Sophie in 't Veld files a complaint against the European Commission - Main contents
Against which European Union (EU) institution or body do you wish to complain?
European Commission
What is the decision or matter about which you complain? When did you become aware of it? Add annexes if necessary.
Herewith, I would like to submit a complaint against the Decision C (2017) 3205 final of 8th of May, 2017 of the Secretary General on behalf of the Commission pursuant to Article 4 of the Implementing Rules to Regulation (EC) N 1049/2001. By means of the latter, the Commission refused to grant full or partial public access to all Commission documents related to the infringement proceedings NIF/2011/2054 against the United Kingdom regarding transposition of Directive 2004/38/EC in the UK from 2011 until present and on NIF/2012/4106 based on Article 21 TFEU from 2012 until present. My initial request for access to documents was submitted on the 9th of March 2017 [GestDem 2017/1502], followed by a confirmatory application submitted on the 18th of April 2017.
Furthermore, I would like to note the culture of unnecessary delays and failures to reply demonstrated by the European Commission in this case. On the 17th of January, I submitted a written parliamentary question to the European Commission [P-000226-17], where I specifically requested an update as regards the outcome of the infringement proceedings against the UK on the application of Free Movement Directive by the UK. The answer received only on the 9th of March and well beyond the official deadline was a de facto unsatisfactory 'non-answer'. In the plenary debate of 1st of March 2017, by means of an Oral question [O-000008-2017] the European Commission was urged to explain what actions it has taken as a follow-up to infringement proceedings against the UK. Again, the European Commission stated not more than the obvious, e.g that there are two pending infringement proceedings against the UK regarding the application of the Free Movement Directive. In a letter to the Commissioner Jourova from 9th of March 2017, again a complete overview of the state of the infringement proceedings NIF/2001/2054 and NIF/2012/4106 as well as on the developments since they were launched was requested. The answer of the European Commission, received 2 months later, again failed to provide satisfactory and detailed explanation of the problem [Ares(2017)2240612 - 02/05/17].
In April 2012, the European Commission stated [IP/12/417], that the restrictive interpretation of the Directive 2004/38/EC, implied in the refusal to consider the entitlements to treatment by the UK public healthcare scheme (NHS) as sufficient, e.g as a 'comprehensive sickness insurance' for the purposes of securing residence rights for non-economically active individuals, breaches the EU law. The European Commission 'has given the United Kingdom two months to comply with European Union rules on the free movement of EU citizens and their families across the EU or face an EU court case'. Five years later the infringement procedure is still pending and the situation is not rectified. The consequence of the inaction of the European Commission results in enormous uncertainty and insecurity that millions of European citizens are facing as to enforcement of their rights under the Directive 2004/38/EC. The European Commission as the guardian of the Treaties is responsible for the enforcement of EU law. The full discretion of the European Commission to start, suspend or terminate infringement proceedings against Member States shall never lead to situations where the latter are kept pending ad aeternam. Therefore, both the refusal to be accountable by answering questions as to the fulfillment of its duties and the refusal to act and enforce the European law constitutes, in my view abuse of discretionary power.
What do you consider that the EU institution or body has done wrong?
As elaborated in my confirmatory application for access to documents under Regulation (EC) No 1049/2001 - GESTDEM 2017/1502 of 18th of April 2017, I believe that the European Commission cannot base its decision on the general presumption of non-disclosure stipulated in the provision of Article 4 (2), third indent of Regulation 1049/2001. The European Commission should, instead, carry out a specific and individual assessment of the content of each requested document and thus examine the possibility for granting partial access. Furthermore, the European Commission claims that there is no overriding public interest in disclosure, but fails to justify why there is lack of such in these specific cases. Contrary to the European Commission, I would argue that there is a very strong overriding public interest in disclosure. Namely, the interest of more than 3 million European citizens in the UK who need to know urgently what their situation is, especially in light of the official notification of Brexit under Article 50, which now triggers the 2 year time limit. Citizens, who need to know if and how the European Commission is defending their rights. Citizens, who need to know whether the entitlements to the NHS are to be considered as a comprehensive sickness insurance. Clearly, given that the infringement proceedings against the UK were launched in 2011 and 2012 respectively, (...) a "reasonable" period for the Commission and the UK to settle this issue amicably has clearly passed. Furthermore, disclosure of the documents could potentially provide affected citizens with ways of further action to ascertain their rights as enshrined in European law.
What, in your view, should the institution or body do to put things right?
As elaborated in my confirmatory application for access to documents under Regulation (EC) No 1049/2001 - GESTDEM 2017/1502 of 18th of April 2017, I would argue that the European Commission should provide a favourable answer to my request. It should grant full or partial public access to all Commission documents related to the infringement proceedings NIF/2011/2054 against the United Kingdom regarding transposition of Directive 2004/38/EC in the UK from 2011 until present and on NIF/2012/4106 based on Article 21 TFEU from 2012 until present.
Furthermore, the European Commission should not abuse its discretionary powers of conducting infringement proceedings. It should conclude the infringement proceedings NIF/2011/2054 and NIF/2012/4106 based on Article 21 TFEU as soon as possible and assure European citizens in the UK as to what are their rights under Directive 2004/38/EC, and how are they to be respected.
Finally yet importantly, the European Commission should provide detailed, comprehensive and pertinent answers, and within the official deadlines, to the questions tabled by the representatives of the EU citizens.