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Decision of the European Ombudsman closing his inquiry into complaint 1429/2011/(PMC)KM against the European Commission
Decision
Case 1429/2011/KM - Opened on Friday | 29 July 2011 - Decision on Friday | 23 March 2012 - Institution concerned European Commission ( No maladministration found )
The background to the complaint
1. On 20 May 2011, the complainant, a third country national who has lived in Austria as a recognised refugee since, submitted an infringement complaint to the Commission against Austria. His complaint concerned the Austrian authorities' rejection of his application for Austrian citizenship and of his application for a residence permit for his daughter under the rules for family reunification. The complainant considered that the Austrian authorities rejected his application for citizenship in order to punish him for having complained to the European Court of Human Rights (the 'ECHR') that he had been tortured and mistreated in Austria. Similarly, in relation to his application to have his daughter join him, he considered that the authorities wilfully delayed the matter until his daughter turned eighteen. He had applied a full nine months before his daughter's eighteenth birthday but the authorities had asked him to submit documents which they should have known did not exist. The complainant further complained about the lawyers who had acted for him in the various cases he had brought against the Austrian authorities. He also complained about the judges who had decided on those cases, and about his legal guardian. Finally, he asked the Commission to resettle him in another Member State of the EU. The complaint was registered by the Commission in its CHAP database.
2. By letter dated 9 June 2011, the Commission informed the complainant, in a detailed, four-page letter, that no elements had been identified which would indicate a failure by Austria to fulfil its obligations under European Union law.
3. The Commission explained that, first, the conditions for granting citizenship were regulated exclusively by national law and that it, therefore, had no powers to intervene on behalf of the complainant in relation to this aspect of his complaint. Second, as regards the residence permit of the complainant's daughter, Directive 2003/86 on the right to family reunification[1] ('Directive 2003/86') made this right subject to certain conditions, including the provision of evidence of the existence of a family relationship between the refugee and the family member. Member States were entitled to reject an application where a child was no longer below the age of eighteen, but were called upon to decide on applications as soon as possible and within nine months of the application, unless this time limit was extended because of the complexity of the examination.
4. The Commission also explained that it did not have the power to resettle individuals in other EU countries, as the complainant had claimed it should in his case, nor could it review the actions of law enforcement bodies in the Member States. In this regard, it advised the complainant to seek redress at the national level. It concluded that it did not consider that there were any grounds for further action on the basis of the complainant's letter and added that, in any event, it did not have general powers to intervene in individual cases but only where a Member State had failed to comply with its duties under EU law. Finally, it also referred the complainant to the ECHR in case he wanted further to pursue his claim that he had been tortured.
5. In his complaint to the Ombudsman, the complainant complained that the Commission failed properly to deal with his above infringement complaint. In particular, he argued that the Commission did not consider his individual case, but referred to general provisions concerning the naturalisation of persons in Member States, therefore "intentionally covering up the illegal actions of the Austrian judicial authorities". He stated that his complaint had to be investigated fully and by reference to the relevant Austrian law and that the "EU Justice system" should intervene. The Commission or the complainant's legal guardian should gather information concerning all elements of his complaint, and the Commission should annul the relevant Austrian decisions and take a new, lawful decision.
The subject matter of the inquiry
6. The complainant made the following allegation and claims:
Allegation:
The Commission failed properly to deal with the complainant's infringement complaint against Austria, which he submitted on 20 May 2010.
Claims:
(1) The Commission should properly deal with the complainant's infringement complaint.
(2) In particular, the Commission should annul the decisions by the Austrian authorities which the complainant complained about and replace them with its own decision.
The inquiry
7. On 29 July 2011, the Ombudsman asked the complainant to send him a copy of the infringement complaint that the complainant lodged with the European Commission to help him assess whether to ask the Commission for an opinion on the matter. The Ombudsman added that, should the complainant be unable to provide this document, he could also authorise the Ombudsman to ask the Commission to do so.
8. In a number of e-mails of 5 September 2011, the complainant asked the Ombudsman to request the Commission to provide him with a copy of the complainant's infringement complaint. The Ombudsman did so on 8 September 2011. On 14 October 2011, the Commission sent the Ombudsman the documents which it had registered on the file for the infringement complaint submitted by the complainant.
