Decision of the European Ombudsman on complaint 749/97/IJH against the European Commission

Dear Mr M.,
With letters of 6 August 1997 and 6 September 1997, you made a complaint to the European Ombudsman. Your complaint to the Ombudsman concerned the European Commission's treatment of complaint P95/5006 concerning the proposal to build the Tralee dual carriageway in the area of the Ballyseedy Wood, Tralee, County Kerry in Ireland.
On 15 October 1997, I forwarded the complaint to the President of the Commission. On 12 November 1997, you sent further information in relation to your complaint. On 2 February 1998, the Commission sent its opinion and I forwarded it to you on 16 February 1998 with an invitation to make observations, if you so wished. On 6 March 1998, you sent your observations on the Commission's opinion. On 8 September 1998 I wrote again to the Commission, requesting further information. The Commission sent its answer on the request for further information on 13 November 1998 and I forwarded it to you on 15 December 1998 with an invitation to make observations, if you so wished. On 20 January 1999, you sent your observations on the Commission's answer.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant was concerned about the planned construction of the Tralee dual carriageway in the area of the Ballyseedy Wood, Tralee, County Kerry in Ireland, an area classified as a priority habitat under the Habitat Directive (Directive 92/43/EEC). He lodged a complaint with the Commission, DG XI, which had decided to co-finance the new road. Dissatisfied with how the Commission's investigation of the matter was proceeding, he complained to the Ombudsman, putting forward, in summary, the following points:
(i) The Commission had failed to ensure an adequate scientific appraisal of the planned dual carriageway. It had not insisted that the Irish authorities produce an Environmental Impact Assessment under Directive 85/337/EEC. Given the established environmental importance of the Ballyseedy Wood, it was not in line with the Directive to base a decision only on informal information submitted by the Irish authorities. Furthermore, the Commission had failed to perform a visit to the site or to send its own experts in order to obtain independent information. This is of particular importance since there are grave doubts about the reports prepared by the Kerry County Council's environmental experts.
(ii) The procedure used by the Commission was unfair in that the Irish authorities were put in a much better position than the objectors, who have very limited resources. The complainant claimed, in particular, that the Commission had given the Irish authorities over a year to respond to the Commission's investigation, but gave the objectors only six weeks to comment on the standpoint of the Irish authorities; and that the Commission did not itself supply him with the reports submitted by the Irish authorities but instead referred him to Kerry County Council for access to the reports.

THE INQUIRY

The Commission's opinion
In its opinion, the Commission noted that the Ballyseedy Wood is a small broad-leaved wood. It had been identified as a residual alluvial forest which is a priority habitat type for the purpose of Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna. The Irish authorities indicated that Ballyseedy Wood is one of 14 sites in Ireland which will be proposed as special areas of conservation for the habitat type under the Directive.
As regards the procedures, the Commission claimed that they were carried out correctly and that the objectors had been treated fairly. The complaint was registered on 22 January 1996 as number P95/5006. An initial evaluation and representations to the Member State took place on 14 March 1996 and 3 July 1996. A letter to the complainant explaining the representations made to the Member State was sent on 20 August 1996. The Irish authorities responded on 21 May 1997 and 13 June 1997 and the Commission informed the complainant on 1 July 1997 about this response, inviting him to comment within six weeks. The Commission was currently assessing the received information. Furthermore, no Community funds had yet been given to the project since the Commission is awaiting the outcome of the investigations.
The Commission also commented on the duration of its investigation, which exceeded the period of one year generally foreseen for the conclusion of an investigation into a complaint. It explained this by the fact that the complaint had raised several complex technical and scientific issues, thus requiring more time for a proper evaluation. Since the project had not proceeded during the time of investigation, no detriment had arisen. The Commission further pointed out that the fact that the Irish authorities had failed to complete a formal Irish list of sites intended for conservation under Directive 92/43/EEC, was subject to a separate infringement procedure addressing that issue.
As regards the complainant's allegation that six weeks for commenting on the Irish authorities' response was too short, the Commission stated that the position of the complainant is different to that of the Member State. The Member State is obliged to supply the Commission with information; an obligation not imposed on the complainant. There are also consequences for the Member State in not meeting the Commission's requested deadline for response. In contrast, the complainant is not faced with similar consequences. Furthermore, the Commission stated that six weeks is reasonable compared with analogous national processes.
The Commission stated that its own rules on access to documents did not allow it to provide the complainant with the reports since it was not their author. On the other hand, Kerry County Council was obliged to provide access to the reports by Directive 90/313/EEC on freedom of access to information on the environment.
The compliance of the project with Directive 85/337/EEC was subject to investigation. The complainant had been invited to comment on the response of the Irish authorities and his comments would be taken into account.
On the question of whether the Commission should send its own experts to visit the site, the Commission stated that it did not rule out the possibility of a site visit. Such visits are sometimes made in connection with important habitats under threat. However, up to the date of the complaint to the Ombudsman, a site visit was not required, as the obtaining of information and evaluation thereof could be dealt with satisfactorily by way of correspondence.
Finally, the Commission stated that the complainant had been kept fully informed of all critical stages in the investigation and that a meeting had taken place between the complainant and the Commission services in the autumn of 1997. The Commission concluded by stating that it would keep the complainant informed of further developments.
The complainant's observations
In his observations, the complainant maintained his complaint and made the following points:
When the objectors were told they had only six weeks to comment on various extensive reports by the Irish authorities, they gave up all hope of raising the money and finding experts to counter the arguments presented. The time allowed was totally unreasonable. This was particularly unfortunate since the reports were full of flaws. If the Commission wants an accurate procedure, it should make sure that both the Irish authorities and the complainants possess the necessary experts, and if not, supply them itself. The need for Commission experts was all the greater because, every time the complainants managed to obtain an expert opinion, the reports of the Irish State's experts were found to contain serious errors.
As regards the fact that the complainant had to obtain the reports from Kerry County Council, the complainant pointed out that the Commission firstly said that it would guard the anonymity of the complainants and then referred them to their adversaries for obtaining the relevant reports.
The complainant also underlined that his complaint was not against the staff of the Commission but against the established procedures. These were unfair to the complainants in that they left unreasonable and unfair advantages to the Member State with its massive resources.

