Verbatim report of proceedings

Tuesday, 2 September 2008 - Brussels

13. Special Report from the European Ombudsman following the draft recommendation to the European Commission in complaint 3453/2005/GG (debate)

  President. − The next item is the report (A6-0289/2008) by Proinsias De Rossa, on behalf of the Committee on Petitions, on the Special Report from the European Ombudsman to the European Parliament following the draft recommendation to the European Commission in complaint 3453/2005/GG (2007/2264(INI)).

  Proinsias De Rossa, rapporteur. − Mr President, I am pleased to be here tonight, although I would have preferred it to have been a bit earlier. Nevertheless it is important that this report be debated in Parliament.

This report concerns a complaint of maladministration against the Commission. The case has been referred to the European Parliament by way of a special report from the European Ombudsman. Referring a special report to the European Parliament is the last substantive step the Ombudsman may take in seeking a satisfactory response on behalf of a citizen. It is therefore a rare occasion on which reports of this kind are taken here.

My report, on behalf of the Committee on Petitions, endorses the Ombudsman’s conclusion that the failure of the Commission to deal with the petitioner’s complaint within what was objectively established by the Ombudsman as several years’ unjustified delay constitutes an instance of maladministration.

I would emphasise here that this report does not deal with the content of European law but with the manner in which the Commission failed to deal with a complaint, and I therefore want to indicate that I am not accepting the single amendment which has been tabled by the GUE/NGL Group to this report, which seeks to introduce elements relating to the law itself.

In the original complaint to the Commission in 2001, the complainant, a doctor working in Germany, requested that the Commission open infringement proceedings against Germany, arguing that that country infringed Council Directive 93/104/EC, commonly known as the ‘Working Time Directive’. The case was that Germany’s transposition of that Directive insofar as the activity of doctors and hospitals was concerned, in particular as regards time spent on call by these doctors, was in breach of the Directive. In the complainant’s view, this resulted in a considerable risk for both staff and patients.

The Ombudsman found with regard to that compliant that the 15 months it had taken the Commission before it started to deal with the complaint was a case of maladministration.

In the mean time, new German legislation seeking to properly transpose the Directive was put in place, and the Commission informed the complainant that it needed time to examine this new legislation in order to consider its compatibility with Community law and whether or not it had dealt effectively with the complaint that had been made.

Then, in 2004, it informed the complainant that it had adopted new proposals to amend the original Directive, and it would examine the complaint in the light of those proposals. One year later, in 2005, the complainant again had to turn to the Ombudsman to the effect that the Commission was ignoring the Ombudsman’s earlier findings.

There is no evidence, since that proposal was prepared in 2004, that the Commission has taken any further steps in order to proceed with its investigation of the doctor’s complaint. Instead of taking one of two possible decisions – either to initiate formal infringement proceedings or to close the case – the Commission abstained from taking any further action as regards its investigation. Indeed, the fact that the Directive was due for amendment (which, incidentally, has still not occurred – and this is now 2008) is in no way relevant to the complaint. Community law does not envisage the possibility of disregarding existing laws and judgments on the grounds that new rules are being considered and may be introduced.

My report further asks the Commission to provide a list naming the Member States whose legislation is not in line with all the provisions of the Working Time Directive and specifying the action it is taking with regard to this. It urges the Commission to take prompt action in accordance with its prerogatives in all cases and in all Member States where the transposition of implementation, or implementation of the existing directives, does not comply with the law laid down by the legislative branch, and indeed the European Court of Justice. I recommend this report to the House.

  Vladimír Špidla, Member of the Commission. − (CS) Ladies and gentlemen, thank you for allowing me to put my views on the Member’s speech and to put my views more generally on the case under discussion. The complaint relating to the Working Time Directive is connected with the judgments of the Court of Justice in the SIMAP and Jaeger cases concerning on-call working time, as has already been said. This is a matter which the Directive does not expressly address. Furthermore, according to many Member States, the interpretation made by the Court of Justice gave rise to fundamental problems and had a far-reaching impact on the financing and organisation of public health care and emergency services.

In an attempt to tackle the problems caused by these judgments, the Commission undertook extensive consultation in 2004. It came to the conclusion that an appropriate solution was to propose an amendment which would clarify the application of the Directive in the field of on-call working time and time off in lieu. This amendment was presented by the Commission in 2004. In view of the exceptional importance of these matters for public health care services, the Commission decided in 2004 that it would not institute proceedings for infringement of the law in cases where the law would be changed by the proposed amendment. The Commission acknowledges that, in this case, the time taken was unusually long, but I have given the reasons.

