The background to the complaint

1. The complainant is a Dutch company that produces Plastyn, a plastic made from recycled products. On 2 June 2008, it complained to the Commission Directorate-General for Enterprise and Industry (DG ENTR) that the Netherlands was infringing Article 3(2) of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste[1] (the 'Packaging Waste Directive'). Article 3(2) of the Packaging Waste Directive provides that "packaging waste shall mean any packaging or packaging material covered by the definition of waste in Directive 75/442/EEC[2] [the 'Waste Directive'], excluding production residues". According to the complainant, the Dutch legislation did not properly implement this definition. The complainant explained that it recycles packaging production residues so that they can be reused in the packaging industry. It argued that the Dutch legislation provides, contrary to Article 3(2) of the Packaging Waste Directive, that all packaging production residues are to be considered as waste. According to the complainant, this leads to serious distortions and environmental loss. It therefore requested DG ENTR to ensure that the Netherlands modifies its legislation and correctly applies Article 3(2) of the Packaging Waste Directive.

2. DG ENTR referred the matter to the Directorate-General for the Environment (DG ENV), which replied to the complainant's letter on 27 February 2009. It apologised for the delay in its reply and stated that it had not proposed for the complaint to be formally registered as an infringement complaint. DG ENV explained that Article 3(2) of the Packaging Waste Directive provides that production residues do not constitute packaging waste and are thus not subject to the provisions of the Packaging Waste Directive. However, this provision does not prohibit a Member State from considering production residues as a category of waste and, therefore, as waste within the meaning of the Waste Directive. DG ENV also referred to the case-law of the Court of Justice (in particular the AvestaPolarit judgment[3]), and concluded that the complainant's letter did not contain sufficient elements to justify the opening of a complaint procedure. The complainant was however informed that, if it had further elements to show that there was an infringement of EU law by the Netherlands, it could submit this information to DG ENV within four weeks of receiving its letter.

3. In its reply of 2 April 2009, the complainant stated that it could not understand why its complaint had not been proposed for formal registration. The complainant pointed out that the Dutch Council of State ('Raad van State') considered packaging production residues to constitute waste. The complainant therefore repeated its request for the Commission to urge the Dutch authorities to apply Article 3(2) of the Packaging Waste Directive and to transpose it into national legislation.

4. In its reply of 7 May 2009, DG ENV stressed that a Member State may consider packaging production residues to constitute waste within the meaning of the Waste Directive. However, the residues may not be considered as packaging waste within the meaning of the Packaging Waste Directive. DG ENV therefore confirmed its position that the information provided by the complainant was insufficient to justify the opening of a complaint procedure.

5. By letter dated 5 June 2009, the complainant reiterated its view that the Dutch authorities had not properly transposed the Packaging Waste Directive into national legislation. It explained that it uses very sophisticated knowledge, technologies and methods to create valuable products from industry residues. However, the Dutch Council of State forbade the processing of these residues because, in its view, they constitute waste. The complainant stated that, as a consequence, it was no longer able to continue operating in the Netherlands. It therefore again called on the Commission to remedy the undesirable situation concerning the implementation of the Packaging Waste Directive in the Netherlands.

6. By letter dated 12 June 2009, DG ENV informed the complainant that the Dutch authorities were not obliged to transpose Article 3(2) of the Packaging Waste Directive as such. They only needed to ensure that the objective pursued by the Directive was achieved in national legislation. DG ENV reiterated its view that Article 3(2) of the Packaging Waste Directive did not preclude the Dutch authorities from treating production residues as waste within the meaning of the Waste Directive.

7. In its reply of 6 July 2009, the complainant disagreed with DG ENV's statement that the Dutch authorities were not obliged to transpose definitions from the Packaging Waste Directive. It requested DG ENV to indicate the case-law on which this statement was based and asked which other body it could address itself concerning the matter.

8. By letter dated 31 July 2009, DG ENV informed the complainant that it could turn to the European Ombudsman. The question concerning the relevant case-law was not addressed.

The subject matter of the inquiry

9. In its complaint to the Ombudsman, the complainant alleged that the Commission wrongfully refused to register its complaint of 2 June 2008 as an infringement complaint and to deal with it accordingly. The complainant claimed that the Commission should formally register and deal with its infringement complaint.

10. In his letter opening an inquiry into this complaint, the Ombudsman also asked the Commission to explain how point 3 (Recording of complaints) of the Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law[4] (the 'Communication') was respected in the present case. The Ombudsman pointed out, in this context, that the Commission's letters to the complainant appeared to explain why it considered that there was no infringement. It was therefore not obvious why it had not registered the case as an infringement complaint.

11. The Ombudsman also pointed out that the Commission did not appear to have answered the question that the complainant submitted to it in its letter dated 6 July 2009.

