[cleanairuk_news] Winchester: Complaint to European Commission re. air quality accepted for consideration

[Network for Clean Air]

Below is the text of a letter sent to complainants in Winchester,
Hampshire (UK) about breaches of EU law in regard to air quality. The
letter was dated 7 February 2013. This is the first stage in the complaint
procedure which could ultimately lead to the European Court of Justice.

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*PAGE 1*

EUROPEAN COMMISSION  Environment
Brussels, 07/02/2013

Dear Sir

With reference to your letter of 04/12/2012 ( WINCHESTER FRIENDS OF THE
EARTH (WINFOE) - WINCHESTER GREEN PARTY (WINGP)), I am pleased to inform
you that the complaint you sent to the Commission has been registered
under reference number CHAP(2012)03464 (please quote this reference in any
further correspondence). It should be noted that the assignment of an
official reference number to your complaint does not necessarily mean that
infringement proceedings will be opened by the Commission.

The Commission's services will consider your complaint in the light of the
applicable European Union law. You will be informed directly of the
findings and of the course of any infringement proceedings opened. In the
meantime you can contact Environment, by e-mail at the following address
ENV-CHAP at ec.europa.eu.

You may opt for confidential or non-confidential treatment of your
complaint. Non-confidential treatment means that the Commission
departments have permission to disclose both your identity and information
you may have communicated to the Commission in any representations they
make to the authorities of the Member State against which you have made
your complaint. Where you have not indicated your choice in this respect
by means of the complaint form or by letter, the Commission's services
will presume that you have opted for confidential treatment. It should be
borne in mind, however, that the disclosure of your identity by the
Commission's services may in some cases be indispensable to the handling
of the complaint.

You will not be requested to contribute to the procedural costs, even
where the Commission decides to open infringement proceedings.

Lastly, it is in your interest also to make use of means of redress
available at national level, which as a rule enable you to assert your
rights more directly and more personally. Where you have suffered damage,
for example, only the national courts can award you reparation from the
Member State concerned. Furthermore, since there is a time-limit on
national means of redress, unless you use them quickly, you may lose your
rights at national level.

You are advised to read the annex for further information on the procedure
for non-compliance with European Union law.

Yours faithfully,

Jean-François Brakeland
Head of Unit

Annex 1: Explanation of procedure for non-compliance with E
Annex 2: Specific privacy policy statement

Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049
Brussel - Belgium. Telephone: (32-2) 299 11 11.


*ANNEX 1 PAGE 1*

Explanation of procedure for non-compliance with European Union law

1.Principles

Each Member State is responsible for the implementation (transposition by
the deadline, conformity and proper application) of European Union law in
its internal legal system. The European Commission ensures that European
Union law is properly applied. Consequently, where a Member State fails to
comply with European Union law, the Commission has powers of its own
(action for non-compliance) which it may use in an attempt to terminate
the infringement and, if necessary, it may refer the case to the Court of
Justice. The Commission takes whatever action it deems appropriate whether
in response to a complaint or after detecting indications of infringements
itself.

Non-compliance means failure by a Member State to fulfil its obligations
under European Union law. It may consist either of action or omission. The
term State is taken to mean the Member State which infringes European
Union law, irrespective of the authority - central, regional or local - to
which the non-compliance is attributable.

2.Admissibility of complaints

Anyone may lodge a complaint with the Commission against a Member State
for any measure (law, regulation or administrative action) or practice
attributable to a Member State which they consider incompatible with a
provision or a principle of European Union law. You do not have to
demonstrate a formal interest in bringing proceedings. Nor do you have to
prove that you are principally and directly concerned by the infringement
complained of. To be admissible, a complaint has to relate to an
infringement of European Union law by a Member State. It cannot therefore
concern a private dispute.

It is very important for the complaint papers to be complete and accurate,
particularly as regards the facts complained of in relation to the Member
State in question, any steps which you have already taken at any level
and, as far as possible, the provisions of European Union law which you
consider to have been infringed and any involvement of a European Union
funding scheme.

