Strasbourg, 7 December 2006

Dear Mr X,

On 24 January 2005, you submitted a complaint to the European Ombudsman about the handling by the European Commission of your complaint (complaint 1) concerning possible violations of Community law by the United Kingdom.

On 4 March 2005, I forwarded your complaint to the President of the Commission. You made a further submission on 29 March 2005, which was forwarded to the Commission in order to be taken into account in view of its forthcoming opinion. On 14 April 2005, you sent me a copy of the Commission's reply to your complaint (complaint 2) of 4 April 2005 including your comments.

The Commission sent its opinion on 16 June 2005. I forwarded it to you with an invitation to make observations, which you sent on 15 August 2005. You contacted my services by telephone on 26 January 2005, 9 June 2005, 19 October 2005 and 2 December 2005 and sent a further submission on 9 April 2006. I am writing now to let you know the results of the inquiries that have been made.

I apologise for the length of time it has taken to complete my inquiries.

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.

The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the Commission.

THE COMPLAINT AND ITS BACKGROUND

On 15 March 2004, the complainant wrote to the Office of the European Commission in Scotland about possible violations of Community law by the Scottish authorities in the United Kingdom. The letter was forwarded to the Commission. On 26 April 2004, the complainant was informed that his complaint (complaint 1) had been registered as an Article 226 complaint. The complainant made additional submissions by letter dated 4 June 2004. In these submissions, he stated, inter alia, that Craig Coilich and the Craigs of Pananich Ballater have the highest density population of endangered species such as capercaillie(1) in the Deeside area. Moreover, he maintained that Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption(2) ("Directive 98/83/EC") and Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy(3) ("Directive 2000/60/EC") had not been implemented in Scotland. He was concerned about the situation because the quality of a local stream started to deteriorate in 2001 and 2002 after the construction of a woodland path. On 4 June 2004, the complainant wrote again to the Commission about the protection of the quality of the drinking water.

On 27 August 2004, the Commission's Directorate-General for the Environment ("DG ENV") informed the complainant that it had assessed his complaint file. In reply to a relevant query made by the complainant, DG ENV first remarked that Community law legislation on nature and wild bird protection is intended to protect these species regardless of the ownership of the land on which they are present. Further, DG ENV stated that the United Kingdom authorities had adopted and communicated to the Commission the legislation implementing in Scotland Directive 98/83/EC and Directive 2000/60/EC. It provided the complainant with the relevant references and concluded that it could not identify a breach of Community law and that it would propose to close the file of the complaint. Finally, it invited comments from the complainant.

On 10 September 2004, the complainant replied to the Commission. Subject 1 of the letter was defined as "Complaint concerning protection of Annex I species and their Habitat". The complainant made several remarks in this regard. He also noted that the legislation referred to by the Commission as having implemented Directive 98/83/EC covered only public water supplies and not private water supplies.

In its reply of 14 October 2004, the Commission pointed out that European funding had been provided to maintain the conservation status of capercaille in Scotland, but the information provided by the complainant did not show that this funding was being applied in a way that was detrimental to the protection of the species. It further stated that it would register as a new complaint (complaint 2) the matter raised by the complainant in relation to the implementation of Directive 98/83/EC, and would contact the United Kingdom authorities in this regard.

By letter of 31 October 2004, the complainant emphasised that the hill woodland at issue had the highest density population of Annex I endangered species capercaillie in the Deeside area. He said that the Commission had taken no notice of what he had told it and had simply dismissed his complaint without conducting a proper inquiry. He added that information regarding capercaillie on this land should be easily available to the Commission, if it were to conduct an inquiry. He referred to Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds(4) ("Directive 79/409/EEC") and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora(5) ("Directive 92/43") and pointed out that, in violation of these Directives, the area at issue did not have adequate protection.

In its reply of 10 December 2004, DG ENV informed the complainant that the Commission had already launched infringement proceedings, under Article 226 of the EC Treaty, about the protection of capercaillie in Scotland. The information provided by the complainant so far had not, however, been precise enough to be used in the context of these infringement proceedings. DG ENV further stated that if the complainant had specific details of the latest survey of the site with estimates of the potential capacity of the area for capercaillie, it would gladly take another look at this. It specified that it needed to have details, preferably on a map, of the extent of the area the complainant was alleging should be designated as a Special Protection Area ("SPA") by the Commission.

In his complaint to the Ombudsman, the complainant challenged the propriety of the above-mentioned Commission's reply of 10 December 2004. The Ombudsman opened an inquiry into the following allegation and claim made by the complainant:

The complainant alleges in substance that the Commission is acting unfairly by putting an excessive burden on the complainant to obtain evidence needed to prove that the Member State is not complying with Community law.

The complainant claims that the Commission should investigate the case itself.

THE INQUIRY

The Commission's opinion

The Commission made the following remarks:

As regards the complaint (complaint 1), the Commission maintained that the complainant's main concern was that a new footpath had been constructed in the vicinity of his house and that this was having a negative impact on the drinking water which was supplied to his house from local streams. The complainant also raised concerns about the impact of the new footpath on wildlife in the local area due to increased public access to woodlands. According to the Commission, the protection of wildlife and capercaillie, in particular, did not appear to be his first concern. Indeed, in the correspondence enclosed with his letter of 4 June 2004, he requested that new fencing be erected to keep people out of the woodlands where it might affect his water supply. In this correspondence, he also recognised that forest fencing was one of the main threats to capercaillie, because capercaillies frequently fly into forest fences, often with fatal results.

The Commission maintained that, in his various letters, the complainant referred in very general terms to many Community directives, but without providing any indication that these had, in fact, been breached. In his letter of 4 June 2004, the complainant stated that "[t]he European Directives for Drinking Water, Natura, Habitats and Birds and Water Framework and others if adhered to would not only protect different species but may also help to protect our drinking water supply." DG ENV therefore wrote to the complainant on 27 August 2004 explaining that the main Directives to which he was referring (Directive 98/83/EC and Directive 2000/60/EC) appeared to have been fully transposed in the United Kingdom and that there was insufficient evidence to show that these Directives were not being correctly applied. DG ENV indicated that the complaint (complaint 1) would therefore be closed, but that this proposal was subject to any comments he might have.

According to the Commission, no direct reply was received from the complainant, but letters of 10 September 2004 and 17 September 2004 from the complainant were again forwarded to DG ENV through the Secretariat-General by the Commission's Scottish Office. In his letter of 10 September 2004, the complainant again referred to various Community directives with rather vague allegations that they might have been breached and requested assistance in understanding the directives referred to. It appeared from the correspondence copied with this letter that two United Kindgom authorities were in contact with the complainant in order to resolve his concerns. Furthermore, it appeared that the issues raised by the complainant concerned his private water supply rather than a specific breach of Community environmental legislation in particular with regard to nature protection. One matter of concern to DG ENV, however, was raised in the complainant's letter of 10 September 2004, namely, his allegation that the Scottish authorities had failed correctly to transpose Directive 98/83/EC. It was therefore decided to further investigate this matter. In order to separate this matter out from the various and often confusing allegations made concerning the footpath behind the complainant's house, a new complaint file (complaint 2) was opened to focus on this question. Consultants assessing on behalf of DG ENV the transposition of this Directive in the United Kingdom were directed to specifically assess this question in their final report.

These matters were explained to the complainant in DG ENV's letter of 14 October 2004. The letter also explained to the complainant that the exclusion of individual supplies from the scope of Directive 98/83/EC was provided for by the Directive itself and was not merely an interpretation by the Commission. Article 3(2)(b) of the Directive provides that Member States may exempt from the provisions implementing this Directive water intended for human consumption from an individual supply providing less than 10 m³ a day as an average or serving fewer than 50 persons, unless the water is supplied as part of a commercial or public activity. DG ENV therefore advised the complainant to take this matter up directly with the national authorities. The complaint (complaint 1) was closed in October 2004.

On 8 November 2004, DG ENV received the complainant's letters of 18 and 31 October 2004. The letter of 18 October 2004 reiterated the complainant's concern that he had not received a reply to his previous correspondence. As explained in his letter of 31 October 2004, the complainant stated that an area of land which appeared to include the hill behind his house was home to the highest density population of capercaillie area in the Deeside area and that it should therefore have been designated as a protected area. The complainant did not, however, provide details of the source of the information, the actual density of capercaillie in numbers or the location and/or extent of the site in question. From the information contained in previous correspondence, it appeared that the hill could be part of a forest area. The letter furthermore included a rather confused list of incomplete questions about various matters related to his concerns about the fact that Directive 98/83/EC discriminates against private drinking water serving fewer than 50 people.

DG ENV replied on 10 December 2004 attempting to address those issues on which it could adequately provide a reply. In this reply, DG ENV tried again to explain the process by which Community directives are adopted and also the fact that it is not within the powers of the Commission to re-interpret agreed legislative texts in order to apply Directive 98/83/EC in the complainant's case, given that it appeared that the water supply in question was one potentially falling into the exception provided for in Article 3(2)(b) of the Directive. The letter also explained that the more general allegation of the complainant, i.e., that the Scottish implementing legislation communicated to the Commission for the purposes of implementing Directive 98/83/EC did not cover any private water supplies, was still under investigation in the context of the complaint file (complaint 2).