The inquiry

12. On 16 December 2009, the complainant turned to the Ombudsman. The complaint was forwarded to the Commission for an opinion, which it sent on 10 June 2010. The opinion was then forwarded to the complainant, which sent its observations on 30 June 2010.

The Ombudsman's analysis and conclusions

A. Alleged refusal to register the complaint as an infringement complaint and to deal with it accordingly and the related claim

Arguments presented to the Ombudsman

13. The complainant alleged that he Commission wrongfully refused to register its complaint of 2 June 2008 as an infringement complaint and to deal with it accordingly. It claimed that the Commission should formally register and deal with its infringement complaint.

14. In its opinion, the Commission stated that, according to point 3 of the Communication, any correspondence which is "likely" to be investigated as a complaint shall be recorded in the central complaints registry kept by its Secretariat-General. The Commission further stated that, according to point 3 of the Communication, "correspondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints, if ... it fails to set out a grievance". When the Commission's services received the complainant's complaint of 2 June 2008, they took the view that the applicable Dutch legislation on waste and packaging waste was consistent with the Packaging Waste Directive. Hence, given that the facts referred to by the complainant did not constitute a breach of the Packaging Waste Directive, there was no grievance as regards EU law and no need to formally investigate the complaint.

15. The Commission pointed out that, in line with the Communication, it informed the complainant of its views by letter dated 27 February 2009. In this letter, it clearly explained why it considered that there was no breach of EU legislation and announced that it would not investigate the complaint. The Commission noted that, in that letter, it also provided an apology for the delay in replying.

16. On 7 May 2009, the Commission replied to the complainant's letter dated 2 April 2009, and reiterated its position. In reply to the complainant's further letter dated 5 June 2009, the Commission confirmed that the Dutch authorities were not obliged to transpose the definition contained in Article 3(2) of the Packaging Waste Directive as long as they guaranteed the result the Directive was designed to achieve in their national legal order. The Commission also confirmed that packaging production residues could be considered as waste under the Waste Directive.

17. The Commission regretted that the complainant did not obtain a reply to the question concerning the relevant case-law. It explained that, in Case C-32/05 Commission v Luxembourg[5], the Court emphasised its consistent view that it is not always necessary for a Member State formally to enact the requirements of a directive in a specific express legal provision. The general legal context may in fact be sufficient to implement a directive, depending on its content. The Court also held that the existence of general principles of constitutional or administrative law may render superfluous the transposition by specific legislative or regulatory measures, provided, however, that (i) the general principles actually ensure the full application of the directive by the national authorities; and (ii) where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts[6].

18. The Commission further noted that, in the context of its general policy, it decides whether a complaint sets out a grievance after making a first assessment of the contents of the correspondence in light of EU law. It added that the first assessment of the complainant's letter dated 2 June 2008 showed that it did not contain indications of a breach of EU law. The said letter therefore failed to set out a grievance within the meaning of point 3 of the Communication. The Commission submitted that it provided the complainant with clear explanations as to why there was no breach of the Packaging Waste Directive. There was thus no need to register and further investigate the complaint. The Commission concluded that it dealt with the correspondence received from the complainant in line with good administrative practice. The Commission further pointed out that, as had already been communicated to the Ombudsman, it was presently testing a new approach to the registration of complaints designed in part to respond more directly to complainants' interests.

19. In its observations, the complainant pointed out that its complaint did not concern the question whether packaging production residues did or did not constitute waste, but the fact that Article 3(2) of the Packaging Waste Directive needed to be transposed into Dutch legislation. The complainant argued that the Commission did not reply to its question asking why EU directives do not need to be transposed into national legislation.

The Ombudsman's assessment

20. The Ombudsman notes that, although the Commission decided not to formally register the complainant's letter dated 2 June 2008 as an infringement complaint, it did deal with the substance of this complaint and informed the complainant of its conclusions in its letters dated 27 February, 7 May and 12 June 2009. In these letters, the Commission explained that Article 3(2) of the Packaging Waste Directive provides that Member States are not allowed to consider production residues as packaging waste within the meaning of that Directive. However, they are free to consider production residues as waste within the meaning of the Waste Directive. The Commission also explained that Article 3(2) of the Waste Packaging Directive did not have to be implemented by a specific provision in national law, provided that the existing provisions ensured the correct application of the relevant directive. The Ombudsman considers these explanations to be reasonable. In order to show that the Netherlands failed to comply with Article 3(2) of the Packaging Waste Directive, the complainant would have to have provided evidence to suggest that packaging production residues were considered as packaging waste within the meaning of the Packaging Waste Directive. However, no such evidence appears to have been submitted to the Commission. The complainant pointed out that the Dutch Council of State interpreted packaging production residues to constitute waste. However, and in light of the above, this does not prove or suggest that the Netherlands infringed Article 3(2) of the Packaging Waste Directive. In these circumstances, no maladministration can be found with regard to this aspect of the case.

21. As regards the procedural aspects of the case, the Ombudsman notes that the complainant's allegation and claim concern the alleged refusal of the Commission to register its complaint as an infringement complaint.

22. The first paragraph of point 3 of the Communication provides as follows:

"Any correspondence which is likely to be investigated as a complaint shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission." The second paragraph continues in the following terms:

"Correspondence shall not be investigable as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints, if:

[...]

- it fails to set out a grievance..."

23. Point 4 of the Communication further provides that "[w]hen the Commission departments decide not to register the correspondence as a complaint, they shall notify the author to that effect by ordinary letter setting out one or more of the reasons listed in the second paragraph of point 3".

24. In the present case, the Commission informed the complainant in its letter dated 27 February 2009 that it had decided not to register the complaint. This was because it did not contain sufficient elements to justify the opening of a complaint procedure. In its letter, the Commission did not refer to one of the specific exceptions foreseen in point 3 of the Communication.

25. The Commission's main argument in its opinion for not registering the complainant's letter dated 2 June 2008 as an infringement complaint was that it failed to set out a grievance. From the explanations in its opinion, it appears that the Commission interpreted the said exception to mean that a complaint only "set[s] out a grievance" within the meaning of point 3(2) of the Communication if, on the basis of a first examination of the correspondence, the complainant's allegation of an infringement of EU law appears to be well-founded. However, this interpretation is irreconcilable with the clear wording of the relevant passage of the Communication, which only requires that a complaint sets out a grievance. In the present case, the complainant's letter dated 2 June 2008 did set out a grievance, namely, that the Dutch authorities failed to apply Article 3(2) of the Packaging Waste Directive.

26. Moreover, the interpretation put forward by the Commission is incompatible with the general scheme and purpose of point 3 of the Communication. It follows from this provision that complaints addressed to the Commission are to be handled in a formalised and structured manner unless one of the six exceptions set out in point 3(2) is applicable. This commitment was entered into by the Commission in the course of an own-initiative inquiry conducted by the Ombudsman. In the Ombudsman's view, the said exceptions therefore need to be interpreted strictly. An interpretation that gives the Commission the possibility to refrain from registering a complaint as an infringement complaint simply because it considers, on the basis of an initial assessment, that no such infringement exists, would call into question the very purpose of the Communication.

27. In its opinion, the Commission also noted that point 3(1) directs it to register correspondence that is "likely" to be investigated as a complaint. To the extent that this statement suggests that a complaint should only be registered as an infringement complaint if the Commission considers that there has been an infringement of EU law, the Ombudsman is unable to accept such an interpretation. In fact, such an interpretation would mean that there is a further, general exception allowing the Commission to refrain from registering a complaint in addition to those set out in point 3(2). As already explained above, such an interpretation would not be in conformity with the general scheme and purpose of point 3 of the Communication.

28. In view of the above, the Commission's failure to register the complainant's letter dated 2 June 2008 as an infringement complaint constitutes an instance of maladministration.

29. In the framework of his inquiry into complaint 2403/2008/OV, which also concerns, among other things, a failure by the Commission to register an infringement complaint, the Ombudsman made a draft recommendation in which he called on the Commission to take the necessary measures to ensure that it complies with the Communication in future cases. As mentioned above, the Ombudsman takes the view that the assessment of the complainant's case was correct as regards substance. He therefore considers, also on the basis of the fact that, under the EU Pilot scheme, the Commission has changed its general registration practices for infringement complaints, that no useful purpose would be served in the present case by reiterating the draft recommendation made in case 2403/2008/OV. The Ombudsman will, however, make a critical remark instead.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

Point 3 of the Communication provides that correspondence from citizens has to be registered as an infringement complaint unless one of the exceptions set out in this provision applies. By deciding not to register the complainant's complaint as an infringement complaint, even though no such exceptions applied, the Commission failed to abide by point 3 of the Communication. This failure constitutes an instance of maladministration.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 19 November 2010

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[1] OJ 1994 L 365, p. 10.

[2] Council Directive 75/442/EEC of 15 July 1975 on waste, OJ 1975 L 194, p. 39.

[3] Case C-114/01 AvestaPolarit Chrome [2003] ECR I-8725.

[4] COM (2002) 141 final, OJ 2002 C 244, p. 5.

[5] Case 32/05 Commission v Luxembourg [2006] ECR I-11323.

[6] Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 22 and 23; Case C-217/97 Commission v Germany [1999] ECR I-5087, paragraphs 31 and 32; and Case C-233/00 Commission v France [2003] ECR I-6625, paragraph 76.