Strasbourg, 5 June 2008

Dear Mr O.,

On 25 May 2007, acting on behalf of the Spanish environmental association "WWF/Adena", you submitted a complaint to the European Ombudsman against the European Commission. The complaint concerned the Commission's decision to close a complaint you had lodged with that institution, concerning the failure of the Spanish authorities to comply with EU environmental directives when authorising a project for the improvement of access to the port of Seville.

On 24 July 2007, I informed the President of the Commission of your complaint and asked him to submit an opinion on it by 30 November 2007. On 5 December 2007, the Commission sent its opinion in English. On 13 December 2007, the Commission sent a translation of the opinion into Spanish, which was forwarded to you on 18 December 2007, with an invitation to make observations, if you so wished. On 9 January 2008, you sent your observations on the Commission's opinion.

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

THE COMPLAINT

The complaint was submitted on behalf of the Spanish environmental association "WWF/Adena". The facts of the case, according to the complainant, are, in summary, as follows:

The complainant lodged a complaint with the European Commission in 2005 which was registered under reference 2005/4463. In his complaint to the Commission, the complainant alleged that the Spanish authorities had failed to comply with Article 9(1) of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment(1) ("the Directive"), when it authorised a project for the improvement of access to the port of Seville without submitting it to proper public consultation, as required by the above provision.

On 13 February 2006, the Commission services informed the complainant that, in their view, the subject-matter of his complaint to it concerned how the Spanish authorities were applying the obligations laid down in Article 9 of the Directive. The Commission noted that it had already addressed this issue in the context of infringement proceedings that were being reviewed by the European Court of Justice in Case C-332/04(2). The Commission pointed out that the outcome of that on-going case before the Court of Justice would determine the follow-up to its inquiry into the complaint submitted by the complainant.

On 16 March 2006, the Court of Justice delivered its ruling in Case C-332/04, in which it considered that the Spanish authorities had failed properly to implement Article 9 of the Directive. In light of the Court's decision, the complainant was confident that the Commission would take the situation he had complained about before the Court of Justice. On 13 February 2006, however, the Commission informed the complainant that it had decided to close his complaint since, once the Court of Justice had taken the view that the Spanish legislation for the implementation of Article 9 of the Directive was incorrect, it did not consider it useful to pursue individual cases concerning situations which had arisen before the Court of Justice's judgement. The Commission confirmed its decision to close the complaint by letter of 27 April 2006.

On 11 April 2007, the complainant asked the Commission to provide him with a clear explanation of the reasons which led it to close the case. In a reply to the complainant dated 3 May 2007, the Commission referred to the reasons which it had already stated in its previous correspondence, namely, that it did not consider it useful to pursue individual cases of incorrect application of Article 9 of the Directive that preceded the Court of Justice's ruling in Case C-332/04.

In his complaint to the European Ombudsman, the complainant argued that the Commission had failed to justify why it decided to close his complaint, even though there was a clear violation of Community law on the part of the Spanish authorities.

The allegation and claim on which the Ombudsman asked the Commission to submit an opinion were the following:

The Commission failed properly to justify its decision to close the complaint submitted by the complainant.

The complainant claims that the Commission should reconsider its decision and re-open the case.

In his letter opening the inquiry, the Ombudsman also asked the Commission to comment on whether it considered that it would be useful and appropriate, in cases such as the present one, for it to explain to interested parties the various possibilities that exist as regards giving effect to a Court of Justice ruling. Such possibilities include (i) invoking the ruling before a national court in order to ensure that national law is applied in accordance with EC law as interpreted by the Court of Justice; (ii) complaining to a competent ombudsman in the Member State; or (iii) contacting the national body charged with ensuring compliance with the national law transposing the directive.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission described the background to the case. It explained that, on 5 April 2005, the complainant lodged a complaint with its services (reference 2005/4463) concerning the alleged failure by the Spanish authorities to comply with the obligations laid down in Article 9 of the Directive. On 3 May 2005, the Commission acknowledged receipt of the complaint. On 13 February 2006, however, after a detailed examination of the relevant facts, the Commission informed the complainant that it intended to close the case. It explained that, since it had already brought a legal action against Spain before the Court of Justice (Case C-332/04), there was no interest in pursuing individual complaints on the same subject-matter that had been launched at a date prior to the Court of Justice's ruling. On 16 March 2006, the Court of Justice declared that Spain had failed to transpose correctly Article 9(1) of the Directive into national law. On 21 and 22 March 2006, the complainant requested that the Commission review its proposal to close the complaint. In its reply of 7 April 2006, the Commission confirmed its position and closed the complainant's case.

