Afgørelse i sag 1890/2008/(CHM)(BU)MHZ - Undladelse af at underrette klageren om en afgørelse om afslutning af en overtrædelsessag

European Ombudsman Afgørelse i sag 1890/2008/(CHM)(BU)MHZ - Undladelse af at underrette klageren om en afgørelse om afslutning af en overtrædelsessag Afgørelse Sag 1890/2008/(CHM)(BU)MHZ - Indledt den 03/09/2008 - Afgørelse af 10/09/2009 Tre virksomheder indbragte en overtrædelsessag for Europa-Kommissionen i forbindelse med Portugals påståede overtrædelse af fællesskabslovgivningen. Overtrædelsen vedrørte den påståede retsstridige annullering to omfattende turismeprojekter. Den 24. januar 2006 sendte Kommissionen et brev med forudgående meddelelse om, at den agtede at afslutte sagen og give virksomhederne mulighed for inden for en måned at forelægge nye oplysninger, der kunne påvise, at der var tale om en overtrædelse. Da Kommissionen ikke modtog sådanne oplysninger, besluttede den at afslutte sagen den 4. april 2006. I deres klage til Ombudsmanden hævdede virksomhederne bl.a., at Kommissionen ikke havde handlet med behørig omhu, da den fremsendte brevet forud for afslutningen af sagen, og at den heller ikke havde sørget for behørig meddelelse om dens afgørelse om at afslutte sagen. Ombudsmanden fandt ikke, at Kommissionen kunne holdes ansvarlig for, at det forudgående brev ikke var nået rettidigt frem til virksomhederne, men først væsentligt senere, da virksomhederne havde anmodet om oplysninger. Med hensyn til afgørelsen om afslutningen af sagen henviste Kommissionen til sin egen procedurehåndbog (SEK(2005)254/4) (i det følgende benævnt "håndbogen"), hvori det hedder, at hvis en klager ikke svarer eller hvis en klagers bemærkninger ikke bevirker, at afdelingen genovervejer sin holdning, fremsættes der et forslag om at afslutte den pågældende overtrædelsessag. I så tilfælde underrettes klageren om Kommissionens afgørelse, hvis det er relevant. I nærværende sag fandt Kommissionen det imidlertid ikke hensigtsmæssigt at sende afgørelsen om afslutning af sagen til virksomhederne. Ombudsmanden mindede om, at Kommissionen i punkt 9 og 10 i bilaget til dens meddelelse til Europa-Parlamentet og Den Europæiske Ombudsmand om forbindelserne med klagere i sager om overtrædelse af fællesskabslovgivningen (KOM/2002/0141 endelig udg.) (i det følgende benævnt "meddelelsen") har forpligtet sig til at underrette klagere om dens endelige afgørelser om afslutning af overtrædelsessager. Den interne håndbog, som Kommissionen henviste til i sin udtalelse, kan ikke træde i stedet for den meddelelse, hvori 1

Kommissionens forpligtelse er anført. Ombudsmanden konkluderede derfor, at Kommissionens undladelse af på daværende tidspunkt at underrette virksomhederne om afgørelsen truffet den 4. april 2006 udgjorde et tilfælde af fejl eller forsømmelser. Ombudsmanden fremsatte følgelig en kritisk bemærkning med hensyn til dette. Ombudsmanden fremsatte desuden tre yderligere bemærkninger til de proceduremæssige aspekter ved Kommissionens behandling af overtrædelsessager for dermed at sikre, at behandlingen af sådanne sager forbedres i fremtiden. THE BACKGROUND TO THE COMPLAINT 1. Three companies from Luxembourg (the complainants in the present case, which are collectively referred to as 'Transes') and one company from Ireland [1] wished to implement two large-scale holiday village projects in Portugal. 2. The project in Castelo de Vide, in which the Irish company was involved, was first approved by all of the responsible Portuguese authorities. However, in 1999, the central administration and the municipality cancelled the project. 3. The project of the holiday village 'Aldeia do Almegue', in the municipality of Sertã, was approved by all of the responsible Portuguese planning authorities. However, between 1999 and 2003, the central government refused to ratify the urbanisation plan developed for the project. The Luxembourg companies were involved in this project. 4. According to Transes, the cancellations of the above two projects resulted in the companies being removed from the Portuguese market. Therefore, at the end of September 2003, Transes brought an action against the Portuguese Government and the municipalities of Castelo de Vide and Sertã before a Portuguese court (the Administrative Court in Coimbra). In the action, Transes claimed financial compensation for damages resulting from the cancellation of the two projects. In Transes' opinion, the court proceedings appeared to have been delayed. 5. On 1 September 2004, Transes submitted a petition to the European Parliament ('the Petition') and a complaint to the European Commission ('the Infringement Complaint') concerning Portugal's failure to comply with Community law (mainly with Articles 10, 12, 43 and 56 of the EC Treaty). On 29 October 2004, Commission officials met with a Transes representative, at his request, to clarify the nature of the Infringement Complaint. On 20 December 2004, Transes sent to the Commission an addendum to the Infringement Complaint. The Petition and the Infringement Complaint were identical in content, contained 45 pages and were accompanied by three volumes of documents. They referred to 'practices' which Transes considered incompatible with Community law. 6. As regards such 'practices', Transes referred to points 1 and 2 of the Annex to the Commission's communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law 2

