Bringing cases before the European Commission
This page provides guidance on submitting complaints to the European Commission (EC). The information was inspired by the webinar “Bringing cases before the European Commission” organised by ILGA-Europe on 30 April 2020.
It is presented in a Q&A format addressing questions raised during the webinar, but also those that were submitted to us by our members, LGBTI activists and lawyers working in the field of LGBTI rights. If you have a question that is not addressed below, please contact ILGA-Europe, we will do our best to provide further guidance and clarification.
ILGA-Europe has partnered up with law firms specialising in European Union (EU) law to provide support with complaints submissions. If you need such help, please contact us by providing details about your case and any steps taken to address the situation in the Member State or multiple Member States concerned and we will search for support to connect you with.
I. European Commission Complaint in theory
How to bring a complaint to the European Commission?
Q. What is a Complaint to the European Commission?
A. Complaint is any written approach made to the European Commission pointing to measures, absence of a measure or practices of a Member State contrary to EU law.
Q. Who can initiate a complaint?
A. Any citizen or legal person whose rights have been infringed due to lack of incorrect application of EU law. There is no need to demonstrate formal interest (i.e. no need to be specifically concerned by the issue).
IMPORTANT: the aim of the complaint is a general one, rather than directed to resolve personal situations.
It is aimed at ensuring the laws of the Member State in question are brought fully into line with EU law and correctly applied.
In order to directly resolve your personal situation, or be awarded compensation, you should take action locally, in the Member State concerned.
- If solving your problem requires a national decision to be annulled, only national courts can do this
- If you are seeking compensation for damage, only national courts have the power to order authorities in their jurisdiction to award this.
Submitting a complaint to the European Commission does not suspend the time limits for starting legal action under national law.
Q. What is the importance of this mechanism for the European Commission?
A. Important source of information on:
- Possible absence of transposition of measures or incorrect transposition.
- Issue in terms of administrative practice.
“As guardian of the Treaties, the Commission acknowledges the vital role played by the complainant in helping the Commission to detect infringements of Union law”
Breach of EU law by repetitive administrative practices can lead to infringement when there is “sufficiently documented and detailed proof of the alleged practice of the national administration and/ or courts”.
EC Complaint mechanism is very important. It allows to document the extent of the issue.
Q. What can the complaint concern?
- The complaint can concern an attitude of a Member State or situation for which the Member State is deemed responsible and which, in the view of the complainant, infringes EU Law.
- You may identify as much as possible the EU law that is supposedly infringed. You can contact the European Commission about any measure (law, regulation or administrative action), absence of measure or practice by a country of the European Union that you think is against EU law (see the examples from the Workshop speakers about implementation of Coman judgment and French blood donation regulation)
- The complaint should be submitted in writing in one of the EU official languages. The language used in the complaint will be used for the reply.
- There is a specific form available online.
- It is important to use the form. Try to be as precise as possible (easier for the EC to understand how the issue falls within the scope of EU law).
- Describe exactly how you believe that national authorities have infringed EU law, and which is the EU law that you believe they have infringed.
- Provide details of any steps you have already taken to obtain redress.
Q. When will a complaint not be recorded?
A. The complaint will not be recorded if:
- Anonymous/ no complete address
- if the complaint leads to contacts with the Member State, the complainant can tick a box requesting their name not to be disclosed to the Member State.
- No reference to a Member State.
- Acts or omissions or a private person or body.
- Failure to set out a grievance.
- Setting out a grievance to which the European Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant.
- Setting out a grievance clearly falling outside the scope of EU law.
Q. What are the timelines?
- Acknowledgment of receipt: 15 working days.
- Time-limit for investigation of the complaints: usually one year – extension possible.
- The European Commission tries to inform the complainant at least once a year on the developments.
Q. Outcome: possible decisions
A. At each stage, the complainant is to be informed about developments of the case/ decision adopted.
- Pre-closure: Four weeks deadline before closure for complainants to submit more/ new information.
- Transfer to SOLVIT (file closed).
- Transfer to EU Pilot (file closed): EU Pilot is an informal dialogue between the European Commission and the relevant Member State about issues related to potential non-compliance with EU law. This dialogue takes place before the Commission launches a formal infringement procedure. The complainant will be informed of the different steps taken with the Member State.
- Transfer for opening of an infringement procedure (file closed):. The case moves to a different stage referred for the infringement, the complainant is informed of the developments.
- Other: no registration in CHAP, withdrawal by the complainant.
