Complaint-handling and citizen engagement

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2019-A7-W3-DOC2-Draft-Complaint-Documentation

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Contents

Contents ............................................................................................................................................................... i

Foreword and disclaimer ............................................................................................................................... 1

Executive summary ......................................................................................................................................... 2

1. Introduction ............................................................................................................................................... 5

1.1. Scope ....................................................................................................................................................................................... 5

1.2. Considerations that led to the preparation of the documentation ...................................................... 5

1.3. Addressees of this documentation ......................................................................................................................... 6

1.4. How this documentation was developed ............................................................................................................ 6

2. Citizen engagement ................................................................................................................................ 7

2.1. Introduction .......................................................................................................................................................................... 7

2.2. Why the environment matters to people and people matter to the environment ...................... 7

2.3. Understanding the interaction between people and the environment ............................................... 7

2.4. The policy cycle .................................................................................................................................................................. 8

2.5. Obligations and rights.................................................................................................................................................... 9

2.6. Upholding obligations and rights: compliance assurance and other means ............................... 11

2.7. Beyond legal obligations: the role of ethics and other standards ..................................................... 12

2.8. The role of citizen engagement ............................................................................................................................ 12

2.9. Motivation .......................................................................................................................................................................... 13

2.10. Mechanisms for citizen engagement ................................................................................................................. 13

2.11. Role of complaints in citizen engagement ...................................................................................................... 17

3. Complaint-making ................................................................................................................................ 19

3.1. Introduction ....................................................................................................................................................................... 19

3.2. What are complaints about? ................................................................................................................................... 19

3.3. Who complains? .............................................................................................................................................................. 25

3.4. When are complaints made? ................................................................................................................................... 30

3.5. To whom are complaints directed?...................................................................................................................... 30

3.6. How are complaints made? ..................................................................................................................................... 31

4. Complaint-handling ............................................................................................................................. 36

4.1. Introduction ....................................................................................................................................................................... 36

4.2. Ends ....................................................................................................................................................................................... 36

4.3. Ways ..................................................................................................................................................................................... 39

4.4. Means: Complaint-handling bodies ..................................................................................................................... 43

4.5. Means: Principles ........................................................................................................................................................... 48

4.6. Means: capacities and tools .................................................................................................................................... 50

5. Conclusions ............................................................................................................................................. 56

6. Glossary ................................................................................................................................................... 57

7. References ##still to be completed## ......................................................................................... 59

Annex I: Relevant EU provisions and frameworks ............................................................................... 1

Annex II: Citizen Science ................................................................................................................................ 1

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List of tables, figures and text boxes

List of Tables

Table 1: Examples of obligations on public authorities ................................................................................... 10

Table 2: Examples of rights ............................................................................................................................................. 11

Table 3: Overview of mechanisms for citizen engagement .......................................................................... 14

Table 4: Overview of redress mechanisms ............................................................................................................. 16

Table 5: Checklist citizen engagement ...................................................................................................................... 18

Table 6: Approaches to categorising the content of complaints ................................................................. 20

Table 7: Different classes and categories of complainant ............................................................................ 26

Table 8: Bodies to whom complaints may be directed .................................................................................... 31

Table 9: Ways of communicating complaints ........................................................................................................ 32

Table 10: Checklist on complaint-making ................................................................................................................ 34

Table 11: Purposes of complaint-handling ............................................................................................................. 37

Table 12: Complaint-handling bodies ......................................................................................................................... 44

Table 13: Good governance principles ....................................................................................................................... 48

Table 14: Capacities and tools for complaint-handling ................................................................................... 50

Table 15: Checklist on complaint-handling ............................................................................................................. 54

List of Figures

Figure 1: Outline of the DPSIR conceptual framework ........................................................................................ 8

Figure 2: Citizen engagement across the policy cycle ......................................................................................... 9

Figure 3: Importance of transparency ........................................................................................................................ 15

Figure 4: Decision Tree........................................................................................................................................................ 39

Figure 5: Steps of a typical complaint-handling procedure ## Table Figure ................................ 39

Figure 6: Outcomes of investigation and their response ................................................................................ 41

Figure 7: Relation of complaints to ombuds-institutions and appeals to other procedures ....... 43

Figure 8: Complaint and appeal bodies ..................................................................................................................... 47

List of Text boxes

Text box 1: Good practice for crowdsourcing/citizen science as a source for information .......... 14

Text box 2: Member State experiences with whistle-blowers ...................................................................... 28

Text box 3: Member State experiences of dealing with anonymous complaints .............................. 28

Text box 4: Dealing with challenging complainants ........................................................................................... 29