(COM/2002/0141 final) ('the Communication'). These points stipulate that: " «Complaint» shall mean any written approach made to the Commission pointing to measures or practices contrary to Community law " and that " Anyone may file a complaint with the Commission free of charge against a Member State about any measure (law, regulation or administrative action) or practice by a Member State which they consider incompatible with a provision or principle of Community law. " (emphasis added) 7. On 29 September 2004, the European Parliament acknowledged receipt of the Petition, stating that it had been registered under reference number 771/2001. By letter of 13 April 2005, Parliament's Committee on Petitions informed Transes that the Petition was admissible, and that it had requested the Commission to conduct a preliminary investigation. 8. By letter of 23 December 2004, the Commission informed Transes that its Infringement Complaint had been registered under reference number 2004/5153, SG(2004) A/9738/3, and provided an explanation of the procedure for handling such complaints. On 16 and 23 March and 15 November 2005, Transes sent additional information to the Commission. 9. On 5 May 2006, the Committee on Petitions informed Transes that, based on a reasoned opinion received from the Commission, it had decided to conclude its consideration of the Petition and close the file. Attached to the letter was a Notice to Members dated, 3 February 2006, summarising the Petition and the Commission's position. According to the Notice to Members, " the Commission considers that the operations conducted by the companies... essentially pertain to the Treaty freedom of capital movements, one of the grounds advanced by the petitioner. It has, therefore, concentrated on this freedom in its analysis below, but it might be noted that a similar reasoning would apply to other freedoms. " Furthermore, Article 56 of the EC Treaty prohibits all restrictions on capital movements, and Article 58 provides for specific exceptions to this freedom. According to the case law of the European Court of Justice, restrictions to the freedoms can be justified by imperative requirements in the general interest, which include town and country planning [2]. Portugal, as all other Member States, has national legislation governing town and country planning. The Petition contained no allegation that the basic Portuguese planning laws and regulations involved were in breach of EC Treaty requirements. Therefore, the Portuguese courts were the right forum to deal with the alleged breaches of national law, as well as with alleged breaches of the agreements between Transes and the municipalities concerned. 10. In a letter dated 25 October 2007 and addressed to the Commission's Secretariat General, Transes noted that it had not received any information from the Commission about the progress in handling the Infringement Complaint, and, therefore, requested such information. Transes attached its observations on the reasoned opinion which the Commission sent on 3 February 2006 to the Committee on Petitions. In those observations, Transes mainly pointed to the fact that the Infringement Complaint was about 'practices' incompatible with Community law, which is why the Commission's reasoned opinion is irrelevant to the core of the Infringement Complaint. Transes went on to state that the reduction of the case to the freedom of capital movements (Article 56 of the EC Treaty) is much less relevant than a possible narrowing to the freedom of establishment (Article 43 of 3

the EC Treaty). Moreover, such reduction does not take account of the true economic activities of Transes in Portugal, namely, the provision of international tourist services through infrastructure, which also has a real estate component. Furthermore, the reasoned opinion does not address the alleged irregularities in the proceedings before the Portuguese courts in the context of the general obligations resulting from Articles 10 and 12 of the EC Treaty. 11. By letter of 12 November 2007 to the Committee on Petitions, Transes contested the Commission's reasoned opinion of 3 February 2006, and requested the Committee on Petitions to re-open the Petition. Attached to the letter was Transes' letter of 25 October 2007 to the Commission, including Transes' observations on the Commission's reasoned opinion. 12. On 28 November 2007, the Committee on Petitions informed Transes that it had decided to re-examine the Petition. It, therefore, forwarded its request to the Commission, together with annexes and the attached CD containing the overview " Court Case Portugal.PDF ". 13. The Commission did not reply to Transes' letter of 25 October 2007. Consequently, on 6 December 2007, Transes sent an e-mail and, on 12 December 2007, a detailed letter to all the Commissioners [3]. In the latter correspondence, Transes (i) complained about the Commission's reasoned opinion of 3 February 2006 to the Committee on Petitions; (ii) complained that the Commission failed to send Transes any information about the state of progress in handling the Infringement Complaint and also failed to answer Transes' recent letter of 25 October 2007; and (iii) outlined that it had published the case on the Internet [4]. 14. By letter dated 6 December 2007, sent again by fax on 13 and 17 December 2007, the Directorate-General for the Internal Market and Services (DG MARKT) answered Transes' letter of 25 October 2007. DG MARKT explained that it had completed the examination of the Infringement Complaint and, on 24 January 2006, sent a letter to Transes' representative ('the pre-closure letter') informing him of its intention to propose for the Commission to close the case. In doing so, it gave Transes the opportunity to provide, within one month, new information proving that there had, in fact, been an infringement. Given that the Commission did not receive such information, on 4 April 2006, it decided to close the case. According to the letter of 6 December 2007, the pre-closure letter was attached to it. 15. The pre-closure letter was addressed to " M. [X]... route [Y]... Heinerschei Luxembourg ". DG MARKT stated therein that "[o] n the basis of the information you supplied and of further information that we have been able to gather, we are not planning to propose that the Commission initiate infringement proceedings for failure to comply with Community law by Portugal. " According to the pre-closure letter, the decision to close the case was based on the fact that, despite the exhaustive information which Transes provided concerning the procedures and methods for granting authorisation for urban projects in Portugal, and the difficulties Transes faced in Portugal in various urban projects, the Commission did not have the competence to deal with the case, since it raised issues concerning the misapplication of Portuguese law by the Portuguese authorities. Furthermore, the Infringement Complaint alleged material discrimination in administrative and legal Portuguese practices, without 4

