# Decision of the European Ombudsman on complaint 1288/99/OV against the European Commission
- Author: European Ombudsman
- Date: 2002-07-18T00:00+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/1300)
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For the sake of transparency and the benefit of all interested citizens, the Ombudsman would like to draw your attention to the [judgment of the Court of First Instance pronounced in the framework of case T-412/05](http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=fr&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=T-412/05&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100).
Strasbourg, 18 July 2002
Dear Mrs K.,
On 22 October 1999 you made a complaint to the European Ombudsman concerning the way the European Commission dealt with and closed its investigation of the complaint you and 23 other inhabitants of Parga lodged on 7 July 1995 alleging an infringement of Community law (Directive 85/337/EEC) by the Greek authorities with regard to a project for a sewerage system and a biological treatment plant in Parga, Preveza (Greece).
On 13 December 1999, I forwarded the complaint to the President of the European Commission. On 20 March 2000 you sent supplementary information concerning the way the Commission dealt with your complaint. The Commission sent its opinion on 27 March 2000 and I forwarded it to you with an invitation to make observations, if you so wished. On 26 May 2000, I received your observations on the Commission's opinion. On 24 July 2000 you sent another letter.
On 21 September 2000, I wrote to the President of the Commission with a request for further information concerning some elements of your complaint. You were informed of this request in a letter of 4 October 2000. On 14 November 2000, the Commission sent its additional opinion and I forwarded it to you with an invitation to make observations, if you so wished. On 22 January 2001, I received your observations on the Commission's additional opinion. On 13 March 2001, you sent an additional comment.
On 3 July 2001, I wrote to the President of the Commission with a request for further information on your allegations concerning an official in the DG Environment. On 10 July 2001, I sent you a letter informing you of my request to the Commission.
On 12 July 2001, I wrote to the President of the Commission asking to inspect the Commission's file on the complaint. The inspection of the Commission's file by Mr O. VERHEECKE and Mr A. TSADIRAS of my services took place on 12 September 2001 in the DG Environment premises in Brussels.
As the Commission had not replied to my letter of 3 July 2001, for which the deadline was 31 October 2001, I sent a letter of reminder on 14 November 2001. On 30 November 2001, the Commission sent its opinion which contained a confidential report about the hearing of the official in question. The Commission's opinion stated that this report should not be sent to you.
On 12 December 2001, I wrote again to the Commission requesting it to reconsider its position and to allow me to forward the said report to you. On 14 January 2002, I forwarded the Commission's opinion to you for possible observations and also informed you that I had asked the Commission to agree that I send the report to you. On 29 January 2002, the Commission replied and confirmed its position that it was not possible for me to send the confidential report to you. On 7 February 2002, I wrote again to the Commission requesting to prepare a summary of the report which could be forwarded to you. On 22 February 2002 you sent your observations on the Commission's last opinion. On 1 March 2002, the Commission again confirmed its point of view that the report could not be disclosed. On 12 March 2002, the Commission sent a summary concerning the hearing of the official in question, which I forwarded to you on 25 March 2002. On 25 April 2002 you sent your final observations.
I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.
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, such as the Greek authorities 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
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***The background of the complaint***
According to the complainant, the relevant facts and chronology of the case were as follows:
On 7 July 1995, the complainant, together with 23 other complainants, inhabitants of the municipality of Parga, made a complaint to the European Commission (Directorate General XI - Environment) for infringement of Community environmental law (Council Directive 85/337/EEC of 27 June 1985[(1)](#(1)){#Footnote1}, Articles 3 and 5) by the Greek authorities with regard to a project for a sewerage system and biological treatment plant in the municipality of Parga, Preveza. In their complaint to the Commission, the complainants alleged that the environmental impact assessment by the municipality of Parga used misleading information in order to avoid a genuine assessment of the environmental consequences. The Ministry responsible authorised the building of the plant at "Varkas" which is the site that all the other competent authorities, including the Greek Tourist Organisation, had judged unsuitable and incompatible with the specific character of the region from the environmental point of view.
The complainants were only informed of the registration number of their complaint when they telephoned to the Commission. Moreover, the complainants never received a reply from DG XI of the Commission on the developments of the case, even though they regularly sent new information to the Commission services. Therefore they could not defend their position with regard to the allegations made.
In October 1996, the complainants made a petition to the European Parliament (ref. 570/96). The Committee on Petitions informed the complainant on 11 November 1997 of the Commission's position with regard to the case. It appeared from the Commission's answer of 26 March 1997 that a) the Commission's services proposed including this case as a representative example in a horizontal proceeding against Greece for failure to comply with Directive 85/337/EEC, and that b) Community funding for the project was suspended.
Throughout this period, the complainants phoned the Commission to obtain information, but always received the same answer that the Commission services only correspond with Member States and not with the citizens of the Union.
In October 1998, the complainant obtained information from Greek Foreign Ministry records (minutes of a meeting held on 20 May 1998 with Commission representatives) according to which the Commission had closed its consideration of the complaint in May 1998 and would fund the project. According to this information, the Commission representatives had concluded that "the shortcomings which had appeared in the project at an earlier stage had been overcome and the project would therefore go ahead and the case would be closed".
On 23 October 1998, the complainant therefore wrote to the Commission alleging that the Commission's decision to fund the project and to close the matter was erroneous because based on misleading information from the Greek authorities. On 9 December 1998, the Legal Affairs Unit of DG XI of the Commission informed the complainant that on the basis of the additional information obtained from her, it would decide what action to take on the matter.
Two weeks later, on 23 December 1998, the Committee on Petitions informed the complainant of the Commission's further answer of 19 March 1998, from which it appeared that the Commission confirmed the violation of the Directive 85/337/EEC and had postponed all procedures relating to the funding of the project. On the basis of the information supplied by the Commission, the Committee on Petitions decided to terminate the examination of the petition 570/96. However, the Commission official dealing with the case informed the complainant that, in the meantime, the Commission had changed its position and that, at the meeting of the Committee on Petitions of 26 and 27 October 1998, it had informed the Committee of its change in position.
On 28 December 1998, the complainant sent further detailed information to the Commission showing that the project breached Community environmental law. The Commission replied on 28 January 1999 that Commission officials would come to visit Parga in March 1999. This visit to Parga took place on 19 March 1999.
On 20 April 1999, the complainant received a letter from the Commission informing her that the case would be closed. In this letter, the Commission informed the complainant of new elements obtained from the Greek authorities, namely that the planning of the project in the location of "Varkas" was approved by decision n° 667 of the Prefect of Preveza dated 28 February 1986. This decision approved the study "sewerage system of Parga" submitted by Karadimou and associates. This study refers to this location for the construction of the project and attaches a topographical map with the specific location chosen for the realisation of the project. The Commission therefore came to the conclusion that the project in question, as it had been approved before the entry into force of Directive 85/337/EEC, did not fall within its scope of application. According to the Commission, there was thus no infringement of the Directive. The Commission informed the complainant that it would close the case, unless the complainant would provide new elements within one month which would prove that there was an infringement.
***The complaint to the European Ombudsman***
On 22 October 1999 the complainant lodged a complaint with the Ombudsman, arguing that the provisions of Directive 85/337/EEC applies to the project in question. The municipality of Parga had already called for tenders for the project by 19 November 1999 seeking the commitment of EU appropriations.
According to the complainant, the decision n° 667 of 28 February 1986 is not a new element as presented by the Commission, because it was already pointed out in the initial complaint made to the Commission and in other documents sent by the Greek authorities or the complainant. Secondly, the complainant argues, contrary to the Commission's position, that nowhere in this decision is there any reference to a specific location for the biological treatment plant. Therefore nobody could lodge a legal appeal against this decision. Also, the Greek Ministry for Environment, Regional Planning and Public Works considered that the Prefect's decision does not authorise the location for the plant.
