European Ombudsman
Decyzji w sprawie 3660/2004/PB - Brak działania w związku ze skargą na naruszenie przepisów o
środowisku
Decyzja
Sprawa 3660/2004/PB - Otwarta 12/01/2005 - Decyzja z 03/05/2007
Skarżąca wniosła skargę do Komisji zarzucając Irlandii, że ta złamała przepisy dyrektywy siedliskowej [1] . Zdaniem skarżącej Irlandia powinna uwzględnić pewien teren podmokły w wykazie miejsc przekazanym Komisji w celu ustanowienia sieci NATURA 2000. Komisja zdecydowała nie podejmować żadnych działań w związku ze skargą, ponieważ nie było dowodów na to, czy dane tereny podmokłe odpowiadały naukowemu opisowi siedlisk objętych dyrektywą i niezbędne były w tej sprawie dodatkowe szczegółowe informacje ekologiczne. W skardze do Rzecznika skarżąca zarzucała Komisji zaniechanie działania w tej sprawie. Twierdziła, że Komisja nie wyjaśniła, dlaczego odnośny teren podmokły nie był objęty dyrektywą siedliskową.
Po zbadaniu odpowiednich przepisów i orzecznictwa Rzecznik stwierdził, że Komisja może zasadnie wymagać odpowiednich informacji naukowych potwierdzających zarzut naruszenia przepisów dyrektywy siedliskowej. Takie informacje zawierają w szczególności konkretne i rzetelne dane naukowe o środowisku i cechach świadczących, zgodnie z dyrektywą, o ochronie danego miejsca, chyba że cechy te są bezpośrednio widoczne. W związku z powyższym Rzecznik stwierdził, że Komisja udzieliła wystarczającego wyjaśnienia co do zarzucanego pominięcia, które nie było bezpodstawne. Rzecznik nie stwierdził w tej sprawie niewłaściwego administrowania.
Skarżąca zarzucała również Komisji niepodjęcie dalszych działań w związku z
argumentowanym ewentualnym naruszeniem przepisów dyrektywy w sprawie odpadów [2] . Skarżąca opisała, jak wyrzucano odpady na danym terenie podmokłym. Komisja wyjaśniła swoją decyzję, twierdząc, w skrócie, że (i) przestrzeganie przepisów prawa w dziedzinie środowiska jest przede wszystkim obowiązkiem państw członkowskich; (ii) postępowanie sądowe wszczęte przez Komisję przeciwko Irlandii właśnie dotyczące dyrektywy w sprawie odpadów zakończyło się pozytywną decyzją (sprawa C-494/01); (iii) w razie ogólnego i regularnego naruszania prawa wspólnotowego optymalnie wykorzystuje się zasoby administracyjne Komisji w celu dokonania reformy strukturalnej; oraz że (iv) w wyniku wprowadzenia w Irlandii jednej z reform, w 2003 r. ustanowiono urząd ds. środowiska (Office of Environmental Enforcement - OEE), do którego skarżąca może się obecnie zgłaszać z konkretnymi problemami.
Rzecznik uznał wyjaśnienia Komisji w tej sprawie za wystarczające i również zaznaczył, że
Komisja udzieliła skarżącej właściwych i przydatnych informacji. Nie stwierdził zatem przypadku niewłaściwego administrowania w tej części sprawy.
[1] Dyrektywa Rady 92/43/EWG z dnia 21 maja 1992 r. w sprawie ochrony siedlisk przyrodniczych oraz dzikiej fauny i flory, Dz.U. L 206 z 1992, str. 7.
[2] Dyrektywa Rady 75/442/EWG z dnia 15 lipca 1975 r. w sprawie odpadów, Dz.U. L 194 z 1975, str. 39.
Strasbourg, 3 May 2007 Dear Ms B.,
On 1 December 2004, you made a complaint to the European Ombudsman concerning an alleged failure by the European Commission to take action on an Article 226 infringement complaint regarding Community environmental legislation.
On 12 January 2005, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 22 April 2005. I forwarded it to you with an invitation to make observations, which you sent on 25 May 2005.
On 28 September 2005, I decided to conduct further inquiries into your case. I informed you about my decision on that same date.
The Commission sent its reply to my further inquiries on 23 November 2005. I forwarded it to you with an invitation to make observations, which you sent on 6 March 2006.
In your letters of 12 October, 21 November, 5 December, 12 December 2006, and 19 January and 28 February 2007, you informed me about national court proceedings and requested a postponement of my assessment of your case. In my letter of 20 March 2007, I informed you that the circumstances described in your letters did not justify such a measure.
I am writing now to let you know the results of the inquiries that have been made.
To avoid misunderstanding, it is important to recall that 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 European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.
The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the Commission.
THE COMPLAINT
The complaint, submitted by an Irish citizen, concerned an alleged failure by the Commission to take action on an Article 226 infringement complaint (reference P2003/4975) relating to protection of land under Community environmental legislation.
On 8 August 2003, the complainant had written to the Commission requesting its urgent intervention to prevent the destruction and loss, through a building project, of a wetland in Ballybrown, Ireland. The project involved drainage and infill of a wetland with rubble and asbestos, one consequence of which had been the water-logging of the complainant's property.
The complainant's specific request to the Commission was the following: " we, urgently, request your immediate intervention and we ask that this 'former wetland' be included as part of the Special Areas of Conservation under the EU Habitats Directive ".
The complainant provided various documents in order to support her view that the wetland should be protected under Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (1) ("the Habitats Directive"). First, she provided maps and
photographs of the wetland; and, second, she referred to statements by two persons who were active in the field of conservation. The first of these statements was contained in a letter sent by Mr Pietro Laureano to the relevant Irish planning authority in July 2000. Mr Laureano had written in his capacity as the Director of "IPOGEA - Italian Research Centre on Traditional and Local Knowledge" (2) as well as "UNESCO Consultant; Italian Representative at the UNCCD Committee on Science and Technology; Polytechnic University of Bari - School of Architecture - Lecturing Professor". In his letter, which consisted of one page without annexes, Mr Laureano stated that
" [r]ecently, I was honoured to be a guest at the opening of the Caher Valley Nature Reserve in North Clare. At this event, I became aware of the serious situation of the Ballybrown Wetlands.
Within this valuable and fragile environment, excavation, back-filling and quarrying activities have produced negative impacts.
The destruction of the once self-sufficient ecosystem is extensive and includes: the devastation of flora; the loss of wildlife habitat for migratory and indigenous wildlife (i.e. heron, lapwing,
horseshoe bats, owls); and the manipulation of the natural water flow which causes water logging, flooding of public road '103', and the breakdown of the septic tank effluent system.
I urge the planning authority to consider the importance of this natural heritage and bring to a halt the current degradation and destruction of this unique ecosystem. "
The letter did not contain express comments on the applicability of Community environmental legislation.
The second statement was contained in a letter sent by Mr Edward Cook in December 1999.
The addressees of this letter appear to have been "The Heritage Council" and the
"Department of Arts, Heritage, Gaeltacht and the Islands". In her complaint to the European Ombudsman, the complainant referred to Mr Cook as a lecturer at the Organic Education Centre . In his letter, Mr Cook appeared to refer to previous correspondence sent to the public authorities mentioned above, stating that
" I reiterate: - any development on this wetland ought never to have been countenanced and that
Planning Permits on adjecent plots, that were had by the method of 'Retention' are wholly inappropriate. "
He referred, then, to "Bord na Móna's performance in other wetlands" (3) (the involvement of this company not being entirely clear from the letter), stating that
" That Bord's accelerated drainage of the bulk of our very best Bog systems, through the late seventies and early eighties caused me to resign from its Law Department. Such a wetland as (was) Ballybrown is implicitly protected under both EU Habitats and Wildbird Directives (4) and I am stunned that on this occasion, the Bord has seen fit not to query its drainage (and therefore destruction) (...) ".
Mr Cook's letter did not contain evidence, or references to such evidence, in support of the above statements.
The Commission's Directorate-General for Environment replied to the complainant's infringement complaint on 15 September 2003, stating the following:
" Commissioner Wallström has asked me to thank you for your letter of 8 August 2003 in which you ask the Commission to intervene with regard to dumping of waste and the destruction of wetlands in County Limerick, and to include the wetlands concerned in the Natura 2000 network under [ the Habitats ] Directive (...).
From the information that you have provided, it is not evident that the wetlands concerned conform to the scientific description of habitats covered by [ the Habitats ] Directive (...). It would be necessary to have more detailed ecological information before it could be concluded that the wetlands constitute examples of a turlough and a raised bog.
Nonetheless, as your letter raises issues about the apparent deposition of waste materials without a waste permit, I am arranging for a complaint to be registered in your name. You will receive an acknowledgement of receipt in the near future. "
The complainant shortly afterwards received the above-mentioned acknowledgement of receipt from the Commission's Secretariat-General, dated 25 September 2003, which informed her that her infringement complaint had been registered.
The complainant thereafter continued to provide the Commission with information relating to the alleged wetland destruction, namely, information on the construction of a block housing estate on the wetland, or on the installation of a septic tank relating to the construction works, as well as various photographs of the site.
In a letter dated 6 August 2004, the Commission provided the complainant with further information on its handling of her infringement complaint. The Commission's letter stated that the Commission had a general legal action against Ireland before the European Court of Justice, covering, amongst other matters, the approach to unauthorised disposal of waste material in wetlands. The Commission asked for the complainant's understanding for its
difficulties in pursuing " all individual situations of unauthorised waste disposal ", and advised her that she could bring her concerns directly to the attention of a recently created Office of Environmental Enforcement in Ireland. The letter from the Commission did not inform the complainant whether the Commission was taking action on her specific infringement complaint, nor did it address any issues relating to the Habitats Directive referred to in the complainant's infringement complaint.
In her complaint to the Ombudsman, the complainant appeared to understand the
Commission's letter of 6 August 2004 to mean that the Commission intended not to take any action on her specific infringement complaint. She made the following allegation:
The Commission was failing to take action on her infringement complaint.
The complainant also made the following claim:
The Commission should take action to address the issues raised in her infringement complaint.
THE INQUIRY The Commission's opinion
In its opinion on the complaint, the Commission made the following comments:
Background
On 8 August 2003, the complainant had written to the then Environment Commissioner, Ms Wallström, drawing attention to several developments in her neighbourhood which she considered to be damaging to the environment. In particular, she referred to the infill of a wetland with, amongst other things, rubble and asbestos.
On 15 September 2003, a reply was sent to the complainant on behalf of the Commissioner, indicating that the wetland in question did not appear to be protected under the relevant Community nature conservation legislation, namely, Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (5) ("the Habitats Directive"). However, given that the correspondence raised issues about the apparent deposition of " waste materials without a waste permit ", it was indicated that a complaint would be registered.
On 25 September 2003, the complainant was informed of the registration of her complaint under reference 2003/4975.
The complainant subsequently sent additional correspondence which the Commission acknowledged.
On 6 August 2004, the Directorate-General for Environment informed the complainant of the following:
" The Commission has a general legal action against Ireland currently before the European Court of Justice, covering, amongst other matters, the approach to unauthorised disposal of waste material in wetlands. I hope you will understand that it is difficult for the Commission to pursue all individual situations of unauthorised waste disposal. Its emphasis has been on improving the responses of the responsible national authorities when they are informed of or encounter such
activities. In this connection, the Irish authorities have indicated that the recently created Office of Environmental Enforcement based within the Environmental Protection Agency of Johnstown Castle in Wexford would welcome an opportunity to respond directly to
complaints about unauthorised waste disposal. You may therefore wish to consider bringing your concerns directly to its attention ".
Response to the complaint to the Ombudsman
In her correspondence with the Ombudsman, the complainant indicated that her intention was to seek to have the wetland referred to in her complaint protected under European nature conservation legislation. However, as shown in the correspondence from the
Commission, the Commission had from the outset indicated that the wetland in question did not seem to be protected under the Habitats Directive. The Commission also indicated that the aspect on which a complaint was registered concerned the apparent deposition of waste materials without a waste permit. In fact, this falls within the scope of Directive 75/442/EEC (6) on waste as amended by Directive 91/156/EEC (7) .
In its letter of 6 August 2004, the Commission explained to the complainant that the issue of unauthorised waste deposition on Irish wetlands was already being addressed in a general way in infringement proceedings before the Court of Justice. The Commission referred to the difficulty for the Commission of pursuing all individual situations of unauthorised waste disposal and pointed to its emphasis on improving the responses of national authorities. In this context, it provided her with the name and address of a national authority (that is, the Office of Environmental Enforcement) which might be of assistance to her. This authority, which forms part of Ireland's Environmental Protection Agency, was established in 2003 with a view to improving the compliance and enforcement work of Ireland's local authorities, which have the primary responsibility for addressing illegal waste activities. The Office of Environmental Enforcement inter alia receives and investigates complaints from citizens about inadequate enforcement of waste legislation by local authorities. It was not clear whether the complainant had made use of the Office.
The court case referred to by the Commission was Case C-494/01 Commission v Ireland . In this case, the Commission had sought a wide form of order from the Court in order to enable the Commission to address any repeat occurrence of the sorts of problems that formed the subject-matter of the proceedings.
Given the general nature of Case C-494/01, it was proposed to associate the complainant's infringement complaint with the Commission's file related to its legal action (reference 1999/5112). The complainant was informed about this by letter dated 2 February 2005 (8) . Conclusion
The Commission accepted that it had not specifically contacted the Irish authorities in relation to the complainant's grievances. However, it did not accept the allegation that it had failed to act in respect of the complaint. It had informed the complainant that the issue of which her complaint provided an illustration, that is, dumping of waste on wetlands, was already the subject of a general legal action initiated by the Commission. Furthermore, it informed her of the limits to the Commission's role and the objectives of its wider
intervention with the Irish authorities. Finally, it had provided her with the name and address of a national authority that might be of assistance to her. In this regard, it also referred to the
terms of the initial standard acknowledgement of receipt of the complaint, which encourages complainants to make use of the means of redress available at national level.
