THE BACKGROUND TO THE COMPLAINT

1. On 17 May 2005, the complainant, an Austrian citizen, submitted an infringement complaint to the Commission, in which he outlined that the limit value for particulate matter (PM₁₀) had been exceeded in Vienna on more than 35 days between January and May 2005. He alleged that this amounted to a violation of Directive 1999/30[1]. He further alleged a violation of Directive 1996/62[2], Articles 7 and 8 of which require that, in cases where the limit value has been exceeded, Member States take effective measures in order to counteract such occurrence. According to the complainant, Austria had not taken any effective measures to do so. At the same time, he pointed out that projected motorways in the Vienna area would further aggravate both the general situation relating to PM₁₀ and the health risks related to it. This was especially so considering that the motorways were projected to run close to residential areas.

2. On 8 March 2007, the complainant turned to the European Ombudsman. Along with his complaint, he included, among other things, a letter of 8 March 2007 addressed to the Commission. In this letter, he drew the Commission's attention to the environmental and health implications of the projected motorways in the Vienna region.

THE SUBJECT MATTER OF THE INQUIRY

3. In his complaint, he submitted the following allegations and claim.

Allegations:

1. The Commission failed properly to deal with his complaint under Article 226 of the EC Treaty, which he submitted on 17 May 2005.
2. The Commission fails to impose effective sanctions when it establishes infringements of European environmental law.

Claim:

The Commission should give its opinion on the matters raised in his complaint of 17 May 2005 and in his letter of 8 March 2007.

4. As regards the complainant's second allegation, the Ombudsman considered that the complainant had not raised this issue in his previous contacts with the Commission. Given that he had therefore not made the appropriate prior administrative approaches required by Article 2(4) of the Statute of the European Ombudsman, his second allegation was inadmissible. The complainant had also apparently not yet sent his letter of 8 March 2007 to the Commission. Therefore the second aspect of his claim was also inadmissible. Nevertheless, at the complainant's request, the Ombudsman forwarded his letter to the Commission and, for the avoidance of confusion, suggested that it be dealt with separately from the Ombudsman's inquiry. The Commission replied to the complainant's letter on 4 May 2007.

5. In his additional observations (see paragraph 6 below), the complainant pointed out that, in the meantime, an environmental impact assessment had been launched with regard to a motorway projected to run through areas where the PM₁₀ limit values were already being exceeded. He submitted that, to his knowledge, the competent Federal Austrian Ministry did not only act as the awarding authority for the project, but was also in charge of approving it. He asserted that this state of affairs contradicted any sense of justice. It was furthermore incomprehensible that such a legal situation could be tolerated in a free and just Europe. Against this background, he claimed that the EU should immediately stop this situation and request that an independent control mechanism be created. The Ombudsman notes that, already in his letter of 8 March 2007, the complainant referred to what he appeared to perceive as a conflict of interest. In the same letter, he requested the EU to stop the construction of the projected motorways. In its reply of 4 May 2007, the Commission pointed out that, whereas the Member States are under an obligation to comply with Community legislation setting limit values for PM₁₀, it cannot oblige the Member States to stop constructing specific motorways, such as those projected in the Vienna area. The Ombudsman recalls that his present inquiry is directed against the Commission. He therefore understands the complainant's claim to be equally directed against the Commission. However, given that the Commission's position appears to be reasonable, there are insufficient grounds to take up the complainant's claim in the inquiry (Article 195 of the EC Treaty). As regards the complainant's perception of a conflict of interest, the Ombudsman notes that the complainant apparently takes issue with the distribution of competences in Austria relating to the conduct of environmental impact assessments. He further notes that the complainant's letter of 8 March 2007 was, for the reason stated in paragraph 4 above, not included in the present inquiry. He considers that the issue of a potential conflict of interest has no direct link with the Commission's reaction following the complainant's infringement complaint concerning the limit values that had been exceeded. It follows that this issue relates to a subject-matter different from the present complaint. In the interest of procedural economy, the Ombudsman considers that it would not serve a useful purpose to include the complainant's perception of a conflict of interest in the present inquiry.

THE INQUIRY

6. The complaint was forwarded to the Commission for an opinion, which it sent on 28 June 2007. The Commission's opinion was forwarded to the complainant with an invitation to make observations, which he sent on 28 August 2007. In view of the Commission's opinion and the complainant's observations, further inquiries proved necessary. Therefore, on 21 February and 28 October 2008, the Ombudsman requested further information from the Commission. The Commission replied to the Ombudsman's requests on 7 April 2008 and 15 January 2009 respectively. Both replies were forwarded to the complainant with an invitation to submit observations. The complainant submitted observations on 20 May 2008 and 26 March 2009 respectively. On 31 March 2009, he submitted additional observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

7. In his observations on the Commission's opinion (see paragraph 6 above), the complainant challenged the Ombudsman's decision to hold his second allegation inadmissible. He submitted that, given that the Ombudsman transferred his letter of 8 March 2007 to the Commission, the latter was now in possession of the relevant information. There was therefore no reason to continue holding the second allegation inadmissible. The complainant also expressed his dissatisfaction with the Commission's reference to the fact that the Ombudsman had held his second allegation to be inadmissible.

8. The Ombudsman considers that there is a logical link between the complainant's first and second allegations given that, under the heading of the first allegation, the Ombudsman needs to analyse whether the Commission properly dealt with the complainant's infringement complaint, and thus, among other things, whether the Commission took adequate action. In view of the outcome of his review of the complainant's first allegation (see paragraphs 27 - 43), the Ombudsman sees no need to include the complainant's second allegation in his inquiry. In this context, it appears useful to recall that all the arguments submitted in support of the complainant's second allegation in fact relate to instances where the PM₁₀ limit values had been exceeded and thus to the subject-matter of his first allegation.

A. As regards the Commission's alleged failure properly to deal with the complainant's infringement complaint

Arguments presented to the Ombudsman

9. The complainant alleged that the Commission failed properly to deal with his complaint under Article 226 of the EC Treaty, which he submitted on 17 May 2005. In particular, he stated that he had not yet received a reply following his infringement complaint.

10. In its opinion, the Commission explained that, alongside an annual PM₁₀ limit value, Directive 1999/30 set a daily limit value of PM₁₀ as from 1 January 2005. This value was not to be exceeded more than 35 times in a calendar year. In 2005, the daily limit value was exceeded more than 35 times in several cities and agglomerations in many Member States. The Commission pointed out that it had received a number of complaints regarding the fact that PM₁₀ limit values had been exceeded in several Member States.

11. As regards Austria, the Commission had received several hundred complaints relating to the fact that the daily PM₁₀ limit value, as defined by Directive 1999/30, had been exceeded on more than 35 days. In the Commission's view, an organised large-scale campaign was clearly behind these complaints, since the same complaint form was used by the complainants involved. Although only the first few complaints had been registered individually, the majority of complaints were registered using the 'multiple complaint' procedure. The complainants were informed accordingly through publication in the Official Journal and online on the European Communities' Europa server.

12. In accordance with Article 4(3) of the Commission's communication on relations with the complainant in respect of infringements of Community law[3] ('the Commission's Communication'), the acknowledgement of receipt of the Austrian multiple complaint was published on 17 June 2005[4]. Given that the complainant's infringement complaint formed part of the multiple complaint, he was not sent an individual reply or an acknowledgement of receipt. The Commission furthermore pointed out that, in line with the case-law of the Court of Justice, it enjoyed a wide margin of discretion when deciding whether or not to commence infringement proceedings against a Member State.