The complainant is of the opinion that, as appears from the minutes from the Greek Foreign Ministry of a meeting held on 20 May 1998 with Commission representatives, the funding of the project and the closure of the consideration of the complaint occurred in May 1998. From that point the officials of DG XI simply sought ways to close the matter. The complainant observed that a written expression of thanks in the Greek Foreign Ministry records to representatives from the Commission for delaying the processing of complaints indicates that some officials possibly set themselves the objective not to ensure the proper implementation of Community legislation, but to ensure that Greece utilised the appropriations concerned.
On basis of the above, the complainant made the following three allegations:
1. From 7 July 1995, when the complaint was lodged, until 9 December 1998, i.e. nearly three and a half years, the complainant did not receive any letter from the Commission informing her about the developments of the complaint. For this reason, the complainant was unable to defend her position.
2. Some officials of DG XI set themselves the objective not to ensure the proper implementation of Community legislation (annexes 10 and 18 of the complaint).
3. The Commission has manipulated the matter and has tried to find means to close the case.
THE INQUIRY
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**The Commission's opinion**
The Commission first recalled the facts of the case. In July 1995 it received a complaint signed by Mrs Harokopou on behalf of various citizens of the city of Parga (Prefecture of Preveza) in Greece denouncing the partial environmental impact assessment for a project for the construction of a biological treatment plant in the city. This letter was registered as a complaint with reference 95/4923 and Mrs Harokopou, whose address figured in the complaint, was informed of this fact by letter of the Secretary General of the Commission dated 1 December 1995 (SG(95)37980).
The complainants contested the choice of the site "Varkas" for the realisation of the project, because this site was situated close to their property. It has to be underlined that the project had been proposed by the Greek authorities for Community funding.
The complainants also petitioned the European Parliament (number 570/96).
The Commission several times addressed the Greek authorities requesting information on the project. The case has been discussed at bilateral meetings (so called "package"-meetings) between the Commission services and the Greek authorities in Athens in 1996 and 1998. During this period the Commission always had contacts with the complainants' lawyer, as is shown by the letters addressed to him on 21 December 1995 and 1 August 1996.
Because of the lack of decisive elements and information asked from the Greek authorities, the Commission could not take a position on the follow-up of the case in 1996. Therefore it could not inform the complainant on the substance of the file.
In March 1997, the Commission, basing itself on the information provided in the meantime by the Greek authorities, informed the Committee on Petitions of the European Parliament of its first evaluation of the complaint. At that time, the Commission considered that the complaint concerned a project launched after the entry into force of Directive 85/337/EEC. It considered that the realisation works of the project had commenced before the definitive approval of the environmental conditions of the project, thus violating the Directive. Given that an infringement procedure had been launched against Greece on this subject, the Commission informed the Parliament of its intention to include this file in the framework of a horizontal procedure. Further to this evaluation, the Commission took the necessary measures to suspend the funding of the project.
The European Parliament informed the complainant of the Commission's position by letter of 11 November 1997.
In March 1998, the Greek authorities submitted to the Commission complementary documentation concerning the project, referring in particular to the decision of the Prefecture of Preveza n° 667 of 28 February 1986 concerning the realisation of the sewerage system and the biological treatment plant.
The Commission asked for clarification of the case at the package meeting of 20 May 1998. At this meeting, the mayor of Parga had promised to send supplementary information concerning the choice of the site. The Commission undertook to examine the documents and to re-evaluate the file. The Commission took into consideration the documents transmitted by the Greek authorities in 1998 and informed the Committee on Petitions of the evolution of the case in October 1998.
If it is regrettable that not a single letter was addressed to the complainant during this period, it is clear that through telephone conversations and via the information given to the Committee on Petitions of the European Parliament, the complainant has been informed of the evolution of the file and of the changing of the Commission's position in the light of the new documents transmitted by the Greek authorities.
Further to the information received, the complainant, fearing the closure of her case, sent a new letter to the Commission. In her letter, the complainant repeated the arguments put forward in her appeal to the Greek Council of State which has been rejected as unfounded.
At the complainant's request, a one hour meeting took place in Athens on 3 December 1998 in the context of a mission of the Commission services. This meeting took place between Mr K., the complainant's husband and the Commission representatives. At this meeting Mr K. presented new documents which he had gathered. These documents referred to the distance between the limits of the city of Parga and the "Varkas" site. According to the complainant, this distance had not been correctly calculated in the environmental impact assessment which had in the meantime been approved (18 March 1997).
By letter of 9 December 1998, the Commission informed the complainant that it would take into consideration the new elements which the complainant had transmitted.
By letter of 28 January 1999, the Commission informed the complainant of its intention to carry out an on the spot investigation in March 1999 in order to clarify certain points of the case. The complainant was invited to the public hearing on the project in Parga on 19 March 1999. During this hearing the complainant, represented by her husband, had the opportunity to explain her point of view. The successive mayors of the city of the last 10 years and numerous citizens were given the same possibility. During the mission the Commission representatives asked for copies of certain documents and made an on the spot investigation of the "Varkas" site. The minutes of the meeting dated 23 March 1999 were sent to the Greek authorities and to the complainant.
After an analysis of all the documents of the file at its disposal, the Commission concluded that the project in question as well as the site chosen were described in the decision of the Prefecture of Preveza n° 667 of 28 February 1986 which predates the entry into force of the Directive 85/337/EEC. An environmental impact assessment was therefore not obligatory. In the present case a study was made and approved later on.
By letter of 20 April 1999, the Commission informed the complainant of its intention to close the file.
The delay in the completion of the case is due to the difficulties of the Greek authorities to provide the Commission with all the necessary elements of the file, a part of which was only available at the level of the local authorities.
As regards the minutes of the meeting of 20 May 1998 established by the Greek Ministry of Foreign Affairs, the Commission considers that it is an internal document of the Greek administration. It therefore considered that it was not appropriate to comment on it.
**Supplementary material from the complainant**
On 20 March 2000, the complainant sent 13 pages of supplementary material with regard to her complaint alleging that DG XI acted in an unacceptable manner in order to finance the project, thereby breaching Community law. The complainant argued that the decision n° 667 of 28 February 1986 merely approved a preliminary technical study. The complainant referred to the judgement of the Court of Justice in Case C-431/92[(2)](#(2)){#Footnote2} according to which the sole criterion which may be used for determining whether Directive 85/337/EEC is applicable is *"the date when the application for consent was formally lodged"* . According to Article 1(2) of the Directive, development consent means *"the decision of the competent authority or authorities which entitles the developer to proceed with the project"*.
In the complainant's view, consent to proceed with the project was granted when the call for tenders was made following a decision by the municipal council dated 11 November 1994. The municipality of Parga then submitted an application on 28 January 1995. The Ministry for the Environment, Regional Planning and Public Works then decided on 11 October 1995 to set up the biological treatment plant at the "Varkas" site. In the present case, the crucial date in the sense of the Court case C-431/92, is therefore 28 January 1995.
The environmental impact assessment drawn up by the municipality of Parga in September 1993 itself stated that *"the impact assessment takes place on the basis of the provisions of Directive 85/337/EEC"*. In other words, the competent Greek authorities themselves accepted that the project fell within the scope of Directive 85/337/EEC.
