Strasbourg, 16 January 2004

Dear Mr. R,

On 14 November 2002, you made a complaint to the European Ombudsman on behalf of Patronato A.C.L.I. Belgio. This complaint concerned the way in which the Commission had dealt with allegations against Italy relating to compliance with the judgement of the Court of Justice of the European Communities in the Stinco and Panfilo case.

On 16 December 2002, I forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 12 March 2003. I forwarded it to you with an invitation to make observations, which you sent on 22 May 2003.

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.

I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The complainant, Patronato A.C.L.I. Belgio, is an Italian organisation which has its seat in Brussels and protects the rights of Italian workers. This organisation has been following with attention the measures taken by Italy to comply with the judgement of the Court of Justice of the European Communities in the Stinco and Panfilo case(1) regarding social security for migrant workers. The complainant is in particular concerned by the calculation by the competent Italian authority of the pensions paid by Italy to pensioners who used to spend part of their working life in Italy.

Since 1999, the complainant has sent several letters to the Commission informing it of the situation. On several occasions, and once further to the intervention of the European Ombudsman, the complainant was informed that the Commission was considering the possibility to start an infringement procedure (Article 226 EC) against Italy. However, there was no indication that such procedure was ever started.

The complainant considered that Italy, through the INPS (Italian social security organisation), still disregarded the aforementioned judgement. It considered that the Commission had not taken measures against Italy to change the situation.

On 19 June 2002, an MEP addressed a written question on the matter to the European Commission. The Commission replied on 9 September 2002 and stated that it appeared that Italy complied with the Court's judgement and that it had never received any complaint relating to the judgement in the Stinco and Panfilo case.

The complainant addressed a new letter to the Commission on 12 September 2002 in which it alleged that it had repeatedly complained to the Commission and that the INPS kept disregarding even judgements of national courts which have followed the Court of Justice's case law.

Given that it received no reply from the Commission, the complainant complained to the Ombudsman on 14 November 2002 and alleged that :

1. The Commission had failed properly to deal with its complaints against Italy.

2. The Commission had failed to act in order to force Italy to comply with the judgement of the Court of Justice in the Stinco and Panfilo case. The complainant claimed that the Commission should take action in this respect.

3. The Commission had given erroneous answers in the framework of a written question put to it by an MEP.

THE INQUIRY

The Commission's opinion

The opinion of the European Commission on the complaint was the following:

Background and analysis of the Stinco and Panfilo case law

The Commission recalled the circumstances of the Stinco and Panfilo case in which an Italian judge referred a question to the Court of Justice for a preliminary ruling. Italy has a statutory minimum for old-age pensions. If the pension to which a person is entitled is below this minimum, the pension is supplemented in order to reach this minimum. The claimants, Antonio Stinco and Ciro Panfilo had respectively brought a case before Italian courts in which they contested the calculation of an old-age pension by the INPS. Both claimants had worked for part of their lives outside of Italy, which is their country of residence, namely in France or the United Kingdom respectively. In addition to the pensions paid in France and the United Kingdom, the claimants were therefore only entitled to receive a pro rata pension in Italy which, in accordance with Council Regulation No 1408/71, was to be calculated by the competent national authority on the basis of a theoretical national pension determined as if the claimants had spent all their working-life in Italy. The theoretical national pension, obtained was below the Italian statutory minimum. If the claimants had worked in Italy for all their working-lives, their pension would have been supplemented. The INPS however considered that, in order to determine the pro rata pension, the supplement should not be taken into account for the calculation of the theoretical pension. The INPS in particular justified its position by arguing that with the pensions paid by France and the United Kingdom respectively, the complainants' pensions would exceed the Italian statutory minimum. In its preliminary ruling, the Court however came to an opposite conclusion according to which the supplement had to be taken into consideration in order to determine the pro rata pension to be paid to the claimants.

The Court appeared to have drawn a distinction between the calculation of a theoretical pension and the actual transferability of a benefit to another Member State. Applying the Stinco and Panfilo judgement to pensioners residing in Member States other than the one where the supplement is foreseen would undermine both the legal structure created by the Regulation for the special non-contributory cash benefits as interpreted by the Court of Justice and the principle foreseen by article 50 of the Council Regulation 1408/71(2).

The special non-contributory cash benefits are subject to special co-ordination which foresees entitlement to these benefits on the basis of the legislation of the state of residence and implies that they are not transferable. Applying the Stinco and Panfilo judgement to pensioners which reside outside Italy would imply at least a partial transfer of the supplement foreseen under Italian law.

Article 10a(1) of the Regulation(3) also provides for exceptions in the transferability of special non-contributory cash benefits : "1. Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4 (2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence."

In its letter to the Commission of 30 April 2001, the complainant took the view that inserting the Italian supplement in Annex IIa was arbitrary. The Commission objected to this statement. It considered that in view of the fact that the Court had held that the exceptions provided for in article 10a(1) have to be strictly interpreted(4) and that the benefits not only had to be listed in Annex IIa of the Regulation but also had to satisfy the other criteria, namely being "special" and "non-contributory", a case by case review of the benefits listed in Annex IIa had to be carried out. The Commission carried out such a review together with the Member States and envisaged to make a legislative proposal in early spring 2003 to amend Council Regulation 1408/71 accordingly.