reference to the relevant national law which could have infringed Community law. Therefore, no violation of the EC Treaty by the Portuguese law could be proved. Moreover, as regards the alleged discrimination against Transes, none of the information provided to the Commission permitted it to establish the existence of such discrimination. The Commission referred to Article 43 of the EC Treaty and the case-law of the European Court of Justice [5], according to which nationals of Member States seeking to establish themselves in another Member State, even if the establishment is only secondary, must receive the same treatment as the nationals of the receiving Member State, and any discrimination, even of a limited nature, is prohibited. There would be discrimination, if companies in similar situations as Transes had been treated differently. However, the fact that some Portuguese projects had been approved in the same area could not constitute sufficient evidence of discrimination because those projects were different from the Transes' projects. The Commission, therefore, recommended that Transes pursue its action before the national courts, which have the primary responsibility for applying Community law. 16. In its letter of 6 December 2007, the Commission included essentially the same information as it did in the pre-closure letter of 24 January 2006. It added that Transes' letter of 25 October 2007 contained no elements which could modify the conclusion, contained in the Commission's reasoned opinion of 3 February 2006 to Parliament's Committee on Petitions, that the Portuguese courts were the right forum to deal with the alleged breaches of national law. It added that if Transes considers that Portugal violated its right to a fair trial, it has the possibility to submit an application to the European Court of Human Rights. 17. By letter of 17 December 2007, Transes informed the Commission that it had only received the pre-closure letter on that day and had never seen it before.. Transes stated that it was understandable that the pre-closure letter had not reached it because that letter was sent to an incomplete address " M. [X]... route [Y]... Heinerschei Luxembourg ". The correct address should have been "[Mr X] Transes Holding SA... route [Y]... Heinerscheid Luxembourg ". This is the office address of Transes and not its representative's personal address. Transes added that it is good and general practice for a public institution, when sending a notification giving a possibility to contest a decision within a certain time limit, to make sure that the recipient receives that decision on time, normally by using registered post. Transes promised to study the pre-closure letter and to send comments on it to the Commission. 18. By letter dated 3 January 2008, sent also by fax on 7 January 2008, DG MARKT replied to Transes' e-mail of 6 December 2007, its letter of 12 December 2007 and another e-mail of 13 December 2007. The reply basically reiterated certain explanations contained in the Commission's earlier letters. 19. On 8 January 2008, Transes sent to all of the Commissioners and the Secretariat-General a detailed " contest " against the Commission's two reasoned opinions concerning the Infringement Complaint, that is, (i) the opinion contained in the pre-closure letter of 24 January 2006 to Transes; and (ii) the opinion contained in the Commission's letter of 3 February 2006 to Parliament's Committee on Petitions. The " contest " reiterated the request for the Commission to open an infringement procedure against Portugal. Transes also sent a copy of the " contest " to the Committee on Petitions. 5

20. In its reply of 21 February 2008, DG MARKT confirmed that no violation of the EC Treaty by the Portuguese law could be proved. It also stated that the Commission has no general powers to intervene in individual cases involving the violation of rights in the area of general administration of justice, inefficiency of the judicial system and related issues, which do not have any links to Community law. As regards the alleged 'practices' violating Community law, the Commission cited the case-law of the European Court of Justice, according to which "...the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice of the national administration and/or courts, for which the Member State concerned is answerable. It is necessary to add in this regard that, although a State's action consisting in an administrative practice contrary to the requirements of Community law can amount to a failure to fulfil obligations for the purposes of Article 226 EC, that administrative practice must be, to some degree, of a consistent and general nature. " [6] In addition, " it is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption [7] " (emphasis added by the Commission). In spite of the exhaustive Infringement Complaint and the attached documentation, there is no evidence that the Transes' projects in Portugal were cancelled due to the companies' nationality. The Commission repeated that the fact that some Portuguese projects have been approved in the same area cannot constitute sufficient evidence of discrimination because the projects were different from those of Transes. Again, the legality of any decision of authorisation or refusal is a matter to be judged by the Portuguese courts. 21. By letter of 27 February 2008, Transes expressed its disagreement, in which it also questioned the Commission's statement that the case had no link with Community law. Transes also requested details of the " gathered information ", mentioned in the Commission's pre-closure letter [8], along with all the evaluation reports prepared by the Commission regarding the Infringement Complaint. It referred to the case-law invoked by the Commission and stated that, given the proven unequal treatment, the systematic character of the practices in question over a long period of time (1999 - present) and the involvement of at least two different projects and four different companies based in two Member States, the practices complained about were certainly consistent and general to some degree. 22. By letter of 14 March 2008, the Commission confirmed that the case was closed on 4 April 2006 and that no information provided in Transes' recent letters enabled it to open an infringement procedure against Portugal. The Commission did not address Transes' requests concerning the " gathered information " and the evaluation reports. 23. Therefore, Transes reiterated its requests for the above information and documents on 19 March 2008. 24. In its reply of 25 April 2008, the Commission stated that its decision to close the case was based on the information supplied by Transes "... on which we also undertook supplementary research on the Internet. To be clear, the Commission services made their assessment on the basis of the complaint and other documents supplied by you. There were no other Commission or third party documents involved. " The Commission also attached a copy of its official infringement 6

form concerning this case. According to the section of the form entitled ANALYSE JURIDIQUE : "...il ressort que les problèmes rencontrés par le plaignant résultent d'une violation de la législation portugaise par les autorités portugaises, sans que la législation portugaise en elle-même n'apparaisse comme étant en violation des articles 43 et 49 CE. Par ailleurs, le plaignant n'a pas fourni d'éléments permettant de démontrer l'existence d'un traitement discriminatoire à son encontre. " 25. On 5 May 2008, the Commission transmitted its second reasoned opinion concerning the Petition to the Committee on Petitions, following the latter's decision of 28 November 2007 to re-open the Petition [9]. In this reasoned opinion, the Commission explained its reasons for classifying the Infringement Complaint on the basis of Article 43 of the EC Treaty, arriving at the same conclusions as it did in its first reasoned opinion to the Committee on Petitions of 3 February 2006 [10]. 26. By letter of 7 May 2008, addressed to the College of Commissioners through the Secretariat-General, Transes observed that the one-page infringement form which the Commission provided only included a one-sentence description of the Infringement Complaint, a one-sentence legal analysis and a one-sentence conclusion. Transes added that, on the basis of the Commission's above reply of 25 April 2008, it can only conclude that the Commission never made any proper legal evaluation of the Infringement Complaint because no legal evaluation report exists. Transes concluded that the decision to close the case was a political one. Developments after the submission of the complaint to the Ombudsman 27. The Commission replied to Transes' letter of 7 May 2008 on 20 June 2008 [11]. It explained that the purpose of the official infringement form was not to provide a detailed analysis of the subject of the Infringement Complaint but to set out the legal basis for the action proposed in response to it. For further explanations of its decision, the Commission referred to its letters of 24 January 2006 (that is, the pre-closure letter), 6 December 2007, 3 January 2008, 21 February 2008, 14 March 2008 and 25 April 2008. 28. In its observations, Transes pointed to its letter of 8 October 2008, by which it informed the Commission that the Committee on Petitions had decided to keep the Petition open, and requested the Commission to re-examine the Petition and the Infringement Complaint and to collect information from the Portuguese authorities. Transes also pointed to the Commission's reply to the above letter of 10 February 2009, in which the Commission informed Transes that it would start collecting information and evidence from the Portuguese authorities. 29. Transes also referred to its letter of 3 November 2008 to the President of the Commission, in which it summarised (a) the facts which gave rise to the Infringement Complaint, and (b) Transes' objections to the Commission's handling of the Infringement Complaint, and asked him to intervene [12]. THE SUBJECT MATTER OF THE INQUIRY 7

30. On 13 June 2008, Transes submitted its complaint to the Ombudsman. 31. On 3 September 2008, the Ombudsman opened an inquiry into the complainant's following allegations: (1) The Commission's opinions of 24 January 2006 to the companies and of 3 February 2006 to the Committee on Petitions of the European Parliament refer respectively to Articles 43 and 56 of the EC Treaty, although they relate to the same Infringement Complaint. (2) The Commission did not act with due care when sending its letter of 24 January 2006 to him, and also failed to ensure a proper delivery of its decision of 4 April 2006 closing the case. (3) The Commission failed to answer his letters of 12 December 2007 and 7 May 2008. 32. On the basis of Article 195 of the EC Treaty [13], the Ombudsman decided that there were insufficient grounds for him to inquire into the following allegation and related claim [14] : In violation of its communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, the Commission failed to consider his complaint as being about 'practices' infringing Community law. The Commission should ensure that the companies' rights under the Community law are respected. 33. The complaint to the Ombudsman also contained a summary of the " contest ", which Transes addressed to the Commission on 8 January 2008 concerning its two reasoned opinions on the Infringement Complaint: the one contained in the pre-closure letter of 24 January 2006 to Transes and the one addressed on 3 February 2006 to the Committee on Petitions. In the summary, Transes stated, among other things, that the " contest " demonstrated discriminatory practices " in three different sub-cases " [15], whereby the last sub-case - the " PITER program of the Fundo de Turismo " [16] was even not mentioned by the 'examiners' of the Infringement Complaint. Similarly, in its observations on the Commission's opinion in the present inquiry, Transes stated that the Infringement Complaint included " four distinct sub-cases ": the Almegue case, the Castelo de Vide case, the Fundo de Turismo case, and the Portuguese courts case. However, the Commission's opinion dealt only with the Almegue and the Castelo de Vide case. Transes repeated that the Fundo de Turismo case concerned a financial incentive program (PITER) for Portugal, financed by the European Community, information about which is available from the Commission. As regards the Portuguese court case, four court proceedings had taken place since 2001. None of these ensured any legal security, proper legal procedure or protected Transes' rights. The courts, and in particular the administrative court in Coimbra, were systematically delaying the proceedings. 34. The Ombudsman notes that, in its reply to the " contest " dated 21 February 2008, the Commission did, in fact, address the Fundo de Turismo case. The Commission stated that its 8

reasoning contained in that letter also applied to the refusal of the Castelo de Vide project for the PITER program. Moreover, already in its reasoned opinion of 3 February 2006 to Parliament's Committee on Petitions, the Commission stated: " The associated issue raised of the failure of the project to be awarded special tourism aid..., again are factual allegations that only the Portuguese courts can examine. " The Commission also addressed Transes' concerns about the Portuguese courts in its letters of 6 December 2007, 3 January 2008 and 21 February 2008. Finally, the Ombudsman notes again that the Committee on Petitions has continued to examine the Petition. Moreover, it appears that the Commission has continued to investigate the Infringement Complaint and invited the Portuguese authorities to provide further evidence and information on 9 March 2009 [17]. Accordingly, the Ombudsman confines the present decision only to the issues which are within the scope of the present inquiry, that is, the issues dealt with in sections A. - C. below. 35. In its observations, Transes clarified certain issues and provided its corrections regarding some of the Commission's statements. For example, the individual who signed the Petition and the Infringement Complaint was not Transes' lawyer, but its former Director-General, who acted on Transes' behalf as its representative and coordinator. Also, Transes delivered the Infringement Complaint to the Commission through a physical person and not through the mail. Furthermore, the Commission never sent any acknowledgement of receipt regarding Transes' letters, faxes, e-mails and reports, as required by Article 14 of the European Code of Good Administrative Behaviour. Transes took the view that most of the Commission's answers did not address the issues and questions it had raised and that the overview of communication included in the Commission's opinion was incomplete and inaccurate. This was so in particular because important letters, which Transes sent to the Commission on 8 October 2008 and 3 November 2008 had not been mentioned. Finally, Transes pointed to the infringement form which the Commission annexed to its letter of 25 April 2008. According to that letter, the form was annexed to the decision of the College of the Commissioners of 4 April 2006 closing the case. Transes posed the following questions: (i) Why did the form mention, in the column " Origine plainte (2 dern.): ", two letters from the year 2008; and (ii) what was decision " SG(2005)13/10/2005 " of 13 October 2005, mentioned in the column entitled " Historique des decisions (6 dernières decisions): ", which was never communicated to Transes. 36. In relation to these various comments, in order not to delay his decision on the present complaint, the Ombudsman underlines that the present inquiry only concerns the three allegations dealt with in sections A. - C. below. If Transes wishes to complain about additional issues, it is free to submit a new complaint to the Ombudsman. However, in accordance with Article 2(4) of the Statute of the European Ombudsman [18], such a new complaint would have to be preceded by appropriate administrative approaches to the Commission. THE INQUIRY 37. On 18 December 2008, the Commission submitted its opinion in French. It supplied an English translation on 21 January 2009. Transes sent its observations on 17 March 2009. THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS A. Alleged divergent reasoning in the Commission's opinions of 24 January 2006 and 3 February 2006 9

Arguments presented to the Ombudsman 38. Transes alleged that the Commission's reasoned opinions contained in the pre-closure letter of 24 January 2006 to Transes and in the letter of 3 February 2006 to the Committee on Petitions refer respectively to Articles 43 and 56 of the EC Treaty, although they related to the same Infringement Complaint. 39. In its opinion on the present inquiry, the Commission acknowledged that Transes may have been surprised to receive two reasoned opinions from it that had different legal bases. However, the Commission rejected that there was any inconsistency in its position. It stressed that these two opinions, despite having different legal bases, were " complementary " and expressed the same position and conclusion, which were the following: - Transes did not establish any breach of Community law by the Portuguese legislation; - Transes did not provide any evidence of discriminatory practices in respect of itself. In accordance with the case-law of the European Court of Justice, the Commission may consider that a Member State's action consisting in an administrative practice contrary to the requirements of Community law amounts to a failure to fulfil obligations for the purposes of Article 226 of the EC Treaty only if that administrative practice is, to some degree, of a consistent and general nature [19]. Based on the information which Transes provided, the Commission could not establish any consistent or general discriminatory practice by the Portuguese authorities; and - The acts described by Transes fell within the jurisdiction of the Portuguese courts, which alone can judge whether there were any breaches of Portuguese law (such as the unjust withdrawal of a building permit). It was not for the Commission to ask the Portuguese authorities to express themselves on the handling of a local dispute. 40. The Commission further explained that it used the two different legal bases because it wished to give Transes an exhaustive reply that covered all the legal bases mentioned in the Infringement Complaint and in the Petition. In this regard, the Commission pointed out that the Infringement Complaint was based mainly on Article 43 of the EC Treaty (on the basis of the documents which Transes submitted and discussions held with the Transes representative at the meeting of 29 October 2004). On the other hand, the Petition mentioned several legal bases, namely, Articles 10, 12, 43, 56, 81, 82 and 87 of the EC Treaty. Therefore, when handling the Infringement Complaint, the Commission focused on possible breaches of Article 43 EC (freedom of establishment). In its reply to the Committee on Petitions, it focused on Article 56 of the EC Treaty (free movement of capital), noting that similar arguments applied to the other freedoms [20]. Accordingly, this applied to the arguments concerning Article 43, set out in detail in the Commission's pre-closure letter. Therefore, the Commission replied to Transes in accordance with the legal bases which Transes provided in its letters and during its discussions with the Commission. 41. The Commission went on to state that, on 12 November 2007, Transes sent the Committee on Petitions its request to re-open the Petition, to which Transes' observations on the Commission's reasoned opinion of 3 February 2006 to the Committee on Petitions were attached. In those observations, Transes expressed its disagreement with the reduction of 10

the case's scope to the free movement of capital (Article 56 of the EC Treaty) which was, in its view, much less relevant than a possible narrowing to the freedom of establishment (Article 43 of the EC Treaty). Therefore, on 5 May 2008, the Commission transmitted to the Committee on Petitions its second opinion, in which it explained its reasons for closing the Infringement Complaint on the basis of Article 43 of the EC Treaty. These reasons were identical to those already set out in the Commission's reasoned opinion of 3 February 2006, outlining that: (i) Portuguese legislation had not breached Community law; (ii) discriminatory practices were not proven; and (iii) the dispute fell under the jurisdiction of the Portuguese courts. 42. In its observations, Transes rejected the Commission's statements that its opinions were complementary and expressed the same position and conclusion. Transes mainly pointed out that the Commission's opinion to the Ombudsman contained additional justifications not mentioned in the two reasoned opinions of 2006, namely, the reference in sub-point 2 to the case-law, according to which an administrative practice amounts to a failure to fulfil obligations only if that practice is, to some degree, of a consistent and general nature. Moreover, the Commission incorrectly restricts the reasons for making a complaint by adding the word 'administrative' while, in accordance with its own Communication, anyone can file a complaint about any measure (law, regulation or administrative action) or any practice by a Member State. According to Transes, " complementary " would imply that each of the two opinions is necessarily and/or by definition incomplete; only together are they complete. However, the two different opinions, based on two different legal arguments, are not complementary, but different and independent. They are not complementary because: (i) they deal exactly with the same case and facts; (ii) the Articles of the EC Treaty invoked therein are not complementary either but have their own particular legal working and can be called upon individually; (iii) they contain the same recommendation to close the case; and (iv) petitions and infringement complaints are two distinct legal procedures, which are not complementary. Moreover, the two different opinions imply that the European Parliament and the College of Commissioners were not completely informed before taking their decisions. 43. Transes further rejected the statement, according to which the Commission focused on the legal bases which Transes provided in its letters and during its discussions with the Commission. According to Transes, the Petition and the Infringement Complaint were identical as regards their facts and legal bases. Moreover, there was only one discussion, which occurred during the meeting with the Commission on 29 October 2004. In that meeting, the Commission officials asked for an addendum highlighting the actions of the Portuguese State " as the mixture with actions of local authorities was complicated. " Therefore, in the addendum of 6 December 2004, Transes clearly stated (on page 4 of its summary): " Finally, this addendum is not replacing anything of what has been stated in the [Infringement Complaint]... It only clarifies and highlights the major infringement of article 43 of the EC treaty... " It is, therefore, clear that the legal bases of the Petition and of the Infringement Complaint are identical and were never changed. 44. Transes also rejected as factually incorrect the Commission's statement that it wished to give Transes an exhaustive reply that covered all the legal bases mentioned in the 11

Infringement complaint and in the Petition. According to Transes, in its reasoned opinion to the European Parliament, the Commission only dealt explicitly with Articles 12, 81, 82 and 87 of the EC Treaty. The Commission's statement in the reasoned opinion that " a similar reasoning would apply to other freedoms " cannot be taken seriously, and certainly not in relation to Article 43 of the EC Treaty which, in combination with Article 10 of the EC Treaty, is the proper legal basis. 45. As regards the Commission's second reasoned opinion to the Committee on Petitions of 5 May 2008, Transes observed that this document was unknown to it. However, this fact did not change anything regarding its position. Moreover, the document did not convince the European Parliament either, as it decided on 6 October 2008 to keep the Petition open and therefore asked the Commission again to take action. The Ombudsman's assessment 46. At the outset, the Ombudsman points to Transes' argument, summarised in paragraph 43 above, that the Infringement Complaint and the Petition were identical as regards their facts and legal bases and were not changed by the addendum to the Infringement Complaint dated 6 December 2004. Consequently, the Ombudsman does not agree with the Commission's argument, summarised in paragraph 40 above, that its choice of the different legal bases in the two reasoned opinions was influenced by Transes emphasising different legal bases in the Infringement Complaint and in the Petition. The Ombudsman, therefore, considers that the Commission made its own choice regarding its use of different legal bases. He will examine the Commission's choice, in light of the requirements of good administration, below. 47. In its pre-closure letter of 24 January 2006, the Commission addressed the issue of alleged discrimination in light of the freedom of establishment. It referred to Article 43 of the EC Treaty and the case-law of the European Court of Justice, according to which nationals of Member States seeking to establish themselves in another Member State, even if the establishment is only secondary, must receive the same treatment as the nationals of the receiving Member State. In contrast, according to its reasoned opinion to the Committee on Petitions of 3 February 2006, of which the Commission provided a copy, " the Commission considers that the operations conducted by the companies referred to essentially pertain to the Treaty freedom of capital movements, one of the grounds advanced by the petitioner. It has, therefore, concentrated on this freedom in its analysis below, but it might be noted that a similar reasoning would apply to other freedoms " (emphasis added). The Ombudsman considers that it would have been useful for the Commission to have expressly mentioned Article 43 of the EC Treaty, on which it based its reasoning in the pre-closure letter, also in this reasoned opinion to the Committee on Petitions. 48. Relatedly, the Ombudsman notes the statements in the Commission's opinion to the present inquiry, according to which the two reasoned opinions were complementary. In his view, the Commission could have made this intention clear much earlier, namely, in the two reasoned opinions. Their dates - 24 January and 3 February 2006 - indicate that they were drafted at almost the same time and that it would have been possible for the Commission to 12

make this clear already at that stage. 49. In this regard, in accordance with point 3 of the Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public ('the Commission's Code'), "[a] Commission decision should clearly state the reasons on which it is based and should be communicated to the persons and parties concerned. As a general rule, full justification for decisions should be given. " [21] Moreover, point 1 of the Commission's Code provides that "[t] he Commission shall be consistent in its administrative behaviour... " [22] The European Code of Good Administrative Behaviour [23] contains similar provisions in Articles 18 and 10 respectively. 50. More specifically, point 3 of the Commission's Code requires a full justification. The Ombudsman, therefore, takes the view that the Commission could have mentioned both Articles 43 and 56 of the EC Treaty in each of the reasoned opinions, if it considered that both Articles were applicable to the Infringement Complaint and to the Petition. However, it decided to deal with Article 43 of the EC Treaty in the pre-closure letter and with Article 56 of the EC Treaty in the reasoned opinion to the Committee on Petitions. 51. In such a case, the Commission could have taken account of its undertaking, also contained in point 3 of the Commission's Code, to inform the persons and parties concerned - in this case Transes and the Committee on Petitions - and provide them with the fullest possible information. Therefore, the Commission could, in pre-closure letter, have referred to the reasoning used in its reasoned opinion to the Committee on Petitions, and vice-versa. The Commission could also have attached a copy of the respective other document to each of them. However, it appears from the information and documents available on the complaint file that Transes was only informed of the reasoned opinion of 3 February 2006 by the letter dated 5 May 2006 sent from the Committee on Petitions. It also appears that the Committee on Petitions was only informed of the pre-closure letter dated of 24 January 2006 by the letter of 8 January 2008, with which Transes sent to it a copy of its " contest " against the two reasoned opinions. 52. Nevertheless, the Ombudsman considers that, in the course of the present inquiry, the Commission provided appropriate clarifications concerning the two reasoned opinions. Therefore, the Ombudsman finds that no further inquiries are justified into this aspect of the complaint. He will, nevertheless, make a further remark in this regard below. 53. The Ombudsman notes Transes' observation that the Commission's opinion on the present complaint contains an additional justification not mentioned in the two reasoned opinions of 2006. This consists of the reference to the case-law, according to which an administrative practice amounts to a failure to fulfil obligations only if that practice is, to some degree, of a consistent and general nature. In this regard, the Ombudsman notes again that the Commission first referred to the above case-law in its letter to Transes of 21 February 2008. However, the Ombudsman points to his letters of 3 September 2008, 17 November 2008 and 19 February 2009, by which he informed Transes that, in light of the explanations and references contained in the Commission's letter of 21 February 2008, he did not find sufficient grounds to inquire into the alleged failure to consider the Infringement 13

Complaint as being about 'practices' infringing Community law. 54. Finally, the Ombudsman does not agree with Transes' observation that, in its opinion on the present complaint, the Commission incorrectly restricts the reasons for submitting an infringement complaint to 'administrative' practices. The Ombudsman notes that the Commission mentions administrative practices while citing the relevant case law, which indeed deals with 'administrative' practices. 55. The Ombudsman also does not agree with Transes' observation that, in its reasoned opinion to the European Parliament of 3 February 2006, the Commission only dealt explicitly with Articles 12, 81, 82 and 87 of the EC Treaty. He points out in this respect that, on the first page of that reasoned opinion, the Commission states that it " considers that the operations conducted by the companies referred to essentially pertain to the Treaty freedom of capital movements... EC Treaty Article 56 prohibits all restrictions on capital movements. " B. Alleged failure to act with due care when sending the letters of 24 January and 4 April 2006 As regards the pre-closure letter of 24 January 2006 56. In its complaint to the Ombudsman, Transes alleged that the Commission did not act with due care when sending its pre-closure letter of 24 January 2006. Transes argued that it only received that letter on the morning of 17 December 2007 by fax and had never seen the letter before that date. The letter was first sent to an incomplete address: " M. [X]... route [Y]... Heinerschei Luxembourg ", instead of the correct address "[Mr X] Transes Holding SA... route [Y]... Heinerscheid Luxembourg ". This explained why Transes did not receive the letter on time, but only when the Commission sent it again in December 2007. Moreover, it is good and general practice for a public institution, when sending a notification giving a possibility to contest a decision within a certain time limit, to make sure that the recipient receives that decision on time, normally by using registered post. In its observations, Transes reiterated that the Commission sent the pre-closure letter to its representative directly, to an office address where the representative does not live or is known by the postal services and did not include any company name in the address field. This was despite the fact that Transes' letter 15 November 2005 to the Commission " provided all communication coordinates of that company... " Transes wondered why the Commission did not also send this important letter by fax or by e-mail. Transes even expressed a suspicion that the Commission had never sent the letter because the Commission did not argue that the letter was returned to it in the post. If it had been returned, the Commission failed to resend it, for example by fax or by e-mail. 57. In its opinion, the Commission stated that it sent the pre-closure letter to the address provided by Transes in the Infringement Complaint (... route Y,... Heinerscheid, Luxembourg). According to the Commission, Transes continued to use this address in its correspondence until its letter of 29 January 2008, by which it informed the Commission of a new postal address (...). However, when the Commission received Transes' letter of 25 14

