Strasbourg, 16 June 2005

Dear Dr. W.,

On 24 November 2004, Mr Andreas Mölzer MEP forwarded to me a complaint dated 23 November 2004 that you wished to make against the European Commission concerning the latter's handling of a complaint you had submitted to it on 27 February 2004.

On 13 December 2004, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 14 March 2005. I forwarded it to you with an invitation to make observations, if you so wished, by 30 April 2005 at the latest. No observations were received from you by that date.

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

THE COMPLAINT

Background

In 2003, the Commission authorised state aid amounting to EUR 120 million for LTU Lufttransport-Unternehmen GmbH ("LTU") to be paid by the German land Northrhine-Westfalia. It appears that this aid was provided in order to save the company from bankruptcy.

According to the information provided in the complaint, the Commission's decision was based on the assumption that LTU did not belong to the REWE group and was not controlled by the latter (since otherwise the aid could not have been authorised, as LTU would then have been part of a healthy group). It appears that all the shares in LTU belong to LoMa Beteiligungsgesellschaft mbH ("LoMa"). REWE holds 40 % of the shares in LoMa. Another 49.9 % of the shares in LoMa were acquired by REWE in December 2001 and passed on to VBE Beteiligungsgesellschaft with a view to selling them on.

It further appears that the authorisation of the state aid was made dependent on certain conditions. These included an obligation imposed on LTU to reduce its transport capacity and a commitment not to expand but to concentrate on the 'source' markets in Germany. It further appears that the German government guaranteed that the state aid would be suspended if LTU were to fail to comply with the restructuring plan and that LTU would not acquire any shares in other air transport companies during restructuring.

The complainant, an Austrian lawyer, is the legal representative of NIKI Luftfahrt GmbH (the new airline of Niki Lauda, the former racing driver). According to the complainant, LTU did not comply with the above-mentioned conditions. Already towards the end of 2003, LTU announced that it intended to expand to Austria by forming a subsidiary there, or by participating in such a company. According to the complainant, this plan was put in practice in early 2004 and the company concerned was "LTU Billa Luftfahrt Unternehmen", a 100 % subsidiary of "Billa Dienstleistungsgesellschaft", all of the shares in which are owned by REWE Austria AG. The complainant further submitted that LTU offered some 40 additional flights to Austria in the summer of 2004. According to the complainant, there was furthermore evidence to show that LTU was part of the REWE group and should thus not have received any state aid.

The approaches to the Commission

On 27 February 2004, the complainant submitted a complaint to the Commission. This complaint was based on Article 20 (2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 (now Article 88) of the EC Treaty (OJ 1999 no L 83, p. 1). On 23 March 2004, the complainant made certain additions to his complaint.

The e-mail of 23 November 2004

On 23 November 2004, the complainant turned to Mr Andreas Mölzer MEP for help. The complainant pointed out that the Commission had failed to provide him with any information on the state of the procedure. He asked the MEP to intervene.

Mr Mölzer's e-mail of 24 November 2004

On 24 November 2004, Mr Mölzer MEP forwarded the e-mail he had received to the Ombudsman. Mr Mölzer considered that there had been undue delay on the part of the Commission and asked the Ombudsman to pursue the matter.

The case was therefore registered as a complaint.

The complainant in substance alleges that the Commission has failed properly to handle the complaint he lodged on 27 February 2004 and on 23 March 2004 and to provide sufficient information as to the state of the procedure.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

Background

In 2001, LTU had been faced with difficulties that had mainly been due to the bankruptcy of its main shareholder, Swissair. The German authorities had therefore intervened and provided rescue aid amounting to EUR 120 million. The Comission had been duly notified about the aid and had approved the latter. LTU had subsequently submitted a restructuring plan that had been approved by the Commission on 19 March 2003.

In January 2004, the German authorities submitted a report on the state of the restructuring to the Commission. They also informed the Commission that LTU wished to add a 25th aircraft to its fleet and to base this plane in Austria by forming a subsidiary there. The capacity offered as a result of this modification remained however close to the one authorised by the Commission (between 6005 and 6041 seats compared to 5945 seats foreseen for 2004).

The relevant facts

The complainant had complained to the Commission on 27 February 2004. On 12 March 2004, the Commission sent an acknowledgement of receipt, informing the complainant that his complaint was being examined and that the question as to whether it should be forwarded to the German authorities was being considered in particular.

On 23 March 2004, the Commission sent a request for further information to the German authorities. A copy of the complaint of 27 February 2004 was forwarded to the German authorities together with this letter.

Also on 23 March 2004, the complainant forwarded additional information concerning his complaint to the Commission. On 15 April 2004, the Commission sent an acknowledgement of receipt, informing the complainant that his complaint had been forwarded to the German authorities and that his letter of 23 March 2004 would also be sent to them. On 16 April 2004, the Commission sent a copy of the complainant's letter of 23 March 2004 to the German authorities.