On 4 April 2005, DG ENV informed the complainant, in the context of the complaint file (complaint 2), that its study into the transposition of Directive 98/83/EC had been completed. The complainant received a copy of those sections which concerned the transposition of the Directive in Scotland. They showed for Scotland that Directive 98/83/EC had been mainly transposed by the Water Supply (Water Quality) (Scotland) Regulations 2001, No. 207 (as amended by the Water Supply (Water Quality)(Scotland) Amendment Regulations 2001, No. 238). It appeared that no distinction was made between private and public water supplies and that the Scottish authorities had chosen not to transpose the potential exclusion provided for in Article 3(2)(b) of the Directive for individual supplies serving fewer than 50 people. Following the complainant's concerns raised in his letter of 10 September 2004 about the fact that the Directive was not being applied to private water supplies, DG ENV asked its consultants who were at the time in the process of assessing the quality of the transposition by the United Kingdom specifically to address this question. DG ENV concluded that there was no transposition gap in the way in which the Scottish authorities had transposed Directive 98/83/EC. Therefore, it suggested to the complainant that he, in the first instance, specify the provisions he considered to have been breached to the independent Drinking Water Quality Regulator in charge of the implementation of the Directive in Scotland. DG ENV provided the complainant with the contact details of the Regulator and emphasised that, if his contacts with the Regulator were to be unsatisfactory, he would of course be welcome to contact DG ENV again. In light of the fact that the report showed that the Directive has been transposed in Scotland and that an independent Regulator had been appointed to oversee its application, the letter informed the complainant that it was proposed to close the complaint file (complaint 2).

On receiving DG ENV's letter of 4 April 2005, the complainant telephoned DG ENV to explain that the situation on the ground was not as described in the study prepared by the consultants. DG ENV asked the complainant to put his comments in writing. These written comments were received on 14 April 2005, and a reply was sent to the complainant on 2 June 2005, informing him that the Commission would contact the United Kingdom authorities to seek further clarification. The Commission emphasised that the complainant would, of course, be informed and that the complaint file would be kept open.

With regard to the allegations on capercaillie, DG ENV requested that the complainant provide more details to substantiate the vague claims made, given that the information provided by the complainant in his letter of 31 October 2004 effectively amounted to allegations that a hill in Deeside, Scotland was home to a large but unspecified number of capercaillie and that an unspecified meeting had been held in order to discuss the matter. This allegation was so vague that, in the absence of further specification, it was not possible to verify this claim against the survey data already in DG ENV's possession.

The Commission noted that, as had been pointed out to the complainant in its letter of 10 December 2004, DG ENV is very concerned about the decline of capercaillie in Scotland, including in the Deeside area. DG ENV has, for some time, been pursuing this matter with the United Kingdom authorities, both in another infringement file (complaint 3) (a supplementary letter of formal notice was issued to the United Kingdom authorities in December 2004 and the United Kingdom's response was at the time under assessment) and through the monitoring of a Community-funded LIFE project aimed at putting in place measures to assist in the protection of capercaillie, inter alia, through the removal of deer fencing. Officials from DG ENV have visited Scotland in order to assess the impact of the LIFE project which was still ongoing. In this context, the request of DG ENV to the complainant was entirely genuine as one of the key allegations in the current infringement procedure was that the United Kingdom could be doing more in order to designate further SPAs for capercaillie under Directive 79/409/EEC.

From its experience in handling the open infringement file on this matter, DG ENV was aware that much information on the distribution of capercaillie was publicly available. Given the vagueness of the complainant's letter of 31 October 2004, DG ENV did not know if the source of the complainant's information on capercaillie was new information which had come to light as the result of, for example, an Environmental Impact Assessment into the unspecified proposed development of the site to which he referred or information obtained by him from other sources. The information that DG ENV had in its possession indicated that the forest area in question was home to a small number of capercaillie, but that this population is considerably smaller than that present at the nearby SPA. In contrast, the complainant, in his letter of 31 October 2004, claimed that the population in that forest area was, according to his information, the largest in Deeside. He did not however further substantiate his claim with any details. In fact, no reply was received from the complainant to DG ENV's request for further clarifications and the complainant seemed to have preferred to refer the matter directly to the Ombudsman. Updated information had however been received by DG ENV from complainants in the context of another infringement file (complaint 3) in April 2005. This indicated that the capercaillie population in a nearby SPA had declined, whilst the population in the forest area had increased to the point that the question was raised as to its potential designation as an SPA. This was confirmed by further details provided by the complainant to the Ombudsman in his letter of 29 March 2005. This matter was being assessed in the context of the infringement file (complaint 3). The Commission maintained that the complainant will be provided with an update of the situation once this assessment was completed.

