Dear Mr P.,
On 15 July 1998, you addressed a complaint to the European Ombudsman on behalf of the Spanish environmental NGO "Centro de Acuicultura Experimental". The complaint, which had originally been lodged with the University Hospital "La Fe" was forwarded to me by that public Spanish institution on 21 July 1998. It concerned the allegedly unjustified closing of a complaint you had sent to the Commission, in which you claimed that the regional authorities of Valencia were introducing non-native fish species in the Serpis river in Valencia with the ensuing damage to the native population, in breach of EC law.
On 26 August 1998, I forwarded your complaint to the President of the European Commission with a request for comments by the end of November 1998. On 16 November 1998 I received the Spanish version of the Commission's opinion, which I forwarded to you on 23 November. On 24 December 1998 you sent your observations to the Hospital "La Fe" which forwarded them to me on 28 December 1998. You added some further elements in several additional letters dated 22 October 1998, and 11 January and 16 March 1999.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

According to the complaint, the facts are as follows:
On 22 January 1994 the complainant lodged a complaint with the Commission which was registered by its services under file number P/4119/94. The complaint concerned the introduction of foreign fish species (American trout) in the river Serpis in Valencia, and the negative impact that these actions were having on the population of a local species, the "samaruc" (Valencia hispanica). The complainant explained that on 9 June 1994, the head of the responsible Commission services informed him that the institution could not take any action in the case since the only EC legislation applicable to the situation was Directive 92/43/EEC on habitat protection, which had entered into force after 6 June 1994.
On 26 May 1995 the complainant wrote again to the Commission pointing out that the actions denounced in his previous complaints were still taking place. On 22 August 1995 the Commission requested further details from him on the situation, which he forwarded on 14 August 1996.In the absence of a reply from the Commission, the complainant sent another copy of his previous letter including some relevant documents to the institution on 19 May 1997. The responsible Commission services replied on 28 July 1997, still requesting further evidence. He submitted these documents (an 85-page dossier) to the Commission on 17 October 1997.
Despite the evidence submitted, the Commission wrote to the complainant on 20 May 1998 informing him that his complaint had been closed. Since the complainant considered that the decision was unreasonable, he lodged a complaint with the European Ombudsman, in which he stated that the responsible Commission services (DG XI) had ignored the evidence he had submitted, and requested that they reconsider the merits of his claims.
The complainant sent additional information to the Ombudsman on 22 October 1998 in which he explained that on 31 July 1997 and 17 July 1998, he had furnished new evidence to the Commission in support of his claims, not having received any reply from the institution.
In summary, the complainant considered that the Commission had failed to consider the evidence he had repeatedly submitted to the institution concerning an alleged infringement of Directive 92/43/EEC, and to properly deal with the related complaint (P/97/4858).

THE INQUIRY

The Commission's opinion
In its opinion, the Commission first pointed out that the complaint sent to the Ombudsman related to a Commission complaint (P/97/4858) which was currently being investigated, and which had not been closed as stated by the complainant. The institution indicated that the complainant had not made any previous administrative approach towards its services regarding the handling of that complaint, in breach of the provisions of Art. 2§4 of the Statute of the European Ombudsman.
Having stated the administrative safeguards which the Commission generally undertakes in the handling of any complaint, the institution explained the procedure which had been followed in this particular instance.
The complainant had sent several letters to the Commission in 1994 concerning the introduction in the river Serpis, Valencia, of schools of American trout, a non-native fish species. In his view, these actions could have negative effects on the "samaracus" ("Valencia hispanica"), an endangered native species. This type of fish had been included as protected fish species under Council Directive 92/43/EEC of 21 May 1992, on the conservation of natural habitats and wild fauna and flora(1).
Since, as explained by the Commission, the facts denounced by the complainant occurred before the entry into force of Directive 92/43/EEC, his complaint had to be closed. In the letter to him notifying the closure of the complaints, he was told that should he provide new evidence, a new complaint would be registered.
The responsible Commission services in DGXI invited the complainant to submit further evidence in a letter of 28 July 1997, as he did on 10 October 1997. A new complaint, 97/4858, was then registered, and an acknowledgment of receipt sent to him on 19 December 1997.
In order to investigate this complaint the Commission services contacted the Spanish authorities, which sent some information to the Commission on 19 February 1998. The Commission informed the complainant of the Spanish comments, which its services were assessing at that time. Having completed the evaluation, the Commission services wrote again to the complainant on 20 May 1998, and indicated that the facts he had denounced did not appear to be in breach of Directive 92/43/EEC. The Commission explained at length the reasons which support its conclusions, namely that,
(1) The presence of the "Valencia hispanica" in river Serpis had not been confirmed, according to available scientific evidence.
(2) The introduction of non-native trout species took place at the beginning of the 70s in most Spanish rivers for fishing purposes. It occurred therefore long before Directive 92/43/EEC had entered into force.
(3) Properly speaking, no new introduction of non-native trout had occurred afterwards, but only a reinforcement of an existing presence, traces of which were found already in the 70s.
(4) A scientific study supplied by the Spanish authorities explained that even in the case that the samaracus species were present in that river, its habitat differs from that of the non-native species and therefore the latter could not represent a threat to the former.
The previous conclusions have been drawn on the basis of a scientific study by Prof. Lobon Cervia published by the Spanish "Consejo Superior de Investigaciones Científicas".
The Commission stressed that its letter to the complainant of 20 May 1998 had not closed the case, as the complainant had stated to the Ombudsman in his letter of 15 July 1998.
The complainant's observations
In his observations, the complainant stated that he had not had access to the evidence submitted by the Spanish authorities to the Commission. Furthermore he questioned the impartiality of the specialists who had given scientific advice to the Commission services on this matter.
The complainant believed that the statements made by the Commission to justify the closing of the case, namely that the introduction of foreign fish species could not have any negative impact on the local fauna of river Serpis, and that the species "Valencia hispanica" was not present in that river, were scientifically unsupported. He referred then to a number of scientific opinions, in particular to those of Prof. Elvira and Prof. Doadrio.
The complainant also pointed out that the Commission was contradicting itself when it indicated, on the one hand, that the situation was not contrary to Directive 92/43/EEC, whereas at the same time, it indicated that the facts occurred, nevertheless, before the Directive's entry into force.
The complainant stressed that the responsible Commission services were not properly considering the factual and scientific evidence he had brought forward, and considered that the responsible Commission services were acting arbitrarily in this case.
On 11 January 1999, the complainant informed the Ombudsman that he had forwarded several documents to the Commission on the same date which proved that the illegal introduction of American trout was still taking place. The reply from the Commission, dated 26 January 1999, was deemed insufficient by the complainant. He thus wrote again to the Ombudsman on 16 March 1999 claiming that the Commission was not properly responding to his complaints, and asking for information on the means to have disciplinary sanctions imposed on the civil servants in charge of this file.

THE DECISION

On the basis of the information provided by the complainant and the observations submitted by the European Commission, the Ombudsman has reached the following conclusions:
1 Admissibility of the case and further inquiry by the European Ombudsman
1.1 In order to be admissible, a complaint to the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned (article 2 § 4 Statute of the European Ombudsman).
1.2 At the time the Ombudsman received the first letter from the complainant, it appeared as if the Commission had already closed the case. Moreover, since the Commission and the complainant had exchanged an extensive correspondence, the Ombudsman considered that the criteria for the admissibility of the complaint had been met.
1.3. The Ombudsman notes, however, that the Commission was right in pointing out that the complaint was still on-going at that time, and therefore that questions of admissibility could have arisen.
Nevertheless, the Ombudsman considered that his inquiry should continue since further administrative approaches were not an appropriate way to deal with the substantive questions which remained unresolved following the Commission's opinion and the complainant's observations.
2 The Commission's handling of the complaint
2.1 In the complainant's view, the Commission failed to properly investigate his claims. In his view the scientific arguments employed by the Commission to conclude that there had not been a breach of Directive 92/43/EEC in this case were insufficient. Thus the Commission's decision to close the case was arbitrary and unjustified.
2.2. The Commission has argued that it decided to close the case (complaint P/98/4858) on the grounds that it did not consider that the situation was in breach of EC law, in particular of Directive 92/43/EEC.
The reasoning given to the complainant to justify this decision were the following: (i) no scientific evidence had confirmed the presence of the endangered local fish species "Valencia hispanica" in river Serpis; (ii) non-native trout species had already been introduced in the 70s in most Spanish rivers; (iii) therefore they had already their habitats in those areas when Directive 92/43/EEC entered into force, and (iv) the habitat of the local "Valencia hispanica" differs from that of non-native trout species, and therefore the latter would never represent any threat to the former.
In order to support its conclusions the Commission relied on the assessment made in a scientific report published by the Spanish "Consejo Superior de Investigaciones Científicas".
2.3. Having reviewed all the relevant facts related to this matter, on the basis of supportive scientific evidence, the Commission decided to close the case. Although the complainant has submitted alternative scientific views, the mere reference to these divergent scientific opinions is not in itself sufficient to invalidate the Commission's reasoning.
The Ombudsman is not in a position to assess the merits of alternative scientific views, but he notes that the Commission has duly given reasons for its decision to close the file and has informed the complainant in a detailed manner of those reasons.
The Commission has thus acted within the limits of its legal authority and there appears to have been no maladministration.
3 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission.
The Ombudsman therefore closes the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) OJ L 206, 22.07.1992, p.7.