THE BACKGROUND TO THE COMPLAINT

1. The complaint was submitted by the spokesman of the citizen's initiative Plattform gegen Großkraftwerk Klagenfurt-Ost, which is campaigning against a new gas-steam power plant in Klagenfurt. This new power plant is supposed to replace the old power plant in Klagenfurt (the 'FHKW'). The complaint concerns the European Commission's handling of a complaint alleging that Austrian authorities infringed EU law in relation to the FHKW (complaint reference SG/CDC/2007/A/5384).

2. The said infringement complaint was lodged with the Commission by the municipality of Ebenthal on 3 July 2007. The municipality alleged that, in relation to the FHKW, the Republic of Austria was infringing Article 10 of the EC Treaty (now Article 4(3) of the Treaty on European Union) in conjunction with Articles 3, 5, 8, 13 and 15 of Council Directive 96/61/EC[1] (the 'IPPC Directive'). The municipality was initially represented by Mr L., a lawyer, who was later replaced by Mr U., another lawyer.

3. The IPPC Directive obliges the operators of industrial installations in the Member States to minimise pollution. The relevant operators are thus required to obtain a permit (the 'IPPC permit') from the authorities in their respective Member State. In its infringement complaint, the municipality of Ebenthal argued that the operation of the FHKW was not in line with the IPPC Directive.

4. On 7 August 2007, Mr L. sent a letter to the Commission, urging it to take action prior to the next heating season.

5. On 23 June 2008, Mr L. sent a further letter to the Commission concerning the infringement complaint. He pointed out that national administrative remedies had been exhausted, and asked for information on the status of the infringement complaint.

6. On 9 January 2009, the complainant turned to the Ombudsman (complaint 194/2009/VL). He pointed out that several letters had been sent to the Commission, in particular during the heating seasons in 2007 and 2008, urging it to act. The complainant considered that the Commission should have acted more rapidly. In addition, he put forward a number of arguments relating to the substance of the infringement complaint. However, he did not include any supporting evidence to substantiate his case. Therefore, the Ombudsman did not find sufficient grounds for an inquiry and closed the case on 16 February 2009. Nevertheless, the Ombudsman informed the complainant that he could renew his complaint, provided that he submitted sufficient supporting evidence and the relevant correspondence with the Commission.

7. On 24 February 2009, the complainant renewed his earlier complaint and included documentary evidence.

THE SUBJECT MATTER OF THE INQUIRY

8. In his complaint to the European Ombudsman, the complainant put forward the following allegations:

1. The Commission failed to handle the infringement complaint SG/CDC/2007/A/5384 within a reasonable period of time.
2. The Commission should have taken legal action against the Republic of Austria on the basis of the infringement complaint SG/CDC/2007/A/5384.

9. The complainant claimed that the Commission should deal with the complaint more rapidly.

10. The complainant's second allegation related to the substance of the infringement complaint. However, since the Commission's position regarding the FHKW power plant was not clear at the time the present complaint was submitted, the Ombudsman considered that there were insufficient grounds to include the second allegation in his inquiry at that time. Consequently, an inquiry was only opened into the complainant's first allegation and the claim.

THE INQUIRY

11. On 27 April 2009, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint.

12. By letter of 3 June 2009, Mr U. informed the Ombudsman that he was acting as the complainant's lawyer.

13. The Commission sent its opinion on 13 July 2009. The opinion was forwarded to the complainant and his lawyer with an invitation to make observations.

14. On 24 November 2009, given that the Ombudsman had received no observations, his services inquired with the complainant’s lawyer whether he intended to submit any observations. Mr U. confirmed that this was the case and, on 11 December 2009, submitted observations on behalf of the complainant.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

15. The complainant’s first allegation is closely related to his claim. It is thus appropriate to examine them together.

A. Allegation of the failure to handle the infringement complaint SG/CDC/2007/A/5384 within a reasonable period of time and related claim

Arguments presented to the Ombudsman

16. The complainant alleged that the Commission failed to deal within a reasonable period of time with the infringement complaint submitted by the municipality of Ebenthal and claimed that it should deal with it as rapidly as possible.

17. In its opinion, the Commission pointed out that it received a complaint from the municipality of Ebenthal in 2007. The complaint was supported and subsequently complemented by contradictory expert opinions, which put forward arguments for and against the compatibility of the FHKW with Community law.

18. As regards its subsequent correspondence with the municipality of Ebenthal or its representatives, the Commission provided the following explanations.

19. In its reply of 25 October 2007, it explained that there were insufficient grounds for opening infringement proceedings against Austria. The limit values for PM₁₀, SO₂ and NO_x that were laid down in the "Best Available Techniques Reference" ('BREF') document on large combustion plants of July 2006[2] could, at that stage, not be considered as legally binding.

20. On 11 July 2008, the Commission replied to a further letter from Mr L. dated 23 June 2008. In this letter, the Commission noted that, in order to assess the case further, it would need to receive additional documents, in particular expert opinions mentioned in earlier correspondence and the final decision of the Independent Administrative Court of Kärnten which had been seized of the matter.

21. In a further letter, which was erroneously dated 23 June 2008, but referred to the Commission's letter of 11 July 2008, Mr L. informed the Commission that an action had been filed with the Constitutional Court and with the Higher Administrative Court concerning the decision of the Independent Administrative Court of Kärnten, as well as the decision of the city of Klagenfurt on the renewal of the permit for the FHKW. However, Mr L. did not make any further reference to the Commission's request for additional documents contained in its letter of 11 July 2008.

22. On 13 January 2009, Mr U. informed the Commission that he had taken over the legal representation of the municipality of Ebenthal. He added that a further complaint to the Independent Administrative Court of Kärnten had resulted in a decision according to which the FHKW could continue operating until 2015. In addition, he informed the Commission that the case before the Constitutional Court of Austria was still pending.

23. On 30 January 2009, the Commission reminded Mr U. that it had still not received the documents it had requested and that it would like to receive a coherent description of all legal actions taken until that time at the national level, as well as their outcomes, given that the information previously received appeared inconsistent and incoherent. Furthermore, it provided a detailed explanation as to why, on the basis of the information received, it considered that there were no reasonable grounds for assuming that the IPPC Directive had been infringed.

24. On 10 and 17 February 2009, Mr U. sent the Commission two expert opinions that had been used in the proceedings before the Independent Administrative Court of Kärnten. He explained that the judgments of that court were not yet accessible. He further confirmed that actions before the Constitutional Court, as well as the Higher Administrative Court, were still pending.

25. In a further letter dated 27 March 2009, the Commission explained that the information it had received in the meantime did not justify a change in its position outlined in its letter of 30 January 2009.

26. Given that the information received was either unclear or incomplete, the Commission asked Mr U., by e-mail dated 20 March 2009, whether the present IPPC permit for the FHKW was valid under Austrian law. The Commission noted that, at the time it prepared its opinion on the present complaint, it had not received a reply to that e-mail. It pointed out that, in his letter of February 2009, Mr U. had stated that "for the time being it must be assumed" that the power station was operating without a valid permit. However, it followed from a submission made by Mr U. to the Austrian Constitutional Court on 5 January 2009 that, in fact, he did not know whether the power station was operating without a valid permit.

27. The Commission stated that it would have to open infringement proceedings if the FHKW was not operating on the basis of a valid IPPC permit. However, since the municipality of Ebenthal had not answered the above question, the Commission had no reason to doubt that the power plant was operating on the basis of a valid permit.

28. The Commission considered that it had addressed the municipality of Ebenthal's queries properly and in a timely fashion, based on the information submitted. It further submitted that it had taken all necessary steps to pursue the file submitted by the municipality of Ebenthal's lawyers and sent timely replies to their queries. The Commission highlighted that it had also explained in detail why, on the basis of the information provided, there were insufficient elements to assume that an infringement of Community law had occurred.

29. In his observations, the complainant did not comment on the contents of the Commission's opinion. Instead, he provided certain information concerning the permit of the FHKW and asked for the infringement complaint to be reconsidered.

The Ombudsman's assessment

30. As a preliminary point, the Ombudsman notes that neither the complainant nor the Commission have provided him with copies of all the relevant correspondence for the present case. However, he also notes that the complainant has not disputed the detailed description of the correspondence that the Commission provided in its opinion.

31. On the basis of the evidence submitted to him, the Ombudsman takes the view that the Commission has actively and rapidly proceeded in this case. The Commission's argument that it could not take any further steps without obtaining the information it had requested on 30 January 2009 appears to be reasonable. The complainant has not argued that the relevant information has been provided to the Commission.

32. In light of the above, the Ombudsman considers that the handling of the relevant infringement case does not appear to have been unreasonably delayed by the Commission. No maladministration has therefore been found as regards the allegation and claim that were taken up for inquiry.

33. In its observations on the Commission's opinion, the complainant appears to have endeavoured to provide some of the information that the Commission requested. However, this information would have needed to be provided to the Commission, which is dealing with the relevant infringement complaint. In order to simplify matters, the Ombudsman will forward to the Commission a copy of the complainant's observations with the present decision.

C. Conclusions

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

No maladministration has been found in the present case.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 5 July 2010

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[1] Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26). This Directive was subsequently replaced by Directive 2008/1/EC (OJ 2008 L 24, p.8).

[2] Best Available Techniques Reference Document, OJ 2006 C 253, p.5.