(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

According to Article 4 of Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity(2), Member States may choose between an authorisation procedure and a tendering procedure regarding the construction of new generating capacity. Both types of procedure must be conducted in accordance with objective, transparent and non-discriminatory criteria.

It appears that Austria has opted for an authorisation procedure, and that the Directive has been implemented by legislation by the Elektrizitätswirtschafts- und organisationsgesetz 1998 (“ElWOG”, law on the electricity sector and its organisation) on the federal level and by legislation on the level of the Länder (regions).

Article 5 (1) of Directive 96/92/EC provides that Member States shall lay down the criteria for the grant of authorisations for the construction of electricity-generating capacity in their territory. These criteria may inter alia relate to the protection of the environment (point b) and to land use and siting (point c). According to Article 5 (2), the detailed criteria and procedures shall be made public. Article 5 (3) provides that applicants shall be informed of the reasons for any refusal to grant an authorisation and that these reasons must be well-founded and substantiated. These reasons must be forwarded to the Commission for information. The provision further stipulates that appeal procedures must be made available to applicants.

On 25 August 1999, the complainant, an Austrian citizen, asked the competent authority in Burgenland (one of Austria’s Länder) for authorisation to build electricity-generating facilities run by wind power with a capacity of 15 MW. The Landesregierung (government of the relevant Land) informed the complainant on 26 November 1999, referring to Article 11 (4) of the Burgenländisches Elektrizitätswesengesetz 1999 (“ElWG”, law regarding the electricity sector of the Land), that the authorisation could not be granted since the relevant plot was listed in the land-use plan as “greenland - used for agricultural purposes”. According to the Landesregierung, the dedication of the relevant plots had to be changed before an authorisation could be granted.

Article 11 of the ElWG contains a number of criteria for the grant of authorisations. Article 11 (4) provides that a site is inappropriate if the construction or the running of generating capacity is prohibited under regional law (“landesrechtliche Vorschriften”) at the time when the decision is taken.

On 15 May 2000, the complainant requested that his application should be dealt with by the national Ministry of Economic Affairs. According to the complainant, this meant that competence for dealing with the matter passed from the Land to the national Ministry. Whilst the Ministry apparently did not deal with this application, a regional authority decided on 23 January 2001 that the complainant’s application could not be granted in so far as the rules on the protection of nature were concerned. According to the complainant, the relevant authority was not competent to adopt this decision. An appeal remained however without success.

On 22 December 2000, the complainant turned to the European Commission. On 18 January 2001, he received an acknowledgement of receipt from the Commission. In the absence of a reply on the substance of his letter, the complainant wrote to the Commission again on 29 July 2002, submitting further documents.

By letter of 23 September 2002, the Commission’s services informed the complainant that, in their view, there was nothing to suggest that there had been an infringement of Community law in general and of Directive 96/92/EC in particular. The Commission pointed out that, according to Article 5 of the Directive, Member States could make the issue of an authorisation subject to the fulfilment of certain criteria, including criteria relating to land use and siting. The complainant was therefore advised to turn to the Austrian courts for help.

On 10 December 2002, the complainant again addressed himself to the Commission in order to renew his complaint. The complainant submitted that the procedure by the Austrian authorities had failed to comply with the requirements of Directive 96/92/EC. He took the view that the rejection of his application had been based on a criterion that had not been established and published in accordance with Article 5 of the Directive, that the ElWG did not specify any possibilities of appeal and that the rejection of his application had not been communicated to the Commission. In the complainant’s view, there had been a violation of Article 6 of the Treaty on European Union and of Articles 10, 17 (2) and 249 (4) of the EC Treaty as well as an infringement of Directive 96/92/EC.

In the absence of a reply, the complainant sent a reminder to the Commission on 24 April 2003.

In his complaint to the Ombudsman lodged in September 2003, the complainant basically alleged that the Commission had failed to handle his complaint of 22 December 2000 properly and to reply to his letter of 10 December 2002.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The complainant’s letter of 22 December 2000 could not be found in the archives of the Commission. Also, the complainant had not attached a copy of this letter in his later letters to the Commission or in his complaint to the Ombudsman. An acknowledgement of receipt had been issued in January 2001. It could not be established whether a further substantive reply had been made to the complainant’s letter, nor whether his letter had actually required a substantive reply. Given that the first negative decision of the Austrian authorities had been transmitted only in January 2001, the Commission had in substance only been able to reply on this issue thereafter.

