Strasbourg, 20 March 2007

Dear Mr M.,

By letter of 26 January 2006, which was forwarded, on 31 January 2006, through the regional government of Cantabria, Spain, you submitted, on behalf of a Spanish neighbourhood association ("Coordinadora Vecinal contra la Autovía por Penagos"), a complaint against the European Commission to the European Ombudsman, concerning the Commission's failure to reply to your correspondence.

On 21 March 2006, I informed the President of the Commission of your complaint and asked him to submit an opinion by 30 June 2006.

On 27 March 2006, my services received further information from you, dated 20 March 2006, which I acknowledged on 25 April 2006. This information was forwarded to the Commission on the same date.

On 27 June 2006, the Commission sent its opinion in English. On 3 July 2006, the Commission sent a translation of this opinion into Spanish, which was forwarded to you on 6 July 2006, with an invitation to make observations.

On 8 August 2006, you sent your observations. You forwarded them again on 29 September and 6 October 2006. I acknowledged this information on 26 October 2006.

By letter of 7 February 2007, I informed you of the progress of the case, in reply to your request for information on 4 February 2007.

On 19 February 2007, you sent additional observations and on 26 February 2007, you sent additional information.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The original complaint

The complainant is a member of a Spanish neighbourhood association ("Coordinadora Vecinal contra la Autovía por Penagos", hereinafter, the "Association"). By letter of 26 January 2006, which was forwarded, on 31 January 2006, by the local government of Cantabria, Spain, he complained to the European Ombudsman against the failure of both the European Commission and the European Parliament to reply to two complaints which his Association had lodged with these institutions on 11 October 2005.

Since his complaint to the Ombudsman was addressed to two different European Union ("EU") institutions, the Ombudsman registered it under two separate reference numbers. The complaint concerning Parliament was registered under reference 748/2006/BM and the complaint regarding the Commission was registered under reference 363/2006/BM.

As regards the complaint against Parliament (reference 748/2006/BM), the Ombudsman closed the case on 4 April 2006, since he concluded that it had been settled by Parliament, which had replied to the Association on 16 December 2005. In its reply to the Association, Parliament informed it that its correspondence had been registered as a petition (1003/2005). From the available information, it appears that Parliament is currently examining the petition and that it has asked the Commission to start an investigation into the case.

In connection with the complaint against the Commission (reference 363/2006/BM), which is the subject-matter of the present decision, the facts of the case are, in summary, as follows:

On 11 October 2005, the Association lodged a complaint with the Commission. In its complaint, it alleged that the information included in an environmental impact assessment for the development of a highway section between Solares and Zurita, in Spain ("the project"), which was approved by the Spanish government in 1993, was insufficient. According to the complaint, the assessment did not take into account the project's current legal, environmental and socio-economic impact, and therefore failed to meet the standards set out in the relevant EC legislation(1). The Association asked the Commission to investigate the complaint, to take this issue to the European Court of Justice, and to ask for the suspension of the project. The complaint included several documents in support of the Association's allegations, such as an environmental study and opinions issued by regional authorities, as well as various press articles. In its letter to the Commission, the Association requested that further correspondence related to the complaint be sent to the address of one of the signatories, who was acting on behalf of the other Association members.

In the absence of any acknowledgement of receipt of the complaint by the Commission, the complainant turned to the Ombudsman.

In his complaint to the Ombudsman, the complainant alleged, in summary, that the Commission had failed to reply to the complaint lodged with its services on 11 October 2005.

Additional information provided by the complainant

By letter of 20 March 2006, the complainant informed the Ombudsman that, on 26 January 2006, the Commission had replied to the complaint lodged by the Association on 11 October 2005, and attached a copy of the Commission's reply. In its letter, the Commission explained that, after a preliminary analysis of the information submitted, it had noted that the highway section Solares-Zurita had been subject to the required environmental impact assessment and that the results of this assessment had been approved by the Spanish authorities on 28 June 1993. The Commission did not consider that the project, which had been assessed and approved thirteen years before, had infringed the applicable environmental EC rules. Therefore, it concluded that the correspondence sent by the Association should not be registered as a complaint.

The complainant attached to his letter a copy of a letter, dated 10 March 2006, which the Association had sent to the Commission in reply to its letter of 26 January 2006, and in which it objected to the Commission's conclusions. The Association argued that the environmental impact assessment had been incomplete. In particular, the environmental impact assessment had not included a public consultation process, which would have facilitated the submission of comments by interested parties and citizens. The Association reiterated its request that the Commission should investigate its complaint. It also provided new evidence, according to which the project would seriously affect a Site of Community Importance ("SCI") registered under reference ES 1300010 and infringe Directive 92/43, as a result of the Spanish authorities' failure to carry out an adequate environmental impact assessment. The Association also included a description of the above-mentioned SIC and a press release on the adjudication of the project.

