Strasbourg, 19 April 2006

Dear Mr G.,

On 15 September 2004, you lodged a complaint with the European Ombudsman against the European Commission. The complaint concerns the alleged failure on the part of the Commission to disclose information you had requested in a letter dated 21 June 2004, about its inquiry between 1988 and 1993 into the business practices of the firm Dynopack.

On 29 October 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 8 February 2005. I forwarded it to you with an invitation to make observations, which you sent on 26 March 2005. On 19 October 2005, and 15, 16 and 28 February 2006, you forwarded additional information to me.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with the case.

THE COMPLAINT

The facts of case 2865/2004/JMA relate to the inquiry carried out by the Commission to verify whether or not the actions of a private undertaking, Dynopack, were compatible with the rules on competition of the EC Treaty. The complainant had already submitted a previous complaint to the European Ombudsman, involving similar facts. The complaint, which was registered under reference number 1382/2003/JMA, was declared inadmissible.

The Commission's investigation into the Dynopack case was also the object of an earlier inquiry by the Ombudsman into complaint 75/99/ME, which was lodged by a different complainant.

The Ombudsman considers it useful to describe complaints 75/99/ME and 1382/2003/JMA as background to the present complaint 2865/2004/JMA.

Complaint 75/99/ME against the European Commission

Complaint 75/99/ME was lodged on 21 January 1999, on behalf of a business association ("Forum of Private Business"), which included the firm Microwave Ovenware Ltd. (MOL). The complaint concerned the Commission's allegedly negligent handling of a competition case under Articles 81 and 82 of the EC Treaty.

In May 1989, Mr P. had lodged a complaint with the Commission, alleging that MOL had been forced to cease trading in 1989 because of the behaviour of a Norwegian enterprise, Dynopack. In his view, Dynopack's actions violated Articles 81 and 82 of the EC Treaty. On 5 February 1993, after having carried out an investigation between 1988 and 1993, the Commission wrote to MOL pursuant to Article 6 of Regulation 99/63/EEC (Article 6 letter), informed this firm that Article 81 of the EC Treaty did not appear to have been breached in this case, and therefore announced its intention to close the case. The Commission justified its position on the grounds that trade between Member States did not appear to have been appreciably affected by the practice complained against. In the absence of any reaction by the company, the Commission decided to close the case in 1994. In 1997, however, MOL requested that the case be reopened, alleging that the file had been mismanaged and that no reasons had been given to support the finding that the actions in questions had had no effect on trade between Member States. MOL ceased trading in 1989. On 16 July 1998, the Commission informed Mr P. that the original case could not be reopened, since that would imply re-examining facts which had occurred between 1988 and 1993, and concerned a firm which was no longer in operation.

In his complaint to the Ombudsman, Mr P. alleged that MOL had unsuccessfully tried for many years to get information and answers from the Commission pertaining to the inquiry. He argued that the Commission had refused to give MOL the requested information; that its services had not handled the file properly; and that their assessment had wrongly concluded that trade between Norway and the United Kingdom was not to be considered trade between Member States.

The Ombudsman carried out an inquiry, and closed it with a reasoned decision on 18 October 1999 which found no maladministration on the part of the Commission. In his decision, the Ombudsman noted that the available information showed that the Commission had given MOL the opportunity to properly take part in the procedure foreseen in competition cases, which involved, among other requirements, the dispatching of a so-called Article 6 letter. Accordingly, the Ombudsman concluded that there was nothing in the file to indicate that the Commission had not handled the case correctly. As regards the examination of all materials, the Ombudsman recalled that the Commission had stated in its Article 6 letter of 5 February 1993 that it had carried out a thorough study of the case and that it was fully aware of the situation. Having reviewed the available evidence, the Ombudsman took the view that there was nothing in the file to question the Commission’s statement or to indicate that its services had not properly examined the case.

As regards the question of whether or not exchanges between Norway and the UK had to be considered trade between Members States, the Ombudsman noted that it was clear from the Commission’s Article 6 letter, that the institution had not stated that such trade should never be considered trade between Member States. Instead, the Commission had concluded that, in this specific case, it had found no appreciable effect on trade.

