Dear Ms X,

You recently submitted a complaint to the European Ombudsman against the European Commission concerning the above issue.

In your infringement complaint to the Commission, you argued that the Austrian authorities had wrongly refused to pay you certain family benefits, since you and your child reside in Austria. The father of your child lives in Bulgaria and the Austrian authorities are of the view that the Bulgarian authorities should pay the benefits. However, the Bulgarian authorities do not agree. You contended that, by refusing to pay you the benefits, the Austrian authorities had violated Regulation 883/2004[1] and Regulation 987/2009[2].

In your complaint to the Ombudsman, you argue that the Commission committed a manifest error of assessment by closing your infringement complaint. In your view, the Commission merely relied on the arguments presented by the Austrian authorities and failed to take into account the specific facts concerning your personal situation.

After careful analysis of all the information you provided with your complaint, we have decided to close the inquiry with the following conclusion:

There was no maladministration by the European Commission.

The Commission enjoys wide discretion in deciding whether and when to commence an infringement procedure.[3] Its policy on infringements of EU law is set out in its Communication EU law: Better results through better application[4]. The Ombudsman would question the Commission’s position in this regard only in case of a manifest error of assessment.

In this case, we note that the Commission provided you with clear information why it had decided to close the case and that its reply is reasonable. This is so in particular because the Commission correctly explained that (i) it does not have the power to establish the factual circumstances of individual cases, and that this is the sole responsibility of the relevant national authorities; and (ii) the Austrian authorities did not have an obligation but a possibility to refer the case to the Administrative Commission for a reconciliation of the different points of view held by it and the Bulgarian authorities on the matter[5]. Besides, the Commission informed you that it had contacted the Bulgarian authorities and would keep you informed about the outcome of the request.

In light of the above, and based on the fact that the factual circumstances of your particular case are in dispute, there is no indication of manifest error of assessment by the Commission.

You may wish to consider seeking redress through the relevant national authority in Austria.

I appreciate this may not be your desired outcome, but I hope you find these explanations helpful. Thank you for having contacted the European Ombudsman.[6]

Yours sincerely,

 

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 15/06/2023

 

[1] Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02004R0883-20190731.

[2] Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32009R0987.

[3] Judgment of the Court of 14 February 1989, Starfruit v Commission, case 247/87, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0247.

[4] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN.

[5] In line with Article 6(3) of Regulation 987/2009

[6] Full information on the procedure and rights pertaining to complaints can be found at

https://www.ombudsman.europa.eu/en/document/70707.