THE INQUIRY

The opinion of the Commission

In its opinion, the Commission first described the facts of the case. It explained that the Association's letter had been registered on 17 October 2005. Since the letter indicated the address of one of the members for the purpose of further correspondence, the Commission, further to a detailed examination of the issues raised in the letter, informed this member, on 26 January 2006, of the reasons for the non-registration of the Association's letter as a complaint.

The Commission also explained that, on 21 March 2006, it had registered a further letter from the Association, dated 10 March 2006, acknowledging receipt of the Commission's reply and conveying further information to allow for a re-examination of the issues raised in its previous letter of 11 October 2005. The Commission explained that it was currently conducting a preliminary investigation in relation to the alleged facts and that it would inform the signatory of the letter accordingly.

As regards the complainant's allegation, the Commission took the view that since it had replied, on 26 January 2006, to the signatory of the Association's letter, in his capacity as the representative of the other co-signatories for notification purposes, it had not failed to reply to the letter addressed to its services on 11 October 2005. In its reply, the Commission referred to the conclusions on the assessment of the facts raised in this correspondence. The Commission highlighted that, in his subsequent letter of 10 March 2006, the signatory had acknowledged receipt of the Commission's letter of 26 January 2006. The Commission apologised for the delay in the reply which, it explained, was caused by both the need to assess the case and the heavy workload of its services.

The Commission clarified that it had not received any further communication from the complainant or any of the other members of the Association. In its view, the complainant's allegation had become moot given that, in March 2006, the Ombudsman had already received from the complainant a copy of the reply sent by the Commission to his Association.

The complainant's observations

In his observations of 8 August 2006, the complainant disagreed with the Commission's arguments concerning the substance of the case. The complainant submitted that the environmental impact assessment carried out in 1993 did not comply with the requirements of the relevant EC Directives. He alleged maladministration by the Commission and claimed that it should investigate the case.

The complainant stated that the Commission's reply of 26 January 2006 had been sent nearly four months after the Association had lodged the complaint, as a result of the Ombudsman's intervention. He maintained that the Commission had rejected the complaint without reasons and without appropriately considering the arguments contained therein, especially as regards the destruction of a landscape of important environmental value.

The complainant further informed the Ombudsman that, on 7 June 2006, the Commission had replied to the letter sent by his Association on 10 March 2006. In its reply, the Commission had taken the view that the documents submitted to it had not shown that the Spanish authorities were breaching Directive 92/43 as regards SCI ES 1300010. Therefore, the Commission had informed the Association that its letter could not be registered as a complaint. The Commission further asked the Association to fill in and submit a standard complaint form for violation of EC law, as well as a complementary declaration, in order to identify the alleged violations of EC environmental law. The complainant did not understand the reasons why the Commission sent a complicated complaint form and asked citizens to complete a burdensome procedure, after the Commission had rejected a complaint lodged with it by the Association. The complainant suspected that, in acting in this manner, the Commission was facilitating the starting of the construction works by the Spanish administration.

The complainant informed the Ombudsman that the complaint lodged by the Association with Parliament had been registered as a petition and that this institution was conducting an investigation into this issue. By letter of 24 March 2006, a copy of which was included with the complainant's observations, Parliament informed the Association that it had asked the Commission to start a preliminary investigation on the different aspects of the problem.

By letter of 19 February 2007, the complainant submitted further observations. In this letter, the complainant confirmed that Parliament was dealing with the above-mentioned petition. He explained that, on 10 November 2006, the Commission had provided Parliament with information about the merits of the case. On the basis of this information and in order to handle his petition properly, Parliament had, on 11 January 2007, asked him for further information about the project, which he had provided on 29 January 2007. The complainant questioned the Commission's preliminary investigation on the different aspects of the problem and reiterated his allegations of maladministration against this institution. On 26 February 2007, the complainant submitted additional evidence on the negative environmental impact of the project on several sites, in support of his allegations.

THE DECISION

1 Preliminary remarks

1.1 In his complaint of 26 January 2006, to the European Ombudsman, which was forwarded, on 31 January 2006, through the local government of Cantabria, Spain, the complainant alleged that the European Commission failed to reply to the complaint lodged with its services on 11 October 2005 by a Spanish neighbourhood Association of which he is a member ("Coordinadora Vecinal contra la Autovía por Penagos", hereinafter, the "Association").

1.2 It subsequently emerged that the Commission had replied to the Association's complaint on 26 January 2006. In its reply, the Commission had taken the view that there appeared to be no infringement of Community law. In his observations of 8 August 2006, the complainant formulated a new allegation concerning the substance of the Commission's decision of 26 January 2006, namely, that the Commission had rejected the Association's complaint without reasons and without properly considering the arguments contained therein, especially as regards the destruction of a landscape of important environmental value.

1.3 It thus appears that the complainant wishes to make a further allegation concerning the substance of the Commission's decision of 26 January 2006. The complainant reiterated this allegation in his further letter of 19 February 2007.

1.4 The Ombudsman notes, however, that he also received another complaint against the European Parliament for its failure to reply to a complaint submitted to Parliament by the Association on 11 October 2005 (reference 748/2006/BM). The subject matter of the complaint submitted to Parliament was identical to the subject matter of the complaint submitted to the Commission, which has given rise to the present inquiry. Both complaints contested the adequacy of the information included in an environmental impact assessment carried out by the Spanish authorities as regards a project for the construction of a highway section in Spain.

The Ombudsman closed the case against Parliament on 4 April 2006, since he concluded that it had been settled by this institution, which had replied to the Association on 16 December 2005. In its reply to the Association, Parliament informed it that its letter had been registered as a petition. From the available information, it appears that Parliament is currently examining the petition and that it has asked the Commission to start an investigation on the problem. In his letter of 19 February 2007, the complainant confirmed that Parliament was actively dealing with this petition.

1.5 In view of the fact that there is a petition being investigated by Parliament that concerns the same subject matter as the complainant's new allegation, there are no grounds for the Ombudsman to examine this new allegation. Should the complainant have any questions or queries concerning the submissions that the Commission has made to Parliament, he may address them to the Committee on Petitions.

2 Alleged failure to reply on the part of the Commission

2.1 The complainant alleged that the Commission had failed to reply to the complaint lodged with its services on 11 October 2005 by his Association. In this complaint, the Association had complained about the allegedly insufficient information included in an environmental impact assessment of a highway project that was approved, in 1993, by the Spanish authorities. In the Association's view, this lack of information constituted a failure to respect the relevant EC legislation.

2.2 In its opinion, the Commission argued that, on 17 October 2005, it registered the Association's letter and that, further to a detailed examination of the issues raised in this correspondence, it informed the Association, on 26 January 2006, of the reasons for the non-registration of the letter as a complaint. The Commission apologised for the delay in the reply, which was caused by both the need to assess the case and the heavy workload of the responsible services.

2.3 In his observations, the complainant maintained his complaint. He pointed out that the Commission's reply of 26 January 2006 had been sent nearly four months after the Association had lodged its complaint.

2.4 The Ombudsman notes that, on 26 January 2006, the Commission replied to the Association's letter of 11 October 2005. Therefore, the Ombudsman understands that the complainant's allegation should now be interpreted as criticizing the Commission's alleged failure to answer the Association's letter within a reasonable period of time.

2.5 The Ombudsman recalls that the European Code of Good Administrative Behaviour provides, in its Article 14(1), that

"[e]very letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period."

The Ombudsman further recalls that, according to Point 4 ("Acknowledgement of receipt"), paragraph 1, of the Commission's Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law(2) (the "Communication"),

"[t]he Secretariat-General of the Commission shall issue an initial acknowledgement of all correspondence within 15 working days of receipt".

2.6 The Ombudsman notes that the Commission has clearly not complied with its duty of acknowledging receipt of the Association's complaint of 11 October 2005. In his view, neither the need to assess the case nor the heavy workload to which the Commission refers can justify this omission.

2.7 It therefore remains to be examined whether at least the Commission's substantive reply to the Association's complaint was sent within a reasonable period of time. It should be noted that this reply was only sent on 26 January 2006, and thus more than three months after the Commission had received the Association's complaint.

2.8 The Ombudsman notes, however, that, in its reply of 26 January 2006, the Commission apologised for the delay of its reply. In these circumstances, the Ombudsman does not consider it necessary to carry out further inquiries into the complainant's allegation.

2.9 The Ombudsman notes that in its letter of 11 October 2005, the Association complained about an alleged violation of Community law by national authorities. He further notes that, in accordance with Point 3 ("Recording of complaints"), paragraph 1, of the Communication , any correspondence which is likely to be investigated as a complaint shal l be recorded in the central registry of complaints kept by the Secretariat-General of the Commission. The Communication defines a complaint as any written approach made to the Commission pointing to measures or practices contrary to Community law. Point 3 of the Communication sets out six cases in which letters addressed to the Commission do not need to be investigated as complaints and thus recorded in the central registry of complaints. It is not clear whether the Commission has respected these procedural safeguards in the present case. However, given that the complainant has not raised any allegation in this context, the Ombudsman does not have to consider these issues in the present decision.

3 Conclusion

On the basis of his inquiries into the complainant's allegation, the Ombudsman finds that no further inquiries are necessary. The Ombudsman therefore closes the case.

The Ombudsman will send a copy of this decision to the President of the Commission.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment ("Directive 85/337"), OJ 1985 L 175, p. 40; Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment ("Directive 90/337"), OJ 1990 L 158, p. 56; and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ("Directive 92/43"), OJ 1992 L 206, p. 7.

(2) OJ 2002 C 244, p. 5.