On 15 June 2004, the German authorities replied to the Commission's request for further information. In parallel, informal telephone contacts between the complainant and the Commission, especially on 14 April and 8 October 2004, had enabled the Commission to inform the complainant that a letter had been sent to the German authorities and that their reply had been received.

As regards the substance of the complaint

The three principal aspects raised by this case (LTU's offer of flights from Austria, the setting-up of a specific legal structure in Austria and the increase of the fleet beyond 24 aircraft) were presently being examined by the Commission. The Commission would also check whether the shareholder relationship between REWE and LTU had changed since the time when it adopted its decision.

As indicated above, the Commission had forwarded the information submitted by the complainant to the German authorities without delay. The German authorities had replied within a reasonable period of time. This reply was still the subject of contacts with the German authorities. A working meeting with these authorities was scheduled to take place in the ensuing few weeks. Further information that the Commission had gathered in this matter still needed to be added to the inquiry.

The time needed for the examination of the complaint remained reasonable, taking into account the case-law of the Court of Justice and the priority that needed to be given by the Commission's services to newly notified state aids.

The Commission had maintained regular contacts with the complainant, the last such contact having been made on 8 October 2004. It recognised, however, that it had not informed the complainant in writing about the date when the reply of the German authorities had been received.

Conclusion

The grievances raised by the complainant had, due to their complex nature, required an in-depth legal analysis which clearly justified the time the Commission had needed to examine the matter. This examination was still ongoing, and the Commission would take a position on the substance of the case after the meeting with the German authorities scheduled for March 2005. The complainant would be kept informed about the progress of the examination.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Alleged failure to handle state aids complaint properly

1.1 The complainant, an Austrian lawyer, is the legal representative of NIKI Luftfahrt GmbH (the new airline of Niki Lauda, the former racing driver). On 27 February 2004, the complainant submitted a complaint to the Commission concerning state aid that had been granted by Germany to LTU Lufttransport-Unternehmen GmbH ("LTU") and that had been authorised by the Commission. On 23 March 2004, the complainant made certain additions to his complaint. In his complaint to the Ombudsman (that was forwarded to the latter by an MEP), the complainant in substance alleged that the Commission had failed properly to handle the complaint he had lodged on 27 February 2004 and on 23 March 2004.

1.2 In its opinion, the Commission pointed out that it had sent a request for further information to the German authorities on 23 March 2004, that it forwarded the complainant's letters of 27 February 2004 and of 23 March 2004 to the German authorities without delay and that the latter had replied to the request for further information on 15 June 2004 and thus within a reasonable period of time. The Commission added that this reply was still the subject of contacts with the German authorities and that a working meeting with these authorities was scheduled to take place in March 2005. According to the Commission, the grievances raised by the complainant had, due to their complex nature, required an in-depth legal analysis. In the Commission's view, the time needed for the examination of the complaint remained reasonable, taking into account the case-law of the Court of Justice and the priority that needed to be given by the Commission's services to newly notified state aids.

1.3 No observations were received from the complainant, to whom a copy of the Commission's opinion had been forwarded by the Ombudsman.

1.4 The Ombudsman considers that it emerges from the information provided by the Commission that the latter actively investigated the complaint submitted to it by the complainant. He notes in particular that measures of inquiry were rapidly taken after the Commission had received the complainant's letter of 27 February 2004. It is true that, at the time when the Commission submitted its opinion in the present case, nearly nine months had lapsed since the Commission had received the German authorities' reply to its request for further information. However, in the light of the explanations provided by the Commission, the Ombudsman takes the view that there is nothing to suggest that there was an excessive delay.

1.5 In these circumstances, the Ombudsman takes the view that there was no maladministration as regards this aspect of the case.

2 Alleged failure to inform the complainant

2.1 The complainant alleged that the Commission had failed to provide sufficient information as to the state of the procedure.

2.2 The Commission pointed out that on 12 March 2004, it had informed the complainant that his complaint was being examined and that the question as to whether it should be forwarded to the German authorities was considered in particular. It added that on 15 April 2004, it had acknowledged receipt of the letter of 23 March 2004, informing the complainant that his complaint had been forwarded to the German authorities and that his letter of 23 March 2004 would also be sent to them. The Commission also referred to informal telephone contacts between itself and the complainant, the last of which took place on 8 October 2004. It recognised, however, that it had not informed the complainant in writing about the date when the reply of the German authorities had been received.

2.3 The Ombudsman notes that the Commission acknowledged receipt of the complainant's letters and provided a certain amount of information on the state of the procedure in writing or orally. He considers, however, that it is good administrative practice to keep a complainant properly informed about progress on his case. In the Ombudsman's view, this means that the Commission should at least have written to the complainant to inform him when it received the reply from the German authorities and to indicate how long the examination of this reply and the further investigation was likely to take.

2.4 However, given that the Commission has provided the relevant information in its opinion, the Ombudsman takes the view that there is no need to pursue his inquiry into this aspect of the complaint.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission as regards the complainant's first allegation. In so far as the second allegation is concerned, the Ombudsman takes the view that there is no need to pursue his inquiry into this aspect of the complaint. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS