Contents

THE COMPLAINT

On 20 November 2001, the complainant made a complaint to the European Commission, (DG COMP) concerning state aids granted by the regional Government of the Azores islands to Portuguese maritime transport companies.

On 4 December 2001, DG COMP informed the complainant that it was not competent to deal with his case and that it would be dealt with by DG TREN.

On 3 March 2003, the complainant wrote a letter to DG TREN and asked to be informed about the situation of his case. According to the complainant, the only information he received was a letter of 22 May 2003, by which DG TREN informed him that the case was still under investigation by its services.

In his complaint to the Ombudsman, the complainant alleged that the Commission had not properly dealt with the case he had lodged with the institution on 20 November 2001.

THE INQUIRY

In its opinion on the complaint, the Commission summarised the relevant facts as follows:

On 20 November 2001, the complainant complained to DG COMP concerning allegedly illegal state aids granted to two Portuguese maritime companies which operate within the Azores archipelago.

In his complaint, the complainant stated that in 2001 the regional government of the Azores had granted state aids to a maritime company (SiturJorgense) to compensate the interest due under the banking loan of EUR 1,122 million required by the company to purchase the catamaran Expresso do Triângulo. The relevant grant had been the object of resolution n° 117/2001, published in the Official Journal of the Autonomous Regions of Azores on 2 August 2001. The complainant further alleged that the government of the Azores had granted, on the basis of a decision of 30 November 2000 taken by the regional secretariat of Economy, an illegal aid amounting to EUR 461 000 in favour of the companyAçorline.

On 2 February 2003, the complainant wrote to DG TREN acknowledging receipt of the letter in which DG COMP had informed him that his complaint had been transferred to DG TREN which would deal with it. By letter of 22 May 2003, DG TREN informed the complainant that it was dealing with both aspects of the complainant's case and that he would be informed of any future development of the case.

On 13 May 2004, DG TREN's services sent a letter to the Portuguese authorities asking for information concerning the facts alleged by the complainant. In the light of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, the Commission could not decide on a complaint before having received the observations of the Member State concerned.

The Commission regretted the delay which had occurred in dealing with the complainant's case and stated that in accordance with Article 20 of Regulation 659/1999, it would inform the complainant in due time of any development in his case.

In his observations on the Commission's opinion, the complainant stressed that he had no further comments to make as regards the information given by the Commission. However, he wished to reaffirm his allegation that the Commission had not properly dealt with the complaint he had lodged with the institution on 20 November 2001.

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. On 2 March 2005, the Ombudsman therefore wrote to the Commission. In his letter, he asked the institution (i) to explain the reasons as to why it had taken almost two and a half years before it decided to ask the Portuguese authorities to provide information on the case and (ii) to inform him whether in the meantime it had received the information which it had requested from the Portuguese authorities on 13 May 2004 and how it further proposed to proceed in this matter.

In its reply, the Commission stated that, as regards to the first question posed by the Ombudsman, it had received numerous complaints in the field of state aids, namely related to maritime transport. The Commission therefore had had to establish priorities for handling these complaints on the basis of criteria such as the magnitude of the alleged case, the clarity of the submissions and the importance of the potential damage to the complainant. As regards the present case, it had initially been necessary to translate the documents submitted by the complainant in February 2003. Subsequently a careful analysis of these documents had been required before an investigation of the case could be started. After this examination, the Commission's services had decided to send an information request to the Portuguese authorities. This request had been sent to the Portuguese authorities on 13 May 2004. The Commission regretted the delay that had affected the treatment of the file in question.

As regards the second question put by the Ombudsman, the Commission stated that by letter of 6 July 2004 the Portuguese authorities had replied to the request for additional information made by its services. The content of the reply and the voluminous annexes were not fully translated into a working language of the Commission until December 2004. The Commission's services were still analysing the relevant answer and thus did not yet have a final view on the complainant's case.

The Commission concluded by saying that it would inform the complainant in due course of the outcome of the ongoing investigation.

No observations on the Commission's reply were received from the complainant.

THE DECISION

1.1 On 20 November 2001, the complainant made a complaint to the Commission concerning state aids granted by the regional Government of the Azores islands to Portuguese maritime transport companies.

In his complaint to the Ombudsman, the complainant alleged that the Commission had not properly dealt with the case he had lodged with the institution on 20 November 2001.

1.2 In its opinion, the Commission explained that by letter of 22 May 2003, DG TREN had informed the complainant that it was dealing with the complainant's case and that he would be informed of relevant developments. It further stated that on 13 May 2004, DG TREN's services had sent a letter to the Portuguese authorities asking for information concerning the facts alleged by the complainant.

The Commission regretted the delay which had occurred in dealing with the complainant's case and stated that in accordance with Article 20 of Regulation 659/1999, it would inform the complainant in due time of any development in his case.

1.3 In his observations, the complainant maintained his allegation that the Commission had not properly dealt with the case he had lodged with the institution on 20 November 2001.

1.4 On 2 March 2005, the Ombudsman wrote to the Commission asking the institution (i) to explain the reasons as to why it had taken almost two and a half years before it decided to ask the Portuguese authorities to provide information on the case and (ii) to inform him whether in the meantime it had received the information requested from the Portuguese authorities on 13 May 2004 and how it proposed to proceed in this matter.

In its reply, the Commission stated that, as regards the first question made by the Ombudsman, it had received numerous complaints in the field of state aids, namely related to maritime transport. The Commission therefore had had to establish priorities for handling these complaints on the basis of criteria such as the magnitude of the alleged case, the clarity of the submissions and the importance of the potential damage to the complainant. As regards the complainant's case, it had been initially necessary to translate the documents submitted by the complainant in February 2003. Subsequently, a careful analysis of these documents had been required before an investigation of the case could be started. After this examination, the Commission's services had decided to send, on 13 May 2004, an information request to the Portuguese authorities.

As regards the second question put by the Ombudsman, the Commission stated that by letter of 6 July 2004, the Portuguese authorities had replied to the request for additional information made by its services. The contents of the reply and the voluminous annexes were not fully translated into a working language of the Commission until December 2004. The Commission services were still analysing the relevant answer and thus they did not yet have a final view on the complainant's case.

1.5 Principles of good administration require that an institution should deal with complaints made by citizens in a reasonable period.

From the information available to him, the Ombudsman notes that nearly 2 1/2 years passed between the lodging of the complaint and the Commission's decision to request information from the Portuguese authorities. In its reply to the Ombudsman's request for further information, the Commission submitted that the length of time taken by its services had been due to the need to translate and carefully to analyse the submissions made by the complainant.

The Ombudsman considers that when dealing with complaints, the institution does indeed need to act diligently and therefore has to examine the complainant's submissions very carefully. However, even if the time that is needed to do so is duly taken into account, 2 1/2 years cannot be considered a reasonable period for a decision on whether or not to start an investigation. The Ombudsman therefore takes the view that the Commission has not given any convincing explanation to justify the delay which occurred in the handling of the complainant's case. This constitutes an instance of maladministration.

1.6 The Ombudsman takes note of the fact that firstly in its opinion and then in its reply to his request for further information, the Commission regretted the delay that had occurred. It should be noted, however, that it has taken the Commission another five months to translate the documents submitted by the Portuguese authorities in July 2004. Furthermore, it emerges from the Commission's reply to the Ombudsman's request for further information, which was sent to him in June 2005, that the Commission still did not have a final view on the complainant's case.

In view of the above, the Ombudsman makes the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 31 October 2005. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 14 September 2005

P. Nikiforos DIAMANDOUROS

(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.