The complainant observed that until May 1998, the Commission services considered it absolutely certain that the project was governed by Directive 85/337/EEC and that it constituted a typical case of infringement of the Directive. What happened subsequently to close the case was the result of DG XI trying to find reasons to continue funding the project, involving the official in question, according to the complainant, holds a party political position in Greece which is incompatible with his duty to verify that the project is carried out in accordance with Community law: the complainant pointed out that, according to a report in a daily paper of 30 November 1998, the official in question took up a position as special adviser to the President of the "New Democracy" party (enclosure 22 of the letter of 20 March 2000), which is the same political party as the Mayor of Parga. The complainant also observed that he will take up a position providing back-up to mayors and prefects who are members of "New Democracy" (enclosure 23). The complainant indicated that, in his party political capacity, the official in question visited the Parga area on 6 March 1999 as a speaker at a party gathering in the presence of the mayors and prefects of the region (enclosure 24), i.e. 10 days before a team of DG XI visited Parga supposedly to investigate certain details of the file.
**The complainant's observations**
The complainant observed that DG XI persistently refused to provide an answer for three and a half years until 9 December 1998. The only information the complainant received was from the Committee on Petitions, which informed the complainant that the Commission was maintaining its position that there was an infringement. It was however DG XI's responsibility to inform the complainant, since it was managing the file.
The complainant argued that the decision of the Prefect of Preveza n° 667 of 28 February 1986 was not a new element, as indicated by the Commission in its letter to the complainant of 20 April 1999, because it appeared already on the second page of the initial complaint to the Commission dated 7 July 1995 and in documents of the Greek authorities which the complainant had submitted.
The complainant pointed out that by decision E(98)2297 of 28 July 1998, the Commission decided to fund the project under the Cohesion Fund. The Commission hid this information from the complainant and the Ombudsman and pretended to continue to follow the case: How could the Commission, in its letter of 9 December 1998, inform the complainant that it would re-examine the case and the new documents which she had forwarded, when the case had in fact already been closed definitively by the decision of July 1998 to fund the project ? In March 1999, DG XI was still seeking information to justify its decision to fund the project. Because it could no longer justify the funding on basis of the approval of the environmental conditions which were incorrect, DG XI was obliged to argue that the biological treatment plant did not fall within the scope of the Directive. This shows that the Commission officials were solely interested in financing the project, even in violation of Community law and in preventing complaints.
As regards the Commission's statement that the minutes of the Foreign Affairs Ministry of the meeting of 20 May 1998 was an internal document, the complainant observed that they record the positions adopted by the Commission representatives. The matters discussed at these meetings concern Community environmental complaints. The proof is that the Commission's decision of 28 July 1998 to fund the project implemented the decision recorded in the said minutes on funding the project by shelving the complaint.
The complainant observed that the location of the plant, a crucial element, is mentioned nowhere in the decision of the Prefecture of Preveza of 28 February 1986. This decision merely approved a preliminary study for the biological treatment plant. However, the approval of a preliminary study is of no significance under the Directive 85/337/EEC. What is important is the date on which the application for implementing the project was submitted.
FURTHER INQUIRIES
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After carefully examining the Commission's opinion, the complainant's observations and the supplementary material sent by the complainant on 20 March 2000, the Ombudsman considered that further inquiries were necessary. On 21 September 2000, the Ombudsman asked the Commission to provide him with the following three elements of information:
1. As regards the question whether Directive 85/337/EEC of 27 June 1985 is applicable or not (application of the Directive in time), the Court of Justice has judged that *"the date when the application for consent was formally lodged constitutes the sole criterion which may be used. Such a criterion accords with the principle of legal certainty and is designed to safeguard the effectiveness of the directive"* (judgement of the Court of Justice in case C-431/92, Commission v. Germany, paragraph 32). This date therefore constitutes the reference for determining the date on which the procedure started, and thus for determining whether the Directive is applicable to the procedure.
In the present case, however, it appears that the Commission first considered that the Directive was applicable to the project for which the works had started before the definitive approval of the environmental aspects (March 1997). The Commission services therefore proposed including this case as a representative example in horizontal proceedings against Greece for not complying with the Directive. However, on 20 April 1999 the Commission informed the complainant that the Directive was not applicable, as the project was described in the decision of the Prefecture of Preveza n° 667 of 28 February 1986.
The Ombudsman notes that, as it appears from the text itself, this decision of 28 February 1986 only approves *"the definite study of the works of the first stage and a preparatory study on the installation of a biological treatment plant"*. It therefore appears that this decision cannot be considered as the formal lodging of the application for consent for the project in question, in the sense of paragraph 32 of the above judgement of the Court of Justice.
The Ombudsman therefore requested the Commission to indicate the exact date when the application for consent was formally lodged and to provide him with a copy of that document.
2. Secondly, the Ombudsman asked to obtain the full text in Greek and English of the Commission decision E (98) 2297 of 28 July 1998 by which the Commission decided to fund the project "Sewerage system and biological treatment of Parga" under the Cohesion Fund.
3. Finally, the Ombudsman asked the Commission to submit a comment on the question why the Commission informed the complainant on 9 December 1998 that it would take into consideration the new elements which she had transmitted, and also informed her on 20 April 1999 that it would close the case, unless new information was sent by the complainant in one month, when already on 28 July 1998 the Commission had approved the project and decided to fund it under the Cohesion Fund.
The Ombudsman also forwarded to the Commission the complainant's supplementary comments of 20 March 2000, containing allegations of professional misconduct by the official in question, and invited the Commission to comment.
**The Commission's additional opinion**
1. With regard to the first point of the further inquiries, the Commission considered that the decision of the Prefecture of Preveza n° 667 of 28 February 1986 approved the project for the construction of the sewerage system of the city of Parga, as well as the preliminary study for the installation of a biological treatment plant, carried out by the office "Karadimou and associates". Amongst the documents annexed to this decision, there is a topographical map of the "Varkas" site which is the site chosen for the realisation of the biological treatment plant.
The Commission took knowledge of the annexes of this decision during its on the spot investigation and the meeting in Parga on 19 March 1999. Further to this meeting, the Commission re-examined all the elements of the complaint. The Commission annexed the minutes of this meeting to its opinion.
The Commission considers that the choice of this site was a determinant factor for the realisation of the sewerage project, because the plan of the sewerage can only be made in relation with a well determined site of the biological treatment plant. The explicit reference made in the decision to the preliminary study (from which can be determined the site of the treatment plant) carried out by Karadimou and associates, as well as the documents annexed to the decision, in particular the topographical map of the "Varkas" site, would have no sense if it were informal documents which have no definitive and binding character.
The Commission underlined that the environmental impact assessment of projects in Greece is made in two phases, the first one being the approval of the site of the project. The decision on the siting of the project is a key-element of the environmental impact assessment system in Greece. This system was maintained even after the transposition of Directive 85/337/EEC which does not foresee a special authorisation linked to the siting of the project. Moreover, on several occasions, the Greek Council of State has acknowledged the binding character of the acts concerning the siting of the projects.
The Commission therefore considers that the date of the authorisation of the project is 28 February 1986. The Commission enclosed a copy of the decision of the Prefecture.
2. As regards the second request of the further inquiries, the Commission provided the Ombudsman with a copy in Greek and French of the Commission decision E (98) 2297 final of 28 July 1998 by which the Commission approved the financing of the project by the Cohesion Fund.
