Decision of the European Ombudsman in case OI/6/2018/LM on the European
Commission’s failure to report on time on Member States’ compliance with
Directive 2010/64/EU on the right to interpretation and translation in criminal
proceedings
Decision - Case OI/6/2018/LM - Opened on
Tuesday | 09 October 2018 - Decision on Monday | 10 December 2018
This own-initiative
inquiry concerns the Commission’s continued delay in submitting a report to the
European Parliament and the Council on Member States’ compliance with Directive
2010/64/EU on the right to interpretation and translation in criminal
proceedings.
The Ombudsman
inquired into the issue and found that the Commission’s continued delay runs
counter to the Directive and a previous commitment it made to submit the report
in the beginning of 2018 at the latest. The Ombudsman thus closed the inquiry
with a finding of maladministration.
Background to the inquiry
1. Directive 2010/64/EU (‘the Directive‘) lays down
rules concerning the right to interpretation and translation in criminal
proceedings and proceedings for the execution of a European arrest warrant[1].
The Directive required EU Member States to bring into force the laws,
regulations and administrative provisions necessary to transpose the Directive
into the national legal systems by 27 October 2013.
2. The Directive states that the “European
Commission shall, by 27 October 2014, submit a report to the European
Parliament and to the Council, assessing the extent to which the Member States
have taken the necessary measures in order to comply with this Directive,
accompanied, if necessary, by legislative proposals”[2].
3. The Ombudsman opened an inquiry into complaint
969/2017/LM, which concerned the Commission’s failure to submit the report
within the statutory deadline. The complainant argued that the Commission was
obliged, by 27 October 2014, to submit to the European Parliament and to the
Council a report assessing the extent to which Member States had taken the
necessary measures to comply with the Directive.
4. In the context of the Ombudsman’s inquiry into
complaint 969/2017/LM, the Commission argued that, before it could prepare the
report, the Member States would have to have transposed the Directive into
national law. The Commission’s main priority was to ensure that all Member
States transpose the requirements of the Directive into national law, so that
the rights set out in the Directive are effectively protected throughout the
European Union. On the date of expiry of the transposition period (27 October
2013), 16 Member States had not communicated transposition measures to the
Commission. In November 2013, the Commission therefore started infringement
proceedings for non-communication or partial communication of transposing
measures against these 16 Member States.
5. In September 2017, when the Commission replied to
the Ombudsman’s inquiry into complaint 969/2017/LM, all Member States had
communicated national measures transposing the Directive. The Commission stated
that it was thus in a position to assess the extent to which Member States had
taken the necessary measures to comply with the Directive. The Commission was
thus preparing the report, which would be published as soon as the compliance
assessment of the national measures was finalised, in the beginning of 2018 at
the latest.
6. In March 2018, when the Ombudsman published her
decision in case 969/2017/LM[3],
the Commission was already more than three years late in submitting the report
to Parliament and Council. The Ombudsman considered that the Commission could
have submitted “an interim report, within the 12-month deadline, which
simply communicated the position as of the date of the report”. She found,
however, that “there was no intentional breach by the Commission of its
statutory obligation to report by 27 October 2014. The Commission, it would
seem, was focused on the substantive issue of producing a comprehensive
conformity assessment across all of the Member States. At the same time, the
Commission missed an opportunity to show that it respects the obligations laid
on it by the particular Directive. Nevertheless, and in the particular
circumstances, the Ombudsman does not find that the Commission’s failure
amounted to maladministration. In all the circumstances, the Ombudsman
concludes that further inquiries into this complaint are not justified”.
Furthermore, the Ombudsman noted the Commission’s commitment to submit the report
“at the latest at the beginning of 2018”. Given that three months into 2018
had passed at that point, the Ombudsman trusted that the Commission would
indeed submit the report without further delay.
7. In March 2018, the complainant in case 969/2017/LM
contacted the Ombudsman to follow up on the matter, as no report had yet been
published.
The inquiry
8. On 9 October 2018, the Ombudsman opened an inquiry
into the Commission’s continued failure to submit the report in question. In
the course of the inquiry, the Ombudsman asked the Commission to clarify the
reasons for the additional delay.
9. In its reply dated 14 November 2018, the Commission
reiterated that the preparation of the report requires, first, the
transposition of the Directive by all Member States and, second, a thorough
assessment of the completeness and conformity of all national measures
transposing the Directive.
10. The Commission noted that there was a delay in the
transposition of the Directive by certain Member States, which had postponed
the overall assessment process. The Commission could close the infringement
proceedings against those Member States only in January 2018, after having
assessed the national measures.
11. The Commission further noted that the additional
delay in submitting this report is due to the complexity of the assessment not
only of the completeness, but also of the conformity, of all the legislative
measures communicated by the 27 Member States[4].
The Commission stated that there is a draft report ready and it intends to
submit the final report to Parliament and Council before the end of 2018.
The Ombudsman’s assessment
12. The further delay set out above runs counter to the
Commission’s commitment to submit a report in the beginning of 2018 at the
latest.
13. Assessing the completeness and conformity of the
Member States’ transposition measures in respect of a Directive, having regard
to the specificities of each national legal system, is inevitably a complex
task. Nevertheless, the Commission’s explanations of the further delay in
submitting the report to Parliament and Council fall short of addressing the
reasonable assumption that, in setting a time limit for the report to be submitted,
the legislator sought to reconcile this complex task with its wish to be kept
informed about the state of the transposition at that particular point in time.
14. The Commission could have complied with its
reporting obligation by submitting an interim report, within the 12-month
deadline, taking stock of the position as of the date of the report. This would
not have prevented the Commission from publishing, later on, a complete final
report on the completeness and conformity of the transposition measures of the
Directive in the Member States.
15. On the basis of the above, and given the further
delay incurred in submitting the report, there is maladministration by the
Commission. At this point, the Ombudsman does not consider it appropriate to
make a corresponding recommendation to the Commission.
Conclusion
There is
maladministration by the European Commission given it has not yet produced the
report to the European Parliament and to the Council required under Directive 2010/64/EU
on the right to interpretation and translation in criminal proceedings, which
was due on 27 October 2014.
The European
Commission and the complainant in case 969/2017/LM will be informed of this
decision.
Emily
O'Reilly
European
Ombudsman
Strasbourg,
10/12/2018
No comments:
Post a Comment