In view of the fact that the existing acquis remains in force until such time as the proposed amendment enters into force, the Commission left it open as to how to handle this actual complaint, and also other complaints relating to this matter. Furthermore, in justifiable cases, it instituted proceedings for the infringement of the law in connection with complaints relating to the Working Time Directive, but not falling under the jurisdiction of the amendment.

The Commission is also carefully monitoring and analysing resulting amendments to the national regulations in all Member States and the reactions of legislators, national courts and representatives of workers and employers to the decisions of the Court of Justice. This is very important, since the questions included in the actual complaint to which the report refers are in actual fact topical for more than one Member State.

The Commission will shortly submit to Parliament, in about two months time, a detailed report on the implementation of the Working Time Directive, providing complex and up-to-date information on compliance with the acquis, including the SIMAP-Jaeger judgments, in all 27 Member States. The report will also include reactions to several proposals in the existing report.

As regards the conclusions relating to the handling of proceedings for infringement of the law in general, the Commission is of the opinion that, in view of the specific context of the complaint under the terms of the Working Time Directive, relating to changes to on-call working time, it is not appropriate to deduce general conclusions on the handling of proceedings for infringement of the law which the Commission normally conducts. The period of one year for decisions on complaints received by the Commission is usually appropriate, but is laid down expressly as a general principle which need not apply in all cases.

  Alejandro Cercas, draftsman of the opinion of the Committee on Employment and Social Affairs. – (ES) Mr President, Commissioner, I am speaking on my own behalf but also on behalf of the 34 Members on the Employment Committee who voted last May in favour of the own-initiative report we drafted for this debate. We all agree with the report and appreciate and value what Mr De Rossa, who has our full support, has done.

We wish to state in a few short seconds that we are concerned not only about the background to the time spent on call by doctors and the Working Time Directive but because we are facing a situation of concern to us: European citizens do not receive a reply when they seek information from the Commission.

Secondly, we are concerned because the Commission would appear to be aware that there is a legislative lacuna when it initiates procedures to amend directives.

Although the time I have is very brief, I must tell the Commissioner that regardless of what we or the Commission might think about case-law or the law in force, it is under an obligation to implement the Treaties and move ahead, and that it has no authority to hold any rule or anything which may affect the Community acquis in abeyance.

  Mairead McGuinness, on behalf of the PPE-DE Group. – Mr President, I should like to thank Mr De Rossa for his report.

I listened very carefully to the Commission’s response, and I would like to repeat that this report is about how the Commission dealt with a complaint. While the subject matter was obviously very controversial and topical, what we are talking about here tonight in this debate is how the Commission deals with complaints. We support the Ombudsman’s conclusions in relation to the inordinate delay, as acknowledged by the Commission this evening in this House.

Let me just say that, on the point of complaints, people get in touch with the Commission because they have a problem and expect some sort of response – perhaps not an immediate one, but certainly nothing that takes months and years.

I would bring to your attention an issue concerning Equitable Life, where we had some light-touch regulation and not great clarity about how Community law was actually being implemented – and we have seen the dire consequences of that particular issue.

Lastly, there is a current complaint with the Commission about the application of Irish planning law. While the Commission was very active and supportive initially, I fear that there is now a silence. I would like some progress on that issue.

  Maria Matsouka, on behalf of the PSE Group. – (EL) Mr President, although this report has no legislative content, it is especially important for the interpretation and development of European law. For this reason, I congratulate the Ombudsman on the initiative to draft the special report, and also my colleague Mr De Rossa for supporting the position that the Commission’s discretionary power in handling complaints does not allow for arbitrary interpretations, especially against citizens.

The trust we would like European citizens to have in the Union is based both on the introduction of legislation to protect their rights and above all on their correct implementation.

The Commission ought to honour its role as custodian of the Treaties and not allow the Council’s decisions to be obstructed when reviewing European law, thus hindering the implementation of existing laws. Moreover, the EU ought to have an immediate effect wherever procedures allow it to.

The Commission is obliged to demonstrate the States’ reluctance or inability to apply European legislation. Thus, on the one hand, citizens will learn to check to what extent their national authorities adhere to their European obligations while, on the other hand, governments will at long last have to be answerable for these commitments.

