Strasbourg, 12 November 2007

Dear Mr L.,

On 6 February 2007, you submitted a complaint to the European Ombudsman concerning the European Commission's alleged failure properly to deal with an infringement complaint against Germany, which you had sent to it on 19 October 2006.

On 28 February 2007, I forwarded the complaint to the President of the Commission.

On 29 March, 17 April and 13 June 2007, you sent me additional background information.

The Commission sent the original French version of its opinion on 28 June 2007 and a translation of it into German on 5 July 2007. On 12 July 2007, I forwarded the latter document to you with an invitation to make observations, if you so wished.

No observations were received from you. However, on 25 July 2007, you sent me further background information on the matter you had raised with the Commission.

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

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 your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT

The complainant is a German lawyer. On 19 October 2006, he wrote to the European Commission, stating that it was practically impossible to pursue former or current members of the German government for criminal wrongdoing. In support of this view, the complainant referred to a recently published book, which compared the accountability of members of government in Germany and France and concluded that accountability in criminal matters was "de facto non-existent" in Germany. The complainant argued that this state of affairs infringed Article 10 of the EC Treaty and, therefore, asked the Commission to open infringement procedures against Germany. He also alleged infringements of Article 41 of the Charter of Fundamental Rights of the European Union and of the principle of effective legal protection laid down in the European Convention on Human Rights. It appeared that the complainant particularly suspected criminal behaviour in the involvement of certain German politicians in anti-trust decisions concerning energy providers.

In its reply of 15 December 2006, the Commission stated that it had taken note of the situation described by the complainant. However, it explained that it had no competence to intervene in criminal proceedings in the EU Member States. According to Article 33 of the EU Treaty, the Member States were responsible for maintaining law and order as well as for safeguarding their internal security. The Commission stated that its competences in this context were restricted to proposing, in pre-defined areas, legal instruments to be applied in the entire EU.

In his complaint to the European Ombudsman, the complainant essentially alleged that the Commission failed properly to deal with his letter of 19 October 2006. He considered that the Commission was wrong to declare itself not competent to deal with the matter. In addition to the arguments he had brought forward in his letter to the Commission, the complainant submitted that Germany also infringed Article 10 of the EC Treaty in connection with Article 234 of the EC Treaty because the German courts failed to ask the European Court of Justice for a preliminary ruling in relation to the matter at issue.

The complainant claimed that the Commission should open infringement proceedings against Germany in relation to the matter he had raised.

THE INQUIRY

The Ombudsman's considerations

The Ombudsman noted that the complainant's letter to the Commission of 19 October 2006 was entitled "Request to open infringement proceedings" ("Ersuchen auf Einleitung eines Vertragsverletzungsverfahrens"). In his letter to the Commission opening the inquiry, the Ombudsman therefore pointed out that the Commission's Communication on Relations with the Complainant in Respect of Infringements of Community Law(1) ("the Communication") could be applicable to its handling of the letter.

The Commission's opinion

In its opinion, the Commission confirmed the position it had taken in its letter of 15 December 2006, that is, that it was not competent to intervene in individual cases that were the object of criminal proceedings in the EU Member States. The Commission reiterated that, according to Article 33 of the EU Treaty, the Member States were responsible for maintaining law and order as well as for safeguarding their internal security.

The Commission explained that, since it lacked competence in the matter at issue, it was not in a position to conduct infringement proceedings against Germany. Furthermore, such a procedure was not foreseen under Title VI of the EU Treaty ("Provisions on Police and Judicial Cooperation in Criminal Matters"), nor by Article 35 of the EU Treaty in particular. Against this background, the Commission argued that, pursuant to Point 1(3) of the Communication, the Communication was not applicable, given that the complainant's complaint related to "other Treaty provisions", namely, Article 35 of the EU Treaty.