Complaint 1382/2003/JMA

On 18 July 2003, the present complainant, Mr. G. lodged a complaint with the Ombudsman, which was registered under file number 1382/2003/JMA. The complainant explained that his complaint was against the European Commission for failing to provide answers to questions asked by a number of Members of the European Parliament (MEPs). The complainant explained that, in April 2001, having considered the decision taken by the Ombudsman in case 75/99/ME, he decided to submit a petition to the European Parliament (reference number 566/2000). The complainant sought to obtain answers from the Commission on 19 questions involving the Commission's handling of its inquiry and which, in his view, had not been covered in the Ombudsman's decision. The complainant explained that the European Parliament had singled out four of the questions, in particular that referring to the potential effects of Dynopack 's actions on trade between the Member States.

The complainant alleged that the Commission had not provided proper answers to the Parliament. He disputed the statement made by a Commission representative in a hearing held by the Parliament on 21 February 2002, according to which, its services had carried out a full review of the EU and EFTA microwave market in the course of the Commission's inquiry.

Having carefully examined all available evidence, the Ombudsman concluded that it appeared that the subject matter of the complaint constituted the object of a petition to the European Parliament and that its Committee on Petitions had already dealt with the matter. Furthermore, the Ombudsman added that the Parliamentary questions concerned had been put and answered in the context of the work of the Committee on Petitions in dealing with the complainant's petition. In these circumstances, the Ombudsman considered that it was for the European Parliament to evaluate whether the replies given by the Commission were adequate, and if not, to undertake the appropriate political response. On 28 October 2003, the Ombudsman decided to close the case pursuant to Article 195 of the EC Treaty, since he considered that there were no grounds to open an inquiry.

On 14 November 2003 and 7 January 2004, the complainant wrote again to the Ombudsman contesting his decision not to open an inquiry. In his letters, the complainant argued that the Ombudsman should have provided guidance on both the time taken by the Commission to reply to the questions from MEPs concerning matters raised in petition 566/2000, and also on whether the answers given were substantive. The complainant believed that these points were not political. He also asked the Ombudsman to inform him of the grounds invoked by the Commission in deciding that in his case trade was not affected.

In his reply of 16 January 2004, the Ombudsman explained that the reason for his declining to open an inquiry was not that the Commission’s answers were political, but that it was for the European Parliament itself to evaluate the adequacy of answers provided to it in its political role of calling the Commission to account. As regards the second query, the Ombudsman explained that he could not provide answers on behalf of the Commission, and therefore suggested that the complainant should address his queries directly to the Commission. The Ombudsman invited the complainant to consider submitting a new complaint to him, should the Commission not reply within a reasonable time, or if its replies would not appear to be satisfactory.

On 22 March 2004, Mr Richard Balfe MEP, wrote to the Ombudsman requesting an explanation for his decision not to conduct inquiries in relation to complaint 1382/2003/JMA, lodged by one of his constituents. In his reply of 23 April 2004, the Ombudsman restated the arguments already given in his letters to the complainant of 28 October 2003 and 16 January 2004.

Complaint 2865/2004/JMA

On 15 September 2004, the complainant again turned to the Ombudsman, enclosing with his letter a new complaint against the Commission for its failure to provide answers to a number of queries he had made. The facts of the case according to the complainant were, in summary, as follows:

Following the Ombudsman's advice, the complainant wrote to the Commission on 21 June 2004 and requested information on the reasons which had led the institution to close its inquiry into the Dynopack case, in particular as regards the Commission's findings that Dynopack's actions did not affect trade between Member States. In a reply of 9 June 2004, Commissioner Monti explained that the Commission had already answered the complainant's queries, and referred to the information on this subject contained in the Article 6 letter of 5 February 1993 and disclosed by the Commission in the course of the hearings held by the EP Committee on Petitions on 21 March 2002. The complainant argued that Commissioner Monti's letter had not replied to his queries. He explained that the argument he had put forward in his reply to the Commission's Article 6 letter on 10 March 2003 had never been answered. As for the hearing held by the Parliament, the complainant noted that the Commission had not given any additional information.

The complainant asked the Ombudsman to ensure that the Commission should comply with the requirements of Article 18 of the European Code of Good Administrative Behaviour and with Articles 41 and 43 of the Charter of Fundamental Rights of the European Union.

The complainant suggested that the Ombudsman should review the file outlining the Commission's failure to give a substantive response to Parliamentary questions, and also to comment on the effect of this failure. In addition, he asked the Ombudsman what process ought to be used when the questions put by the European Parliament were not answered by a Community institution.

Taking into consideration the new evidence, the Ombudsman decided to register the complainant's letter as a new complaint (reference 2865/2004/JMA) and to start an inquiry. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following:

The complainant alleges, in summary, that the Commission's reply to his query dated 9 July 2004 and signed by Commissioner Monti failed to provide him with the information requested. He therefore claims that the Commission should disclose it.

Since the reply sent by Commissioner Monti to the complainant on 9 July 2004 stated that all the information requested by the complainant had been released in the course of the public hearing held on 21 March 2002 by the European Parliament's Committee on Petitions, the Ombudsman requested that the Commission should set out in detail all the information that it had provided at that hearing.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first described the background of the case. It explained that the complainant had first lodged a complaint with its services on 25 May 1988, in which he alleged that his company, Microwave Ovenware Ltd (MOL) had suffered losses as a result of the behaviour of Dynopack A/S, Norway (Dynopack). In his complaint, the complainant explained that Dynopack had supplied MOL with microwave oven accessories destined for resale until 1982. From 1982 onwards, Dynopack entrusted exclusive distribution to another British firm, which allegedly refused to supply MOL. According to the complainant, MOL's attempts to stay in the market with articles obtained from other sources were frustrated by price cuts undertaken by Dynopack. As a result of the situation, MOL ceased trading in 1989.

In reply to the complaint, the Commission services (DG COMP) investigated the situation b etween 1988 and 1993. On 5 February 1993, having concluded its inquiry, the Commission sent a formal letter to the complainant, pursuant to Article 6 of Regulation 99/63/EEC, informing him that its services envisaged closing the complaint. In the Commission's view, the rules on competition of the EC Treaty, in particular Article 81 (1), did not appear to have been breached because trade between Member States was not significantly affected.

The complainant did not forward any new evidence in support of his complaint, but only a number of holding letters. On 20 January 1994, DG COMP wrote to the complainant and informed him that it formally considered the matter closed. Only in September 1997, did the complainant reacted by requesting that the inquiry be re-opened. He alleged that the file had been mishandled and that there had been no adequate reasoning for the Commission's finding that the practices in question did not have a significant effect on trade between Member States. After some informal contacts, the Commission wrote to the complainant on 20 May 1998 to clarify some misunderstandings. In a further letter dated 16 July 1998, the Commission informed him that the case could not be re-opened.

The complainant contacted the European Parliament on 1 August 2000, alleging that the Commission had handled the file negligently; that it had wrongly considered that trade between Norway and the United Kingdom was not trade between Member States; and that it had unfairly refused his request to re-open the file. The letter was registered as a petition (ref 566/2000) by the Committee on Petitions of the European Parliament and forwarded to the Commission at the end of 2000. A first written reply was issued on 6 February 2001 explaining that the Commission had been unable to determine concrete facts enabling it to issue a Statement of Objections against Dynopack because of lack of solid evidence. On 30 April 2001, the complainant wrote to the Committee on Petitions, enclosing 19 specific questions which were answered by the Commission on 11 September 2001. A further set of four questions was submitted by the complainant, some of them concerning access to specific documents. Pursuant to Regulation 1049/2001, the Commission granted access to those documents in a letter addressed to the Committee on Petitions dated 19 March 2002. At the end of a hearing, held on 21 March 2002, the Committee on Petitions decided to close the case.

The Commission explained that its inquiry had been the object of different written and oral questions by a number of MEPs, and had also been reviewed by the Ombudsman in the context of a previous inquiry (case 75/99/ME).

As regards the specific allegations made by the complainant in his complaint to the Ombudsman, the Commission noted that t he reply sent by Commissioner Monti on 9 July 2004 stated that all the information requested had been released both in the Commission's Article 6 letter and in the course of the public hearing held on 21 March 2002 by the Committee on Petitions of the European Parliament. The Commission underlined that an Article 6 letter is the last step in the formal procedure before a formal decision rejecting a complaint is adopted by the Commission. In its Article 6 letter in this case, dated 5 February 1993, the Commission services gave the complainant's firm a final opportunity to comment or to provide any further information on the case, in the absence of which, the case would be closed within one month. In June 1993, the complainant was thus invited to request a formal decision which he then could have challenged before the Community courts. The complainant however decided not to contest the Commission's Article 6 letter.

The Commission reviewed the type of information it had furnished regarding the criteria upon which it decided that trade between Member States did not appear to have been affected in this case, and noted that it was based on the established case-law of the Community courts. The Commission quoted the explanation given to the complainant in its Article 6 letter, in which it stated that the evidence showed that the trade affected by the behaviour complained against was direct trade between Norway and the United Kingdom. The Commission added that while this did not mean that the behaviour complained against could not have an effect on trade between Member States, there was no evidence in that case of any appreciable effect on such trade. A further reason behind the Commission’s intention to propose that the file be closed was that the volume of business concerned was small.

In reply to the Ombudsman's request, the Commission enclosed with its opinion a copy of the contribution of its services to the oral hearing held by the Committee on Petitions on 21 March 2002. In its presentation before the Committee, the Commission representative noted that the practices complained against had taken place in the 1980s. Since, at that time, the European Economic Area (EEA) had not yet been established, the complaint was analysed in the light of Articles 81 and 82 of the EC Treaty, which require that trade between Member States should be affected to an appreciable extent. As stated in its Article 6 letter, the Commission position was based upon a thorough analysis of the facts of the case and not on an in-depth market study, which, in this case, was not necessary because it was considered that Dynopack did not have a dominant position. As far as Article 81 was concerned, there was no evidence of any appreciable effect on trade between Member States. Furthermore, there was insufficient Community interest to justify pursuing investigation of the complaint.

The Commission argued that it had replied to all letters from the complainant, in particular to those of 10 March 1993 and 28 June 1993. It its reply of 18 March 1993, the Commission invited the complainant to contact the official responsible for the file, so that further information on the case could be offered. The telephone call took place on 23 March 1993, in the course of which the contents of the Commission's Article 6 letter were explained to the complainant. A number of additional telephone exchanges also occurred in April 1993. The Commission enclosed with its opinion a number of materials supporting its statement, including a copy of its letter dated 18 March 1993 as well as a note for the file regarding a telephone conversation.

The Commission took the view that its services had acted properly in respect of the allegations made by the complainant, and that they have followed the procedural steps and the criteria established by the Community courts.

The complainant's observations

In his observations, the complainant repeated the allegations made in his complaint. He referred to three specific issues which, in his view, the Commission's opinion had mischaracterised, namely, (i) the market and numerical basis on which the Commission based its decision that trade was not appreciably affected, when previously its officials had considered that it was; (ii) the application of the 1973 Norway-EEC Agreement; and (iii) the status of the Commission's letter of 5 February 1993 as an Article 6 letter.

As regards the effects of Dynopack's practices on the market, the complainant disagreed with the arguments made by the Commission. He noted that the Commission knew of the statement made by the world brand leader in this market, Newell, according to which the elimination of MOL had changed the whole shape of the markets in Europe to the detriment of consumers.

The complainant noted that the supporting documents for each of the questions mentioned were with the Petitions Committee under Petition 566/2000.

On 19 October 2005, and 15, 16 and 28 February 2006, the complainant sent additional information, in which he explained his viewpoint on the scope of the Ombudsman's decision regarding complaint 75/99/ME and on the handling of his case by the Commission services.

THE DECISION

1 Preliminary remark

1.1 The present complaint concerns the Commission's reply to a letter from the complainant dated 9 July 2004, requesting information on an inquiry involving competition matters.

In his complaint, the complainant also asked the Ombudsman to review and comment on the reply given by the Commission to the European Parliament regarding petition 566/2000. In addition, the complainant requested that the Ombudsman should define what process ought to be used when the questions put by the European Parliament are not answered by a Community institution.

1.2 The Ombudsman notes that those additional requests had already been made by the complainant in the context of a previous complaint he had lodged with the Ombudsman (reference 1382/2003/JMA). In his replies of 28 October 2003 and 16 January 2004, the Ombudsman explained that he would not deal with those requests, since the questions concerned had been put and answered in the context of the work of the Committee on Petitions of the European Parliament in dealing with the complainant's petition. The European Ombudsman noted in his replies that, pursuant to Article 195 of the EC Treaty, he only deals with complaints if he considers that enquiries are justified. As the Ombudsman has consistently stated, there appear to be no grounds to conduct such enquiries when the complainant has already addressed a petition to the European Parliament on the same subject and the Committee on Petitions has dealt with the matter.

1.3 In these circumstances, the Ombudsman considers that it was for the European Parliament to evaluate whether the replies given by the Commission were adequate, and if not, to undertake the appropriate political response. The Ombudsman does not therefore consider it justified to carry out any enquiries as regards the above additional requests made by the complainant.

2 The Commission's alleged failure to provide information

2.1 The complainant alleges that the reply of Commissioner Monti, on behalf of the Commission, to his query dated 9 July 2004, failed to provide him with the information requested. He therefore claims that the Commission should disclose it.

The complainant asks the Ombudsman to ensure that the Commission should comply with Article 18 of the European Code of Good Administrative Behaviour, and with Articles 41 and 43 of the Charter of Fundamental Rights of the European Union.

In his observations, the complainant refers to three specific issues on which, in his view, the Commission did not give adequate information, namely, (i) the market and numerical basis on which the Commission based its decision that trade was not appreciably affected; (ii) the application of the 1973 Norway-EEC Agreement; and (iii) the status of the Commission's letter of 5 February 1993 as an Article 6 letter.

2.2 The Commission argues that t he reply which Commissioner Monti sent the complainant on 9 July 2004 stated that all the information requested had been released in both the Commission's Article 6 letter, and in the course of the public hearing held on 21 March 2002 by the Committee on Petitions of the European Parliament.

The Commission explains that, in its Article 6 letter, it stated that the evidence showed that the trade affected by the behaviour complained against constituted direct trade between Norway and the United Kingdom. The Commission adds that while this did not mean that the behaviour complained against could not have an effect on trade between Member States, there was no evidence of any appreciable effect on such trade. A further reason for the proposal to close the file was that the volume of business concerned was small. The Commission underlines that, in its Article 6 letter, it gave the complainant a final opportunity to comment or to provide further information on the case, in the absence of which the case was to be closed within one month. The complainant did not contest the Commission's arguments.

The Commission points out that the Ombudsman had specifically considered that reasoning in his decision in case 75/99/ME.

In connection with the statements made before the Committee on Petitions on 21 March 2002, the Commission argues that they were based on the findings made in its Article 6 letter. The Commission official present at the hearing explained that, at the time the complaint was lodged, the European Economic Area (EEA) had not yet been established, and therefore, it had to be reviewed in the light of Article 81 and Article 82 of the EC Treaty, which require that trade between Member States be affected to an appreciable extent. The Commission position was based upon a thorough analysis of the facts of the case and not on an in-depth market study, which, in this case, was not necessary because it was considered that Dynopack did not have a dominant position. As far as Article 81 of the EC Treaty was concerned, there was no evidence of any appreciable effect on trade between Member States. Furthermore, there was insufficient Community interest to justify pursuing investigation of the complaint.

2.3 The Ombudsman has carefully examined the available information. It appears that, on 21 June 2004, the complainant addressed a letter to Commissioner Monti, requesting the following information:

"[...] I write once more to the Commission to receive an answer to the question of how the Commission decided that trade between Member States was not appreciably affected by the action taken against Microwave Ovenware Ltd by Dynopack a/s and Ltd [sic].

A copy of Question 4 of the Petition is attached for your easy reference. As you know, this question has been asked repeatedly, both by myself and by Parliament, without the Commission giving the market survey and analysis of the reasons for the decision above."

The terms of Question 4, mentioned in the complainant's letter, referred to the criteria used by the Commission to conclude that trade between Member States was not affected in this case.

The reply given by Commissioner Monti on 9 July 2004 stated that:

"[Y]our letter [...], at this stage, does not call for any particular observation, in addition to those already conveyed to you in the past, and in particular during the public hearing of 21 March 2002 at the Petitions Committee of the European Parliament.

The Commission has no intention to reopen the file and analyse once more the issues already addressed in its earlier investigation and discussed in the Article 6 letter sent in 1993, to which no substantive response has been received."

2.4 In view of the above, it appears that the object of the complainant's request to Commissioner Monti was to have the Commission explain the basis upon which it came to the conclusion that trade between Member States was not appreciably affected by the actions taken by Dynopack. In his reply, Commissioner Monti referred to the arguments already stated by the Commission in its Article 6 letter, as well as those made by the Commission's representative in the Parliamentary hearing of 21 March 2002.