  Marian Harkin, on behalf of the ALDE Group. – Mr President, I should like to congratulate the rapporteur, Mr De Rossa, on his excellent report. As a member of the Committee on Petitions, I am always very conscious of the fact that for many EU citizens we are the face of the EU. When I say ‘we’ I mean the Committee on Petitions itself, and the Commission, which also evaluates petitions. In this particular instance, the complainant was effectively ignored and the Ombudsman’s verdict was that this constituted maladministration.

I am pleased to see that the rapporteur and the Committee on Petitions agree with his position. European citizens have a right to expect that the Commission, as the guardian of the Treaties, will ensure that European legislation is implemented in a timely and effective manner. They have the right to expect a timely response as well as an effective one, and while the Commission has discretion as to how to proceed in a certain case – i.e. whether or not to instigate infringement proceedings – it does not have the discretion to fail to adopt a position within a reasonable amount of time, which was the case in this matter.

With regard to Amendment 1, this is a matter that needs to be dealt with, but separately from this report.

Finally, just a personal comment on the work of the Committee on Petitions: sending in a petition is, for many citizens, their only contact with the EU institutions. It is crucial that this system works in an effective and transparent manner. The Commission is part of the process, but so too is Parliament. We must ensure that sufficient resources are available to the committee to carry out its work in an effective and timely manner.

To fully understand this issue, we need to put ourselves in the shoes of the petitioner and see it from their perspective. As an individual or a small group they are taking on the system. If the system does not respond in an effective manner they see it as a bureaucratic nightmare, and this alienates the petitioner and probably everybody they speak to about the matter. For the sake of the public and of the EU, that is something we must not do.

  Marcin Libicki, on behalf of the UEN Group. – (PL) Mr President, I am speaking today on behalf of the Union for Europe of the Nations, but also as chairman of the Committee on Petitions. I am pleased that all those who have spoken on this item so far are members of that Committee, as indeed is the President chairing today’s proceedings. So we are very well acquainted with these issues.

Ladies and gentlemen, the reason for today’s report by Proinsias De Rossa, whom I congratulate on an excellent document, is a report from the European Ombudsman, with whom we, as the European Parliament’s Committee on Petitions, work together on a permanent basis. Our collaboration with the European Ombudsman is highly satisfactory. All of us come into daily contact with his work, since the Committee on Petitions is the body which Parliament has made responsible for relations with the Ombudsman.

All of us speaking on this item are aware that the length of proceedings is a nightmare for the European institutions, and therefore obviously also a nightmare for the citizens of Europe. We must accordingly call on the European Commission to make every effort to carry out all the duties imposed on it more rapidly.

I would stress the crucial point in Proinsias De Rossa’s report, namely the first paragraph, which states that ‘the European Parliament endorses the European Ombudsman’s recommendation to the Commission.’ Parliament endorses the Ombudsman’s recommendation, as it usually does, because, as usual, we consider his demands and arguments well-founded.

  Elisabeth Schroedter, on behalf of the Verts/ALE Group. – (DE) Mr President, ladies and gentlemen, let me begin by addressing the Commissioner. This morning, Commissioner, you tried to tell us what a fine programme the Commission had in store for the people of Europe, one that would provide them with good jobs and show the social face of the EU. But when it comes to taking concrete action, the Commission cops out.

The present case concerns a complaint made by a German doctor and the action taken in response to it. It was quite simply about at least reviewing compliance with the existing minimum standards governing working hours in the European Union. The Commission could not even manage that. Your reaction has been far removed from what one would expect of a guardian of the Treaties. You say nothing for years, and then you even relax the standards. That is what the public perceive as a betrayal of their rights. With this silence and the amendments to the Working Time Directive you have inflicted massive damage on the project of European union. That has to be made clear.

  Lidia Joanna Geringer de Oedenberg (PSE). - (PL) Mr President, complaints submitted by citizens are an important source of information about infringements of Community law. The case in hand, which has been dragging on for seven years, concerns the German Government’s failure to implement properly the directive on certain aspects of the organisation of working time (that is Directive 2003/88, which revoked and replaced Directive 93/104). In the Ombudsman’s opinion, the lack of an effective response on the part of the European Commission constitutes maladministration.

The unjustified period of time, sometimes amounting to several years, which the Commission takes to prepare its response in cases of negligence on the part of Member States gives cause for concern, as do the numerous cases of Member States’ failure to comply with judgments of the Court of Justice. Such practices undermine faith in the consistent application of Community law, discredit the aims of the European Union, and diminish citizens’ confidence in the EU institutions. The manner in which citizens’ complaints are examined must conform to the principles of good administration. Complaints must be examined efficiently and in the shortest possible time.