3. With regard to the third element of the further inquiries, the Commission observed that the regulations on the Structural Funds establish the principle according to which projects which benefit from Community funding have to comply with Community law[(3)](#(3)){#Footnote3}. However, the Court of First Instance, in its judgement of 23 September 1994 in case T-461/93[(4)](#(4)){#Footnote4}, has recognised the independence of the infringement procedure of Article 226 EC from the Community funding procedure, in the sense that the initiation of an infringement procedure or the declaration by the Court of an infringement does not automatically lead to the suspension or the reduction of the funding, and similarly, the decision not to pursue an infringement does not prevent the Commission from suspending or reducing the Community funding.
The Commission always examines every element which is brought to its attention by the complainants during the inquiry, even if it appears later that the said element is not determinant for the legal appreciation. This happened in the present case and explains the sending of the letter of 9 December 1998. It is further to the new elements transmitted by the complainant in December 1998 that a Commission delegation went on the spot on 19 March 1999 to visit the site and to discuss with all the interested parties.
The Commission, after a serious examination of the file, then came to the conclusion in April 1999 that there was no violation of Community law for the project in question.
The Commission did not comment on the complainant's supplementary material of 20 March 2000 concerning the role of the official in question.
**The complainant's second observations**
The complainant repeated that the decision of 28 February 1986 merely approved a preliminary study for the biological treatment plant and contains no specific reference to the site of the plant, which is an indispensable element.
In the present case, the project's location was approved on 10 October 1995. The application for authorisation, in the sense of the court case, was submitted by the municipality of Parga on 28 February 1995. This is the crucial date in the complainant's view. The Directive 85/337/EEC which entered into force on 3 July 1988 therefore applies to the project in question. These dates are also confirmed by the ruling 744/1997 of the Greek Council of State which precisely recognises that the application by the city of Parga was submitted on 28 February 1995 and that the approval of the project's location was given on 10 October 1995. This ruling makes no reference whatsoever to the decision of the Prefect of Preveza dated 28 February 1986.
The Commission's view, based on a decision approving a preliminary study, is therefore wrong.
The complainant also quoted from various documents of public authorities from September and November 1993 and from May 1995 (Epirus Regional Authority, Prefecture of Preveza, Ministry for the Environment, Regional Planning and Public works) from which, according to the complainant, it clearly appeared that the precise site for the plant had not yet been decided at those earlier dates.
The complainant made also 23 pages of comments on the technical study of the project. On 13 March 2001, the complainant sent an additional letter stating again that the crucial documents in this case were the application by the municipality of Parga dated 28 February 1995 and the Council of State ruling 744/1997 which confirmed this date.
**The inspection of the file**
After carefully examining the Commission's additional opinion and the complainant's additional observations, the Ombudsman considered that the main dispute between the Commission and the complainant concerned the question whether Directive 85/337 is applicable to the project under consideration. As regards this point, the Ombudsman wrote to the Commission on 12 July 2001 stating that he considered it necessary for his services to inspect, in accordance with Article 3 (2) 1st indent[(5)](#(5)){#Footnote5} of the Statute of the Ombudsman, the Commission's file on the case.
After further contacts between the Ombudsman's office and the Secretariat General of the Commission, the inspection of the file was carried out on 12 September 2001 in the premises of DG Environment in Brussels.
**Further inquiries**
Given that in its reply of 14 November 2000, the Commission had not commented on the complainant's allegations against the official in question, the Ombudsman wrote again to the Commission on 3 July 2001. He stated that, when a complainant makes an allegation of professional misconduct against an official, the official concerned should have the possibility to answer the allegation and the institution also should take a position on the matter. The Ombudsman therefore requested the Commission to give an opinion on the following allegations of the complainant:
According to the complainant, the official in question holds a party political position in Greece which is incompatible with his duty to verify that the project under consideration is carried out in accordance with Community law. In support of her allegation, the complainant referred to a newspaper article dated 30 November 1998, according to which the official in question took up a position as special adviser to the President of the Nea Demokratia party, which is the same political party as the Mayor of Parga. According to the complainant, the official in question also took up a position providing back-up to mayors and prefects who are members of Nea Demokratia. Finally, the complainant stated that, in his party political capacity, the official in question visited the Parga area on 6 March 1999 as a speaker at a party gathering in the presence of the mayors and prefects of the region, ten days before the team of DG XI visited Parga supposedly to investigate certain details of the file.
Besides his request for an opinion on these allegations, the Ombudsman also requested the Commission to inform him whether the Commission has given any guidance to its staff who deal with infringements as to their possible political activities in the Member State concerned, so as to ensure that the Commission's impartiality is seen to be maintained. The Ombudsman asked the Commission to reply by 31 October 2001.
As the Commission failed to reply to the Ombudsman's request by the deadline, a letter of reminder was sent on 14 November 2001. The Commission finally replied on 30 November 2001.
**The Commission's third opinion**
1. In its opinion of 30 November 2001, the Commission observed that, in its answer of 14 November 2000, it had not responded to the allegation concerning the possible influence of the official in question in the outcome of the case, because it felt it was not relevant, both in terms of substance and or procedure, as regards the handling of the complaint in question.
On the basis of the Ombudsman's new request of 3 July 2001, the Commission gave the official in question the opportunity to present his views on the allegations made about him at a hearing. The Commission concluded that there is no reason to believe that the official in question has influenced any decision taken on this case and moreover that he was not involved in it, being on annual leave from 15 December 1998 till 31 January 1999, and on unpaid leave on personal grounds from 1 February till 15 June 1999.
The hearing took place on 24 October 2001 and a report of it was disclosed to the Ombudsman on a confidential basis, as it was prepared in the context of the Commission's own internal inquiry into the allegation of maladministration brought by the complainant. The report demonstrates clearly why the Commission is satisfied that no maladministration took place. The Commission stated that, in view of the personal nature of the allegations against the official concerned, the document was disclosed for the attention of the Ombudsman only and could in no case be released or reproduced.
The Commission observed that, naturally all officials, including those who deal with infringements, enjoy the right to exercise their fundamental freedom to take part in political life in their Member State of origin or residence. The exercise of that basic right may be subject to reasonable limits in the interest of the service. Article 11 of the Staff Regulations states in this respect that "an official shall carry out his duties and conduct himself solely with the interests of the Communities in mind".
2. As regards the Ombudsman's general question "whether the Commission has given any guidance to its staff who deal with infringements as to their possible political activities in the Member State concerned", the Commission pointed out that in addition to article 11, article 15 of the Staff Regulations states that officials who are candidates for elective public office "shall apply for leave on personal grounds for a period not exceeding three months. The appointing authority shall consider the case of any official elected to such office. The appointing authority shall, having regard to the importance of the office and the duties it entails for the holder, decide whether the official should continue in active employment or should apply for leave on personal grounds. In the latter case, the duration of the leave shall be equal to the term for which the official has been elected."
Both articles 11 and 15 serve to ensure that the Commission's impartiality is maintained. However, no specific guidelines have been issued concerning possible political activities of staff who deal with infringements, because the way in which political activities are organised and the possible levels of involvement in political organisations vary widely across the European Union. Furthermore, in view of the variety of responsibilities performed by members of staff, the questions linked to the interpretation of Article 11 are not at all limited to staff dealing with infringements.
Therefore the Commission intends through its process of Administrative Reform to inform all staff about the practical consequences arising from Article 11 of the Staff Regulations, A Commission Decision on "The conduct of administrative enquiries and disciplinary proceedings" should be adopted before the end of 2001 which states that "The Commission shall publish a handbook, detailing the rights and obligations of officials, the standard of conduct that is expected from them and the possible consequences of breaches of those obligations as well as examples of misconduct. The handbook will be given to each member of staff, published on-line and regularly updated".