3.Stages of infringement proceedings

In infringement proceedings, a case may be handled in the following stages:

3.1 Research phase

In response to your complaint, it may be necessary to gather further
information to determine the points of facts and of law concerning your
case. Should the Commission contact the authorities of the Member State
against which you have made your complaint, it will not disclose your
identity unless you have given it your express permission to do so (see
below point 5). If necessary, you will be asked to supply further
information.

After examining the facts and in the light of the rules and priorities
established by the Commission for opening and pursuing infringement
proceedings, the Commission’s services will decide whether further
action should be taken on your complaint.

3.2 Opening of infringement proceedings: formal contacts between the
Commission and the Member State concerned

If the Commission considers that there may be an infringement of European
Union law which warrants the opening of infringement proceedings, it
addresses a "letter of formal notice" to the Member State concerned,
requesting it to submit its observations by a specified date. The Member
State has to adopt a position on the points of fact and of law on which
the Commission bases its decision to open the infringement proceedings.

*ANNEX 1 PAGE 2*

In the light of the reply or absence of a reply from the Member State
concerned, the Commission may decide to address a "reasoned opinion" to
the Member State, clearly and definitively setting out the reasons why it
considers there to have been an infringement of European Union law and
calling on the Member State to comply with European Union law within a
specified period (normally two months).
The purpose of those formal contacts is to determine whether there is
indeed an infringement of European Union law and, if so, to resolve the
case at this stage without having to take it to the Court of Justice.

In the light of the reply, the Commission may also decide not to pursue
the infringement proceedings any further, for example where the Member
State provides credible assurances as to its intention to amend its
legislation or administrative practice. Most cases can be resolved in this
way.

3.3 Referrals to the Court of Justice of the European Union

If the Member State fails to comply with the reasoned opinion, the
Commission may decide to bring the case before the Court of Justice of the
European Union. On average, it takes about two years for the Court of
Justice to rule on cases brought by the Commission.

Judgments of the Court of Justice differ from those of national courts. At
the close of the proceedings, the Court of Justice delivers a judgment
stating whether there has been an infringement. The Court of Justice can
neither annul a national provision which is incompatible with European
Union law, nor force a national administration to respond to the request
of an individual, nor order the Member State to pay damages to an
individual adversely affected by an infringement of European Union law.

It is up to a Member State against which the Court of Justice has handed
down its judgment to take whatever measures are necessary to comply with
it, particularly to resolve the dispute which gave rise to the
proceedings. If the Member State does not comply, the Commission may again
bring the
matter before the Court of Justice seeking to have periodic penalty
payments imposed on the Member State until such time as it puts an end to
the infringement.

4.National means of redress

It is national courts and administrative bodies that are primarily
responsible for ensuring that the authorities of the Member States comply
with European Union law.

Therefore, if you consider a particular measure (law, regulation or
administrative action) or administrative practice to be incompatible with
European Union law, you are invited to seek redress from national
administrative or judicial authorities (including national or regional
ombudsmen) and/or through the arbitration and conciliation procedures
available. The Commission advises you to use those national means of
redress because of the advantages they may offer for you.

By using the means of redress available at national level you should, as a
rule, be able to assert your rights more directly and more personally than
you could following infringement proceedings successfully brought by the
Commission, which may take some time. Only national courts can issue
orders to administrative bodies and annul a national decision. It is also
only national courts which have the power, where appropriate, to order a
Member State to make good the loss sustained by individuals as a result of
the infringement of European Union law attributable to it.

5. Administrative guarantees

The following administrative guarantees exist for your benefit:

a) Following registration by the Commission, your complaint has been
assigned an official reference number (as set out in this acknowledgment),
which should be quoted in any correspondence. However, the assignment of
an official reference number does not necessarily mean that infringement
proceedings will be opened against the Member State in question.

b) Where the Commission's services make representations to the authorities
of the Member State against which the complaint has been made, they will
abide by the choice you have made  regarding disclosure of your identity.
Where you have not indicated your choice, the Commission's services will
presume that you have opted for confidential treatment.

c) The Commission will endeavour to take a decision on the substance
(either to open infringement proceedings or to close the case) within
twelve months of registration of the complaint.

d) You will be notified in advance by the relevant department if it plans
to propose that the Commission close the case. The Commission's services
will keep you informed of the course of any infringement proceedings.

You are referred to the following Commission documents which explain the
Commission's general approach to the management of correspondence and
complaints:

• Code of good administrative behaviour for staff of the European
Commission in their relations with the public, available on the EUR-Lex
website (http://eur-lex.europa.eu) under its publication
reference, Official Journal L 267, 20.10.2000, p. 63.

• Commission Communication on relations with the complainant in respect of
infringements of Community law, accessible on the EUR-Lex website
(http://eur-lex.europa.eu) under the reference, COM (2002) 141 final.

• Regulation 45/2001 of the European Parliament and of the Council of 18
December 2000 on the protection of individuals with regard to the
processing of personal data by the Community institutions and bodies and
on the free movement of such data, Article 5, available on the EUR-Lex
website (http://eur-lex.europa.eu) under its publication reference,
Official Journal L 8, 12.1.2001, p. 1.

*ANNEX 2*

Specific privacy policy statement

Complaints Handling (CHAP)

1. The CHAP database

The CHAP database has been set up to manage the enquiries and complaints
which the Commission receives about infringements of European Union law by
Member States.

2. Controller

The controller of the processing is Karl Von Kempis, head of unit SG-C-3,
Mail and Document Management, in the Commission Secretariat General (SG).

3. Purpose

The purpose of collecting the information in the CHAP database is to
enable the Commission to learn about infringements of European Union law
and thus carry out its task under Article 17 of the Treaty on European
Union to ensure that Member States apply the provisions of the Treaty and
the measures taken under it.

4. Information collected

The information collected includes the name and address of the person or a
legal entity, their telephone and fax numbers and email address, their
area of activity, their preferred language, and (possibly) the name of
their representative. The full text of the enquiry or complaint may
however contain other data quite different to that the correspondent
supplies.

5. Mandatory information

Certain information must be supplied in the CHAP database in order to
allow the Commission to examine the enquiry or complaint (your name and
address, subject of correspondence, Member State concerned, facts showing
how the Member State is in infringement of European Union law). Failure to
supply such information will mean the correspondence is anonymous and
inadmissible, or the Commission cannot communicate with the correspondent
or the Commission is unable to see, in the case of a complaint, if it is
justified.

6. Protection and safeguard

The personal information collected and all information related to the
above-mentioned activities are stored on the European Commission servers
in the Data Centre in Luxembourg, the operations of which are covered by
the Commission's security decisions and provisions established by the
Security
Directorate for this kind of server and service.

7. Who has access to your information?

The information collected in the CHAP database is not accessible to anyone
outside the Commission. Inside the Commission, access to the personal
information is granted only through USER ID + password to a defined
population of users of the CHAP database. The people who have access to
CHAP
are those in the SG and other Commission services dealing with the
Commission mail or infringements.

8. How long is the information kept?

When a person sends a complaint or an enquiry to the Commission, the
personal information they give is kept in the CHAP database for three
years. After that period, the information enabling the person to be
identified is deleted. Information given by a legal entity complaining to
the Commission is not deleted.

9. Accessing, checking, correcting or deleting your information

You have no direct access to the information stored. Anyone who wishes to
verify the personal information stored about them by the controller of the
processing, or who wishes to check, correct or delete such personal
information, should write an email to sg-plaintes at ec.europa.eu giving full
details of their request.

10. Contact details

If you have any question or request, please contact the CHAP support team,
operating under theresponsibility of the controller, either by email to
sg-plaintes at ec.europa.eu or by letter to the Secretariat General (SG-R-2),
European Commission, B 1049 Brussels.

11. Remedies

Complaints about the processing of information in CHAP can be addressed to
the European Data Protection Supervisor, Rue Wiertz 60 (MO 63), 1047
Brussels, Belgium.