Guarding the guardian: ‘Article 258 TFEU complaints’ before the European Ombudsman

Introduction

Article 17 of the Treaty of the European Union entrusts the European Commission with the task of ensuring the proper application of EU law. Within that context, Article 258 of the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’) establishes the general and centralized infraction process by means of which the Commission, acting as the Guardian of the Treaties, is empowered to initiate infringement proceedings against member states allegedly in breach of their EU obligations. Notwithstanding the acknowledged significance of individuals in detecting instances of state incompliance, ¹ the Commission has consistently viewed the law enforcement mechanism of Article 258 TFEU as an elite, bipolar bargaining game between itself and the defaulting member state rather than a participatory, triangular construct whereby complainants are treated as equal interlocutors. Similarly, the Union judiciary has refused to recognize any procedural rights to individuals, since they are not formally seen as parties to the infraction process, and left the Commission with a wide margin of discretion in its handling of Article 258 TFEU grievances. ²

Against the tide of the prevailing administrative culture and judicial wisdom, the European Ombudsman has created in a persistent and incremental fashion his own set of principles to review the procedural treatment and substantive assessment of infringement complaints by the European Commission. ³ His efforts culminated in the Commission's 2002 Communication, which set out the procedural framework expected to be followed in the institution's relations with complainants during the infringement investigation. ⁴ To reflect a number of intervening developments, the Commission recently issued the 2012 Communication, which revised and updated the 2002 version. ⁵

The purpose of this article is to illustrate the European Ombudsman's contribution in the field of infringement complaints by examining the way he has practically applied the main provisions of the 2012 Communication in his decision-making. As that text draws heavily upon its 2002 predecessor, the relevance of the findings pertaining to the application of the latter extends also to the former. The temporal scope of our investigation spans from 1995 until 2012 inclusive. Within that time frame approximately 300 decisions on Article 258 TFEU complaints were delivered and published by the Ombudsman. An instance of maladministration was formally found in almost 80 cases, leading to 13 draft recommendations and three special reports. ⁶ Our discussion begins by briefly considering the historical background to the 2012 Communication. This is followed by a detailed inquiry into the practical application of its principal provisions in the Ombudsman's investigations. The analysis concludes with some brief reflections on the European Ombudsman's role and performance thus far.

Historical background

Sound appreciation of the political pressures and legislative developments that led to the 2012 Communication is necessary to understand the form and content of the resultant text.

The citizens' dissatisfaction with the way the Commission procedurally conducted its infringement investigations and substantively reasoned its decisions became evident from the Ombudsman's teething years in the Union space. ⁷ A plethora of complaints focused on the legality and propriety of the Commission's behaviour during the administrative phase of the infraction process, which preceded the possible referral of the case to the European Court of Justice (now Court of Justice of the European Union, hereinafter ‘CJEU’). The most common and alarming allegations concerned excessive delays in processing submitted complaints, absence of information on the unfolding of pending investigations and secrecy surrounding the grounds for ‘not guilty’ verdicts.

This was the setting for the Ombudsman's own-initiative inquiry 303/97 of 13 October 1997. By invocation of the principle of good administration, the Ombudsman prodded the Commission to develop procedural rights for Article 258 TFEU complainants without compromising its established margin of appreciation in infringement investigations. The institution formally committed itself to a set of four procedural safeguards: (i) the receipt of complaints is acknowledged; (ii) the complainant is kept informed of the progress of the inquiry; (iii) save in exceptional circumstances, the decision either to close the file or to refer the case to the Court is made within a year from the date of registration; and (iv) the complainant in principle receives a forewarning of the Commission's intention to discontinue its investigation and may put forward his views in an attempt to avert the closure of the case. Those undertakings were subsequently incorporated into a notice published by the Commission in April 1999 in the form of an explanatory note accompanying the standard form for Article 258 TFEU complaints. ⁸

Further developments were triggered in January 2001 by the Ombudsman's decision in case 995/98/OV. The complainant had brought to the Commission's attention alleged violations of Community public procurement law by the Greek authorities in relation to the award of the Thessaloniki Metro project. From the Ombudsman's inquiry into the Commission's treatment of that infringement complaint it transpired that the institution had failed to provide the complainant with adequate reasons for its decision to close the file and to give him a fair opportunity to be heard before the conclusion of the investigation. Those shortcomings were all the more unfortunate given the recently proclaimed Charter of Fundamental Rights of the European Union, which endorsed and promoted the citizens' right to good administration. In the light of the above, the Ombudsman urged the Commission to draft a clear and transparent code for the procedural handling of infringement allegations in a manner analogous to existing texts applicable, for example, to competition complaints. ⁹ In response, the Commission issued the 2002 Communication, which consolidated and publicized the institution's internal procedural rules regulating its relations with complainants in the context of Article 258 TFEU proceedings.

