The complaint to the European Commission

1. The complainant is a Romanian citizen, residing in Greece. In 2013, she made a request for a survivor’s pension to the Greek pension fund (TSMEDE[1]) to which her deceased husband, a University professor to whom she has been married for two years and nine months, was affiliated.

2. In 2016, the Greek authorities informed her that she would not be entitled to receive a survivor’s pension, as she had not had at least three years of marriage, as required by the relevant law.

3. The complainant considered that the Greek authorities misapplied the relevant legislation[2] and discriminated against her on grounds of nationality. After having unsuccessfully submitted a petition to the European Parliament’s Committee on Petitions[3], she made a complaint to the European Commission, asking it to take action against Greece for having infringed EU law (a so-called ‘infringement complaint’[4]).

4. The complainant argued that the Greek authorities wrongly applied in her case the social security rules applicable to the private sector (IKA[5]) as from 2015, instead of the ones applicable since 2013 to University professors (TSMEDE). Also, she argued that her file was delayed intentionally, while the conditions became more stringent. The complainant stated that Greek widows in similar situations (less than three years of marriage), who had submitted requests for survivor’s pensions in 2014 and 2015, had received favourable decisions, as their files have been handled faster. She also requested the Commission to contact the Greek authorities and ask them specific questions regarding her entitlement to a survivor’s pension.

The Commission’s response to the complainant and the complaint to the Ombudsman

5. On 5 February 2018, the Commission closed the complainant’s case[6]. The Commission referred to its position previously expressed in its reply on the complainant’s petition to Parliament. In that reply, the Commission had expressed the view that the complainant’s claims were about the application of national law. It had also noted that provisions granting surviving spouses any kind of pension or other social security benefit fall under Article 153 (4) first intend of the Treaty on the Functioning of the European Union (TFEU), which provides that EU measures in the area of social policy shall not affect the Member States rights to define the fundamental principles of their social security systems, and the financial equilibrium thereof^[7]. The Commission had also stated that the complainant had not provided any concrete evidence or example of an alleged discrimination based on nationality.

6. In the decision closing the infringement complaint, the Commission added that it could not intervene in the design of the Greek pension system or the correct application of the relevant Greek legislation. In such cases, it is for Member States, including their judicial authorities, to ensure that fundamental rights are effectively respected and protected in accordance with their national legislation and international human rights obligations.

7. The Commission could open infringement proceedings against Greece only if it received evidence that the Greek authorities were discriminating against non­Greek widows. It also advised the complainant to lodge a complaint to the Greek Ombudsman and to submit to him evidence showing that she was discriminated against.

8. The complainant was not satisfied with the Commission’s response and therefore turned to the Ombudsman. She argued, that, one year after she had submitted her complaint, the Commission rejected it on the same grounds as those put forward in its reply on the petition she had submitted to Parliament. She stated that the Commission’s reasons for closing her infringement complaint, in particular that the Commission could not interfere with the management of the social security systems of the EU Member States, were incorrect and “illegal”. She also stated that she had provided the Commission with documents related to the pension of another Romanian citizen, which would prove that her case was not “single and isolated“[8]. She criticised the Commission for not asking the Greek authorities information on her pension situation and for not paying her damages for failing to properly deal with her complaint.

The European Ombudsman's findings

9. The Commission is responsible for overseeing the effective application, implementation and enforcement of EU law by the Member States[9]. In the event that a Member State fails to fulfil an obligation under the Treaties, the Commission can take measures (infringement proceedings) to bring this infringement to an end.

10. The Commission enjoys discretionary power in deciding whether or not, and when, to start an infringement procedure against a Member State[10] and acts on the basis of its policy on the monitoring of the application and implementation of EU law by Member States[11]. In line with this policy, the Commission gives priority to cases where the incorrect application of EU law is of a systemic nature[12]. The primary purpose of the infringement procedure is to ensure that Member States give effect to EU law in the general interest. For example, the Commission starts infringement proceedings against a Member State that has in place national legislation or administrative practice contrary to EU law. However, it is not the purpose of infringement proceedings to provide individual redress[13] and resolve specific cases of misapplication of EU law involving one or just a small number of citizens[14]. Therefore, individual cases of potential incorrect application of EU law, which do not raise issues of general practice or of a systematic failure to comply with EU law, should be dealt with at the national level[15].

11. In this case, the correspondence between the Commission and the complainant examined by the Ombudsman shows that the Commission has correctly assessed the issues raised by the complainant in her infringement complaint. The Commission was right to state that it is for the national authorities to uphold EU law and ensure that Greece complies with it, and that the complainant must pursue her case at national level in Greece. This is because the administrations and courts of the Member States (in this case, the competent administrative courts) are primarily responsible for safeguarding EU law. They have the competence to uphold the claims and actions of citizens that seek redress or financial compensation for the damage they suffer, when national measures infringe EU law.