In his complaint to the Ombudsman, the complainant relied on guidance that access to environmental information may be refused when the authorities consider that it may be detrimental to the environment, for example, when access to environmental information may help one to locate nesting sites for endangered species. DG ENV was aware of this guidance which is in line with the requirement of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment(6) ("Directive 90/313/EEC") as replaced, since 14 February 2005, by Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC(7) ("Directive 2003/4/EC"). Article 3(2), seventh indent, of Directive 90/313/EEC, which was applicable at the time the complainant raised his concerns, and also Article 4(2)(h) of Directive 2003/4/EC, which replaces it, both allow Member States to refuse access to information where this may adversely affect or damage the environment. However, these provisions had not impeded the public flow of information on the location of capercaillie in any of the dealings that DG ENV has had in the past. Furthermore, it was not clear whether the complainant had, in fact, made any attempt to obtain this information and had been thwarted in his attempts by this provision.

With regard to the complainant's statement that DG ENV did not reply to all his questions, DG ENV focused on those issues which were raised in his various letters and which appeared to identify potential breaches of Community environmental law. In the interests of proportionality, DG ENV focused on the main issues of Community concern: the correct transposition of the two main Directives concerned (Directive 98/83/EC and Directive 2000/60/EC) as well as the need for clarifications on claims that the area in question should be classified as an SPA under Directive 79/409/EEC for capercaillie. The Commission was of the opinion that, given the nature of the complainant's concerns, its approach was in line with the requirements of good administration and proportionality.

The complainant's observations

Regarding the path, the complainant stated that his concern in 2001 was for his drinking water supply, but that he was not able to ignore the fact that capercaillie is a protected species. According to the complainant, the path affected birdlife more than his drinking water supply, since it ran through the centre of woodland.

The complainant maintained that, if the Commission had a difficulty with his complaint or required more information, they had his telephone number. He also maintained that he was alarmed that a path had been constructed in the bed of a stream causing pollution of the stream and of his drinking water supply. The complainant underlined that any pollution also affects wildlife. The complainant also expressed his concern about whether Directive 98/83/EC had been transposed into Scottish law and maintained that this was not the case. According to the complainant, the local authority cannot enforce this legislation until it has been implemented by the Scottish Parliament and the local authority cannot be pursued through the courts for any failure to enforce a law that has not been transposed into Scottish law, even if Directive 80/778/EEC were repealed five years after the entry into force of Directive 98/83/EC.

Based on Article 3(2) (b) of Directive 98/83/EC, the complainant alleged discrimination against a group of people of under 50 persons compared to a public or a group of over 50 persons regarding their drinking water supply source. The complainant explained that, during a telephone conversation with the Commission, he learned that the Capercaillie Project Officer from the Royal Society for the Protection of Birds (RSPB) was assisting the Commission with information regarding c apercaillie. The complainant was concerned that the Commission did not appear to know the Project Officer prior to his enquiry, although RSPB was the only organisation holding all available information about all 643 c apercaillie sites. According to the complainant, the increased numbers of c apercaillie have been obtained by carrying out surveys on more sites.

The complainant referred to the Commission's request for information addressed to him by stating that, as far as he was aware, Article 4(1)(a) of Directive 2003/4/EC provides that, if information is not held by a public authority, such as the Commission, the latter should either transfer a request to public authorities that hold the information or inform the complainant about a public authority to which he may apply to gain access to this information. The complainant explained that he had made enquiries for information regarding capercaillie to the Scottish authorities. However, he was refused any useful information that would enable him to present a proper case identifying more sites to the Commission. The complainant underlined that he had made an application to a Scottish authority in 2005 without being able to obtain information requested. The complainant maintained that the national authorities legally refused to grant him the relevant information. He suggested that, if information were withheld, the Commission should request that information.

Finally, the complainant maintained that the Commission has the task of enforcing the relevant Directives. It should, therefore, be the Commission's duty to check and ensure that all Directives are transposed into Member State law in time and that Member States are complying with Community law. If the Commission were carrying out its duties properly, there should be no need for a citizen to have to inform the Commission of any breach of Community law.

THE DECISION

1 Preliminary remarks

1.1 The Ombudsman, first, recalls that, as determined in the European Ombudsman's letters addressed to the complainant and the European Commission on 4 March 2005, the present inquiry concerns the following:

"The complainant alleges in substance that the Commission is acting unfairly by putting an excessive burden on the complainant to obtain evidence needed to prove that the Member State is not complying with Community law.

The complainant claims that the Commission should investigate the case itself."

The Ombudsman observes that the Commission made such a request to obtain evidence in its letter of 10 December 2004:

"With regard to the Capercaillie, I also note the information you provide. I am not dismissing your claims regarding the protection of this species. The Commission has launched infringement proceedings as a result under Article 226 of the EC Treaty. The information you have so far provided has not however been sufficiently precise for us to use in the proceedings and as such it has not been included in our ongoing case. If you have specific details of the latest survey of the site with estimates of the potential capacity of the area for Capercaillie then we would gladly have another look at this in the context of our assessment which is ongoing. We would also need to have details, preferably on a map, of the extent of the area you are alleging should be designated as a Special Protection Area."

The Commission thus requested from the complainant evidence in support of his allegation that there was a violation of Community law on the protection of wild bird species and their habitats. The Commission does not appear to have asked the complainant "to obtain evidence needed to prove that the Member State is not complying with" Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption(8) ("Directive 98/83/EC") or Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy(9) ("Directive 2000/60/EC").

The scope of the present inquiry and decision thus concerns the issue of whether the Commission acted unfairly by asking the complainant to provide evidence proving that the Member State was not complying with Community law on the protection of wild bird species and their habitats.

1.2 In his observations on the Commission's opinion, the complainant alleged that Directive 98/83/EC discriminated against a group of people of less than 50 persons in relation to drinking water supply source compared to a group of over 50 persons. Relatedly, the Ombudsman notes that, i n accordance with Article 2(2) of Statute of the Ombudsman, he will not extend his inquiry to cover this allegation, which does not concern a possible instance of maladministration in the activities of the Commission, but the propriety of Community legislation addressed to the Member States. The Ombudsman also recalls that, in both its opinion and in its letter of 4 April 2005, the Commission indicated that the Scottish authorities have chosen not to exempt individual water supplies serving fewer than 50 people from the scope of Directive 98/83/EC.

1.3 In his observations, the complainant referred again to the issue of transposition of Directive 98/83/EC into Scottish law. More specifically, the complainant argued that, in order for this legislation to be enforced on the local level, it has to be implemented by the Scottish Parliament. Moreover, the complainant argued that the local authority cannot be pursued through the courts for any failure to enforce a law which has not been transposed into Scottish law. The Ombudsman observes that these arguments which are raised by the complainant, constitute new points, that concern a matter falling within the scope of his present inquiry, and, as such, will not be examined as to their merits in the context of the present decision. Relatedly, the Ombudsman also notes that this issue has been specifically and extensively addressed by the Commission in its letters of 27 August 2004 and 4 April 2005 to the complainant.

1.4 In his observations, the complainant made a new allegation, according to which the Commission is a public authority, within the meaning of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC(10) ("Directive 2003/4/EC"), and, as such, should, pursuant to this Directive, have either transferred a request for environmental information to the public authorities holding this information or have informed the complainant about a public authority from which he could obtain this information. The Ombudsman notes that the Commission does not constitute a "public authority", within the meaning of Article 2 of the above-mentioned Directive(11) or of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment(12) ("Directive 90/313/EEC"), which are addressed to the Member States and not to the Community or its Institutions. Hence, the Ombudsman will not extend his inquiry into this allegation.

2 Allegation that the Commission acted unfairly by putting an excessive burden on the complainant to obtain evidence needed to prove that the Member State is not complying with Community law on the protection of wild bird species and their habitats

2.1 On 15 March 2004, the complainant made a complaint to the Commission about possible breaches of Community law by the United Kingdom (Article 226 complaint). He made additional submissions by letter dated 4 June 2004. The complainant indicated, inter alia, that a wooded hill in the Deeside area was a habitat for a dense population of the endangered species capercaillie. He mentioned that he had telephoned a Scottish authority and asked if that land area had been designated as a Special Area of Conservation or a Special Protection Area ("SPA") and he was informed that it had not. The complainant also mentioned that a feasibility study was being carried out for a quite large development in the area. He asked whether protected species are exempt from protection if they are on Government land.

On 27 August 2004, the Commission replied that Community law legislation on nature and wild bird protection applies to protect these species regardless of the ownership of the land on which they are present. It concluded that it could not identify a breach of Community law.

By letter of 10 September 2004, the complainant referred again to the inadequate protection of the endangered species capercaillie and its habitat in Deeside.

In its letter of 14 October 2004, the Commission stated that "[w]ith regard to the information you provide on complaint file [complaint 1] we remain of the opinion that the issues you raise with regard to the maintenance of forest footpaths are of local concern and that they do not appear to provide evidence of a breach of Community law. You are correct in stating that European funding has been provided to maintain the conservation status of capercaillie in Scotland. The information you provide does not show that this funding is being applied in a way that is detrimental to the protection of the species."

On 31 October 2004, the complainant replied that "[a]t [a] meeting for [a] feasibility study about [the] possible development on [the] side of [a] hill the subject of Capercaillie came up and [the fact] that the hill woodland was a special site for Capercaillie. It has the highest density population in the Deeside Area of Annex 1 Endangered Species Capercaillie yet it has not been classed [as a] Special Protection Area or [a] Special Area of Conservation. The nearest land classed [as] such (...) is close by. I have been advising [the] European Commission since 15th [M]arch 2004 that this hill woodland has [the] Highest Density Population of Annex I endangered Species Capercaillie in the Deeside area yet you take no notice of what I tell you and simply dismiss this without making [a] proper enquiry. The land in question has higher density population of Capercaillie than [the nearest SPA]. Information regarding Capercaillie on this land should be easily available should the European Commission make [an] enquiry." Relatedly, he referred to Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds(13) ("Directive 79/409/EEC") and 92/43/EC and pointed out that, in violation of these Directives, the area at issue did not have adequate protection.