FURTHER INQUIRIES

After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman deemed further inquiries to be necessary. For this purpose, the Ombudsman requested information from the Commission; firstly, concerning its opinion that its rules on access to documents "did not allow" it to provide the complainant with the requested reports and secondly, concerning the Commission's criteria as to whether, and at what stage, it finds it appropriate to undertake a visit to the site.
In its response, the Commission stated that there had been no formal request from the complainant as regards the reports produced by Kerry County Council. However, according to the Commission's rules on access to documents, it had the right to refer the complainant to the author. Regarding the possibilities of a visit to the site, the Commission informed the Ombudsman that there were no specific criteria for deciding whether, and at what stage, a site visit could be appropriate. Rather, site visits generally occur when this is needed for the understanding of the facts. In practice, such cases tend to present unique sets of circumstances.
The Commission went on to explain that it would have been premature to perform a visit to the site before the stage when the complaint was lodged to the Ombudsman. However, at a later stage when it had received both the Member State's and the complainants' submissions, the Commission found it necessary to carry out a study on certain aspects of the case. This study did not include a site visit by Commission staff, but a visit and interviews were conducted by outside experts engaged on the Commission's behalf. The study concluded that the proposed Tralee dual carriageway was in breach of EU policy and law in respect of the Environmental Impact Assessment Directive and the Habitat Directive and that the decision to co-finance the project should be reconsidered.
The Commission sent a copy of the above-mentioned study to the Ombudsman. It also informed the Ombudsman that a copy of the study had been provided directly to the complainant.
The complainant expressed satisfaction with the outcome of the study, however he pointed out that he had not received any further information or notice of a final decision by the Commission.
On the general issue of the procedure used, the complainant expressed concern that there had been no mention of an independent committee of experts until after the complaint to the Ombudsman.
The complainant also stated that requesting the reports from Kerry County Council had indeed revealed his identity as a complainant. After having requested and obtained the reports, he received a letter from Kerry County Council saying that he should send to it copies of the documents and letters which he had sent to the Commission.