The Commission had replied to the complaint of 29 July 2002 by letter of 23 September 2002. On 5 November 2002, the Commission had received a reply from the complainant to its letter of 23 September 2002. In this letter, the complainant had reiterated his allegations that the refusal of the authorisation and the rejection of his administrative appeal against this decision constituted an infringement of Community law.

The Commission had replied to this further letter on 21 November 2003. Since the complainant had not submitted any new facts, the complainant had been referred to the conclusions set out in the Commission’s previous letter of 23 September 2002.

The complainant had again written to the Commission on 10 December 2002 and on 24 April 2003, repeating his allegations but again without providing any new factual elements. As the correspondence had been pointless and repetitive, the Commission’s services had not replied to these letters.

As regards substance, there had been no violation of Directive 96/92/EC. The Directive expressly provided for the possibility for Member States to make the grant of an authorisation subject to compliance with land-use and siting rules, as contained in national and regional legislation. In practice, all Member States made use of this possibility. It was obvious that electricity plants, including wind turbines, could not be sited just anywhere but needed to be in compliance with existing planning rules.

Nor was there any violation of primary Community law. In this context, it should be noted that all the decisions taken by the Austrian authorities had been duly reasoned and that the complainant had not made use of all his appeal possibilities under Austrian law.

The complainant's observations

In his observations on the Commission’s opinion, the complainant maintained his complaint.

THE DECISION

1 Alleged failure properly to handle the complaint of 22 December 2000

1.1 The complainant alleges that the Commission failed properly to handle a complaint which he claims to have lodged on 22 December 2000. In this complaint, the complainant alleged that Austria failed to comply with Community law, in particular with Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity(3).

1.2 As regards procedural aspects, the Commission submits that the complainant’s letter of 22 December 2000 cannot be found in the archives of the Commission. It further argues that the complainant did not attach a copy of this letter in his later letters to the Commission or in his complaint to the Ombudsman. The Commission also submits that it cannot be established whether a substantive reply was made to this letter, nor whether this letter actually required a substantive reply.

1.3 The Ombudsman is unable to understand the Commission’s position regarding this point. The Commission accepts that it sent an acknowledgement of receipt of the complainant’s letter of 22 December 2000 in January 2001(4). It is thus clear that the Commission received the relevant letter, which it appears to have lost subsequently. The Commission’s contention that the complainant never sent it another copy of this letter is surprising, given that the Commission acknowledged having received this letter and only appears to have informed the complainant that it lost this letter in its opinion on the present complaint. The contention is furthermore contradicted by the fact that together with its opinion, the Commission submitted a copy of the complainant’s letter of 29 July 2002 which contains, in its annex “A”, a copy of the complainant’s letter of 22 December 2000. Upon examining this letter, the Ombudsman notes that it comprises four detailed pages, is headed “Complaint to the European Commission about a failure to comply with Community law” and that it is based on the Commission’s own complaints form for such cases(5). It is therefore difficult to understand why this letter was not registered as a formal complaint by the Commission, either upon its first receipt in December 2000/January 2001 or when the complainant submitted a further copy thereof in his letter of 29 July 2002.

1.4 As regards the substance of this complaint, the Commission maintains that there was no violation of Directive 96/92/EC since the Directive expressly provides for the possibility for Member States to make the grant of an authorisation subject to compliance with land-use and siting rules, as contained in national and regional legislation.

1.5 The Ombudsman takes the view that although the complaint appears to raise a number of issues, it will be sufficient for present purposes to focus on one of these aspects.

