Strasbourg, 12 April 2006

Dear Mr M.,

On 9 September 2004, you lodged a complaint with the European Ombudsman against the European Commission. The complaint concerned the time taken by the Commission to deal with the allegations made in a formal complaint submitted to the Commission in 1999 (reference number 1999/5252).

On 16 and 20 and 21 September 2004, you sent additional information.

On 28 September 2004, I informed the President of the Commission of this complaint and asked him to submit an opinion. On 7 and 17 October 2004, you sent additional information concerning the complaint, which I forwarded to the Commission on 4 November 2004. On 29 November 2004, you sent additional information to me. On 6 January 2005, the Commission sent its opinion in English. On 13 January 2005 the Commission sent a translation of its opinion into Spanish, which was forwarded to you on 19 January 2005 with an invitation to make observations.

On 25 January 2005, you acknowledged receipt of my letter inviting your observations and, on 22 and 23 February 2005, you sent your observations on the Commission's opinion to me.

On 13 April, and 6 May 2005, you forwarded additional information. On 20 October 2005, you were informed of the new reference number of your case (2748/2004/(JMA)BM).

On 27 October 2005 and 8 March 2006, you forwarded additional information.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to conclude the present inquiry.

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

In 1999, the Commission received a formal complaint, which was registered under reference number 1999/5252. It concerned the decision taken by the Spanish authorities to authorise the construction of a solid waste treatment centre in San Román de la Vega, in León, Spain. The complaint to the Commission alleged that the decision was illegal and that the centre risked contaminating the drinking water of the surrounding areas. The complainant argued that the project did not comply with a number of EU environmental directives, among others, Council Directive 99/31/EC on the landfill of waste(1); Council Directive 96/61/EC concerning Integrated Pollution Prevention and Control (IPPC)(2); and Council Directive 91/156/EEC amending Directive 75/442/EEC on waste(3).

In his complaint to the Ombudsman, the complainant explained that the Commission had taken an unduly long time to deal with formal complaint 1999/5252. He argued that the Commission had not been able to solve the problem, whilst the construction of the waste treatment centre was being completed.

On 16 and 20 September 2004, the complainant sent additional information to the Ombudsman, in which he explained that the centre had been formally opened on 10 September 2004, and that it had started its operations ten days later. The complainant also noted that the project had been partially financed with EU funds.

At the Ombudsman's request, the complainant sent to the Ombudsman copies of the exchange of e-mails between him and the Commission since June 2004, in which he requested information on the state of formal complaint 1999/5252 and underlined the need for action because of the inappropriate location of the project.

The complainant alleged, in summary, that the Commission had not properly handled formal complaint 1999/5252 and that, as a result, a centre for the treatment of solid waste was being built in San Román de la Vega (León), in breach of EC directives.

THE INQUIRY

The opinion of the Commission

In its opinion, the Commission first pointed out that the person who lodged the complaint with the Ombudsman was not the complainant in case 1999/5252, but a third party. Since June 2004, this third party had contacted the Commission requesting information on this case. The Commission underlined that its services had properly replied to all his requests for information.

The Commission explained that it had received two complaints concerning the project to build a solid waste treatment centre in the city of San Román de la Vega, in León. The first one, lodged in September 1998, was registered under reference 1998/4791. Having concluded that, at that time, there appeared to be no infringement of Community law, the Commission closed the case. Even though the complainant in that case furnished additional information on 28 May 1999, the Commission decided not to open infringement proceedings because the project was only at the planning stage.

At the end of 1999, a different complainant lodged a complaint with the Commission regarding the same situation, which was registered under reference number 1999/5252. The Commission noted that, in its acknowledgement of receipt, the complainant in that case was clearly informed that the Commission tried to investigate complaints with a view to arriving at a decision to open infringement proceedings or to close the case within twelve months from the date of registration of the complaint by the Secretariat-General. However, the Commission explained that compliance with this deadline was not always possible, because of the internal and external steps that had to be taken during the investigation period and the high number of complaints and own-initiative inquiries dealt with by the Commission services as regards environmental cases, in particular, as regards certain Member States.

Since the new complaint concerned the same subject matter as complaint 1998/4791, the Commission decided to include the two complaints in a single file and, on 20 December 1999, the complainant in case 1998/4791 was informed of the existence of a new complaint on the same subject and of the new reference number (1999/5252).

Having started an inquiry into the matter, the Commission requested information from the Spanish authorities on 4 January 2000. This information was furnished on 12 April 2000. The Commission then decided to request further information from the Spanish authorities, in particular as regards the environmental impact assessment and the authorisation of the project. In reply to this request, the Spanish authorities sent additional information on 1 February, 28 February and 9 March 2001. In the meantime, both complainants sent further materials. On 7 and 25 September 2001, the complainants were informed of the state of the Commission's inquiry. In addition to the information forwarded by the Spanish authorities, the Commission had to analyse the documents sent by the complainants on 15 and 20 November and 28 December 2001.

By letter of 31 October 2002, the Commission informed the complainant in complaint 1999/5252 that it had decided to initiate infringement proceedings against Spain in connection with this complaint, and that a letter of formal notice had therefore been delivered to the Spanish authorities.

On 26 November 2002, the Commission received a request from the complainant in what had formerly been complaint 1998/4791 for access to the letter of formal notice sent in complaint 1999/5252. On 3 December 2002, the Commission refused access on the basis of the exceptions provided in Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(4) and informed the complainant that he could contest the decision through a confirmatory application to the Secretariat-General of the Commission. The complainant then lodged a confirmatory application. In the absence of a written reply, the complainant in what had formerly been complaint 1998/4791 submitted a complaint to the Ombudsman on 24 November 2003, which was registered under reference number 2229/2003/MHZ(5).

By letter of 14 January 2003, the Commission informed the complainants that, on 15 October and 20 December 2002, as well as on 7 January 2003, the Spanish authorities had replied to the letter of formal notice. The reply included bulky annexes which had to be analysed. The analysis of the voluminous materials transmitted by the Spanish authorities took several months. As a result of that laborious task, no important developments in the investigation took place during that period.

On 7 September 2004, the Spanish authorities sent an additional document to the Commission, which was assessed by the Commission services.

The Commission concluded its opinion by stating that it continued to make every possible effort to handle the complaint adequately although, given the wealth of the materials and information, that would require additional time. A decision on the merits would be forthcoming, once all the materials had been analysed. The complainants would be informed of the decision.

The Commission listed in its opinion all correspondence with the complainant since June 2004, enclosing a copy of these exchanges.

The complainant's observations

The complainant repeated some of the allegations made in the original complaint. He considered that the Commission's observations were repetitive.

According to the complainant, the Commission's delay in handling the complaint had benefited the Spanish authorities, as it gave them additional time to complete the waste treatment centre, and to start its activities without complying with the applicable EU provisions.

The complainant considered that it was unacceptable that the Commission justified its delay in dealing with the complaint by alleging that it had decided to examine new information submitted by the Spanish authorities on 7 September 2004, that is, only three days before the centre was due to be inaugurated, and two weeks before it started its activities.

In the complainant's view, the Commission had not acted with due diligence.

Additional information sent by the Commission

The Commission's alleged failure to handle formal complaint 1999/5252 with due diligence also constituted one of the allegations of a previous complaint, lodged with the Ombudsman on 24 November 2003, which had been registered under reference 2229/2003/MHZ. In his decision on this case, dated 26 January 2005, the Ombudsman made a critical remark in which he stated that the Commission had failed to provide an adequate explanation for the length of the investigation. He concluded that this was an instance of maladministration. On 14 July 2005, the Commission informed the Ombudsman that it had taken due note of the critical remark and that it would endeavour to give a more precise explanation were a similar case to arise in the future.

On 23 January 2006, the Commission sent additional information concerning the critical remark formulated by the Ombudsman in case 2229/2003/MHZ, according to which, on 5 July 2005, the Commission decided to send a complementary letter of formal notice to the Spanish authorities. Furthermore, the Commission had also decided, on 13 December 2005, to send a reasoned opinion to Spain, after concluding that the Spanish authorities had failed to comply with their obligations under the relevant provisions of Community law. The Commission also noted that, by letters of 20 July and 23 December 2005, it had informed the complainant in case 2229/2003/MHZ of these developments.

THE DECISION

1 Commission's handling of the formal complaint

1.1 The complainant alleges that the Commission has not properly handled formal complaint 1999/5252 and that, as a result, a centre for the treatment of solid waste was being built in San Román de la Vega (León), in breach of EC directives.

The complainant argues that the Commission has taken an unduly long time to deal with formal complaint 1999/5252 and that the Commission has not been able to solve the problem, whilst the construction of the waste treatment centre was being completed.

1.2 The Commission argues that it needed several months to analyse all the relevant documentation included in the replies of the Spanish authorities to the letter of formal notice, which were provided on 15 October and 20 December 2002, 7 January 2003 and 7 September 2004.

According to the Commission, its acknowledgement of receipt of complaint 1999/5252 stated that it considers that compliance with the twelve-month deadline from the date of registration of a complaint by the Secretariat-General to investigate complaints with a view to arriving at a decision to open infringement proceedings or to close the case is not always possible because of the internal and external steps that have to be taken during the investigation period and the high number of complaints and own-initiative inquiries dealt with by the Commission services as regards environmental cases, in particular, as regards certain Member States.

1.3 The Ombudsman notes that the allegation made by the complainant in this case, namely, the Commission's failure to handle formal complaint 1999/5252 with due diligence, has already been considered by the Ombudsman in the context of a previous complaint (case 2229/2003/MHZ(6)) lodged by a different complainant. In his decision on case 2229/2003/MHZ, dated 26 January 2005, the Ombudsman addressed the length of the procedure carried out by the Commission in the handling of formal complaint 1999/5252.

The Ombudsman concluded that the Commission had not properly justified the long delay in the investigation of the complaint from the date when it was lodged up to 31 October 2002, when the Commission informed the complainant of the issuance of the letter of formal notice. The Ombudsman therefore addressed the following critical remark to the Commission:

"In the present case, the Commission has referred only to general factors that may cause delays in dealing with environmental cases and did not provide specific reasons to justify the period of nearly three years that it took to investigate the complainant’s infringement complaint against Spain. The Ombudsman therefore considers that the Commission has failed to provide an adequate explanation for the length of the investigation. This was an instance of maladministration".

1.4 The Ombudsman therefore points out that he has already taken a position on the allegation in the present case, on the basis of the information available to him up to the date of closure of the case 2229/2003/MHZ, namely 25 January 2005. In dealing with the present case, the Ombudsman considers it appropriate to focus on the Commission's actions in the period after it received the critical remark in case 2229/2003/MHZ.

1.5 The Ombudsman notes in this regard that, on 14 July 2005, the Commission replied to the Ombudsman's critical remark in case 2229/2003/MHZ and stated that:

"... [it] takes due note of the Ombudsman's critical remark and it will endeavour to give a more precise explanation should a similar case arise in the future".

Moreover, on 23 January 2006, the Commission sent additional information to the Ombudsman concerning its reply to the critical remark. In its letter, the Commission noted that, after having sent a first letter of formal notice to Spain on 23 October 2002, it decided to send a complementary letter of formal notice to the Spanish authorities on 5 July 2005 and a reasoned opinion on 13 December 2005. The Commission also noted that, by letters of 20 July and 23 December 2005, it had informed the complainant in case 2229/2003/MHZ of these developments.

1.6 From the information received in the framework of case 2229/2003/MHZ on 23 January 2006, the Ombudsman therefore notes that the Commission has taken a number of substantive initiatives concerning the ongoing infringement proceedings against the Spanish authorities in complaint 1999/5252 following the critical remark in case 2229/2003/MHZ. In particular, the Commission has addressed a complementary letter of formal notice and a reasoned opinion to the Spanish authorities.

The Ombudsman also notes that the Commission has duly informed the complainant in case 2229/2003/MHZ of these developments. The Ombudsman recalls that the allegation in the present case is of failure to handle infringement complaint 1999/5252 properly. The fact that the Commission has adequately informed the complainant in case 2229/2003/MHZ (who is one of the complainants to the Commission in infringement complaint 1999/5252) is consistent with the Commission's obligations as regards the provision of information to the complainants in infringement cases.

In view of the above findings, and taking into account that the Commission appears to be pursuing actively this inquiry, as shown by the fact that it has recently delivered a reasoned opinion to the Spanish authorities in complaint 1999/5252, the Ombudsman considers that no further inquiries into the present complaint are justified.

1.7 The Ombudsman also considers it useful to recall that his decision of 10 January 2006 closing case 3369/2004/JMA contained the following further remark:

“The Ombudsman notes that the Commission’s Communication on relations with the complainant in respect of infringements of Community law specifies neither a normal time limit for the investigation of complaints following the issuing of a letter of formal notice, nor the information to be given to complainants in the period after such a letter has been sent. The Ombudsman points out, however, that Article 41 (1) of the Charter of Fundamental Rights of the European Union states that "(e)very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union". The Ombudsman has carefully studied the case law of the Community courts concerning the discretion that the Commission enjoys in handling infringement cases. The Ombudsman takes the view that the case law does not exclude the application of the principles of good administration to relations between the Commission and complainants in the period following the sending of a letter of formal notice. The Ombudsman, therefore, considers that the Commission should respect the principles of good administration in relations with the complainant in the period following the sending of a letter of formal notice.”

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, no further inquiries appear to be justified. 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) OJ 1999 L 182, p. 1.

(2) OJ 1996 L 257, p. 26.

(3) OJ 1991 L 78, p. 32.

(4) OJ 2001 L 145, p. 43.

(5) Case 2229/2003/MHZ. This case was closed by the Ombudsman's decision of 26 January 2005: See http://www.ombudsman.europa.eu/decision/en.

(6) Case 2229/2003/MHZ. This case was closed by the Ombudsman's decision of 26 January 2005: See http://www.ombudsman.europa.eu/decision/en.