European Ombudsman
Besluit in zaak 2980/2008/(NM)GG - Vermeend verzuim om een klacht af te handelen en ervoor te zorgen dat de lidstaten het Gemeenschapsrecht correct
toepassen
Besluiten
Zaak 2980/2008/(NM)GG - Geopend op 19/11/2008 - Besluit over 16/07/2009
In het najaar van 2007 wilde klager, een Duitse burger, per vliegtuig naar Duitsland reizen via Parijs. De aansluitende vlucht van Air France vanuit Parijs naar Berlijn werd evenwel
geannuleerd, naar verluidt als gevolg van een staking. De klager zette zijn reis per trein voort en verzocht de luchtvaartmaatschappij deze extra kosten te vergoeden. Ook vroeg hij om compensatie op grond van Verordening (EG) nr. 261/2004, die tot doel heeft luchtreizigers te beschermen bij instapweigering en annulering of langdurige vertraging van vluchten.
De klager wendde zich tot het Directoraat-generaal voor burgerluchtvaart ("DGAC"), de autoriteit die moet toezien op de naleving van Verordening (EG) nr. 261/2004 in Frankrijk. In juli 2008, bij uitblijven van een antwoord van dit orgaan, richtte de klager zich tot het Directoraat-generaal Energie en vervoer ("DG TREN") van de Europese Commissie.
In november 2008 wendde de klager zich tot de Europese Ombudsman, die een onderzoek instelde. De klager beweerde dat de Commissie verzuimde zijn klacht naar behoren af te handelen en ervoor te zorgen dat de lidstaten Verordening (EG) nr. 261/2004 correct toepassen. Hij klaagde ook over de manier waarop DG TREN met zijn e-mailberichten was omgegaan.
Uit het onderzoek van de Ombudsman bleek dat DG TREN de zaak van de klager actief had gevolgd en het DGAC diverse malen had gecontacteerd. Verder kwam naar voren dat Air France de eisen van de klager intussen had aanvaard.
De Ombudsman wees erop dat, indien deze zaak slechts betrekking zou hebben gehad op (i) de door de Commissie troffen maatregelen om ervoor te zorgen dat de zaak van de klager door het DGAC zou worden behandeld en (ii) de inspanningen van de Commissie om ervoor te zorgen dat de lidstaten Verordening (EG) nr. 261/2004 correct toepassen, hij niet zou hebben geaarzeld deze in zijn volgende jaarverslag op te nemen als voorbeeld van een zaak waarin de betrokken instelling of het betrokken orgaan van de EU op een uiterst
prijzenswaardige manier had gehandeld. De Ombudsman merkte evenwel op dat DG TREN de klager niet op de hoogte had gehouden als had gekund en gemoeten. De Ombudsman meende dat DG TREN lof verdiende om zijn actieve inzet en de aan de klager verleende steun in deze zaak. Wat betreft de wijze waarop DG TREN met de klager had gecommuniceerd,
meende de Ombudsman dat er geen verdere actie van zijn kant noodzakelijk was.
In zijn klacht had de klager vermeld dat hij taalkundige problemen had ondervonden bij het contacteren van het DGAC. DG TREN gaf aan dat het had geprobeerd de nationale
handhavingsinstanties te helpen dit type problemen op te lossen en hen ertoe te bewegen praktische maatregelen vast te stellen om te zorgen voor een doeltreffende afhandeling van klachten. Gelet op het belang van de kwestie, verzocht de Ombudsman de Commissie hem nadere bijzonderheden te verstrekken, zodat hij kon beslissen of een onderzoek op eigen initiatief naar deze kwestie nodig was.
THE BACKGROUND TO THE COMPLAINT
1. In the autumn of 2007, the complainant, a German citizen, intended to travel by plane from Madagascar to Germany via Paris. However, the connecting Air France flight from Paris to Berlin was cancelled, apparently as a result of a strike. According to the complainant, no useful assistance was provided by Air France. He therefore had to make his own way home by train. The complainant subsequently requested that the price of the train ticket be reimbursed. He also asked for compensation. According to the complainant, these claims were rejected by Air France.