The Ombudsman's own-initiative inquiry OI/2/2011/OV of 18 April 2011 marked another step closer to the adoption of the 2012 Communication. The background to that inquiry could be concisely described as follows. In September 2007 the European Commission issued a Communication entitled ‘A Europe of Results – Applying Community Law’, stressing the need for proper and timely enforcement of Community law and suggesting ways to improve its application. ¹⁰ Within that context the Commission launched in April 2008 its EU Pilot project, which improved cooperation between its services and national authorities in infringement investigations. ¹¹ Building upon that development, the Commission introduced in September 2009 CHAP (‘Complaints Handling – Accueil des Plaignants’), a new electronic system specifically designed for the registration and management of complaints and enquiries by European citizens on the application of EU law by member states. ¹² With a view to clarifying the symbiotic relationship between the EU Pilot and CHAP, on the one hand, and the procedural safeguards of the 2002 Communication, on the other hand, the European Ombudsman commenced own-initiative inquiry OI/2/2011/OV. In March 2012 he issued a draft recommendation to the effect that the Commission should consider revising the 2002 Communication in order to ensure that it reflects the changes brought about by the EU Pilot and CHAP.

The Ombudsman's inquiry, terminological changes brought about by the TFEU in December 2009 and the need to clarify certain linguistic discrepancies in the 2002 versions prompted the Commission to proceed to the revised and updated 2012 Communication. The text contemplates a number of non-justiciable commitments the institution is prepared to honour when handling Article 258 TFEU grievances, in particular as regards the registration of complaints, the acknowledgement of receipt, the communication with complainants, the timeliness of the investigative effort and the closure of the case. Each of those aspects will next be examined in turn.

Registration of complaints

Point 3 of the Annex to the 2012 Communication deals with the registration of infringement complaints. Paragraph 1 proclaims the principle that any complaint about the application of Union law by a member state is recorded in the relevant central registry held by the Commission. Paragraph 2 contemplates six exceptions to the above rule. Correspondence will not be deemed investigable and will not be registered as an Article 258 TFEU complaint if: (i) it is anonymous, fails to show the address of the sender or shows an incomplete address; (ii) it fails to refer, explicitly or implicitly, to a member state to which the measures or practice contrary to Union law may be attributed; (iii) it denounces the acts or omissions of a private person or body, unless the measure or complaint reveals the involvement of public authorities or alleges their failure to act in response to those acts or omissions; (iv) it fails to set out a grievance; (v) it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant; (vi) it sets out a grievance which clearly falls outside the scope of Union law. Where the Commission declines registration, it is obliged under Point 4(3) and (4) of the Annex, first, to notify the author accordingly by ordinary letter clearly indicating which of the above exception(s) the case falls within and, second, to mention any possible alternative forms of redress at either national or supranational level, e.g. domestic or international courts and ombudsmen.

Registration questions have been raised in approximately 40 cases, almost half of which led to a formal finding of maladministration, including two draft recommendations. ¹³ The most commonly invoked derogations have been the failure to set out a grievance; the adoption of a clear, public and consistent position; and the non-application of EU law. The Ombudsman is to be in principle willing to discontinue his investigation when the Commission (i) registers the complaint belatedly, under the condition that it will duly act thereupon and timely inform the complainant apologizing for the mistreatment; or (ii) actually deals with an unregistered infringement complaint as if it was formally registered.

The list in Article 3(2) merits particular attention. There emerge three related, albeit distinct issues in that context which require individual treatment. The first pertains to the character of the exceptions list. The Ombudsman consistently holds that the aforementioned enumeration of grounds justifying non-registration of infringement complaints is exhaustive. That thesis has been expressed in both explicit and implicit terms. Explicit articulations can be found in a number of decisions where the exclusivity of the grounds contained in Point 3(2) is emphatically stressed. ¹⁴ Implicit manifestations to the same effect are found in cases where the Ombudsman rejects reasons put forward by the Commission which do not figure on the existing list. ¹⁵

The second matter of importance relates to the interpretation of the exceptions list. Following the lead of his judicial counterparts, ¹⁶ the Ombudsman's unwavering thesis is that the six existing grounds of Point 3(2) must be construed restrictively as they constitute derogations from the overarching principle of Point 3(1). In case OI/3/2009/MHZ it surfaced that the Commission's practice was to refuse registration as infringement complaints of correspondence relating to access to environmental information unless the author had already exhausted the mechanisms established to this effect under national law. That approach, the Commission argued, did not introduce a new ground, but was rather already covered by the existing ‘failure to set a grievance’ exception. The Ombudsman found that interpretation ‘too broad and unreasonable’ and recalled that ‘according to the case-law of the Union courts, exceptions and derogations need to be interpreted narrowly. The ECJ specifically held that derogations must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected.’ ¹⁷ The Commission eventually conceded to narrow down its interpretation and abandoned its controversial practice.

