The background to the complaint

1. The complainant is a German company active in processing waste oils. According to the complainant, Germany had subsidised the burning of waste oils (as heating fuel) at least since 1993. The complainant considered this to be in complete contradiction with Article 3(1) of Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils[1], as amended by Directive 87/101/EEC of 22 December 1986[2], which provides that, "[w]here technical, economic and organizational constraints so allow, Member States shall take the measures necessary to give priority to the processing of waste oils by regeneration".

2. The complainant therefore turned to the European Commission, alleging an infringement of the above-mentioned provision by Germany. The Commission thereupon brought an action against Germany before the Court of Justice. In 1999, the Court ruled in favour of the Commission.[3] The complainant subsequently submitted a new complaint to the Commission, in which it accused the latter of not doing enough to make Germany comply with its duties under Article 3(1) of Directive 75/439/EEC and the judgment of the Court of Justice. The handling of this infringement complaint by the Commission gave rise to a complaint (1528/2006/(GG)(WP)VL) to the European Ombudsman.[4]

3. On 11 October 2007, the complainant had a meeting with two officials of the Commission's Directorate-General Environment ('DG ENV').

4. According to the complainant, these officials made the following statements on this occasion: (1) DG ENV was no longer interested in pursuing infringements of the above-mentioned provision, given that it was expected that the relevant legislation would be amended and that, as a result of this amendment, there would no longer be a duty to give priority to recycling waste oils; (2) DG Taxation and Customs Union was not interested in environmental issues.

5. On 22 May 2008, the complainant asked the President of the Commission to address these statements. In the complainant's view, DG ENV's position was outrageous. It added that the issue of compensation needed to be examined. The complainant asked the President of the Commission not to forward its letter to DG ENV, but to reply directly.

6. On 20 June 2008, DG ENV replied to the complainant. DG ENV stated that a number of "untruthful" statements made by the complainant needed to be corrected. According to DG ENV, there (a) had been no meeting between the complainant and its officials competent for the latter's case in the autumn of 2007, and (b) these officials had therefore also not made the statements to which the complainant referred. DG ENV concluded that it was therefore unable to see a legal basis for a claim for compensation.

7. On 7 July 2008, the complainant turned to the President of the Commission again, pointing out that the allegedly "untruthful" statements were correct. According to the complainant, the allegedly untruthful statements were the following: (1) the complainant had had a conversation with DG ENV in the autumn of 2007; (2) the representatives of DG ENV had declared that they were no longer interested in pursuing infringements of the relevant provision of EU law; and (3) the representatives of DG ENV had made no statements concerning tax-related problems of burning waste oils. The complainant claimed that the Commission should therefore withdraw its accusation that it, that is, the complainant, had lied.

8. On 2 December 2008, the complainant reminded the President of the Commission that he had not yet replied to the letter of 22 May 2008 and the reminder of 7 July 2008.

9. On 3 December 2008, DG ENV replied to the letter of 7 July 2008. It pointed out that it was not disputed that a meeting with officials of DG ENV had taken place. However, given that these officials were not the officials competent for the complainant's case within DG ENV, the statements made in DG ENV's letter of 20 June 2008 were correct. On 20 January 2009, DG ENV replied to the letter of 2 December 2008, referring to its reply of 3 December 2008.

10. On 13 February 2009, the complainant addressed itself to the member of the Commission in charge of environmental matters. It pointed out that the questions it had put forward in its letter of 22 May 2008 had not been addressed yet. The complainant also noted that it had been in frequent contact with officials from DG ENV and that these contacts had always included discussions on infringement issues. It therefore expressed its surprise at the fact that the opinions expressed at the meeting in October 2007 were apparently meant not to be those of DG ENV. According to the complainant, this letter remained unanswered.

The subject matter of the inquiry

11. In its complaint to the Ombudsman, the complainant in essence made the following allegations:

(1) The Commission failed to address the issues raised in the complainant's letter of 22 May 2008.

(2) The Commission wrongly accused the complainant of having made "untruthful" statements and incorrectly stated that the officials of DG ENV involved in a meeting with the complainant were not competent to deal with the latter's case.

The inquiry

12. The present complaint was lodged on 17 September 2009. On 1 October 2009, the Ombudsman asked the Commission for an opinion, which it sent on 16 December 2009. The opinion was forwarded to the complainant for its observations. The deadline for observations was extended on a number of occasions at the complainant's request. On 17 November 2010, the complainant informed the Ombudsman's Office by telephone that it considered the Commission's opinion to be satisfactory and that the case could be considered as settled.

The Ombudsman's analysis and conclusions

A. Alleged failure to address the issues raised by the complainant and alleged wrong accusation

Arguments presented to the Ombudsman

13. In its opinion, the Commission pointed out that it had been in contact with the complainant on the question whether Germany had correctly implemented the obligation to give priority to the regeneration of waste oils since 1990. A very high number of letters had been exchanged on this subject over the years.

14. The Commission's services had explained on many occasions that Article 3(1) of Directive 75/439 defined an objective that Member States had to reach, but left the choice of the means of achieving this objective to the Member States. After the judgment of the European Court of Justice in 1999, Germany had adopted 'Guidelines on the promotion of regeneration of waste oils' (the 'Guidelines'). In 2002, the Commission opened an infringement case, since it had doubts as to whether these measures were sufficient. In 2005, Germany presented a detailed study showing that the Guidelines had led to an important increase in regeneration of waste oils. The Commission therefore decided to close the infringement case.

15. On 22 May 2008, the complainant wrote to President Barroso to complain that the Commission did not ensure the correct implementation of Article 3(1) of Directive 75/439 and of the judgment of the Court of Justice against Germany.

16. President Barroso forwarded this letter to DG ENV for direct reply. The Commission noted that, according to its rules of procedure, the President was entitled to decide whether to reply to a letter himself or whether to forward it to his services.

17. In its reply of 20 June 2008, DG ENV repeated its view that Germany had implemented the judgment of the Court of Justice by adopting the Guidelines.

18. The Commission concluded that it had replied to all the complainant's letters and fully addressed its questions.

19. The Commission further noted that, in its letter of 22 May 2008, the complainant had pointed out that it had been told by representatives of the Commission that they were not interested in the implementation of the relevant provision of EU law anymore. In its reply of 20 June 2008, DG ENV denied having met the complainant and having made the alleged statements. On 12 December 2008, and further to a letter from the complainant of 7 July 2008, DG ENV acknowledged that a meeting had, in fact, taken place but submitted that it was not with the service responsible for the handling of complaints and infringement proceedings against Germany.

20. The Commission apologized for having wrongly claimed that the complainant's statements concerning the meeting with officials of DG ENV were untrue. It added that this was due to a lack of communication within its services.

21. As regards the statements of its officials to which the complainant had referred, the Commission stressed that these had to be interpreted in light of the legislative proposal to repeal Directive 75/439, which had been tabled in 2005 and which, at the time, was under discussion in the Council and in the European Parliament.

22. On 17 November 2010, the complainant informed the Ombudsman's Office that it considered the Commission's opinion to be satisfactory and that the case could be considered as settled.

The Ombudsman's assessment

23. In view of the above, the Ombudsman considers that the Commission has taken steps to settle the matter and has thereby satisfied the complainant.

C. Conclusions

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

The Commission has taken steps to settle the matter and thereby satisfied the complainant.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 7 December 2010

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[1] OJ 1975 L 194, p. 23.

[2] OJ 1987 L 42, p. 43.

[3] Case C-102/97 Commission v Germany [ECR] 1999 I-5051.

[4] The inquiry into this complaint was closed by a decision adopted on 7 June 2010.