Dear Mr X,

You recently submitted a complaint to the European Ombudsman about how the European Commission handled your infringement complaint CPLT(2023)02635) against Greece.

In your complaint to the Commission, you contend that the operation of an open-air market in your neighbourhood (Athens, Greece) breaches: a) Directive 2002/49/EC^[1]; b) Regulation 181/2011^[2], and c) the European Convention on Human Rights (‘ECHR’) [Article 3 (Prohibition of torture) and Article 8 (Right to respect for private and family life)].

In your complaint to our Office, you contend that the Commission was wrong not to take any action on the basis of your infringement complaint. You are concerned that the Commission has not properly understood the issues you raised. You also contend that, whereas the Commission stated that it could not deal with those issues, it did not indicate who could do so.

The Commission enjoys wide discretion in dealing with complaints about possible breaches of EU law by Member States, including as regards deciding whether and when to open an infringement procedure.^[3] Its policy on infringements of EU law is set out in its Communication EU law: Better results through better application.^[4] The Ombudsman would question the Commission’s position only in case of a manifest error of assessment.

In its replies to your complaint, the Commission explained that the issues you raised are not covered by Directive 2002/49/EC, as this Directive concerns the so called “major sources” of noise only (that is, noise emitted by road and rail vehicles and infrastructure, aircraft, industrial equipment etc.). Having looked at the aim and text of the Directive, we find that the Commission’s position is reasonable. The Commission also informed you that there is no EU legislation regulating the level of noise from open-air markets nor is the matter of ‘quiet hours’ regulated at EU level. We find no indication of a manifest error in the Commission’s position.

The Commission also explained why Regulation 181/2011 is not related to the issues you raised. Having looked at the aim and text of this Regulation, we find that the Commission’s position is reasonable as the rerouting/reorganisation of private and public transport during the operation an open-air market would not appear to fall within the scope of that Regulation.

Regarding the alleged violation of the ECHR, as the Commission correctly said, this is not a text adopted by the EU. In any case, the Commission expressed doubts as to whether the facts described in your infringement complaint could be considered to amount to a breach of the principles and rights to which you refer (prohibition of torture and respect for private and family life). We find the Commission’s position reasonable.

Finally, we note that, on several occasions, the Commission informed you that it is for the national (administrative and judicial) authorities to ensure that EU environmental legislation is correctly implemented in each Member State. The Commission advised you to turn to them.

In that context, the Commission also informed you that its practice is to focus, as a matter of priority, on the most significant breaches of EU law that reveal a generalised, persistent and systematic non-compliance. The Commission has sufficiently explained why it does not consider your infringement complaint to reveal a generalised, persistent and systematic non-compliance. The Commission has the discretion to take this view. This approach has recently been confirmed by the Commission’s Communication Enforcing EU law for a Europe that delivers^[5].

In light of the above, we consider that there was no maladministration in how the European Commission dealt with your infringement complaint. ^[6]

We appreciate this may not be your desired outcome, but we hope you find these explanations helpful. Thank you for having contacted the European Ombudsman.

Yours sincerely,

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 14/05/2024

 

[1] Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise - Declaration by the Commission in the Conciliation Committee on the Directive relating to the assessment and management of environmental noise.

[2] Regulation 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004.

[3] Judgment of the Court of 14 February 1989, Starfruit v Commission, case 247/87, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0247 

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

[5] COM(2022) 518 final, available at: https://commission.europa.eu/document/download/b75864f0-8516-4ff0-9e2a-c3e8a557bbfb_en?filename=com_2022_518_1_en.pdf. See section VI (“Effective use of infringement procedures”): ”The primary purpose of the infringement procedure is to ensure that the Member States give effect to EU law in the general interest, not to provide individual redress. So the Commission’s strategic approach means that infringement procedures rarely focus on individual matters, but rather on systemic and structural issues affecting a large number of  persons or businesses in a given Member State or across the Union. [...] Isolated instances of possible wrongful application of EU law, which do not raise general issues of principle [...], lacking evidence of a general practice or of systemic shortcomings, are dealt with more effectively by redress bodies closer to those affected by the infringement. These can offer swift and direct solutions.”

[6] Full information on the procedure and rights pertaining to complaints can be found at https://www.ombudsman.europa.eu/en/document/en/70707