The background to the complaint

1. On 7 March 2011, the complainant submitted an infringement complaint to the European Commission, alleging that Poland had infringed EU law. The Commission registered the complaint[1] and, on 18 March 2011, sent the complainant an acknowledgement of receipt.

2. On several occasions, the complainant asked the Commission to inform him about the progress in its investigation of his case. He indicated that he sent three e-mails to the Commission, on 28 January 2012, 26 March 2012 and 30 March 2012. The Commission failed to reply to these e-mails and the complainant turned to the European Ombudsman.

The subject matter of the inquiry

3. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

The Commission failed to reply to the complainant's e-mails requesting information on the current status of his infringement complaint.

Claim:

The Commission should reply to the complainant's e-mails and inform him of the current status of his complaint.

The inquiry

4. On 3 April 2012, the complainant submitted the present complaint. On 13 April 2012, using a simplified procedure, the Ombudsman contacted the Commission by telephone and asked it to reply rapidly to the complainant's above-mentioned e-mails.

5. The Commission, however, failed to reply to the complainant and, in June 2012, the Ombudsman concluded that his attempt to find a rapid solution in this case had failed. He therefore decided to proceed with a fully fledged inquiry. On 12 June 2012, the Ombudsman opened the present inquiry and invited the Commission to provide an opinion as soon as possible, and in any event, before 31 July 2012.

6. On 17 August 2012, the Commission sent its opinion. The Ombudsman subsequently forwarded it to the complainant and invited him to submit observations thereon. The complainant sent his observations on 18 September 2012.

The Ombudsman's analysis and conclusions

A. Alleged failure to reply to the complainant's e-mails and related claim

Arguments presented to the Ombudsman

7. The complainant referred to the Commission's website, which provides that the Commission should endeavour to take a decision on the substance of a complaint, that is, either to open infringement proceedings or to close the case,  within twelve months of its registration by its Secretariat-General. The complainant considered that, in any event, the Commission should have informed him about the status of his complaint and how the investigation was progressing. Although he requested information from the Commission to that effect on several occasions, the latter never provided any reply.

8. In its opinion, the Commission explained that the substance of the complainant's case concerned the allegation that Poland had wrongly implemented Directive 95/46/EC[2] (hereinafter 'the Data Protection Directive') in relation to the powers of the Data Protection Supervisory Authority. More specifically, the complainant alleged lack of powers of the Data Protection Supervisory Authority – the Inspector General for the Protection of Personal Data – in relation to the data protection activities of religious associations. The Commission submitted that it intends to investigate this complaint further, with a view of verifying the compatibility of the Polish Act on Personal Data Protection with the Data Protection Directive, and, in particular, the powers of the Polish Data Protection Supervisory Authority in relation to religious associations.

9. Concerning the complainant's allegation, the Commission noted that he asked for an update on the state of play of his case on 28 January 2012, 26 March 2012, 17 May 2012 and 30 March 2012. The Commission acknowledged that, after the registration of the complaint in question and the sending of the acknowledgement of receipt, it failed to provide further information to the complainant. The Commission expressed its regret for the delays incurred in replying to the complainant's e-mails. It pointed out that, in the meantime, that is, on 17 July 2012, it provided him with a complete reply.

10. In his observations, the complainant thanked the Ombudsman for his intervention. He also confirmed that he had received the Commission's reply and that he now expected the Commission to investigate his complaint further.

The Ombudsman's assessment

11. The Ombudsman notes at the outset that the present complaint concerns only the Commission's alleged failure to keep the complainant informed about the status of his infringement complaint. It does not concern the Commission's substantive assessment of the complaint and/or the measures which the Commission took or intends to take in this regard. The Ombudsman points out that, if the complainant were to be unhappy with the Commission's investigation, once this is finalised, he remains free to submit a new complaint to the Ombudsman.

12. As regards the alleged failure to keep the complainant informed about the status of his complaint, the Ombudsman has consistently held that it constitutes good administrative practice for the Commission to keep complainants informed about the state and the outcome of their infringement complaints. The Ombudsman refers in this context to the Communication from the Commission to the Council and the Parliament updating the handling of relations with the complainant in respect of the application of Union law (COM 2012/154 final), which sets out the procedural framework that the Commission should follow in handling infringement complaints.

13. In the case at hand, the complainant requested the Commission, on four occasions, to provide him with an update on the status of his complaint. The first request was sent on 28 January 2012. The Commission provided a reply on 17 July 2012. It is thus clear that it took the Commission more than five months to provide the complainant with the requested information. In the Ombudsman's view, this shows that the Commission failed to reply within a reasonable time to the complainant's e-mails. This constitutes an instance of maladministration.

14. In its letter of 17 July 2012, the Commission updated the complainant on the state of its investigation of the issues he had raised and informed him about its intention to request "the Polish authorities to provide [it] with the necessary supplementary substantial information". The Commission also committed itself to informing the complainant about the next steps that it would take in the context of this procedure. The Commission has thus provided the answer that the complainant requested.

15. In its reply, the Commission expressed regret at the delay that had occurred. The Ombudsman does not consider this to be sufficient. In view of the time it took the Commission to send this reply, it would clearly have constituted good administrative practice for it to apologise for the delay that had occurred. The Ombudsman notes, however, that, in his observations, the complainant confirmed that he had received the Commission's reply, made no further comments and thanked the Ombudsman for his intervention. In these circumstances, the Ombudsman takes the view that there are no grounds for further inquiries into this complaint.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There are no grounds for further inquiries into this case.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 24 January 2013

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[1] Reference number: CHAP(2011)00776.

[2] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ  1995 L 281, p. 31.