Dear Mrs V.,
On 4 November 1997 you made a complaint to the European Ombudsman concerning the way the Commission dealt with your complaint of 15 June 1994 (ref. No. 94/4667 SG(94)A/15702) alleging violation by the Greek government, in the island of Zakynthos, of Council Directive 92/43/EEC and of national and international law on the preservation of sea turtles.
On 17 December 1997, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 18 March 1998 and I forwarded it to you with an invitation to make observations, if you so wished. On 17 April 1998, I received your observations on the Commission's opinion. On 30 June, 20 July, 29 July, 3 August and 19 October 1998 I received further information from you with regard to the handling of your complaint by the Commission, including copies of letters you had sent to the Head of Unit of DG XI/D2.
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 European 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, like the Greek government for instance, 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 European Commission.

THE COMPLAINT

According to the complainant the relevant facts were as follows:
The complainant is President of Medasset ("Mediterranean Association to Save the Sea Turtles"). On 15 June 1994 Medasset lodged a formal complaint to the European Commission (ref. No. 94/4667 SG(94) A/15702, acknowledged on 18 July 1994) for violation by the Greek government, in the Laganas Bay of the Ionian island of Zakynthos, of Council Directive 92/43/EEC of 21 May 1992(1) with regard to the preservation of sea turtles (Caretta-caretta). The complainant particularly alleged that the Greek government failed to transpose Directive 92/43/EEC into Greek national law before the two years deadline stipulated in the Directive. In its complaint, Medasset equally drew the Commission's attention to various violations by the Greek government of national and international law, more particularly the Convention on the Conservation of European Wildlife and Natural Habitats (the "Bern" Convention, Council of Europe). The complainant renewed its complaint each year since 1994 and kept DG XI (Environment) of the Commission regularly informed about the situation in Zakynthos by sending photographic evidence and special follow-up reports on the situation of the sea turtles in Zakynthos which Medasset had presented to the Environment Secretariat General of the Council of Europe(2).
On 26 April 1996, Medasset received a letter from the Commission according to which the Commission was satisfied with the efforts made by the government to protect the Caretta caretta in Zakynthos, given that significant steps for the substantial protection of the sea turtles in the Laganas Bay had been taken. Therefore the handling of the complaint had been suspended. By letter of 11 March 1997 the complainant was finally informed by the Head of the Legal Affairs Unit of DG XI - B, that the file on the case had been closed.
The complainant therefore wrote to the Ombudsman in November 1997 alleging that the decision of the Commission not to take legal action against the Greek government in this case was unjustified and arbitrary. Secondly, the complainant alleged that the period between the registration of the complaint and the letter by which the Commission informed the complainant that it would not start proceedings against the Greek government was too long (more than 2,5 years). Finally, in June 1997 Medasset put forward different questions on the matter to Commissioner Bjerregaard, responsible for environment, but never received a reply. The complainant enclosed extensive documentation on the subject, including the different follow-up reports presented to the Council of Europe.

THE INQUIRY

The Commission's opinion
In its comments, the Commission first pointed out that it had acted in accordance with the undertakings it had made in the framework of the Ombudsman's own initiative inquiry (ref. 303/97/PD, Commission's reply dated 24 July 1997), even if the matter of the complaint predated those undertakings. The Commission particularly stated that it gave reasons to the complainant why the file on the complaint had been closed. The Commission described the handling of the complaint as follows :
The Commission registered the complaint letter of 15 June 1994 as a formal complaint (ref. P 94/4667). The complaint alleged failure of the Greek government to comply with Directive 92/43/EEC and the Bern Convention(3) with regard to the conservation of sea turtles in the Laganas Bay in Zakynthos. Since the registration of the complaint the Commission actively followed the case through official correspondence, package meetings and within the framework of the Bern Convention.
After having gathered the relevant information, including from the Council of Europe, the Commission wrote on 3 August 1994 to the Greek authorities drawing their attention to the allegations of the complainant. Although it contained positive elements indicating concrete turtle protection measures being taken, the Commission was dissatisfied with the response of the Greek authorities dated 23 November 1994. Therefore Commissioner Bjerregaard sent on 21 June 1995 a letter to the Greek Minister for Environment with a request for immediate measures to be taken. In the summer of 1995, the Minister officially announced a series of concrete measures. After a new letter of the Commission dated 20 December 1995, the Greek authorities replied on 27 February 1996 by informing the Commission of measures which had already been implemented (amongst which the closing of illegal establishments) and announcing additional measures for the future (amongst which the creation of a marine park).
On 18 April 1996 the Commission informed the complainant about the content of the letter from the Greek authorities and asked for comments on it. The complainant was not satisfied with the measures which it considered insufficient. Another organisation which had also complained made overall positive comments on the development of the situation. The positive developments referred to by the Greek authorities were also confirmed by the results of a programme which dealt with the protection of Caretta caretta and which was financed by the Commission.
After this reply and further discussions during a package meeting held in Athens, the Commission decided to close the file for lack of evidence of breach of Community law, but continued to pursue the matter through bilateral contacts with the Greek authorities in order to ensure the concrete implementation of the measures announced, in particular the creation of the marine park.
By letter dated 11 March 1997, the complainant was informed about the decision to close the file, as well as of the reasons which led to that decision. The Commission considered that it gave to the complainant all the reasons which were relevant for its decision, i.e. those related to the nature of the legal requirements and to the nature of the information available to it. At the same time the Commission further pursued the case with the Greek authorities by letter of 14 March 1997 requesting additional information on the implementation of protection measures and on the progress in the creation of the National Marine Park in the Laganas Bay.
On 21 July 1997, the Greek authorities communicated to the Commission a Ministerial Decision approving a specific environmental study for Laganas Bay and a draft Presidential Decree creating the National Marine Park of Zakynthos. Further information of the progress of adopting the Presidential Decree was forwarded to the Commission on 22 September 1997. The Commission services studied the information provided by the Greek authorities and considered that the Presidential Decree positively addressed the eco-system of the area as a whole.
The complainant who was informed about these developments by the letter of 26 November 1997, was invited to provide the Commission with any relevant element showing a breach of Community environmental law, in which case the Commission would launch the Article 169 infringement procedure.
Against this background the Commission rejected the three allegations of the complainant. Firstly, as regards the allegation that the decision not to take legal action against the Greek authorities was unjustified and arbitrary, the Commission stated that it was diligent in dealing with the issue of turtle conservation and that it kept the file open until it was satisfied that substantial conservation measures were taken and that therefore there was no breach of Community law. With regard to the second allegation, the Commission considered that during the two and a half year period between the complaint registration and the decision not to start infringement proceedings, it had actively pursued the matter which was a complex and difficult nature conservation dossier, where precipitate action is inappropriate. Thirdly, as regards the alleged failure to reply by Commissioner Bjerregaard, the Commission pointed out that the Commissioner delegated this responsibility to her services which kept the complainant very well informed of the developments, in particular in the letter of 26 November 1997 informing of the latest evolutions since the meeting with the Commissioner in June 1997.
The complainant's observations
Further to the Commission's letter of 26 November 1997 asking the complainant to provide the Commission with new information disclosing an eventual breach of Community law, the complainant sent in January 1998 to the Commission a copy of its report for the meeting of the Standing Committee of the Bern Convention (Council of Europe, December 1997). The complainant observed that the situation of the sea turtles in Zakynthos had not changed in three years, because the illegal constructions were still there and illegal taverns operated, and that the National Marine Park only existed on paper. The Presidential Decree had still not been adopted. The complainant annexed to its comments a copy of a report by the Sea Turtle Protection Society of Greece which was very much in line with its own report. The complainant further stated that DG XI's actions were solely based on the Greek government's announcements and completely ignored the actual facts in Zakynthos and the position of the Bern Convention Standing Committee. Concluding that it was clear that the Greek government was in breach of Council Directive 92/43/EEC and of the Bern Convention, the complainant asked to keep the file open.
The complainant sent other information to the Commission on 29 June, 10 and 14 July 1998, drawing the Commission's attention to the complete lack of progress in the situation in Zakynthos and to the expiry of the 25 March 1998 deadline for the establishment of the National Marine Park as agreed between the Greek government, the Bern Convention Standing Committee and the EU. The Commission (DG XI - D/2) carried out an on the spot investigation in July 1998, but according to the complainant the local authorities had taken measures in order to present a false and positive situation, which was contradicted by photographic evidence presented by the complainant to the Commission. On 6 October 1998 the complainant sent to the Ombudsman a copy of its latest report presented to the 18th meeting of the Bern Convention Standing Committee.

FURTHER INQUIRIES

In order to know which follow-up the Commission had reserved to the new information sent by the complainant and to the on the spot investigation carried out in July 1998, the Ombudsman's office contacted the responsible unit of the Commission (DG XI - D/2). The Commission informed the Ombudsman's office that, further to the on the spot investigation of July 1998, it decided in October 1998 to open ex officio a new infringement procedure against the Greek authorities, which was communicated in a press release. The Commission informed the complainant of the new infringement procedure in December 1998 at the 18th meeting of the Bern Convention Standing Committee in Strasbourg.

THE DECISION

1 The allegation that the decision to close the file on the complaint was unjustified and arbitrary (the duty to state reasons for the decision)
1.1 The complainant alleged that the Commission's decision to close the file on the complaint, and not to take legal action against the Greek authorities, was unjustified and arbitrary. This aspect of the complaint concerns thus an alleged maladministration in the administrative procedure for dealing with a complaint for infringement of Community law by a Member State (Article 169 procedure). When the Commission takes a decision to open an infringement procedure or to close the file, it has the duty to state the reasons for this decision and to communicate those reasons to the complainant. This obligation to give reasons for a decision can also be subject of supervision by the Ombudsman. The Ombudsman's inquiry into this part of the complaint therefore examined whether the Commission duly gave reasons for its decision to close the file on the complaint.
1.2 The complainant was informed about the decision to close the file by the letter of the Head of the Legal Affairs Unit of DG XI - Directorate B, dated 11 March 1997. The Ombudsman notes that, in this detailed letter of two pages, the Commission first informed the complainant that it took into consideration the new commitments undertaken by the Greek authorities at the meeting in Athens in May 1996. The Commission further evaluated the information provided by the complainant in a letter to Commissioner Bjerregaard dated 17 February 1997, as well as other information available to the Commission's services.
1.3 The Commission decided that those elements did not disclose a breach of Community law. In particular, the Commission took account of the fact that the Greek authorities had taken a range of concrete measures to protect the breeding and nesting places of the sea turtle in Zakynthos. The letter contains a description of those measures.
1.4 As regards the construction of the Marine Park, the Commission referred to the obligation which the Greek authorities undertook to finish the works before 25 March 1998. The Commission further stated that it can only supervise that the Greek authorities comply with the obligations of Directive 92/43, but that it can not intervene in the form of the implementing measures which is a matter of national competence.
1.5 The Commission finally informed the complainant that DG XI would be following the progress in the implementation of the measures and, in case no progress was made, initiate infringement proceedings. The letter concludes by stating that the complainant would be kept informed about the outcome of the case.
1.6 It appears from the above that the Commission has duly given reasons for its decision to close the file and has informed the complainant in a detailed manner of those reasons. Moreover, the Commission has decided to open ex officio an infringement procedure against the Greek authorities after the on the spot investigation. The Commission has informed the complainant in December 1998 of this decision. The Commission has thus acted within the limits of its legal authority and there appears to have been no maladministration.
2 The alleged too long time period between the registration of the complaint (July 1994) and the decision to close the file (March 1997)
2.1 As regards the allegation that the time period between the registration of the complaint and the decision to close the file was too long, the Commission observed that it was evident from the details it furnished that during this time it had actively pursued the matter. The Commission also drew the attention to the fact that, in complex and difficult nature conservation cases, precipitate action is often inappropriate.
2.2 The Ombudsman notes that, as regards this aspect of the Article 169 procedure, the Commission has, in its comments in the framework of the Ombudsman's own initiative inquiry 303/97/PD, observed that, under its internal rules of procedure, a decision to close a file without taking any action or a decision to initiate official infringement proceedings must be taken on every complaint within a maximum period of one year from the date it was registered, except in special cases, the reasons for which must be stated(4). Those reasons may relate to the considerable time taken for discussions and exchanges with national authorities.
2.3 In the present case, where the decision to close the file was taken after a period of nearly 3 years, it appears that the Commission has furnished sufficient justifications for this long period. The Ombudsman observes that the complaint was indeed a complex and difficult case about nature conservation. It appears from both the information provided by the complainant and the details contained in the Commission's observations that, between July 1994 and March 1997, the Commission has actively been inquiring into this complaint, and involved also the complainant in its inquiry. In particular, the Ombudsman notes that, after having registered the complaint and having gathered the relevant information, including from the Council of Europe, the Commission wrote in August 1994 to the Greek authorities, which answered in November 1994. Dissatisfied with the response from the Greek authorities, the Commission wrote again in June 1995 and December 1995 with a request for information on the measures taken. In November and December 1995 correspondence was exchanged between Commissioner Bjerregaard and the complainant who remained also in close contact with DG XI. In February 1996 the Greek authorities informed the Commission about the measures already implemented and additional measures to be taken. In April 1996 the Commission informed the complainant, in a three pages letter, of those measures and requested for comments. In June 1996 the complainant presented observations to the Commission.
2.4 After the complainant's reply and discussions during the meeting in Athens in May 1996, the Commission finally decided to close the case and informed the complainant of its decision in March 1997.
2.5 It appears thus from the above that, given the many exchanges of information which took place between the Commission, the Greek authorities and the complainant, the long period between the registration of the complaint and the decision to close the file can not be considered as an instance of maladministration.
3 The alleged failure to reply by Commissioner Bjerregaard
3.1 As regards the allegation of the complainant that Commissioner Bjerregaard did not reply in writing to questions which were put to her during her visit in Athens in June 1997, the Commission observed that the Commissioner delegated this responsibility to her services which kept the complainant very well informed of the developments, in particular by the letter of 26 November 1997.
3.2 The Ombudsman notes that the complainant has indeed received a reply from the Commission services in the letter of 26 November 1997. In this letter, which refers explicitly to the questions raised in June 1997 to the attention of Commissioner Bjerregaard, the Commission informed the complainant of the latest developments (correspondence with the Greek authorities in March, July and September 1997) and invited the complainant to provide the Commission with any relevant new information disclosing an eventual breach of Community law. Therefore no instance of maladministration has been found with regard to this aspect of the complaint.
4 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman has therefore decided to close 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 Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206/7.

(2) Different follow-up reports presented by Medasset to the 14th, 15th, 16th and 17th meetings of the Standing Committee of the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention), concerning marine turtle conservation in Zakynthos (Laganas Bay), Greece.

(3) Convention on the conservation of European wildlife and natural habitats, done at Bern on 19 September 1979, OJ 1982 L 38/1.

(4) 303/97/PD, reported in the European Ombudsman's Annual Report for 1997, p 272.