The background to the complaint

1. The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the 'Aarhus Convention', or the 'Convention') was signed on 25 June 1998. It grants a number of rights to the public with regard to the environment, such as the right of access to environmental information, the right to participate in the environmental decision-making process and the right of access to justice for the review of decisions taken in violation of the aforementioned two rights or which are in breach of general environmental law.

2. The Aarhus Convention entered into force on 30 October 2001. All the Member States of the European Union are parties to the Convention. The European Community (now European Union) became a party in 2005[1].

3. Article 15 of the Aarhus Convention provides that "the Parties shall establish... optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention." On this basis, a Compliance Committee was elected in October 2002. The Compliance Committee, composed of international legal experts, receives communications concerning the possible non-compliance of individual Parties with the Convention and is empowered to examine the merits of the case. It cannot adopt binding decisions, but it can only propose draft recommendations when it makes a finding of non-compliance.

4. On 2 March 2009, the complainant, a Spanish environmental NGO, submitted a communication to the Aarhus Compliance Committee concerning the breach of certain provisions of that Convention by Spain. The communication was registered under reference number ACCC/C/2009/36.

5. In its communication, the complainant referred to the "increasingly polluting industrial activity in Extremadura" and provided "some general information on its efforts to access information held by the local authorities and concerning waste disposal activities. However, his[2] communication focuse[d] on alleged non compliance by [Spain] with regard to two projects", a distillery and an oil refinery in Extremadura[3]. The complainant mentioned the difficulties it encountered in accessing environmental information concerning these projects, and added that, in its view, such difficulties rendered the public consultation process devoid of meaning. It also mentioned the insulting remarks which the local authorities made publicly against some of its members, for trying to prevent these allegedly environmentally harmful projects from being carried out[4]. The complainant also stated that it was denied free legal aid, and that it therefore could not challenge the administrative wrongdoings before a court of law.

6. In the complainant's view, these circumstances amounted to a failure by Spain to fulfil some of the obligations imposed on it by the Convention, such as (i) avoiding harassment of the public for exercising rights conferred by the Convention, (ii) ensuring the right of access to environmental information, (iii) ensuring the right to public participation in the environmental decision-making process and (iv) ensuring the right to judicial review of decisions concerning requests for access to environmental information.

7. In July 2010, the Compliance Committee found that (i) "as a result of public authorities not making the requested environmental information available unless an interest [was] stated" by the requester, Spain failed to comply with Article 4(1) of the Convention[5]; (ii) "as a result of public authorities not responding or delaying response to requests for environmental information, and without notifying the requester that a.. delay [was] needed along with reasons for that delay", Spain infringed Article 4(2) of the Convention[6]; (iii) the "public authorities did not allow for access to information in the form requested, and did not provide copies" and as a result, Spain failed to comply with Article 4(1)(b) in conjunction with Article 6(6) of the Convention[7]; (iv) the "public authorities set inhibitive conditions for public participation" and as a result, Spain failed to comply with Article 6(3)[8] and 6(6)of the Convention; (v) "local authority officials insulted the communicant publicly in the local mass media for its interest in activities with potentially negative effects on the environment" and thus Spain failed to comply with Article 3(8) of the Convention[9]; (vi) "by failing to consider providing appropriate assistance mechanisms to remove or reduce financial barriers to access to justice to a small NGO", Spain failed to comply with Article 9(5) of the Convention[10], and failed to provide for fair and equitable remedies, as required by Article 9(4) of the Convention[11]. The Compliance Committee also stressed that maintaining a system that would lead to prohibitive expenses would amount to non-compliance with Article 9(4) of the Convention.

8. The Compliance Committee thus recommended that Spain take adequate measures to remedy the above failures.

9. On 19 July 2010, the complainant filed an infringement complaint with the European Commission. It quoted the findings of the Aarhus Compliance Committee, as summarised above. In its opinion, these findings proved that Spain had "blatantly and obviously infringed the provisions of the Aarhus Convention". The complainant took the view that the Commission should take action, given that the said infringements were, at the same time, infringements of Council Decision 2005/370/EC.

10. The Commission informed the complainant, on 29 July 2010, that its infringement complaint had been registered under reference CHAP(2010)02282. It also informed the complainant that it would analyse the complaint and duly inform it of its conclusions and of the subsequent infringement proceedings, if any.

