Uhanalaisia Kasveja Suojelevien Sääntöjen Rikkomista Koskeva Tutkimus

European Ombudsman

Päätös asiassa 1561/2010/FOR - Uhanalaisia kasveja suojelevien sääntöjen rikkomista koskeva tutkimus

Päätös Kanteluasia 1561/2010/FOR - Tutkittavaksi otetut kantelut, pvm 04/08/2010 - Päätökset, pvm 14/06/2011 - Toimielin, jota kantelu koskee Euroopan komissio ( Ei hallinnollista epäkohtaa ) |

Tapaus koskee väitettä, jonka mukaan komissio ei ole tutkinut asianmukaisesti, onko Espanja noudattanut EU:n ympäristösääntöjä. Asia nousi esiin erään paikallista ekologiryhmää edustavan Espanjan kansalaisen kantelun yhteydessä. Hänen mukaansa laajamittainen rakennushanke vahingoitti Picris Willkommiin luonnollista elinympäristöä. Kyseessä on harvinainen kasvi, jota esiintyy ainoastaan Guadianajoen suulla Espanjassa. Kantelijan mukaan tällä toiminnalla rikottiin luontotyyppidirektiiviä ja ympäristövastuudirektiiviä.

Oikeusasiamiehen mukaan luontotyyppidirektiivin rikkominen ei automaattisesti merkitse sitä, että komission tulisi aloittaa rikkomusmenettely Espanjaa vastaan. Hän huomautti, että komissiolla on laaja harkintavalta päättää, aloittaako se EU:n lainsäädännön väitetyn rikkomisen vuoksi menettelyn jäsenvaltiota vastaan. Hän huomautti kuitenkin myös, että komission on perusteltava harkintavaltansa käyttö. Päättäessään lopettaa kantelijan tekemän kantelun käsittelyn komissio perusteli harkintavaltansa käyttöä pääasiassa niin, että rikkomusmenettelyn jatkaminen ei takaisi parempia toimia Picris Willkommiin suojelemiseksi kuin ne toimet, joita Espanjan viranomaiset ovat jo toteuttaneet tai suunnitelleet (Espanjan viranomaiset olivat sopineet erilaisten suojelutoimien toteuttamisesta). Oikeusasiamies piti tätä riittävänä perusteluna komission päätökselle lopettaa tapauksen käsittely.

Oikeusasiamies huomautti, että ympäristövastuudirektiivi ei koske ennen direktiivin voimaantuloa (30. huhtikuuta 2007) sattuneiden tapahtumien aiheuttamia vahinkoja. Hän totesi, että Picris Willkommiin elinympäristöä vahingoittivat ennen 30. huhtikuuta 2007 toteutetut alkuvaiheen kaivutyöt. Oikeusasiamies huomautti kuitenkin, että jos kantelija katsoo 30. huhtikuuta 2007 jälkeen tehtyjen rakennustöiden aiheuttaneen "uutta" vahinkoa Picris Willkommiin elinympäristölle, hänen tulisi ilmoittaa tätä tukevat tiedot toimivaltaisille kansallisille viranomaisille ja, tarvittaessa, kansallisille tuomioistuimille tai muille itsenäisille ja puolueettomille julkisille elimille. Vastaavasti jos kantelija katsoo, että kaivutyöt eivät tuhonneet elinympäristöä kokonaan ja että työmaan tulevat työt vahingoittaisivat jäljelle jäänyttä elinympäristöä, hänen tulisi ilmoittaa tätä tukevat tiedot toimivaltaisille viranomaisille.

Oikeusasiamies kehotti lisäksi komissiota tiedottamaan kantelijoille kaikista kansallisista keinoista, joita on mahdollista käyttää vastaavissa myöhemmissä tapauksissa.

1 The background to the complaint 1. Picris Willkommii is a plant species which is found only near the mouth of the Guadiana River (which forms the frontier between Spain and Portugal). In Spain, the main populations of Picris Willkommii are restricted to grasslands around the town of Ayamonte. Picris Willkommii is listed as being in serious danger of extinction [1] , and is listed as a protected species under Directive 92/43/EEC (the Habitats Directive) [2] .

2. The complainant is an ecologist group called ALMACAL which brought a case before the local administrative court against the Municipality of Ayamonte. The case concerned the large-scale building project which the Municipality had authorised in 2003 in an area populated by Picris Willkommii . According to the complainant, the case was dismissed by the court after evidence was submitted by the local authorities showing that Picris Willkommii was sufficiently protected. The building project then went ahead.

3. According to the complainant, it was subsequently discovered that, during the court case, the authorities had withheld some of the reports drawn up by independent experts. According to the complainant, the withheld reports contained proof that the species was, in fact, seriously threatened. As a consequence, the complainant went on to report that, in 2005, two persons were tried before a criminal court for forging a public document [3] . The complainant explained that, under Spanish procedural rules, the administrative court would have to wait until a judgment was passed in the public document forgery case before it could make an order to allow the building work to continue. According to the complainant, given the lengthy nature of proceedings in Spanish courts, the time spent waiting for a judgment would solve nothing, because it would be too late to save the Picris Willkommii .

4. On 17 June 2007, the complainant submitted a complaint to the European Commission (complaint 2007/4600/SG(2007)A/4688/2). The Commission replied on 3 July 2007, stating that it would ask the Spanish Authorities for information regarding the issue and that it would keep the complainant updated.

5. In a letter dated 18 April 2008, the Commission informed the complainant that it considered that the Spanish authorities were taking appropriate measures to protect the species. The Commission went on to state that, since the building work in the area populated by Picris Willkommii had already started, it did not consider that continuing with its enquiry would contribute significantly to the protection of the species. It therefore proposed to close the case, and the complainant was given one month within which to submit its comments on that proposal.