October 2007, requesting information on the outcome of the Infringement Complaint, it duly informed Transes of having closed the case by letter dated 6 December 2007, with which a copy of the pre-closure letter of 24 January 2006 was enclosed. The letter of 6 December 2007 was returned in the post for having an incorrect address. Therefore, the Commission sent a copy of that letter by fax on 13 and 17 December 2007, and attached a copy of the pre-closure letter to the latter fax message. As regards the decision of 4 April 2006 58. Transes also alleged that the Commission failed to ensure the proper delivery of its decision of 4 April 2006 closing the case. 59. The Commission reiterated in this regard that Transes did not respond to its pre-closure letter of 24 January 2006 within the four-week lime limit set therein. The Commission pointed to its Manual of Procedures (SEC(2005)254/5) ('the Manual'), according to which, if a complainant does not reply or if his comments do not lead the department to reconsider its position, a proposal is made to close the infringement case. Where appropriate, the complainant is informed of the Commission's decision. The Commission did not hear from Transes within the four-week time limit set in the pre-closure letter of 24 January 2006, and Transes did not send any letter to it until 25 October 2007. Therefore, it assumed that Transes had dropped the Infringement Complaint. Given this lack of any new information, the Commission did not find it appropriate to send the decision of the College of Commissioners closing the case to Transes, because it had already explained its decision to close the case in its pre-closure letter. 60. Transes observed that the Commission should have informed it of the decision of the College of Commissioners of 4 April 2006 closing the case, and that the Commission's arguments for not doing so are incorrect and in violation of the Communication. Point 10 of the Annex to the Communication provides that, where the complainant does not reply to the letter informing him/her of the proposal for no further action to be taken on a complaint, the Commission department will put forward a proposal to close the case. In that event, the complainant will be informed of the Commission's decision. Moreover, according to point 9 of the Annex to the Communication, when Commission officials make a proposal to the College of Commissioners to close the case, the Commission will decide on the matter at its discretion. This is another reason why the complainant must be informed about the Commission's final decision. Moreover, at the time when the Commission decided not to send the decision of 4 April 2006 to Transes, it did not know that Transes would not send a letter until 25 October 2007. Finally, Transes spent so much effort in submitting the Infringement Complaint and even sent a supplementary report to the Commission on 15 November 2005 that the Commission could not reasonably assume that Transes would not comment on the pre-closure letter sent one and a half months later or drop the Infringement Complaint. 61. Finally, in its observations, Transes also took the view that the Commission's decision closing the case lacked legal validity because Transes had no opportunity to contest the pre-closure letter. 15

The Ombudsman's assessment As regards the pre-closure letter of 24 January 2006 62. The Ombudsman notes that, in the Infringement Complaint, point 1 contains the names of the complainants, that is, the four Transes companies. Point 2 bears the heading " 2. WHERE APPROPRIATE, REPRESENTED BY: ", and contains the following information: "[Mr X]... Route [Y]... Heinerscheid Luxembourg " 63. It follows from the information and documents available on the file concerning the present complaint that the Commission sent the pre-closure letter to the above address provided in the Infringement Complaint. The minor typographic error in the name of the village (" Heinerschei " instead of " Heinerscheid ") could not, in the Ombudsman's view, have caused the non-delivery of the letter. 64. The Ombudsman finds reasonable Transes' hypothesis that the letter was not probably delivered because the address (being an office address of the Transes companies and not their representative's private address) should have included the company name. However, the Ombudsman considers that it was Transes' responsibility properly to fill in point 2 of the Infringement Complaint by including the company name if it considered this to be important. The Commission cannot be held responsible for Transes' failure to do so. 65. In its observations, Transes referred to its letter of 15 November 2005 as a letter containing all the communication coordinates of one of the complaining Transes companies. The Ombudsman notes that this letter is written on letterhead paper of Transes International SA. However, it contains the signature of the Transes representative under the above address, without mentioning any company name. Therefore, the Ombudsman concludes that, similarly to the Infringement Complaint, this letter also did not sufficiently indicate to the Commission that it should include a company name in the address field. 66. Finally, the Ombudsman notes that, following Transes' requests of 25 October and 17 December 2007, the Commission sent it a copy of the pre-closure letter by fax on 17 December 2007. 67. For the above reasons, the Ombudsman finds no maladministration as regards the alleged lack of due care by the Commission, when sending the pre-closure letter of 24 January 2006 to Transes. Nor has the Ombudsman any reason to suspect the Commission of not having sent that letter, as Transes suggested in its observations. 16