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Decision of the European Ombudsman on own-initiative inquiry OI/2/2006/JMA concerning the European Commission

Idiomas disponibles:  es.en
  • Caso:  OI/2/2006/JMA
    Abierto el 27-ene-2006 - Decisión de 24-oct-2006
  • Institución concernida :  Comisión Europea
  • Ámbito(s) jurídico(s) :  Protección del medio ambiente, del consumidor y de la salud
  • Tipos de mala administración denunciados: (i) vulneraciones o ii) incumplimientos de las obligaciones relativas a:  Legitimidad (incorrecta aplicación de las normas sustantivas y/o procedimentales) [Artículo 4 CEBCA]

Strasbourg, 24 October 2006

Mr President,

According to Article 195 of the Treaty Establishing the European Community, the European Ombudsman is empowered to conduct inquiries on his own initiative in relation to possible instances of maladministration in the activities of Community institutions and bodies.

On 27 January 2006, I informed you of an own initiative inquiry into the Commission’s role as Guardian of the Treaty in relation to the development by the Spanish authorities of an industrial harbour in the city of Granadilla, on the island of Tenerife (Spain). I asked you to submit an opinion by 30 April 2006.

On 12 May 2006, the Commission requested an extension of the above deadline. On 22 May 2006, I accepted that request and the Commission sent its opinion on 16 June 2006.

I am writing now to let you know the results of the inquiry.


THE REASONS FOR THE INQUIRY

During the months of June 2005 and January 2006, the Ombudsman received a large number of complaints against the Commission concerning the development of an industrial harbour by the Spanish authorities in the city of Granadilla, on the island of Tenerife( Spain).

According to the complainants, the Commission had been dealing with a number of “Article 226” complaints concerning this issue(1). The complainants argued that the Granadilla port could have a negative environmental impact on two neighbouring areas, known as "Sebadales del Sur de Tenerife" and "Montaña Roja", which had been classified as sites of Community importance under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“ the Habitats Directive”). The complainants noted that, a ccording to Article 6 of the Directive, in the special areas of conservation, Member States have to avoid the deterioration of natural habitats, and therefore, any plan or project likely to have a significant effect on these sites has to be subject to an assessment of its environmental implications. In light of the conclusions of that assessment, the competent national authorities must agree to the plan or project, only after having ascertained that it will not adversely affect the integrity of the site concerned. As set out in Article 6 (4) of the Directive, if there are alternative solutions or if the environmental impact is negative, the project should not be carried out unless there are exceptional circumstances such as imperative reasons of overriding public interest.

According to the complainants, the Commission had concluded that the development would not be contrary to existing Community law, in particular Article 6 (4) of the Habitats Directive. The complainants argued, in general terms, that the Commission had failed to consider the existence of possible alternative solutions to the proposed development, such as the enlargement of the nearby port of Santa Cruz which was already in operation.

Since the complainants provided very limited information, the Ombudsman did not consider that there were grounds to inquire into their individual complaints as such.

However, Article 195 of the Treaty Establishing the European Community empowers the Ombudsman to conduct inquiries on his own initiative. On 27 January 2006, the Ombudsman opened an inquiry, by virtue of that provision, into the Commission’s role as Guardian of the Treaty in relation to the development of an industrial harbour by the Spanish authorities in the city of Granadilla, on the island of Tenerife (Spain).

In making the decision to launch an own-initiative inquiry, the Ombudsman took into account that the large number of complaints indicated significant public dissatisfaction with the Commission’s actions and that it would therefore be useful for the Commission to explain its position to the public.

The Ombudsman also informed the Commission, that in view of the reasons for the inquiry, he intended to publish the Commission’s opinion on his web site. Since the complaints received by the Ombudsman were written in English and Spanish, he requested the Commission to submit its opinion in both languages.

Correspondence with the European Parliament

On 8 March 2006, the Chairman of the Committee on Petitions of the European Parliament wrote to the Ombudsman explaining that his Committee had received three petitions from residents of the Canary islands relating to the development of the port of Granadilla, and that, since the end of 2004, his Committee had been investigating the situation with the assistance of the European Commission. The letter expressed concern that the Ombudsman’s inquiry could give the impression that Community law had been infringed by the responsible Spanish authorities and asked, among other things, for clarification concerning the nature of the Ombudsman’s inquiries.

