Strasbourg, 15 February 2006

Dear Mrs F.,

On 14 May 2004, you made a complaint to the European Ombudsman concerning the handling by the European Commission (DG Environment) of your complaint 2003/5011, SG(2003)A/9441, which relates to a waste water treatment plant project in the northern Messoghia area, in Attica, Greece.

On 25 June 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 9 August 2004. I forwarded it to you with an invitation to make observations by 31 October 2004 at the latest, if you so wished. No observations were received from you by that date.

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, such as those of the Greek authorities in the present case, 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.

I would like to apologise for the length of time it has taken to inform you of the outcome of my inquiries.

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant, a councillor in the Prefecture of Eastern Attica, Greece, became involved in the project "Waste water treatment and disposal in the northern Messoghia area of eastern Attica: waste water treatment plant at Rafina". By letter of 7 July 2003 to the Director General of Directorate-General Environment of the European Commission ("DG Environment"), the complainant lodged a complaint with the Commission alleging infringement by the Greek authorities of Community environmental law with regard to this project.

In her complaint to the Commission, the complainant observed that the project was to be built in a completely arbitrary location at Platy Horafi, situated in a valley recognised as a place of unique natural beauty, with a river running through it, and with residential areas in the surroundings. The complainant pointed out that the result of this project would be the destruction of land and sea with incalculable consequences for human health and the health of living marine organisms, particularly at the point of discharge of untreated effluent, which would destroy the whole of the Gulf of Evia. In her letter, the complainant made 8 points in which she explained how the environmental impact assessment for the waste water treatment plant was inadequate. In one of the points, the complainant observed that the specifications for the treated liquid waste from the treatment plant had to include, in accordance with: (a) Council Directive 91/271/EEC concerning urban waste-water treatment(1) ("Directive 91/271"), as amended by Directive 98/15/EC with respect to certain requirements established in Annex I thereof(2) ("Directive 98/15/EC"); -b) the measurement and monitoring of the Chemical oxygen demand (COD) indicator, as well as the measurement and monitoring of pathogenic micro-organisms in accordance with Council Directive 76/160/EEC concerning the quality of bathing water(3) ("Directive 76/160"), as amended by Directive 90/656/EEC on the transitional measures applicable in Germany with regard to certain Community provisions relating to the protection of the environment(4) ("Directive 90/656"); and (c) Council Directive 91/692/EEC standardizing and rationalizing reports on the implementation of certain Directives relating to the environment(5) ("Directive 91/692"). The complainant enclosed with her complaint to the Commission relevant documents with comments from experts, as well as the names of residents who protested against the project. The complainant also hoped that the Commission would suspend the Cohesion Fund subsidies for this project.

By letter of 29 September 2003, DG Environment replied to the complainant informing her that it had opened an inquiry (no 2003/2126) to determine whether the Greek authorities had complied with Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment(6) ("Directive 85/337"), further to a question submitted by Mr Papayannakis MEP in which he asked the Commission to investigate a possible infringement of Community law with regard to the project. The Commission had invited Mr Papayannakis MEP to submit all relevant information, and had also contacted the Greek authorities requesting information as to whether the project had been the subject of an environmental impact assessment in accordance with Directive 85/337. The matter was also to be discussed between DG Environment and the competent Greek authorities in a meeting concerning the application of Community environmental law on 30-31 October 2003 in Athens. The Commission explained that it had not registered the complainant's letter and annexes as a separate complaint, since it had assumed that they had been sent from the office of Mr Papayannakis MEP as supplementary information. The Commission also pointed out that nobody was attempting to obstruct the complaint, as the complainant had implied in telephone conversations with the responsible official. The Commission further informed the complainant that, given that she wished to register a separate complaint on the same matter, its services would take the necessary action. Her complaint would however be dealt with in the context of case no 2003/2126 which the Commission had opened on its own initiative. The Commission finally stated in this letter that, if the Greek authorities decided to submit an application for Community funding for the project from the Cohesion Fund or any other Community fund, the Commission's competent services would examine the application, in particular with regard to Directive 91/271 concerning urban waste water treatment. The Commission would keep the complainant informed of the actions it would take in response to the complaint.

By letter of 3 October 2003, the Secretariat-General of the Commission informed the complainant that her letter of 7 July 2003 had been registered as complaint 2003/5011, SG(2003)A/9441.

By letter of 9 February 2004, DG Environment informed the complainant of the outcome of its investigation: following the evaluation of the project on the basis of the provisions of Directive 85/337, as amended by Directive 97/11, DG Environment's services would not propose to the Commission to initiate infringement proceedings against Greece. Directive 85/337 requires Member States to subject any projects which might have significant effects on the environment to an environmental impact assessment. The Directive did not, however, enable the Commission to influence the national authorities' decision concerning the advisability of building a particular project, or to examine the substance of the environmental impact assessment. The installation of the waste water treatment plant in question was covered by Annex I.13 of Directive 85/337. As evidenced by correspondence with the Greek authorities, the provisions of Community law were respected as regards the environmental authorisation of the project. The Prefecture of Eastern Attica had delivered an opinion on the environmental impact assessment, which had been made available to the public to enable citizens to give their views. The Joint Ministerial Decision, approving the environmental standards for the project, had been published on 10 September 2003. This decision took account of the objections made by the Prefectural Council of Eastern Attica, by individual citizens and by other organisations. It was therefore not possible to establish that the Greek authorities had infringed provisions of Community environmental law. For this reason, DG Environment's services proposed in their letter of 9 February 2004, which was received by the complainant on 5 March 2004, to close the case, unless the complainant submitted, within one month, new information indicating that an infringement had taken place.

By letter of 8 March 2004 to DG Environment, the complainant referred to the parliamentary question submitted by Mr Papayannakis MEP referring to four alleged instances of infringement of Directive 85/337. The complainant pointed out that the Greek authorities had not submitted the entire project to an environmental impact assessment. The complainant also forwarded a copy of the reply from the Greek Ombudsman, who indicated that he could not intervene as the case was before the Greek Council of State. However, it showed that the administration had not sent the relevant documentation because it was aware of its shortcomings and the infringements of Community Directives.

On 14 May 2004, the complainant made the present complaint to the Ombudsman, in which she alleged that the Commission had failed properly to investigate complaint 2003/5011 SG(2003)A/9441, which concerned an allegation of infringement of Community law with regard to the project of a waste water treatment plant for the area of northern Messoghia, in Attica, Greece. The complainant in particular alleged that the Commission had failed to examine the fact that the specifications for the treated liquid waste from the waste water treatment plant did not include, as explicitly required by Directive 91/271, as amended by Directive 98/15, a) the measurement and monitoring of the COD indicator, and b) the measurement and monitoring of pathogenic micro-organisms, in accordance with Directive 76/160, as amended by Directives 90/656 and Directive 91/692, concerning bathing water.

THE INQUIRY

The Commission's opinion

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

The Commission first described the background of complaint 2003/5011 SG(2003)A/9441. This complaint had been dealt with rapidly, and the complainant had been regularly kept informed of developments relating to it. Furthermore, the complainant had had the possibility to present her views throughout the inquiry.

On 7 July 2003, the complainant had sent a letter to the Commission concerning the project "Waste water treatment and disposal in the northern Messoghia area of eastern Attica", alleging that the environmental impact assessment for the project was incomplete. For the same project, the Commission had already opened an inquiry ex officio on the basis of a parliamentary question (E-1996/03), which had been submitted by Mr Papayannakis MEP. In that framework, by letter of 7 July 2003, the Commission had questioned the Greek authorities with regard to the matter. The Greek authorities had replied by letter of 10 October 2003 and the complaint had been discussed at the meeting on the application of Community environmental law in Greece on 30-31 October 2003.

The complainant's letter had been registered as complaint 2003/5011 SG(2003)A/9441. By letter of 29 September 2003, the Commission services had provided the complainant with a detailed explanation of the steps taken by it with the Greek authorities, explaining that the complaint would be examined in order to verify whether Directive 85/337 had been respected, and whether, in case of co-financing from Community funds, the project satisfied the Community standards for co-financing, including conformity with Directive 91/271 concerning urban waste-water treatment.

After having examined the available information, the Commission services had concluded that there was no infringement of Directive 85/337, as amended by Directive 97/11.

By letter of 9 February 2004, the complainant had been informed of the Commission services' conclusion. The Commission services had also informed the complainant of their intention to propose to the Commission to file the complaint, inviting, however, the complainant to submit any new elements showing the existence of an infringement within a period of one month following the sending of the letter.

By letters of 8 and 15 March 2004, the complainant had contested the Commission's conclusions and submitted new information. By letters of 30 March and 21 April 2004, the Commission services had replied to the complainant's allegations. As the information transmitted by the complainant did not show an infringement of Community environmental law, the Commission services had maintained their conclusion.

As regards the complainant's allegation made in the complaint to the Ombudsman, the Commission firstly indicated that the subject of the complaint was before the Greek Council of State. This was moreover confirmed by the Greek Ombudsman who had filed a similar complaint because of this fact.

In her complaint form, the complainant did not mention that the Commission replied on 30 March and 21 April 2004 to her letter of 8 March 2004. This omission gave the impression that the complainant's letter had been left unanswered, which was not the case.

The Commission also informed the Ombudsman that the complainant had equally submitted a petition to the European Parliament (928/2003) on the same subject.

Apart from these general remarks, the Commission underlined that Directive 85/337 established a series of procedures that needed to be respected in case of an environmental impact assessment of certain projects susceptible of having notable effects on the environment. The Member States had to submit these projects to an authorisation procedure and to an evaluation of their effects. However, the Directive did not give the Commission the competence to intervene as regards the necessity of the project or to control the substance of an environmental impact assessment.

In the present case, the project had been submitted to an environmental impact assessment in conformity with Directive 85/337, and a Joint Ministerial Decision (reference 136125/10.9.03) approving the environmental terms had been adopted. This Decision dealt with the objections from the competent authority and from the public. The Joint Ministerial Decision furthermore contained specific measures for the treatment of the waters coming from the treatment station, namely, limits for the various parameters, including for the COD indicator, the monitoring of the characteristics of the waste-waters and the control of the bathing waters which would be affected by the functioning of the treatment station (sections b, d 6.3, d 6.4, d 9.3, d 9.4) of the Joint Ministerial Decision).

The complainant's observations

The complainant did not submit observations on the Commission's opinion.

THE DECISION

1 The alleged failure of the Commission properly to investigate complaint 2003/5011

1.1 The complainant alleged that the Commission had failed properly to investigate complaint 2003/5011 SG(2003)A/9441 alleging infringement of Community law with regard to the project of a waste water treatment plant for the area of northern Messoghia, in Attica, Greece. The complainant in particular alleged that the Commission had failed to examine the fact that the specifications for the treated liquid waste from the waste water treatment plant did not include, as explicitly required by Council Directive 91/271/EEC concerning urban waste-water treatment(7) as amended by Directive 98/15/EC with respect to certain requirements established in Annex I thereof(8), a) the measurement and monitoring of the COD(9) indicator, and b) the measurement and monitoring of pathogenic micro-organisms in accordance with Council Directive 76/160/EEC concerning the quality of bathing water(10) as amended by Directive 90/656/EEC on the transitional measures applicable in Germany with regard to certain Community provisions relating to the protection of the environment(11) and Council Directive 91/692/EEC standardizing and rationalizing reports on the implementation of certain Directives relating to the environment(12).

1.2 In its opinion, the Commission observed that the complaint had been dealt with rapidly and that the complainant had been regularly kept informed of developments relating to it. Furthermore, the complainant had had the possibility to present her views throughout the inquiry.

The Commission described the background of the case and stated that, after having examined the available information, its services had concluded that there was no infringement of Community environmental law. By letter of 9 February 2004, the complainant had been informed of the Commission services' conclusion. The Commission services had also informed the complainant of their intention to propose to the Commission to file the complaint, inviting the complainant however to submit any new elements showing the existence of an infringement within a period of one month following the dispatch of the letter. As the additional information transmitted by the complainant did not show an infringement of Community environmental law, the Commission services had maintained their conclusion. The Commission also pointed out that the subject of the complaint was before the Greek Council of State.

The Commission further observed that Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment(13) ("Directive 85/337") established a series of procedures which need to be respected in case of environmental impact assessment of certain projects susceptible of having notable effects on the environment. The Directive did not give the Commission the competence to intervene as regards the necessity of the project or to control the substance of an environmental impact assessment. In the present case, the project had been submitted to an environmental impact assessment in conformity with Directive 85/337, and a Joint Ministerial Decision (reference 136125/10.9.03), approving the environmental terms had been adopted. This Decision dealt with the objections from the competent authority and from the public. The Joint Ministerial Decision furthermore contained specific measures for the treatment of the waters coming from the treatment station, namely, limits for the various parameters, including for the COD indicator, the monitoring of the characteristics of the waste-waters and the control of the bathing waters which would be affected by the functioning of the treatment station (sections b, d 6.3, d 6.4, d 9.3, d 9.4) of the Joint Ministerial Decision).

1.3 The Ombudsman notes that, in its opinion on the complaint, the Commission also indicated that the complainant had equally submitted a petition to the European Parliament (no 928/2003) on the subject of her complaint.

1.4 Article 195 of the EC Treaty provides that "[i]n accordance with his duties, the European Ombudsman shall conduct inquiries for which he finds grounds (...)". The Ombudsman considers that there are no grounds for him to conduct inquiries into a complaint if the complainant has addressed a petition to Parliament on the same subject.

1.5 In the present case, it appears that petition 928/2003 to Parliament concerned the waste water treatment project at Rafina and the allegedly incomplete environmental impact assessment by the Greek authorities. In its opinion of 6 July 2004 on the petition, the Commission examined in substance the alleged infringement of Community law by the Greek authorities and referred to its correspondence with the complainant. The Commission stated in this opinion that it had decided to close the case considering that there had been no infringement of Community law. The Ombudsman notes that, on the basis of this information provided by the Commission in its opinion on the petition, the examination of the petition was closed on 25 November 2004 by letter of the President of the Committee of Petitions, Mr Marcin Libicki, addressed to the complainant.

1.6 Considering that Parliament has dealt with a petition which covers the substance of the infringement complaint, no further inquiries by the Ombudsman are justified into the present complaint to the extent that the complainant's allegation is directed at the Commission's conclusion that there was no infringement of Community law.

1.7 The Ombudsman considers that the fact that a complainant has also submitted a petition to the European Parliament's Committee on Petitions does not necessarily prevent him from examining a complaint to the extent that it covers aspects that have not been submitted to or considered by the Committee on Petitions. In the present case, however, the Ombudsman notes that the complaint that was submitted to him does not appear to cover any aspects that were not already dealt with in the petition.

2 Conclusion

Considering that Parliament has dealt with a petition which covered the substance of the infringement complaint, no further inquiries by the Ombudsman are justified into the present complaint.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 1991 L 135, p. 40.

(2) OJ 1998 L 67, p. 29.

(3) OJ 1976 L 31, p. 1.

(4) OJ 1990 L 353, p. 59.

(5) OJ 1991 L 377, p. 48.

(6) OJ 1985 L 175, p.40.

(7) OJ 1991 L 135, p. 40.

(8) OJ 1998 L 67, p. 29.

(9) Chemical oxygen demand (COD).

(10) OJ 1976 L 31, p. 1.

(11) OJ 1990 L 353, p. 59.

(12) OJ 1991 L 377, p. 48.

(13) OJ 1985 L 175, p.40.