The final point of interest concerns the extent of the exceptions list. It is worth reflecting on whether and under what conditions new exceptions could validly be added in the future to the existing ones. Decision OI/3/2009/MHZ offers a rare glimpse into the Ombudsman's thoughts on that question. In that case the object of investigation was the Commission's policy of registering infringement complaints and the suspected introduction of two new derogations. The Ombudsman opined that good administration did not necessarily require that the registration of infringement correspondence must be completely liberalized and the exceptions contained in the Commission's Communication were not therefore a priori undesirable. Furthermore, the well-established EU law principles of legal certainty and of the protection of legitimate expectations dictated that the administration abide by the commitments it had publicly undertaken, unless it informed citizens otherwise. Within the above context, the Commission enjoyed ‘undisputed discretion’ to broaden the list of Point 3(2) under the condition that any new exceptions would only become applicable upon publication in an amended Communication. The Ombudsman's reasoning is rational and appears to address some basic aspects of the question under investigation. In its presented articulation, however, the Ombudsman's thesis remains critically incomplete. The missing piece is the admission that the Commission's ‘undisputed discretion’ may not be exercised arbitrarily: any newly inserted derogation from the basic rule of registration will need to pass the legality and propriety test of good administration. ¹⁸ It follows that the Ombudsman should be expected to denounce, for example, exceptions (i) based on or resulting in any type of discrimination prescribed by legally binding norms of Union origin or (ii) obstructing in an unjustified and disproportionate manner citizens’ access to the Commission's infraction process against recalcitrant member states.

The commitment of Point 4(3) also requires special attention. Here the most pressing question, given the silence of the Communication on the issue, is the precise time limit within which the Commission must discharge its obligation to notify the complainant of its decision to decline registration of correspondence as an Article 258 TFEU complaint. The Ombudsman appears to expect the Commission to communicate to the individual concerned the decision of non-registration ‘at an early stage’ ¹⁹ and preferably ‘when it first responde[s] to the complainant's correspondence’. ²⁰ More positive guidance can be gleaned from Decision 80/2009/BU. On 14 November 2006 an environmental institute submitted a completed infringement complaint form to the Commission. It was not until April 2009, however, that the Commission eventually informed the complainant that it had denied registration of the 2006 correspondence as an Article 258 TFEU complaint and offered an explanation for its refusal. The Ombudsman first recalled that the 2002 Communication did not stipulate any relevant deadline for the Commission. Having stressed that in the absence of specific provisions recourse should be made to pertinent general rules, he inferred that the period within which the Commission was reasonably expected to inform complainants of its decision not to register their correspondence as an Article 258 TFEU grievance should not be ‘substantially longer than one calendar month, which [Point 4(2) of the 2002] Communication [foresaw] for correspondence formally registered as a complaint’ and, in any case, it should not exceed ‘the two-month time-limit stipulated in Article 17 of the European Code of Good Administrative Behaviour’. ²¹ Further to the replacement of Point 4(2) of the 2002 Communication by Point 4(1) of the 2012 Communication, the inferred deadline for the Commission appears now to have shrunk from one calendar month to within 15 working days of receipt.

Acknowledgement of receipt

Point 4 of the Annex to the 2012 Communication concerns the acknowledgement of receipt of infringement complaints. Paragraph 1 requires the Commission to issue an acknowledgement of all correspondence registered as complaint within 15 working days of receipt stating the registration number, which must be quoted in any further related communication. ²² Paragraph 2 provides that in the event of a plethora of complaints focusing on the same grievance, individual acknowledgements may be replaced by a centralized publication in the Official Journal of the European Union and on the Union's Europa server. The Ombudsman has received not more than 20 relevant complaints, leading to one draft recommendation. ²³ Despite the apparent paucity of reported cases and the resulting limited empirical relevance, some noteworthy points can still be made.