11. On 29 November 2010, the complainant wrote to the Commission expressing its surprise that, five months after its infringement complaint, the Commission had still not finished examining it. The complainant stated that the Commission could only take one of the following two stances: it could either agree with the findings of the Compliance Committee and therefore it would have to decide upon the necessary measures to put an end to the infringement of the Convention by Spain, or it could disagree with the Committee, and it would then have to challenge its findings according to the procedure foreseen by the Aarhus Convention. The complainant emphasized that, although the Compliance Committee's conclusions referred to the concrete case brought to its attention, "in fact, they amount to findings of a general infringement [by Spain] of the principles on which the Convention is based." The complainant went on to quote paragraphs of the Aarhus Compliance Committee's resolution and to give details of the facts that led it to send its communication to the latter Committee.

12. Finally, the complainant referred to some questions put to the Commission by several MEPs, concerning the planned oil refinery in Extremadura. According to the complainant, despite the findings of the Aarhus Compliance Committee that the public consultation process for that project had not been appropriate, the Environmental Impact Assessment was still being carried out. In reply to the MEPs' questions, the Commission stated that it had closed its investigation concerning that issue because, since the project was not yet formally adopted, there could be no infringement of EU law. In the complainant's view, the Commission's position was wrong.

13. On 10 December 2010, the Commission sent a pre-closure letter to the complainant, informing it that it was in the process of performing a horizontal overview of Directive 2003/35/EC[12] and of the application of the Aarhus Convention in the Member States. The Commission stated that, in its review, it had already taken into account some of the aspects reported by the complainant (access to justice, excessive costs, etc.), and would also take into account the recommendations which the Compliance Committee made following the complainant's communication.

14. As regards the alleged violation of the right of access to environmental information, the Commission stated that, as mentioned in its 2009 Annual Report on Monitoring the application of EU law[13], in those cases where EU legislation foresees specific enforcement measures, as is the case with environmental regulations, the Commission would "focus its activity on the correct implementation of those processes, reviewing and reporting on their functioning and effectiveness for their purposes, refraining from substituting its own action for their use to avoid undermining their role" (translation from the original Spanish). The Commission provided the complainant with a link to the said Annual Report. Finally, it informed the complainant that, unless new evidence was produced, it intended to close the infringement complaint within four weeks.

15. On 25 January 2011, the Commission informed the complainant that it had closed infringement complaint CHAP(2010)02282.

16. Since it considered that the Commission's position was unsatisfactory, the complainant turned to the Ombudsman.

The subject matter of the inquiry

17. In its original complaint, the complainant alleged that the Commission failed to open an infringement procedure against Spain concerning all the findings which the Aarhus Compliance Committee reported in its recommendation ('initial allegation'). It claimed that the Commission should open an infringement procedure concerning the entirety of its infringement complaint ('initial claim').

18. In the course of the inquiry, the complainant's initial allegation and claim were reformulated and replaced as follows:

Allegations:

1. The Commission failed to provide a sufficient statement of reasons for closing the part of infringement complaint CHAP(2010)02282 concerning the right of access to environmental information.

2. The Commission failed to address the complainant's argument concerning the alleged harassment of citizens who make use of their rights under the Aarhus Convention.

Claims:

1. The Commission should re-open the part of infringement complaint CHAP(2010)02282 concerning the right to access to environmental information.

2. The Commission should also address the complainant's argument concerning the alleged harassment of citizens who make use of their rights under the Aarhus Convention.

19. In its observations on the Commission's opinion, the complainant pointed out that at no point did the institution refer to the questions put to it by several MEPs concerning the oil refinery project in Extremadura. It considered that the Commission should have changed its position on the matter, along the liners summarised in paragraph 12 above. Given that this issue does not form part of the Ombudsman's inquiry, he will not take a position in this respect. If the complainant wishes to challenge before the Ombudsman the Commission's position as regards the Extremadura oil refinery, it is free to submit a specific complaint in this regard.

The inquiry

20. The Ombudsman's inquiry consisted of two steps.

21. As a first step and with an eye to finding a rapid solution to the complainant's initial allegation and claim, the Ombudsman's services contacted the Commission's relevant services by telephone and e-mail on 26 January 2011. The Ombudsman's services asked the Commission's services to complement the explanations already provided to the complainant concerning the reasons for closing infringement complaint CHAP(2010)02282. As a result, on 2 February 2011, the Commission wrote to the complainant and forwarded a copy of its letter to the Ombudsman. The complainant subsequently informed the Ombudsman, on 10 February 2011, that it was not satisfied with the explanations provided by the Commission thus far.

22. On 11 April 2011, the Ombudsman proceeded to the second step of the inquiry. He reformulated the complainant's initial allegation and claim and included in the inquiry the allegations and claims described in paragraph 18 above. The Ombudsman asked the Commission for an opinion on the rephrased allegations and claims. On the same date, the Ombudsman informed the complainant of this step and explained that he did not find grounds to conduct an inquiry into the remainder of its submissions against the Commission, because the latter had properly dealt with them in its reply of 2 February 2011.

23. The Commission submitted its opinion on 19 July 2011. The Ombudsman forwarded that opinion to the complainant on 21 July 2011, with an invitation to submit observations, which it did the following day.

The Ombudsman's analysis and conclusions

A. Allegation of failure to provide a sufficient statement of reasons for closing the part of infringement complaint CHAP(2010)02282 concerning the right of access to environmental information and related claim

Arguments presented to the Ombudsman

24. The Commission's arguments were submitted in the reply sent to the complainant in the first stage of the inquiry and in the opinion sent to the Ombudsman on 19 July 2011. As regards the complainant, its arguments were submitted in its observations dated 10 February 2011 to the reply sent by the Commission, and in its observations dated 22 July to the Commission's opinion.

25. In its reply to the complainant dated 2 February 2011, the Commission recalled that Articles 6(1) and 6(2) of Directive 2003/4/EC[14] provide that a person who considers that his/her request for access to environmental information has not been handled properly must have access to "a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law" (the 'administrative review') and "a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final" (the 'judicial review'). The Commission stated that Spain had correctly transposed those provisions into its national law[15]. As a result, the Commission went on to say, the complainant had access to national remedies against the wrong handling of its request for environmental information.

26. The Commission took the view that the complainant's infringement complaint had not shown that it had made use of those remedies. The Commission further pointed out that national judges are entrusted with the power to review the legality of administrative conduct at national level, and that the Commission should only examine whether the remedies at the disposal of citizens function properly.

27. In its observations on the Commission's reply referred to above, the complainant put forward that the Commission erred when it stated that the complainant had not made use of the national remedies available to it. On the contrary, the complainant believed that it was clear from the findings of the Aarhus Compliance Committee attached to its infringement complaint that it had exhausted the means of administrative review and was denied access to judicial review on two occasions. The complainant stated that it had also turned to the Spanish Ombudsman, who closed the case without identifying any breach of citizens' rights by the Spanish authorities.

28. In its opinion, the Commission stated that it always follows with great interest both the communications submitted to the Compliance Committee and the latter's deliberations. It went on to add that, as a general practice, it carefully considers the elements contained in the Committee's findings when deciding whether it should take any action against the Member State concerned. In the present case, however, the main issues, including the one concerning access to environmental information, were already being examined in the framework of an ongoing investigation being carried out by the Commission. In the course of that investigation, it had requested Spain to provide information concerning review procedures in environmental cases and, in particular, the "judicial protection of public participatory rights" in environmental issues.

29. For this reason, the Commission, notwithstanding the complainant's wish, did not propose to launch a new investigation specifically focused on the findings of the Aarhus Compliance Committee relating to the complainant's case. However, it stated that it would take account of those findings in its above-mentioned ongoing investigation and consider them as "further material to underpin the arguments presented" in that framework.

30. As regards the issue whether the complainant exhausted the internal remedies available under national law for protecting the right of access to environmental information, the Commission maintained its view that it had not. The Commission took the view that neither the Aarhus Convention, nor Directive 2003/4/EC imposes the obligation to provide access to justice in these cases free of charge. According to its own statements and to the findings of the Aarhus Compliance Committee, the complainant had only been denied free access to justice, but not access to judicial remedies as such. Therefore, the Commission maintained its position, expressed in its reply of 2 February 2011 to the complainant, that the latter did not provide any information that would allow the Commission to conclude that it had exhausted all available domestic remedies.

31. In conclusion, the Commission stated that, although it has closed the complainant's infringement complaint, there is an ongoing general investigation concerning the issues raised by it, in which the information it has provided will be taken into account. The Commission undertook to inform the complainant of the outcome of that ongoing investigation.

32. In its observations on the Commission's opinion, the complainant put forward that, in taking the view set out above regarding access to judicial remedies, the Commission ignored the Compliance Committee's findings concerning the Spanish system of legal aid. The Committee found that the Spanish system of legal aid, as applicable to NGOs, is very restrictive for small NGOs and is contradictory. The Spanish system allowed legal aid to be granted to "public utility entities". However, in order for an entity to be considered as such, it had to fulfil stiff financial requirements, which challenged "the inherent meaning of free legal aid, which aims to facilitate access to justice for the financially weaker". The Committee thus concluded that Spain did not establish the appropriate assistance mechanisms to remove or reduce financial barriers to access to justice and to ensure fair and equitable remedies.

The Ombudsman's assessment

33. At the outset, the Ombudsman recalls the well established case-law of the Court of Justice of the EU, according to which the Commission is not obliged to open infringement proceedings against a Member State, since in this matter it disposes of discretionary powers. These discretionary powers exclude the right of citizens to request the Commission to adopt a certain position[16]. The Commission is also entitled to decide upon the most appropriate procedure to manage such proceedings.

34. However, the Ombudsman underlines that principles of good administration require the Commission not to exercise its discretion arbitrarily. This means that the Commission should first explain to complainants in infringement cases why one course of action, as opposed to another, was chosen, and second, should ensure that the complainants' procedural rights granted by the Commission itself in its Communication to the European Parliament and the European Ombudsman of 2002[17] are respected.

35. It follows that complainants have the right to be informed of the reasons that led the Commission to reject a complaint and to close an infringement procedure. Those reasons must not only be correct, but they must also be clear and unequivocal[18]. As the Ombudsman has previously stated, by providing an adequate explanation for its discretionary decisions, the Commission can improve relations with citizens, increase its legitimacy and strengthen its effectiveness as guardian of the Treaties[19].

36. In the present case, the Commission clearly explained in its opinion that it has included the issue of access to environmental information in its ongoing investigation concerning Spain. It further pointed out that it has already requested information from the Spanish authorities concerning review procedures and, in particular, judicial protection.

37. It is therefore clear that the Commission is in fact dealing with the complainant's concerns regarding access to environmental information in Spain, although it did not open a separate investigation into its particular infringement complaint. The Commission has, in addition, formally undertaken to take into account the elements submitted by the complainant and the Aarhus Compliance Committee's findings in its ongoing investigation. This statement alone is sufficient to contradict the complainant's position that the Commission has ignored the findings of the Aarhus Compliance Committee.

38. In this regard, it should be recalled that the Commission's role as guardian of the Treaties is to ensure the Member States' compliance with EU law, and not to address the individual situation of complainants. A general investigation concerning the relevant issues in Spain appears to constitute a perfectly well-adapted means to fulfil that objective and its very existence explains why it may not be necessary to open another investigation into the same issue, based on an individual case. This does not however infringe the complainant's individual rights. Indeed, if the Commission were to take the ongoing general procedure to the judicial stage, any eventual decision on the general application of the EU provisions in question could be used by the complainant before the competent national courts. The complainant could thus seek the "general" judgment's enforcement with regard to the individual situation which was the object of its specific complaint.

39. Therefore, the Ombudsman takes the view that the Commission has, in its opinion, provided the complainant with an appropriate statement of reasons for its decision to close the complainant's infringement complaint as regards the right of access to environmental information. The Ombudsman regrets, however, that the Commission did not provide these explanations in its pre-closure letter of 10 December 2010 and in its reply to the complainant of 2 February 2011 in as a clear and complete a manner as it did in its opinion on the present complaint.

40. On the other hand, the Ombudsman notes that, in handling the complainant's infringement complaint, the Commission adequately followed the proper procedural steps and complied with "the administrative measures for the benefit of the complainant" foreseen in its Communication of 2002.

41. In the first place, the Commission: (a) registered the infringement complaint, acknowledged its receipt and informed the complainant of the case number within ten calendar days of receipt of the complainant's letter dated 19 July 2011 (points 3[20] and 4[21] of the Communication); (b) decided upon the outcome of the case within six months of its registration (point 8[22] of the Communication); (c) gave the complainant prior notice of its intention to close the case and granted it four weeks to put forward its views on that decision (point 10[23] of the Communication); and, finally, (d) informed the complainant in writing of the closure of the case (point 9[24] of the Communication). In particular, as regards registration, the Ombudsman is pleased to note that the Commission's approach is in line with the commitments it undertook in the framework of the Ombudsman's own-initiative inquiry OI/3/2009MHZ[25].

42. The Ombudsman also trusts that the Commission will not only inform the complainant of the final outcome of its ongoing general investigation, as it undertook to do in its opinion, but also of each new step taken in relation to the general investigation pursuant to point 7 of the Communication. Doing so would be constructive and citizen-friendly. In this respect, the Ombudsman will make a further remark below.