Insofar as the complainant had referred to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, the Commission recalled that it did not have general competence to intervene in individual cases concerning a violation of fundamental rights. It could only intervene if the violation took place within the framework of Community law, that is, if the situation included an element connecting it with Community law. This principle was laid down in Article 51 of the Charter, which specified that its provisions applied "to the Member States only when they are implementing Union law". According to the Commission, the situation at issue did not meet the above condition, so that the Commission was not competent to examine the observance of fundamental rights in this case.

On the basis of these considerations, the Commission took the view that it had correctly informed the complainant that it was not competent to intervene in the matter he had raised. It acknowledged that its reply of 15 December 2006 had not referred to possible infringement proceedings. However, the Commission submitted that the letter implicitly rejected this possibility because infringement proceedings were not possible in relation to the matter at issue.

Insofar as the complainant had raised anti-trust issues concerning energy providers, the Commission added that its Directorate-General for Competition was currently carrying out investigations concerning certain gas and electricity providers.

The complainant's observations

The complainant did not make any observations on the Commission's opinion. However, he forwarded a number of newspaper articles to the Ombudsman, which related to the subject-matter of his complaint to the Commission, particularly to the involvement of former members of the German government in large commercial enterprises.

THE DECISION

1 Alleged failure properly to handle an infringement complaint and related claim

1.1 The complainant, a German lawyer, alleged that the European Commission failed properly to deal with a letter he sent to it on 19 October 2006. In that letter, the complainant asked the Commission to open infringement proceedings against Germany because, according to him, it was practically impossible to pursue former or current members of the German government for criminal wrongdoing. The complainant considered that this state of affairs infringed Article 10 of the EC Treaty, as well as the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. The complainant enclosed the reply he had received from the Commission. In this reply, dated 15 December 2006, the Commission stated that it had no competence to intervene in the matter. In his complaint to the Ombudsman, the complainant submitted that the Commission was wrong to declare that it was not competent. He claimed that the Commission should open infringement proceedings against Germany. The complainant added that Germany also infringed Article 10 of the EC Treaty in connection with Article 234 of the EC Treaty because the German courts refused to ask the European Court of Justice for a preliminary ruling in relation to the matter at issue.

1.2 In his letter to the Commission opening the inquiry, the Ombudsman pointed out that the Commission's Communication on Relations with the Complainant in Respect of Infringements of Community Law(2) ("the Communication") could be applicable to its handling of the complainant's letter.

1.3 In its opinion, the Commission confirmed its position. It stated that it was not competent to intervene in individual cases that were the object of criminal proceedings in the Member States. According to Article 33 of the EU Treaty, the Member States were responsible for maintaining law and order as well as for safeguarding their internal security. The Commission explained that, since it lacked competence in the matter, it was not in a position to conduct infringement proceedings. Furthermore, such a procedure was not foreseen under Title VI of the EU Treaty, in the scope of which the complainant's request fell. Against this background, the Commission argued that, pursuant to Point 1(3) of the Communication, the Communication was not applicable, given that the complainant's complaint related to "other Treaty provisions", namely, Article 35 of the EU Treaty. Insofar as the complainant had referred to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, the Commission recalled that it did not have general competence to intervene in individual cases concerning a violation of fundamental rights, but was only competent to do so if the situation included an element connecting it with Community law. According to the Commission, the situation at issue did not fulfil the above condition, so that the Commission was not competent to examine the observance of fundamental rights in this case. On the basis of these considerations, the Commission took the view that it had correctly informed the complainant that it was not competent to intervene in the matter he had raised. It acknowledged that its reply of 15 December 2006 had not referred to possible infringement proceedings. However, the Commission submitted that the letter implicitly rejected this possibility because infringement proceedings were not possible in relation to the matter at issue.

1.4 As to the procedural aspect of the complaint, the third paragraph of Point 1 of the Communication provides as follows:

"The measures described here shall apply to relations between complainants and Commission departments in connection with infringement proceedings. They shall not apply to complaints relating to other Treaty provisions, particularly complaints regarding state aid covered by Article 87 and 88 of the EC Treaty or by Council Regulation (EC) No 659/1999."

The second paragraph of Point 3 of the Communication contains an exhaustive list of reasons on the basis of which correspondence shall not be amenable to investigation as an infringement complaint, for example if "it sets out a grievance which clearly falls outside the scope of Community law".

The fourth paragraph of Point 4 of the Communication provides:

"Where the Commission departments decide not to register the correspondence as a complaint, they shall notify the author to that effect by ordinary letter setting out one or more of the reasons listed in the second paragraph of point 3."

1.5 The Ombudsman recalls that, as he pointed out in his letter to the Commission opening the inquiry, the complainant entitled his submission to the Commission "Request to open infringement proceedings", so that it appeared that the Commission's Communication could be applicable. The Commission argued that, since the complainant's submission did not concern an area in which infringement proceedings were possible but "other Treaty provisions", the Communication was not applicable, pursuant to its Point 1(3). The Commission acknowledged that its reply letter to the complainant had not referred to the possibility of infringement proceedings, but took the view that the letter implicitly rejected this possibility, given that infringement proceedings were not possible.

1.6 The Ombudsman is not convinced by this reasoning. He is surprised to note that the Commission based its position on provisions contained under Title VI of the EU Treaty, although, in his letter to the Commission, the complainant had not invoked any such provision, but had rather alleged an infringement of Article 10 of the EC Treaty. Therefore, the Ombudsman considers that the Commission should have dealt with the complainant's infringement complaint as such and, consequently, should have applied its Communication, irrespective of whether the issue raised by the complainant was investigable in the framework of an infringement procedure or not. The Commission's failure to do so constitutes an instance of maladministration. A critical remark will be made in this respect.

1.7 As to the substantive aspect of the complaint at hand, the Commission has, as pointed out above, based its reasoning on provisions the complainant had not invoked. On the other hand, the Commission did not examine whether there could be an infringement of Article 10 of the EC Treaty, as the complainant had argued.

Article 10 of the EC Treaty provides as follows:

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

The complainant has not explained in what way he considers that his concern, namely, the accountability of politicians in criminal matters, is related to an obligation on Germany under the EC Treaty. The Commission's argument that the situation he described did not include an element connecting it with Community law, which the Commission only advanced in relation to the complainant's view that fundamental rights had been infringed, can, in the Ombudsman's view, be seen as holding true for the entirety of the complainant's submission. Therefore, one of the conditions listed in the second paragraph of Point 3 of the Communication appears to have been fulfilled, namely, that the complaint "sets outs a grievance which clearly falls outside the scope of Community law". It thus appears that, even if the Ombudsman cannot follow the Commission's reasoning, it correctly concluded that it could not investigate the complainant's concerns by way of an infringement procedure. The complainant's view that the Commission wrongly declared itself incompetent can therefore not be sustained.

1.8 In this context, the Ombudsman also recalls that, in his complaint to the Ombudsman, the complainant additionally argued that Germany also infringed Article 234 of the EC Treaty. This aspect was not mentioned in the complainant's complaint to the Commission. The inquiry opened by the Ombudsman concerned only the Commission's handling of that complaint. The Commission has not commented on the complainant's new argument in relation to which it appears that there were no prior administrative approaches, as required under Article 2(4) of the Ombudsman's Statute. Therefore, and given that the above considerations also apply here, the Ombudsman does not need to examine this aspect any further.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

In its Communication on Relations with the Complainant in Respect of Infringements of Community Law, the Commission has laid down standards for its contacts with complainants who consider that measures or practices in a Member State infringe Community Law. In the present case, the complainant clearly intended his submission to constitute an infringement complaint. Therefore, the Commission should have handled it as such and, consequently, should have applied its Communication, irrespective of whether or not the issue the complainant raised was investigable in the framework of an infringement procedure. The Commission's failure to do so constitutes an instance of maladministration.

Given that the Commission's position as to the substance of the complainant's submission appears to have been correct, the Ombudsman considers that it would not be justified for him to pursue his inquiries further in order to try to achieve a friendly settlement. 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) COM(2002) 141 final.

(2) COM(2002) 141 final.