6. On 17 May 2008, the complainant wrote to the Commission. It submitted the following arguments.

(i) Only 35% of the planned building work had been finished by May 2008. It argued that damage to the habitat of Picris Willkommii could in be prevented in relation to 65% of the area concerned, if action were taken quickly.

(ii) The Spanish authorities should be fined, especially since the measures they had taken to

2 protect Picris Willkommii were neither appropriate nor sufficient. In the complainant's view, the " extraction of samples " and keeping " germaplasm " (genetic material), were not sufficient measures to protect Picris Willkommii in its natural habitat.

(iii) The Spanish authorities were being investigated for the forgery of a public document regarding the protection of Picris Willkommii . In this context, the complainant considered that their reports should, therefore, at least be checked against other sources.

(iv) Picris Willkommii has now been confined to an area of 170 hectares, compared to an area of five square kilometres, which it occupied in 1999. The public administration had done nothing to prevent this from happening. Rather, the Municipality of Ayamonte was actively attacking Picris Willkommii .

(v) The " in-situ conservation measures " announced by the local authorities were essentially being contradicted by the authorisation of building work in that same area.

(vi) The " Botanical Garden " to which the Commission referred in its letter was, in fact, an area where Picris Willkommii will be planted in pots, a solution which the complainant did not consider sufficient to protect Picris Willkommii .

(vii) There was no plan to guarantee the future development of the species;

(viii) The Commission should focus more on prevention, and implement the " polluter pays " principle.

(ix) There may also be an infringement of Article 2.4 (a) of Directive 2004/35/EC [4] on environmental responsibility (the Environmental Liability Directive), since, even if the damage to the species started before the rule entered into force in Spain, which was on 23 October 2007, the damage was ongoing.

(x) The time limit of one month from the date of the letter, which the complainant was given to submit its observations, was too short. In fact, the letter dated 18 April 2008 arrived on 5 May 2008, significantly reducing the time during which the complainant could prepare its reply. The Commission should, therefore, either allow more it time to reply, or calculate differently the time from which the deadline starts to run (for example, from the time the letter is received, as evidenced by a postal proof of receipt).

7. On 2 April 2009, the complainant wrote to the Commission, repeating its request for answers to the points raised in its letter dated 17 May 2008. On 12 April 2009, the Commission replied, stating that there was scientific proof that building work had destroyed part of the natural habitat of Picris Willkommii . The Commission stated that this was an infringement of Article 13.1 of the Habitats Directive. The Commission considered that Spain must be compelled to ensure the conservation of the remaining natural habitat of Picris Willkommii . It stated that it had requested the Spanish authorities to draw up a protection and recuperation policy for further urban development at Ayamonte. The Commission stated that it was waiting to be informed about the ex-situ and in-situ species protection measures

3 taken, and that if it was not satisfied with those measures, it would take the appropriate action. On 8 June 2009, the complainant wrote to the Commission again, stating that a significant part of the species' habitat could still be saved if appropriate action were taken. The complainant requested copies of the Commission's last letter to the Spanish authorities, which contained the conclusions the Commission had drawn from the analysis carried out by the Infringement Unit technicians. The complainant also invited the Commission's technicians to travel to Ayamonte to examine the current state of the species, and the measures taken by the Spanish authorities.

9. In a letter dated 7 October 2009, the complainant referred to a " request " which the Commission made to the Permanent Representation of Spain to the EU. The Spanish authorities were asked to protect the remainder of the habitat, even if part of the original habitat had already been irremediably destroyed. The complainant added that, although the Municipality of Ayamonte offered to create a micro-reserve of 17 hectares, this, according to the complainant, still meant that 90% of the former habitat of 170 hectares would be destroyed. The complainant went on to argue that the Municipality of Ayamonte had admitted that the habitat not yet built on would also eventually be destroyed. The complainant added that the " Botanical Garden " could not be taken seriously as a protective measure. It added that the Commission should seek, as Guardian of the Treaties, to re-establish the species in its natural state, and seek redress for the damage caused.

10. On 14 October 2009, the Commission sent a reply. It stated that on 15 and 16 October 2009, its representatives would meet the Spanish authorities in Madrid to discuss the case. It added that the Environmental Liability Directive was not applicable in this case, since " all damages were produced before its entry into force ". It added that its technical services did not have sufficient information to judge whether the damaged areas could be reclaimed. It stated that the complainant should submit a report on this, if possible. It added that the Botanical Garden would be supervised by the relevant authorities.

11. On 29 January 2010, the Commission informed the complainant that the urbanization project which caused the damage was in fact still ongoing. It added that there had been a clear infringement of the Habitats Directive, but, as it had previously stated, continuing with the infringement procedure would not ensure that Picris Willkommii would be any better protected than it had been by the measures already taken, or those planned for the future. It added that the Spanish Authorities had adopted new measures in the last months. These included the restoration of dunes at Isla Canela beach; a minor modification in the urbanization plans of Ayamonte, and the creation of a Botanical Garden by Huelva University. The Commission added that it intended to close the case on the basis of its discretionary powers but that it would, nevertheless, continue to ensure that the promised measures were actually carried out. The Commission added that the Environmental Liability Directive had not been infringed, since all the damage which had been caused occured before it had entered into force. The Commission gave the complainant one month within which to submit its observations relating to the proposal to close the case.

12. From 16 to 18 February 2010, the complainant sent the Commission a series of e-mails containing the following remarks on the new measures introduced by the Spanish

4 Authorities:

(i) the plan relating to Isla Canela beach had nothing to do with Picris Willkommii . It concerned another species, Linaria Lamarki , which is now extinct;

(ii) according to the documents available, the aforementioned Botanical Garden, which will be surrounded by houses and roads, will contain 200 seeds of the plant. It is, consequently, not a " natural habitat " in need of protection;

(iii) the complainant reminded the Commission that it had recognised that the remainder of the protected area which was not yet built upon needed to be protected. However, the complainant considered that the Commission was contradicting itself when, in light of all the evidence provided, it appeared to assume that the measures proposed by the Spanish authorities constitute sufficient protection;

(iv) in real terms, the modification in the Ayamonte urbanisation plans means that the entire habitat of Picris Willkommii will be destroyed, since 90% of its habitat area is declared to be " susceptible [to] urbanization ", and

(v) the complainant repeated its request that Commission technicians travel to Spain to evaluate the current situation.

13. In a letter dated 11 June 2010, the Commission informed the complainant that the case could not be closed because of the need for further internal consultation. However, the Commission stated that it intended to close the case as soon as possible in light of the fact that no new arguments had been submitted in correspondence received after 29 January 2010. The Commission went on to state that, since the measures implemented by the Spanish authorities could guarantee the objectives of the Habitats Directive, it would not continue the infringement procedure. The Commission stated that it would nevertheless continue to monitor the development of such measures and, if necessary, would reopen the infringement procedure. The Commission ended its letter by adding that the Environmental Liability Directive is not applicable to the case, since the damage which arose occurred before that Directive entered into force. The subject matter of the inquiry 14. The Ombudsman understands the complaint's allegation to be that the Commission failed properly to deal with complaint 2007/4600/SG(2007)A/4688/2 concerning the protection of a protected species of flower ( Picris Willkommii ) in Spain. According to the complainant:

(1) the Spanish administration did not take sufficient measures to protect Picris Willkommii , and

(2) the Environmental Liability Directive should be deemed to apply, since the damage to Picris Willkommii is still ongoing.

15. The Ombudsman understands the complainant's claim to be that the Commission

5 should:

(1) specify why it considers that the measures proposed by the Spanish authorities are sufficient, and

(2) explain the grounds for its opinion that all the damage done to Picris Willkommii occurred in 2005 since, according to the complainant, the building work is still ongoing. The inquiry 16. The complaint was submitted to the Ombudsman on 1 July 2010. The Ombudsman opened his inquiry on 4 August 2010. On 15 September 2010, the Ombudsman's services conducted an inspection of the Commission's file. On 10 December 2010, the Commission submitted its opinion. On 27 February 2011, the complainant submitted his observations on the Commission's opinion. The Ombudsman's analysis and conclusions A. Allegation of failure properly to deal with a complaint concerning the protection of the wild flower Picris Willkommii , and related claims

Arguments presented to the Ombudsman

17. The Commission states in its opinion that, on 18 June 2007, it received a complaint concerning an urban development project entitled " Mirador del Guadiana ", which is located in " La Rodadera del Castillo " in the municipality of Ayamonte, Huelva, Spain. The project received a favourable environmental impact statement on 23 January 2003, which took into account the Picris Willkommii species. The environmental impact statement was published in the Official Journal of the Province of Huelva on 27 February 2003. The project was approved on 29 May 2003. The approval was published in the Official Journal of the Province of Huelva on 30 September 2003.

18. The complainant and another ecologist organisation then filed a complaint before a local court. After an initial investigation, the case was closed.

19. The complainant, which had obtained new information, then filed a new case before a local court, alleging that official documents had been falsified, and that some civil servants of the Regional administration had behaved irregularly. The Commission states that it has no information on the current state of proceedings concerning that case.

20. The Commission stated that, according to the Spanish authorities, construction work at La Rodadera del Castillo began in 2004. Photographs which the Commission obtained via the Internet indicated that, by the time it received the complaint, the damage to the Picris

6 Willkommii located in the project area had already been done. In sum, work had already started on the ground; with foundations were being laid and streets were being designated. By 2005 there were no individual specimens of Picris Willkommii left in the zone where the urban development project had been authorised. Some photographs and articles illustrating these facts were attached to the opinion [5] .

21. Although no census of the species exists, from which it would be possible to calculate how many individual plants were destroyed as a result of the project, the Commission notes that the surface area of the project is 13.18 hectares.

22. The Commission stated that it carried out an exhaustive investigation of the facts, and that it made numerous requests for information from the Spanish authorities. The complaint was also dealt with in two " package " meetings, which were held with the Spanish authorities in Madrid on 11 and 12 March 2008, and on 15 October 2009. It noted that the fact that individual specimens of the plant once grew on the site of the urban development project in question is not contested: this fact is reflected in the environmental impact statement of 23 January 2003. The Commission identified an infringement of Article 13(1) a) of the Habitats Directive, in light of the destruction caused by the urbanisation project to specimens of Picris Willkommii which were growing in that area.

23. The Commission then outlined the measures adopted by the Spanish authorities for the protection of Picris Willkommii :

In-situ measures include the following: a) The design and creation of a Botanical Garden by the University of Huelva, supervised by the local and regional environmental authorities. The main objective of this measure is to conserve the Picris Willkommii species. It is currently being implemented. b) An "interpretative centre" for the Picris Willkommii located in the Botanical Garden. c) The inclusion of a new management model within the General Urban Management Plan of Ayamonte for the area, which is mentioned in the Andalusian Red Book of Endangered Species as the principal habitat of the Picris Willkommii . The aim is to create a micro reserve, covering approximately 170 000 m 2 , in which two million plants will be cultivated. d) The Regional Government's authorisation for the planting of Picris Willkommii in Ayamonte.

The ex-situ measure is that the Phytogenetic Material Bank of Andalusia is to stock Picris Willkommii .

24. The Commission considered that the Spanish authorities should also take adequate measures to avoid further damage to Picris Willkommii . It can do so by developing a plan to protect it, and assisting and ensuring its recovery. The Spanish authorities sent the Commission a " draft Plan of recovery and conservation of the flora species of the dunes, the

7 coastal sandy grounds and the coast ", which included the species Picris Willkommii . Its approval was foreseen for the second quarter of 2010.

25. The Spanish authorities also proposed slightly modifying the General Urban Management Plan of Ayamonte in order to take Picris Willkommii into account.

26. The Commission considers that the measures already taken, and those foreseen, might be adequate to protect Picris Willkommii . The Commission pointed out that, even though the case had been closed, it intended to monitor the implementation of the measures outlined above.

27. As regards the question of whether the measures taken by the Spanish authorities are sufficient and adequate to ensure the conservation of Picris Willkommii , the Commission examined all the information concerning the plant's actual location. It concluded that the objective of the Habitats Directive, which is to ensure the conservation of plant species, could be sufficiently attained by the measures proposed by the Spanish authorities. The proposed measures appear to compensate for the damage caused by the urban development project. If the measures prove to be insufficient, further measures would be requested and, if necessary, the Commission would open a new complaint file.

28. As regards the measures taken, the Commission noted that at least 500 specimens of Picris Willkommii had been planted in the Botanical Garden. These were taken from the breeding grounds of the University of Huelva. Ayamonte's Town Council had also asked for 200 specimens to be planted in the " Era de los Enamorados " park. The Botanical Garden also has an interpretative centre for the Picris Willkommii species.

29. The ex-situ measure provides for a study of Picris Willkommii to be carried out by the Phytogenetic Material Bank of Andalusia. This was the initial provision in the environmental impact statement. Further developments have occurred during the investigation of the complaint. They include the following: a) The studies and tests concerning the reproduction of the species concluded that no problems were detected with respect to fruition, seed dispersal, germination, or survival of the young plants. b) The Laboratory of Vegetable Propagation has successfully developed both the spread and crop protocols of the plant. The laboratory has produced a successful crop of numerous individual plants in the breeding ground of San Jerónimo (Seville). c) The collections preserved ex-situ are continually complemented with the seeds of the newly detected sub-populations intended for the Andalusian Bank of Vegetable Germoplasm, the Laboratory of Vegetable Propagation, and the breeding ground of San Jerónimo.

The ex-situ conservation cycle ends with the individual plants being returned to their natural environment (after being part of the breeding ground crop), in order to (i) strengthen or

8 increase the density of the natural population; (ii) create new populations, and (iii) preserve the collections of the Botanical Gardens.

30. The Spanish authorities also proposed the following measures: a) the inclusion of a new management model within the General Urban Management Plan of Ayamonte. According to the information received, this was being drafted. The new management model takes into account the area mentioned in the Andalusian Red Book of Endangered Species as the principal habitat of the Picris Willkommii . Its aim is to create a micro reserve of about 170 000 square metres in which two million plants will be cultivated. This modification of the General Urban Management Plan of Ayamonte therefore specifically takes Picris Willkommii into account. Ayamonte Town council made this proposal in order to create a soil reserve in which the native flora, specifically the Picris Willkommii species, could be preserved. According to the report submitted to the Commission, the soil is suitable for the plant, and it is proposed that the micro reserve should be located on the hill situated to the north of the Municipality of Ayamonte. (This measure was recommended in the Atlas and Red Book of the Spanish Endangered Vascular Flora), and b) the " restoration project of the dune system and accesses to the 'Isla Canela' beach, Punta del Moral area; [by the] Municipality of Ayamonte (Huelva) ". This project mainly concerns other endangered species, some of which are also included in the Habitats Directive. However, the Picris Willkommii species has also been detected in La Punta del Moral.

31. Given the difficulties connected with restoring the project site area, if indeed such restoration is at all possible, the Commission considers the package of measures proposed by the Spanish authorities to be reasonable. They not only compensate for the damage caused, but, most importantly, assure the survival of the species in the long term, which is the aim of the Habitats Directive.

32. As an additional consideration, the Commission emphasised a fact which the complainant was informed about, which was that the decision to close the case was based on opportunity reasons. It noted that, even though there had been an infringement of Article 13 of the Habitats Directive, the only possible option under the prevailing circumstances was to establish a compensatory mechanism. The Commission considers that it would be counterproductive to issue an application to the Court of Justice of the European Union, since doing so would seriously delay the implementation of the conservation package.

33. The Commission emphasised that the initial complaint of 17 June 2007 did not refer to the applicability of the Environmental Liability Directive. This aspect was introduced by the complainant on 15 May 2008. It was introduced as an allegation in response to the first pre-closure letter dated 18 April 2008.

34. The Commission pointed out that, in any event, Article 17 of the Environmental Liability Directive stipulates that the Directive shall not apply to damage caused by an emission, event or incident that took place before 30 April 2007. In the present case, it is clear that the damage to the species Picris Willkommii , caused by the implementation of the urbanisation

9 project, occurred before that date, because the soil works were completed by 2005. The Commission considered it irrelevant, as far as the implementation of the Directive is concerned, that the project is still ongoing. In the Commission's view, it is the date of the damage which is relevant.

35. The Commission thus considers that the Environmental Liability Directive is clearly not applicable in the present case since the damage occurred before the Directive came into force.

36. The Commission noted that Article 13 of the Environmental Liability Directive establishes a specific procedure for national authorities to follow. Therefore, it would not be appropriate for the Commission to take a position on a matter that had not previously been submitted to the national authorities. In the present case, since the Commission considered that the said Directive was not applicable, the above-mentioned argument was not communicated to the complainant in the pre-closure letter.

37. Likewise, the Commission emphasised that its decision to close the complaint does not mean that it will not continue to monitor the evolution of the planned measures. The Commission stated that it will monitor whether the measures proposed by the Spanish authorities are correctly implemented, and that, if it considers it to be necessary, it may decide to open a new complaint file on the matter.

38. In conclusion, the Commission stated that, on the basis of Article 258 of the Treaty on the Functioning of the European Union (TFEU), and in accordance with settled case law of the Court of Justice, it has a very broad discretion as to whether or not to use its enforcement powers. The Commission emphasised again that, throughout its handling of the case, it carefully considered the information and arguments provided by the complainant. The Commission explained that it had devoted considerable time and resources to the case. It considered that it had given the complainant comprehensive and clear reasons for its decision to close the case, and had handled its complaint in line with the Commission's Code of Good Administrative Behaviour and all applicable procedural rules. The Commission was of the view that its decision in the present case was the most appropriate in the given circumstances, since the restoration of the species Picris Willkommii on the project site was not a viable option. It considered that it would run contrary to good administration to pursue a case that would not lead to an improvement in environmental protection. The Commission will monitor the measures proposed by the Spanish authorities which, in its view, offer the best means of compensating for the damage caused, and of assuring the long term survival of the species, which is the aim of the Habitats Directive.

39. In its observations on the complaint, the complainant referred to the Commission's argument that, by the time it received the complaint, the damage to Picris Willkommii , located in the project area, had already been done. The complainant argued that Article 17 of the Environmental Liability Directive states that the Directive shall not apply to damage caused by an emission, event or incident that took place subsequent to the date referred to in Article 19(1), (namely, 30 April 2007), when that damage derives from a specific activity that took place and finished before that date. The complainant argued that it was not true that,

10 by 2005, there were no samples left of Picris Willkommii in the project area. It argued that Picris Willkommii could still be found in the project area in 2008.

40. Commission officials stated in an e-mail that the Commission's technical services did not have enough evidence to be able judge whether Picris Willkommii could be re-established on the land, and that, although the complainant had agreed to supply such evidence, it failed to do so. The complainant stated that it had always argued that the land which was excavated, but not built on, could be recovered. It argued that the land could now regenerate naturally, given that the second phase of the building project is currently on hold. The complainant argued that it was not for it to have to demonstrate the recoverability of the land and, in this respect, it pointed out that it had been prohibited from entering the site by the owner of the land.

41. As regards the land set aside for a botanical garden, the complainant argued that the project developer was simply using the garden as a publicity stunt to sell the properties.

42. As regards the Commission's statement that Article 13 of the Habitats Directive had been infringed, the complainant stated that, despite there having been an infringement, the Commission sought to minimise and ignore its seriousness by simply setting out the compensatory mechanisms which had been adopted. The complainant argued that the proposed compensatory mechanisms were not adequate.

43. The complainant argued that the "interpretative centre" is an unfinished room measuring 50 square metres.

44. As regards the measures to be taken by the Spanish authorities to prevent more harm to the species, the complainant argued that the conservation plan requires the recognised distribution area of the species to be fully protected. It argued, however, that the Ayamonte urban building plan could lead to the destruction of 90% of the species' habitat insofar as it guarantees to preserve only 17 hectares of the 170 hectares where the plant currently grows.

45. The complainant argued that this plan does not protect the environment, but rather allows the environment to be destroyed. It referred, in this context, to other urban building projects in Ayamonte, including the construction of a commercial centre.

46. The complainant stated that it had no confidence in the Commission acting as Guardian of the Treaties, nor in the institution's commitment to ensuring that the Spanish authorities comply with the obligations they have undertaken.

47. It stated that the Spanish authorities, whom it considered to have clearly infringed EU environmental law, cannot be trusted.

48. As regards the references to the University of Huelva, the complainant stated that they were used merely to give the impression that the scientific objectives of the Botanical Garden were guaranteed. The complainant stated that the university experts concerned are qualified in civil engineering, and not environmental issues. The complainant argued that the Spanish

11 authorities would not ensure the implementation of the scientific obectives.

49. The complainant argued that the Commission excluded the possibility of restoring areas that had been excavated, but not yet built on, and that it was encouraging illegal action by allowing developers to enter protected areas, rapidly destroy everything, and thereby enable them to make money on the developments.

50. The complainant stated that restoring and recovering damaged natural habitat areas is the fundamental principle of environmental law. The complainant argues that such restoration and recovery is still possible in this case.

51. As regards the Commission's statement that its decision to close the case was based on opportunity reasons (namely, that, even though there was a confirmed infringement of Article 13 of the Habitats Directive, the only possible option, in the circumstances, was to establish a compensatory mechanism), the complainant stated that, by bringing the case before the Court of Justice, the following could be achieved; (i) the infringement would be recognised; (ii) the persons responsible would be identified; (iii) natural habitat could be recovered and damage remedied; (iv) compensatory measures could be established, and (v) sanctions could be applied against the administrative authorities.

52. As regards the argument that the damage to Picris Willkommii occurred before the Environmental Liability Directive entered into force, the complainant argued that Article 17 implies that the Directive only ceases to apply in cases when the specific activity in question was carried out and finished before the Directive's date of entry into force. The complainant argued that the damage to the site was a continuous process and that it included the construction of a swimming pool, and paths and roads in 2008. The complainant fears that worse is to come, due to the further construction foreseen in the second phase of the project.

53. The complainant concluded by stating that the Commission has acted in an absolutely arbitrary manner by choosing to ignore its clear arguments and the irrefutable proof it has put forward.

The Ombudsman's assessment

54. Complaints from citizens constitute one of the most important sources of information on possible infringements of EU law by Member States. Complaints from citizens enable the Commission better to fulfil its role as " Guardian " of the Treaties. Complaints from citizens are particularly important as regards empowering the Commission to ensure that EU environmental law is correctly applied, given that citizens can themselves identify the effects of failures to comply with EU environmental law within their Member States.

55. It is good administrative practice for the Commission to deal with infringement complaints as diligently as possible. If citizens are unhappy with the way in which the Commission has dealt with their complaints, they have a right to complain to the

12 Ombudsman about either how the Commission has acted, or how it has failed to act.

55. The scope of the Ombudsman's mandate in relation to such complaints is, however, limited to examining whether the Commission acted with diligence in relation to the infringement complaint submitted to it. In this respect, the focus of the Ombudsman's assessment will be two-pronged. First, diligence is assessed with reference to the level of care which the Commission is expected to exercise when responding to infringement complaints submitted to it. From a procedural perspective, diligence is also assessed with reference to compliance with the rules and procedures established in the 2002 Communication on relations with the complainant in respect of infringements of Community law ('the 2002 Communication'), which aims to establish a clear and transparent framework for the handling of infringement complaints.

56. The fact that there was, in the Commission's view, an infringement of the Habitats Directive does not, however, automatically imply that the Commission would commit an instance of maladministration if it decided, as it did in this case, not to pursue infringement proceedings against Spain. According to the case law of the Union courts, the Commission disposes of a wide margin of discretion to decide whether or not to pursue a Member State for an alleged infringement of EU law [6] .

57. The Ombudsman recalls, however, that when it uses its discretion, such as when it decides not to pursue a Member State for an alleged infringement of EU law, the Commission must act within the limits of its legal authority, since discretionary power is not the same as arbitrary power. The Commission must justify why it decides to exercise its discretion in a particular way by explaining adequately the reasons why a particular course of action was chosen.

58. The Ombudsman underlines that one of the more important reasons why the Commission might wish to pursue an infringement case will be where the Member State concerned refuses to recognise that there has been an infringement of the environmental rules, or where the Member State refuses to take measures to ensure that future infringement of the environmental rules will not occur. In this context, infringement proceedings might be pursued in order to induce the Member State concerned, during the administrative stage of the infringement proceedings, to recognise that an infringement has been committed. Moreover, the Member State should commit itself to pursuing a proactive prevention and information policy (for example, by giving the necessary " instructions " to the authorities concerned, especially decentralised authorities, such as the local authorities at Ayamonte, so that the latter will correctly interpret, and then duly apply EU law).

59. If a positive reaction is obtained from the Member State concerned during the administrative stage of the infringement proceedings (after the letter of formal notice has been sent out, or after the reasoned opinion has been issued, the Commission could again (by exercising its discretionary powers), close the case. If no such positive reaction were forthcoming during the administrative stage of the infringement proceedings, the Commission could again, by exercising its discretionary powers, choose to proceed to the judicial stage of the infringement proceedings by bringing an action before the Court of

13 Justice, pursuant to Article 258 TFEU.

60. The purpose of an Article 258 infringement proceeding is to allow the Court of Justice the opportunity to declare that there has been an infringement, and to impose an obligation on the Member State concerned to take all possible measures to put an end to that particular infringement. In contrast to what can occur during the administrative stage of the infringement proceedings, the Court of Justice cannot enter into a discussion with the Member State about the merits of pursuing a more proactive prevention and information policy, with a view to avoiding similar infringements in the future.

61. The Ombudsman strongly underlines that it may be of great practical benefit, in terms of the effective future application of EU law in the Member State concerned, if, rather than pursuing judicial proceedings, more systemic solutions can be found by means of dialogue [7] between the Commission and the Member State concerned.

62. Essentially, the Commission justified exercising its discretion to close the complainant's complaint by explaining that, even if the infringement procedure were continued, it would not ensure that Picris Willkommii would be any better protected than it is under the measures which the Spanish authorities have already taken, or plan to take. The Ombudsman is of the view that, in principle, this is a satisfactory justification for the exercise by the Commission of its discretion to close a complaint submitted to it. In reaching this conclusion, the Ombudsman has carefully examined the arguments put forward by the complainant and the Commission.

63. With specific reference to the Municipality of Ayamonte's 2003 decision to grant a building permit for an area scientifically demonstrated to be a natural habitat for Picris Willkommii , the Commission takes the view that, by granting the building permit, the Spanish authorities infringed Article 13 of the Habitats Directive. It has not been argued that there was any applicable derogation which justified the infringement of Article 13 of the Habitats Directive. As a general principle, the Commission always has the option of basing an infringement case on a Member State's failure to take the necessary steps to annul specific decisions that infringe EU law. However, according to the complainant, the Spanish State, because of its judicial system, is unable to annul the 2003 administrative decision, through which the building permit was awarded, before the conclusion of the criminal law proceedings concerning the two officials who are accused of serious irregularities relating to the authorisation of the building work. Under these circumstances, there would appear to be no practical purpose in the Commission demanding that the Spanish authorities annul the administrative decision of 2003, since this would imply the Commission asking the Spanish authorities to do something which they cannot legally do at the present time.

64. As regards the complainant's requests that further building work should be stopped, given that, in its view, Picris Willkommii is regenerating naturally on excavated parts of the project area that have not yet been built on, the Ombudsman notes that the excavation work carried out clearly damaged the habitat of Picris Willkommii (over an area comprising 13.18 hectares). However, the complainant considers that, while the habitat was damaged, the excavation work did not completely destroy it. The complainant argues that infringement

14 proceedings would have the practical effect of saving what remains of the Picris Willkommii habitat in the area that has been excavated, but not yet built on.

65. According to the Commission, by 2005, there were no remaining individual plants of Picris Willkommii present in the zone where the urban development project had been authorised (due to the extensive excavation work). The Commission provided photographic evidence in relation to this assertion. Furthermore, the Spanish authorities informed the Commission that the preparatory excavation works were acts which led to the " destruction " of the natural habitat of Picris Willkommii in the project area at Ayamonte. The complainant argues that this is not factually correct. It states that Picris Willkommii is regenerating naturally on the excavated land. The Ombudsman notes that the Commission stated that its technical services do not have sufficient information to affirm that Picris Willkommii can be re-established on the land, but that the complainant had agreed to supply such proof. However, no such proof has been submitted to the Commission. The complainant argues that it is not under an obligation to demonstrate the recoverability of the land. In this respect, it noted that the owner of the land has prohibited it from entering the area, which makes it impossible for it to provide such proof.

66. The Ombudsman notes that the Commission has explained why it considers that it should take no further action regarding the argument that the natural habitat of Picris Willkommii in the project area can be saved, at least partially. The Ombudsman notes that this aspect of the complaint is based on a clear factual issue, namely, whether or not the natural habitat of Picris Willkommii in the project area at Ayamonte has been destroyed. The Ombudsman has seen photographic evidence, in the complaint file, of the very extensive excavations which have been carried out on the project site. This photographic evidence may establish, prima facie, that the habitat has been destroyed. However, the definitive factual assessment of whether a habitat can survive is a question which can only be answered by a scientific assessment. Neither the complainant, nor the Spanish authorities, have provided the Commission with any such scientific assessment.

67. Even if it were to prove impossible to undo the damage already caused to the natural habitat of Picris Willkommii in the project area at Ayamonte [8] , this would not mean that the Commission should not seek, using the extensive power it has over Member States in this area, to make certain that the Spanish authorities take all necessary measures to ensure the overall survival of Picris Willkommii throughout its entire existing natural habitat. The Commission stated that the Spanish authorities adopted measures to protect Picris Willkommii . These included (i) the creation of a botanical garden; (ii) the creation of an interpretative centre for the species located in the botanical garden; (iii) the inclusion of a new management model within the General Urban Management Plan of Ayamonte, and (iv) the decision for the Phytogenetic Material Bank of Andalusia to stock seeds of Picris Willkommii . The Commission considered that the Spanish authorities should also take adequate measures to avoid further damage to this species, including a plan to protect and recover the Picris Willkommii , and ensure its recovery. The Spanish authorities sent the Commission a " draft Plan of recovery and conservation of the flora species of the dunes, the coastal sandy grounds and the coast ", including the species Picris Willkommii . The Ombudsman underlines that the above measures should not be viewed as measures which

15 seek to eliminate the effects of the infringement of the Habitats Directive which resulted from the building project at Ayamonte, and they should not be seen as measures which seek to compensate completely for that infringement. The above measures are incapable of doing so, and they do not seek to do so. However, this does not mean that the above measures are not important and necessary. In sum, it cannot be sustained that the Commission acted wrongly in it efforts to try to ensure that all possible measures were taken to protect Picris Willkommii .

68. The Ombudsman notes that, when analysing whether it should use its wide margin of discretion, the Commission can refrain from further pursuing Spain for an infringement of EU law, by taking into account the fact that the Spanish authorities were willing to take these conservation measures. The measures envisaged indicate that Spain has taken greater account of the importance of protecting this rare species of plant, and that it is now taking steps within its powers to give effect to the need to protect this rare species. The measures include sensitising the public through, for example, an interpretative centre for the species. Raising public awareness is vital to ensure that members of the public do not inadvertently cause damage by picking, collecting, cutting, uprooting or destroying endangered plants. These measures also include steps to prevent further damage to the habitat and to ensure that the genetic material is safeguarded. The Ombudsman notes that such measures are already partially effective (see paragraphs 28 to 30 above), and that their future application will be monitored. The Ombudsman notes that some of these measures might not have been taken if the services of the European Commission had not intervened.

69. It should also be noted that the Commission has stated that it will give priority to pursuing cases where there is a repeated infringement in the same Member State within a given period, or in relation to the same piece of EU legislation; these are mainly cases of systematic incorrect application detected by a series of separate complaints by individuals [9] . The fact that the Spanish authorities have now undertaken the commitments outlined above would indicate that the Commission might be justified in not pursuing an infringement case in relation to the destruction of the habitat of Picris Willkommii by the construction work in question. The Commission also stated that it intends to monitor the implementation of the measures, even though the case has been closed. It also stated that, if the measures are found to be insufficient, further measures would be requested and, if necessary, the Commission would open a new complaint file.

70. As regards the application of the Environmental Liability Directive, Article 17 of that Directive establishes that the Directive does not apply to damage caused by an emission, event or incident that took place before 30 April 2007. The Ombudsman notes that it is the date of the event which caused the damage , and not the date on which construction will be completed, which is relevant for the purposes of applying the Environmental Liability Directive. If the damage to the habitat was caused by the initial excavation work, the fact that that the building project is still under construction is irrelevant.

71. The Ombudsman notes, however, the Commission's reference to Article 13 of the Environmental Liability Directive. That provision, in combination with Article 12 of the same Directive, establishes a specific review procedure to be carried out by the national

16 authorities. The Ombudsman considers that, by drawing attention to these provisions, the Commission seeks to empower affected parties.

72. According to Article 12 of the Environmental Liability Directive, persons affected or likely to be affected by environmental damage , or persons having a sufficient interest in environmental decision-making relating to the damage , shall be entitled to submit to the competent national authority any observations relating to instances of environmental damage or an imminent threat of such damage of which they are aware and shall be entitled to request the competent authority to take action . Non-governmental organisations will normally be deemed to have a sufficient interest in environmental decision making. Any such request must be accompanied by the relevant information and data supporting the observations submitted in relation to the environmental damage in question. Where the request for action and the accompanying observations show in a plausible manner that environmental damage exists, the competent authority shall consider any such observations and requests for action. In such circumstances the competent authority shall give the relevant operator an opportunity to make his views known with respect to the request for action and the accompanying observations. The competent authority must, as soon as possible, inform the persons that submitted observations to the authority, of its decision to agree to or refuse the request for action [10] and shall provide the reasons for it.

74. If the persons making the observations relating to damage are unhappy with the national authority's decision, they have the right to go to a national court, or other independent and impartial public body, competent to review the procedural and substantive legality of the decisions, acts, or failure to act, of the competent authority.

75. Clearly, if the complainant considers that there is new environmental damage to Picris Willkommii resulting from new building work that took place after 30 April 2007, it should bring the relevant information, and data supporting these observations [11] , to the attention of the competent national authorities and, if applicable, the national courts or other independent and impartial public bodies. Likewise, if it considers that the habitat of Picris Willkommii has not been completely destroyed by the excavation work, and that future work on the site would damage the surviving habitat, it should bring the relevant information, and data supporting these observations [12] , to the attention of the competent national authorities and, if applicable, the national courts or other independent and impartial public bodies. These principles apply, not only to the building project at issue above, but all other building projects in Ayamonte and elsewhere.

76. The Ombudsman commends the Commission for drawing the complainant's attention to the other possible national remedies. The Ombudsman considers that the Commission should also make complainants in future similar cases aware of all such possibilities. In this context, the Ombudsman will make a further remark.

77. In closing his inquiry into complaint 1446/2010/FOR [13] , the Ombudsman noted that the complainant in that case also asked the Commission to carry out its own site inspections in relation to an important environmental issue. The Ombudsman does not exclude the

17 possibility that the application of EU environmental legislation may need to be scrutinised on the ground, especially in cases where citizens provide evidence that calls into question the evaluations carried out by national authorities. In this context, the Ombudsman considered that it may be appropriate to open an own initiative inquiry to seek to determine whether the Commission correctly identifies and exercises the investigatory powers at its disposal when verifying complaints from citizens about possible infringements of EU environmental legislation. The Ombudsman will consider allowing third parties to submit observations on the Commission's opinion if he does indeed open an own initiative inquiry.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There was no maladministration by the Commission.

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

When the Commission decides to close an infringement complaint, it should draw the complainant's attention to all possible national remedies.

P. Nikiforos Diamandouros

Done in Strasbourg on 14 June 2011

[1] The Red List of the Spanish Vascular flora states that Picris Willkommii is in "critical danger of extinction".

[2] Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22 July 1992, p. 7).

[3] The complainant has not informed the Ombudsman as to the outcome of this case.

[4] Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143, 30.4.2004, p. 5).

[5] The Commission also referred to photographs found on the developer's internet site ( http://www.miraguadiana.com ).

[6] See the Ombudsman's decisions on complaints 962/2006/OV, 3453/2005/GG,

18 3125/2005/BB, 995/98/OV, 480/2004/TN and 493/2000/ME, which can be found on the Ombudsman's website ( http://www.ombudsman.europa.eu ). The Ombudsman underlines that the issue of the exercise of discretion only arises in those cases where the Commission considers that a Member State has infringed EU law. The Ombudsman notes that it does not make sense to refer to the "exercise of discretion" by the Commission in cases where the Commission takes the view that there has been no infringement of EU law by a Member State.

[7] The dialogue can occur both before entering the administrative stage of the infringement proceedings, or during the administrative stage of the infringement proceedings.

[8] The Ombudsman notes that the fact that individual examples of Picris Willkommii may now grow on the building site does not mean that the " natural habitat " for Picris Willkommii persists on the project site. As the complainant himself has maintained (when referring the "botanical garden"), the existence of various examples of Picris Willkommii in a given area does not lead to the conclusion that the area concerned is a "natural habitat".

[9] See page 11 of the Commission's Communication entitled "Better monitoring of the application of Community law" (COM(2002)725).

[10] Under the Directive, where there is an imminent threat of environmental damage, the competent authority designated by each Member State will require the operator (the potential polluter) to take the necessary preventive measures, or will take such measures itself and recover the costs incurred at a later date. Where environmental damage has occurred, the competent authority will require the operator concerned to take the necessary restorative measures or will take such measures itself and recover the costs incurred at a later date. If the competent authority has carried out preventive and remedial actions itself, the authority may recover the costs it has borne from the operator responsible for the damage or imminent threat of damage. The competent authority must initiate cost recovery proceedings within five years of the date on which the remediation and repair measures have been completed or the date on which the liable operator, or third party, has been identified, whichever is the later.

[11] He would have to show that a natural habitat existed after 30 April 2007, and that this natural habitat has been damaged since that date by works which were carried out after that date.

[12] He would have to show that a natural habitat continues to exist now , and that there is an imminent threat to that natural habitat (for example, by works that have not yet taken place , but which will take place in the near future).

[13] Case 1446/2010/FOR concerns compliance by Italy with the Landfill Directive in relation to the operation of a landfill at Malagrotta, Rome.