Dear Mr A.,
On 5 March 1996 Greenpeace España and the association Cordinadora de Itoiz made a complaint to the European Ombudsman concerning the European Commission. In later correspondence you were designated the representative of the complainants. In the complaint it was put forward that the Commission had failed to ensure that the Spanish authorities' decision to build a water reservoir at Itoiz, Navarre was in conformity with Directive 85/337 and Directive 79/409. Your complaint concerned both the Commission's dealing with a complaint you had made to the Commission concerning this, and the Commission's assessment of the complaint.
On 3 June 1996 I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 9 October 1996 and I forwarded it to you with an invitation to make observations if you so wished. By letter of 25 November 1996 you submitted your observations on the Commission's opinion. In the observations, you put forward that the Commission had also failed to ensure that the Spanish authorities comply with Directive 92/43. You addressed further letters to me on 24 March 1997, 2 May 1997 and 28 July 1997. By letter of 28 July 1997 you forwarded copy of a judgment delivered by the Tribunal Superior de Justicia de Madrid, which concerns the building of the reservoir.
On 2 December 1997 I asked the Commission for a second opinion on your complaint. By letter of the same day, I informed you that under Article 1 (3) and 2 (7) of the Statute of the European Ombudsman, I was not able to continue my inquiries into your grievance concerning the Commission's assessment of the complaint you had originally made to the Commission concerning the Spanish authorities. The said articles provide that the European Ombudsman may not inquire into facts which have been the subject of legal proceedings in progress or concluded. An examination of the Commission's first opinion and your observations revealed that several legal proceedings had been initiated or concluded in Spain, dealing with the question of whether the Spanish authorities had complied with their obligations under the mentioned Directives. Therefore, this Decision shall only address your grievance that the Commission did not deal properly with the complaint you lodged with the Commission.
The Commission forwarded its second opinion on 10 February 1998, which I sent to you with an invitation to make observations if you so wished. By letter of 23 March 1998 and fax of 16 June 1998 you lodged observations. By letter of 28 September 1998 you made a further submission.
I am writing now to let you know the result of the inquiries which have been made.
I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The background to your complaint can briefly be summarized as follows:
In 1990, the Spanish Minister for Public Works approved the construction of a water reservoir at Itoiz, Navarre. It appears that the project is very large, as 11.500.00 m² will be inundated entailing a water storage capacity of 418 hm³.
The complainants considered that under the procedures which led to the approval of the construction plan, the Spanish authorities had not complied with Council Directive 85/337 on the assessment of the effects of certain public and private projects on the environment (1). Furthermore, the associations considered that the project infringed Council Directive 79/409 on the protection of wild birds(2).
In relation to the first Directive, the complainants considered that the Spanish authorities had not made a proper environmental assessment. In relation to the Second Directive, the associations put forward the following: Directive 79/409 aims at protecting wild birds and Art 4 provides that Member States shall establish special protection areas. Article 4 (4) provides:

"In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats."

The complaining associations considered that the Spanish authorities had violated this provision as it has been interpreted in the case-law of the Court of Justice, in particular the Court's judgment of 28 February 1991 in case C-57/89, Commission v Germany(3). In the judgment the Court ruled on the possibility of reducing a special protection area under Article 4 (4) of the Directive. In the words of the Court:

"[The] interpretation of Article 4 (4) of the Directive is borne out, moreover, by the ninth recital in the preamble, which underlines the special importance which the Directive attaches to special conservation measures concerning the habitats of the birds listed in annex I in order to ensure their survival and reproduction in their area of distribution. It follows that the power to reduce the extent of a special protection area can be justified only on exceptional grounds.

Those grounds must correspond to a general interest which is superior to the general interest represented by the ecological objective of the Directive. In that context the interests referred to in Article 2 of the Directive, namely economic and recreational requirements, do not enter into consideration."

