Summary of decision on own-initiative inquiry OI/3/2009/MHZ concerning the European Commission

A Spanish environmental non-governmental organisation (NGO) informed the Ombudsman that the Commission did not appear to register correspondence alleging infringements of EU Environmental Law as a complaint if it considers that (i) the subject of the complaint does not deserve priority treatment, and (ii) the correspondence relates to access to environmental information where the mechanism for redress under national law has yet to be exhausted. However, the Commission's Communication to the European Parliament and the European Ombudsman on relations with complainants in respect of infringements of EU law ('the 2002 Communication') provides the basic rule that all correspondence which is likely to be investigated as a complaint is registered in the central register of complaints. The exceptions to this rule contained therein do not include the above two exceptions. The Ombudsman therefore decided to launch his own-initiative inquiry in this respect.

In its opinion, the Commission stated that it had not introduced any new exceptions to the basic rule referred to above, and that only the six exceptions referred to in the 2002 Communication are binding. It clarified that "prioritisation" does not concern the registration of correspondence as a complaint, but the subsequent administrative stage, when the complaint is already registered, and dealt with as such. As regards correspondence on access to environmental information, however, the Commission stated that its interpretation of the 2002 Communication was that such correspondence falls within the exception provided of "it fails to set out a grievance".

The Ombudsman found that the way in which the Commission decides to prioritise the handling of complaints lies within its margin of discretion. He was concerned, however, that the Commission interprets the exception "it fails to set out a grievance" to cover correspondence relating to the refusal of access to environmental information where the national mechanism of redress has not been exhausted. He considers that this interpretation may be too broad, and that it may not best serve the Commission's purpose, which is to provide greater protection for citizens' interests.

The Ombudsman shared his concerns with the Commission in a separate letter. In reply, the Commission stated that it accepts the Ombudsman's invitation to narrow its interpretation of the existing exception in the 2002 Communication of "it fails to set out a grievance". It declared that it would not use this exception as a basis for the non-registration of future complaints on access to environmental information in its new central CHAP register. The Ombudsman therefore closed his own-initiative inquiry and concluded that the Commission did not commit an instance of maladministration.