As regards paragraph 1, the Ombudsman appears to be willing to discontinue his inquiries, if the Commission (i) slightly belatedly acknowledges the receipt of the complaint; or (ii) recognizes its failure, apologizes to the complainant and proceeds to the examination of the complaint. On some occasions the non-acknowledgement is not a stand-alone concern but rather the corollary problem of the failure to register the complaint. In case 813/98/(PD)/GG the complainant alleged that the Commission services had not acknowledged receipt of his formal complaint concerning the compatibility of the Spanish law on corporations with Directive 77/91/EEC on safeguards for the protection of members of companies. The institution explained that the receipt of the complainant's letter had not been acknowledged simply because the Commission's technical services had concluded that it was not appropriate to register the complainant's letter as a formal complaint in the first place. Further to the Ombudsman's intervention, the Commission reassessed the complainant's allegations and went on to register and investigate his letter as a formal infringement complaint.

With respect to paragraph 2, there is no indication of the exact threshold number of complaints which triggers the application of the ‘mass acknowledgement’ procedure. Some guidance can be derived from case 706/2007/(WP)BEH. The complainant alleged that he had not yet received a reply to his infringement complaint about environmental violations by the Austrian authorities. In its opinion, the Commission stressed that it had received several hundred complaints focusing on that issue. It appeared that an organized large-scale campaign was behind those complaints, as the same complaint form was used by all the complainants. The majority of the complaints were registered en masse and their authors were informed accordingly through publication in the Official Journal of the European Union and online on the Union's Europa server. The Ombudsman, after verifying the relevant publication, held that ‘[i]n view of the apparently large number of relevant complaints received in this regard, the Commission's reliance on point 4(3) of its Communication appears to be reasonable’.

Communication with complainants

Communication between the Commission and Article 258 TFEU complainants is regulated by two sets of rules. On the one hand, Points 7, 9(3) and 10(5) of the Annex to the 2012 Communication specify the Commission's proactive obligation to contact the complainant. The core idea is that the institution should on its own initiative keep the complainant informed in writing about any essential development in the inquiries into his infringement complaint, including representations made to the national authorities concerned, formal notice, reasoned opinion, referral to the Court or closure of the case. Where a number of complaints are lodged in relation to the same grievance, individual letters may be replaced by a publication in the Official Journal of the European Union and on the European Union's Europa server. On the other hand, Article 14 of the European Code of Good Administrative Behaviour and Section 4 (‘Dealing with Enquiries’) of the Commission's Code on Good Administrative Behaviour define the institution's reactive commitment to reply to correspondence initiated by the complainant. Every letter is in principle expected to receive an acknowledgement of receipt within a period of two weeks and a reply within 15 working days from the date of receipt of the letter by the responsible Commission department. No acknowledgement of receipt and no reply need be sent in cases where letters are abusive because of their excessive number or because of their repetitive or pointless character.

Issues pertaining to the Commission's proactive obligation to keep the complainant informed have been raised in approximately 50 cases, one-third of which were concluded with a formal finding of maladministration without, however, any draft recommendation or special report to date. Most of the complaints concern lack of information on the general progress of the investigation, while only a few focus on specific stages thereof, e.g. replies from national authorities or closure of the case. The Ombudsman may not eventually criticize the Commission in cases where the institution recognizes that it had belatedly informed the complainant about the status of his complaint and offers its apology. It is worth emphasizing that, while the complainant should generally be kept informed of the Commission's contacts with the competent authorities of the recalcitrant member state, neither the 2012 Communication nor any other text, legislative or otherwise, provides for an obligation on the part of the Commission to divulge the queries it makes to those authorities or the replies it receives from them. The Commission's proactive undertaking exclusively relates to the natural or legal person(s) submitting the complaint. The Ombudsman has sought, unsuccessfully thus far, to expand that circle by suggesting that a new policy should be endorsed, whereby information on the progress of the investigation of a registered infringement complaint should be provided not only to the complainant(s) who lodged it, but also to those interested citizens and associations whose grievances, although not formally registered as infringement complaints, were added to the file of the registered complaint.

