Strasbourg, 24 March 2006

Dear Mrs O.,

On 6 June 2004, you submitted a complaint to the European Ombudsman against the European Commission and the European Parliament, concerning their failure to investigate an infringement of EU law by the Irish authorities.

In my letter of 13 July 2004, I informed you that I had no power to deal with your complaint against Parliament because your complaint did not concern an instance of maladministration, but a decision of the Committee on Petitions, which is part of the political work of Parliament. In the same letter, I informed you that I had forwarded your complaint against the Commission to the President of the Commission. The Commission sent its opinion on 8 September 2004. I forwarded it to you with an invitation to make observations, which you sent on 3 October 2004.

On 11 December 2004, you sent an e-mail concerning your case. My office replied to you by e-mail of 15 December 2004. On 15, 21, 26 December 2004 and on 22 and 31 January 2005 you sent further e-mails concerning your case. My office replied to you by e-mail of 7 February 2005. You sent further e-mails on 7 February and 29 March 2005 to which my office replied by e-mail of 1 April 2005. In that e-mail, my office informed you that the investigation only concerned the activities of the Commission, and not those of the Committee on Petitions, for the reasons explained in my letter of 13 July 2004.

On 30 June and 1 July 2005, you sent further e-mails concerning your case, to which my office replied on 5 July 2005. On 6 July and 16 August 2005, you sent further e-mails. You also sent a fax on 23 August 2005, with the reference numbers 1426/2001/OV and 1987/2003/PMR. My office replied by e-mail on 1 September 2005, pointing out that the reference number of your complaint was no longer 1426/2001/OV or 1987/2003/PMR, but 1781/2004/OV.

On 2 September and 13 September 2005 you sent further e-mails. In a letter, which reached my office on 10 October 2005, you indicated that your case was being considered by Professor Kremalis in Athens and requested my office to telephone him to inform him about the investigation. On 19 October 2005, you sent an e-mail with the same information. My office telephoned Mr Kremalis on 19 October 2005 informing him that the case was still under investigation. Mr Kremalis however informed my office that, although he had been representing you at an earlier stage, he was no longer representing you.

On 31 October 2005, you sent another e-mail, to which my office replied on 16 November 2005. On 25 November 2005, you sent another e-mail. On 26 November 2005, you sent a fax with a copy of a letter from the Irish Data Protection Commissioner of 15 November 2005. On 30 November 2005, you sent another e-mail, to which my office replied on 1 December 2005. On 12 February 2006, you sent a further e-mail.

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

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

THE COMPLAINT

Background

The present complaint is the follow-up of six earlier complaints lodged by the complainant in 2001, 2003 and 2004 against the European Commission, the European Parliament and SOLVIT(1), concerning an alleged infringement by the Irish authorities of EU legislation in relation to the recognition of the complainant's Greek specialised medical degree in Ireland. The Ombudsman informed the complainant that, under Article 2(3) of the Ombudsman's Statute, he could not deal with five of these complaints because it was not possible to identify the object of the complaints (reference numbers 1426/2001/OV; 1717/2001/OV; 1752/2003/OV; 1987/2003/PMR; 519/2004/OV). In relation to the sixth complaint, case 1179/2004/OV, the Ombudsman informed the complainant that, on the basis of Article 195 of the EC Treaty, there were not sufficient grounds to open an inquiry into her complaint.

The present complaint

On 6 June 2004, the complainant made a new complaint to the Ombudsman. The relevant facts of the complaint can be summarised as follows:

The complainant, who is of Greek nationality and Irish origin, practised as an orthopaedic surgeon in Santorini ( Greece) from 1992 to 1995. In 1995, the Cyclades Medical Society refused to renew her registration, because, according to the complainant, another surgeon desired to have exclusive practice on the island. The complainant brought the matter before the District Attorney, after which she became the object of harassment and intimidation.

In 1995, the complainant also applied to the Irish Medical Council in order to have her Greek medical qualification as a surgeon registered in Ireland.

In 1997, the complainant lodged a complaint with the Commission against the Greek authorities (ref. 97/4608) concerning her application for access to the profession of orthopaedic surgeons in Greece. This case was closed by the Commission on 24 June 1998. The complainant also turned to the Greek Ombudsman with regard to the matter, but stated that he did nothing to protect her rights.

As the Irish Medical Council did not recognise her Greek qualification, the complainant wrote several times to the Directorate-General for the Internal Market and Services of the European Commission ("DG Internal Market and Services") in order to complain about the failure of the Irish authorities to recognise her Greek qualification. The complainant also made a petition (ref. 642/99) to the European Parliament which was closed on 5 March 2001, and a complaint to the Irish SOLVIT Centre. The complainant stated that an official in the Regulated Professions Unit in DG Internal Market and Services was "corrupt and conspire[d] to protect adverse behaviour out of [his] own personal contempt for a whistleblower" and that he was "a prime example of such conspired and conflicted interests". In this respect, the complainant referred to two letters, of 10 June and 2 March 2003, sent by DG Internal Market and Services to the Irish Medical Council and one letter, of 26 August 2002, sent by the same Directorate-General to the complainant.

Not satisfied with the response from the Commission, the complainant continued, in the years 2002 to 2004, to write regarding the matter to various services of the Commission, including to the Regulated Professions Unit in DG Internal Market and Services.

In her complaint to the Ombudsman, the complainant made the following allegations:

1. The Commission failed properly to investigate the complainant's complaint which alleged infringement of EU legislation by the Irish authorities with regard to the non-recognition of her Greek medical qualification by the Irish Medical Council.
2. Parliament closed the inquiry of the complainant's petition 642/99 without allowing the complainant to appeal or have access to the file.

The Ombudsman's reaction

In his letter of 13 July 2004, the Ombudsman informed the complainant that he had no power to deal with the second allegation, because complaints against decisions of Parliament's Committee on Petitions do not concern maladministration, as such decisions are part of the political work of Parliament. The Ombudsman therefore sent the complaint to the Commission for an opinion only on the first allegation.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made, in summary, the following comments:

The Commission, as a preliminary remark, pointed out that many of the matters raised by the complainant did not concern issues of Community law. The Commission's reply therefore only focused on elements linked to the recognition of professional qualifications.

The complainant lodged a complaint against Greece (no 97/4608), according to which she faced serious difficulties in obtaining an authorisation to practise her medical specialisation in Greece (orthopaedic surgery). It appeared, however, that the Greek legislation had been correctly applied and that she had received an authorisation to practise her specialisation by decision No 99 of 30 April 1996. The Commission therefore decided to close the case. The Commission underlined that the standard procedures were followed on all of the correspondence in question. In particular, the complainant was informed by letter of 3 April 1998 of the intention of DG Internal Market and Services to propose to the college the closure of the case.

Subsequently, and in parallel to a petition before Parliament (ref. 642/99), the complainant raised allegations against the Irish authorities concerning the recognition of her qualification in orthopaedic surgery in Ireland. Petition 642/99 was closed by Parliament. The latter complaint was also dealt with by SOLVIT. On the basis of the information presented, the Commission concluded that the complainant had twice withdrawn her application for professional recognition of her Greek specialisation in orthopaedic surgery in Ireland. It also became evident that, if the complainant were to reintroduce her application, she would be automatically recognised (minutes of the meeting of 16 April 2004 with the Irish SOLVIT coordinator). The SOLVIT procedure, like the others, was also closed.

The Commission pointed out that the complainant also made another petition (ref. 974/2003) in 2003, to which the reply given to Petition 642/99 was repeated in February 2004.

On the basis of this clear legal situation, it was difficult to understand the unsubstantiated allegations made by the complainant in her complaint to the Ombudsman. It was particularly difficult to link the complainant's allegations to what is set out in the Code of Good Administrative Behaviour(2), or to the Commission Communication on relations with the complainant in respect of infringements of Community law.

The complainant's statement that an official in the Regulated Professions Unit of the Commission was corrupt was unjustified and unfounded. To support her allegation, the complainant made particular reference to three letters, two from the said official to the Medical Council of Ireland, dated 10 June 2002 and 2 March 2003, and one letter sent to the complainant, dated 26 August 2002. However, other letters sent to the complainant on 11 December 2002 and 25 February 2003 showed the Commission's particular diligence in the treatment of her file in so far as its services understood that the complainant had not been at her French address between December 2002 and February 2003. The Commission therefore, sent a copy of the letter of December 2002 directly to her Greek address. These letters, together with the relevant annex, confirmed the above conclusions. They also confirmed that DG Internal Market and Services closely examined the complainant's file.

The complainant had failed to provide clear evidence to support her allegations. Instead, she generally set out, over a long period, grievances that clearly fall outside the scope of Community law. It was therefore, and given the public treatment of the case in the framework of a petition, not deemed appropriate to register formally the allegations made by the complainant in respect of the numerous problems encountered in Ireland. It was decided to ascertain the issue in question before engaging in a formal procedure. This treatment did not result in any negative consequences for the complainant and different treatment would not have resulted from a different evaluation.

The Commission concluded that all of the complainant's letters were analysed and answered in accordance with the Code of Good Administrative Behaviour. The institution advised the Ombudsman, should he consider that the treatment of the case could be interpreted as a violation of the obligations under point 3 (recording of complaints) under the Commission Communication on relations with the complainant in respect of infringement of Community law, to bear in mind that the complainant has (i) set out grievances that clearly fall outside the scope of Community law; (ii) failed to set out a grievance which was substantiated by elements; and (iii) set out a grievance with regard to which the Commission had adopted a clear, public and consistent position in the context of a petition. Consequently, the Commission's opinion was that the allegations were completely unjustified and sometimes misleading in the way in which they were presented. The Commission therefore concluded that there had been no instance of maladministration.

The complainant's observations

The complainant made, in summary, the following observations:

The complainant stated that, as a citizen of a Member State, she is entitled, by virtue of her being a doctor in one Member State, to practise her profession in another Member State and the competent authorities of that State are obliged to recognise, automatically and unconditionally, her qualification. However, the competent authority in Ireland, the Irish Medical Council, did not give automatic and unconditional recognition of her qualifications, despite her repeated efforts, over some seven years, to register them.

The complainant gave an overview of the legal framework applicable to her case. She stated that the key principle of free movement of persons, as laid down in the Treaty of Rome, was reinforced in Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications(3) ("the Directive"). The complainant referred in extenso to Articles 2, 3, 4, 5 and 22 of the Directive and also referred to the case-law of the Court of Justice (Case C-232/99 Commission v Spain(4), and Case C-110/01 Tennah-Durez(5)).

The complainant stated that she is a Greek national and an orthopaedic surgeon. She pointed out that, under Article 3 of the Directive, the "Ptychio Iatrikis" (degree in medicine), of which she is a holder, is equivalent to a primary qualification granted in Ireland after passing a qualifying examination held by a competent examining body and a certificate of experience granted by that body which gives entitlement to registration as a fully registered medical practitioner. Furthermore, in accordance with Article 5(2) of the Directive, the "Titlos Iatrikis Eidikotitas" (certificate of medical specialisation), of which the complainant is also a holder, is equivalent to a certificate of specialist doctor issued by the competent authority recognised for this purpose by the Minister of Health in Ireland.