On 18 April 2007, the Commission informed the complainant that it had opened new infringement proceedings (reference n° 2001/2210) to ensure that the Spanish authorities adequately implemented the Court of Justice's judgment. The Commission explained that, in the course of that new inquiry, Spain informed the Commission of the adoption of Law 9/2006 of 28 April 2006 amending the national measures implementing the Environmental Impact Assessment Directive. The new legislation adopted by Spain appeared to be in conformity with EU law, and included the obligations laid down in Article 9(1) of the Directive. As Spain had modified its legislation with a view to brining it into conformity with EU law, the Commission informed the complainant that it would not pursue individual cases concerning the application of Article 9 of the Directive that had their origin in facts that occurred prior to the adoption of the new national legislation.

In its reply to the Ombudsman, the Commission argued that it had properly justified its decision and that its services had provided a proper reasoning to the complainant, which included an explanation of the measures it had taken in order to ensure a proper follow-up to the Court of Justice's ruling in Case C-332/04. The Commission further noted that, as set out in his letter to the complainant dated 5 April 2005, a copy of which was annexed to its opinion, the complainant's claim was that Spain should comply with its Community obligations. Accordingly, the Commission took the view that, as a result of its initiatives and the subsequent Court ruling , all the issues raised by the complainant had been addressed adequately.

The Commission also stated that, in the acknowledgement of receipt sent to all complainants further to the registration of complaints, it referred to the complainants' interest in making use of out-of-court resolution of infringements or bringing cases before national courts, which are the first guardians of Community law. This advice appeared to be in line with Article 4(5) of the 2002 Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law(3).

The Commission concluded by underlying that its services had fully justified the decision to close the complaint and therefore that it could not reconsider its decision and re-open the case, as the complainant had claimed.

The complainant's observations

In his observations of 9 January 2008, the complainant underlined that, in his complaint to the Commission, he had asked for redress in a specific situation, namely, as regards the project for the improvement of access to the port of Seville. The complainant underlined that he had claimed that the Spanish authorities should be asked to take the necessary measures to ensure that an appropriate public consultation of that specific project be carried out. The complainant considered that, by closing his complaint, the Commission had not responded to his claim, since the institution had not formally stated that there was any relationship between the object of his complaint, namely, the alleged breach of EU law in the project for the improvement of access to the port of Seville, and the Court ruling in Case C-332/04. As a result of such failure on the part of the Commission, the complainant considered that he could not seek redress before the Spanish authorities.

THE DECISION

1 Commission's reasons for closing a complaint

1.1 The complaint concerns the Commission's decision of 27 April 2006 to close a complaint registered under reference 2005/4463, in which the complainant alleged that the Spanish authorities had failed to comply with Article 9(1) of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment(4) (the Directive), when they authorised a project for the improvement of access to the port of Seville without submitting it to a public consultation.

The complainant alleges that the Commission failed properly to justify its decision, and therefore claims that it should reconsider its decision and re-open the case.

1.2 The Commission argues that its services properly reasoned the decision to close his complaint. According to that reasoning, the institution had already brought a legal action against Spain before the European Court of Justice in Case C-332/04 concerning its failure properly to transpose Article 9(1) of the Directive into national legislation. The Court of Justice ruled that Spain had failed to transpose properly Article 9(1) of the Directive into national legislation. On that basis Spain was required, forthwith, to bring its national legislation into compliance with the Directive. On that basis, the Commission considered that there was no interest in pursuing individual complaints concerning the incorrect application of that provision by Spain which had occurred prior to the Court of Justice's ruling.

The Commission further notes that, in his complaint to the Commission, the complainant had only claimed that Spain should comply generally with its Community obligations. The Commission argues that, as a result of the Court of Justice ruling in Case C-332/04, Spain adopted new legislation, on 28 April 2006, which appeared to be in accordance with the Directive, thereby complying with its Community obligations.

Accordingly, the Commission takes the view that, as a result of its initiatives and the subsequent Court ruling , it adequately addressed the complainant's interests.

1.3 In his observations, the complainant stresses that, in his complaint to the Commission, he had asked for redress in a specific situation, and that the institution's failure to state that there was any relationship between the object of his complaint and the Court ruling in Case C-332/04, made it impossible for him to seek redress before the Spanish authorities.

1.4 The Ombudsman notes that one of the fundamental tasks of the Commission in its role of "guardian of the Treaty" under Article 211 of the EC Treaty, is to ensure that Community law is correctly applied in all the Member States. In carrying out its duty, the Commission investigates potential infringements of Community law which come to its attention, largely as a result of citizens' complaints.

In the event that, as a result of its inquiry, the Commission considers that a Member State has failed to fulfil its obligations under the Treaty, Article 226 of the EC Treaty gives it the power to start infringement proceedings against the responsible Member State, and if necessary, to bring the matter before the Court of Justice.

According to the case-law of the Community Courts, even if it takes the view that there has in fact been a violation of Community law by a Member State in a specific instance(5), the Commission disposes of a wide margin of discretion to decide whether: (i) it is appropriate to bring an action against the responsible Member State before the Court of Justice in relation to that specific instance of a violation of Community law, or (ii) it considers that there is no Community interest in pursuing specific infringement proceedings against a Member State, because, for instance, national courts or authorities would be better placed to deal with the matter(6).

1.5 The Ombudsman has carefully reviewed the correspondence between the Commission and the complainant, in order to verify how the Commission justified its decision to close his complaint.

The Ombudsman notes that, in its reply to the complainant on 13 February 2006, the Commission stated:

"Firstly, I would like to explain that, as you are aware, the Commission has brought an action before the European Court of Justice against the Kingdom of Spain in connection with the incorrect implementation of Article 9 of Directive 85/337/EEC. The case has been registered with the reference C­2004/332 and it is currently under consideration by the Court. For this reason, the Commission services do not consider it useful to pursue individual cases concerning the incorrect application of the above mentioned provision, before the Court has ruled on the question of how it has been implemented in the Spanish legal order".

Furthermore, in its reply to the complainant of 18 April 2007, the Commission explained that:

"By letter of 6 April 2006, the European Commission requested information from the Spanish government regarding the measures it had adopted to comply with the above mentioned ECJ's ruling [case C­2004/332]. The Spanish authorities informed the Commission that they had approved Law 9/2006, of 28 April, on the environmental impact evaluation of certain plans and programmes (Spanish Gazette of 29 April) whose first closing provision amended the Royal Decree 1302/14986, of 28 June, on environmental impact assessment. The Commission has concluded that this change of the national rules appears to be adequate in order to comply with the ECJ's ruling, in particular as regards the implementation into Spanish law of Article 9(1) of Directive 85/337 as amended.

Accordingly (...) the Commission does not deem it useful to pursue individual complaints involving an incorrect application of the above mentioned provision [ Article 9(1) of the Directive] before the amendment of the Spanish legislation."

1.6 On the basis of the above correspondence, it appears that the Commission, in exercising its discretion as guardian of the Treaty under Article 226 of the EC Treaty, had already chosen to bring a legal action against Spain before the Court of Justice for its incorrect implementation of Article 9(1) of the Directive into national law. Having done so, the Commission took the view that it was not useful to pursue other cases for the incorrect application of that same provision. The Ombudsman notes that the Commission explained its point of view to the complainant in its letters to him of 13 February 2006 and 18 April 2007.

As the Community Courts have acknowledged, the Commission enjoys a wide margin of discretion in deciding whether it considers that there is no Community interest in pursuing legal proceedings in relation to a given complaint. The Ombudsman notes that if the Commission were to bring a case before the Court of Justice in relation to a specific instance of incorrect application by Spain of Article 9(1) of the Directive which had occurred prior to the ruling in Case C-332/04, there would be no "added value" resulting from a judgement in such a new case. This is all the more so since the affected individual could bring that individual case before the national courts which, in turn, could rely on the interpretation already given by the Court of Justice of the Community provision in question.

In this context, the Commission's explanation appears to be reasonable. The Ombudsman thus finds that the Commission acted within the limits of its legal authority when it decided to close the complaint and informed the complainant of its position.

1.7 In view of the above finding, the Ombudsman does not consider it necessary to inquire into the scope of the complainant's claim to the Commission, and whether or not the institution did in fact interpret that claim properly.

1.8 The Ombudsman therefore finds that there appears to be no maladministration as regards this case.

1.9 The Ombudsman has noted, in Point 1.6 above, that interested parties have the possibility to seek redress at the national level when they consider that decisions by Member State authorities infringe Community law. Were an interested party to take such an option, national courts would be required, in accordance with Community law(7), to take due consideration of the jurisprudence of the Court of Justice in order to assess the compliance of the specific national decision with Community law. Further, interested parties can seek redress through national or regional Ombudsmen. Further, interested parties can directly approach the national body charged with ensuring compliance with the national law transposing the directive.

The Ombudsman is therefore of the view that even if the Commission did not consider it necessary to state specifically that there was a relationship between the facts put forward by the complainant in relation to the project for the improvement of access to the Port of Seville and the Court of Justice's ruling in Case C-332/04, this did not impede the complainant from seeking redress before the Spanish courts, national or regional Ombudsmen in Spain or the national body charged with ensuring compliance with the national law transposing the directive.

The Ombudsman notes that the complainant did not appear to be aware that he had the option to seek a remedy at the national level, even though the Commission had, in its acknowledgement of receipt to him dated 3 May 2005, made a generic reference to the possibility for complainants to seek redress at the national level.

The Ombudsman considers that, in cases such as the present one, the Commission could provide a better service to citizens. It could enhance compliance of Community rules at the national level, if, as set out in Article 4(5) of the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law(8), it were to explain clearly in its correspondence with citizens the various possibilities that exist as regards enforcing Community law. These possibilities include (i) seizing a national court in order to ensure that national law is applied in accordance with EC law as interpreted by the Court of Justice; (ii) complaining to a competent ombudsman in the Member State; or (iii) contacting the national body charged with ensuring compliance with the national law transposing the directive.

A further remark to this effect will be made below.

2 Conclusion

On the basis of his inquiries into this case, the Ombudsman finds that there appears to be no maladministration on the part of the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

FURTHER REMARK

The Ombudsman considers that, in cases such as the present one, the Commission could provide a better service for citizens. In so doing, it could enhance compliance of Community rules at the national level, if, as set out in Article 4(5) of the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law, it were to explain in its correspondence with the citizens the various possibilities that exist as regards enforcing Community law. Such possibilities include (i) invoking the Court of Justice's ruling before a national court in order to ensure that national law is applied in accordance with EC law as interpreted by the Court of Justice; (ii) complaining to a competent ombudsman in the Member State; or (iii) contacting the national body charged with ensuring compliance with the national law transposing the directive.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 1985 L 175, p. 40.

(2) Case C-332/04 Commission v Spain [2006] ECR I-40.

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

(4) See footnote 1.

(5) Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 46; Case 247/87 Star Fruit v Commission [1989] ECR 291; Case 87/89 Société nationale interprofessionnelle de la tomate and others v Commission [1990] ECR-I 1981; Order of the Court in Case T-182/97 Ségaud v Commission [1998] ECR II-271.

(6) See, for example, the Ombudsman's decisions on complaints 962/2006/OV, 3453/2005/GG, 3125/2005/BB, 995/98/OV, 480/2004/TN and 493/2000/ME, which can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).

(7) If, in the context of an action brought before it under Article 226 of the EC Treaty, the Court of Justice rules that a Member Stated failed to fulfil its obligations, that Member State is obliged, pursuant to Article 228(1), to take the necessary measures to comply with the judgement. That entails a prohibition for the competent national authorities, including the national courts, "against applying a national rule recognized as incompatible with the Treaty and, if the circumstances so require, an obligation on them to take all appropriate measures to enable Community law to be fully applied"; see, case 48/71 Commission v. Italy [1972] ECR 527 at 532; cases 24 and 97/80R Commission v. France [1980] ECR 1319 at 1333; case 101/91 Commission v. Italy [1993] ECR I-191 at 205-206.

(8) "Where necessary, the Commission will inform the complainant of any possible alternative forms of redress, such as recourse to national courts, the European Ombudsman, a national ombudsman or any other national or international complaints procedure"; OJ 2002 C 244, p. 5.