  Ewa Tomaszewska (UEN). - (PL) Mr President, complaints concerning the organisation of working time are matters of urgency. Consider what may happen if working time rules are breached in the case of doctors: that could lead to a surgeon having to perform a complicated operation after being duty for 23 hours. There is a whole series of professions in which improper organisation of working time can endanger life. It is therefore of exceptional importance that complaints be acted on within a reasonable time.

  Mairead McGuinness (PPE-DE). - Mr President, I have two points. Firstly, I should like to endorse what Ms Harkin said in relation to resources. Perhaps there is a problem within the Commission in terms of resources: if there is, we should hear that.

Secondly, it takes a very strong-minded citizen to persist with a complaint that is being ignored, and I fear for the many who do not have the time, resources or, perhaps, the ability to keep pushing against the system. How many of those fall by the wayside – or, indeed, is there ever a record kept?

  Vladimír Špidla, Member of the Commission. − (CS) Ladies and gentlemen, I should like to emphasise just a few fundamental points which, in my opinion, still need to be addressed.

In this case, we are dealing with one complaint. This complaint does not constitute a general rule, since reacting in a timely manner to citizens’ initiatives is fundamental and one of the most important obligations. I think that, on looking closely at the extent of the agenda, it becomes obvious that the Commission proceeds rigorously in these cases.

This case was exceptional in that its consequences could have affected several individual Member States as a whole. Therefore, in 2004 the Commission used its discretionary right and proceeded as it did. At this moment in time, I think that time has clearly shown that it was not quite the best decision, but it is a decision which was within the discretionary options open to the Commission.

I should like to say that cases of infringement involving a failure to observe the law in matters relating to the Working Time Directive are conducted at the normal tempo, since, as I have already said, whatever the very serious grounds for the decision were, time has shown that it was not the best decision.

  Proinsias De Rossa, rapporteur. − Mr President, I should like to thank everyone who has stayed back tonight and participated in this debate, and also the Commissioner for his response to the debate. His acknowledgement that there were, in fact, exceptional delays, and that it was not, perhaps, appropriate that that delay should occur, is welcome.

Nevertheless, there is still a difference of opinion between the Committee on Petitions and the Ombudsman on the Commission’s interpretation of its right not to deal with a complaint when it considers that it should not. We are of the view that this discretion does not extend to an eight-year delay, which is what we are talking about here.

I welcome the fact that the Commissioner has announced the publication of a report within two months which will outline the compliance of all of the Member States, including as regards the particular complaint that we are dealing with here tonight.

I believe that earlier action by the Commission could well have driven earlier change in the Working Time Directive, and might perhaps have resulted in forestalling, at an earlier date, the risks which patients and, indeed, doctors and nurses in the health service in our hospitals have run over these years, where they have been working and on call for anything up to 100 hours a week.

I think the dispute on this issue highlights the weakness of the current infringement procedures, and the manner in which political considerations as well as resource considerations can come into play on sensitive issues, which should be dealt with in accordance with the law rather than in accordance with political sensitivities.

Finally, it has to be said that normally complaints of this kind are dealt with between the Ombudsman and the agency, the Commission or indeed the Council, against whom complaints have been made. It is very rare that we have to deal with this matter in this House. It is a rare occasion that this House is asked to endorse the decision of the Ombudsman against the Commission. It is a cause of deep regret for me that we have to do this but, unfortunately, that is the case.

Therefore, I would like the Commissioner at some point to indicate, concede and acknowledge that he has accepted that the delay was not acceptable; I would also like to hear from him a commitment that some procedures will be put in place to ensure that complaints will never again be allow to run to this length of time.

  President. − The debate is closed.

The vote will take place tomorrow at 11 a.m.

Written statements (Rule 142).

  Anneli Jäätteenmäki (ALDE), in writing. – (FI) Mr President, I was horrified when I read Mr De Rossa’s report on the complaint against Germany about arrangements for doctors’ working hours.

It is utterly ineffective administration if the European Commission cannot deal with a petitioner’s complaint without a totally unjustified delay of several years. This case constitutes a patent abuse of the discretion that the Commission enjoys when interpreting its obligations. Rather than exercise its discretion, the Commission seems to have acted completely high-handedly.

It is time the Commission came forward and told us how it intends to deal with complaints in a way that is as prompt and effective as possible in the future.

Thank you!