Dear Mr D.,
On 23 June 1997 you lodged a complaint with the European Ombudsman on behalf of "Colectivo Ecologista Riojano". The complaint involved the alleged failure of the European Commission to inform you of any development concerning the complaint sent to the Commission on 3 May 1996 and registered under file number 96/4370 SG(96)A/8475.
On 9 July 1997, I forwarded the complaint to the President of the European Commission. On 4 November 1997, the Commission sent its comments which I forwarded to you on 12 November 1997 with an invitation to make observations. I received your observations by letter of 26 December 1997.
I am writing now to let you know the result of the inquiries that have been made.

BACKGROUND

The complaint
In his letter to the Ombudsman, the complainant explained that the environmental group "Colectivo Ecologista Riojano" had written to the Commission on 3 May 1996, complaining that the Spanish authorities had granted authorization for a mining exploitation in Montes Obarenes-Toloño, La Rioja. This area had been classified by the Spanish authorities as a Special Protection Area (SPA) for the protection of birds. Following a first acknowledgement of receipt of their complaint dated 5 June 1996, the Commission had not forwarded any further information to the complainant.

THE INQUIRY

The Commission's opinion
The European Commission's comments to the complaint are in summary the following:
As a preliminary aspect, the Commission indicated that it was not clear why the complaint had been declared admissible by the Ombudsman, since it had not been preceded by appropriate administrative approaches as required in Article 2, Paragraph 4, of the Statute of the European Ombudsman. The Commission considered that the complainant had not taken any initiative to contact its services after having lodged his initial complaint.
As regards the substantial aspects of the case, the Commission referred to its general obligations towards complainants, as set out in the standard complaint form(1). These obligations involve: (i) sending an acknowledgement of receipt once the complaint is received; (ii) informing the complainant of any action taken in relation to the complaint; as well as (iii) of the decision to launch infringement proceedings against the responsible Member State.
In relation to this particular case, the Commission explained that the complaint's letter of 3 May 1996 had been registered as a complaint on 10 May 1996 (complaint file 96/4370). Since the provisions of Directive 79/409/EEC on the protection of wild birds(2), and 92/43/EC on the conservation of natural habitats and wild fauna and flora(3) could be relevant to the case, a request for comments was sent to the Spanish authorities on 25 July 1996. The Commission explained that, in cases in which the information submitted by the complainant is sparse, any further assessment of the case is undertaken in the light of the information submitted by the national authorities.
In the absence of any reply by the Spanish authorities within the established two-month period, a first reminder was sent on 25 October 1996, and a second one on 12 February 1997. Not having received any reply at all, Commissioner Bjerregaard wrote to Ms Tocino, Spanish Minister for the Environment on 18 March 1997. The reply from the Spanish authorities was finally received by the Commission on 2 June 1997.
On the basis of the explanation given by the Spanish authorities, the Commission reviewed the case and then asked the complainant for observations in a letter of 7 July 1997. In his reply of 25 August 1997, the complainant agreed with the assessment carried out by the Commission, and explained that the project at the origin of his complaint has been suspended as a consequence of the Commission intervention.
The complainant's observations
I forwarded the Commission's comments to the complainant with an invitation to make observations. The reply from the complainant indicated that the project had been suspended, and that the Spanish authorities had ordered that a new environmental impact assessment of the project be undertaken. In view of this, the complainant believed that his position had been correct all along, and that the authorization given to the project was illegal.
Finally, the complainant asked the Ombudsman not to close the case until the procedure for the authorization of the project has been completed by the Spanish authorities, so that full compliance with EC law could be ensured.

DECISION OF THE EUROPEAN OMBUDSMAN

On the basis of the information provided by the complainant and the observations submitted by the European Commission, the Ombudsman has reached the following conclusions:
Admissibility of the case and further inquiry by the European Ombudsman
1.1. As regards the Commission's argument that Mr D. had not previously complained to the institution, it must be stressed that it is for the Ombudsman to decide whether a complaint is admissible or not. Community institutions and bodies are naturally welcome to make their views on the subject known to the Ombudsman.
1.2. Under the Treaty and the Statute of the European Ombudsman, the admissibility of complaints is determined by the European Ombudsman. Having examined the complaint of Mr D., the European Ombudsman decided that the case was admissible.
1.3. In order to be admissible, a complaint must be preceded by the appropriate administrative approaches to the institutions and bodies concerned (article 2, par. 4 Statute). In view of the different linguistic versions of this text(4), and taking into account the objective of the provision, the practice of the Ombudsman has been to evaluate whether suitable administrative approaches have been made depending on the circumstances of each case.
1.4. In view of the fact that the case relates to the failure of the Commission to keep a complainant informed for more than a year of developments relating to his case, and since it would be reasonable to expect that such information is forwarded to complainants without a prior request, the Ombudsman considers that the criteria for the admissibility of the complaint was met, without further administrative approaches.
Failure of the Commission to keep a complainant informed
2.1. The Commission has justified its failure to forward any information to the complainant from May 1996 to July 1997 on the grounds that the Spanish authorities had not replied to the letters and reminders sent by the institution requesting their comments on the matter.
2.2. In the context of the Ombudsman's own initiative inquiry 303/97/PD(5), the Commission described in detail its policy on informing the complainant of the action taken in response to his complaint. It explained that : "Once the complaint has been registered, the complainant is informed of the action taken in response to his complaint, including representations made to the national authorities concerned".
2.3. On the basis of that commitment, it would have been proper for the Commission to have informed the complainant of its numerous approaches towards those concerned. The Ombudsman notes, however, that as a result of all these approaches -including a personal letter from the Commissioner in charge of the environmental portfolio to the responsible national Minister -the allegedly illegal project was cancelled, and thus the problem has been solved.
It has to be concluded therefore that the Commission took the necessary steps to settle the matter to the complainant's full satisfaction.
Complainant's request to keep the case open
3.1. The EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the Ombudsman specifically provides in Article 2, par.1, that no action by any other authority or person may be the subject of a complaint to the Ombudsman(6).
3.2. The Ombudsman's inquiries into this complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission. It is beyond the remit of the Ombudsman to assess compliance with Community law of on-going activities undertaken by the Spanish authorities.

CONCLUSION

On the basis of the information provided by the complainant and the observations submitted by the European Commission, the Ombudsman concludes that the case has been settled by the European Commission to the complainant's full satisfaction.
Against this background, the European Ombudsman decides to close the case.
Yours sincerely,
Jacob SÖDERMAN
cc:
Mr Santer, President of the European Commission
Mr Eeckhout, Secretariat General of the European Commission

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(1) OJ n C 26, of 1.02.1989, p.6.

(2) OJ n L 103, of 25.04.1979, p. 1.

(3) OJ n L 207, of 22.07.1992, p.7.

(4) As stated in the Ombudsman's previous decision on Complaint 45/26.7.95/JPB/PD/B-dk: "There seems to be a slight discrepancy between the different language versions of this provision. The Danish version quite rightly uses the term 'fornødne' and gives the impression that such administrative approaches are necessary. On the other hand, for instance the English, French, German, Spanish and Swedish versions use the terms 'appropriate', 'appropriées', 'geeigneten', 'adecuadas' and 'lämpliga' respectively which seems to imply that suitable administrative approaches must be made". European Ombudsman, Annual Report 1996, page 45.

(5) Own initiative inquiry into the Commission's administrative procedures in relation to citizen's complaints about national authorities (See, European Ombudsman, Annual Report 1997, p.270).

(6) Statute of the European Ombudsman, art. 2 (1): "Within the framework of the Treaties (...) the Ombudsman shall help to uncover maladministration in the activities of the Community institutions and bodies (...) No action by any other authority or person may be the subject of a complaint to the Ombudsman."