According to the associations, the reservoir would reduce special protection areas and the Spanish authorities would build the reservoir only for economic reasons. Thus, they considered the construction of the reservoir to be contrary to the case law of the Court.
Against this background, the associations, together with a number of municipalities affected by the construction of the reservoir, lodged a complaint with the European Commission, whose duty it is, under Article 155 of the EC Treaty, to ensure compliance with Community law. The complainants produced considerable documentation to the Commission in support of their view.
By letter of 21 December 1994, the Commission informed the complainants about its decision on the complaint. The letter states:

"Dear Sirs,

Hereby I inform you that the Commission decided in its meeting of 30 November 1994 to close the complaint that you have made against the project of a reservoir in Itoiz. The complaint was registered in the official complaint register of the Commission under number P/4758/92.

I enclose the Spanish version of the press release that the Commission has deemed necessary to publish, explaining the decision to close the case.

I shall observe that after considering the documentation provided by you as well as by the competent authorities, the Commission's services could not establish an infringement of environmental Community law, as it could not be proved, on the base of the existing knowledge that the project would have a significant impact on the environment in the meaning of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora.

In this situation, the Commission could only decide to close the case.

I thank you for the interest that you and the bodies you represent, the Navarre municipalities of Valle de Lónguida, Aoiz, Valle de Artze, Oroz- Beztelu, the Junta General del Valle de Aezcoa and the Coordinadora de Itoiz, have shown in the conservation and protection of the environment."

Yours sincerely,....". (Translated by the Ombudsman's services).

The press release referred to states the following concering the Commission's reasoning for closing the case:

"The Commission has just discontinued a procedure for looking at a possible infringement of legislation for the wild birds in the Navarre region of Spain...

The Commission intervened following a complaint asserting that the project would affect two areas, namely Sierra de Artxuba Y Zariqueta and Montes de Areta, which were initially protected under Council Directive 79/409 on the conservation of wild birds. For the most part, the Commission looked at the complaint on the basis of Council Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, which with effect from 5 June 1994 replaced the initial provisions of the 1979 Directive.

The Commission has investigated this matter in a spirit of dialogue and partnership with both the Spanish authorities on the one hand and the complainants and ecology groups on the other. The departments of the Commission looked at several studies concerning the impact of the project, and visited the areas affected. All interested parties were given an opportunity to express their views at a hearing in Madrid on 25 October 1994.

The investigation enabled the effects of the dam on the environment to be ascertained and it to be established that these effects are not of significance within the meaning of the 1992 Directive. Given that there is no evidence of any infringement of Community law, the Commission has closed the matter."

Taking into account the efforts and the considerable documentation provided to the Commission, the associations found this decision unsatisfactory. In particular, they considered that the Commission had failed to address their grievances as concerns Directives 85/339 and 79/409 and that the Commission's referral to Directive 92/43 was faulty, as this Directive had not entered into force at the time of the project. Against this background, the complainants lodged the complaint with the Ombudsman. Attached to the complaint was considerable documentation, amongst which reports established by Spanish Society of Ornithologists which concluded that the Itoiz project would seriously affect the birdlife in the area concerned.