On 14 March 2006, the Ombudsman replied to the Chairman of the Committee on Petitions. He explained that, as a general rule, the opening of an inquiry does not imply that he considers that the facts, as presented by the complainants, are accurate, or that the complainants' allegations of maladministration are justified. That principle applied in the present case and the Ombudsman's inquiry gave the Commission the opportunity to present its account of the facts, to explain its position, and thus to clarify the matter. The Ombudsman also explained that his inquiry did not relate to the merits of the project, or whether or not it should be carried out, but aimed solely to investigate whether there was maladministration by the Commission in its role as Guardian of the Treaty. The fact of the Ombudsman’s opening an inquiry could not therefore give the impression that Community law had been infringed by the responsible Spanish authorities.

The Commission's opinion

The Commission's opinion can be summarised as follows:

The Commission noted that, according to the Spanish authorities, the project to build an industrial harbour in Granadilla sought to expand the capacity of the Island of Tenerife to cope with the island's supply requirements, in particular to receive liquefied natural gas to be used for industrial purposes in order to diversify the energy mix in the nearby Granadilla Thermal Power Plant. The authorities' aim was to make Tenerife a logistic platform, and such endeavour could not be achieved by expanding the existing capacities of the nearby port of Santa Cruz de Tenerife.

The Commission explained that the project had been the subject of a joint complaint to the European Commission, registered as a complaint No 2002/5081. The Commission noted that the European Parliament's Committee on Petitions was also handling a number of petitions concerning this situation, which had been registered under reference numbers 253/2004 and 785/2004.

These complaints and petitions alleged a breach of Community law obligations under Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (amended by Directive 97/11/EC) and under the Habitats Directive.

The Commission underlined that it had not yet taken a decision with regard to infringement complaint 2002/5081, as its services are still assessing the project. However, the institution noted that it can be concluded from the environmental assessment studies that the project is likely to have a significant impact on a number of environmental sites belonging to the Natura 2000 network, in particular the sites of "Sebadales del Sur de Tenerife" (ES7020116) and "Montaña Roja" (ES7020049). These sites were designated by the Spanish authorities as sites of Community importance (SCI) and included in the Commission Decision of 28 December 2004.

According to Article 6 (4) of the Habitats Directive, a project of this kind could only be carried out in the absence of alternative solutions and for imperative reasons of overriding public interest, including those of a social or economic nature. Consequently, the Spanish authorities examined and compared several alternative solutions including the options of not developing more port and/or docking capacities, or of developing more docking capacities in the existing port of Santa Cruz de Tenerife. They concluded however that neither of these alternatives would fulfil the objectives of increasing the harbour capacity of the island of Tenerife.

In view of the absence of alternatives, the Spanish authorities argued that the Port of Granadilla should be constructed for imperative reasons of overriding public interest other than those relating to human health, public safety or beneficial consequences of primary importance for the environment. In addition, the Spanish authorities proposed a set of compensation measures in order to enhance the overall coherence of Natura 2000. As the above-mentioned sites host priority habitats and species, the Spanish authorities formally requested the opinion of the Commission on 7 November 2005, in accordance with Article 6 (4) of the Habitats Directive.

The Commission noted that the complainants had contested the possibility that the existing port facilities in the Port of Santa Cruz de Tenerife could not have sufficient capacity for possible future growth, and that the extension of that port would therefore be a feasible alternative.

Since the presence or absence of alternatives to the project is a relevant issue for the final opinion of the Commission pursuant to Article 6 (4) of the Habitats Directive, the Commission undertook to thoroughly consider this aspect and deliver an Opinion that will cover the assessment of the ecological values likely to be affected by the project, the relevance of the imperative reasons invoked, and the balance of these two opposed interests, as well as an evaluation of the compensation measures. The assessment should involve both a scientific and economic appraisal as well as an examination of the necessity and proportionality of the realisation of the plan or project with regard to the imperative reason invoked.

In view of the pending Commission opinion pursuant to Article 6 (4) of the Habitats Directive , the Commission stressed that it has not taken a decision with regard to complaint 2002/5081 as it is still assessing the project concerned. Once the opinion has been adopted, the Commission will post it on its website.

The Commission noted that its services had held regular meetings with the public authorities and complainants' organisations to receive feedback and new evidence. The institution underlined that special attention has been paid to carrying out a careful examination of the huge amounts of information submitted during the investigation, which led to a delay in reaching a conclusion. The Commission underscored once more that it had not yet reached a decision in this case, but that it is taking all the necessary measures to be able to adopt a decision as soon as possible. The Commission will inform the complainants of all relevant decisions it might take in the near future.

Public participation

The Ombudsman decided to open this own initiative inquiry, after having received 44 formal complaints and nearly 5 800 communications from citizens concerning the port of Granadilla. Taking into consideration the public attention raised by this situation and in order to foster transparency and better serve the interests of citizens, the Ombudsman decided to publish his opening letter and the Commission's opinion on his web site.

Once his inquiry was underway, the Ombudsman also received numerous communications from citizens, expressing their support for the construction of a port in Granadilla which, in their view, should greatly benefit the economic situation of the island of Tenerife.

Having considered the large number of communications received from the public, and in order to clarify the aim of his own-initiative, the Ombudsman issued a press release on 14 February 2006, in which he explained the reasons for his inquiry and underlined that it did not relate to the merits of the planned port in Granadilla, or whether or not it should be carried out, but aimed solely to investigate the actions of the Commission, in its role as Guardian of the Treaty.

The Ombudsman has not received any observations regarding the Commission's opinion on this matter.

THE DECISION

1 Commission's position on the complaints concerning the port of Granadilla

1.1 The Ombudsman decided to open an own initiative inquiry into the Commission’s role as guardian of the Treaty in relation to the development of an industrial harbour by the Spanish authorities in the city of Granadilla, on the island of Tenerife (Spain). In making the decision to launch an own-initiative inquiry, the Ombudsman took into account that the large number of complaints received on this situation indicated significant public dissatisfaction with the Commission’s actions and that it would therefore be useful for the Commission to explain its position to the public.

According to the complainants, the Commission had been dealing with a number of “Article 226” complaints concerning this issue. Also according to the complainants, the Commission had concluded that the development would not be contrary to existing Community law, in particular Article 6 (4) of the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora(2) (“the Habitats Directive”). The complainants argued, in general terms, that the Commission had failed to consider the existence of possible alternative solutions to the proposed development.

1.2 The Commission argues that it had not yet taken a decision with regard to infringement complaint 2002/5081, as its services are still assessing the project.

The Commission explains that, since the presence or absence of alternatives to the project is a relevant issue that will have an influence on the final opinion of the Commission pursuant to Article 6 (4) of the Habitats Directive, the Commission undertook to thoroughly consider this aspect and deliver an opinion that will cover the assessment of the ecological values likely to be affected by the project, the relevance of the imperative reasons invoked, and the balance of these two opposed interests, as well as an evaluation of the compensation measures.

The Commission underlines that it is taking all the necessary measures to reach a decision as soon as possible, and that it will inform the complainants.

1.3 The Ombudsman notes that, in its role of Guardian of the Treaty under Article 211 of the EC Treaty, the Commission has to ensure that Community law is applied.

In carrying out its duty, the Commission investigates possible infringements of Community law which come to its attention largely as a result of citizens' complaints. If as a result of its inquiry, the Commission considers that a Member State has failed to fulfil its obligations under the Treaty, Article 226 gives it the power to start infringement proceedings against the responsible Member State and, eventually, to bring the matter before the European Court of Justice.

1.4 The procedures to be followed by the Commission in its handling of complaints are set out in a Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(3).

As regards the possible outcome of the Commission's investigation, the Communication establishes in Article 8 of its Annex the following:

"As a general rule, Commission departments will investigate complaints with a view to arriving at a decision to issue a formal notice or to close the case within not more than one year from the date of the registration of the complaint by the Secretary-General.

1.5 From the available information, it appears unquestionable that the Commission has not yet concluded its investigation into this matter, and that its services are currently evaluating the situation with a view to reaching shortly a decision which takes account of both the factual situation and the legal obligations laid down in Article 6 (4) of the Habitats Directive.

In view of the fact that the Commission’s opinion has adequately clarified the present situation and that the Commission has not yet made a decision to issue a formal notice or, alternatively, to close the case concerning the port of Granadilla, the Ombudsman considers that no further inquiries are needed. The Ombudsman wishes to point out that, when the Commission makes a decision, or if its decision is delayed, citizens and residents would have the opportunity to submit complaints to him if they consider that there is maladministration by the Commission.

2 Conclusion

On the basis of the Ombudsman's inquiries into the complaint, no further inquiries appear to be justified. The Ombudsman therefore closes the case.

This decision will be posted on the Ombudsman's website, in order to inform interested parties. The Ombudsman will also send a copy of this decision to the Chairman of the Committee on Petitions of the European Parliament.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS


(1) Article 226 of the EC Treaty empowers the Commission to bring proceedings against a Member State in respect of infringements of Community law. Anyone may lodge a complaint (an "Article 226 complaint") with the Commission against a Member State about any state measure or administrative practice which he/she considers incompatible with Community law.

(2) OJ L 059 of 8.03.1996, p. 63.

(3) OJ C 244 of 1.10.2002, p. 5.