The Commission added that, whilst this hearing was an internal inquiry and not a disciplinary procedure, in cases of disciplinary proceedings the disclosure on a confidential basis of a report to the Ombudsman would be strictly without prejudice to the right of officials to secrecy of disciplinary proceedings under the Staff Regulations and would in no way constitute a precedent for such cases.
**Further inquiries**
On 12 December 2001, the Ombudsman wrote to the Commission requesting to allow him to forward the report of the hearing and its annexes to the complainant for possible observations. The Ombudsman stated that a basic principle of fair procedure is that the Ombudsman's decision on a complaint cannot take into consideration information contained in documents provided by one party, unless the other party has had the chance to respond.
**The Commission's fourth opinion**
On 29 January 2002, the Commission confirmed its previous position that it was not possible to send the report to the complainant, as it is a document which should remain confidential, because it contains information regarding identified Commission officials which may not be disclosed under the rules on access to documents (Article 4, paragraph 1, b of Regulation n° 1049/2001 regarding public access to documents. The Commission also stated that the procedure before the Ombudsman is not a judicial procedure where parties produce replies and rejoinders.
**Further inquiries**
On 7 February 2002, the Ombudsman wrote again to the Commission requesting it to make a summary of the report which could be sent to the complainant. With regard to the Commission's comment that the procedure before the Ombudsman is not a judicial procedure, the Ombudsman pointed out that fairness is not limited to judicial procedures, but also a requirement of good administration, as stated in Article 41 of the Charter of Fundamental Rights.
**The complainant's third observations**
In her observations of 22 February 2002, the complainant first observed that Article 15 of the Staff Regulations, which provides that candidates for elective public office shall apply for leave on personal grounds for a period not exceeding three months, does not apply to the official in question, as he never was a candidate for an elective public office. Moreover, his leave on personal grounds was four and a half months (from 1 February to 15 June 1999) instead of the three months foreseen by the Staff Regulations. This means that any official may receive leave on personal grounds lasting several months to work for a political organisation in his Member State of origin by invoking the provisions of Article 15 which only apply to elective public office.
In the present case, the impartiality of the Commission was totally ignored and the Commission representatives were only interested in securing funding for the project. The complainant argued that the official in question is not an ordinary official, but occupies an extremely powerful position, as he is the very person who judges whether a project complies with Community law and whether this project will receive funding. The situation is self evident when such a person settles in Greece, works for a political organisation and is responsible for supporting the mayors and prefects who belong to the same political organisation and who are the persons responsible for constructing projects which can only go ahead if the person in question authorises funding for them.
The complainant rejected the Commission's position that there is no reason to suppose that the official in question exercised any influence over the decision-taking in this matter, on the basis of the following reasoning: he took leave to go to work for a political party organisation, where he had a specific task, namely to support the mayors and prefects belonging to that organisation. In the meantime he remained however a Commission official. Given the advantages he enjoys in his position over his subordinates, this enabled him to exercise influence over them and to manage them from a distance.
Furthermore, the Nea Dimokratia Party would not have created a special post to support the mayors and prefects and would not have summoned him from Brussels to occupy this post if he had not been able to use his influence. Also, according to the newspaper publication the complainant sent earlier, the official in question carried out party-related duties in Greece from at least 30 November 1998. In other words, he was working for a political party even at the time when he was still working as a Commission official. This explains also why the change in position on the complaint was in fact pre-programmed.
The complainant finally pointed out that in March 2001 she was informed that the official in question had joined a new political party called the Movement of Free Citizens (KEP). On 15 March 2001, the Greek newspaper To Vima reported that he had been appointed as responsible for the regions within this party. A party member responsible for the regions (which is the whole of Greece except the plain of Attica) has as task to establish links with the representatives of the local communities, namely the mayors and prefects, with the aim of exercising influence on behalf of his party. However, this is impossible for someone permanently working and residing in Brussels.
The complainant concluded with the following remarks: in almost all cities in Greece projects are being constructed with European Union funding. The constructions depend on the mayors of these cities, and the legality of these projects (compliance with Community law, and consequently the funding) depend on the official in question. For this reason he was given, in his former and present political party, the post dealing with the regions and the mayors. Either the Commission is aware of what is really happening and is keeping quiet about it, or it knows nothing, which would reflect very badly on the administration.
**The Commission's final opinion**
On 12 March 2002, the Commission sent a summary of the hearing report. It recalled that the official in question was on leave between 15 December 1998 and 15 June 1999 and that his activities did not concern the case. The conclusions of the internal hearing refute the complainant's allegations concerning his presence in Parga at the date mentioned by the complainant, the contacts taken with the services of DG Environment and the political party of the mayor of Parga. The Commission finally observed that the official in question reserved the right to bring this case to court and to use the procedure of assistance foreseen in Article 24 of the Staff Regulations.
The Commission's comment was sent to the complainant.
**The complainant's final observations**
On 25 April 2002, the complainant submitted her final observations on the last Commission's opinion. The complainant observed that the Commission's conduct in not allowing the Ombudsman to provide her with the report of the hearing was unacceptable and revealed that the Commission was only interested in protecting one of its employees and does not care about the investigation of the Ombudsman.
The complainant pointed out that the Commission's refusal to allow the hearing report to be sent to her infringed the basic principle governing the Ombudsman's investigation, whereby none of the information submitted to the Ombudsman can be considered confidential. The complainant stated that this constitutes discriminatory treatment, as she was deprived of the right to give a detailed reply to the contents of the hearing report.
The complainant reiterated that the official in question played a role in party politics from 30 November 1998, i.e. before he took his annual leave and leave on personal grounds. Furthermore, although the official in question was on leave between 15 December 1998 and 15 June 1999, the complainant received a letter dated 28 January 1999 signed by him.
As regards the rejection of his presence in the city of Parga, the complainant observed that she had referred to a newspaper article which stated that the official in question visited the "Parga area" on 6 March 1999. This area includes the city of Preveza where he actually delivered a speech. The complainant stated that it would be naïve to believe that his influence could only be exerted if he visited the very city of Parga in person. According to the complainant, the official in question was introduced not as a party official, but as a Commission official.
**Summary of the complainant's allegations**
In view of the complexity of the case, it seems useful to summarise the complainant's allegations as they appear from the initial complaint of 22 October 1999 and the following successive exchanges of opinions and observations between the complainant and the Commission:
1. From 7 July 1995, when the complaint was lodged, until 9 December 1998, i.e. nearly three and a half years, the complainant did not receive any letter from the Commission informing her about the developments of the complaint. For this reason, the complainant was unable to defend her position. In observations, the complainant also alleged that the Commission had not informed her that it had decided, by decision E(98)2297 of 28 July 1998 to fund the project under the Cohesion Fund, but on the contrary had sent letters - such as the one of 9 December 1998 - which indicated that the case was still under consideration.
2. The complainant alleged that the Commission's decision to close the case was wrong in law: the Commission has in fact manipulated the matter and has tried to find means to close the case, as is shown by the reasoning of the final decision of 20 April 1999: it took the Commission four years to come to the conclusion that the project predated the entry into force of Directive 85/337/EEC. However, earlier - on 26 March 1997 and on 19 March 1998 - the Commission proposed including this case as a representative example in proceedings against Greece for failure to comply with Directive 85/337/EEC.
3. The complainant alleged a lack of impartiality in the handling of the case by the Commission. According to the complainant, the official in question holds a party political position in Greece which is incompatible with his duty to verify that the project under consideration is carried out in accordance with Community law. In support of her allegation, the complainant referred to various newspaper articles. Furthermore, the complainant argued that the written expression of thanks in the Greek Foreign Ministry records (minutes of the meeting of 20 May 1998) to representatives of the Commission for delaying the processing of complaints indicates that some officials of DG XI set themselves the objective not to ensure the proper implementation of Community law, but to ensure that the project would receive Community funding.