On 20 March 2001, further to the response of 2 February 2001 from the Greek authorities "confirming that the certificate submitted by Dr. Flavin [sic] O. was issued by the competent authority in Greece under Article 5 of Directive 93/16/EEC", the Irish Medical Council made a further inquiry with the Greek authorities asking "how much training outside of Greece was taken into account under Article 8 and also the member states in which this training was undertaken". The complainant stated that this inquiry was totally irrelevant. The Greek authorities, quite properly, ignored that inquiry for some considerable time. After the complainant lobbied the Greek Minister for Health, a reply was finally made on 14 March 2002. The reply, which repeated what had been said since 1995, gave an unequivocal assurance that the complainant was a fully qualified orthopaedic surgeon and that all her qualifications met the requirements of the Directive. But even with this assurance, the Irish Medical Council failed to register the complainant as an orthopaedic surgeon.

From its own writings, it was clear that the Irish Medical Council had, all along, believed that its duty and "normal practice" as the competent authority of the host Member State, was to establish by inquiry directed to the issuing Member State, whether that Member State was satisfied that the credentials it had issued met the standards of medical expertise laid down in the Directive. This practice was inappropriate in the complainant's case because the Irish Medical Council possessed, from the day the complainant first applied to it, a notarial document, issued by order of the Greek Minister of State, that explicitly declared that the complainant's qualifications met the standards laid down in the Directive. It was the duty of the issuing Member State, not the host Member State, to ensure that the Directive's provisions were met. By its inquiry, the Irish Medical Council usurped the Greek authorities' jurisdiction.

After submitting her observations, the complainant sent numerous e-mails in which she referred, among others, to the official from the Irish SOLVIT office who had allegedly provided false statements concerning her case (namely, that she had withdrawn her application). She argued that her petition to Parliament was closed in June 2005 as a result of the SOLVIT official's statements and on the basis of false declarations by the Commission and the Irish Medical Council. The complainant referred to a major cover up by all these "fraudulent institutions". The complainant further referred to recent correspondence she had with the Irish Medical Council concerning her case. The complainant asked the Ombudsman to judge the Irish Medical Council for its behaviour.

In a fax of 23 August 2005, the complainant indicated that the decisions of the Irish Medical Council not to register her specialist title were not cognisable before the Irish courts. The complainant stated that she had been denied access to judicial review by the Equality Tribunal (October 2003), the Labour Court (June 2004), the High Court (September 2004) and the Supreme Court (August 2005). The Supreme Court ruled on 22 July 1995 that she had to re-apply to the Irish Medical Council to be registered both as a general practitioner and a specialist. When the complainant re-applied to the Irish Medical Council, registration was again refused. She stated that the Irish Medical Council enjoys immunity from prosecution and continues to breach European Directives on the recognition of qualifications and the right to registration.

On 26 November 2005, the complainant also sent a copy of a letter from the Irish Data Protection Commissioner with regard to her case, more particularly a request for access to data held by the Irish Medical Council. The complainant stated that the Irish Medical Council did not comply with data protection legislation.

THE DECISION

1 The scope of the Ombudsman's inquiry

1.1 The complainant, who is of Greek nationality and Irish origin, applied in 1995 to the Irish Medical Council in order to have her Greek medical qualification as a surgeon registered in Ireland. As the Irish Medical Council did not recognise her qualification, the complainant wrote, on 28 May 1996, to the Directorate-General for the Internal Market and Services of the European Commission ("DG Internal Market and Services") in order to complain about the failure of the Irish authorities to recognise her Greek qualification. The Commission closed its inquiry on 24 June 1998. Not satisfied with the response from the Commission, the complainant continued, in the years 2002 to 2004, to write regarding the matter to various services of the Commission, including to the Regulated Professions Unit in DG Internal Market and Services. In her complaint to the European Ombudsman, the complainant alleged that the Commission had failed properly to investigate the complainant's complaint, which alleged infringement of EU legislation by the Irish authorities with regard to the non-recognition of her Greek medical qualification by the Irish Medical Council.

