Letter from the European Ombudsman opening own-initiative inquiry OI/3/2009/MHZ concerning the European Commission

Langues disponibles : en
  • Affaire : OI/3/2009/MHZ
    Ouvert le 6 mai 2009 - Décision le 3 sept. 2010, 3 sept. 2010
  • Domaine(s) juridique : Environnement, consommateurs et protection de la santé
  • Allégations de mauvaise administration - i) violation de, ou ii) violation des obligations liées à : Légitimité (application incorrecte des règles concernant le fond ou la procédure) [Article 4 CEBCA]
  • Sujet(s) : La Commission en tant que gardienne des traités : article 258 TFUE (ex-article 226 TCE)

Mr José Manuel Barroso
President of the European Commission
1049 Brussels
BELGIQUE

 

Strasbourg, 6 May 2009

 

Own-initiative inquiry OI/3/2009/MHZ relating to the European Commission

 

Mr President,

On 26 February 2009, I received a complaint, dated 16 February 2009, which a Spanish NGO submitted against the Commission (complaint 517/2009/MHZ). The complainant argued that the Commission "selects" cases to register as complaints, without giving proper reasoning for such action. The complainant supported this argument on the basis of specific correspondence it sent to the Commission and alleged that the latter did not register the correspondence as infringement complaints. Given that, in its letter of 16 February 2009, which it sent to the complainant in the meantime, the Commission properly clarified why the complainant's correspondence in question was not registered as infringement complaints, I considered that this aspect of complaint 517/2009/MHZ contained insufficient grounds for opening an inquiry.

However, in its above letter of 16 February 2009, the Commission went on to make certain statements which may be interpreted as expressing its general policy concerning the registration, as complaints, of correspondence relating to the infringement of Community environmental law by Member States.

The Commission first stated that it endeavours to prioritise cases in which its intervention appears more necessary and may have more impact. Its services therefore identify the categories of cases concerning the possible infringement of Community environmental law which, as specified in the Commission's Communication on implementing EC Environmental Law (COM(2008)773), should receive priority treatment. In this context, the Commission "invited" the complainant to focus on the above priorities when submitting complaints to it. In addition, the Commission referred to its practice of not registering as infringement complaints correspondence relating to access to environmental information, in cases where a complainant has not used the existing mechanisms established to this effect under the relevant national law.

I am concerned by the above statements and have thus decided to open an own-initiative inquiry into the Commission's policy of registering in its central registry of complaints correspondence relating to infringements of Community environmental law.

At the outset, I would like to recall important guarantees regarding the handling of complaints, which were offered to the complainants by the Commission itself in its Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law[1] ('the Communication'). This Communication ensures that the complaint is dealt with according to the Commission's internal administrative procedures for handling infringement cases. The basic rule therein is that all complaints will be recorded in the central register of complaints kept by the Secretariat-General. Exceptions to this basic rule are that correspondence is not to be investigated as a complaint and shall therefore not be recorded in the central registry of complaints, if:

"- it is anonymous, fails to show the address of the sender or shows an incomplete address;

-it fails to refer, explicitly or implicitly, to a Member State to which the measures or practice contrary to Community law may be attributed;

- it denounces the act or omissions of a private person or body , unless the measure or complaint reveals the involvement of public authorities or alleges their failure to act in response to those acts or omissions. In all cases, the Commission shall verify whether the correspondence discloses behaviour that is contrary to the competition rules (Articles 81 and 82 of the EC treaty);

- it fails to set out a grievance;

- it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant; and

- it sets out a grievance which clearly falls outside the scope of Community law."

The above list of exceptions is exhaustive. If correspondence is not registered as a complaint, it must be for one or more of the above reasons and the author must be informed of the reason or reasons.

The Commission's above statements contained in its letter of 16 February 2009 could, however, suggest that the Commission has introduced two "new" exceptions to the above rule, which are not referred to in the Communication. These would be cases where (i) the correspondence in question does not concern the category of infringement of Community environmental law which is on the Commission's "priority list" and, (ii) correspondence refers to access to environmental information and the complainant has not used the existing mechanisms established to this effect under national law.

Even though the Commission has an undisputed discretion to amend its own Communication concerning how it handles complaints and infringement procedures and could indeed add the above "new" exceptions, citizens may reasonably expect that all applicable exceptions are publicly recognised and that the Commission will apply the rules it has itself laid down, until such time as the Communication is amended.

In this regard, I would be grateful if the Commission could clarify whether it indeed applies the above "new" exceptions and if so, whether it considers it useful to broaden the list of exceptions contained in the first paragraph of point 3 (Recording of complaints) of the Communication on the basis of which "[c]orrespondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints."

I invite the Commission to submit its opinion by 31 August 2009. The Commission could include, as part of its reply, a flow chart showing how correspondence alleging non-compliance with Community law by a Member State is dealt with by its services.

I would also like to inform the Commission that I will forward a copy of the present letter to the complainant in case 517/2009/MHZ for information. I will also give it the opportunity to submit observations on the Commission's opinion.

My Legal Officer, Ms Marta Hirsch-Ziembinska (tel.: +33 388 172746), will be responsible for the case.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

[1] COM(2002)141 final.