THE DECISION
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**1 The alleged failure to provide adequate information to the complainant**
1.1 The complainant alleged that from 7 July 1995, when the complaint was lodged, until 9 December 1998, i.e. nearly three and a half years later, she did not receive any letter from the Commission informing her about the developments of the complaint. For this reason, the complainant was unable to defend her position. In observations, the complainant also alleged that the Commission had not informed her that it had decided, by decision E(98)2297 of 28 July 1998 to fund the project under the Cohesion Fund, but on the contrary had sent letters - such as the one of 9 December 1998 - which indicated that the case was still under consideration.
1.2 The Commission observed that, if it was regrettable that no single letter was addressed to the complainant during this period, it is clear that through telephone conversations and via the information given to the Committee on Petitions of the European Parliament, the complainant has been informed of the evolution of the file and of the changing of the Commission's position in the light of the new documents transmitted by the Greek authorities.
1.3 The Ombudsman notes that, in the framework of his own initiative inquiry into the Commission's administrative procedures for dealing with complaints concerning Member States' infringement of Community law (303/97/PD[(6)](#(6)){#Footnote6}), the Commission stated that the complainant is informed about the action taken in response to a complaint, including representations made to the national authorities concerned, and that, under its rules of procedure, a decision to close the file on a complaint without taking any action must be taken within one year from the date on which the complaint was registered, except in special cases, the reasons for which must be stated.
1.4 The Ombudsman notes that, in the present case, the complaint to the Commission was lodged on 7 July 1995. However, it is only in its letter of 9 December 1998, i.e. nearly three and a half years after the lodging of the complaint, that DG XI (Environment) of the Commission for the first time wrote directly to the complainant with regard to her complaint. With this letter the Commission replied to the complainant's letter of 7 December 1998 and observed that it had received the new information from the complainant and that on basis of this information it would decide which follow-up to give to the complaint.
1.5 The Ombudsman however notes that the complainant had made a petition to the European Parliament in October 1996 (ref. 570/96) and that, on two occasions, namely on 26 March 1997 and on 19 March 1998, the Commission informed the Committee on Petitions about the handling of the case. The Committee on Petitions subsequently communicated the Commission's position to the complainant. For the period between October 1996 and March 1998, the Ombudsman therefore considers that the allegation that the Commission failed to inform the complainant cannot be sustained, as it was the responsibility of the Committee on Petitions to inform the complainant during that time. However, it appears that, during the period from March 1998 until December 1998, when the Commission's position on the case changed, the Commission failed to inform the complainant about the dealing of the case.
1.6 The Ombudsman considers that the Commission should have informed the complainant of the decision of 28 July 1998 at the time when this decision was taken, as it in fact meant that the project in question had been approved and obtained funding and that the decision on the complaint had in substance been made. The Ombudsman notes that, in its opinion of 27 March 2000, the Commission kept this important information concealed equally from the Ombudsman.
1.7 The Commission failed to provide the Ombudsman with an acceptable explanation for the question why it informed the complainant on 9 December 1998 that it would take into consideration the new elements which she had transmitted, and also informed her on 20 April 1999 that it would close the case, unless new information was sent by the complainant in one month, when already on 28 July 1998 it had approved the project and decided to fund it under the Cohesion Fund.
1.8 Finally, with regard to the Commission's argument that the judgement of the Court of First Instance of 23 September 1994 in case T-461/93 has recognised the independence of the Community funding procedure from the infringement procedure, the Ombudsman points out that the independence of the two procedures deduced by the Commission from this case merely concerns the administrative aspects of these procedures. This judgement does not put into question the principle according to which the projects which benefit from Community funding have to comply with Community law. The Ombudsman therefore considers that it was irrelevant for the Commission to refer to the above Court case and to the independence of the two procedures in the framework of the present complaint.
1.9 It appears from the above that, during the period from March 1998 until December 1998, when the Commission's position on the case changed, the Commission has failed to provide adequate information, because it concealed from the complainant a fundamental element in the case, namely that by decision E(98)2297 of 28 July 1998 the Commission had in the meantime decided to fund under the Cohesion Fund the project which was subject of the complaint. By doing so, the Commission left the complainant in the belief that it was still investigating the case. The Commission's failure to provide the complainant with adequate information about her case constitutes an instance of maladministration. The Ombudsman therefore makes the critical remark below.
**2 The allegation concerning the reasons why the Commission closed the case**
2.1 The complainant alleged that the Commission's decision to close the case was wrong in law. The Commission has in fact manipulated the matter and has tried to find means to close the case, as is shown by the reasoning of the final decision of 20 April 1999. It took the Commission four years to come to the conclusion that the project predated the entry into force of Directive 85/337/EEC. However, earlier - on 26 March 1997 and on 19 March 1998 - the Commission proposed including this case as a representative example in proceedings against Greece for failure to comply with Directive 85/337/EEC.
2.2 In its opinion, the Commission observed that in March 1997 it considered that the project was launched after the entry into force of Directive 85/337/EEC. It concluded that the realisation works of the project had commenced before the definitive approval of the environmental conditions of the project, thus violating the Directive. However, having obtained new information from the Greek authorities, it informed the complainant in April 1999 that it considered that the project in question was described in the decision of the Prefecture of Preveza n° 667 of 28 February 1986 which predates the entry into force of the Directive 85/337/EEC. The Commission considered that this decision approved the site for the installation of the biological treatment plant, because it contained an annex with the topographical map of the "Varkas" site. It therefore closed the case.
2.3 The Ombudsman has carefully analysed the documents from the file and from the Commission's file inspected on 12 September 2001. From the documents at the disposal of the Ombudsman, it appears that the chronology of the follow-up of the case is as follows: On 26 March 1997 (first Commission's reply to the Committee on Petitions), the Commission considered that the project had been launched after the entry into force of the Directive 85/337/EEC. Considering that the works of the project had started before the definitive approval of the environmental impact assessment, the Commission concluded that the Directive had been violated. The Commission therefore suggested that this case would be included in a horizontal proceeding against Greece for infringement of the Directive. For this reason, the Commission also suspended the funding of the project from the Cohesion Fund.
2.4 On 19 March 1998 (Commission's second reply to the Committee on Petitions), the Commission confirmed the violation of Directive 85/337/EEC and postponed all procedures relating to the funding of the project. The Commission also confirmed that this case would be included in a horizontal proceeding against Greece for infringement of the Directive 85/337/EEC.
2.5 On 28 July 1998, the Commission decided to fund the project under the Cohesion Fund (decision E(98)2297). On 20 April 1999, the Commission informed the complainant that it would close the case, as the Directive did not apply to the project in question which was described in the decision of the Prefecture of Preveza n° 667 of 28 February 1986, which predates the entry into force of the Directive.
2.6 In observations, the complainant argues that the Directive 85/337/EEC is applicable to the project in question, because the application for the implementation of the project was submitted by the municipality of Parga on 28 February 1995, i.e. after the entry into force of the Directive. The complainant referred to the ruling 744/1997 of the Greek Council of State which confirms this date. The complainant argued that the decision of the Prefecture of Preveza n° 667 of 28 February 1986 merely approved a preliminary study for the biological treatment plant and contained no specific reference to the site of the proposed biological treatment plant.
2.7 It appears from the above that the main dispute between the complainant and the Commission concerns the question whether Directive 85/337/EEC is applicable to the project under consideration. The Ombudsman notes that Directive 85/337/EEC entered into force on 3 July 1988[(7)](#(7)){#Footnote7}. The complaint to the Commission was lodged on 7 July 1995, seven years later.