1.2 In her observations on the Commission's opinion, as well in her further correspondence to the Ombudsman's office, the complainant made several statements concerning the allegedly unjustified position adopted by the Irish Medical Council in her case, asking the Ombudsman to decide on this alleged wrongdoing. The complainant also referred to allegedly false statements made by the official from the Irish SOLVIT office.

1.3 In this regard, it is important to recall that the EC Treaty empowers the Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the Ombudsman specifically provides that no action by any other authority or person, such as the Irish Medical Council in the present case, may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries into the complaint have therefore been directed exclusively towards examining whether there has been maladministration in the activities of the Commission.

1.4 As regards the national SOLVIT centres, the Ombudsman would like to point out that, although the SOLVIT network has been created by the Commission and the Member States in order to solve problems facing EU citizens and businesses due to the misapplication of internal market law(6), the SOLVIT centres themselves are not Community institutions or bodies, but form part of the national Ministries, in most cases, the Ministry of Foreign or Economic Affairs. For the reasons explained above, the Ombudsman has thus no power to investigate alleged maladministration in a national SOLVIT centre. The complainant has however the possibility to submit a complaint to the Irish Ombudsman in this regard.

1.5 The Ombudsman would also like to clarify that the complaint made to him concerns the substance of the Commission's handling of the infringement complaint and its conclusion, and not the procedural aspects of the handling of the infringement complaint by the Commission. For that reason, the Ombudsman does not consider it necessary to take a position on the comments made by the Commission in its opinion concerning the procedural aspects of the infringement complaint.

2 The alleged failure of the Commission properly to investigate the infringement complaint

2.1 The complainant alleged that the Commission failed properly to investigate her complaint which alleged infringement of EU legislation by the Irish authorities with regard to the non-recognition of her Greek medical qualification by the Irish Medical Council. The complainant alleged, in particular, that an official of the Regulated Professions Unit in DG Internal Market and Services was "corrupt and conspire[d] to protect adverse behaviour out of [his] own personal contempt for a whistleblower" and that he was "a prime example of such conspired and conflicted interests". In this respect, the complainant referred to three letters sent by DG Internal Market and Services to the complainant and the Irish Medical Council.

2.2 In its opinion, the Commission observed that many of the matters raised by the complainant did not concern issues of Community law. In parallel to a petition (ref. 642/99) before Parliament, the complainant had raised allegations against the Irish authorities concerning the recognition in Ireland of her qualification in orthopaedic surgery. The petition had been closed by Parliament. The problem had also been dealt with by SOLVIT. On the basis of the information presented, the Commission concluded that the complainant had twice withdrawn her application for professional recognition of her Greek specialisation in orthopaedic surgery in Ireland. It also became evident that, if the complainant were to reintroduce her application, she would be automatically recognised (minutes of the meeting of 16 April 2004 with the Irish SOLVIT coordinator). The SOLVIT procedure, like the others, was closed. The Commission also pointed out that the complainant also made another petition (ref. 974/2003) in 2003, to which the reply to Petition 642/99 was repeated in February 2004. The Commission stated that, on the basis of this clear legal situation, it was difficult to understand the unsubstantiated allegations made by the complainant in her complaint to the Ombudsman, and to link the allegations to the Code of Good Administrative Behaviour, or to the Commission Communication on relations with the complainant in respect of infringements of Community law. The Commission also stated that the complainant's statement that a certain official in the Commission was corrupt was unjustified and unfounded. The Commission therefore concluded that there had been no instance of maladministration.

2.3 The Ombudsman notes that the complainant has submitted in total three petitions to Parliament on the subject of her complaint (ref. 97/4608, 642/99 and 974/2003).

2.4 Article 195 of the EC Treaty provides that "[i]n accordance with his duties, the European Ombudsman shall conduct inquiries for which he finds grounds (...)" . The Ombudsman considers that there are no grounds for him to conduct inquiries into a complaint if the complainant has addressed a petition to Parliament on the same subject.

