Dear Mr P.,

On 23 May 2002, I received the complaint you made against the European Commission. Your complaint related to the construction of a landfill in Portugal, the terro sanitario do Oeste (ASO), under the conditions of the European Cohesion Fund(1) (ECF).

On 15 November 2001, I had received a complaint on the same issue (ref: 1655/2001/IP). On 22 January 2002, I forwarded this complaint to the President of the European Commission for an opinion, which I received on 8 May 2002.

On 5 June 2002, I therefore sent the Commission's opinion on case 1655/2001/IP to you with an invitation to make observations. The same day I informed the Commission of the action taken and I invited the institution to send further comments, if it so wished. On 26 June 2002, the Commission informed me that it had no further comments on the case. On 8 July 2002, I received your observations on the Commission's opinion. On 29 July 2002, I decided that it was necessary to conduct further inquiries, and I therefore asked the Commission for a second opinion. I received the Commission's second opinion on 12 November 2002, and I forwarded it to you for observations. On 26 November 2002, you sent your observations.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The Commission financed a project for the construction of a landfill in the Oeste region of Portugal, under the ECF. According to the complainant, the project in question should have been the object of an environmental impact assessment according to Directive 85/337/EEC(2). However, it appears that the Commission based its decision to finance the project on the sole basis of the information given by the Portuguese authorities.

In his complaint to the Ombudsman, the complainant alleged that (i) the Commission failed to properly take into account the environmental impact before deciding to finance through the Cohesion Fund the construction of the "Aterro sanitário de Oeste", in Portugal; (ii) the Commission's decision to release Community funds before closing the inquiry on complaint 2000/4668, was unfair.

THE INQUIRY

The European Commission's opinion

The complaint was forwarded to the Commission for an opinion, which could be summarised as follows:

By decision C (98)2270 of 24 July 1998, the Commission agreed to finance a project concerning the construction of a landfill in the Oeste region in Portugal, under the ECF.

On 7 June 2000, the Portuguese authorities asked the Commission to modify the above decision by increasing the financing.

On 5 July 2000, a Portuguese law firm made a complaint, on behalf of MPIASO, to the European Commission concerning the project in question. The complainants in the present case are members of MPIASO. The complaint made to the Commission, registered under number 2000/4668, concerned the alleged infringement of European Community environmental law, by the Portuguese authorities. According to the complainants, the Portuguese authorities failed to carry out an environmental impact assessment before authorising the construction of the landfill.

In view of complaint 2000/4668, the Commission considered it appropriate to postpone a decision at the request of the Portuguese authorities made on 7 June 2000, until a final assessment of the complainant's allegations would be carried out.

On 6 October 2000, the services of the Commission Directorate General Environment (DG ENV.) asked the Portuguese authorities to provide information on the case. On 11 December 2000, the Portuguese authorities sent the information requested by the Commission.

The Commission pointed out that the project in question is included in annex II of Directive 85/337. It is therefore among those which shall be made subject to an environmental impact assessment where Member States consider that their characteristics so require. The Portuguese authorities had carried out studies on the effects of the project. According to the results of these studies, it appeared that the project was not susceptible to have significant effects on the environment. On the basis of the information received by both the complainants and the national authorities, the Commission's preliminary conclusion was that there has been no infringement of Community law on the part of the Portuguese authorities. On 15 May 2001, the Commission therefore informed the complainants of its intention to close the case and invited them to make observations and to submit any new elements within one month from the receipt of the letter, if they so wished. The complainants contested the Commission's preliminary decision to close the case, and forwarded to the Commission the results of some scientific studies that, in their view, contradicted the information given by the Portuguese authorities. On 26 October 2001, after a careful examination of the complainants' observations, the Commission addressed a further request for information to the Portuguese authorities, which replied on 3 December 2001(3).

Regarding the request made by the Portuguese authorities on 7 June 2000, the Commission adopted a decision on 5 September 2001 (decision C(01)2104). It agreed to modify the decision of 24 July 1998 and to increase the financing of 13.857.604 €. Furthermore, the Commission agreed to release funds for the second stage of the project.

As a final comment, the Commission stressed that the non-construction of the ASO would have implied the maintenance of nine unofficial landfills, with a consequent infringement of environmental Community legislation.

The complainant's observations

In his observations, the complainant basically pointed out that the Commission's preliminary decision to close case 2000/4668 was based exclusively on the information given by the Portuguese authorities.

Furthermore, he also underlined that the Commission did not explain why, on 5 September 2001, it decided to release funds for the second stage of the project, when complaint 2000/46 was still under investigation. Finally, the complainant pointed out that the decision to purchase the land for the construction of the ASO has been vitiated by procedural irregularities.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. On 29 July 2002, the European Ombudsman asked the Commission to explain why on 5 September 2001 it decided to release additional funds for the construction of the landfill Aterro sanitario do Oeste in Portugal although complaint 2000/4668 was still under investigation.

The Commission’s second opinion

In its second opinion, the Commission made the following comments:

Financial aspects of the case:

The Commission pointed out that the fact that the Commission is dealing with a complaint concerning a project does not constitute sufficient reason to block or to refuse a financing. Projects involving environmental aspects are very often subject to complaints and investigations in those cases may require lengthy inquiries. If the Commission blocked or refused to finance a project every time a complaint related to the project concerned is made, the objective of the ECF would be strongly jeopardised.

Furthermore, the Commission recalled that, according to Article 24 of Regulation 2082/93(4), "if an operation or measures appears to justify neither part nor the whole of the assistance allocated, the Commission shall conduct a suitable examination of the case in the framework of the partnership, in particular requesting that the Member State or authorities designated by it to implement the operation submit their comments (…).

Following this examination, the Commission may reduce or suspend assistance in respect of the operation or a measure concerned if the examination reveals an irregularity or a significant change affecting the nature for which the Commission’s approval has not been sought. (…)"

The Commission concluded that, following the analysis of the information submitted by the parties involved in this case, it appeared that there has been no infringement of Community Law by the Portuguese authorities. There were therefore no reasons not to decide on the request made the Portuguese authorities on 7 June 2000.

Environmental aspects of the case:

The Commission referred to its first opinion. Furthermore, the institution recalled that in case of projects listed in Annex II of Directive 85/337/EEC, it is for the Member States to verify whether an environmental impact assessment should be carried out. Nevertheless, the Commission forwarded the complainant’s observations about the alleged discrepancy between the results of the studies requested by the national authorities and of those presented by the complainants themselves to the Portuguese authorities. They pointed out that there were no significant differences between the results obtained by the different studies.

The Commission services have also carried out an in-depth analysis of the studies submitted by the complainants. On the basis of the results thereof, the Commission could not conclude that the Portuguese authorities exceeded their discretionary power on the basis of Directive 85/337/EEC.

The alleged irregularities related to the purchase of the land for the construction of the ASO

This aspect cannot be dealt with by the Commission, which only has the obligation to analyse the project in the light of Community Law.

The Commission finally stated that on 10 October 2000 it notified the complainant in case 2000/4668 of its intention to close the case. A copy of this letter, in which the Commission gave a detailed explanation of its decision, has been forwarded to the Ombudsman.

The complainant’s second observations

The complainant basically maintained his complaint.

THE DECISION

Preliminary remarks

To avoid misunderstanding, it is important to recall that Article 195 of EC Treaty empowers the European Ombudsman(5) to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European 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 the complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

1 The Commission’s decision to finance the project

1.1 The complainant alleged that the Commission failed to properly take into account the environmental impact before deciding to finance through the Cohesion Fund the construction of the "Aterro sanitário de Oeste", in Portugal.

1.2 In its opinion, the Commission stated that the project in question is included in annex II of Directive 85/337. It is therefore among those which shall be made subject to an environmental impact assessment where Member States consider that their characteristics so require. The Portuguese authorities had carried out studies on the effects of the project. According to the results of these studies, it appeared that the project was not likely to have significant effects on the environment. The Commission therefore agreed to the Portuguese authorities’ request and decided to finance the project.

1.3 Article 8 of Council Regulation No 1164/94, establishing the European Cohesion Fund, provides that projects should be financed "in keeping with the provisions of the Treaties, with the instruments adopted pursuant thereto and with the Community policies, including those concerning environmental protection (...)". This creates an obligation on the Commission to take into account, amongst others, the Community environmental legislation when funding under the European Cohesion Fund.

1.4 The Ombudsman considers that, on the basis of the inquiries which have been carried out, there is no evidence that the Commission exceeded its discretionary power or infringed any rules binding on it when deciding to finance the projects.

It appears that there has been no maladministration by the Commission in regards to this aspect of the case.

2 The Commission's decision to release Community funds for the second stage of the project

2.1 The complainant alleged that the Commission's decision to release Community funds before closing the inquiry on complaint 2000/4668, was unfair.

2.2 The Commission stated that the fact that the Commission is dealing with a complaint concerning a project does not constitute sufficient reason to block or to refuse a financing. If the Commission blocked or refused to finance a project every time a complaint related to the project concerned is made, the objective of the European Cohesion Fund would be strongly jeopardised. Furthermore, according to Article 24 of Regulation 2082/93 it is possible for the Commission to reduce or suspend assistance in respect of the operation or a measure concerned if an irregularity or a significant change affecting the nature for which the Commission’s approval has not been sought is revealed.

2.3 On the basis of the above, it appears that there is no evidence that the Commission exceeded its legal authority when deciding to release the funds for the second stage of the project. The Ombudsman therefore concludes that there has been no maladministration by the Commission as regards this aspect of the case.

3 Conclusion

On the basis of the 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) Council Regulation (EC) No 1164/94 of 16 May 1994, establishing a Cohesion Fund, OJ L 130 of 25 May 1994, p 0001-0013.

(2) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175 of 5 July 1985, pp. 0040-0048

(3) When forwarding its opinion, the Commission's services were examining the further information given by the national Portuguese authorities.

(4) Council Regulation (EEC) No 2082/93 of 20 July 1993 amending Regulation (EEC) No 4253/88 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, published in OJ L 193 of 31 July 1993, p. 0020 - 0033.

(5) Decision of the European Parliament on the Regulations and General Conditions governing the performance of the Ombudsman's duties