2. The complainant then contacted the Luftfahrtbundesamt ("LBA"), the German Federal Office for Aviation. The LBA informed the complainant that he might be entitled to compensation under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 [1] ("Regulation 261/2004") and forwarded his case to the French Directorate-General for Civil Aviation ("DGAC"), which would be competent to deal with the matter. As the complainant received neither an acknowledgment of receipt nor an answer from the DGAC, he addressed himself to this authority by sending, on 18 June 2008, an e-mail written in English. By that time, three months had passed since the DGAC had been seized of the matter. According to the complainant, this e-mail remained unanswered.
3. On 18 June 2008, the complainant asked the LBA for advice. In its reply of 19 June 2008, the LBA informed the complainant that he could consider contacting the European Commission's Directorate-General Energy and Transport ("DG TREN").
4. On 24 June 2008, the complainant addressed himself to DG TREN, asking for help. A copy of this e-mail was sent to the DGAC.
5. On 30 July 2008, DG TREN replied, apologising for the delay that had occurred. DG TREN explained that Regulation 261/2004 obliged Member States to set up enforcement bodies, whose main task was to deal with complaints from air passengers and to ensure that the latter's rights are properly respected. It added that it considered that the Commission should only intervene if there was a pattern of cases which shows that a Member State is failing to enforce Regulation 261/2004. DG TREN noted that it organises regular meetings with the national authorities designated to enforce Regulation 261/2004, in order to ensure that the
the DGAC. If difficulties arise during this process, like in the complainant's case, the Commission would bilaterally seek a solution with the Member State concerned and its enforcement body. DG TREN concluded by stating that the complainant's feedback was valuable to it and that his case, together with many others, offered practical examples that would support its work with evidence. It went on to say that a critical mass of data was needed before infringement proceedings could be launched. It added that it would therefore appreciate it if the complainant could keep the Commission informed of developments.
6. In his reply sent on 25 August 2008, the complainant thanked DG TREN for the
information. He pointed out, however, that, at that point in time, nearly a year had passed since the problems with Air France had arisen and that the complaint had been forwarded to the DGAC nearly six months ago. The complainant further submitted that there appeared to be a general problem, given that the website of the DGAC appeared to be designed for French users only and that both the advice on how to navigate and the complaint forms were only available in French. He also pointed to the difficulties he had had when telephoning the DGAC as a result of the fact that the operator did not speak English. The complainant further stressed that there was no exact contact e-mail address. Citizens were informed to use the formula 'prenom.nom@aviation-civile.gouv.fr' for e-mails. The complainant queried how a contact could be made if the name of the employee was not known or if this person no longer worked for the DGAC. He added that he had written to the person indicated to him by the LBA, to whom the present e-mail was also copied.
7. On 21 October 2008, the complainant sent a reminder to the Commission.
THE SUBJECT MATTER OF THE INQUIRY
8. In his complaint to the Ombudsman, the complainant submitted the following allegations:
- The Commission failed properly to deal with his complaint and to ensure that Member States properly apply Regulation 261/2004.
- The Commission failed to reply to his e-mails of 25 August and 21 October 2008.
9. The complainant claimed that the Commission should ensure that Member States properly apply Regulation 261/2004.
THE INQUIRY
10. The complaint was submitted on 5 November 2008. On 19 November 2008, the
Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint.
11. The Commission sent its opinion on 31 March 2009. On 14 April 2009, the Ombudsman forwarded a copy of this opinion to the complainant and invited him to make observations.
No written observations were received from the complainant. However, the complainant made a number of comments on the occasion of a telephone conversation with the Ombudsman's Office, which took place on 23 June 2009.
THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS
Preliminary remark
12. It appears appropriate to examine the two allegations and the claim at the same time.
A. Alleged failure properly to deal with a complaint, to ensure that Member States properly apply Regulation 261/2004 and to reply to two e-mails
Arguments presented to the Ombudsman
13. The complainant alleged that the Commission had failed (a) properly to deal with his complaint, (b) to ensure that Member States properly apply Regulation 261/2004 and (c) to reply to his e-mails of 25 August and 21 October 2008. He claimed that the Commission should ensure that Member States properly apply Regulation 261/2004.