Questions relating to the Commission's reactive commitment to reply to Article 258 TFEU correspondence have been dealt with in nearly 50 cases, one-fifth of which were closed with a formal finding of maladministration. No relevant draft recommendations or special reports have been issued to this day. An interesting finding is that the Ombudsman is willing to abstain from further inquiries if the Commission recognizes its failure to respond to the complainant's communication and eventually rectifies its omission. Case 3255/2005/IP provides an extreme example in that regard. The complainant had addressed a letter to the Commission adding a new argument to his pending complaint and requesting that he be informed about the progress of the ongoing investigation. It took the Commission almost two years to respond. Despite that serious omission, the Ombudsman decided not to enquire further, as the institution clearly accepted its failure and finally replied. Another important issue is the discontinuance of abusive correspondence. The Ombudsman considers that terminating correspondence with citizens is a severe exception to the Commission's general duty to correspond with them. It should therefore be restrictively construed and could only be justified ‘if (i) the Commission had already explained its position in sufficient detail to the complainant; (ii) the explanations it provided were correct; (iii) the Commission had announced its intention no longer to reply before it in fact stopped replying, and (iv) there was nothing else to suggest that it had behaved in an arrogant and disdainful way’. ²⁴

Time limit for investigating complaints

Point 8 of the Annex to the 2012 Communication sets the proper time frame for investigating Article 258 TFEU complaints. Under Point 8(1) the Commission is, in principle, expected to decide whether to close a file without taking any action or to initiate official proceedings by means of a formal notice within a maximum period of one year from the date on which the correspondence was registered as an infringement complaint. Pursuant to Point 8(2), where that time limit is exceeded, the Commission informs the complainant in writing upon his request. Almost 50 investigations on Point 8 issues have been made, one-third of which were concluded with a formal finding of maladministration, including one draft recommendation and two special reports. ²⁵ The empirical application of the above provision has given rise to questions concerning (i) the one-year rule; (ii) acceptable time excesses; (iii) the notification of the complainant; and (iv) the need for his prior request. Each of those aspects will next be considered in turn.

As to the one-year principle, it is important to emphasize that the temporal point of departure is not the date on which the correspondence was dispatched to or received by the Commission but the date on which that correspondence was officially classified as an Article 258 TFEU complaint in the relevant registry of the Commission. For the purposes of Point 8(1) the clock will tick until the date on which the Commission will either close the file or issue a formal notice. Thus, administrative delays following the issue of such a notice may not be assessed under that provision. ²⁶ Merely abiding by the one-year rule does not suffice to satisfy the Commission's commitment for timely treatment of complaints. In addition, the institution needs to prove that it had kept the complainant informed about the development of the file and it had not held up the progress of the inquiry.

With respect to the acceptable exceptions from the one-year norm, the Ombudsman has noted that ‘the question whether the Commission's delay in the handling of an infringement complaint is justified must be answered with reference to a general rule of reasonableness, which is a constituent element of the right to good administration as a fundamental citizens’ right’. ²⁷ The European Commission is expected to provide reasonable, adequate and specific explanations for the passage of the prescribed time limit. General references to excessive workload, pre-planned timetables for review of infringement complaints, incomplete information from the complainant, political sensitivities and future EU legislative developments will be rejected. Factors which will be considered in determining the justified character of the delay include the size and importance of the file; the factual, legal and technical complexity of the issues involved; the frequency, length and relevance of correspondence and exchange of information between the Commission, the complainant(s) and the member state(s) concerned; the volume of related complaints and the concomitant pressure for prioritization; the onus of translating the requisite documentation; the need to take a uniform approach on the questions raised and solve them simultaneously in all the member states; the necessity and duration of awaiting the outcome of pending judicial proceedings and legislative processes at EU and national level. The Ombudsman's verdict is normally based on a combination of the above considerations rather than on any one of them individually. The justificatory value of the Commission's arguments is inversely proportional to the length of the delay. What really matters is not so much the overall duration of the Commission's investigation but rather the timely completion of its constituent stages.

As regards the notification of the complainant, there are two particular issues which merit attention. On the one hand, the Commission is expected to contact the complainant save in cases where the delay is attributable to the latter's actions near the expiry of the time limit. On the other hand, neither the Communications nor the explanatory notes to the complaint forms published by the Commission define the kind of information expected to be communicated. The European Ombudsman has consistently held that the Commission ought not only to merely inform the complainant of the passage of the one-year deadline but also to state and substantiate the reasons justifying the delay. In own-initiative inquiry 303/97/PD the Ombudsman concluded his decision with no finding of maladministration on the grounds, inter alia, that the Commission had committed itself to respecting the one-year principle ‘except in special cases, the reasons for which must be stated’. That commitment was put to the test in case 1561/2000/PB, where the Commission had contacted the complainant 17 months after the registration of the complaint, i.e. well in excess of the one-year time limit. In the course of the Ombudsman's investigation the Commission provided adequate reasons for the delay; it failed, however, to explain why it had not communicated those reasons to the complainant in time. A critical remark was therefore made to the effect that ‘[t]he Commission should … always inform the complainant if, and why, the one-year time limit for reaching a decision cannot be complied with’. ²⁸ Along the same lines, in special report 289/2005/(WP)GG it was made clear that ‘in order to be meaningful, the information to be given to a complainant … must at least explain the reasons as to why the handling of the complaint will take more than one year’.

