 3 of the Annex to the Commission Communication mentioned above, in cases addressed against private parties such as the one lodged by the complainant, the Commission is under an obligation to verify whether the practices at stake disclose behaviour that is contrary to the competition rules (Articles 81 and 82 of the EC Treaty).

In reply to an informal suggestion from the Ombudsman's services, it appears that the Commission proceeded to carry out an evaluation of the complaint in the light of the Community competition rules, and that it concluded that the situation did not appear to constitute an infringement of the rules on competition laid down in Articles 81 and 82 of the EC Treaty.

The Ombudsman has received no information which may lead him to believe that the Commission's assessment of the complaint in connection to the Community competition rules was inadequate.

2.11 In view of the above, the Ombudsman finds that the justification given by the Commission not to carry out inquiries on the grounds that the object of the complainant's letter denounced the acts of a private body, and that those acts do not appear to contravene the competition rules set out in the EC Treaty appears to be reasonable. The Ombudsman takes therefore the view that the Commission acted within the limits of its legal authority when it decided not to pursue an inquiry into the complainant's case.

The Ombudsman has therefore concluded that the inquiry has not revealed an instance of maladministration on the part of the Commission.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Commission Decision of 17 October 2000 amending its Rules of Procedure (2000/633/EC, ECSC, Euratom); OJ L 267/63 of 20.10.2000.

(2) COM(2002) 141 final of 20 March 2002, 2002 OJ C 244/5.

(3) Annex to the Commission Communication, point 1 ("Definitions and scope").

(4) Annex to the Commission Communication, point 3 ("Recording of complaints").