43. In light of the above, the Ombudsman considers that no further inquiries are justified as regards the complainant's first allegation and first claim.

B. Allegation of failure to address the argument relating to the alleged harassment of citizens who make use of their rights under the Aarhus Convention and related claim

Arguments presented to the Ombudsman

44. In its observations on the Commission's reply, dated 10 February 2011 and forwarded to the Ombudsman in the framework of the first stage of his inquiry, the complainant emphasized that the Commission never addressed the issue concerning Spain's breach of the provision in the Aarhus Convention prohibiting the harassment of citizens who exercise their rights under that Convention. The complainant pointed out that this breach had been identified by the Compliance Committee. It went on to indicate that it was the first time that the Compliance Committee had concluded that a state harassed its citizens for exercising environmental rights. The complainant finally put forward that "the European Union should be ashamed for being the first [Party] found guilty of that..." (translation from the original Spanish version).

45. In its opinion on the complaint, the Commission stated that it did not specifically address that matter because "[it] is a general issue which is not covered by EU environmental legislation." Moreover, it mentioned that there are several legal and administrative measures available in Spain to protect individuals from penalisation, persecution or harassment for their involvement in matters covered by the Convention, such as disciplinary provisions applicable to civil servants or constitutional provisions against discrimination. The Commission also pointed to measures of more general application, also mentioned by the Compliance Committee, such as the criminalisation of harassment or the procedural possibility to lodge a complaint with the administration or the Public Prosecutor, Police or Trial Court in this regard. The Commission concluded by saying that in Spain, "[a]s in the majority of the Member States, harassment concerning environmental rights is not treated in a separate jurisdiction to any other type of harassment."

46. In its observations, the complainant noted that the arguments which the Commission put forward in its opinion were the same as those invoked by Spain before the Aarhus Compliance Committee, which, according to the complainant proceeded to reject them.

47. The complainant took the view that Article 3(8) of the Aarhus Convention[26] should be interpreted as obliging the Parties to the Convention "to initiate the relevant legal proceedings in order to protect [citizens who use their rights derived from the Convention] and correct the unlawful behaviour of those administrations which harassed or persecuted them." It considered that this is also the interpretation given to that provision by the Aarhus Compliance Committee, which found that "local authority officials insulted the communicant publicly in the local mass media for its interest in activities with potential negative effects on the environment, and thus ... the Party concerned failed to comply with article 3, paragraph 8 of the Convention." In the complainant's view, Spain is liable for not taking the appropriate measures in order to put right the behaviour of the local authority officials criticised in the Committee's findings.

48. Finally, the complainant considered that the Commission has "taken the liberty to transform itself into a higher court which tries to delegitimize the decisions" adopted by the Aarhus Compliance Committee. It put forward that, in order to depart from the Committee's findings, the Commission should have followed the procedure established by Article 16 of the Aarhus Convention regarding the settlement of disputes[27].

The Ombudsman's assessment

49. As the complainant itself mentions in its letter to the Commission dated 29 December 2010, the Aarhus Compliance Committee ruled on the concrete and individual case of the complainant. In particular, as regards the issue of harassment, the Committee assessed the concrete situation resulting from the fact that public authorities in the complainant's town harassed its members for exercising environmental rights. The Ombudsman understands that the Committee found that Spain's breach of the Aarhus Convention consisted precisely in that instance of harassment engaged in by a public authority.

50. The Ombudsman therefore does not understand the complainant's statement that the Commission has rejected the Compliance Committee's findings, inasmuch as the Commission did not deny, at any point, that the harassment identified in the Compliance Committee's findings may have occurred. Moreover, the Ombudsman wishes to recall that, in any case, the Commission is not called upon to take a stance on individual cases, but on the general issue of whether a Member State is compliant with EU law.

51. Moreover, the Ombudsman does not share the complainant's view that Article 3(8) of the Aarhus Convention obliges the State itself to pursue potential cases of harassment; nor does he see arguments to support that view in the text of the Convention or of the Compliance Committee's findings.

52. In any event, the Ombudsman considers that the Commission has duly reasoned its position on this matter, namely, that the Aarhus Convention does not require specific means of redress to be put in place in instances where, having exercised their environmental rights, citizens become the object of harassment. He also notes that, in Spain, there are a number of general remedies, judicial and non-judicial, available to the complainant and to others in the same situation as itself. Therefore, he does not find any instance of maladministration in the Commission's behaviour as regards the complainant's second allegation and second claim.