At the outset, the Ombudsman should point out that the Commission's inquiry into the Dynopack case has already been the object of a previous inquiry by the Ombudsman, in the context of complaint 75/99/ME, lodged by a different complainant. In that case, it had been alleged that the Commission negligently handled this competition case under Articles 81 and 82 of the EC Treaty. In his decision on the case, dated 18 October 1999, the Ombudsman reached the conclusion that the Commission had handled the inquiry correctly and that its Article 6 letter had properly dealt with the question of whether or not trade between Member States had appreciably been affected in this case. The Ombudsman therefore found at the time that no maladministration on the part of the Commission had taken place(1).

2.5 In view of the nature of the specific allegation made by the complainant in the present case, the Ombudsman finds it useful to examine, first, the legal nature of the procedure set out in Article 6 of Regulation No 99/63, and, in the light of these provisions, the arguments advanced by the Commission.

The Ombudsman notes that the present case concerns the Commission’s rejection, for insufficient grounds, of an application alleging an infringement of Community competition rules submitted under Article 3 (2) of Regulation No 17(2). The procedure for such rejections is laid down by Article 6 of Regulation No 99/63(3). The case law of the Community courts(4) distinguishes between three successive stages of the procedure. During the first of those stages, following submission of the application, the Commission collects the relevant information, on the basis of which it will decide what decision it will take on the matter. In the second stage, the Commission informs the applicant, as prescribed by Article 6 of Regulation No 99/63, of the reasons for which it considers that there are insufficient grounds for granting the application and gives the applicant the opportunity to submit any further comments within a time-limit fixed by the Commission. In the third stage of the procedure, the Commission takes cognizance of any observations submitted by the complainant, and adopts a final decision, against which legal proceedings may be brought before the Community courts(5).

The second stage of the procedure is reached when the Commission informs the complainant of its intention not to pursue the inquiry, through the so-called Article 6 letter, pursuant to Article 6 of EEC Regulation No. 99/63, which states that:

" Where the Commission [...] considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time limit for them to submit any further comments in writing."

In the light of the Community courts' case-law, the Article 6 letter does not constitute a decision, but merely a procedural measure preparatory to the final decision(6). In the absence of a reply to it, Community courts have interpreted that the complainant may be regarded as consenting to the definitive closure of the procedure on his complaint, announced by the Commission in the Article 6 letter(7).

2.6 In the present case, the complainant made an application to the Commission alleging the infringement of Community competition rules by the market practices of the firm Dynopack and their impact on MOL. On the basis of the available information, it appears that, following a formal inquiry carried out between 1988 and 1993 (case No. IV/B-2/32.752-Microwave/Dyno), the Commission came to the conclusion that there were insufficient grounds to pursue the matter, and formally notified the complainant of its position by letter dated 5 February 1993, which referred to Article 6 of EEC Regulation No. 99/63. The letter included the following:

"Pursuant to Article 6 of EEC Regulation No. 99/63 of 25 July 1963, I regret to inform you that my Directorate-General envisages rejecting your complaint for the following reasons:

1. [...] Dynopack A.S. has no dominant position on the EEC market or more especially, on the United Kingdom market [...].

2. [T]he evidence shows that the trade affected by the behaviour you have complained of is direct trade between Norway and the United Kingdom. While this does not mean that the behaviour complained of cannot have an effect on trade between Member States, there is no evidence in this case of any appreciable effect on such trade [...].

3. [T]he case does not raise any issue of principle in Community competition law [...].

To conclude, I will have to propose to the Commission that the file be closed. However, I should first like to give you a final chance to comment or provide any further information which may be relevant [...]. If you do not let me have such information or comments within a month of receiving this letter, I regret that I will have to have the file closed."

2.7 The Ombudsman notes that the above letter explicitly referred to Article 6 of Regulation No 99/63 as the legal basis for the Commission's action; described the Commission's reasoning for not pursuing the application; and gave the complainant the opportunity to submit further comments. It appears uncontested that, despite the Commission's invitation to the complainant to comment on its arguments, the complainant did not do so.