13. Regarding the developments subsequent to the registration of the PM₁₀ complaints, the Commission explained that, on 17 August 2005, it had addressed written requests for information to the Member States concerned. In particular, the Commission requested information concerning recorded instances where the limit value had been exceeded, their possible attribution to natural sources or the winter sanding of roads, as well as measures taken and plans, programmes and action plans drawn up. Austria's reply of 24 October 2005 showed that, in all cases, the levels of PM₁₀ in 2005 were above the air quality standards prescribed by the relevant Community legislation. This was also the case in some zones and agglomerations not mentioned in the complaints. The Austrian authorities moreover confirmed the influence of natural events and winter sanding on the actual levels. Whilst a subtraction of such causes would lower the number of days exceeding the limit value, it was conceded that even a subtraction would most likely not lead to compliance with the limit value. According to the Commission, Austria further pointed out that several regions had taken strategic action and measures to attain the air quality objectives envisaged under the Directive. Short-term measures were also in place and under consideration. There were some signs of improvement in certain areas.

14. Against this background, the Commission concluded that the situation in Austria was likely to change in the near future, since measures had already been taken or were under consideration at both the regional and federal levels. Overall, the Commission concluded that the Austrian authorities were taking a number of significant steps to comply with Community air quality legislation.

15. The Commission further explained that, in the interest of a coherent approach towards all Member States, it was agreed to wait for the Member States' Reports, pursuant to Article 11 of Directive 1996/62, which were due by September 2006. These would provide objective data on the situation in 2005. An evaluation of the relevant reports at the end of 2006 confirmed that all Member States except Ireland were in excess of the daily PM₁₀ limit value in many zones and agglomerations. Against this background, the Commission was considering the best way to proceed with the open complaint cases, including the Austrian multiple complaint case.

16. In his observations, the complainant noted that the Commission was considering the best way to deal with the open complaint cases. He expressed the hope that the EU would, in this respect, ask the Member States to take concrete steps. He also suggested that projects could be stopped or suspended, and that new project assessments could be carried out by independent experts.

17. The complainant regretted that, despite the mass complaints underscoring the importance and urgency of the matter, the Commission had not been able to take a decision, even though the problem was blatant. He expressed the hope that the Commission would start infringement proceedings where the PM₁₀ limit values were being exceeded. The existence of problems regarding the PM₁₀ limit values in all Member States except Ireland underscored the need for sanctions.

18. In his request for further information, the Ombudsman noted that the Commission was considering the best way to proceed in relation to the open complaint cases. In this regard, he asked the Commission for information on the outcome of its considerations relating to the Austrian multiple complaint case.

19. In its reply, the Commission explained that, on 12 October 2007, it asked all the Member States where the PM₁₀ limit values were being exceeded to provide detailed information on the measures already taken or foreseen, with a view to complying with the PM₁₀ limit values. This information was also sought in order to assess whether those Member States fulfilled the conditions for a potential extension of attainment deadlines under the proposal for a new Directive on ambient air quality and cleaner air for Europe. On 15 January 2008, Austria submitted its reply, which was then subject to the Commission's technical assessment. The Commission informed individual complainants of these developments and published a relevant note in the Official Journal to inform the citizens who had submitted the Austrian multiple complaint case. Moreover, on 17 October 2007, the Commission published a press release explaining its position and the envisaged further action.

20. The Commission also pointed out that, after the entry into force of the new Directive, Member States will have the possibility to apply for extensions to the deadline for the attainment of PM₁₀ limit values. It also pointed to the importance of the Member States' replies to its letter of 12 October 2007, with respect to the conditions under which such extensions could be granted. Finally, the Commission explained that, after receiving applications, it had a period of nine months to assess their validity.

21. In his observations, the complainant noted that, in spite of the massive health risks, confirmed instances where PM₁₀ limit values had been exceeded in as many as 23 Member States and mass complaints, the Commission did not consider it necessary to start infringement proceedings. Instead, it referred to extensions of deadlines, time periods for the evaluation of respective applications and ongoing analyses. Thus, in his view, the Commission was not reacting to the relevant complaints seriously by taking rapid action. In light of the diseases and thousands of deaths resulting from air pollution every year, the complainant stressed that no more time could be spent assessing reports and extending deadlines.