C. Conclusions

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

The Ombudsman has not found an instance of maladministration by the Commission as regards the complainant's second allegation and second claim. He considers that no further inquiries are justified into the complainant's first allegation and first claim.

Further remark

The Ombudsman trusts that the Commission will not only inform the complainant in due time of the final outcome of its ongoing investigation concerning environmental matters in Spain, but also of each new step taken in relation to that investigation. By doing so, the Commission would comply with point 7 of the 2002 Communication and, at the same time, would act in a constructive and citizen-friendly manner. This would set an example of good administration.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 17 November 2011

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[1] Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, OJ 2005 L 124, p.1.

[2] That is, the complainant's representative.

[3] Source of this information: advance English language copy of the Committee's findings concerning the complainant's communication, sent to it on 12 July 2010, paragraph 18. The document was provided to the Ombudsman by the complainant.

[4] The local authorities accused the members of the complainant NGO in the media of being "manipulators", "ignorant" and of "looking for publicity with unfounded accusations".

[5] "Each Party shall ensure that... public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation..:

(a) Without an interest having to be stated;

(b) In the form requested..."

[6] "The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension ..."

[7] "Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure..."

[8] "The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making."

[9] "Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings."

[10] Article 9 of the Aarhus Convention: "1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law...

5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice."

[11] "In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive..."

[12] Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, OJ 2003 L 156, p.17.

[13] http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_27/com_2010_538_en.pdf

[14] Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ 2003 L41, p.26.

[15] Law 27/2006, of 18 July [2006] concerning the right of access to information, public participation and access to justice in environmental matters (translation from Spanish).

[16] Cases 247/87 of 14 February 1989, Star Fruit v Commission [1989] ECR 291, paragraph 11; C-59/96 P of 16 September 1997, Koelman v Commission [1997] ECR I-4809, paragraph 58; C-422/97 P of 17 July 1998, Sateba v Commission [1998] ECR I-4913, paragraph 42; T-202/02 of 14 January 2004, Makedoniko v Commission [2004] ECR II-181, paragraph 46; C-171/05 P of 23 February 2006, Piau v Commission [2006] paragraph 53; T-375/07 R of 7 January 2008, Pellegrini v. Commission [2008] paragraph 26.

[17] Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community Law, OJ 2002 C 244, p. 5.

[18] Ombudsman's decision in case 1528/2006/(GG)(WP)VL, paragraph 120.

[19] Ombudsman's decision in case 1623/2009/TS, paragraphs 25-27.

[20] "Any correspondence which is likely to be investigated as a complaint shall be recorded in the central registry of complaints kept by the Secretariat-General of the Commission."

[21] "The Secretariat-General of the Commission shall issue an initial acknowledgement of all correspondence within fifteen working days of receipt.

Correspondence registered as a complaint shall be acknowledged again by the Secretariat-General within one month from the date of despatch of the initial acknowledgement. This acknowledgement shall state the case number of the complaint..."

[22] "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 registration of the complaint by the Secretariat-General."

[23] "... where a Commission department intends to propose that no further action be taken on a complaint, it will give the complainant prior notice thereof in a letter setting out the grounds on which it is proposing that the case be closed and inviting the complainant to submit any comments within a period of four weeks."

[24] "Complainants will be informed in writing of the decision taken by the Commission in connection with their complaint and any subsequent Commission decisions on the matter..."

[25] In that case, the Commission's initial position was that, in infringement complaints relating to access to environmental information in Member States, it would not even register a letter as a complaint unless national remedies had been exhausted. Following the Ombudsman's invitation to reconsider this position, the Commission stated that, unless the relevant national review mechanisms have been exhausted, it is generally inappropriate "to treat correspondence concerning access to environmental information refusals in Member States as a complaint requiring Commission contact with the national authorities." However, the Commission agreed to register letters concerning these matters as infringement complaints, where such registration is appropriate, and to make it clear to the complainant, upon registering the complaint in the CHAP, that no further investigation will ensue unless the complainant provides evidence that national remedies have been exhausted.

[26] "Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalised persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings."

[27] "1. If a dispute arises between two or more Parties about the interpretation or application of this Convention, they shall seek a solution by negotiation or by any other means of dispute settlement acceptable to the parties to the dispute. 2.... a Party may declare in writing to the Depositary that, for a dispute not resolved in accordance with paragraph 1 above, it accepts one or both of the following means of dispute settlement as compulsory in relation to any Party accepting the same obligation:

(a) Submission of the dispute to the International Court of Justice;

(b) Arbitration in accordance with the procedure set out in annex II."