2.8 The Ombudsman is mindful of the fact that the Commission has a wide discretion in its evaluation of competition-related matters. Accordingly, the review of the assessments made by the Commission in this area has been confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or misuse of powers(8).

2.9 The Ombudsman notes that the complainant’s observations question the status of the Commission’s letter of 5 February 1993 . The Ombudsman considers, on the basis of his examination of the document, that the letter in question is clearly an Article 6 letter. Moreover, the Ombudsman considers that the letter contained a sufficiently detailed explanation of the Commission’s position to enable the complainant to understand the reasons why the Commission considered that there were no grounds to pursue the matter.

The Ombudsman therefore concludes that the Commission appears to have followed in this case the applicable procedural rules, in particular the provisions of Article 6 of Regulation No 99/63, as interpreted by the Community courts.

2.10 The Ombudsman’s inquiry has not revealed any information which could lead him to believe that the Commission’s position as stated in the Article 6 letter was vitiated by a manifest error. Nor has the Ombudsman received information which might put into question the use of the Commission's powers in this case.

The Ombudsman has also carefully reviewed the statements made by the Commission's representative in the hearing held by the European Parliament's Committee on Petitions on 21 March 2002, a copy of which was annexed to the Commission's opinion. The Ombudsman notes that the position of the Commission representative present at that meeting, as regards the criteria used by the Commission to conclude that trade between Member States had not been affected appreciably in the Dynopack case, appears to be consistent with the findings of its Article 6 letter of 5 February 1993, from which he quoted the most relevant paragraphs(9).

2.11 Finally, the Ombudsman notes that the Commission's Article 6 letter gave the complainant the opportunity to comment on the institution's reasoning. Had the complainant done so, he could then have received a decision, and eventually challenged it before the Community courts. Despite being given that opportunity, the complainant failed to exercise his procedural rights. In view of the situation, the Ombudsman finds it reasonable that the Commission be now entitled to regard its substantive decision to close the file as final, and to inform the complainant accordingly in reply to his request to Commissioner Monti.

2.12 In the light of the above, the Ombudsman takes the view that the Commission's replies to the complainant's requests appear reasonable. The Ombudsman therefore finds no maladministration as regards the complainant’s allegation and considers, therefore, that the complainant’s claim cannot be sustained.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to be no maladministration by the Commission. 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) Decision in complaint 75/99/ME, the European Ombudsman Annual Report for 1999, page 109-110:

"2.3 The Ombudsman also notes that [...] the Commission respected the procedure foreseen in competition cases regarding for example the sending of a so called Article 6 letter. There is, therefore, nothing to indicate that the Commission did not handle the file correctly.

2.4 [...] The Commission in its Article 6 letter of 5 February 1993 stated that it had carried out a thorough study of the case and that it was fully aware of the case. There is nothing in the file to indicate that the Commission had not fulfilled this statement or did not properly examine the case.

2.5 [...] As regards the Commission's decision to close the case, the Commission in its letter of 16 July 1998 referred to its Article 6 letter of 5 February 1993 which properly dealt with this issue. Regarding the duty of the Commission to provide clear advice, the Ombudsman notes that the Commission did follow the procedures foreseen in competition cases and the Ombudsman does, therefore, not find it justified to pursue this point of the complaint further.

2.6 Therefore, the Ombudsman finds that there is no instance of maladministration in relation to this aspect of the case

(2) EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty; OJ 13 21.02.1962, p.204.

(3) Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19 (1) and (2) of Council Regulation No 17; OJ C 127 20.08.1963, p. 2268.

(4) Case T-64/89 Automec Srl v Commission ECR [1990] II-00367.

(5) Supra case T-64/89, par.45-47.

(6) Supra case T-64/89, par.46.

(7) Case T-77/94 Vereniging van Groothandelaren v Commission ECR [1997] II-00759, par. 75.

(8) Joined cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland A/S, Irish Cement Ltd, Ciments français SA, Italcementi - Fabbriche Riunite Cemento SpA, Buzzi Unicem SpA and Cementir - Cementerie del Tirreno SpA v Commission not yet reported; par. 279 (see case-law mentioned therein); OJ C 59, 06.03.2004, p. 1.

(9) See Annex 10 of the Commission's opinion: "Contribution by Fin LOMHOLT representing the Commission at the Oral Hearing on 21 March 2002 at the Committee on Petitions of the EP", page 4.