2.8 As a preliminary point, the Ombudsman would like to underline that the Greek Council of State, in its judgements 744/1997 and 3221/1999, neither addressed the question of applicability of Directive 85/337/EEC in time, nor made a reference to this Directive. Nor does it mention at all the decision of the Prefecture of Preveza n° 667 of 28 February 1986.
2.9 The law which transposed the Directive 85/337/EEC into Greek national law is the *Law n° 1650/1986 "For the Protection of the Environment" of 10 October 1986* . As regards the authority which is competent to decide on the project, article 4.2.b of the above law provides that *"the consent for environmental requirements for the works and the activities falling within this category is granted by a joint Decision of the Minister of Environment, Regional Planning and Public Works in conjunction with the competent Minister at issue"*(translation from Greek by the Ombudsman's services). It appears from this law that the consent for the project is given by a joint Ministerial Decision.
2.10 In the present case, it appears from the documents in the file that, on 28 February 1995, the municipality of Parga submitted an application (document 233/28.2.1995) to the Ministry of Environment, Regional Planning and Public Works. On 10 October 1995, a first decision 85202/5142/10-10-1995 from the Directorate General of the Ministry of the Environment, Regional Planning and Public Works was taken concerning the location of the sewage treatment plant at the "Varkas" site. Later, on 18 March 1997, the Joint Ministerial Decision 121227/18-3-1997 was taken which approved the environmental conditions for the biological treatment plant at the "Varkas" site. It was this Joint Ministerial Decision which gave definitive approval to the project.
2.11 As regards now the application of the Directive in time, the Court of Justice has, in its judgement C-431/92 of 11 August 1995, stated that *"the date when the application for consent was formally lodged constitutes the sole criterion which may be used. Such a criterion accords with the principle of legal certainty and is designed to safeguard the effectiveness of the Directive"* [(8)](#(8)){#Footnote8}. Article 1(2) of the Directive provides that "development consent" means *"the decision of the competent authority or authorities which entitles the developer to proceed with the project".*
2.12 From the documents in the file, it firstly appears that the decision of the Prefecture of Preveza n° 667 of 28 February 1986 was not a new element in the consideration of the file as claimed by the Commission in its letter to the complainant of 20 April 1999. This decision was already mentioned on the second page, line 7, of the initial complaint made to the Commission in July 1995. According to its own terms, this decision is merely an *"approval of the definitive study of the works of the first stage and of a preliminary study (...) on the installation of a biological treatment plant, included in the study "sewerage system of Parga" by the researcher K. Karadimou and associates".* Therefore, the Ombudsman considers that this decision of the Prefecture of Preveza of 28 February 1986 cannot be considered as the authorisation of the project, and thus as approval of an application in the sense of the above judgement of the Court of Justice.
2.13 From the documents in the file, it appears that the Commission services themselves considered that it was the Ministerial Decision of 18 March 1997 which definitely approved the project. This appears explicitly from two notes in the Commission's file, dated 4 and 27 May 1998, in which the official in question and another official from DG Environment stated that this Decision gave definitive approval for the start of the project and confirmed the location of the site.
2.14 The Ministerial Decision of 18 March 1997 appears thus to constitute the development consent in the sense of Article 1(2) of the Directive, further to the application by the municipality of Parga dated 28 February 1995, when the Directive was already applicable for more than six years, namely since 3 July 1988.
2.15 The Ombudsman also notes that the competent Greek authorities themselves considered that the Directive was applicable. This appears from the environmental impact assessment drawn up by the municipality of Parga in September 1993 which states that *"the impact assessment takes place on the basis of the provisions of Directive 85/337/EEC".*
2.16 It appears from the above considerations that the Commission was wrong to consider that Directive 85/337/EEC was not applicable to the project in question, because the application for consent which led to the authorisation of the project, in the sense of the judgement C-431/92 of the Court of Justice of 11 August 1995, was formally lodged on 28 February 1995, i.e. after the entry into force of Directive 85/337/EEC. This constitutes an instance of maladministration and the Ombudsman makes the critical remark below. The Ombudsman however wants to recall that the Court of Justice is the highest authority on questions of interpretation and application of Community law.
**3 The allegation concerning lack of impartiality by a Commission official**
3.1 The complainant alleged a lack of impartiality in the handling of the case by the Commission. According to the complainant, the official in question holds a party political position in Greece which is incompatible with his duty to verify that the project under consideration is carried out in accordance with Community law. In support of her allegation, the complainant referred to various newspaper articles. Furthermore, the complainant argued that the written expression of thanks in the Greek Foreign Ministry records (minutes of the meeting of 20 May 1998) to representatives of the Commission for delaying the processing of complaints indicates that some officials of DG XI set themselves the objective not to ensure the proper implementation of Community law, but to ensure that the project would receive Community funding.
3.2 The Commission gave the official in question the opportunity to present his views at a hearing. It appears from the summary of the hearing that the Commission concluded that there was no reason to believe that the said official had influenced any decision taken on this case and moreover that he was not involved in it, being on annual leave from 15 December 1998 till 31 January 1999, and on unpaid leave on personal grounds from 1 February till 15 June 1999.
3.3 The Ombudsman notes that the Commission invokes the official's leave as an argument to support that he had not influenced the decision on this case and that he was not involved in it. It appears however that this is put in doubt by the following facts of the case which all date from when the official in question was still in charge of the file.
3.4 On 27 May 1998, the official in question added a note to the file concluding, on the basis of the new elements in the case, to drop the infringement procedure. In this note, he stated that a letter will be sent to the complainants to inform them about the Commission's intention to close the file. Two months later, on 28 July 1998, further to the decision on the substance that there was no infringement of Directive 85/337/EC, the Commission took the decision to fund the project in question. On 9 December 1998, one week before taking leave, the official in question sent a final letter to the complainant informing her that the Commission would consider what follow-up to give to the case further to the documents which the complainant had sent. In this letter it was not mentioned that, in the meantime, the project had been approved.
3.5 From the above facts it is evident that the official in question was deeply involved in the decision to drop the case, which was a necessary condition for the funding of the project by the Commission.
3.6 As regards the argument of the complainant that the official's party political position in Greece is incompatible with his duty to supervise Community law, the Ombudsman's inquiry has revealed - as it also appears from the Greek press - that in the period preceding the closure of the case, the official in question had been appointed as adviser for European affairs for the President of Nea Dimokratia Party, and had attended a party meeting in the region where he gave a speech about EU environmental legislation. It appears that the information on his appointment was made public already on 30 November 1998, two months before taking leave on personal grounds.
3.7 The Ombudsman considers that, from the point of view of the complainant, who did not know that the official in question was on annual and later on unpaid leave on personal grounds, and who had moreover recently received a letter signed by the official on 9 December 1998 stating that the case was still being investigated, there appear to be sufficient reasons to mistrust the impartial and proper handling of the case by the Commission and to question that the official in question did not conduct himself solely with the interests of the Communities in mind. In fact it would be difficult for any citizen in any Member State not to doubt the impartiality of the Commission's actions as the Guardian of the treaty if a Commission official who is deeply involved in dealing with an infringement case also holds a post in a political party in the very Member State that the case concerns and acts publicly in that capacity at a time when the case is being dealt with. In the eyes of European citizens, this kind of incident may put at risk the reputation of the Commission as Guardian of the Treaty, responsible for promoting the rule of Community law.
3.8 The Ombudsman therefore finds that the Commission, as Guardian of the Treaty, has failed to secure that this case was dealt with impartially and properly. This constitutes an instance of maladministration and the Ombudsman makes the critical remark and further remark below.
**4 Conclusion**
On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following three critical remarks:
{#CR26/2002}
1. During the period from March 1998 until December 1998, when the Commission's position on the case changed, the Commission has failed to provide adequate information, because it concealed from the complainant a crucial element in the case, namely that by decision E(98)2297 of 28 July 1998 the Commission had in the meantime decided to fund under the Cohesion Fund the project which was subject of the complaint. By doing so, the Commission left the complainant in the belief that it was still investigating the case. The Commission's failure to provide the complainant with adequate information about her case therefore constitutes an instance of maladministration.
{#CR27/2002}
2. The Commission was wrong to consider that Directive 85/337/EEC was not applicable to the project in question, because the application for consent which led to the authorisation of the project, in the sense of the judgement C-431/92 of the Court of Justice of 11 August 1995, was formally lodged on 28 February 1995, i.e. after the entry into force of Directive 85/337/EEC. This constitutes an instance of maladministration.
{#CR28/2002}
3. From the point of view of the complainant, who did not know that the official in question was on annual and later on unpaid leave on personal grounds, and who had moreover recently received a letter signed by the official on 9 December 1998 stating that the case was still being investigated, there appear to be sufficient reasons to mistrust the impartial and proper handling of the case and to question that the official in question did not conduct himself solely with the interests of the Communities in mind. In fact it would be difficult for any citizen in any Member State not to doubt the impartiality of the Commission's actions as the Guardian of the treaty if a Commission official who is deeply involved in dealing with an infringement case also holds a post in a political party in the very Member State that the case concerns and acts publicly in that capacity at a time when the case is being dealt with. In the eyes of European citizens, this kind of incident may put at risk the reputation of the Commission as Guardian of the Treaty, responsible for promoting the rule of Community law. The Ombudsman therefore finds that the Commission, as Guardian of the Treaty, has failed to secure that this case was dealt with impartially and properly. This constitutes an instance of maladministration.
Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman has therefore decided to close the case.
FURTHER REMARK
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According to the Court of Justice, the European Community is based on the rule of law. As Guardian of the Treaty, the European Commission has an essential role in promoting this fundamental principle. In the light of the findings in this case 1) that the Commission failed to provide adequate information to the complainant, 2) that the Commission was wrong to consider that Directive 85/337/EEC was not applicable and 3) that the Commission failed to secure that the case was dealt with impartially and properly, the Ombudsman concludes that failures have been revealed in the Commission's actions as Guardian of the Treaty.
With this regard, the Ombudsman would like to refer to the recent Commission Communication of 20 March 2002 to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law[(9)](#(9)){#Footnote9}, which contains procedural rules on the matter. The Ombudsman foresees that the procedural rules contained in this Communication and in the handbook for Commission officials announced in the Commission's opinion of 30 November 2001, correctly applied and supervised, will prevent that instances of maladministration similar to the one in the present case occur in the future.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN
*** ** * ** ***
[(1)](#Footnote1){#(1)} Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175/40.
[(2)](#Footnote2){#(2)} Case C-431/92, Commission v. Germany, \[1995\] ECR I-2189.
[(3)](#Footnote3){#(3)} Article 12 of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Fund.
[(4)](#Footnote4){#(4)} Case T-461/93, An Taisce - The National Trust for Ireland and World Wide Fund for Nature v.Commission, \[1994\] ECR II-0733, § 35.
[(5)](#Footnote5){#(5)} The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy.
[(6)](#Footnote6){#(6)} 303/97/PD, reported in the European Ombudsman's Annual Report for 1997, pages 270-274.
[(7)](#Footnote7){#(7)} Article 12 (1) provides that Member States shall take the measures necessary to comply with this Directive within three years of its notification. The Directive was notified to the Member States on 3 July 1985.
[(8)](#Footnote8){#(8)} Case C-431/92, Commission v. Germany, \[1995\] ECR I-2189, par. 32.
[(9)](#Footnote9){#(9)} COM (2002) 141 final.
*** ** * ** ***
Letter of 3 March 2008 from the European Ombudsman to the official of the European Commission refered to in this decision
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Strasbourg, 3 March 2008
Dear Sir,
On 18 July 2002, the European Ombudsman adopted his decision on a complaint against the European Commission (complaint 1288/99/OV) that had been submitted to him by a Greek citizen. This complaint concerned the way in which the Commission had handled a complaint submitted to it under Article 226 of the EC Treaty and concerning an alleged infringement of EU environmental legislation by Greek authorities. The Ombudsman closed his inquiry with a finding of maladministration and addressed three critical remarks to the Commission.
In 2005, you brought an action for damages against the Ombudsman concerning the above-mentioned decision (Case T-412/05 *M v European Ombudsman*). You consider that this decision and the critical remarks the Ombudsman addressed to the Commission in that case tarnished your reputation and caused you considerable prejudice.
In my view, these concerns stem from an erroneous interpretation of the above-mentioned decision adopted by the Ombudsman in 2002.
Your action is still pending before the Court of First Instance. No date has yet been set for judgment in that case. However, given that you consider your reputation to have been negatively affected by the Ombudsman's decision on complaint 1288/99/OV, I considered it appropriate to provide you with the following clarifications:
I would like formally to reassure you that the above-mentioned inquiry was directed against the European Commission as an institution and aimed at ascertaining whether it had correctly dealt with the relevant infringement complaint. This was in conformity with Article 195 of the EC Treaty, which empowers the Ombudsman to conduct inquiries concerning possible instances of maladministration in the activities of "the Community institutions or bodies". The object of the Ombudsman's inquiry was the behaviour and the conclusions of the Commission itself in the handling of the infringement procedure.
The Ombudsman's decision closed the inquiry with three critical remarks. In the third critical remark, which is the most important one in the present context, the Ombudsman expressed the view that, in this particular case, the Commission had failed to take all the necessary measures to guarantee, in the eyes of citizens, that its role as the Guardian of the Treaty is handled with impartiality.
All these critical remarks were addressed to the Commission as an institution and did not entail, and were not intended to entail, any personal or professional criticism in relation to the Commission officials who worked on this case and, specifically, any personal or professional criticism directed at you. This also applies to the third critical remark. This critical remark is based on an objective evaluation of the Commission's action in the present case and of the external perceptions it created or could possibly create in the eyes of citizens. It implied no criticism of any of the Commission officials involved in general or of yourself in particular.
In its comments on the Ombudsman's decision, the Commission has stressed that all the administrative inquiries it had conducted in relation to this case had led to the conclusion that, contrary to what the complainant had submitted in her complaint to the Ombudsman, none of its officials involved in handling the case had committed any professional fault.
The Ombudsman acknowledged and accepted these conclusions in his decision. However, he considered that, nevertheless, mistakes had been made by the Commission as an institution and that therefore it was justified to make three critical remarks.
I very much regret if the wording that was used in the above-mentioned decision might have been understood, incorrectly and against the Ombudsman's intentions, as suggesting any criticism against Commission officials in general and against you in particular. Since you have informed me that this was how you had interpreted the said decision, I thought it would be both appropriate and courteous to set the matter straight in a formal letter addressed to you. Unless you inform me that you don't wish me to do so, an anonymised version of this letter will also be published on my website, in both English and Greek, and a link to this letter will be added to the text of the decision in case 1288/99/OV that is available on my website, so as to render impossible any erroneous interpretation of the scope and direction of that decision.
Let me conclude by wishing you all the best for the future.
Yours sincerely,
P. Nikiforos DIAMANDOUROS