9. In his e-mails of 5 September 2011 and in further e-mails sent between 14 September 2011 and 18 January 2012, the complainant also forwarded to the Ombudsman some documents concerning the background to the complaint that he lodged with the Commission. In these e-mails, he described how he had come to Austria from his home country, via the Netherlands, and had been tortured in all three countries. The complainant also described, and submitted documents to demonstrate, his ongoing struggle with the Austrian authorities in relation to: (i) the rejection of his application for citizenship; (ii) his application to have his legal guardian dismissed; and (iii) his claims that the judge who had dealt with some of his cases should be withdrawn on the grounds of bias. He concluded from his experience that the Austrian legal system was corrupt and that only the European Ombudsman could now help him. The complainant thus also asked the Ombudsman to ask the Austrian authorities to provide him with all relevant decisions so that he could conduct an independent investigation into the matter.
10. The Ombudsman's mandate is limited to investigating allegations of maladministration in the activities of the Union's institutions, bodies, offices and agencies. No action by any other authority or person may be the subject of a complaint to the Ombudsman. In particular, the Ombudsman cannot intervene in cases before courts, nor question the soundness of a court's ruling. The present inquiry is therefore limited to assessing whether the Commission has correctly dealt with the complainant's infringement complaint in line with the allegation and claims set out above.
11. After careful analysis of the complaint and the material mentioned in paragraphs 7, 8 and 9 above, the Ombudsman considered that it was unnecessary to ask the Commission to provide an opinion on the complaint.
12. On 18 January 2012, the complainant informed the Ombudsman that, on 17 January 2012, he had submitted a petition to the European Parliament concerning the subject-matter of the present complaint. The Ombudsman will forward his present decision, for information, to the Committee on Petitions.
The Ombudsman's analysis and conclusions
A. Allegation of failure properly to handle the complainant's infringement complaint and related claim
Elements considered by the Ombudsman
13. The complainant argued that the Commission had wrongly provided him with very general information only. The Austrian authorities had wrongly delayed dealing with his case until the law was reformed. As a result, the fact that he was not to blame for his inability to support himself financially could no longer be taken into account. The fact that the Commission had failed to enter into a detailed analysis of this matter meant that it was complicit in the illegal actions of the Austrian authorities.
14. The complainant had applied for family reunification with his daughter in good time, namely, nine months before she turned eighteen. He explained that under the family law of his home country, a divorce had no impact on either parent's right to custody. Parents undergoing a divorce could come to an agreement on where the child should live, the financial support for the child and on custody. However, the Austrian authorities had arbitrarily required the complainant to submit a court decision to show that he had custody over his daughter, in order to be able to reject his application. When he complained about this to the Commission, it only explained the general procedural rules applicable in the matter and failed to assess his specific case. It had further wrongly stated that the Austrian authorities had nine months to deal with his application. The correct time limit should have been six months. Finally, the complainant argued that it remained necessary to resettle him in another Member State because the "war" between the complainant and the Austrian authorities destroyed his health.
15. In its letter to the complainant, the Commission explained that the rules for granting citizenship of a Member State fell under the exclusive competence of that Member State. The Commission also explained that the fact that Member States were free to determine their citizenship rules themselves meant that it could not intervene to assist the complainant. The decisions of the relevant national authorities could only be challenged at the national level by addressing the competent authorities and, where necessary, the courts.
16. The Commission further explained that Directive 2003/86 entitled children under the age of 18 to join a parent, subject to certain conditions. Refugees such as the complainant had to fulfil the conditions set out in Article 7(1) of Directive 2003/86, namely, they had to have adequate accommodation, sickness insurance and stable and regular resources to support themselves and their family members. The refugee also had to provide evidence of the existence of the family relationship between the refugee and the family member, although, under Article 11(2) of the Directive, this could constitute evidence other than documents, "to be assessed in accordance with national law" where the refugee could not provide the relevant documents. Article 16 allowed Member States to reject an application where the necessary conditions, such as the condition that the child was a minor, were no longer satisfied. Finally, in relation to the complainant's argument that the authorities had wrongfully delayed dealing with his application, the Commission noted that Member States were called upon to decide on applications as soon as possible and within nine months of the application, unless this time limit was extended because of the complexity of the examination. The Commission concluded that it did not appear from the documents submitted by the complainant that the Austrian authorities had breached these provisions.
17. Finally, the Commission explained that it had no powers to resettle individuals. Therefore, if the complainant intended to move to another country, he would have to contact the relevant authorities in that Member State. In this context, the Commission also referred to Directive 2003/109/EC[2] which, from 2014 onwards, would allow refugees to acquire the status of long-term residents in a Member State, and, therefore, give them a right to reside in another Member State for more than three months. This would, however, be subject to certain conditions such as the exercise of an economic activity and the provision of certain documents.