22. In his additional request for further information, the Ombudsman asked the Commission about the outcome of its assessment of Austria's reply dated 15 January 2008. Moreover, he requested information as to which steps, if any, the Commission had taken in relation to the Austrian multiple complaint case following its evaluation of Austria's reply. Finally, he asked whether Austria had applied for an exemption pursuant to Article 22(2) of the new Ambient Air Quality Directive[5], and if so, with regard to which zones or agglomerations.

23. In its reply, the Commission explained that Directive 2008/50 entered into force on 11 June 2008. On 19 June 2008, the Commission registered an own-initiative case for the non-compliance with PM₁₀ limit values, under which all complaints on the matter would be treated. By letter of 30 June 2008, the Commission informed all Member States exceeding the limit values that, if they failed to provide, by 31 October 2008, a notification in accordance with Article 22 of Directive 2008/50, a letter of formal notice would be issued. The letter was followed by a press release on 8 July 2008, in which the Commission explained its intended course of action.

24. By letter of 30 September 2008, Austria indicated its intention to apply for an exemption pursuant to Article 22(2) of Directive 2008/50[6] for all areas and agglomerations where PM₁₀ limit values were being exceeded. Given the entry into force of Directive 2008/50, the Commission did not take any further specific action with a view to either closing the Austrian multiple complaint case or issuing a letter of formal notice. The information provided by Austria in its letter of 15 January 2008 would form the basis for the Commission's assessment on whether an exemption could be granted. On 30 October 2008, Austria made a formal application for an exemption pursuant to Article 22(4) of Directive 2008/50[7], which was further supplemented by a letter dated 17 November 2008. This application related to all areas and agglomerations where PM₁₀ limit values were being exceeded. The Commission explained that it now had nine months to assess the validity of Austria's application. Where the conditions for granting an exemption were not satisfied, the Commission would consider further legal action.

25. The Commission furthermore explained that the complainant had been fully informed of the steps taken as regards the Austrian multiple complaint case. He would be equally informed when a decision is taken on this complaint.

26. In his observations, the complainant emphasised that he was both disconcerted and astonished by the Commission's reply. If the Commission, instead of rapidly and efficiently protecting citizens from air pollution, granted exemptions from complying with relevant limit values, this was of no help to Union citizens. He expressed his disappointment with what he perceived to be a lack of rapid action and asked the Ombudsman to request the Commission to act promptly on the matter instead of merely granting exemptions.

The Ombudsman's assessment

27. The Ombudsman deems it pertinent to point out that complaints by citizens constitute one of the most important means of information on possible infringements of Community law. They enable the Commission to fulfil the role assigned to it in Article 211 of the EC Treaty, which is that of 'guardian' of the Treaty. It is good administrative practice to deal with such infringement complaints as rapidly and diligently as possible.

28. The Ombudsman understands the complainant's allegation to comprise two different aspects, namely, the Commission's alleged failure (i) to react and (ii) to take adequate action within a reasonable time following his infringement complaint.

29. As regards the first aspect, the complainant complained that he received no reply or acknowledgement of receipt regarding his infringement complaint. In its opinion, the Commission referred to the 'mass complaint' procedure. Thus, pursuant to point 4(3) of the Commission's Communication, "[w]here a number of complaints are lodged in relation to the same grievance, individual acknowledgements may be replaced by a publication in the Official Journal of the European Communities and on the European Communities' Europa server". The Ombudsman takes note of the publication, in the Official Journal of the European Communities[8], of an acknowledgement of receipt for a 'mass complaint' relating to the fact that the 24-hour limit value for PM₁₀ had been exceeded on more than 35 days in 2005 in the city of Graz, as well as in other agglomerations in Austria (complaint 2005/4316). In view of the apparently large number of relevant complaints received in this regard, the Commission's reliance on point 4(3) of its Communication appears to be reasonable. Given that the complainant has not challenged the Commission's reasoning, the Ombudsman sees no need for further inquiries with regard to the first aspect of the allegation.

30. Turning to the second aspect of the complainant's allegation, the Ombudsman notes that, in his infringement complaint, the complainant pointed to a breach of Community law by Austria. According to him, in spite of the fact that the limit value for PM₁₀ had already been exceeded on more than 35 days in Vienna in 2005, Austria had taken no effective and adequate counter measures. In the complainant's view, Austria had thus violated Directives 1999/30 and 1996/62. In its opinion, the Commission did not dispute that Austria had violated the relevant Community law by exceeding the limit value for PM₁₀ on more than 35 days in 2005.

31. It follows from the settled case-law of the European Court of Justice that the Commission is not obliged to commence infringement proceedings in every instance where a Member State has violated Community law. The Commission has a discretionary power in this field. Citizens are thus not entitled to require it to adopt a particular position with regard to the substance of their infringement complaints. At the same time, the exercise of the Commission's discretion is subject to the framework of the Commission's Communication.

32. As a general rule, point 8 of the Commission's Communication requires it to arrive at a decision to issue a formal notice or to close the case within a year from the date of registration of the relevant complaint. It therefore follows that the Commission has committed itself to adopting a definitive position on an infringement complaint normally within one year. Its position may result in the opening of proceedings or the definitive closure of a case.

33. The Ombudsman notes that the complainant submitted his infringement complaint on 17 May 2005. The acknowledgement of receipt for the Austrian multiple complaint case was published on 17 June 2005. Given that, on 8 March 2007, when the complainant turned to the Ombudsman, the Commission had not yet adopted a position on the complainant's infringement complaint, it is clear that the Commission exceeded the time-limit of one year foreseen by point 8 of the Commission's Communication.

34. It is clear that there can be cases where the Commission's examination of an infringement complaint may take more than a year. However, and as mentioned above, point 8 of the Commission's Communication provides that, as a general rule, the Commission is to arrive at a decision regarding an infringement complaint within one year from the date of registration. The Ombudsman therefore takes the view that good administrative practice requires the Commission to provide valid reasons if it fails to assess an infringement complaint within the one-year deadline[9]. However, he notes that the complainant does not allege that the Commission failed to comply with point 8 of its Communication but, more generally, that it failed properly to deal with his infringement complaint. The Ombudsman therefore considers that it is sufficient to examine, in the present case, whether the Commission ought to have dealt with his infringement complaint by the time the complainant turned to the Ombudsman. At that point in time, nearly one year and nine months had passed since the complainant initially submitted his infringement complaint to the Commission.

35. Both in its opinion and in its replies to the Ombudsman's requests for information, the Commission explained its approach in relation to the infringement complaint at issue. The Ombudsman understands that the Commission wished to argue that the length of time it needed to deal with the complainant's case was due to the need (i) properly to examine the relevant facts and (ii) to ensure a coherent approach also with regard to the other Member States where similar problems had arisen.

36. As regards the first of the reasons invoked by the Commission, the Ombudsman accepts that an evaluation of complex technical data may involve a considerable amount of time. It is thus perfectly viable that, in order to arrive at a position in relation to an infringement complaint involving an evaluation of complex technical data, the Commission may take more than one year from the date of registration of the infringement complaint. The Ombudsman notes that the Commission has repeatedly made reference to the need to carry out such an evaluation in the present case. However, he is not convinced that the present case in fact required an evaluation of complex data.

37. It is apparent from its own submissions that, already in 2005, and following a reply from Austria dated 24 October 2005, the Commission considered that all areas had levels of PM₁₀ above the respective standards set by Community legislation. At the same time, noting "some signs of improvement in some areas", the Commission considered that the situation in Austria was likely to change in the near future. After an evaluation of the Member States' reports at the end of 2006, the Commission concluded that all Member States except Ireland were in excess of the daily PM₁₀ limit value in many zones and agglomerations. Against this background, the Ombudsman considers that it must have been clear to the Commission at the end of 2006 that the situation in Austria as regards the PM₁₀ limit values had not changed so as to enable it to comply with applicable air quality standards. In view of these factual circumstances, the Ombudsman is unable to see how ascertaining whether or not Austria was in compliance with the PM₁₀ limit values would require an evaluation of complex technical data.

38. As regards the second reason put forward by the Commission, the Ombudsman notes that the Institution referred to its decision to deploy a 'coherent approach' regarding all the Member States where the pertinent limit values had been exceeded. The results it obtained from the Member States clearly demonstrated that the PM₁₀ limit values had, indeed, been exceeded in almost all Member States. It follows that this issue appeared to be of a Community-wide concern and thus went beyond the confines of one individual Member State. Against this background, the Commission's position, as a matter of principle, appears reasonable. At the same time, the Ombudsman recalls that, in its case-law, the Court of Justice has stressed that Directive 1996/62 "is intended to control and reduce atmospheric pollution and ... therefore, to protect public health"[10]. Thus, in relation to the directives on ambient air, the protection of the health of citizens must be considered of key importance. Essentially in line with these considerations, the complainant repeatedly pointed to the severe health implications caused by the fact that PM₁₀ limit values had been exceeded.

39. Therefore, when adopting a 'coherent approach', the Commission must take due account of citizens' interests and, in particular, public health. With this in mind, the Ombudsman considers that a 'coherent approach' must not lead to unnecessary delays in the Commission's decision on an infringement complaint relating to a particular Member State where exceedances of the PM₁₀ limit values have repeatedly been reported and ascertained.

40. Against this background, the Ombudsman is not convinced that the Commission's further information request to the Member States in October 2007 was essential to arrive at a position on the complainant's infringement complaint. This is due to the fact that it had already been ascertained twice that Austria had not, as foreseen by the legislation in force, complied with the PM₁₀ limit values. The Ombudsman further understands that Austria's reply to the Commission's information request merely confirmed that the PM₁₀ limit values were being exceeded. The Ombudsman is mindful of the fact that the Commission enjoys a wide discretion when deciding whether or not to start infringement proceedings against a Member State that has violated Community law (see paragraph 31 above). However, he fails to see why, in light of a sufficiently clear factual background, the Commission did not exercise its discretion and take a position on the Austrian multiple complaint case including the complainant's infringement complaint.

41. The Ombudsman therefore takes the view that the Commission failed to deal with the complainant's infringement complaint as rapidly and diligently as possible. This constitutes an instance of maladministration.

42. When the Ombudsman finds an instance of maladministration, he makes, where appropriate, a friendly solution proposal or a draft recommendation to the institution concerned. In the present case, such a proposal or draft recommendation would involve calling upon the Commission to deal with the complainant's infringement complaint as rapidly as possible. However, regard needs to be had to the fact that the applicable legal framework has in the meanwhile changed. On 11 June 2008, Directive 2008/50 entered into force. This Directive foresees a right for Member States to apply for temporary exemptions under certain conditions (see paragraph 24 above). In the Ombudsman's view, this effectively means that Member States which fulfil the conditions for such exemptions are granted an additional period of time to fulfil their obligations under Directive 1999/30 and Directive 1996/62. In its reply to the Ombudsman's request for further information, the Commission explained that Austria submitted a formal application for such an exemption relating to all areas and agglomerations where PM₁₀ limit values were being exceeded. It also pointed out that, where the conditions for granting an exemption are not satisfied, it would consider further legal action. Given these circumstances, the Ombudsman considers that the Commission is, as a result of the coming into force of Directive 2008/50, unable to deal with the complainant's infringement complaint before examining Austria's application for an exemption pursuant to that Directive. The Ombudsman trusts that the Commission will deal with this application without undue delay and, if necessary, take further action.

43. The Ombudsman takes note of the complainant's dissatisfaction with the fact that the Commission is currently considering whether an exemption should be granted to Austria. However, given that the Commission's approach appears to be in conformity with Article 22 of Directive 2008/50, and thus with the relevant legal framework, as amended, the Ombudsman takes the view that it would not serve any useful purpose to make a friendly solution proposal or a draft recommendation in the present case. However, the fact that the Commission will need to examine Austria's application for an exemption under Directive 2008/50 in order to arrive at a definitive conclusion concerning the complainant's infringement complaint does not affect the conclusion that there was undue delay on the part of the Commission when the complainant turned to the Ombudsman. In light of these circumstances, the Ombudsman will make a critical remark below.

B. Claim that the Commission should give its opinion on the matters raised in the complainant's complaint of 17 May 2005

44. In his complaint, the complainant claimed that the Commission should give its opinion on the matters raised in his complaint of 17 May 2005.

45. In its opinion, the Commission stated that the complainant's complaint was not answered individually because it formed part of a larger multiple complaint. However, in its letter of 4 May 2007 to the complainant, the Commission replied to the complainant's letters of 17 May 2005 and 3 March 2007.

46. In his observations on the Commission's opinion, the complainant did not comment on the Commission's view.

47. The Ombudsman notes that, in his observations, the complainant did not object to the Commission's use of the 'mass complaint' procedure. He also observes that the Commission's Communication provides, in such instances, for the replacement of individual acknowledgements by publication in the Official Journal. In any event, the Ombudsman notes that, in its letter of 4 May 2007 and in the course of his inquiry, the Commission in detail explained its position regarding the complainant's infringement complaint. Against this background, the Ombudsman takes the view that the Commission has taken steps to settle the matter.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman makes the following critical remark:

The Commission failed to deal with the complainant's infringement complaint as rapidly and diligently as possible. This constituted an instance of maladministration

As regards the complainant's claim, the Commission has taken steps to settle the matter.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 16 July 2009

---

[1] Directive 1999/30/EC of 22 April 1999 of the Council relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air, OJ 1999 L 163, p. 41.

[2] Directive 1996/62/EC of 27 September 1996 of the Council on ambient air quality assessment and management, OJ 1996 L 296, p. 55.

[3] Commission communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law, OJ 2002 C 244, p. 5.

[4] OJ 2005 C 147, p. 20.

[5] Directive 2008/50/EC of 21 May 2008 of the European Parliament and of the Council on ambient air quality and cleaner air for Europe, OJ 2008 L 152, p. 1.

[6] Article 22(2) of Directive 2008/50 provides as follows: "Where, in a given zone or agglomeration, conformity with the limit values for PM10 as specified in Annex XI cannot be achieved because of site-specific dispersion characteristics, adverse climatic conditions or transboundary contributions, a Member State shall be exempt from the obligation to apply those limit values until 11 June 2011 provided that the conditions laid down in paragraph 1 are fulfilled and that the Member State shows that all appropriate measures have been taken at national, regional and local level to meet the deadlines."

[7] The Ombudsman considers that the Commission's reference to both Article 22(2) and 22(4) of Directive 2008/50 could imply that, in the Commission's view, the Directive in fact provides for two different exemptions. Thus, he deems it necessary to clarify that, in his view, only Article 22(2) of the Directive provides for an exemption, whereas Article 22(4) of the Directive relates to procedural requirements to be fulfilled by Member States applying for an exemption. Article 22(4) of Directive 2008/50 reads as follows:

"Member States shall notify the Commission where, in their view, paragraphs 1 or 2 are applicable, and shall communicate the air quality plan referred to in paragraph 1 including all relevant information necessary for the Commission to assess whether or not the relevant conditions are satisfied. In its assessment, the Commission shall take into account estimated effects on ambient air quality in the Member States, at present and in the future, of measures that have been taken by the Member States as well as estimated effects on ambient air quality of current Community measures and planned Community measures to be proposed by the Commission.

Where the Commission has raised no objections within nine months of receipt of that notification, the relevant conditions for the application of paragraphs 1 or 2 shall be deemed to be satisfied.

If objections are raised, the Commission may require Member States to adjust or provide new air quality plans."

[8] OJ 2005 C 147, p. 20.

[9] Decision on complaint 2944/2004/(GK)(OV)ID, paragraph 1.7.

[10] Case C-237/07 Janecek, judgment of 25 July 2008, not yet published in the ECR, paragraph 37.