The proactive or reactive character of the commitment to notify the complainant has been another contentious issue, which has produced noticeable interinstitutional friction between the Ombudsman and the Commission. The root of the problem is to be found in the linguistic discrepancies between the various versions of the 2002 Communication. More precisely, the majority of the versions, including the French, in which the text was originally drafted, made the Commission's undertaking to inform the complainant dependent upon his prior request, while the English and Swedish versions did not introduce any such requirement. The Commission gave precedence to the French version, construed the relevant provision grammatically and concluded that the notification of the complainant presupposed his request to that effect. By way of contrast, the European Ombudsman, having interpreted the 2002 Communication in a contextual and purposive manner, sought to preserve the effet utile of Point 8(2) and took the view that the complainant should be informed proactively on the Commission's own initiative. Within that context the Ombudsman noted that the Commission itself had accepted his interpretation on a number of cases and invited the institution to bring all the language versions of Point 8 in line with the English one. In response, the Commission did exactly the opposite. Following the adoption of the 2012 Communication in April 2012, all linguistic versions of the above provision reflect the French text and the notification commitment is now universally cast in reactive terms. It is recalled, however, that, while the European Commission is in principle free to amend its Communications, the Ombudsman remains competent to assess the revised texts for compliance with the dictates of good administration.

One final point needs to be made before we conclude the present section of our analysis. It is recalled that Point 8 covers the period up to the closure of the case or the dispatch of the letter of formal notice. Neither the Communications nor the explanatory notes to the complaint forms released by the Commission specify any deadline for the investigation of grievances or the information to be provided to the complainants following the issuance of such a letter. That finding should not, however, lead to the supposition that the Commission's duty to act without undue delay and inform the complainant of any setbacks does not apply to the remainder of the pre-litigation phase. The Ombudsman has consistently utilized Article 41(1) of the Charter of Fundamental Rights of the European Union on the principle of good administration with a view to introducing in the post-formal notice phase the sorts of commitment that Point 8 stipulates for the pre-formal notice period. ²⁹ The most vociferous confession of that strategy can be found in Decision 3369/2004/JMA. The complainant's allegation concerned the length of time taken by the Commission to send a reasoned opinion to the Spanish authorities, following the issuance of a letter of formal notice. The Ombudsman, after citing Article 41(1) of the Charter, went on to stress that ‘the case law [of the Community courts concerning the discretion the Commission enjoys in handling infringement cases] does not exclude the application of the principles of good administration to relations between the Commission and complainants in the period following the sending of a letter of formal notice. The Ombudsman, therefore, considers that the Commission should respect the principles of good administration in relations with the complainant in the period following the sending of a letter of formal notice.’ ³⁰

Pre-closure letter

Point 10 of the Annex to the 2012 Communication concerns the so-called pre-closure letter, which is considered by the Ombudsman himself as the most important guarantee in the handling of Article 258 TFEU complaints. ³¹ Save in exceptional circumstances, the Commission is expected to notify the complainant of its decision to discontinue its investigation in a letter setting out the grounds and inviting him to submit any comments within four weeks. Where a number of complaints raise the same grievance, individual letters may be replaced by a publication in the Official Journal of the European Union and on the European Union's Europa server. The case will be closed and the complainant will be accordingly informed in writing if: (i) he does not reply to the pre-closure letter; or (ii) the communication with him is impossible for reasons for which he is responsible; or (iii) his observations fail to persuade the Commission to reconsider its position. By way of contrast, the Commission's investigation will carry on if the complainant produces information or evidence that justifies its continuation. A meticulous look into the Ombudsman's decisions reveals a substantial concentration of discontent with the Commission's implementation of its commitments under Point 10. Approximately 150 such cases have been investigated, one-fifth of which led to a formal finding of maladministration, including eight draft recommendations and one special report. ³² That extensive body of decisions raises far too numerous and varied issues to list here exhaustively. We shall therefore select a few which are of particular importance and relevance for the purposes of the present analysis.

