Decision of the European Ombudsman on complaint 1003/2008/MF against the European Commission

Strasbourg, 8 July 2008

Dear Mr D.,

On 1 April 2008, acting on behalf of the Association "Plataforma para la Defensa de la Cordillera Cantábrica", you submitted a complaint to the European Ombudsman against the European Commission’s Directorate-General for Environment.

Your complaint concerned the lodging of a complaint with the Commission in relation to the exercise of its powers under Article 226 of the EC Treaty against the Spanish authorities in relation to the building of a winter sports resort "Fuentes de Invierno" in the Spanish region of Aller (Asturias).

On 25 April 2008, I forwarded the complaint to the President of the Commission.

By e-mail of 6 May 2008, the Commission’s services sent further information to my services concerning your complaint relating to its exercise of its powers under Article 226 of the EC Treaty.

On the same day, my services contacted you in order to check whether you wished to maintain your complaint against the Commission.

You replied to my services by e-mail of 8 May 2008.

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

THE COMPLAINT

According to the complainant, the relevant facts were, in summary, as follows:

The complainant is the President of the Association "Plataforma para la Defensa de la Cordillera Cantabrica", on whose behalf he lodged the present complaint.

In 2006, the complainant lodged a complaint with the European Commission in relation to the exercise of its powers under Article 226 of the EC Treaty against the Spanish authorities, concerning the building of a winter sports resort "Fuentes de Invierno" in the Spanish region of Aller (Asturias).

In his complaint, the complainant alleged that, by deciding to build a winter sports resort in this region, the Spanish authorities infringed Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment(1); Council Directive 79/409/EEC on the conservation of wild birds(2); and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora(3).

In its reply of 7 March 2008, the Commission's Directorate-General ("DG") for Environment stated that it had contacted the relevant Spanish authorities in order to get detailed information on the evaluation of the project’s impact on the environment. The Commission pointed out that no infringements to the above-mentioned Directives had been found because the project was not located within a protected area.

DG Environment concluded that it would propose to the relevant service of the Commission to file the complainant’s complainant, on the occasion of its next meeting. DG Environment further stated that, in case the complainant had observations to make on this proposal to file his complaint, he could make them within one month from the date on which its letter was sent(4).

On 31 March 2008, the complainant challenged the position of DG Environment, pursuant to which there was no infringement of the relevant Directives. He further alleged that the procedure used to inform him that a proposal would be made to file his complaint was inappropriate because it lacked formality and put him in a situation whereby his rights to challenge this proposal were effectively denied.

In this context, the complainant pointed out that, on the occasion of a telephone conversation with the complainant's assistant on 27 March 2008, DG Environment informed the latter that the proposal to file the complaint had already been forwarded to the Commission’s relevant service.

The complainant further pointed out that the Commission had sent its letter of 7 March 2008 by normal mail, without any registration or acknowledgment of receipt. The complainant argued that those failures constituted a lack of formality because he could have received the letter after the relevant deadline for the submission of his observations. The complainant claimed that the proposal to file his complaint should be cancelled and that he should be allowed to make comments within a reasonable period of time.

In his complaint, the complainant submitted the following allegations:

1. The Commission unfairly decided to reject his complaint that the Spanish authorities infringed Community law.
2. By failing to send the letter of 7 March 2008 by registered mail, and by failing to give the complainant one month from the receipt of that letter to reply, the procedure followed by the Commission in relation to his complaint led to a denial of his right to make comments on the proposal to close the file.

The complainant claimed that he should be allowed to make comments, within a reasonable period of time, on the proposal to close the file relating to his complaint. He argued that, until such time as he has made comments, the proposal to close the file should be suspended.

Subsequent contacts between the Commission’s services and the Ombudsman’s services

On the occasion of a telephone conversation of 29 April 2008, the Commission informed the Ombudsman’s services that, in view of new documents sent by the complainant on 2 April 2008 and received on 10 April 2008, his complaint relating to the exercise of its powers under Article 226 of the EC Treaty was still awaiting examination.

The Ombudsman’s services were further informed that the documents were also awaiting analysis and that the complainant had been informed accordingly by letter of 30 April 2008.

By e-mail of 6 May 2008 sent to the Ombudsman’s services, the Commission forwarded to the complainant a copy of its letter of 4 April 2008(5) in which it had informed him that the deadline for the submission of his observations had not yet expired and that, should he have any observations to make, he should submit them as soon as possible. In its letter, the Commission further informed the complainant that, in any case, when a complaint was closed, a new investigation could always be opened on the basis of the new elements submitted.

Subsequent contacts between the Ombudsman’s services and the complainant

In light of the above and on the occasion of a telephone conversation of 7 May 2008, the Ombudsman’s services informed the complainant of the situation and asked him whether, in view of the information provided by the Commission to the Ombudsman’s services, he wished to maintain his complaint against the latter.

Given that it appeared that the complainant had not received the Commission’s letter of 30 April 2008, the Ombudsman’s services forwarded it to him by e-mail of the same day.

The complainant’s reply of 8 May 2008

By e-mail of 8 May 2008, the complainant replied that, in light of the Commission’s letter of 30 April 2008, he wished to withdraw his first allegation against the Commission.

The complainant however pointed out that he wished to maintain his second allegation raised in his complaint to the Ombudsman.

THE DECISION

1 The Commission’s allegedly unfair decision to reject the complainant’s complaint against the Spanish authorities for infringement of Community law

1.1 In 2006, the complainant, who is the President of the Association “Plataforma para la Defensa de la Cordillera Cantabrica”, lodged a complaint with the European Commission in relation to the exercise of its powers under Article 226 of the EC Treaty against the Spanish authorities. That complaint concerned the building of a winter sports resort "Fuentes de Invierno" in the Spanish region of Aller (Austrias). On 7 March 2008, the Commission’s Directorate-General ("DG") for Environment replied that, after having contacted the relevant Spanish authorities in order to get detailed information on the evaluation of the project’s impact on the environment, it considered that there was no infringement of Community law because the project was not located within a protected area.

DG Environment concluded that it would propose to the relevant service of the Commission to file the complainant’s complainant, on the occasion of its next meeting. The Commission further informed the complainant that, should he have observations to make on this proposal to file his complaint, he could make them within one month as from the date on which its letter was sent.

In his complaint to the Ombudsman, the complainant alleged that the Commission unfairly decided to reject his complaint that the Spanish authorities infringed Community law.

1.2 On 29 April 2008, the Commission informed the Ombudsman’s services that, in view of new documents sent by the complainant on 2 April 2008 and received on 10 April 2008, his complaint relating to the exercise of its powers under Article 226 of the EC Treaty was still being examined by the Commission’s relevant services.

1.3 On the occasion of a telephone conversation of 7 May 2008, the Ombudsman’s services informed the complainant of the situation and asked him whether, in view of the information provided by the Commission to the Ombudsman’s services, he wished to maintain his complaint against the latter.

1.4 In his reply of 8 May 2008, the complainant stated that he wished to withdraw the first allegation against the Commission.

1.5 In light of the above and in accordance with the complainant’s request to withdraw his first allegation, the Ombudsman considers it appropriate to close his inquiry as regards this allegation. Should the complainant be dissatisfied with the Commission’s decision concerning his complaint against the Spanish authorities relating to the exercise of its powers under Article 226 of the EC Treaty, he could consider renewing his complaint with the Ombudsman.

2 The alleged denial of the complainant’s rights to make comments on the Commission’s proposal to close the file relating to his complaint against the Spanish authorities for infringement of Community law

2.1 The complainant alleged that, by failing (i) to send the letter of 7 March 2008 by registered mail, and (ii) to give the complainant one month from the receipt of that letter, in which to reply, the procedure followed by the Commission led to a denial of his rights to make comments on the proposal to close the file relating to his complaint.

2.2 First, the Ombudsman notes that the complainant’s second allegation is closely linked to his first allegation and that it appears to constitute a secondary problem, the main issue being the Commission’s proposal to close the complaint in relation to the exercise of its powers under Article 226 of the EC Treaty.

2.3 Second, the Ombudsman notes that, by letter of 4 April 2008, the Commission informed the complainant that the deadline for the submission of his observations had not yet expired and that, should he have any observations to make, he should submit them as soon as possible(6). It emerges that the complainant was in fact given the possibility to submit his observations on the Commission’s proposal to close his complaint against the Spanish authorities, by sending new documents to the Commission.

2.4 Third, as regards the issue of whether the Commission should have used registered mail to communicate with the complainant, the Ombudsman is not aware of any binding rule pursuant to which the Commission was required to send by registered mail the letter informing the complainant of its intention to close the complaint relating to the exercise of its powers under Article 226 of the EC Treaty. The Ombudsman would like to point out, however, that it could not be excluded that there would be a possible instance of maladministration in case the Commission were to refuse to take into consideration an interested party's comments in the event the interested party were unable to respond within the deadline established by the Commission as a result of postal delays relating to the Commission's letter. In this case, the Ombudsman notes, however, that this issue did not arise.

2.5 In light of the above, the Ombudsman considers that there appears to be no grounds for further inquiries into the complainant's allegation.

3 The complainant’s claims

3.1 The complainant claimed that he should be allowed to make comments on the proposal to close the file in relation to his complaint within a reasonable period of time. The complainant also argued that, until such time as he has made comments, the proposal to close the file should be suspended.

3.2 In light of his conclusion in point 2.5 above, the Ombudsman considers that there appears to be no grounds for further inquiries into the complainant's claim.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to be no grounds for further inquiries into the complainant’s second allegation and claim. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) See OJ 1997 L 73, p. 5.

(2) See OJ 1979 L 103, p. 1.

(3) See OJ 1992 L 206, p. 7.

(4) The Ombudsman notes that, given that the letter sent to the complainant by the Commission was dated 7 March 2008, the relevant deadline for the submission of his observations was 7 April 2008.

(5) The Ombudsman notes that the complainant did not attach to his complaint the Commission’s letter of 4 April 2008.

(6) The Ombudsman would like to point out that he had not been informed of this correspondence when he decided to ask for the Commission’s opinion with respect to this allegation.