Strasbourg, 03.03.2021

Complaint 245/2021/SF

Dear Mr X,

I refer to your letter of 3 February 2021 in which you complained that the European Commission’s opinion (C(2010)8438) and its correction (C(2012)911) are based on allegedly incorrect information in Germany’s request for comments and are therefore incorrect. They take the view that, in the context of its exceptional assessment, the Commission should have examined more closely the information contained in the request for comments, in particular after having been made aware on several occasions that it was incorrect.

Having carefully examined your complaint that the Commission based its opinion on inaccurate statements, I regret to inform you that the European Ombudsman cannot deal with it for the reasons set out below.

From the information submitted to us, it appears that this subject-matter of the complaint has already been the subject of two petition procedures before the European Parliament. A first petition in 2011 (0639/2011) concerned the correction of statements based on translation errors by the Commission as well as a misleading statement in Germany’s opinion request. The Commission subsequently published a corrigendum to its opinion on 15 February 2012. The second petition (1459/2016) in 2016 concerned the Commission’s original opinion and its correction. The request for petition indicated that all the specific reasons given in the opinion had been found to be incorrect, also due to translation errors, ambiguous wording and inaccurate information in the request for opinion. The arguments you put forward in your complaint to the Ombudsman were already put forward in the second petition.

The Ombudsman can only investigate complaints relating to the administrative activities of the institutions and bodies of the European Union, such as the European Commission or EU agencies [1]. However, the processing of petitions by the European Parliament is part of its political work, which the Ombudsman cannot verify. As the European Parliament has already dealt with the allegation that the Commission’s opinion is based on false information, your complaint concerns a matter outside the Ombudsman’s remit.

Furthermore, the Ombudsman may not investigate complaints where the alleged facts have been the subject of judicial proceedings [2].

It appears that this objection was the subject of proceedings before the Bundesverwaltungsgericht Leipzig (Federal Administrative Court, Leipzig). Although the Federal Administrative Court did not verify whether the Commission’s opinion was correct, it examined whether the planning approval decision infringed the provisions of the Fauna-Flora-Habitat Directive [3] or other legislation. All the documents sent to the Commission in the context of the request for comments were part of the planning approval decision, which was examined by the Bundesverwaltungsgericht Leipzig (Federal Administrative Court, Leipzig). The Federal Administrative Court has found no material errors in the documents or the chosen investigation method.

For the sake of completeness, I would also like to mention that the Commission’s exceptional assessment, which you complained about, took place in 2011 and 2012. The Ombudsman's Statute [4] allows her to investigate complaints whose underlying facts were not more than 2 years ago. This is another reason why the Ombudsman is unable to follow up on your complaint.

We hope that this information will be of use to you and are at your disposal for further questions.

Thank you for contacting the European Ombudsman.

Yours sincerely,

Rosita Hickey

Director of Investigations

[1] Article 2(2) of the Statute for a European Ombudsman (https://www.ombudsman.europa.eu/en/legal-basis/statute/en)

[2] Article 228 of the Treaty on the Functioning of the European Union (TFEU);

[3] https://eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:31992L0043&from=DE

[4] See Article 2(4) of the Statute of the European Ombudsman