The complainant's observations
In her observations, the complainant maintained her complaint. She disputed, specifically, the Commission's conclusion regarding the status of the wetlands. She referred to the documents enclosed in her infringement complaint (referred to above) and stated that the Commission's failure to take any action " was based wholly on assumptions rather than relying on the facts as presented ". She appeared to essentially allege that the Commission had failed adequately to explain why the wetland concerned was not covered by Community law.
Further inquiries
After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. On 28 September 2005, the Ombudsman asked the Commission to present its view on the following matter:
In its opinion of 22 April 2005, the Commission stated that it had from the outset indicated to the complainant that the wetlands in question did not seem to be protected under the EC directive potentially concerned (the Habitats Directive ). It referred to its letter of 15 September 2003 to the complainant, in which it stated the following:
" [f]rom the information that you have provided, it is not evident that the wetlands concerned conform to the scientific descriptions of habitats covered by [ the Habitats ] Directive (...). It would be necessary to have more detailed ecological information before it could be concluded that the wetlands constitute examples of a turlough and a raised bog. "
In her observations, the complainant referred to the documents enclosed with her complaint, and argued that the Commission had failed adequately to explain why the wetlands concerned are not covered by Community law.
The Commission's reply to the Ombudsman's letter of further inquiry
In its reply to the Ombudsman's letter of further inquiry, the Commission stated the following:
The Commission considered that it had made it clear to the complainant at the outset, that is, in its letter of 15 September 2003, that its intention had been to register a complaint in relation to the Community waste legislation and not in relation to Community habitat protection legislation, more specifically the Habitats Directive.
Had the complainant explicitly sought a more complete explanation in relation to the Habitats Directive, the Commission would have provided this. However, the Commission took it that the complainant's subsequent correspondence was aimed at providing the Commission with further information on those aspects that were considered as justifying the registration of the complaint, that is, waste aspects.
It should be noted that the Habitats Directive only applies to limited categories of wetland.
To benefit from protection under that Directive, a wetland must, first of all, host specific habitat types listed in Annex I of the Directive. Turloughs and raised bogs are examples of such specific habitat types. Furthermore, either the Member State concerned must have
formally identified the site as qualifying for protection under the Directive or there must exist compelling evidence that, in not identifying the site, the Member State has exceeded its margin of scientific discretion. The wetland concerned by the present case had not been identified by Ireland as a site qualifying for protection under the Habitats Directive.
Furthermore, the information submitted by the complainant did not establish that the wetland in question was either a turlough or a raised bog; in particular, there was no precise scientific description of the wetland demonstrating that it hosted one of these habitat types.
A wetland not covered by Directive 93/43/EEC may nonetheless still enjoy some protection under other Community legislation. It was worth mentioning that Article 4 of Directive 75/442/EEC on waste requires Member States to ensure that waste is recovered or disposed of without affecting the countryside or places of special interest. In the context of the above-mentioned Case C-494/01 Commission v Ireland , to which the complainant had been referred, the Court of Justice had made findings of a breach of Article 4 in respect of the unauthorised infill of a number of Irish wetlands not covered by the Habitats Directive.
As regards the complainant's observations, the Commission noted her dissatisfaction with the suggestion that she could refer her grievance to the Office of Environmental
Enforcement attached to Ireland's Environmental Protection Agency and in particular her view that she had already exhausted available avenues of complaint in Ireland. The Commission made the following comments in this regard:
(i) Ensuring compliance with Community environmental law is primarily the responsibility of Member States authorities.
(ii) The above-mentioned court case against Ireland, namely, Case C-494/01, had as its object the need for improving Ireland's general administrative arrangements for responding to unauthorised waste disposal.
(iii) Underlying the above was inter alia a wish to avoid a situation in which the Commission would find itself continuously called upon to address in an ad hoc fashion individual cases involving official shortcomings. Where there are general and persistent breaches of Community requirements, the Commission considers that its own finite administrative resources are best employed in seeking structural reform at the Member State level rather than in making successive ad hoc interventions. It considered that Case C-494/01 showed that it had made a serious effort to bring about structural reform in Ireland in relation to the sort of circumstances that the complainant had highlighted. While the lack of specific
intervention in her case left the complainant aggrieved, the Commission believed that the approach it had taken offered a better means of meeting citizen concerns in the long run.
(iv) One of the reforms that Ireland put in place in order to meet the Commission's concerns consisted in the creation in 2003 of an Office of Environmental Enforcement. This Office investigates complaints where there is evidence that a local authority has failed to properly implement its waste enforcement responsibilities. The Commission considers it reasonable to have pointed out the creation of this Office to the complainant and to have suggested that she make use of it. While the complainant appears to have contacted the EPA, it was not
evident that she had made use of the OEE. In that respect, the Commission further pointed out that it was discussing with the Irish authorities ways in which citizens' complaints on waste in Ireland could be better and more consistently addressed by the national authorities.
This included establishing complaint-handling guidelines.
The complainant's observations
In response to the Commission's reply to the Ombudsman's further inquiries, the complainant made, in summary, the following observations:
(i) In 2003, the complainant had made a written complaint to the Commission requesting that Ballybrown Wetland be included in the list of Special Areas of Conservation in Ireland.
(ii) In correspondence dated 25 September 2003, the Commission's Secretariat General stated that the infringement complaint would be examined for infringements of Community law. No specific infringement had been mentioned. If the Commission had required
additional information or any evidence, the complainant would have made every effort to locate and forward this. The complainant continued to keep the Commission up to date on all aspects, including the further destruction of Ballybrown Wetland; the accelerated
construction of a block of social housing and changing rooms; using a septic tank to facilitate waste and sewage disposal, which was then spread on farm land in this area; and the
Limerick 'Main Drainage disaster'.
(iii) In relation to evidence pertaining to the turlough and raised bog, reference could be made to the photographic evidence attached to the infringement complaint and to correspondence from a national lecturer and an environmentalist. Again, if further clarification or evidence had been requested at any time by the Commission, the complainant would have made every effort to meet such requests.
(iv) Having exhausted all options in Ireland, the complainant had written to the Commission in August 2003 requesting urgent assistance. In August 2004, that is, one year later, the Commission suggested that the complainant should return to the Environmental Protection Agency. Given the vast amount of destruction that had taken place during the intervening period, this had not been helpful. If the Commission had been unable to provide assistance, the complainant would have appreciated it if this had been made clear from the outset.
THE DECISION 1 Preliminary remark
Before examining the complainant's allegation, the Ombudsman considers it appropriate to make the following points regarding the scope of his inquiry.
The Ombudsman has opened an inquiry into the complainant's allegation that the
Commission failed to take action on her infringement complaint, which was explicitly based on D irective 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (9) ("the Habitats Directive"). Relatedly, the complainant has argued that the Commission failed adequately to explain why the wetland concerned was not covered by the Habitats Directive. It must further be recalled that the Commission considered the complainant's infringement complaint as also referring to a possible violation of Directive 75/442/EEC on waste as amended by Directive 91/156/EEC (10) ("the Waste Directive") and examined her case also from this aspect. Under these circumstances, there are two issues examined below.
The first one concerns the Commission's alleged failure to take action on the complainant's infringement complaint about violation of the Habitats Directive, including the complainant's argument about the Commission's failure to adequately explain why the wetland in question was not covered by the Habitats Directive. The second issue concerns the Commission's alleged failure to take action on the complainant's infringement complaint about violation of the Waste Directive.
2 Alleged failure to take action on the infringement complaint about violation of the Habitats Directive Relevant provisions of the Habitats Directive and its alleged violation 2.1 Article 2(1) of the Habitats Directive states that its aim is to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the EC Treaty applies. Article 2(2) states that measures taken pursuant to this Directive are to be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.
According to the sixth recital in the preamble to the Directive, it is necessary, in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, to designate special areas of conservation in order to create a coherent European ecological network, called Natura 2000. Article 1(l) of the same Directive defines a special area of conservation (SAC) as a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the
populations of the species for which the site is designated.
The procedure governing the designation of special areas of conservation (SACs), which is laid down in Article 4 of the Directive, consists of four stages.
First , each Member State must propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II native to its territory the sites host (Article 4(1)). Second , the Commission, on the basis of the Member States' lists and in agreement with each of them, must establish a draft list of sites of Community importance (Article 4(2), first and second subparagraphs). Third , the list of sites selected as sites of Community importance must be adopted by the Commission in accordance with the procedure laid down in Article 21 of the Directive (Article 4(2), third subparagraph, and 4(3)). Fourth , Member States are required to designate sites of Community importance as SACs (Article 4(4)).
More specifically, with regard to the first stage, Article 4(1), first subparagraph, of the
Directive requires Member States to propose the list of sites there mentioned " [o]n the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information. " (11)
Under Annex III (Stage 1), Part C, to the Directive, Member States are required, on the basis of the criteria set out in Annex III (Stage 1), Parts A and B, to classify the sites which they propose on the national list as sites eligible for identification as sites of Community
importance according to their relative value for the conservation of each natural habitat type mentioned in Annex I or each species referred to in Annex II.
Under the second subparagraph of Article 4(1) of the Directive, the list of sites proposed must be transmitted to the Commission within three years of notification of the Directive, together with information on each site. This information must (a) include a map of the site, its name, location, extent and the data resulting from application of the criteria specified in Annex III (Stage 1), and (b) be provided in a format established by the Commission in accordance with the procedure laid down in Article 21 of the Directive (the format). The Directive was communicated on 10 June 1992. The format was established by Commission Decision 97/266/EC of 18 December 1996 concerning a site information format for proposed Natura 2000 sites (12) . That decision was communicated to the Member States on 19 December 1996.
In this context, the Court of Justice has held, in particular, the following:
(a) It follows from the rules governing the procedure for identifying sites eligible for
designation as SACs, set out in Article 4(1) of the Directive, that Member States have a margin of discretion when making their site proposals. However they must do so in compliance with the criteria laid down by the Directive (13) .
(b) In order to produce a draft list of sites of Community importance, capable of leading to the creation of a coherent European ecological network of SACs, the Commission must have available an exhaustive list of the sites which, at national level, have an ecological interest that is relevant from the point of view of the Directive's objective of conserving natural habitats as well as wild fauna and flora. To that end, that list is drawn up on the basis of the criteria laid down in Annex III (Stage 1) to the Directive (14) .
(c) In accordance with Article 4(5) of the Directive, the protection scheme for special areas of conservation laid down in Article 6(2), (3) and (4) thereof applies to a site once the latter is, in accordance with the third subparagraph of Article 4(2) of the Directive, placed on the list of sites selected as sites of Community importance adopted by the Commission. It follows that the protective measures prescribed in Article 6(2) to (4) of the Directive are required only as regards sites which are placed on the list of sites selected as sites of Community importance (15) .
(d) However, this does not mean that the Member States are not to protect sites as soon as they propose them, under Article 4(1) of the Directive, as sites eligible for identification as sites of Community importance on the national list transmitted to the Commission. If those sites are not appropriately protected from that moment, attainment of the objectives seeking the conservation of natural habitats as well as wild fauna and flora, as set out in particular in the sixth recital in the preamble to the Directive and Article 3(1) thereof, could well be jeopardised. Such a situation would be particularly serious since it would affect priority natural habitat types or priority species, whose effective protection, would, precisely because of the threats to them, require early implementation of conservation measures, as recommended in the fifth recital in the preamble to the Directive. Hence, in the case of sites eligible for identification as sites of Community importance that are mentioned on the national lists transmitted to the Commission and may include, in particular, sites hosting
priority natural habitat types or priority species, the Member States are, by virtue of the Directive, required to take protective measures appropriate for the purpose of safeguarding that ecological interest (16) .
(e) The appropriate protection scheme applicable to the sites which appear on a national list transmitted to the Commission under Article 4(1) of the Directive requires Member States not to authorise interventions that could seriously compromise the ecological characteristics of those sites. This is particularly the case when an intervention poses the risk either of significantly reducing the area of a site, or of leading to the disappearance of priority species present on the site, or, finally, of having as an outcome the destruction of the site or the destruction of its representative characteristics (17) .
2.2 Taking into account the above provisions of the Directive and relevant case-law of the Court of Justice, the Ombudsman understands that the complainant alleged, in essence, in her infringement complaint that Ireland had failed to comply with its obligations under the Directive, by not including the wetland in question in the national list of sites eligible for identification as sites of Community importance. Such inclusion would imply that Ireland would be required not to authorise interventions incurring the risk of seriously
compromising the ecological characteristics of this wetland.
The alleged instance of maladministration and the Ombudsman's assessment
2.3 In its letter of 15 September 2003 to the complainant (sent in reply to her infringement complaint), the Commission stated, inter alia :
" [f]rom the information that you have provided, it is not evident that the wetlands concerned confirm to the scientific description of habitats covered by [ the Habitats ] Directive (...). It would be necessary to have more detailed ecological information before it could be concluded that the wetlands constitute examples of a turlough and a raised bog. "
In her complaint to the Ombudsman, the complainant alleged that the Commission (wrongly) failed to take action on her infringement complaint about the violation of the Habitats Directive by Ireland. Relatedly, the complainant has argued that the Commission failed adequately to explain why the wetland concerned was not covered by the Habitats Directive.
2.4 The Ombudsman first recalls that, in her infringement complaint, the complainant essentially alleged that, by not including the wetland in question in the national list of sites eligible for identification as sites of Community importance, Ireland had failed to comply with its obligations under the Habitats Directive. In light of the rules governing the inclusion of sites in such a national list, the above-mentioned alleged violation of the Directive by Ireland presupposes that Ireland either (i) did not comply with the criteria laid down in Annex III to the Directive or (ii) exceeded the limits of the discretion it enjoyed when it made its sites proposal to the Commission on the basis of the application of the criteria laid down in the Directive. Given that the latter is inextricably related to, often complex, scientific evaluations based on pertinent environmental information, the Commission can reasonably require appropriate, under the circumstances, scientific information supporting the allegation about the violation of the Directive. In particular , the Commission may require specific and reliable scientific data about the nature and the protectable character of the site concerned, under
Annex I to the Directive, at least if this does not seem to be immediately apparent.
2.5 In her infringement complaint to the Commission, the complainant provided various documents in support of her infringement complaint. She provided maps and photographs of the wetland, and continued, after the submission of her infringement complaint, to provide the Commission with information relating to the alleged wetland destruction. This information concerned, inter alia, the construction of a block housing estate on the wetland, the installation of a septic tank relating to the construction works, as well as various
photographs of the site. The complainant also referred to statements, formulated in rather general terms, of two persons arguing in favour of the conservation of the land in question.
In its letter of 15 September 2003, the Commission's Directorate-General for Environment informed the complainant that (i) from the information she had provided it was not evident that the wetlands referred to by the complainant conformed to the scientific description of the Habitats Directive; and (ii) it would be necessary to have more detailed ecological information before it could be concluded that the wetlands constituted examples of a turlough and a raised bog (18) . On this basis, in essence because of the complainant's failure to provide sufficient information in relation to the ecological characteristics and the
protectable nature (under Annex I of the Directive) of the site concerned, the Commission apparently decided not to take further action on the complainant's allegation about violation of the Directive. In its additional opinion on the present complaint, the Commission
confirmed that the information submitted by the complainant did not establish that the wetland in question was either a turlough or a raised bog. It pointed out that, in particular, there was no precise scientific description of the wetland demonstrating that it hosted one of these habitat types.
2.6 The Ombudsman notes that, as indicated in point 2.4 above, the Commission could reasonably have required that the complainant support her allegation about the violation of the Directive by providing it with specific and reliable scientific data concerning the nature and the protectable character, under Annex I to the Directive, of the site concerned, at least if this did not seem to be immediately apparent. The Ombudsman also notes that the
complainant has neither argued nor attempted to establish that it was immediately apparent that the wetlands concerned corresponded to one of the natural habitat types determined in Annex I to the Directive. Moreover, she has neither argued, in a sufficiently precise way, nor, in any event, demonstrated that she submitted to the Commission, or drew its attention to readily available, specific scientific data concerning the ecological characteristics and the protectable character, under Annex I to the Directive, of the site concerned. Mere photos of the land or the statements made by Mr Laureano and Mr Cook about the nature of the site and the need to ensure its protection could reasonably be considered by the Commission, in the absence of specific supporting scientific information, as not amounting to such data.
Finally, as regards the complainant's argument that the Commission failed adequately to explain why the wetlands concerned are not covered by Community law, it suffices to remark that the Commission did not decide to abstain from further action because these wetlands were not covered by Community law; but rather that it reached this decision because of the complainant's failure to provide sufficient information in relation to the ecological
characteristics and the protectable nature (under Annex I of the Directive) of the site
concerned.
2.7 In light of the above, the Ombudsman considers that the Commission has provided satisfactory explanations for its challenged failure to take further action, which cannot be considered as unreasonable. The Ombudsman, thus, finds no maladministration as regards this aspect of the complaint.
3 Alleged failure to take action on the infringement complaint about the violation of the Waste Directive
3.1 In the present case, the Commission decided to register the complainant's infringement complaint for examination of a potential breach of the Waste Directive (see the
Commission's letter of 15 September 2003). In a letter of 6 August 2004, the Commission informed the complainant that it had brought a general legal action against Ireland before the European Court of Justice, covering, amongst other matters, the approach to
unauthorised disposal of waste material in wetlands. The Commission asked for the complainant's understanding for its difficulties in pursuing " all individual situations of unauthorised waste disposal ", and advised her that she could bring her concerns directly to the attention of a recently created Office of Environmental Enforcement, in Ireland. In its opinion on the present complaint, the Commission explained that " [g]iven the general nature of Case C-494/01, it was proposed to associate the complainant's infringement complaint with the Commission's file related to its legal action (reference 1999/5112). The complainant was informed about this by letter dated 2 February 2005 (19) . The Commission's letter of 2 February 2005 had informed the complainant in the same manner that " [g]iven the content of your complaint, it is proposed to associate it with the general case awaiting Court decision ". The term "associated with" was not explained in the letter. However, it is clear from the Commission's opinion submitted in the course of the present inquiry that the Commission had decided not to investigate further the complainant's specific case, which could involve a waste disposal in violation of the provisions of the Waste Directive.
3.2 In its additional opinion on the complaint, the Commission elaborated as follows on the reasons for its above-mentioned decision:
- Ensuring compliance with Community environmental law is primarily the responsibility of Member States authorities.
- The foregoing court case against Ireland (namely, Case C-494/01) had as its object the need for improvement in Ireland's general administrative arrangements for responding to
unauthorised waste disposal.
- Underlying the above was inter alia a wish to avoid a situation in which the Commission would find itself continuously called upon to address in an ad hoc fashion individual cases involving official shortcomings. Where there are general and persistent breaches of Community requirements, the Commission considers that its own finite administrative resources are best employed in seeking structural reform at the Member State level rather than in making successive ad hoc interventions. It considered that Case C-494/01, which resulted in a finding of a violation of the Waste Directive by Ireland, showed that it had made a serious effort to bring about structural reform in Ireland in relation to the sort of
circumstances that the complainant had highlighted. While the lack of specific intervention in her case left the complainant aggrieved, the Commission believed that the approach it had taken offered a better means of meeting citizen concerns in the long run.
- One of the reforms that Ireland put in place to meet the Commission's concerns consisted in the creation in 2003 of the Office of Environmental Enforcement. This Office investigates complaints where there is evidence that a local authority has failed to properly implement its waste enforcement responsibilities. The Commission considers it reasonable to have pointed out the creation of this Office to the complainant and to have suggested that she make use of it. While the complainant appears to have contacted the EPA, it was not evident that she had made use of the OEE. In that respect, the Commission further pointed out that it was discussing with the Irish authorities ways in which citizens' complaints on waste in Ireland could be better and more consistently addressed by the national authorities. This included establishing complaint-handling guidelines.
3.3 The Ombudsman notes that the Commission has extensively explained how, with an eye to protecting the Community interest in the context here concerned, it has actively taken initiatives on the basis of a global (rather than ad hoc) approach, aimed at structural
remedies. Moreover, it must be remarked that the Commission responded to the particular infringement problem indicated by the complainant by providing her with useful advice on the possibility of making use of a non-judicial complaints mechanism at the national level, created specifically with a view to remedying violations of the environmental legislation, such as the one in question related to the Waste Directive.
3.4 In light of the above, the Ombudsman considers that the Commission has provided satisfactory explanations for its challenged omission to take further action, which cannot be considered as unreasonable. The Ombudsman, thus, finds no maladministration as regards this aspect of the complaint.
4 Conclusion
On the basis of the Ombudsman's inquiries into this complaint, there appears to be no maladministration by the Commission. The Ombudsman therefore closes the case.
The President of the Commission will also be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS (1) OJ 1992 L 206, p. 7.
(2) Information about IPOGEA is available online ( http://www.laureano.it/ipogea/indexing.htm ).
(3) According to its website, Bord na Móna plc is a company which, inter alia , is an Irish energy supplier and develops Ireland's peat resources (
http://www.bnm.ie/corporate/index.jsp ).
(4) The Habitats Directive (OJ 1992 L 206, p. 7) and 79/409/EEC on the conservation of wild
birds (OJ 1979 L 103, p. 1).
(5) OJ 1992 L 206, p. 7.
(6) Council Directive 75/442/EEC of 15 July 1975 on waste, OJ 1975 L 194, p. 39.
(7) Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste, OJ 1991 L 78, p. 32.
(8) Case C-494/01 Commission v Ireland [2005] ECR I-3331. The Court of Justice found that Ireland had failed to comply with its obligations under the waste directive.
(9) OJ 1992 L 206, p. 7.
(10) Council Directive 75/442/EEC of 15 July 1975 on waste ( OJ 1975 L 194, p. 39) as
amended by Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).
(11) Annex III (Stage 1), Parts A and B, to the Directive sets out the following criteria:
" A. Site assessment criteria for a given natural habitat type in Annex I (a) Degree of
representativity of the natural habitat type on the site. (b) Area of the site covered by the natural habitat type in relation to the total area covered by that natural habitat type within national territory. (c) Degree of conservation of the structure and functions of the natural habitat type concerned and restoration possibilities. (d) Global assessment of the value of the site for conservation of the natural habitat type concerned.
B. Site assessment criteria for a given species in Annex II (a) Size and density of the population of the species present on the site in relation to the populations present within national territory. (b) Degree of conservation of the features of the habitat which are important for the species
concerned and restoration possibilities. (c) Degree of isolation of the population present on the site in relation to the natural range of the species. (d) Global assessment of the value of the site for conservation of the species concerned."
(12) OJ 1997 L 107, p. 1.
(13) See Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 33.
(14) See Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraph 22.
(15) See Case C-117/03 Società Italiana Dragaggi SpA and Others [2005] ECR I-167, paragraphs 21 and 25.
(16) See Case C-117/03 Società Italiana Dragaggi SpA and Others , cited above, paragraphs 26, 27, 29.
(17) See Case C-244/05, Bund Naturschutz in Bayern eV and Others , judgment of 14 September 2006, not yet reported, paragraphs 46-47.
(18) Annex I to the Directive mentions, inter alia, "Turloughs" (code 3180) and "Active raised bogs" (code 7110).
(19) Case C-494/01 Commission v Ireland [2005] ECR I-3331. The Court of Justice found that Ireland had failed to comply with its obligations under the waste directive.