The Commission replied on 10 December 2004 stating that "[w]ith regard to Capercaillie, I also note the information you provide. I am not dismissing your claims regarding the protection of this species. The Commission has already had cause for concern about the protection of this species in Scotland and has launched infringement proceedings as a result under Article 226 of the EC Treaty. The information you have so far provided has not however been sufficiently precise for us to use it in these proceedings and as such it has not been included in our ongoing case. If you have specific details of the latest survey of the site with estimates of the potential capacity of the area for Capercaillie then we would gladly have another look at this in the context of our assessment which is ongoing. We would also need to have details, preferably on a map, of the extent of the area you are alleging should be designated as a Special Protection Area."

2.2 In his complaint to the Ombudsman the complainant argued that "[a] path has been constructed through [a forest area] which has [the] highest density population in [the] Deeside area of [the] endangered species Capercaillie (habitat of European annex 1 protected species). (...).

Would the EC not require all of the latest survey sites information before launching infringement proceedings? I understand that 643 Capercaillie sites were surveyed. If the EC do not have a list of all Capercaillie sites including [this forest area] how can they make a proper assessment as to whether a Member State is or is not complying with Community law[?] (...).

It is one thing for a citizen to assist in identifying a case where a Member State is not applying Community law, but then for the EC to ask the citizen to prove this case and to provide specific detailed information that may legally be withheld from a citizen is not reasonable. (...).

The specific details of the latest survey of the site would be made available to [the] EC but can be legally withheld from me, a fact that [the] EC know or should know. The EC should have details of all 643 Capercaillie site surveys."

The complainant quoted a paragraph from the Scottish Executive Environment Group Consultation on Access to Environmental Information of 29 June 2004 in which it was stated "[t]he 1992 Environmental information regulations allowed a more precautionary approach in that environmental information could be withheld where its disclosure would increase the likelihood of damage. This is in line with Article 2 of European Directive 1990/313/EC, which refers to information which would adversely affect the environment but goes beyond the Scottish regulations in specifically giving the example of breeding sites of rare species."

2.3 In its opinion, the Commission rejected the complainant's allegation. It pointed out that DG ENV requested that the complainant provide details to substantiate his vague claim that a hill in Deeside Scotland was home to a large number of capercaillie (and, as such should be a Special Protected Area) and that this matter had arisen at an unspecified meeting. Without further specification it was not possible for the Commission to verify this claim against the survey data already in DG ENV's possession.

The Commission further noted that, as had been pointed out to the complainant in its letter of 10 December 2004, DG ENV is very concerned about the decline of capercaillie in Scotland, including the area of Deeside. DG ENV has, for some time, been pursuing this matter with the United Kingdom authorities, both in the infringement file (complaint 3) (a supplementary letter of formal notice was issued to the United Kingdom authorities in December 2004 and the United Kingdom's response was at the time under assessment) and through the monitoring of a Community funded LIFE project aimed at putting in place measures to assist in the protection of capercaillie. Officials from DG ENV have visited Scotland to assess the impact of the LIFE project which was still ongoing. In this context, the request of DG ENV to the complainant was entirely genuine, as one of the key allegations in the current infringement procedure was that the United Kingdom could be doing more in the way of designating further SPAs for capercaillie under Directive 79/409/EEC.

From its experience in handling the infringement file on this matter, DG ENV was aware that much information on the distribution of capercaillie was publicly available. Given the vagueness of the complainant's letter of 31 October 2004, DG ENV did not know if the source of the complainant's information on capercaillie was new information, which had come to light as the result, for example, of an Environmental Impact Assessment into the unspecified proposed development of the site he referred to or information obtained by him from other sources. The information in DG ENV's possession indicated that the forest area in question was home to a small number of capercaillie, and that this population is considerably smaller than that present at the nearby SPA. In contrast, the complainant, in his letter of 31 October 2004, claimed that the population in this forest area was, on the basis of his information, the largest in Deeside. He did not, however, substantiate his claim with any details. In fact, no reply was received from the complainant to DG ENV's request for further clarifications. Updated information had however been received by DG ENV from complainants in the context of the infringement file (complaint 3) in April 2005. This indicated that the capercaillie population in the nearby SPA had declined, whilst the population in this forest area had increased to the point that the question was raised as to its potential designation as an SPA. This was confirmed by the further details provided by the complainant to the Ombudsman in his letter of 29 March 2005. This matter was being assessed in the context of the infringement file (complaint 3). The Commission maintained that the complainant would be provided with an update of the situation once this assessment has been completed.

In addition, the Commission observed that, in his complaint to the Ombudsman, the complainant relied on guidance that access to environmental information may be refused where the authorities consider that it may be detrimental to the environment, for example, when access to environmental information may help one to locate nesting sites for endangered species. DG ENV was aware of this guidance which is in line with the requirement of Council Directive 90/313/EEC on the freedom of access to information on the environment(14) as replaced since by Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information(15) and repealing Council Directive 90/313/EEC 14 February 2005. Article 3(2), seventh indent, of Directive 90/313/EEC, which was applicable at the time the complainant raised his concerns, and also Article 4(2)(h) of Directive 2003/4/EC, which replaces it, both allow Member States to refuse access to information where this may adversely affect or damage the environment. However, these provisions had not impeded the public flow of information on the location of capercaillie in any of the dealings that DG ENV has had in the past. Furthermore, it was not clear that the complainant had, in fact, made any attempt to obtain this information or had been thwarted in his attempts by this provision.

2.4 In his observations, the complainant maintained his allegation and stated that that he had made enquiries for information regarding capercaillie to the Scottish authorities. However, he was refused any useful information that would enable him to present a proper case identifying more sites to the Commission. The complainant underlined that he had made an application to a Scottish authority without being able to obtain the requested information.

2.5 The Ombudsman, first, observes that, in the context of his Article 226 complaint, the complainant alleged, in essence, that the Member State had failed to meet its obligations under Article 4 of Directive 79/409/EEC. As noted in the Commission's letter of 10 December 2004, he suggested, in particular, that the hill woodland at issue should, pursuant to Article 4(1) of this Directive(16), have been classified, as an SPA for the conservation of c apercaillie. In this regard, the Ombudsman recalls that the selection of SPAs and the definition of their boundaries is subject to certain ornithological criteria (defined by the Directive), concerning the application of which Member States have a certain margin of discretion(17). Hence, the issue as to whether certain territories should be classified as SPAs is examined on the basis of scientific data relating to these ornithological criteria.

2.6 In the present case, the Commission explained that it has already initiated infringement procedures against the United Kingdom, as regards the fulfilment of the Member State's obligation to classify the most suitable territories, in number and size, as SPAs for the conservation of c apercaillie. In this context, the Commission had obtained information also on the area of Deeside. This scientific information indicated that the forest area was home to a small number of capercaillie, and that this population was considerably smaller than that present at the nearby SPA. In contrast, the complainant emphasised in his letter of 31 October 2004 to the Commission that the population of capercaillie in the forest area was the largest in Deeside. However, the complainant did not specify the source of this information and referred only in general terms to a "meeting for feasibility study about possible developement on side of hill", during which the issue of the protection of capercaillie had been raised. The Ombudsman thus notes that the Commission's request (expressed in its letter of 10 December 2004) that the complainant provide certain information was made under the following circumstances:

(i) The selection of SPAs for the conservation of capercaillie and the definition of their boundaries should be subject to certain ornithological criteria and should be examined on the basis of relevant scientific data.

(ii) The Commission had already investigated the issue of the United Kingdom's compliance with its obligation, under Article 4(1) of the Directive, to classify as SPAs all the sites which, in applying these ornithological criteria, appear the most suitable for the conservation of capercaillie. In this regard, the Commission has initiated pertinent infringement procedures against the United Kingdom.

(iii) The Commission had not included the forest area in these sites, apparently because, on the basis of the scientific information it possessed, the forest area was home to a small number of capercaillie, and this population was considerably smaller than that present at the nearby SPA.

(iv) The complainant emphasised that the population of capercaillie in the forest area was the largest in Deeside. This argument would be well founded if it were based on relevant ornithological studies which could be reasonably understood by the Commission as suggesting that the complainant was aware of updated scientific data that called into question the accuracy of data already in its possession.

(v) The complainant did not provide any specific scientific data in support of his above argument and did not specify the source of his information.

2.7 In his complaint to the Ombudsman, the complainant argued that "[t]he specific details of the latest survey of the site would be made available to EC but can be legally withheld from me, a fact that EC know or should know." The complainant quoted a paragraph from the Scottish Executive Environment Group Consultation on Access to Environmental Information of 29 June 2004 in which it was stated "[t]he 1992 Environmental information regulations allowed a more precautionary approach in that environmental information could be withheld where its disclosure would increase the likelihood of damage. This is in line with Article 2 of European Directive 1990/313/EC, which refers to information which would adversely affect the environment but goes beyond the Scottish regulations in specifically giving the example of breeding sites of rare species." The complainant thus indicated that, according to the relevant national regulations, one could be refused access to environmental information held by public authorities, if its disclosure were likely to harm the environment. The complainant, however, has not explained why and how this exception from the general principle of public access to environmental information held by public authorities, established by Directive 90/313/EEC(18) prevented, or was likely to prevent, him from obtaining the information requested by the Commission in its letter of 10 December 2004. Moreover, as pointed out by the Commission's opinion, this exception did not appear to have impeded the public flow of information on the habitats of capercaillie in the context of its dealing with the protection of capercaillie in the United Kingdom. Furthermore, the complainant did not in any way demonstrate that there were such impediments. In his observations, the complainant said that he had made enquiries for information regarding capercaillie to the Scottish authorities, but he was refused any useful information that would enable him to present a proper case, identifying more sites, to the Commission. Nevertheless, the complainant provided this information for the first time only in his observations, in addition he did not specify the content of his requests and of the reasoning of the replies he received from the above entities and submitted no relevant supporting documentation. Finally, as noted in the Commission's opinion, updated information was received in April 2005 by DG ENV from complainants in the context of the infringement file (complaint 3), which indicated that the capercaillie population in the nearby SPA had declined, whilst the population in this forest area referred to by the complainant had increased to the point that the question was raised as to its potential designation as an SPA. The provision of this information by other complainants does not support the complainant's above-mentioned argumentation.

2.8 In light of the above, the complainant's allegation cannot be sustained. The Ombudsman, thus, finds no corresponding maladministration on the part of the Commission.

3 Claim that the Commission should investigate the case itself

3.1 The complainant claims that the Commission should investigate the matter itself.

3.2 The Commission said in its opinion that updated information had been received by DG ENV from complainants in the context of the infringement file (complaint 3) in April 2005. This indicated that the capercaillie population in the nearby SPA had declined, whilst the population in the forest area referred to by the complainant had increased to the point that the question was raised as to its potential designation as an SPA. This was confirmed by the further details provided by the complainant to the Ombudsman in his letter of 29 March 2005. This matter was being assessed in the context of the infringement file (complaint 3).

3.3 Under these circumstances and also taking into account his conclusion in point 2.8 of the present decision, the Ombudsman finds that that no further inquiry into, and consideration of, this aspect of the complaint is justified.

4 Conclusion

On the basis of his inquiries into this complaint, the Ombudsman finds no instance of maladministration. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Please note that as you have requested I have forwarded your further submission of 9 April 2006 to the Commission.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Species of wild birds (Tetrao urogallus).

(2) OJ 1998 L 330, p. 32.

(3) OJ 2000 L 327, p. 1.

(4) OJ 1979 L 103, p. 1.

(5) OJ 1992 L 206, p. 7.

(6) OJ 1990 l 158, p. 56.

(7) OJ 2003 L 41, p. 26.

(8) OJ 1998 L 330, p. 32.

(9) OJ 2000 L 327, p. 1. In this regard, the Ombudsman notes that the Commission examined the compliance of the Member State with these directives from the point of view of whether they had been adequately transposed, through relevant national legislation and not of the point of view of the application of these national provisions in a way which would be violative of the Member State's obligations under the Directives. The Commission found no violation in this regard and did not ask the complainant to provide the Commission, in the context of its dealing with his two Article 226 complaints (complaint 1 and complaint 2), with any "evidence needed to prove" such non-compliance with Community law.

(10) OJ 2003 L 41, p. 26.

(11) Article 2 of Directive 2003/4/EC provides:

"2. ‘Public authority’ shall mean:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition."

(12) OJ 1990 l 158, p. 56. Directive 90/313/EEC (Replaced since 14 February 2005 by Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90/313/EEC, OJ 2003 L 41, p. 26) provides as follows in its Article 2(b):

"For the purposes of this Directive:

(...)

(b) 'public authorities' shall mean any public administration at national, regional or local level with responsibilities, and possessing information, relating to the environment with the exception of bodies acting in judicial or legislative capacity."

(13) OJ 1979 L 103, p. 1.

(14) OJ 1990 L 158, p. 56.

(15) OJ 2003 L 41, p. 26.

(16) Article 4(1) of Directive 79/409/EEC provides:

"1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.

In this connection, account shall be taken of:

(a) species in danger of extinction ;

(b) species vulnerable to specific changes in their habitat;

(c) species considered rare because of small populations or restricted local distribution;

(d) other species requiring particular attention for reasons of the specific nature of their habitat.

Trends and variations in population levels shall be taken into account as a background for evaluations.

Member states shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this directive applies."

(17) See Case C-3/96 Commission v The Netherlands [1998] ECR I-3031, paragraphs 59-61. As regards the Member States' obligation to classify SPAs, see paragraphs 61-62 of this case.

(18) OJ 1990 L 158, p. 56.