Q. There have been developments in the case since the original submission of the complaint, how should we send an update regarding our complaint? (E.g. where the emergency judicial procedure stage has finished with a refusal, the case being continued in a lower court.)
A. You can send an email to the email address mentioned in the acknowledgment of receipt mentioning the reference number of the complaint (CHAP(year)number). The correspondence will be added to the complaint file.
Q. For strategic considerations, is it better to bring a case in the name of an NGO or individual? Is it as effective when the complaint is brought before the EC by an individual/group of individuals or a lawyer?
A. Legally, a complaint by an individual or a group of citizens would be assessed equally. However, a complaint filed by an association or a lawyer representing many citizens with the same problem would carry more political weight and may be more effective.
Q. If the EU law is vague (e.g. it’s not clear whether couples in same-sex partnership are included in the Directive, or other areas affecting LGBTI rights), can citizens submit a complaint, or should there be first a judgment from the Court of Justice of the European Union (CJEU) to clarify this, like it was done through Coman case for the term spouse, and then they could come to the EC with a complaint?
A. There is no requirement for the CJEU to have given a judgment on a matter or interpreting a EU law provision for a complaint to be filed with the European Commission. The complaint may point to a possible ambiguity of legislation that can lead to problems in practice. The EC can then consider if it would be appropriate to adopt measures - for example, discussing the interpretation and application of the provision with the Member States within the appropriate fora, issuing a communication or, if considered appropriate, requesting an Opinion from the CJEU.
Potential Areas for submitting a complaint to the EC
Q. Following Coman judgment, what are the gaps in law and areas in need for clarification by EU law affecting freedom of movement of rainbow families?
Related post judgment questions: What the CJEU did NOT yet decide in Coman?
Other relevant EU law aspects that could be raised in potential complaints
Q. What are other avenues for citizens to challenge Member States’ practice?
- Letters to the European Commissioners: Apart from the application procedure for complaints before the European Commission, citizens can address the EC by sending letters to the Commissioners to express their concerns and urge the Commissioners to act. This is also a helpful avenue to inform the Commission of problems.
- Submitting Petitions to the European Parliament: Any citizen of the European Union, or resident in a Member State, may, individually or in association with others, submit a petition to the European Parliament on a subject which comes within the European Union’s fields of activity and which affects them directly.
Petition to the European Parliament can be submitted online here. The Petitions Committee is responsible for the examination and admission of any petition. A petition may take the form of a complaint, a request or an observation concerning problems related to the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter. Your petition may therefore give the European Parliament the opportunity to call attention to any infringement of a European citizen's rights by a Member State, local authorities or other institutions.
1. What is it?
SOLVIT is an online service and free of charge. You can submit a problem if you haven’t taken your case to court.
- It is a network of civil servants in each Member State.
- Solves problems caused by incorrect application of EU law by an authority in another country.
- Applicable where at least two Member States are involved.
- Allows to avoid recourse to legal proceedings (time and cost).
- Provides real and quick solutions to problems .
- Suitable mostly to address administrative practices/issues/misunderstandings (not legislation).
2. Requirements and procedure
- Not any national proceedings (appeal or other cases before national jurisdictions).
- The situation can either go directly to SOLVIT.
- Or the complaint gives agreement for transfer (form to be sent to EC).
- Deadline: 10 weeks from attribution accepted by a SOLVIT centre.
- If the case cannot be solved and if there is no evidence => case closed.
SOLVIT Center of applicant
SOLVIT Center of the authority
II. European Commission Complaint in practice
Why was this mechanism chosen, what was the experience with using the procedure and are there any lessons learnt so far?
The Complaint can have political/mediatic/legal effect. Sometimes when deciding to initiate a legal proceeding, even if there is not much chance to win the case, initiation of the procedure can have the mediatic effect to advance LGBTI rights.
Complaints are used when there is an identified lack of implementation of EU law.
Our Members experience with the Complaint procedure:
Example 1- The French blood donation case
- Before 2015: It was impossible for gay men to donate their blood if they had had sexual intercourse with another man. This ban lasted their entire life.
- 2015: CJEU condemned France, finding discrimination based on sexual behaviour (SB) to amount to discrimination based on sexual orientation (SO).
- New French Law: no discrimination based on SO for blood donation.
- Decree (Minister of Health): gay men must be abstinent for 1 year to give blood.
- Decree was challenged before the French Conseil d’Etat (CE). CE considered that French law complied with EU laws and French Constitutional laws because discrimination based on SB ≠ discrimination based on SO.
- Complaint before the European Commission
- Mediatic effect: On 20 June 2019, five French associations (Stop Homophobie, Mousse, Elus Locaux Contre le sida (ELCS), SOS homophobie and Familles LGBT) submitted a complaint before the European Commission describing the impact
- Immediate Political effect: French Government decided to change the law as soon the complaint was introduced, reducing abstinence period from one year to four months.
- Intended legal effect (still pending): EC and CJEU to clarify it is not possible to discriminate based on the behaviour when this behaviour has revealed a sexual orientation.
Example 2- The Coman case: lack of implementation of the CJEU judgment on freedom of movement of same-sex couples
Coman case: Issue of mutual recognition of a same-sex marriage contracted in another Member State
WHEN an EU citizen moves from one Member State to another with the aim to settle in the latter, and that EU citizen is married to a person of the same-sex (in this case a third country national), and their marriage was contracted in an EU Member State, the Member State to which the EU citizen moves is required to recognise the couple as ‘spouses’ for the purpose of granting family reunification rights deriving from EU law (Dir. 2004/38 and Art. 21 TFEU).
Result: EU citizens can move with their same-sex spouse to establish residency in their home country after having consolidated their family life for at least three months in another EU State.
- Despite the judgement, Romania still refuses to grand residency to same-sex spouses when marriage was contracted in another Member State.
- Solution: bringing complaints to the European Commission to ensure implementation of the judgement.
Positive aspects and shortcomings of the EC Complaint procedure
Positive aspects of the EC Complaint procedure
Shortcomings of the procedure
III. EU Regulations in the field of family-related cross-border situations
The EU Regulation that addresses jurisdiction, applicable law and recognition/enforcement in the field of family law and succession is gender-neutral:
In the sphere of private law (as opposed to criminal law or public law), which governs the relations between persons and companies, three questions are relevant in cross-border situations: (i) which Member State’s courts are competent to handle a case (‘jurisdiction’), (ii) which national law of all those potentially applicable should govern a given situation or dispute (‘applicable law’), and (iii) how a judgment given in a Member State should be recognised and enforced in another Member State (‘recognition and enforcement’).
What EU Law already does
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
Member States have the obligation to recognise judgements on family issues decided in other Member State in non-discriminatory manner (e.g. divorce of same-sex couples with children (maintenance, custody); succession judgements)
EU law on free movement: Obligation to recognise public documents on civil status without the apostille requirement.
Regulation 2016/1191 (the Public Documents Regulation) abolishes authenticity requirements (the apostille stamp) for public documents issued by, and presented to, authorities in Member States in certain areas, including civil status (for example, birth, marriage, registered status), and introduces multilingual standard forms to bridge language barriers. This regulation, however, does not concern the recognition of the content or effects of public documents.
Cross-border situations: EU REGULATION on jurisdiction, applicable law and recognition/enforcement in the field of family law and succession is gender-neutral:
- Regulation No 2201/2003 (Brussels IIa Regulation) on ‘jurisdiction’ and ‘recognition/enforcement’ in the area of matrimonial matters (divorce, legal separation and marriage annulment) and parental responsibility matters (custody, access (or visit) rights, child abduction, placement of a child). N.B.: Regulation 2019/1111 (the Brussels IIa recast), amends the provisions on parental responsibility matters of the Brussels IIa Regulation. It will apply from 1 August 2022.
- Regulation No 1259/2010 (Rome III) on ‘applicable law’ in the area of divorce and legal separation. It was adopted by enhanced cooperation and applies in 17 Member States (BE, BG, DE, ES, FR, IT, LV, LU, HU, MT, AT, PT, RO, SI, LT, EL, EE). Applicable law provisions on parental responsibility matters are contained in the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children;
- Regulation No 4/2009 (the Maintenance Regulation) on ‘jurisdiction’, ‘applicable law’ and ‘recognition/enforcement’ in the area of maintenance obligations (towards, for example, ex-spouses and children);
- Regulation 2016/1103 and Regulation 2016/1104 on ‘jurisdiction’, ‘applicable law’ and ‘recognition/enforcement’ in the areas, respectively, of the property regimes of marriages and the property regimes of registered partnerships. These were adopted by enhanced cooperation and apply in 18 Member States (SE, BE, EL, HR, SI, ES, FR, PT, IT, MT, LU, DE, CZ, NL, AT, BG, FI, CY);
- Regulation No 650/2012 (the Succession Regulation) on ‘jurisdiction’, ‘applicable law’ and ‘recognition/enforcement’ in the area of succession (inheritance)