The Ombudsman's assessment
18. The Ombudsman notes that there are no rules in the Treaty on European Union or the Treaty on the Functioning of the European Union which would give the Commission any competence in relation to a decision on whether an individual is to be granted citizenship of a Member State. The Commission's position that it is unable to intervene in the particular case of the complainant is, therefore, manifestly reasonable.
19. It results from the documents made available to the Ombudsman by the Commission (that is, the documents which the complainant had submitted with his infringement complaint) that the complainant made an application for his daughter to be granted a residence permit in order to join him in Austria on 17 September 2007. This was just under nine months before the date on which his daughter turned eighteen (in June 2008). The complainant was invited to meetings with the relevant Austrian authority in Vienna on 14 February 2008 and again on 28 March 2008. On 10 April 2008, the relevant Austrian authority rejected the application, pointing out that it had arrived at the conclusion that it was the complainant's ex-wife (that is, his daughter's mother) who had custody of her daughter. However, the complainant's ex-wife did not have a right to reside in Austria. The complainant appealed this decision on 19 June 2008. The appeal was rejected on 19 August 2008 on the ground that the complainant's daughter had, in the meantime, turned eighteen and was, therefore, no longer a minor.
20. First, as regards the complainant's argument that the Commission was wrong to state that the time limit for deciding on applications for family reunification was nine months, it should be noted that the first sentence of Article 5(4) of the Directive states that "[t]he competent authorities of the Member State shall give the person, who has submitted the application, written notification of the decision as soon as possible and in any event no later than nine months from the date on which the application was lodged." It results from the timeline set out above that it took the Austrian authorities just over six months to take a decision on the complainant's application. In that regard, it may also be noted that the Austrian Volksanwaltschaft (Ombudsman) informed the complainant on 21 December 2009 that it could not find maladministration in relation to the complainant's allegation that the procedure had taken an extremely long time.
21. Further, as the Commission correctly pointed out, Article 16(1) of Directive 2003/86 states that "Member States may reject an application for entry and residence for the purpose of family reunification… where the conditions laid down by this Directive are no longer satisfied". One of these conditions is that the child that is to join his/her parent is still a "minor child", that is, below the age of eighteen. However, it emerges from the documents that the complainant submitted to the Commission that the final decision on his application was indeed based on the fact that the complainant's daughter had, in the meantime, turned eighteen.
22. In relation to the complainant's criticism that the Commission only explained the general procedural rules and did not assess his case in every detail, the Ombudsman considers that the Commission correctly and sufficiently explained its role in infringement proceedings to the complainant. In particular, the Commission correctly pointed out that it did not have general powers to intervene in individual cases but only where a Member State had failed to comply with its duties under EU law. Finally, it is true that EU law does not give the Commission the power to resettle individuals in another Member State. The Ombudsman therefore considers that the Commission's reply in relation to this aspect of the complaint is clearly reasonable.
23. In light of the above, the Ombudsman finds no maladministration in relation to the present allegation and related claim.
B. Claim that the Commission should annul the decisions taken by the Austrian authorities and replace them with its own decision
Elements considered by the Ombudsman
24. The complainant claimed that the decisions taken by the Austrian authorities, courts and lawyers were wrong and unjust. Only the Commission could now help him and had to intervene. In his complaint, he elaborated that this meant that the Commission should annul the decisions taken by the Austrian authorities and courts and take a new, legal decision.
25. In its reply, the Commission explained that it had no general powers to intervene in individual cases. Following an infringement complaint, it could only take legal steps against a Member State where it could show that the Member State had breached duties imposed on it by EU law, such as where it had not properly transposed a Directive or where there was a generalised practice which was not in line with EU legislation.
The Ombudsman's assessment
26. The Commission has the power, under Article 258 of the Treaty on the Functioning of the European Union, to bring an action before the Court of Justice of the European Union where it considers that a Member State has breached its duties under the Treaties and after it has given that Member State the opportunity to make observations on the matter. Its explanation to the complainant that it could not intervene in individual cases is, therefore, clearly reasonable. It also results from the above that the Commission cannot annul a decision of a Member State authority and replace it with its own decision. In light of the above, the Ombudsman finds no maladministration in relation to the present claim.
C. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
No maladministration was found in relation to the present complaint.
The complainant and the Commission will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 23 March 2012
[1] Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ 2003 L 251, p. 12.
[2] Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ 2004 L 16, p. 44.
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