The complaint to the European Commission

1. On 21 November 2017, the complainant contacted the European Commission concerning problems he had had with German courts due to an alleged misapplication of the Victims’ Rights Directive^[1] in Germany.

2. He received an Acknowledgement of Receipt from the Commission, dated 18 December 2017, that his request was registered as an infringement complaint.

3. On 24 June 2018, the complainant reminded the Commission about the issue. As the complainant had not received a reply, on 8 July 2018 he turned to the Ombudsman.

The European Commission’s response to the complainant

4. After the Ombudsman’s intervention, the Commission replied to the complainant on 12 September 2018. In its reply, the Commission informed the complainant that his complaint did not raise a systemic problem. It also informed the complainant that it was analysing the transposition of the Victims’ Rights Directive, including the issues raised in his complaint, in all Member States, including Germany, The Commission also stated that it intended to complete this exercise by the end of 2018. Thus, unless he provided relevant information to re-assess its preliminary conclusion within four weeks, the Commission would close the case.

5. The complainant replied to the Commission on 10 October 2018, explaining his difficulties in having access to justice in Germany.

6. On 16 November 2018, the Commission replied again to the complainant. It once again stated that it had no competence to intervene in his individual case concerning the day-to-day administration of justice in Germany. Given that in his letter of 10 October 2018, the complainant had not provided any new elements to reconsider its preliminary assessment, the Commission decided to close the case.

7. The complainant was not satisfied with the Commission’s response and turned to the Ombudsman, arguing that the distinction made by the Commission between individual and general issues in deciding whether to start infringement proceedings against a Member State finds no support in the jurisprudence of the EU Courts. 

The European Ombudsman's finding

8. The Ombudsman notes that the EU Treaties confer an obligation on the Commission to oversee the application of EU law by Member States. This includes ensuring that Member States transpose and apply EU law correctly.^[2] According to the settled case-law of the Court of Justice, the Commission has a wide margin of discretion in deciding whether to open an infringement procedure against a Member State.^[3] The Ombudsman should not interfere with the exercise by the Commission of its discretion as long as the Commission acts within the boundaries of its legal authority. However, as a matter of good administration, the Ombudsman can check whether the Commission has explained properly how and why it has exercised its discretion.

9. It follows from case law^[4] of the Court of Justice that a practice of misapplication of EU law must be, to some degree, consistent and general to enable the Commission to act in its capacity as Guardian of the Treaties. The purpose of infringement proceedings is not to resolve specific or individual cases of misapplication of EU law involving one or a small number of citizens. Infringement proceedings are, essentially, a process by which the European Commission enters into a dialogue with a Member State to identify and resolve generalised and consistent problems in the application of EU law by that Member State. Besides, the Commission has a broad margin of discretion when deciding whether practices are sufficiently consistent and general in nature to lead to the opening of an infringement procedure. .

10. In this case, the Commission decided not to initiate an infringement procedure against Germany as the case concerned an individual situation, and the Commission was in the process of assessing the transposition of the Victims’ Rights Directive in all Member States. The Commission’s choice was therefore reasonable and in line with the relevant case-law. Thus, the Commission did not exceed its margin of discretion.

11. Based on the information provided by the complainant, the Ombudsman finds no maladministration in this case.^[5]

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 14/03/2019

 

[1] Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, available at: http://data.europa.eu/eli/dir/2012/29/oj.

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

[3] See judgment of the Court of Justice of 14 February 1989, Star Fruit v Commission, C-247/87, ECLI:EU:C:1989:58, paragraph 11.

[4] See, for example, judgment of the Court of Justice of 12 May 2005 in case C-287/03, Commission v Belgium, ECLI:EU:C:2005:282, paragraph 29.

[5] 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