2.5 The Ombudsman notes that the latest petition (974/2003) to Parliament concerned the substance of the infringement complaint against Ireland. Under "Subject of your petition", the complainant mentioned: "[f]ailure by the EC Internal Market to invoke powers of investigation and enforce legislation regarding monopolies and a hard core cartel of medical licensing in Ireland. Failure by Irish statutory bodies to transpose legislation on equality, competition, data protection, free movement, the right to legal defence and the recognition of academic titles". In the framework of her petition, the complainant stated that an official of the Regulated Professions Unit in DG Internal Market and Services(7) "obstructed an investigation into infringements by the Irish Medical Council and has ignored documentary evidence sufficient to invoke powers of infringement procedure against Ireland for high volume abuse of State power and discrimination based on my Greek nationality" and that she held him "solely responsible for negligence, breach of statutory duty and obstruction to justice". In its opinion of 19 May 2004 on the petition, the Commission stated that the petitioner's case had been the subject of a SOLVIT procedure, and that, on the basis of the information presented, it was concluded that she had twice withdrawn her application for professional recognition of her Greek specialisation in orthopaedic surgery in Ireland. The Commission pointed out that the Irish Medical Council had confirmed that if the petitioner were to reintroduce her application, she would be automatically recognised, and that, as a result, the home SOLVIT centre in Greece agreed that the SOLVIT case be closed. The Ombudsman notes that, on the basis of the Commission's opinion on the petition, the President of the Committee of Petitions, Mr Marcin Libicki, informed the complainant in a letter of 17 June 2005, that the examination of the petition was closed.

2.6 The Ombudsman notes from the above that Parliament has dealt with a petition that covers the substance of the Commission's handling of the infringement complaint. No further inquiries by the Ombudsman are therefore justified into the substantial aspect of handling of the infringement complaint by the Commission.

2.7 In her complaint to the Ombudsman, the complainant however raised another allegation which was not covered by the examination of the petition by the Committee on Petitions, namely the allegation of corruption concerning an official from the Regulated Professions Unit in DG Internal Market and Services. The fact that a complainant has also submitted a petition to Parliament's Committee on Petitions does not necessarily prevent the Ombudsman from examining a complaint to the extent that it covers aspects thereof that have not been submitted to or considered by the Committee on Petitions. The Ombudsman shall therefore below examine the allegation which was not covered during the examination of the petition.

2.8 In this regard, the Ombudsman notes that the only evidence proffered by the complainant to demonstrate that the said official was corrupt was three letters from DG Internal Market and Services. The Ombudsman has carefully analysed those letters, that is, the letters of 10 June 2002 and 2 March 2003 from the said official to the Irish Medical Council and the letter of 26 August 2002 from the said official to the complainant. Nothing in those letters supports the complainant's allegation, which has therefore not been substantiated. No instance of maladministration by the Commission is therefore found.

3 Conclusion

Considering that Parliament has dealt with a petition which covered the substance of the complainant's infringement complaint, no further inquiries by the Ombudsman into the present complaint are justified.

As regards the aspect of the complaint which was not covered by the petition, no instance of maladministration is found.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) "SOLVIT" is an on-line network set up in 2001 by the Commission together with the Member States with the aim to solve problems that arise for individual citizens and businesses from the misapplication of internal market law. All EU Member States have a national SOLVIT centre (http://ec.europa.eu/solvit/site/index_en.htm).

(2) The Commission referred to its own Code (Commission Decision 2000/633/EC, ECSC, Euratom, OJ 2000 L 267/63 ).

(3) OJ 1993 L 165, p. 1.

(4) Case C-232/99 Commission v Spain [2002] ECR I-4235.

(5) Case C-110/01 Tennah-Durez [2003] ECR I-6239.

(6) Commission Recommendation C(2001)3901 of 7 December 2001 on principles for using "SOLVIT" - the Internal Market Problem Solving Network, OJ 2001 L 331, p. 79.

(7) It concerns the same official as the one mentioned in the present complaint to the Ombudsman.