14. In its opinion, the Commission pointed out that, as foreseen by Article 16 of Regulation 261/2004, the task of enforcing Regulation 261/2004 fell to the Member States. It explained that the enforcement body best placed to deal with a case would be the one in the Member State where the incident took place. The Commission further underlined that it had not been given an explicit power of redress by Regulation 261/2004. According to the Commission, its role was to monitor the correct implementation of the Regulation by Member States, but that it was not entitled to mediate in the settlement of individual complaints.
15. The Commission stated that it monitors Member States to ensure that they apply the Regulation correctly and that it only intervenes when it appears that a national
administration repeatedly fails to ensure the correct enforcement of the Regulation. It further explained that, according to the case-law of the Community courts, it was not required to take action against a Member State, unless the administrative practice violating Community law was of a general or persistent nature.
16. The Commission pointed out that DG TREN receives around 2 300 requests for information or action in the field of passenger rights every year, most of which concern Regulation 261/2004. In the large majority of cases, a reply is provided within 15 working days, as foreseen by the Commission's Code of Good Administrative Behaviour. DG TREN apologised for the fact that it had not been possible to respect this deadline in the present case and explained that this was due to an impressively large number of passenger requests.
It added, however, that the e-mails of 25 August and 21 October 2008 were not the complainant's first contact with DG TREN.
17. The Commission underlined that when the complainant contacted it for the first time, he was informed about his rights, the national authority competent to deal with his case and the role of the Commission in this process. DG TREN analysed the complainant's case and immediately informed the DGAC, the national enforcement body in France. In its reply, the DGAC confirmed that it was examining the complainant's case. According to the Commission, a satisfactory solution was found in the end. In total, DG TREN contacted the DGAC on four occasions and wrote to inform the complainant on three occasions. The Commission
submitted that it ensured, from the very beginning, that the French authorities dealt with the complainant's case in an appropriate manner and that they kept the complainant informed.
18. The Commission provided a copy of the correspondence exchanged between DG TREN, the DGAC and the complainant. It submitted that these documents showed that the DGAC had handled the case in a satisfactory way, undertaking all the administrative steps foreseen under national law. The Commission further noted that Air France had accepted to pay to the complainant the amount that he had claimed.
19. The Commission explained that there was no legal obligation for national enforcement bodies to provide information in several languages. It added, however, that DG TREN had organised several meetings with these bodies in order to help them solve this linguistic issue and to induce them to adopt practical measures so as to ensure an effective complaint handling.
20. The Commission concluded that, with regard to the complainant's case, DG TREN did not fail to ensure that Member States properly apply Regulation 261/2004, that it satisfactorily monitored the follow-up of his case and that it kept him informed. It further submitted that DG TREN did not fail to answer the complainant's e-mails of 25 August and 21 October 2008 but provided him with sufficient information concerning his case.
21. No written observations were received from the complainant. However, on the occasion of a telephone conversation with the Ombudsman's Office, which took place on 23 June 2009, the complainant confirmed that the substantive problem raised by his case had been solved, given that Air France had paid the amount he had claimed. The complainant added, however, that he was not entirely satisfied by the way in which the Commission had handled the matter. He argued that DG TREN failed to acknowledge receipt of his letters and to keep him properly informed. The complainant also submitted that citizens should not need to complain to the Ombudsman or to other bodies in order to be able to benefit from their rights under Community law.
The Ombudsman's assessment
22. Article 16 of Regulation 261/2004 provides as follows: "Each Member State shall
designate a body responsible for the enforcement of this Regulation as regards flights from airports situated on its territory and flights from a third country to such airports." The Commission's argument that the primary responsibility for ensuring respect of Regulation 261/2004 lies with Member States is therefore correct. The Ombudsman considers, however, that the Commission is, nevertheless, obliged to deal with complaints concerning the
implementation of Regulation 261/2004 that are submitted to it and to take appropriate action.