A very interesting finding is that the European Ombudsman has utilized Point 10 to strengthen further the foundations of his authority to review the Commission's assessment on the merits of infringement complaints. From the early years of his operation the Ombudsman has treated his power to evaluate the validity and overall quality of the Commission's substantive conclusions on Article 258 TFEU grievances as either a genetically ingrained attribute of his mission necessitating no particular justification or a forceful mandate stemming from the combined application of a variety of texts and concepts, including the principles of good administration, previous decisions on own-initiative inquiries, TFEU provisions, the Charter of Fundamental Rights of the European Union, the European Code of Good Administrative Behaviour, the Commission's Code of Good Administrative Behaviour, and the case law of the CJEU. To that eclectic collection, the Ombudsman has added Point 10 by construing it in such an expansive manner as to infer therefrom his reviewing authority, despite the complete absence of any textual anchoring to that effect. Case 2711/2009/PB is illustrative in that regard. The pre-closure letter contained relatively sparse information on the Commission's assessment of the factual and legal questions raised by the infringement complaint. The Ombudsman recalled that Point 10 of the 2002 [now 2012] Communication guaranteed ‘the complainant the possibility to submit comments in response to “grounds” communicated to him/her by the Commission. In order to give the complainant a meaningful opportunity to formulate comments, such grounds must be sufficiently clear and reasoned’. He then moved on to examine the validity of the Commission's argumentation on the merits of the case and eventually found that its decision to close the investigation ‘appeare[d] to have been based on valid grounds’.

The Ombudsman's claim for authority to review the Commission's substantive findings has not always gone uncontested. In a number of complaints the Commission challenged the Ombudsman's power to examine its assessment of the factual and legal setting of the infringement case on the grounds that such an evaluation is a matter that falls entirely outside the notion of maladministration and could only be reviewed by the CJEU. Decision 3307/2006/(PB)JMA is instructive of the Ombudsman's reaction to such suggestions. After rehearsing the role and duties of the Commission under Article 258 TFEU, the Ombudsman qualified its wide margin of discretion with the caveat that the use of such a power cannot lead to arbitrariness. Public authorities were expected to explain the reasons why a particular course of action had been chosen and to exercise their margin of appreciation within the legal limits prescribed by the Union courts, including avoidance of discrimination, compliance with the principles of proportionality and legitimate expectations, and respect for human rights and fundamental freedoms. It followed that the Ombudsman, when investigating infringement grievances, would seek to ascertain whether the Commission had explained adequately the reasons for choosing a particular course of action while respecting the limits of its legal authority. That compass setting remains valid to this day.

The exact benchmark against which the validity of the Commission's substantive reasoning will be assessed is another matter worthy of emphasis. While some variations may be detected, the European Ombudsman's prevailing standard of review appears to involve a challenging combination of diligence, adequacy of reasoning and reasonableness. That colourful blend manifests itself clearly in case 2409/2010/RT, where the Ombudsman stated that the scope of his mandate in relation to Article 258 TFEU complaints ‘is limited to examining whether the Commission acted with diligence in relation to the infringement complaint submitted to it. In this respect, the Ombudsman's review tries to ascertain whether the Commission: a) complied with the rules and procedures established in the 2002 [now 2012] Communication … ; and b) provided an adequate statement of reasons when responding to infringement complaints submitted to it.’ After scrutinizing the Commission's argumentation, the Ombudsman concluded that ‘[i]t was … reasonable for the Commission to refrain from pursuing the UK for an infringement of EU law’. It seems that diligence is assessed with reference to compliance with the rules and procedures of the 2012 Communication and to the adequacy of the Commission's substantive reasoning. The Commission's thesis must also be reasonable. For the purposes of the Ombudsman's investigations, reasonableness is taken to mean bona fide examination of the complainant's submissions as well as impartial and proper balancing of all relevant considerations. Naturally, the CJEU remains the ultimate arbiter of EU law.