Finally, if the Stinco and Panfilo judgement was applied without distinction of the state of residence, it would also put in question the provisions of article 50 of the Council Regulation 1408/71 in so far as the benefit it foresees is calculated on the basis of the minimum benefit fixed by the legislation of the state of residence. If Italy was not the state of residence, it would be up to the state of residence to determine the supplement on the basis of the minimum laid down in its own legislation.

Questions raised in the framework of the Ombudsman's inquiry

1. Regarding the follow-up given to the complainant's letters, the Commission acknowledged that although holding replies had been sent on 2 October 2000, 15 May 2001 and 8 June 2001, no reply on the substance was sent before 18 February 2003. The Commission regretted the inconvenience that this may have caused the complainant. Regarding the failure to register the complainant's letters sent since 1999 as complaints, the Commission took the view that, in consideration of its common practice, there could have been doubts about the necessity to register them as complaints. In view of the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(5) such doubts should not exist anymore.

2. The Commission stated that the judgement in the Stinco and Panfilo case had given rise to extensive discussions within the Commission and with the Member States regarding its interpretation. The Commission considered that its services and the complainant had different interpretations of Community law and in particular regarding the consequences of the Stinco and Panfilo case on the situation of those pensioners residing in a Member State other than Italy but who are entitled to a pension paid by Italy. In its letter to the complainant of 18 February 2003, the Commission rejected the complainant's claim according to which the Commission should intervene against Italy. The Commission, for the reasons set out in its letter to the complainant and acting in the framework of its discretion, had decided not to intervene against Italian authorities. In its letter to the complainant, the Commission put forward the same reasons as in the above section Background and analysis of the Stinco and Panfilo case law.

3. The Commission did not share the complainant's view regarding the allegedly erroneous character of the reply given in the framework of a written question put by an MEP. The INPS had received instructions form the competent Italian Ministry in order to deal with the files of Mr Stinco and Mr Panfilo in conformity with the Court of Justice's preliminary ruling. Furthermore, the complainant might also have considered that the Commission's answer on the issue was wrong, because the complainant's own interpretation of the Stinco and Panfilo judgement diverged from the Commission's interpretation. The Commission however acknowledged that the reply could have been considered as too brief.

The complainant's observations

The European Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations. In its reply, the complainant confirmed its point of view on the Stinco and Panfilo case.

The complainant in particular pointed out that during the proceedings before the Court of Justice in the Stinco and Panfilo case, the Commission had adopted a position which appeared to be in contradiction with its recent position on the matter.

The complainant considered that, in view of the Stinco and Panfilo judgement, the question whether the supplement is transferable or not, is not relevant as regards the calculation of the theoretical pension.

As a conclusion, the complainant stated that the INPS should apply the conclusions of the Stinco and Panfilo judgement to all the pensioners in a situation similar to the one that gave rise to the case. According to the complainant, the INPS still fails to do so. This Commission should take action in this respect.

THE DECISION

1 Failure to give the proper follow-up to the complainant's letters

1.1 The complainant alleged the Commission failed properly to deal with the complaints it had lodged against Italy.

1.2 The Commission acknowledged that although holding replies had been sent on 2 October 2000, 15 May 2001 and 8 June 2001, no reply on the substance of the letters had been sent to the complainant before 18 February 2003. The Commission regretted the inconvenience that this may have caused the complainant. Regarding the failure to register the complainant's letters sent since 1999 as complaints, the Commission took the view that, in consideration of the common practice at that time, there could have been doubts about the necessity to register these letters as complaints. In view of the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, such doubts should not exist anymore.

1.3 The Ombudsman notes that the Commission has acknowledged the failure to reply to the complainant, apologised for it and provided the complainant with a detailed reply on 18 February 2003.

1.4 However, it should be noted that the Commission did not apologise for the failure to register the complainant's letters as complaints.

1.5 In the present case, the complainant's letters of 26 July 1999, 14 December 1999 and 30 April 2001 must all three be regarded as complaints against the INPS's alleged failure to abide by the case law of the Court of Justice. In each letter, the complainant explicitly asked the Commission to open an infringement procedure against Italy.

1.6 Good administrative practice requires that an institution act consistently and in accordance with its normal administrative practices. According to the information contained in the opinion of the Commission as regards its procedures for dealing with complaints (submitted on 22 August 1997 in the framework of the Ombudsman's own initiative inquiry 303/97/PD(6) into the Commission's administrative procedures in relation to citizens' complaints about national authorities):

"All complaints which reach the Commission are registered in the Secretariat-General. No exceptions are made. (...)

When it receives a complaint, the first thing the Commission does is to acknowledge receipt. The letter acknowledging receipt is accompanied by an annex setting out the purpose and giving details of the infringement proceeding."

1.7 It would thus appear that even before it adopted the Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, the Commission's normal practice was to register all complaints, without exception. The failure to do so in the complainant's case constitutes an instance of maladministration. A critical remark will therefore be made in this respect.