23. It emerges from the documents submitted to the Ombudsman that DG TREN actively pursued the complainant's case. It is true that DG TREN's e-mail to the complainant of 30 July 2008 could be understood as meaning that the Commission would only become active if similar further cases were brought to its attention. However, the documents submitted by the Commission show that DG TREN drew DGAC'S attention to the complainant's case on 30 July 2008, i.e., on the very day when it wrote to the complainant. It further emerges that,
between September and December 2008, several further e-mails were exchanged between DG TREN and the DGAC in relation to the complainant's case, that the DGAC had several contacts with Air France and that Air France informed the complainant, on 4 December 2008, that his claims had been accepted. It thus follows that DG TREN had taken up the
complainant's case even before the present inquiry was opened. The Ombudsman considers that DG TREN deserves to be commended for the active approach it adopted and the
support it lent to the complainant in the present case. In the Ombudsman's view, this case would appear to confirm that the Commission is indeed doing its best to ensure that Member States properly apply Regulation 261/2004.
24. If the present case only concerned (a) the steps taken by the Commission to ensure that the complainant's case was pursued by the DGAC and (b) its efforts to ensure that Member States properly apply Regulation 261/2004, the Ombudsman would not have hesitated to include it in his next annual report as an example of a case where the Community institution or body concerned had acted in a particularly praiseworthy manner.
25. However, regard needs to be had to the fact that the complainant also criticized the manner in which the Commission communicated with him. The complainant's e-mail of 24 June 2008 to DG TREN was only answered on 30 July 2008. It is true that in its reply, DG TREN apologized for the delay and provided useful information to the complainant. The
Ombudsman notes, however, that DG TREN omitted to mention that it had also drawn the attention of the DGAC to the complainant's case. This would surely have been useful and welcome information for the complainant. The Ombudsman further notes that, although the complainant sent two further e-mails to DG TREN on 25 August and 21 October 2008, it was only on 11 November 2008 that DG TREN contacted the complainant again. No apology was given for this delay. It is true that, as the Commission pointed out, the complainant had been in contact with DG TREN before. However, the Ombudsman considers that this does not mean that, in such cases, the deadlines for answering correspondence from a citizen no longer need to be respected.
26. As noted above, regard should, nevertheless, be had to the fact that the Commission, though not keeping the complainant as well informed as it could and should have done, did its best to see to it that his problem with Air France was dealt with by the DGAC. The
Ombudsman therefore considers that there is no need for further action as regards the way in which the Commission communicated with the complainant.
27. In his e-mail to the Commission of 25 August 2008, the complainant noted that the DGAC's website appeared to be designed for French users only and that both the advice on how to navigate in it and the complaint forms themselves were only available in French. He also pointed to the difficulties he had had when telephoning the DGAC as a result of the fact that the operator did not speak English. The Ombudsman accepts that there is no legal obligation for national enforcement bodies to provide information in several languages.
However, it is clear that air passengers who have experienced problems as regards their flights do not necessarily master the language of the enforcement body that would be competent to deal with these problems. The present case illustrates this problem. The
all persons concerned have the possibility to address themselves to the enforcement body competent to deal with their case. He is therefore pleased to note that DG TREN has indicated that it tried to help the national enforcement bodies solve this linguistic issue and to induce them to adopt practical measures so as to ensure effective complaint handling.
Given that the complainant's case has found a satisfactory conclusion, the Ombudsman considers that there is no need to pursue this issue in the context of the present inquiry.
However, it cannot be excluded that similar problems have arisen and may continue to arise in other cases. The Ombudsman therefore invites the Commission to provide him with further details concerning this issue so as to enable him to decide whether an own-initiative inquiry concerning the Commission's approach to this problem may be needed. This
information should be provided to the Ombudsman by 31 October 2009.
B. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:
No maladministration was found as regards (a) the steps taken by the Commission to ensure that the complainant's case was pursued by the DGAC and (b) its efforts to ensure that Member States properly apply Regulation 261/2004. On the contrary, DG TREN deserves to be commended for the active approach it adopted and the support it lent to the complainant in the present case. In so far as the way in which DG TREN communicated with the
complainant is concerned, the Ombudsman considers that there is no need for further action.
The complainant and the European Commission will be informed of this decision.
P. Nikiforos DIAMANDOUROS Done in Strasbourg on 16 July 2009 [1] OJ 2004 L 46, p. 1.