It is an important to note that the intensity of the Ombudsman's review varies wildly without any apparent reason. On the one hand, there are instances where the Ombudsman consciously abstains from second guessing the Commission's conclusions, acknowledging its well-established latitude of appreciation under Article 258 TFEU. On the other hand, there are occasions when the Ombudsman appears to be on the verge of substituting his own judgement for that of the Commission. That contradiction can be briefly demonstrated by comparing two decisions. In case 1585/2003/GG, the complainant alleged that the Commission had wrongly exonerated the German authorities of the accusation that they had mistakenly designated a specific area as a site of Community importance under the Habitas Directive 92/43/EEC. In a laconic paragraph the Ombudsman summarily asserted, without providing much of a supporting argument, that the Commission's stance was reasonable and the complainant's allegation had remained unsubstantiated. By way of contrast, in case 1528/2006/(GG)(WP)VL, the complainant challenged the Commission's thesis that Germany had not infringed its obligations under Directive 75/439/EEC on the disposal of waste oils by exempting from tax the waste oil used for combustion. In the course of an in-depth investigation lasting approximately four years, the Ombudsman prompted the Commission through a draft recommendation to provide full explanation of its assessment of the factual and legal aspects of the case and eventually found the reasoning unconvincing. In the closing part of his decision the Ombudsman sharply recalled that ‘complainants have the right to be informed of the reasons that lead the Commission to reject a complaint and to close an infringement procedure. Those reasons must not only be correct but they must also be clear and unequivocal’. The differing degrees of rigour of the Ombudsman's review in the above environmental cases are marked and evident.

It would be mistaken to think that the Ombudsman's power to examine the Commission's substantive thesis on the merits of the infringement case is confined to the stage prior to the issuance of a formal notice. While the overwhelming majority of complaints launched with the Ombudsman concern the Commission's refusal to issue a letter of formal notice to the recalcitrant member state, the fact remains that the Ombudsman's reviewing authority covers the full length of the pre-litigation phase of the non-compliance procedure starting with informal negotiations at the initial pre-contentious stage, followed by a letter of formal notice and subsequently a reasoned opinion and finally reaching the ultimate stage of the referral of the matter to the CJEU. Complaint 3391/2006/FOR is a case in point. The complainant had brought to the Commission's attention the manner in which the Scottish Parliament had awarded design and construction contracts for the new Scottish Parliament building in Edinburgh. The allegation was that the United Kingdom had infringed the pertinent EC public procurement rules. The Commission initially sided with the complainant and issued a formal notice. However, further to the explanations given by the British authorities, the Commission considered that it would not be appropriate to proceed with a reasoned opinion and closed the case. The Ombudsman was called upon to review the Commission's assessment of the British explanations. He firstly recalled the wide latitude the Commission enjoys in pursuing infringement proceedings and eventually bringing the matter before the Union judiciary. He then moved on to stress that member states may at any time during the pre-litigation stage provide details of the measures they would take to ensure compliance. After examination of the arguments put forward by the opposing parties, the Ombudsman concluded that the Commission's grounds for its decision not to proceed to a reasoned opinion were ‘clear and reasonable’.

Conclusion

The preceding analysis has yielded a wealth of empirical findings which need no recapitulation. There are two additional points not touched on thus far which should be briefly mentioned here by way of conclusion.

On the one hand, environmental issues appear to have considerably attracted the Ombudsman's attention in its dealing with Article 258 TFEU complaints. There are both quantitative and qualitative arguments to buttress that proposition. From a quantitative point of view, almost one-third of infringement complaints reaching the European Ombudsman concern the manner in which the Commission conducted its investigations into alleged violations of EU environmental legislation by national authorities. From a qualitative point of view, environmental cases not only top the list of the Ombudsman's most high-profile decisions in relation to Article 258 TFEU, such as Newbury Bypass, M40 motorway, Parga and Caretta Caretta, ³³ but also mobilized the Ombudsman's elite remedial apparatus through the initiation of three draft recommendations and one special report. ³⁴ Those findings underline the Ombudsman's willingness to treat forcefully grievances in an area of law where recourse to European and national courts is limited due to considerable standing restraints. They emphatically demonstrate, moreover, the versatility of the Ombudsman's role in the EU institutional setting as his extra-judicial mechanism can be effectively employed by environmental NGOs and related lobbying groups to promote their interests in the European political establishment. ³⁵

On the other hand, it must be appreciated that Article 258 TFEU complaints constitute a thematic field in which the European Ombudsman has successfully transcended the myopic confines of legality and creatively utilized the concept of good administration to infuse into EU bureaucratic thinking ideas for a more participatory and citizen-friendly administrative culture. The consequential implications of that statement could be viewed from three distinct perspectives. In practical terms, our analysis brought to the fore a set of soft-law, non-justiciable commitments for the European Commission, which may be relied upon before the Ombudsman but not the EU judges. In conceptual terms, our inquiry illustrates the transformative impact that good administration can have on the prevailing EU administrative ethos and praxis when employed in a determined, consistent and imaginative fashion over long stretches of time. In institutional terms, it is exactly in those areas where the Ombudsman's supervisory authority exceeds the limits of conventional judicial review that his relevance in the protection of citizens' interests becomes all the more apparent and his institutional worth in the Union space is properly affirmed.