Strasbourg, 9 June 2006

Dear Mr F.,

On 10 January 2005, you submitted certain information to me in relation to two complaints (complaint 1272/2004/GG and complaint 3534/2004/GG) that you had previously lodged with the European Ombudsman. In the light of a telephone conversation between your company and my services of 7 January 2005, your e-mail of 10 January 2005 was registered as a new complaint under the above-mentioned reference. This complaint (as with the two preceding ones) concerned the European Commission's alleged failure to enforce Community law and judgments of the Community courts.

On 18 January 2005, I forwarded the complaint to the President of the Commission.

On 31 January 2005, and further to a request made by telephone, I sent you a copy of a note on the telephone conversation of 7 January 2005.

The Commission sent its opinion on 12 April 2005. I forwarded it to you on 28 April 2005 with an invitation to make observations, which you sent on 27 May 2005. From your reply, I gathered that the legal form of your company had changed in the meantime.

On 15 June 2005, I addressed a draft recommendation to the Commission. The Commission sent its detailed opinion on 4 October 2005. I forwarded it to you on 5 October 2005 with an invitation to make observations, by 30 November 2005.

On 11 November 2005, the Commission forwarded to me a copy of its letter of 28 October 2005 by which it had informed you that it intended to reject your infringement complaint. On 15 November 2005, I forwarded a copy of this letter to you.

On 17 November 2005, you requested an extension of time for submitting observations. In my reply of 6 December 2005, I informed you that I had extended this deadline until 31 January 2006.

On 20 December 2005, you forwarded to me a copy of a letter that you had addressed to the Commission that day. In your cover letter, you asked for my help against the Commission.

In my reply of 6 January 2006, I informed you that I was unable to give instructions to the Commission and that I would decide on how further to proceed in this case after having received your observations.

On 31 January 2006, you requested a further extension of time for submitting observations until 28 February 2006. In my reply of 6 February 2006, I informed you that I had accepted this request and that your observations could be submitted up to 28 February 2006.

No observations were received from you by that date.

However, on 17 May 2006, you informed me that the Commission had now rejected your infringement complaint. In your letter, you expressed the view that the Commission's decision was wrong and asked me to examine the substance of the case.

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

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 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 your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the Commission.

THE COMPLAINT

Background

The complainant is a German firm active in recycling waste oils. The process used by the complainant results in the production of “Fluxöl” (flux oil).

Article 3(1) of Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils(1), as amended ("Directive 75/439"), provides: “Where technical, economic and organisational constraints so allow, Member States shall take the measures necessary to give priority to the processing of waste oils by regeneration.”

According to Article 1 of the Directive, "regeneration" means "any process whereby base oils can be produced by refining waste oils, in particular by removing the contaminants, oxidation products and additives contained in such oils."

According to the complainant, Germany has subsidised the combustion of waste oils (for the purpose of electricity-generation) since 1993 at the latest. The complainant considered this to be in stark contradiction to the provisions of the Directive and submitted a complaint to the Commission. The latter opened infringement proceedings which led to a judgment by the Court of Justice in 1999 finding in favour of the Commission (Case C-102/97(2)).

Germany was at first reluctant to comply with this judgment. It seems that it was only after the complainant had again turned to the Commission and the latter had taken steps with a view to invoking the procedure set out in Article 228 of the EC Treaty (which provides for the possibility of penalty payments) that Germany accepted to amend her legislation.

According to the complainant, the amended rules define the term “regeneration” so as to exclude (or make it possible to exclude) processes leading to the production of “flux oil”. In the complainant's view, this measure was taken deliberately to punish it.

Complaint 1272/2004/GG

On 5 May 2004, the complainant turned to the Ombudsman. In its complaint, the complainant alleged that the Commission had failed to enforce Community law in general and the above-mentioned judgment in particular.

In its opinion submitted in August 2004, the Commission pointed out that the complaint to the Ombudsman was related to infringement complaint 2002/4775 that the complainant had lodged with the Commission on 28 June 2002. The Commission explained that in the course of its investigations into this complaint, Germany had provided information indicating the legal possibility for the administration to enforce the priority for the regeneration of waste oils and claiming that the regeneration quota in Germany demonstrated that the priority principle was achieved in practice.

According to the Commission, a subsequent meeting with the competent German authorities in September 2003 had indicated that, as a rule, the application of the priority principle was ensured. However, Germany had admitted that the statistics on unregenerate waste oils (incineration, recycling to other products) were unreliable and that therefore a specific study would be initiated. The Commission submitted that the results of this study, which were expected by the end of 2004, should be awaited before taking a decision as regards the infringement proceedings(3).

The opinion was sent to the complainant for its observations. No such observations were received.

In the light of the circumstances mentioned by the Commission, in particular the fact that Germany appeared to have admitted that her statistics on unregenerate waste oils were unreliable, the Ombudsman considered that the Commission's approach was reasonable. On 24 November 2004, the Ombudsman therefore closed his inquiry with a finding of no maladministration. The Ombudsman noted, however, that the complainant could submit a new complaint at a future stage if it considered that the Commission did not pursue the case with the appropriate diligence. In his decision, the Ombudsman further pointed out that, since the Commission had not yet taken a decision regarding the substance of the complainant's arguments, he considered that there was no need for him at present to take a view on the Commission's submission that the production of "flux oils" did not constitute "regeneration" within the meaning of Article 1 of Directive 75/439.

Complaint 3534/2004/GG

In a letter of 30 November 2004, the complainant asked the Ombudsman to continue his inquiry or, if this should not be possible, to consider its letter as a new complaint.

The complainant pointed out that the above-mentioned study would be ready in September 2005 at the earliest. It argued, in substance, that both the Commission and Germany were playing for time.

Given that the inquiry into complaint 1272/2004/GG had already been closed, the complainant's further letter was registered as a new complaint.

The Ombudsman considered that re-opening an inquiry that had been closed at the end of November 2004 would only make sense if there were any new facts or arguments that could affect the Ombudsman's analysis. The complainant's submission that the Commission and Germany were procrastinating could be considered as such a new argument. However, the complainant had not submitted any evidence to establish that the relevant study was indeed delayed and that the Commission had failed to pursue the matter in an appropriate manner.

The Ombudsman therefore informed the complainant that there were insufficient grounds for an inquiry. However, the complainant's attention was drawn to the possibility to renew its complaint, provided that sufficient evidence was produced.

The telephone conversation of 7 January 2005

On 7 January 2005, the complainant telephoned the Ombudsman's Office to ask what evidence was needed. The official in charge of the case explained that the Ombudsman needed evidence to prove or suggest that the relevant study would not be available before the middle of 2005.

The e-mail of 10 January 2005

On 10 January 2005, the complainant provided a copy of an information sheet produced by the institute that appeared to be dealing with the relevant study. According to this sheet, the study would cover the period from June 2004 until June 2005.

This e-mail was registered as a new complaint (146/2005/GG). In the light of the information provided by the complainant, the Ombudsman decided to ask the Commission for an opinion on the complainant's allegation that the Commission had failed to enforce Community law and judgments of the Community courts.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made, in summary, the following comments:

The desirability of waiting for the results of the relevant study had been mentioned in the Commission's opinion on complaint 1272/2004/GG as the main reason for keeping complaint 2002/4775 open. In this opinion (which had been prepared in the summer of 2004), it had been explained that the study would be available by the end of 2004.

In July 2004, the German authorities had informed the Commission that the study had been launched in the meantime, albeit with a delay. They had indicated that an interim report was expected for September 2004. The Commission could not be held responsible for this delay, nor was there an obligation under Community law for Germany to carry out such a study.

On 7 October 2004, Germany had provided information on the implementation of the Directive to the Commission. This communication had included a model for the calculation of the waste oil flows in Germany. Following this method, the quantities of regenerated waste oils had significantly increased over the last years, whereas the total quantity of waste oils as well as the quantity of combusted waste oils contained therein had decreased.

The first interim report on the above-mentioned study had been attached to this communication. The objective of this study was to elaborate a waste oils flow balance that satisfied the information needs of the Commission and served as a common basis for the discussion with the waste oil actors. The report detailed the calculation model used by the German authorities and concluded that it was a good basis for further investigation. In the course of the study, the model would be adjusted to obtain the real waste oil flows.

Also attached to the communication had been the terms of reference of the study. According to this document, the final report was indeed due in June 2005.

On the basis of the information currently available, the Commission's preliminary conclusion was that Germany had taken the necessary measures to give priority to the processing of waste oils by regeneration. However, the Commission considered it necessary to wait for the final report in order to obtain as comprehensive an overview as possible before taking a decision on complaint 2002/4775.

The complainant's observations
The complainant's letter of 27 May 2005

In its letter of 27 May 2005, the complainant made the following comments:

Complaint 2002/4775 had been lodged on 28 June 2002. Since then, nearly three years had passed without the Commission being able to provide a substantive reply.

The relevant study was overdue, given that it had been promised by Germany for the beginning of 2004. The study was furthermore part of Germany's efforts to win time.

According to information provided by the person in charge at the German Ministry of the Environment, the Commission had discontinued all proceedings against Member States that had still not implemented the Directive. According to the same source, there was a clear tendency within the Commission to seek the repeal of the Directive.

There were a number of further questions that had not been clarified by the Commission in its opinion(4).

Given that the any further delay caused considerable damage, the Ombudsman should see to it that the Commission should speedily implement the judgment of the Court of Justice (Case C-102/97) and the Directive.

The complainant's letters of 31 May 2005 and 9 June 2005

In further letters of 31 May and 9 June 2005, the complainant reiterated its views.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 15 June 2005, the Ombudsman addressed the following draft recommendation to the Commission:

The Commission should deal with the complainant's infringement complaint as rapidly and as diligently as possible.

This draft recommendation was based on the following reasons:

1. It is good administrative practice for the Commission to deal with infringement complaints diligently and within a reasonable period of time. In order to ascertain whether the Commission had acted accordingly, the Ombudsman considered that all the relevant facts of the case needed to be considered, to the extent that they had been brought to his attention.
2. The Ombudsman noted that nearly three years had passed since the complainant had lodged its infringement complaint (complaint 2002/4775) with the Commission. Regard also had to be had to the fact that in this complaint the complainant appeared to have argued that Germany had failed to comply with the judgment of the Court of Justice in Case C-102/97, which was handed down in 1999. The Ombudsman recalled that the Commission, in its "Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law" (COM(2002) 141 final, OJ 2002 C 244, p. 5), had stated that, a s a general rule, it proposed to investigate complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint.
3. The Ombudsman further noted that the Commission had taken the view that it would only be possible to deal with the complainant's infringement complaint after it had received the results of a study commissioned by the German authorities. Given (1) that the complainant had submitted that Germany failed to comply with the obligation imposed by Directive 75/439 to give priority to the processing of waste oils by regeneration and (2) that the German authorities had admitted that the statistics on unregenerate waste oils were unreliable and that therefore a specific study would be initiated, the Ombudsman continued to believe that this position was reasonable.
4. It should however be noted that, according to the Commission, the German authorities had made the above-mentioned admission at a meeting that was held in September 2003, whereas the study only appeared to have been commissioned in the middle of 2004. Whilst it was true that the Commission could not be blamed for this delay which was the responsibility of the German authorities, the Commission had not shown that it had made any effort to ensure that the relevant data would be available as soon as possible. According to the information available to the Ombudsman, the Commission informed the complainant by letter of 3 February 2004 that it had been informed by the German authorities that the missing information would not be forwarded before the spring of 2004. In its opinion on complaint 1272/2004/GG, the Commission had stated that the results of the study were expected by the end of 2004. In its opinion on the present complaint, the Commission had acknowledged that the final report was indeed due in June 2005 as the complainant had claimed. In these circumstances, the Ombudsman considered that the Commission had not acted with the requisite diligence in the present case. This was an instance of maladministration.
5. In his decision of 24 November 2004, the Ombudsman had closed his inquiry into complaint 1272/204/GG with a finding of no maladministration. This finding had been based on the consideration that the Commission appeared to be pursuing the case actively, given that the latter had informed the Ombudsman that the results of the study that it wished to await were expected for the end of 2004. The Ombudsman recalled that this information had been contained in the opinion that the Commission submitted to him by note of 6 August 2004. In its opinion on the present complaint, the Commission had stated that "in July 2004" it had been informed by the German authorities that the study had been launched with a delay. The Ombudsman concluded that, at the time when it forwarded its opinion to him in August 2004, the Commission should thus have been aware of the fact that the contents of this opinion no longer corresponded to the actual facts as regards the date by which the study would be ready. It could of course not be excluded that the information from the German authorities "in July 2004" had arrived so late that it could no longer be included in the Commission's opinion, particularly in view of the fact that the opinion was sent in the holiday period. The Ombudsman noted, however, that the Commission had nevertheless refrained from forwarding an addendum (or corrigendum) to him subsequently. In the Ombudsman's view, a Community institution or body that had inadvertently supplied inaccurate or misleading information to the Ombudsman should correct this information as soon as it becomes aware of its error. For the avoidance of doubt, the Ombudsman added that the date by which the results of the study were due constituted an important factor in the context of the Ombudsman's inquiry.

The Commission's detailed opinion

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

The Commission had undertaken (request for information of 24 March 2003; reply of 26 May 2003; package meeting with Germany of 22 May 2003; bilateral meeting of 25 September 2003; package meeting of 15 June 2004; first interim report submitted on 7 October 2004) and continued to undertake all efforts to deal with the complainant's infringement complaint as rapidly and diligently as possible. However, delays had occurred as regards the commissioning of the study by the German Ministry. The latter had postponed the commissioning of the study for internal budgetary reasons. Given that there was no obligation under Community law for Germany to carry out such a study, the Commission was unable to force Germany to complete the study within a given period of time. However, the Commission had repeatedly requested the competent German authority to do its utmost to make the study results available as soon as possible.

On 31 August 2005, the Commission had received the draft conclusions of the study. According to the German authorities, the final report would be completed by the end of September 2005, at which time it would be submitted to the Commission. After receiving this study, the Commission's services would be able to draw their conclusions.

The information available at the time did not allow the Commission to conclude that there was an infringement of Community law that would justify legal action against Germany under the provisions of the EC Treaty. The Commission could only reiterate that the purpose of deciding to await the completion of the study before making a final decision was not at all to delay a decision in the present case, but rather to make a decision which would take into account the results of the most systematic and comprehensive study that had ever been carried out in this field in Germany. It would not be appropriate to make a decision without taking into consideration the results of the study.

At the time when the Commission's opinion of 6 August 2004 had been finalised, the relevant services had not yet been aware of the information provided by the German authorities in July 2004. It had not been until October 2004 that the Commission had been informed that the final report was due for June 2005. The information provided to the Ombudsman had not been misleading or inaccurate; it had been the information available to the Commission at the time it responded to the Ombudsman.

The Commission would very likely be in a position to provide the complainant with its final opinion in the autumn of 2005.

The Commission's further letter

On 11 November 2005, the Commission forwarded to the Ombudsman a copy of a letter that its Directorate-General ("DG") Environment had addressed to the complainant on 28 October 2005. In this letter, which referred to a letter the complainant appeared to have addressed to the Commission on 12 October 2005, DG Environment informed the complainant that it had received and evaluated the draft final version of the study that had been drawn up in October 2005. According to DG Environment, the study showed that, between 2000 and 2004, there had been a marked increase in the quantity of waste oils that had been processed. Although DG Environment acknowledged that it was difficult to determine the extent to which the measures taken by Germany had contributed to this result, it concluded that the relevant increase was directly linked to these measures. DG Environment therefore took the view that Germany had taken the necessary action to ensure that, in conformity with Article 3(1) of Directive 75/439, priority was given to the processing of waste oils by regeneration. It added that it would therefore propose to the Commission to close the file. DG Environment invited the complainant to submit any new facts that might indicate an infringement of Community law to it within one month.

The complainant's observations

The Commission's detailed opinion and the further letter received from it were forwarded to the complainant for its observations. The complainant requested and obtained an extension of time for submitting its observations until 31 January 2006.

On 20 December 2005, the complainant submitted a copy of a letter it had addressed to the Commission on the same day. This letter appeared to be a reply to a letter sent by the Commission on 2 December 2005, which was not submitted to the Ombudsman. In its letter to the Commission of 20 December 2005, the complainant pointed out that the relevant study was not accessible to it since it had not been completed yet. The complainant argued that it was incomprehensible why the Commission now appeared to intend to take a decision as regards the infringement complaint without having obtained the results of the study after having consistently taken the view that the study was needed in order to deal with the matter. In the complainant's view, the Commission should refrain from taking a decision until the complainant had had an opportunity to make useful comments. These comments would be submitted after the complainant had obtained the study.

On 31 January 2006 the complainant asked for and obtained a further extension of time until 28 February 2006. The complainant noted that the study, excerpts of which had been put at the disposal of DG Environment, was still not available to it.

No observations were received from the complainant by 28 February 2006. Nor did the complainant ask for a further extension of time.

The complainant's further letter

However, on 17 May 2006, the complainant informed the Ombudsman that the Commission had now rejected its infringement complaint. In its letter, the complainant expressed the view that the Commission's decision was wrong and asked the Ombudsman to examine the substance of the case.

THE DECISION

1 Alleged failure properly to deal with infringement complaint

1.1 Article 3(1) of Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils(5), as amended ("Directive 75/439"), provides as follows: “Where technical, economic and organisational constraints so allow, Member States shall take the measures necessary to give priority to the processing of waste oils by regeneration.” According to Article 1 of the Directive, "regeneration" means "any process whereby base oils can be produced by refining waste oils, in particular by removing the contaminants, oxidation products and additives contained in such oils."

The complainant, a German firm active in recycling waste oils, considered that Germany had infringed the provisions of the Directive and submitted a complaint to the European Commission. The latter opened infringement proceedings which led to a judgment by the Court of Justice in 1999 finding in favour of the Commission (Case C-102/97(6)).

1.2 On 28 June 2002, the complainant submitted a further complaint to the Commission (infringement complaint 2002/4775).

1.3 On 5 May 2004, the complainant turned to the Ombudsman (complaint 1272/2004/GG). In its complaint, the complainant alleged that the Commission had failed to enforce Community law in general and the above-mentioned judgment in particular.

In its opinion in this case, the Commission pointed out that Germany had admitted that the statistics on unregenerate waste oils were unreliable and that therefore a specific study would be initiated. The Commission submitted that the results of this study, which were expected by the end of 2004, should be awaited before taking a decision as regards the infringement proceedings.

In the light of the circumstances mentioned by the Commission, the Ombudsman considered that the Commission's approach was reasonable. On 24 November 2004, the Ombudsman therefore closed his inquiry with a finding of no maladministration. The Ombudsman noted, however, that the complainant could submit a new complaint at a future stage if it considered that the Commission did not pursue the case with the appropriate diligence.

1.4 The complainant subsequently submitted a new complaint to the Ombudsman, which was registered on 10 January 2005 (complaint 146/2005/GG). In this complaint, the complainant pointed out that the above-mentioned study would be ready in September 2005 at the earliest. The complainant argued, in substance, that both the Commission and Germany were playing for time. In support of its complaint, the complainant provided a copy of an information sheet produced by the institute that appeared to deal with the relevant study. According to this sheet, the study would cover the period from June 2004 until June 2005. In view of this information, the Ombudsman decided to open a new inquiry.

1.5 In its opinion submitted on 12 April 2005, the Commission accepted that there had been a delay as regards the commissioning of the study by the German authorities but that it could not be held responsible for this delay. The Commission noted, however, that it had received the first interim report on the above-mentioned study. On the basis of the information currently available, the Commission's preliminary conclusion was that Germany had taken the necessary measures to give priority to the processing of waste oils by regeneration. However, the Commission considered it necessary to wait for the final report in order to obtain as comprehensive an overview as possible before taking a decision on complaint 2002/4775.

1.6 On 15 June 2005, the Ombudsman addressed a draft recommendation to the Commission. According to this draft recommendation, the Commission should deal with the complainant's infringement complaint as rapidly and as diligently as possible.

In this draft recommendation, the Ombudsman noted that, according to the Commission, the German authorities had admitted, at a meeting that was held in September 2003, that the relevant statistics were unreliable. However, the study only appeared to have been commissioned in the middle of 2004. In its opinion on the present complaint, the Commission had acknowledged that the final report was indeed due in June 2005. Whilst the Ombudsman accepted that the Commission could not be blamed for this delay which was the responsibility of the German authorities, he considered that the Commission had not shown that it had made any effort to ensure that the relevant data would be available as soon as possible. In these circumstances, the Ombudsman considered that the Commission had not acted with the requisite diligence in the present case. This was an instance of maladministration.

1.7 In its detailed opinion, the Commission submitted that it had undertaken and continued to undertake all efforts to deal with the complainant's infringement complaint as rapidly and diligently as possible. The Commission stressed that it had repeatedly requested the competent German authority to do its utmost to make the study results available as soon as possible. It added that it had received the draft conclusions of the study on 31 August 2005 and that the final report was due for the end of September 2005.

The Commission pointed out that the purpose of deciding to await the completion of the study before making a final decision was not at all to delay a decision in the present case, but rather to make a decision which would take into account the results of the most systematic and comprehensive study that had ever been carried out in this field in Germany. It would not be appropriate to make a decision without taking into consideration the results of the study.

1.8 On 11 November 2005, the Commission forwarded to the Ombudsman a copy of a letter that its Directorate-General ("DG") Environment had addressed to the complainant on 28 October 2005. In this letter, DG Environment informed the complainant that it had received and evaluated the draft final version of the study that had been drawn up in October 2005. According to DG Environment, the study showed that, between 2000 and 2004, there had been a marked increase in the quantity of waste oils that had been processed. Although DG Environment acknowledged that it was difficult to determine the extent to which the measures taken by Germany had contributed to this result, it concluded that the relevant increase was directly linked to these measures. DG Environment therefore took the view that Germany had taken the necessary action to ensure that, in conformity with Article 3(1) of Directive 75/439, priority was given to the processing of waste oils by regeneration. It added that it would therefore propose to the Commission to close the file. DG Environment invited the complainant to submit to it within one month any new facts that might indicate an infringement of Community law.

1.9 The Commission's detailed opinion and the further letter received from it were forwarded to the complainant for its observations. The complainant requested and obtained an extension of time for submitting its observations until 31 January 2006. On 20 December 2005, the complainant submitted a copy of a letter it had addressed to the Commission on the same day. In this letter, the complainant pointed out that the relevant study was not accessible to it since it had not been completed yet. The complainant argued that it was incomprehensible why the Commission now appeared to intend to take a decision as regards the infringement complaint without having obtained the results of the study after having consistently taken the view that the study was needed in order to deal with the matter. In the complainant's view, the Commission should refrain from taking a decision until the complainant had had an opportunity to make useful comments. These comments would be submitted after the complainant had obtained the study.

On 31 January 2006 the complainant asked for and obtained a further extension of time until 28 February 2006. The complainant noted that the study, excerpts of which had been put at the disposal of DG Environment, was still not available to it.

No observations were received from the complainant by 28 February 2006. Nor did the complainant ask for a further extension of time.

1.10 However, on 17 May 2006, the complainant informed the Ombudsman that the Commission had now rejected its infringement complaint. In its letter, the complainant expressed the view that the Commission's decision was wrong and asked the Ombudsman to examine the substance of the case.

1.11 The Ombudsman notes that the Commission has now taken a decision on the complainant's infringement complaint. However, he also takes note of the fact that the complainant has objected to this decision and asked him to examine the matter. Given that the present inquiry focused on the procedural aspects of the case, the Ombudsman considers that a new inquiry should be opened in order to examine the substantive issues raised by the present case. The complainant's letter of 17 May has therefore been registered as a new complaint (complaint 1528/2006/GG). In the Ombudsman's view, there are therefore no grounds to pursue his inquiries into the present complaint.

2 Conclusion

In view of the preceding considerations, the Ombudsman takes the view that there are no grounds to pursue his inquiries into the present complaint. The Ombudsman therefore closes the case.

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

FURTHER REMARKS

The Ombudsman takes the view that it would be useful if the Commission could, in future cases, send an addendum to its opinions if it emerges that relevant information, which had been in the possession of the Commission at the time of sending the opinions, has not been taken into account in these opinions. The Ombudsman considers that this would not only facilitate his task but also be in the Commission's interest, given that the provision of this information might make further inquiries unnecessary.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 1975 L 194, p. 23.

(2) Case C-102/97 Commission v Germany [1999] ECR I-5051.

(3) Together with its opinion, the Commission submitted a copy of a letter it had addressed to the complainant on 3 February 2004. In this letter, the Commission pointed out that the German authorities had explained that the missing information would not be forwarded before the spring of 2004.

(4) The complainant submitted, for example, that Germany was (or had been) subsidising the combustion of waste oils by an amount of EUR 52.5 million over a period of seven years whereas the subsidy for the purposes of regeneration only amounted to EUR 10.2 million for the same period. In the light of this discrepancy, the complainant queried whether Germany had properly implemented the Directive. The complainant also submitted that the Commission had accepted, back in 1987, that the production of flux oil constituted regeneration within the meaning of Directive 75/439. It therefore queried why the Commission had changed its view in this regard.

(5) OJ 1975 L 194, p. 23.

(6) Case C-102/97 Commission v Germany [1999] ECR I-5051.