THE INQUIRY

The Commission's opinion
As concerns the Commission's dealing with the complaint, the Commission has in summary stated the following: The complaint was lodged in July 1992 and an acknowledgment of receipt was sent in September 1992. At the same time, the Commission requested further information from the complainants. On 26 November 1992, the Commission requested information from the Spanish authorities. In the absence of an answer from the Spanish authorities, the Commission sent a reminder on 4 February 1993. On 14 May 1993 the Spanish authorities answered the request. The case was thereafter discussed in depth at a meeting held in Madrid on 3 March 1994 between representatives from the Commission and the Spanish authorities. Following those discussions, a complementary set of information was sent to the Commission by the Spanish authorities on 21 April 1994.
The case was discussed at political level in Luxembourg on 8 June 1994 between Commissioner Mr Paleokrassas, Spanish Minister Mr Borrell, Spanish Secretary of State Mrs Narbona and the President of the Government of Navarre Mr Alli. During this meeting, the Spanish authorities stressed the public interest of the project and offered so-called compensation under Article 6 (4) of Directive 92/43 on the conservation of natural habitats and wild fauna and flora.
An on-site visit to Itoiz by representatives of the services of the Commission took place on 23 June 1994. At the conclusion of the visit, the Commission representatives requested information and documents from Spanish local and central authorities; specifically, they requested justification of the overriding public interest of the project, analyses of alternative sites and locations considered before the decision to build the Itoiz reservoir, information on the irrigation projects, a formal promise that these projects would be subject to a full impact assessment procedure, and a debate open to all relevant interested parties where the compensation areas would be discussed.
In July 1994, the Spanish authorities presented a first set of documents concerning the hydrology of Navarre and a timetable for submission of the rest of the information requested. On 25 July 1994, Commissioner Mr Paleokrassas asked Minister Mr Borrell to postpone the execution of permanent works at Itoiz until the matter was settled. This request was accepted by the Minister by letter of 3 August 1994, and this stand-still situation continued until the file was closed on 30 November 1994. On 21 September 1994 the Spanish authorities submitted a full set of documents concerning the overriding public interest of the project, the alternatives examined and the effect of the project on wild birds. On 4 October 1994 the Spanish authorities submitted a document on the compensations offered under Directive 92/43.
On 25 October 1994, on the Commission's initiative, the Spanish authorities organised a hearing on the Itoiz project in Madrid. All relevant interested parties were allowed to participate and actively defend their reasons in favour or against the project. TV, press and other media covered the event. The complaining association "Coordinadora de Itoiz" and its representatives were also present and participated in the debate. After the hearing, the Commission's services established a final report.
As concerns the complainants' allegation about an infringement of Directive 85/337, the Commission stated that an environmental impact assessment had been carried out by the Spanish authorities.
As concerns the allegation related to Directive 79/409, the Commission stated that it examined the complaint from the point of view of Article 4 (4) of the Directive. However, the obligations imposed upon Member States by that provision have been replaced since 5 June 1994 by the provisions of Directive 92/43. Article 6 (2) of Directive 92/43 provides that Member States shall take appropriate steps to avoid, in special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbances of species for which the areas have been designated, in so far as such disturbances could be significant.
Article 6 (3) states that there shall be an assessment of any project which is not directly linked with or necessary to the management of the area but likely to have a significant impact thereon, either individually or in combination with other plans or projects.
Article 6 (4) states that if, in spite of a negative assessment, a project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social and economic nature, the Member State concerned shall take all compensatory measures to ensure protection of the overall coherence of the ecological network of special areas of conservation, set up by Article 3 of the Directive and called "Natura 2000".
On the basis of these provisions, the Commission had found that the inundation of around 6 % of one of the special areas concerned by the Itoiz project should be assessed as negative. However, according to a technical report made by the Commission services, it was hard to determine whether this could be regarded as "significant" within the meaning of Directive 92/43. Therefore, the Commission decided not to open infringement procedures against Spain.
The complainants' observations
In their observations, the complainants have in particular put forward that the Commission still failed to provide them with adequate explanation as to why the Commission had found that Spain had properly complied with its obligations under the Directives 85/337 and 79/409. According to the complainants, the Commission was not entitled to assess the project in the light of Directive 92/43, as this Directive was not in force when the project was begun. In their view, it was clear that the project was contrary to Directive 79/409: It was established that there would be reduction of at least one special protection area and that this would not occur on grounds which "correspond to a general interest which is superior to the general interest represented by the ecological objective of the Directive", cf. the Court's ruling in the above-mentioned Leybucht case. To their observations, the complainants annexed documents which showed that the Commission services had at a certain moment considered the project to be contrary to Directive 79/409.
Further inquiries
After consideration of the Commission's opinion and the complainants' observations, the Ombudsman addressed the Commission. In his letter, the Ombudsman asked the Commission to provide a more detailed explanation for its finding that the Spanish authorities had complied with their obligations under the Directives 85/337 and 79/409.
In its second opinion, the Commission stated in substance the following:
As concerns Directive 85/337, the Spanish Ministry of Public Works approved the irrigation project called "Canal of Navarre" in December 1961. A first project on the Itoiz reservoir was approved in 1977. The implementation of the Itoiz project was approved in 1985. Both projects were modified at later dates to take into account the results of public consultation and new assessments on the needs for water. Under the circumstances, it would be difficult to justify that Directive 85/337, which had to be implemented before 3 July 1988, applied to the case, cf. the judgment of the Court of Justice in the case "Grosskrotzenburg"(4).
However, in 1989 an impact assessment procedure for the Itoiz project was launched and it finished in 1990, after a public consultation period. In 1992 the final decision on the implementation of the project was taken and in 1993, the preliminary works started. Therefore, in the Commission's view, an impact assessment was made and evidence provided proved that the effects of the project on the environment, including protected birds, were adequately assessed.
As concerns Directive 79/409, the Commission services considered, at the beginning of the investigation, that the effects of the Itoiz project on birds and habitats could be significant and therefore contrary to Article 4 (4) of the Directive. However, their conclusions changed when the services assessed the information received from the Spanish authorities and the additional information collected during the hearing held in Madrid. The case was subsequently assessed in the light of Directive 92/43 as the provisions of this Directive replaced Article 4 (4) of Directive 79/409 as from May 1994.
In their observations on the Commission's second opinion, the complainants maintained their complaint.

THE DECISION

1. The complaint raises the question of whether the Commission's dealing with the complainants' original complaint to the Commission has been adequate.
2. As concerns the Commission's examination of the original complaint, there appears, on the basis of the Commission's account and the documentation forwarded by the complainants, to be no elements to the effect that the instruction has been faulty.
3. As concerns the reasoning that the Commission has given for its conclusions, it appears that one principal point of dispute remains between the Commission and the complainants. That is whether the Commission has given adequate reasoning in relation to the complainants' grievance that the Itoiz project was contrary to Directive 79/409 and that this infringement could not be remedied through Directive 92/43 which was not in force at the relevant moment.
Principles of good administration require that the administration give adequate reasoning to the citizens for the decisions it takes. In reply to the own initiative inquiry that the European Ombudsman made in 1997 of the Commission's administrative procedures for dealing with complaints concerning Member States' infringements of Community law, the Commission undertook to provide complainants with statements of reason when concluding that no infringement had occurred (5).
In this case it appears that the complainants have persistently put forward that the Itoiz project was contrary to Directive 79/409 and that this infringement could not be remedied through Directive 92/43 which was not in force at the relevant moment. It also appears that the Commission failed to address this grievance in its original decision, which was accordingly insufficient in its reasoning. That decision was taken before the Commission's undertaking in case 303/97/PD, as referred to above. However, the Commission has also failed to properly address the grievance in its opinions on the present complaint; thus, it appears that the Commission is unable to give adequate reasons, and this establishes an instance of maladministration.

CONCLUSION

4. On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

Principles of good administration require the Commission to give adequate reasons for the decisions it takes towards the citizens. In this case it appears that the complainants have persistently put forward that the Itoiz project was contrary to Directive 79/409 and that this infringement could not be remedied through Directive 92/43 which was not in force at the relevant moment. It also appears that the Commission failed to address this grievance in its original decision, which was accordingly insufficient in its reasoning. That decision was taken before the Commission undertook to provide complainants with statements of reasons when concluding that no infringement had occured. However, the Commission has also failed to properly address the grievance in its opinions on the present complaint; thus, it appears that the Commission is unable to give adequate reasons, and this establishes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman has therefore decided to close the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob Söderman

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(1) OJ 1985 L 175/ 40.

(2) OJ 1979 L 103/1.

(3) [1991] ECR I-883 (the so-called Leybucht case). Subsequently, the complainants also referred in particular to the judgment of 2 August 1993 in case C-355/90, Commission v Spain, [1993] ECR I- 4221 (the so-called Santoña case).

(4) Judgment of 11 August 1995 in case C-431/92, [1995] ECR I-2189.

(5) Case 303/97/PD, reported in the European Ombudsman Annual Report 1997, section 3.7.