1.6 The complainant’s letter of 22 December 2000 contains several references to Article 5 (2) of the Directive which provides that “the detailed criteria and procedures shall be made public”. In this context, the complainant refers to a “prohibition on surprises” (“Überraschungsverbot”) and submits that Article 11 (4) of the Burgenländisches Elektrizitätswesengesetz 1999 (“ElWG”, law regarding the electricity sector of the Land) is in clear contradiction (“in krassem Widerspruch”) to Article 5 (2) of the Directive. The meaning of these references to Article 5 (2) of the Directive becomes even clearer when one considers the complainant’s letter to the Commission of 10 December 2002. In this letter, the complainant explicitly acknowledged that Article 5 (1) (c) of the Directive allowed Member States to use criteria related to “land use and siting”. He took the view, however, that Member States had to establish these criteria in accordance with Article 5 (1) of the Directive and publish them in detailed form pursuant to Article 5 (2) of the Directive. The complainant submitted that Article 11 (4) of the ElWG did not comply with these requirements.

1.7 Article 11 (4) of the ElWG provides that a site is inappropriate if the construction or the running of generating capacity is prohibited under regional law (“landesrechtliche Vorschriften”). There is no express reference to criteria related to “land use and siting”. If Article 5 (2) of the Directive should indeed require that the implementing provisions adopted by Member States contain an express and precise reference to the criteria to be fulfilled by applicants, the complainant’s submission that Article 11 (4) of the ElWG is not compatible with the Directive would certainly carry some weight and would have merited closer examination by the Commission. It should however be noted that the Commission has not dealt with this aspect of the complaint, even after having received the complainant’s letter of 10 December 2002.

1.8 The Ombudsman therefore concludes that the Commission’s failure properly to examine the complaint submitted to it by the complainant constitutes an instance of maladministration.

2 Failure to reply to letter

2.1 The complainant alleges that the Commission failed to reply to his letter of 10 December 2002.

2.2 The Commission notes that it replied to the complaint of 29 July 2002 by letter of 23 September 2002 and that it replied to a further letter it received from the complainant on 5 November 2002 by letter of 21 November 2002. It submits that the complainant’s letters of 10 December 2002 and 24 April 2003 repeated his allegations but again did not provide any new factual elements. Since in the Commission’s view the correspondence was pointless and repetitive, it did not reply to these letters.

2.3 The Ombudsman notes that the complainant’s letter of 10 December 2002 contains four pages with detailed information on the relevant provisions of Community law and of Austrian law. The letter also expanded on the complainant’s view that there was an infringement of Article 5 (2) of the Directive (see point 1.5 above). Given that the Commission had not yet dealt with this issue, the Ombudsman is unable to accept the Commission’s position that the correspondence was “pointless and repetitive” and that no reply was needed. It is good administrative practice for the Commission to reply to letters it receives from citizens. In the Ombudsman’s view, there is nothing to indicate that there might have been exceptional circumstances relieving the Commission of this duty.

2.4 In his complaint, the complainant also mentioned the Commission’s failure to reply to his letter of 4 April 2003. In the absence of further indications(6), the Ombudsman did not consider that the complainant intended to submit an allegation regarding this matter. In its opinion, the Commission nevertheless also addressed the issue of its failure to reply to the letter of 4 April 2003 and provided a copy of this letter. The Ombudsman therefore considers that his inquiry can and should be extended to this issue as well.

2.5 The Ombudsman notes that in his letter of 4 April 2003, the complainant politely asks whether he had been able to convince the Commission, through his letter of 10 December 2002, of the existence of the infringements he claimed to exist and whether the Commission had taken a position on his complaint at all. The Ombudsman cannot see any justification for not replying to such a letter requesting information.

2.6 The Ombudsman thus concludes that the Commission’s failure to reply to the complainant’s letters of 10 December 2002 and 4 April 2003 constitutes a further instance of maladministration.

4. Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The Commission should consider registering the complainant’s letters of 22 December 2000, 29 July 2002 and 10 December 2002 as a complaint and handling this complaint in accordance with its Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(7).

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 31 May 2004. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 20 February 2004

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) OJ 1997 L 27, p. 20.

(3) OJ 1997 L 27, p. 20.

(4) A copy of this acknowledgement of receipt was submitted by the Commission with its opinion.

(5) In Annex C, the complainant even added a reference to the textbook where he had found this complaints form.

(6) It should be noted that the complainant did not provide the Ombudsman with a copy of this letter.

(7) OJ 2002 no C 244, p. 5.