THE DECISION

1 The alleged failure to ensure an adequate scientific appraisal of the planned dual carriageway
1.1 The complainant alleged that the Commission had failed to ensure an adequate scientific appraisal of the planned Tralee dual carriageway because it had failed to insist that the Irish authorities produce an Environmental Impact Assessment under Directive 85/337/EEC(1) and had failed to perform a visit to the site, or send its own experts to obtain independent information.
1.2 Principles of good administration require the Commission to base decisions involving scientific assessments on accurate information and to ensure, when appropriate, that there is opportunity for critical appraisal of relevant data and that different opinions are heard. If submissions from the Member State and the complainant are inadequate for this purpose, the Commission should take appropriate steps to ensure that it obtains accurate information.
1.3 During the course of the Ombudsman's inquiry, the Commission employed outside experts to carry out an environmental study of the planned dual carriageway as part of its investigation of the project's compliance with Directive 85/337/EEC. The complainant expressed satisfaction with the conclusions of the study.
1.4 As regards this aspect of the case, therefore, it appears that the Commission has taken steps to settle the matter and has thereby satisfied the complainant.
2 The fairness of the procedure
2.1 The complainant alleged that the procedure used by the Commission was unfair, because the Irish authorities were put in a much better position than the objectors. In particular, the Commission gave the Irish authorities one year to respond to its investigation, whereas the objectors had only six weeks to comment on the Irish response. Furthermore, the complainant objected to the fact that the Commission did not supply him with the reports submitted by the Irish authorities but referred him to Kerry County Council, thereby jeopardising his anonymity as a complainant.
2.2 As regards the general procedure adopted by the Commission, the Ombudsman's inquiry showed that the complaint was registered by the Commission and that the complainant was informed about the representations made to the Irish authorities and about the latter's response, on which he was invited to comment. The Commission services also met with the complainant. After having evaluated the response from the Member State and the comments from the objectors, the Commission engaged outside experts to perform a study on certain aspects of the case, including a visit to the site. The Commission informed the complainant of the outcome of this study. Although the time for the investigation exceeded the normal period of one year, the Commission explained this by reference to the complex technical and scientific issues raised. It appears, therefore, that in general the Commission acted in accordance with principles of good administration by respecting the procedures to which it committed itself. to in the Ombudsman's own initiative inquiry 303/97/PD(2). The Commission further stated that it would keep the complainant informed of the development of the investigation, which is also in line with the commitments it gave in the Ombudsman's own initiative inquiry.
2.3 As regards the claim that the six-week time limit for reply was too short, the Commission pointed out that, unlike the Member State, complainants are not obliged to reply. Furthermore, the Commission claimed that six weeks is comparable to the period allowed in analogous national procedures. As regards the failure to supply the complainant with the reports on which it invited him to comment, the Commission stated that its rules on access to documents(3) did not allow it to supply the reports since it was not the author. However, when this was queried by the Ombudsman the Commission stated that its rules on access to documents allowed it to refer the complainant to the author of the reports.
2.4 It is a principle of good administration that time-limits should be reasonable. It was not unreasonable for the Commission to base its time-limit of six weeks for comments on a comparison with analogous national procedures. However, the Commission did not supply the complainant with the material on which to comment. In these circumstances, the Commission should have indicated its willingness to extend the time limit, on request, in order to take into account the extra time needed for the complainant to obtain the relevant material.
2.5 It is a principle of good administration that an administrative body should do its best to keep its promises to citizens. The standard form on which the Commission has invited individuals to submit complaints gives an undertaking to observe the customary rules of confidentiality when investigating the complaint(4). Although there is no obligation on the complainant to comment on the Member State's response, the possibility of such participation is a normal part of the investigation procedure. The Commission required the complainant to obtain the reports on which to comment from an authority of the Member State which was under investigation. The complainant therefore had to sacrifice his anonymity in order to be able to participate normally in the investigation of his complaint. By this requirement the Commission failed to keep the promise made in its standard form.
3 Conclusion
On the basis of the Ombudsman's inquiries into the first aspect of the complaint, it appears from the Commission's comments and the complainant's observations that the Commission has taken steps to settle the matter and has thereby satisfied the complainant.
On the basis of the Ombudsman's inquiries into the second aspect of the complaint, it is necessary to make the following critical remarks:

It is a principle of good administration that time-limits should be reasonable. It was not unreasonable for the Commission to base its time-limit of six weeks for comments on a comparison with analogous national procedures. However, the Commission did not supply the complainant with the material on which to comment. In these circumstances, the Commission should have indicated its willingness to extend the time limit, on request, in order to take into account the extra time needed for the complainant to obtain the relevant material.

It is a principle of good administration that an administrative body should do its best to keep its promises to citizens. The standard form on which the Commission has invited individuals to submit complaints gives an undertaking to observe the customary rules of confidentiality when investigating the complaint. Although there is no obligation on the complainant to comment on the Member State's response, the possibility of such participation is a normal part of the investigation procedure. The Commission required the complainant to obtain the reports on which to comment from an authority of the Member State which was under investigation. The complainant therefore had to sacrifice his anonymity in order to be able to participate normally in the investigation of his complaint. By this requirement the Commission failed to keep the promise made in its standard form.

Given that this aspect of the case concerns procedures relating to specific events in the past it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

FURTHER REMARK BY THE EUROPEAN OMBUDSMAN

The Ombudsman notes that the Commission's procedure for investigating a complaint about an infringement of Community law by a Member State is not yet organised as a normal administrative procedure, in which the complainant is treated as a party. In a normal administrative procedure, the Commission should itself supply the complainant with all the documents on which it invites comments.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob SÖDERMAN

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(1) Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175/40.

(2) Decision in the own initiative inquiry 303/97/PD. See Annual Report for 1997, heading 3.7, OJ 1998 C 380/1.

(3) Commission Decision 94/90/ECSC, EC, Euratom on public access to Commission documents, OJ 1994 L 46/58.

(4) 1989 OJ C 26/6