2 Failure to take action against Italy

2.1 The complainant alleged that the Commission had failed to act in order to force Italy to comply with the judgement of the Court of Justice in the Stinco and Panfilo case.

2.2 The Commission stated that the judgement in the Stinco and Panfilo case had given rise to extensive discussions within the Commission and with the Member States regarding its interpretation. The Commission considered that its services and the complainant have different views as to the interpretation of Community law and in particular regarding the consequences of the Stinco and Panfilo judgement on the situation of those pensioners residing in a Member State other than Italy but who are entitled to a pension paid by Italy. In summary, the Commission considered that the Italian authorities had complied with the aforementioned judgement. According to the Commission, the latter cannot be applied to pensioners who do not reside in Italy without undermining the objectives of Council Regulation 1408/71 and contradicting more recent case law of the Court of Justice. The Commission considered that there was no infringement of Community law by the Italian authorities and therefore decided not to take action against Italy.

2.3 It should be noted that the European Commission only has the power to refer a case to the Court of Justice under Article 226 of the EC Treaty if it considers that there is an infringement of Community law. The Ombudsman takes the view that the arguments put forward by the Commission to support its view that there was no such infringement in the present case do not appear to be unreasonable.

2.4 In these circumstances, there appears to be no maladministration on the part of the European Commission in so far as this allegation is concerned.

3 Erroneous reply to a written question put by an MEP

3.1 The complainant alleged that the Commission gave erroneous answers in the framework of a written question related to the Stinco and Panfilo case. The complainant in particular considered that the Commission had wrongly stated that the Italian authorities had complied with the judgement in the Stinco and Panfilo case and that it had received no complaints in relation to this case.

3.2 The Commission acknowledged that the response to the written question might have been too brief but denied that it had been incorrect.

3.3 In its reply to written question E-1848/02(7), which concerned the implementation by the INPS of the Stinco and Panfilo judgement, the Commission inter alia made the following remarks :

"(…) As far as the Commission is aware, the Italian State has complied with Court of Justice jurisprudence in case C-132/96 (Stinco and Panfilo). (…)

To date, the Commission has not received any complaints concerning the problem referred to in the Stinco and Panfilo judgment.

In the absence of any such complaints, the Commission has no reason to open infringement proceedings against the Italian State."

3.4 As to the statement about Italy's compliance with the judgement, the Ombudsman notes that the Commission's reply was in line with the explanations provided by the Commission during the Ombudsman's inquiry (see point 2 above).

3.5 As to the Commission's statement according to which it has not received any complaints concerning the problem referred to in the Stinco and Panfilo judgement, the Ombudsman has carefully examined the documents which were made available to him by the complainant. Although the complainant's complaints of 26 July 1999, 14 December 1999 and 30 April 2001 explicitly refer to the alleged failure by the INPS to abide by the judgement in the Stinco and Panfilo case, the examples given by the complainant in relation to these complaints appear to concern exclusively pensioners residing outside of Italy. In view of the Commission's position, i.e. that the Stinco and Panfilo judgement only concerns pensioners who reside in Italy, it would thus appear reasonable for the Commission to have taken the view that the complainant's complaints did not have to be regarded as concerning the problem referred to in the Stinco and Panfilo judgement. In these circumstances, the Ombudsman considers that the complainant has not shown that the Commission's answer was incorrect.

3.6 Thus no instance of maladministration has been found in relation to this aspect of the case.

4 Conclusion

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

It would appear that even before it adopted the Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, the Commission's normal practice was to register all complaints, without exception. The failure to do so in the complainant's case constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case C-132/96, Antonio Stinco and Ciro Panfilo v Istituto nazionale della previdenza sociale (INPS), [1998] ECR I-5225.

(2) Article 50 : Award of a supplement when the total of benefits due under the legislations of the various Member States does not amount to the minimum laid down by the legislation of the State in whose territory the recipient resides.

A recipient of benefits to whom this Chapter applies may not, in the State in whose territory he resides and under whose legislation a benefit is due to him, be awarded a benefit which is less than the minimum benefit fixed by that legislation for an insurance period equal to all the insurance periods taken into account for the payment in accordance with the preceding Articles. The competent institution of that State shall, if necessary, pay him throughout the period of his residence in its territory a supplement equal to the difference between the total of the benefits due under this Chapter and the amount of the minimum benefit.

(3) Introduced by Council Regulation (EEC) No 1247/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving within the Community. OJ L 136, 19/5/1992 p. 1 - 6.

(4) Case C-215/99, Friedrich Jauch v. Pensionsversicherungsanstalt der Arbeiter [2001] ECR I-1901 Case C-43/99, Ghislain Leclere and Alina Deaconescu v Caisse nationale des prestations familiales [2001] ECR I-4265.

(5) COM(2002) 141 final, OJ 2002 no. C 244, page 5.

(6) The Ombudsman's decision regarding the own initiative inquiry can be found on the Internet under the following address : www.ombudsman.europa.eu/decision/en/970303.htm.

(7) OJ 2002 no. C 309 E, page 171.