12. The fact that the complainant does not want to turn to the national authorities does not mean that the Commission is obliged to contact the Greek authorities and try to solve the issue with her pension on her behalf. The Commission explained to the complainant that, in the absence of information or concrete evidence of a general practice showing that the Greek authorities were discriminating against non-nationals, it would not pursue further her complaint. This explanation was in line with the Commission’s policy[16]. In that regard, the Ombudsman notes that the complainant did not provide evidence that the Greek social security authorities were discriminating against non-Greek citizens in respect of their survivor’s pension.

13. Finally, in the framework of another similar complaint submitted by the complainant, the Ombudsman’s inquiry team contacted the Office of the Greek Ombudsman[17]. The latter confirmed that it had dealt with a number of complaints submitted by the complainant on the same issues and had also provided her with a decision clarifying the legal reasons why, under the applicable rules, she does not appear to fulfil the conditions for a survivor’s pension.

14. That said, the Ombudsman understands that the complainant finds herself in a difficult situation. However, the Commission is not the appropriate body to turn to in order to clarify her pension situation and entitlements or seek damages for the alleged discrimination by the Greek authorities.

15. Based on the information provided by the complainant, the Ombudsman finds no maladministration[18] in this case.

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 12/11/2018

 

[1] Engineers' and Public Contractors’ Pension Fund.

[2] The complainant argued that the Greek social security agencies handling her case wrongly applied a general law that granted a survivor's pension only after 3 years of marriage. She claimed that, instead, a specific decree (Decree 169/2007) was applicable because of her husband's occupation, and this had a shorter (0.5-2 years) marriage qualifying period.

^[3] Petition no 296/2016. After receiving the European Commission’s reply on the petition, the Committee on Petitions closed her case. It considered that the matters raised were within the competence of the Greek authorities and that the complainant did not prove the alleged discrimination by the Greek authorities.

[4] Registered under reference CHAP(2017)00168.

^[5] Social Security Foundation (IKA).

[6] On 28 November 2017, the Commission sent to the complainant a so called ‘pre-closure letter’, informing her of the Commission’s intention to close the case and inviting her to submit observations. The complainant did so on the same day. However, the Commission considered that the complainant’s observations did not provide any new information, persuading the Commission to review its decision.

^[7] The Commission also referred to EU case-law, according to which it is for the Member States to choose the measures capable of achieving the aim of their social and employment policy and to their wide margin of discretion in the area of social policy (judgment of the Court of 14 December 1995, Ursula Menger and Hildegard Scheffel v Innungskrankenkasse Vorderpfalz, case C­444/93, ECLI:EU:C:1995:442; judgment of the Court of 7 May 1991, Commission v Belgium, case C-229/89, ECLI:EU:C:1991:187), that covers, amongst others, rules on the questions of eligibility to and the granting of survivors' benefits.

^[8] According to the complainant, the Greek authorities also discriminated against that person, by postponing the decision concerning her retirement. Consequently, that person received a lower pension, due to more stringent applicable conditions.

[9] Article 17(1) Treaty on the European Union and Article 258 Treaty of the Functioning of the European Union. 

[10] Judgment of the Court of Justice of 6 December 1989, Commission v Greece, C-329/88, ECLI:EU:C:1989:618.  

[11] Communication from the Commission, EU law: Better results through better application, OJ 2017 C 18.

[12] Point 3 of the Communication. It also follows from the case-law of the Court of Justice of the European Union that a practice of misapplication of EU law must be, to some degree, consistent and general to enable the Commission to act (see, for example, judgment of the Court of Justice of 12 May 2005, Commission v Belgium, case C-287/03, ECLI:EU:C:2005:282, paragraph 29).

[13] Point 4 of the Communication (cited above, footnote 12). The Commission’s infringement procedure will not determine liability in an individual case, nor grant individuals financial compensation.

^[14] In any case, even if the Commission brings a case before the Court of Justice, the Court delivers a judgment stating whether there has been an infringement of EU law, but cannot annul a national provision which is incompatible with EU law, nor force a national administration to respond to the request of an individual, nor order the country to pay damages to an individual adversely affected by an infringement of EU law. To seek compensation, complainants must still take their case to a national court within the time limit set out in national law.

[15] Point 3 of the Communication (cited above, footnote 12). 

[16] The Commission can act only where there is clear evidence of general and consistent infringement of EU law on the part of national administrations, and has a wide margin of discretion when deciding whether practices are sufficiently consistent and general in nature to lead to the opening of an infringement procedure. However, it must explain why it used its discretion in a particular way, which it did in this case.

[17] On 16 February 2018, in the framework of a previous complaint (2262/2017/STI) submitted by the complainant to the Ombudsman.

[18] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions