The background

1. The complainant is a Polish eco-farmer and the owner of a forest with streams in the mountain area on the Polish border with Slovakia. On 22 August 2012, he submitted an infringement complaint to the Commission against Poland. He argued that the Polish managing authority did not organise public consultations on all priorities of the Infrastructure and Environment Operational Programme (the 'Programme') for Poland between 2007 and 2013. He further alleged that public consultations cannot, by definition, be limited to announcements in the press, but should be carried out through meetings of the authorities with inhabitants of the areas concerned. In his view, the failure to carry out proper public consultations resulted in environmental damage due to the imprudent use of EU funds by the beneficiaries.

2. The Commission registered his complaint in October 2012. The complainant was not satisfied with the way in which the Commission handled his complaint and turned to the Ombudsman (case 583/2013/MHZ) alleging procedural shortcomings.[1] The Ombudsman found maladministration in that the Commission delayed the start of the EU-Pilot procedure for dealing with infringement complaints and, as a result, made it impossible for itself to comply with the one year deadline to decide on the complainant's infringement complaint. She closed the case with a critical remark in December 2013.[2]

3. On 17 March 2014, the Commission informed the complainant about its intention to close the complainant's infringement file by sending a so-called "pre-closure letter". Despite the complainant's objections set out in a letter dated 26 March 2014, the Commission closed the case and informed the complainant accordingly, on 29 April 2014.

4. The complainant was not satisfied with the Commission's replies and turned to the Ombudsman again (complaint 403/2014/MHZ). The Ombudsman then opened an inquiry on (i) the allegation that the Commission had failed to explain convincingly its view that the public consultations carried out by the Polish authorities as regards 'the Programme' were satisfactory, and thus relevant EU legislation was not infringed, and (ii) the claim that the Commission should agree to pay ex gratia compensation to the complainant for the deficient handling of his infringement complaint. The inquiry led to three proposals for a solution[3].

Allegation of insufficient explanation concerning public consultations, and claim for ex gratia compensation

The Ombudsman's proposals for a solution

5. On 9 April 2015, the Ombudsman made three proposals for a solution (see Para. 8). When proposing the solution, the Ombudsman took into account the arguments and opinions put forward by the parties.

6. The Ombudsman first clarified the notion of public consultations to which the complaint referred. She noted that Article 5 of Regulation 1828/2006[4], setting out rules for the implementation of Regulation 1083/2006,[5] provides that "[the managing authority] shall … ensure that information on the financing opportunities offered by joint assistance from the Community and the Member State through the operational programme is disseminated as widely as possible". (Emphasis added). In the Ombudsman’s view, the relevant information to be provided by the national managing authority should ensure that, to the greatest extent possible, potential beneficiaries of relevant funds are informed. Furthermore, the Ombudsman understands that in practice, before adopting operational programmes setting their priorities for delivering the European Structural and Investment Funds (formerly called Structural and Cohesion Funds) Member States seek submissions from interested stakeholders. The latter can influence funding priorities by making submissions through the public consultations process. The reference to dissemination in the Regulation appears to concern a situation where the managing authority provides information about the projects to be covered from the EU funds, and the stakeholders submit claims and proposals which may result in modifications of the operational programme before it is approved by national authorities and submitted to the Commission for approval. [6] These are the public consultations to which the present complaint relates.

7. The Ombudsman acknowledged that mutual trust is at the heart of the cooperation between national authorities and the Commission. However, when the complainant alleged that the public consultations as regards the Programme had not been conducted properly, the Commission was clearly obliged to verify whether the Member State in question carried out the public consultation in an appropriate and adequate manner.

8. Even though the Commission contacted the Polish authorities in order to obtain explanations following the complainant's infringement complaint, it appeared that the information provided by the Polish authorities had not been examined sufficiently thoroughly by the Commission. It did not take into account the distances between the location of the meetings where public consultations are supposed to take place and the location of the actual beneficiaries. The Ombudsman further agreed with the complainant that, as a matter of principle, consultations should be organised as close as possible to the place where the potential beneficiaries live. Since the public consultation in question related to a programme which had already expired, the Ombudsman did not request the Commission to remedy this maladministration. Instead, she suggested that the Commission could:

(First) Review its policy on how it verifies the way in which public consultations are carried out in the Member States as regards projects supported by EU funds;

(Second) Undertake a detailed examination from an environmental perspective of the evidence submitted by the complainant to the Ombudsman along with his observations on the Commission's opinion, , with a view to deciding whether it is necessary to take any action to ensure compliance with EU law in this area;

(Third) Arrange a meeting between the complainant and the Commission's representative in Poland. In this way, the Commission would be making a strong symbolic statement that the protection of the environment is very high on the EU's agenda, and that the voices of vigilant citizens, who care for the well-being of the environment at the local level, are being heard and respected.

9. In the Commission's reply to the Ombudsman's first proposal (review of its policy on how it verifies the way in which public consultations are carried out in the Member States, as regards the forthcoming programmes), the Commission distinguished between the need of public consultation and the need for adequate information of potential beneficiaries.

10. As regards the public consultation in the context of the programming period 2014-2020, the Commission pointed out that the provisions on the public participation and consultation were strengthened in a new Regulation (EU) No 1303/2013.[7] The changes in the Regulation aim at ensuring adequate participation of local authorities, civil society and environmental interests.

11. Detailed guidance and best practices on the involvement of the relevant partners in the preparation of calls for proposals have been provided in Commission Delegated Regulation (EU) No 240/2014, while several other instruments require that Member States indicate the partners that should be involved in the preparation of the operational programmes. Additionally, Commission Implementing Regulation 288/2014[8] in Annex I and II includes a section where the Member States have to indicate the partners involved in the preparation of the programme. Thus, the Commission already appears to have paid special attention to the way Member States involve the relevant partners. Moreover, the Commission has set up a structured Dialogue expert group for ESI Funds for the programming period 2014-20, composed of regional, local and other public authorities, socio-economic partners, civil society and NGOs to deliberate on the implementation of the partnership principle. The Commission also launched an on-going study about how the new provisions on partnership have been integrated into the programming process.

12. Regulation 1303/2013 also obliges the Commission and the managing authorities to ensure dissemination of guidance to potential beneficiaries. Article 13 of that Regulation obliges the Commission to prepare guidance for beneficiaries on how to access and use ESI Funds effectively and how to exploit complementarities with other instruments of relevant Union policies. It also provides that the guidance should be made public on the websites of the relevant Directorate Generals of the Commission. DG Regional and Urban Policy has already published the required guidance on its website. The links provided throughout the document will allow potential beneficiaries to find their way through material available online, directing them to the most relevant and useful websites and documents. An online check-list is also available to help potential beneficiaries identify the most appropriate funding sources.

13. The Commission stated that with a view to strengthening the accessibility and transparency of information about funding opportunities and project beneficiaries, a single website portal providing information on all operational programmes, including the lists of operations supported under each operational programme, should be made available in each Member State. Although the Commission acknowledged that not everyone has access to the internet, especially in remote areas (in any event according to Article 2(10) of Regulation (EU) No 1303/2013 a natural person cannot be a beneficiary for the new programming 2014-20), the Commission remained of the opinion that, in order to ensure the widest possible dissemination of information, the internet is the most appropriate tool. In this respect, it noted that one of the priorities of the European Regional Development Fund is to extend broadband deployment, including the roll-out of high-speed networks and the adoption of emerging technologies and networks for the digital economy.

14. As regards the Ombudsman's second proposal (to undertake a detailed examination of the evidence submitted by the complainant, from the environmental perspective), the Commission replied that the allegations of the complainant as regards breaches of environmental law had already been scrutinised in close cooperation with DG Environment as well as DG Agriculture and Rural Development. The Commission was not able to establish breaches of EU environmental legislation and the complainant was already informed accordingly.

15. The Commission then explained in detail its view why there was no infringement of EU environmental law as regards the site Natura 2000 Ostoja Popradzka to which the complainant's complaint to the Commission referred:

· The investment involving the construction of the viewing tower at the summit of Eliaszowka mountain was subject to a screening procedure as a result of which a decision was issued by the Regional Environmental Protection Directorate in Cracow stating that it was not necessary to carry out an assessment of the impact on the Natura 2000 Ostoja Popradzka site. In this procedure, reasonable assurance was achieved as to the absence of a significant negative impact of the investment on the protection aims and objectives of a Natura 2000 site. After having analysed all the information provided, the Commission did not identify any violation of EU law.

· As regards the alleged deterioration of the Natura 2000 site Ostoja Popradzka as a result of flood relief works carried out on the Poprad river, and the corresponding alleged breaches of the EU Birds Directive (2009/147/EC) and the Habitats Directive (92/43/EEC), the Commission said that the objective of these Directives is the conservation of protected habitats and species rather than control of floods. It said that river maintenance for the purpose of flood control generally falls within the authority of the Member States rather than that of the EU. Article 6(2) of the Habitats Directive prohibits the deterioration of the natural habitats and the disturbance of protected species on the Natura 2000 sites. However this does not mean that any physical works within such sites are prohibited. Not only does the correct interpretation of this provision prohibit deterioration of the conservation status of the habitats or species protected within the site, but it also implies a certain degree of deterioration or disturbance that can be accepted, particularly if it is limited to a small area, temporary and likely to be remedied by natural hydrological processes of a riverine system (particularly if it is carried out in the public interest). The Commission reiterated that no breaches of EU environmental legislation could be established.

16. As regards the Ombudsman's third proposal (meeting with the complainant), the Commission commented that the complainant's correspondence was often vexatious and offensive. However, by assessing diligently the allegations raised by the complainant, investigating them in detail, informing him directly of the reasons why there was no infringement, and giving him full access to the documents requested, the Commission showed that the protection of the environment is high on its agenda. Finally, it recalled that according to the commitments announced in the Communication 'updating the handling of relations with the complainant in respect of the application of Union law', '[at any point during the procedure complainants may ask to explain or clarify to the Commission, on the spot and at their own expense, the grounds for their complaint.'[9]) Since the complainant's allegations had been duly examined and the procedure closed, it is difficult to imagine that, considering the number of complaints received each year by the Commission, it could consider a meeting with the complainant at this stage. It noted, however, that if the complainant put forward a new grievance, the Commission could decide to open a new complaint.

17. In his observations, the complainant expressed his disappointment with the Commission's stance. He further argued that the Commission did not understand his allegations. He drew attention to the link between the maintenance of the river banks and riverbed, on the one hand, and the damage to the environment and to protected or endangered species that inhabit the sides of the river or the riverbed, which are destroyed or subject to detrimental treatment by the floods, on the other hand.

18. Moreover, the complainant was unhappy that the Commission rejected the Ombudsman's proposal to arrange a meeting with him, which would have enabled him to better explain to the Commission his environmental concerns for the sites in question, during which he could show its representatives the actual sites, which he was referring to in his complaints. He concluded that he regrets that projects financed or co-funded by the European Union which cause harm to the environment, and to the natural habitats of animals, have the European Union's logo associated with them.

The Ombudsman's assessment after the proposals

19. The Ombudsman appreciates that the Commission's replies to her three proposals were detailed and thorough. As regards the Commission's reply to the first proposal, the Ombudsman welcomes the actions undertaken by the Commission (described in points 11 and 12 above) on the basis of the new provisions laid down in Regulation (EU) No 1303/2013. As explained in detail by the Commission, that Regulation requires extended involvement of partners in the implementation, monitoring and evaluation of the programmes for the 2014-20 period. It thus ensures adequate participation of civil society and the environmental partners, and is more rigorous in this regard than the previous legislation.  The Ombudsman also welcomes the fact that the new Regulation envisages that EU Funds will be used in order to foster further development of broadband networks and connectivity in the future. This will contribute to wider and better dissemination of information on the use of EU Funds. 

20. With regard to the Commission's reply to her second proposal, the Ombudsman notes that having considered the complainant's new photographic evidence, the Commission maintained its earlier view that there was no infringement. In reaching that decision the Commission's provided an adequate reasoning to support its view. In that sense, the Commission complied with the Ombudsman's proposal.

21. Finally, the Ombudsman understands that the Commission has to rely on the cooperation of Member States' administrations in assessing and monitoring the Members States' compliance with EU environmental legislation. In that regard the role of citizens is crucial in bringing to the Commission's attention possible infringements of EU environmental protection standards in the various Member States is. However, citizens cannot bear the whole burden of providing full and complete information to the Commission about issues related to environmental protection and the management of EU funds at the national level. Complaints made on a regular basis by citizens to the members of the European Network of Ombudsmen suggest that the Commission could pay more attention to allegations made by EU citizens in this respect. In this context, the Ombudsman points out that in a reply[10] to another investigation carried out by the Ombudsman, the Commission has acknowledged that its staff in Member States "act as the Commission's voice in the host country and monitor public opinion." The Ombudsman notes that in its reply to her third proposal, the Commission does not exclude the possibility of meeting with the complainant one day, even if it refused, at this stage, a meeting between its Representation in Warsaw and the complainant. The Ombudsman trusts that EU citizens who care and fight for the protection of the environment at the local level, as well as organisations who intervene in this field will be able to participate in events organised by the Commission's representatives in their Member State on issues related to the environment.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman trusts that EU citizens who fight for the protection and preservation of the environment, as well as civic organisations which act in this field at the local level, will be able to participate in events organised by the Commission's representatives in their Member State on issues related to the environment.

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

Emily O'Reilly

Strasbourg, 01/03/2016

Final English version of the decision on complaint 403/2014/MHZ

 

[1] This case also concerned the Commission's handling of another infringement complaint submitted by the complainant to the Commission, namely that Polish authorities infringed the relevant EU provisions on the use of EU funds for the protection of the environment and the distribution of eco benefits.

[2] The Ombudsman's decision on this complaint may be found at: . http://www.ombudsman.europa.eu/cases/decision.faces/en/52917/html.bookmark

[3] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's proposal for a solution available at: http://www.ombudsman.europa.eu/cases/caseopened.faces/en/54093/html.bookmark

[4] Regulation (EC)1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund, OJ L 371.

[5] Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund (OJ 2006 L 210, p. 25.) Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 (OJ 2006 L 371, p.1).

[6] http://ec.europa.eu/regional_policy/index.cfm/en/policy/how/stages-step-by-step/. Also: https://www.pois.2007-2013.gov.pl

[7] Regulation (EU) 1303/2013 of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and laying down general provisions the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC)1083/2006, OJ L 347, 20 December 2013, p. 320.

[8] OJ L 087, 22 March 2014, p.1

[9] COM(2012)154 final, point 7.

[10] OI/8/2014. This own-initiative inquiry concerned the issue of how the European Commission ensures that fundamental rights enshrined in the Charter of Fundamental Rights of the European Union are complied with when the EU cohesion policy is implemented by Member States. The inquiry was launched as the Union embarked on a new seven-year period of funding, covering 2014-2020, under Regulation 1303/2013. The Commission's reply to the Ombudsman's proposal for improvement may be found at: