The infringement complaint

1. In October 2015, the complainant, a Finnish national, lodged an infringement complaint with the European Commission arguing potential incompatibilities with EU law in Finland concerning the Aarhus Directive^[1] and access to environmental information. In particular, he referred to the actions of a limited company operating in the field of water supply, which is jointly owned by a number of Finnish municipalities.

2. According to the complainant, the company in question systematically refused to grant access to results of scientific studies concerning certain substances, such as groundwater. The company justified its decisions by referring to its role as a limited company, which would thus not be covered by the rules governing the public authorities. However, in the complainant’s view, also a private company being bound by the Aarhus rules, should have granted access to such information. He argued that, had the same services been provided by the municipalities as such, they would have been under the obligation to grant access to the requested information.

3. The complainant further contended that various national authorities^[2] verified merely whether this issue falls under the scope of the relevant national law on administrative procedure, whereas in his view the real issue revolved around the potential incompatibility with the Aarhus rules. In support of his position, the complainant referred to the case law of the Court of Justice of the European Union (CJEU) in case Fish Legal and Shirley^[3].

How the Commission handled the infringement complaint

4. The Commission acknowledged receipt of the infringement complaint in November 2015 and registered it in its database^[4].

5. Throughout 2016, the complainant enquired several times about the state of play of his infringement complaint. However, his requests remained unanswered. Therefore, the complainant sought help from a Member of the European Parliament (MEP) on the matter. The Commission informed the MEP in December 2016 that, due to the priorities limitations, the handling of this complaint was delayed. It aimed to finalise its assessment by the end of January 2017. The complainant tried to obtain information on the status of his complaint throughout 2017 and early 2018 as well; however, to no avail.

6. In May 2018, the Commission sent the complainant a pre-closure letter. It apologised for the delay in dealing with this infringement complaint. Having assessed the complainant’s arguments, it could not identify any breach of EU law. In its view, the complainant failed to explain how the conditions set out by the Fish Legal and Shirley judgment were fulfilled in this individual case. Having assessed all the submitted documents, the Commission could not identify any breach of EU law. Therefore, it intended to close the case. Before doing so, it granted the complainant an extended period of time to submit his possible comments.

7. The complainant did so in June 2018. In his view, the company fell under the scope of application of the Aarhus rules for the following reasons: (1) the company is providing public services that would otherwise belong to municipalities under the national law; (2) the competent authorities issue the relevant permits to the company; and (3) its research activities are carried out under the supervision of the public authorities. The complainant added that the company also has specific competence, which is different from the rules of private law governing the relations between individual legal subjects.

8. Since the complainant did not receive any update on his complaint, he enquired about its status again in November 2018 and January 2019. This correspondence remained unanswered once again. Dissatisfied with the Commission’s conduct, he turned to the Ombudsman in February 2019.

9. In his complaint to the Ombudsman, the complainant argued in essence that the Commission mishandled his infringement complaint by unnecessarily delaying its assessment.

10. The Ombudsman opened an inquiry into this complaint. Her inquiry team inspected the Commission’s relevant file to determine whether the Commission dealt with this infringement complaint appropriately.

The European Ombudsman's findings

11. The Commission’s handling of infringement complaints is governed by certain rules^[5]. In accordance with these rules, the Commission has, in principle, one year to take a position on an infringement complaint. In case the Commission cannot comply with this deadline, it should inform the complainant thereof in writing^[6].

12. Based on the inspection of the Commission’s relevant file, the Ombudsman notes that, only following a MEP’s intervention, the Commission informed the complainant of the status of his infringement complaint. The Commission did not meet the indicative deadline of 12 months to deal with the complaint, nor did it inform the complainant of this in writing. It further failed to meet its self-imposed deadline to finalise the assessment by the end of January 2017, which it eventually shared with the complainant in May 2018 only. These delays are regrettable.

13. However, in its replies to the complainant (dated3 May 2018 and 2 April 2019), the Commission provided a reasonable explanation for the delays (the need to prioritise different issues, stemming from its official communications on the implementation of environmental law^[7]) and apologised on several occasions for it.

14. Moreover, in its reply of 2 April 2019, the Commission provided the complainant with an exhaustive and comprehensive analysis of the complaint. It established that the company in question does not perform “water supply related public responsibilities or functions or provide a public service related to environment” under the Aarhus Directive. In its view, the company in question did not perform public functions. Therefore, it was not obliged to disclose the studies the complainant sought. The Commission also explained in detail the applicable legal framework, verified the relevant national jurisprudence and the applicable permit procedure. Finally, it clarified why the case law referred to by the complainant was not relevant to this individual complaint. Having found no breach of EU law, the Commission closed the infringement complaint. This is consistent with its assessment and therefore reasonable.

15. In light of the above findings, the Ombudsman closes this case finding that no further inquiries are justified.^[8]

 

Marta Hirsch-Ziembińska

Head of Inquiries and ICT - Unit 1

Strasbourg, 13/08/2019

 

[1] 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 L 41, p. 26.

[2] Including the national Ombudsman, who considered that there was no illegal conduct in the case at hand.

[3] Judgment of the Court of Justice in case C-279/12, Fish Legal and Shirley v Information Commissioner, ECLI:EU:C:2013:853. In that case, the CJEU held that a water company can be considered as a legal person which performs ‘public administrative functions’ under national law, within the meaning of the Aarhus Directive, provided that certain conditions are fulfilled. According to paragraph 52 of the judgment, such legal persons must be vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

[4] Under reference number (CHAP(2015)02964).

[5] Communication from the Commission, EU law: Better results through better application (2017/C 18/02):

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN

[6] Annex, Administrative procedures for the handling of relations with the complainant regarding the application of European Union law, section 8.

[7] It referred to priorities set out in the 2008 Communication from the Commission on implementing European Community Environmental Law COM (2008) 773 and the 2016 Communication referred to above under point 4. 

[8] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions