The background to the complaint

1. The complaint concerns the European Commission's alleged failure to deal with a request for review under Article 10 of Regulation 1367/2006[1] (the Aarhus Regulation).

2. On 9 February 2011, the complainant submitted a request, pursuant to Article 10 of the Aarhus Regulation, asking the Commission to review its opinion relating to the conservation of natural habitats and of wild fauna and flora in Hungary[2].

3. On 21 March 2011, the complainant complained to the European Ombudsman that the Commission failed to reply to his letter dated 9 February 2011.

4. On 24 March 2011, within the framework of a simplified procedure, the Ombudsman asked the Commission to forward to him a copy of its reply to the complainant's letter of 9 February 2011.

5. On 4 April 2011, the Commission forwarded a copy of the letter which it sent to the complainant on 29 March 2011. In that reply, the Commission acknowledged receipt of the complainant's e-mail of 16 February 2011, without however referring to the complainant's original letter sent by registered post on 9 February 2011. The Commission stated that the documents submitted by the complainant would be assessed by its services and that it would keep the complainant informed of the outcome of its analysis and the relevant course of action to be taken.

6. On 12 April 2011, the Ombudsman asked the complainant to submit observations on the Commission's above-mentioned reply.

7. On 13 June 2011, the complainant submitted his observations. He stated that he had originally sent his request for review by registered mail on 9 February 2011. The postal dispatch note of the registered letter clearly shows that the Commission received his letter on 15 February 2011. Following the Ombudsman's intervention, the Commission, by letter dated 29 March 2011, acknowledged receipt of his e-mail (of 16 February 2011), but not of his letter of 9 February 2011. Moreover, the Commission's reply was drafted in English, whereas his letter was drafted in Hungarian. Most importantly, in accordance with Article 10 of Regulation 1367/2006, the Commission should have considered his request for review within 12 weeks of the date of its submission. However, 16 weeks after receipt of his letter, the Commission still had not provided him with a substantive reply. The complainant therefore alleged that the Commission failed to deal with his request for review dated 9 February 2011 in accordance with Article 10 of Regulation 1367/2006. He claimed that the Commission should deal with his request for review.

8. On the basis of the complainant's submissions, the Ombudsman decided to proceed with his inquiry into the present complaint by asking the European Commission to submit an opinion.

The subject matter of the inquiry

9. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

The Commission failed to deal with the complainant's request for review dated 9 February 2011 in accordance with Article 10(2) of Regulation 1367/2006.

Claim:

The Commission should deal with his request for review in accordance with the relevant procedures.

10. The Ombudsman also asked the Commission to provide clarifications as to (i) why it replied to the complainant in English, when his original communications were drafted in Hungarian; and (ii) why it only acknowledged receipt of the complainant's e-mail and not of the letter he sent by registered post on 9 February 2011.

The inquiry

11. On 29 June 2011, the Ombudsman asked the Commission to submit an opinion on the complaint. The Commission submitted its opinion on 23 September 2011 in English, and sent the translation into Hungarian on 3 October 2011. The opinion was forwarded to the complainant, who submitted his observations on 21 November 2011.

The Ombudsman's analysis and conclusions

Preliminary remark

12. In his observations, the complainant made certain comments on the substance of the Commission's reply which was finally sent to him on 14 July 2011.

13. The Ombudsman points out that his present inquiry is limited to the way in which the Commission handled the complainant's request, namely, its delay in dealing with it and the issue of the language in which the Commission's reply was drafted. If the complainant wishes to challenge the position which the Commission took in its reply of 14 July 2011, he is free to submit a new complaint to the Ombudsman after having first made the relevant prior administrative approaches to the Commission.

A. Allegation that the Commission failed to deal with the complainant's request of 9 February 2011

Arguments presented to the Ombudsman

14. The complainant alleged that the Commission failed to deal with his request for review dated 9 February 2011 in accordance with Article 10(2) of Regulation 1367/2006. The complainant argued that not only did the Commission fail to deal with his request within the prescribed time limit, but that it also failed to acknowledge receipt of his letter of 9 February 2011 and to reply to it in the same language, that is, in Hungarian.

15. In its opinion, the Commission first described the background to the case. On 16 February 2011, the complainant sent an e-mail in English and addressed it to Commissioner Potocnik, the Director-General of the Directorate-General for the Environment ('DG Environment') and the Head of Unit B.3. of DG Environment. The e-mail contained a number of documents, as well as a request dated 9 February 2011, in Hungarian, for a review of the Commission's opinion pursuant to the Aarhus Regulation. The same documents were subsequently received by post.

16. On 29 March 2011, the Commission sent a holding reply to the complainant. In that reply, the Commission acknowledged receipt of the documents submitted by the complainant and informed him that these documents were in the process of being analysed. The Commission indicated that it would inform him about both the outcome of the analysis and the future course of action. On 14 July 2011, the Commission sent its detailed reply to the complainant.

17. On the substance, the Commission first acknowledged that its substantive reply of 14 July 2011 was sent to the complainant three weeks after the deadline set by the Aarhus Regulation. According to the Commission, this delay was due to following factors: (i) the number and volume of the documents submitted by the complainant; (ii) the fact that several documents were in Hungarian and needed to be translated into English for analysis by Commission staff; (iii) the Commission's reply required coordination between different Commission services; and (iv) the reply needed to be translated into Hungarian.

18. As regards the Ombudsman's question as to why the Commission only acknowledged receipt of the complainant's e-mail and not of his letter, the Commission pointed out that the contents of the e-mail and the letter were identical. In fact, the complainant's e-mail of 16 February 2011 was a parallel, electronic transmission of his letter of 9 February 2011. As the Commission received the e-mail first, it acknowledged receipt of the e-mail and not of the letter. The acknowledgement of receipt did not include an explicit reference to the letter as it was clear that the contents of the e-mail and the letter were the same.

19. As regards the Ombudsman's question as to why the Commission's holding reply was sent in English, the Commission pointed out that the complainant's e-mail of 16 February 2011, albeit very short, was also drafted in English. Moreover, several documents attached to the complainant's e-mail were also in English. Therefore, and also in order to avoid further delays due to translation requirements, the Commission wrote to the complainant in English, instead of Hungarian. In fact, it genuinely considered that the use of English was not a problem for the complainant, given that he himself sent an e-mail in English which included several attachments in that language.

20. The Commission concluded its opinion by stating that it endeavours to reply to correspondence within the prescribed deadlines and in the language used by the correspondent. It regretted that delays occurred in the present case.

21. In his observations, the complainant maintained his complaint. He observed that, while it might be true that the Commission received his e-mail on 16 February 2011, the postal dispatch note of his registered letter shows that his letter was received by the Commission on 15 February 2011[3]. In any case, the Code of Good Administrative Behaviour requires that institutions acknowledge receipt of any correspondence addressed to them.

22. As regards the language issue, the complainant pointed out that both his request for review and the relevant documents attached to his e-mail were drafted in Hungarian. He only attached certain documents in English as these were not available in Hungarian. The e-mail in question was indeed short as it only contained a reference, in English, to the fact that one of its attachments contained a request for review.

The Ombudsman's assessment

As regards the registration of the complainant's correspondence

23. The Ombudsman first notes that Article 14 of the European Code of Good Administrative Behaviour ('the Code') provides that:

"Every letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period."

24. In the present case, the complainant sent a letter to the Commission on 9 February 2011, which contained his request for review and the relevant supporting documents. He sent the very same documents by e-mail on 16 February 2011. Since it appears that the Commission received complainant's letter on 15 February 2011, it should have acknowledged receipt of the complainant's correspondence on 2 March 2011, at the latest.

25. However, the Commission only sent its acknowledgement of receipt on 29 March 2011, which is well beyond the two-week time limit indicated above. Moreover, as the complainant rightly observed, the Commission did not do so on its own initiative, but as a reaction to the Ombudsman's intervention, which followed the complainant's complaint. This constitutes an instance of maladministration. The Ombudsman will therefore make a relevant critical remark below.

As regards the acknowledgment of receipt of the complainant's e-mail and not his letter

26. The Commission argued that the complainant's e-mail reached its services before his letter did and, given that their content was the same, it only referred to the complainant's e-mail in its acknowledgement of receipt.

27. The Ombudsman notes that the copy of the postal dispatch note of the complainant's registered letter shows that his letter was received by the Commission's Central Mail Service on 15 February 2011. A copy of the complainant's e-mail shows that it was sent on 16 February 2011 at 14:59. It should be noted that the complainant sent his letter to the general mailing address of the Commission, whereas he sent his e-mail directly to the persons concerned within DG Environment. The Ombudsman therefore cannot exclude the possibility that the complainant's e-mail reached the addressees at DG Environment before his letter did, due to the fact that the latter had first to be assigned and then sent to the competent persons internally.

28. In this regard, the Ombudsman considers that, when it is obvious that the same correspondence has been sent to an institution via different channels, it is good administrative practice to acknowledge receipt of the correspondence which the institution first receives. Naturally, if the subsequent correspondence is the same as the correspondence already received, it is not necessary to send additional acknowledgements of receipt, especially since the sender must be aware that the correspondence sent is the same. The Ombudsman therefore finds that there was no maladministration in relation to this aspect of the complaint.

As regards the delay in providing the complainant with a substantive reply

29. The Ombudsman first notes that Article 10 of Regulation 1367/2006[4] provides as follows:

"1. Any non-governmental organisation … is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act.

[…]

2. The Community institution or body … shall consider any such request, unless it is clearly unsubstantiated. The Community institution or body shall state its reasons in a written reply as soon as possible, but no later than 12 weeks after receipt of the request.

3. Where the Community institution or body is unable, despite exercising due diligence, to act in accordance with paragraph 2, it shall inform the non-governmental organisation which made the request as soon as possible and at the latest within the period mentioned in that paragraph, of the reasons for its failure to act and when it intends to do so. In any event, the Community institution or body shall act within 18 weeks from receipt of the request" (emphasis added).

30. In the present case, given that the Commission's responsible services received the complainant's correspondence on 16 February 2011, the Commission should have provided the complainant with its reply by 11 May 2011, at the latest. Alternatively, and in accordance with paragraph 3 of Article 10 cited above, the Commission should have explained to the complainant, by that date, why its services had been unable to provide him with a reply, thereby leading it to extend the time limit for its reply by another six weeks, that is, to 22 June 2011.

31. The Ombudsman regrets to note that the Commission failed either to send its substantive reply by 11 May 2011 or to send the complainant a holding reply by that date, extending the time limit for its reply. Also, the Commission failed to send its substantive reply by 22 June 2011, the date which would have marked the end of the extended deadline. In fact, the Commission sent its substantive reply to the complainant only on 14 July 2011, that is, three weeks after the extended time limit would have expired.

32. In this context, the Ombudsman takes note of the Commission's arguments that the delay was due to the fact that the complainant's correspondence and its voluminous annexes had to be translated from Hungarian into English and that the Commission's reply required coordination between different services. Nevertheless, the Ombudsman points out that such reasons do not exempt the Commission from respecting the statutory deadlines indicated above, in particular the need to send at least a holding reply to the complainant extending the time limit for a reply. The Ombudsman therefore finds that the Commission's delay in replying to the complainant's request for review constitutes an instance of maladministration. The Ombudsman will therefore make a relevant critical remark below.

As regards the language issue

33. The Ombudsman first notes that, similarly to Article 13 of the Code[5], Point 4 ("Dealing with enquiries") of the Commission's own Code of Good Administrative Behaviour provides that:

"In accordance with Article 21 of the Treaty establishing the European Community, members of the public who write to the Commission shall receive a reply in the language of their initial letter, provided that it was written in one of the official languages of the European Union."

34. Second, the Ombudsman notes that the Commission sent its substantive reply of 14 July 2011 to the complainant in Hungarian. Therefore, the language issue concerns only the fact that the Commission's acknowledgement of receipt, dated 29 March 2011, was drafted and sent in English.

35. In its defence, the Commission argued that its acknowledgement of receipt was drafted and sent in English because the complainant's e-mail was also written in English. Moreover, the Commission tried to avoid further delays that would have resulted if the document had to be translated.

36. The Ombudsman points out that the subject line of the complainant's e-mail of 16 February 2011 was in English ("C(2011) 351 - Request for review"). The text within the main body contained the words "Submissions included" in English and the complainant's bilingual (Hungarian and English) electronic signature. There were 14 attachments to the complainant's e-mail, including the complainant's request for review. Four attachments were in English (documents published by the Commission or the European Parliament). The rest of the attached documents, including the request for review, were written in Hungarian. In particular, all the attachments drafted by the complainant were submitted in Hungarian.

37. The Ombudsman notes that, since the cover letter sent by e-mail was written in English, it was not unreasonable for the Commission to believe that the complainant would understand an acknowledgment of receipt drafted and sent in English. The Ombudsman also underlines that, after the complainant's grievance (concerning the fact that the acknowledgment of receipt was drafted in English instead of Hungarian) had been brought to the Commission's attention, it reacted appropriately and sent its substantive reply to the complainant in Hungarian. The Ombudsman therefore finds no maladministration as regards this aspect of the complaint.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remarks:

The Commission failed to acknowledge receipt of the complainant's correspondence within the two-week time limit, as required by Article 14 of the European Code of Good Administrative Behaviour.

The Commission failed to deal with the complainant's request for review in accordance with Article 10 of Regulation 1367/2006, when it sent its substantive reply the complainant well after the 18-week time limit imposed by that Article had elapsed.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 13 March 2012

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[1] Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. Article 10 reads as follows:

"1. Any non-governmental organisation … is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act.

[…]

2. The Community institution or body … shall consider any such request, unless it is clearly unsubstantiated. The Community institution or body shall state its reasons in a written reply as soon as possible, but no later than 12 weeks after receipt of the request.

3. Where the Community institution or body is unable, despite exercising due diligence, to act in accordance with paragraph 2, it shall inform the non-governmental organisation which made the request as soon as possible and at the latest within the period mentioned in that paragraph, of the reasons for its failure to act and when it intends to do so. In any event, the Community institution or body shall act within 18 weeks from receipt of the request."

[2] Commission opinion C(2011) 351 (of 25 January 2011).

[3] The complainant attached to his complaint a copy of the postal dispatch note.

[4] Cited in footnote 1 above.

[5] Article 13 of the Code ("Reply to letters in the language of the citizen") provides that: "The official shall ensure that every citizen of the Union or any member of the public who writes to the Institution in one of the Treaty languages receives an answer in the same language. The same shall apply as far as possible to legal persons such as associations (NGOs) and companies."