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Text box 5: Examples of Member State approaches to dealing with media ........................................ 29

Text box 6: Member States’ experience of dealing with transboundary complaints ....................... 30

Text box 7: Member State experience of dealing with out-of-hours complaints .............................. 30

Text box 8: Outreach by the Portuguese Ombudsman ..................................................................................... 32

Text box 9: Information about how to complain .................................................................................................. 33

Text box 10: Example of citizen science in action ............................................................................................... 33

Text box 11: Practice example – Receiving complaints .................................................................................... 40

Text box 12: Practice example – Categorisation of complaints .................................................................. 40

Text box 13: Practice example – Assignment of responsibility ................................................................... 41

Text box 14: Practice example – Respond to the complaint.......................................................................... 42

Text box 15: Practice example – Citizen science in complaint handling ................................................. 42

Text box 16: Practice example – Complaints about maladministration ................................................. 43

Text box 17: Practice example – Types of ombuds-institutions ................................................................. 46

Text box 18: Practice examples – Coordination .................................................................................................... 48

Text box 19: Practice example – Accessibility ....................................................................................................... 48

Text box 20: Practice examples – Staff training .................................................................................................. 51

Text box 21: Practice example – Technical means ............................................................................................. 51

Text box 22: Practice examples – Prioritisation of complaints .................................................................... 52

Text box 23: Practice example – IMPEL Checklist for complaint-handling ........................................... 53

Text box 24: Practice example – Evaluation and reporting ............................................................................ 54

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Foreword and disclaimer 1

## The text of this foreword and disclaimer is itself a draft subject to further revision. ## 2

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The Action Plan to Improve Environmental Compliance and Governance aims to foster a coherent and 4 harmonious implementation of EU environmental law and strengthen compliance assurance capaci-5 ties and activities on the ground. It addresses some of the systemic and crosscutting root causes for 6 poor implementation identified in the Environmental Implementation Review and the reports of IMPEL 7 on implementation challenges. 8

In the context of the Action Plan, guidance documents and other documents to support national au-9 thorities have been developed jointly by experts from the EU Member States, professional environ-10 mental networks and the European Commission. These legally non-binding and practical documents 11 are addressed to those experts directly or indirectly implementing the EU environmental legislation 12 at all levels of governance. These documents take the form of guidance documents, recommenda-13 tions, references to good practices or links to other technical documents useful for practitioners, and 14 may need to be adapted or complemented to fit the national or regional context. 15

This document entitled "Complaint-handling and citizen engagement" was prepared through a series 16 of expert workshops. It was made available to the wider interested public for comment from 17 17 December 2018 to 25 January 2019. Once finalised, the document has been reviewed and endorsed 18 by the EU Compliance and Governance Forum (in accordance with Point 5 of its Rules of Procedures). 19 The Forum has also recommended the publication of this document and encouraged its wide use by 20 all national, regional and local authorities involved in ensuring compliance with EU environmental law. 21 Furthermore, the Forum members have committed themselves to, if necessary, complementing the 22 document with other elements of relevance in the national context. Having regard to legal, scientific 23 and technical progress and experiences gained in the use of the documentation, the Forum will assess 24 the possible need for reviewing it. 25

Disclaimer 26

This document has been developed through a collaborative process of experts in the context of the 27 Action Plan to Improve Environmental Compliance and Governance and has been reviewed and en-28 dorsed by the Environmental Compliance and Governance Forum. However, the document does not 29 necessarily represent the position of any of the institutions or organisations that Forum members 30 represent. 31

To the extent that the European Commission's services provided input to this document, such input 32 does not necessarily reflect the views of the European Commission. Neither the European Commission 33 nor any other Forum members are responsible for the use that any third party might make of the 34 information contained in this document. 35

The document is intended to facilitate the implementation of EU environmental law, to provide infor-36 mation of a factual nature illustrating good practices. It only contains factual information on the 37 existence of EU law provisions and their application or merely paraphrases their contents. It is not 38 legally binding nor does it provide any authoritative reading of the law mentioned in the document. 39 Only the Court of Justice of the European Union is competent to authoritatively interpret EU legisla-40 tion. 41

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Executive summary 1

Introduction 2

Action 7 of the Commission’s Environmental Compliance Assurance Action Plan adopted in January 3 2018 is to share experience and good practice of Member States’ bodies in the handling of environ-4 mental complaints. This documentation focuses particularly on the role of complaints as a form of 5 citizen engagement that 6

helps authorities to detect, investigate and respond to actual or suspected non-compliance 7 and to support compliance, and 8

ensures public confidence in how environmental obligations and rights are upheld. 9

The main objective of the documentation is to help national authorities to apply good practices in 10 environmental complaint-handling. 11

Its intended readership includes environmental authorities at different levels, policy makers who over-12 see these authorities, ombuds or similar institutions in the Member States as well as environmental 13 associations and businesses. It is being undertaken in partnership with networks such as IMPEL, NEPA 14 and EUFJE. Once the documentation has been developed, the aim is to have it signed off by the 15 Environmental Compliance and Governance Forum. 16

This executive summary provides a summary of the process undertaken so far and of the current 17 structure and content of the document. It is important to note that it is a 'work in progress' that will 18 evolve to reflect the results of public consultation and further input from Member States and practi-19 tioner networks. It may also be adjusted to align its content with that of the guidance documents 20 developed under Action 4 (combating environmental crime) and Action 5 (environmental compliance 21 in rural areas). 22

Process to date 23

A first outline of the proposed documentation was presented to representatives of Member States 24 and practitioner networks in May 2018 and discussed in a first workshop in June 2018. This clarified 25 the structure and many detailed aspects of the content. Based on the input provided orally during the 26 workshop or in writing after the workshop, a first draft was prepared and shared in September 2018. 27 This was discussed during a second workshop in October 2018. The current version reflects the com-28 ments provided orally during the second workshop and in writing afterwards. A third workshop is 29 scheduled for February 2019. 30

Overview of the structure 31

The current draft has five chapters. Following an introduction still to be completed, Chapter 2 explores 32 the wider dimensions of citizen engagement. This includes a brief exploration of the interaction be-33 tween humans and the environment, the rationale for citizen engagement and the mechanisms for 34 facilitating it, including complaint mechanisms. Chapter 3 describes different aspects of complaint-35 making. Chapter 4 focuses on the handling of complaints and its associated challenges. Chapter 5 36 presents conclusions and there is a glossary and annexes on relevant EU provisions and frameworks 37 and citizen science. 38

The documentation aims to be brief and concise and encourages Member States to adapt it to their 39 own framework conditions and situations. It contains text boxes with good practice from the Member 40 States and checklists at the end of each chapter to help authorities and complaint handlers identify 41 if key issues have been considered in their complaint-handling procedures. 42

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Citizen engagement 1

This Chapter aims at putting complaint-handling into a wider context of engagement of the public in 2 environmental protection. It introduces the DPSIR (drivers, pressures, state, impact and response) 3 conceptual framework as an important tool for understanding inter alia the interaction between peo-4 ple and the environment. It gives an overview on relevant obligations and rights with a focus on public 5 authorities, individuals, businesses and environmental organisations. It explains the role of citizen 6 engagement and the different mechanisms for achieving it, including participatory and redress mech-7 anisms. It distinguishes complaint-handling from other forms of redress. As such, it seeks to provide 8 the theoretical and conceptual framework also for the following chapters, environmental complaint-9 making and –handling. 10

Handling of environmental complaints not only contributes to environmental compliance assurance, 11 but is also an important redress mechanism. In comparison with judicial mechanisms, complaint-12 handling is facilitated by administrative authorities and not by administrative or criminal courts. It 13 also has to be differentiated from non-state mechanisms such as mediation and neighbourhood di-14 alogues. 15

Complaint-making 16

In terms of content, environmental complaints can cover a wide variety of topics. They can be about 17 a specific installation and its impact on the environment, about the pollution of a specific water body, 18 maladministration of an environmental authority that neglects its tasks, or about shortcomings in the 19 provision of environmental services. The documentation structures the possible content of complaints 20 to reflect, first, the DPSIR conceptual framework, second, the obligations and rights that individuals, 21 businesses and public authorities may have and, third, the degree of substantiation of claims made. 22

The documentation than goes on to describe possible complainants. First, individuals such as neigh-23 bours to an installation, concerned citizens or professionals may make complaints. Complaints may 24 also be submitted by local or environmental organisations and via citizen campaigns. Another cate-25 gory of complainants are businesses: economic operators or business associations may provide in-26 formation about non-compliance with environmental law to authorities. Complaints may also be sub-27 mitted by local authorities or councillors that bring cases of non-compliance to the attention of the 28 competent authority at the higher level. In addition to describing the different complainants and their 29 possible motives, the documentation also mentions different cases that may need special attention 30 treatment - such as complaints from whistle-blowers, complaints with unclear objectives or motives 31 or complaints that are submitted anonymously. In addition, challenges and strategies as regards the 32 communication with media in the context of complaints procedures are addressed. 33

The documentation also covers out-of-hours complaints and related challenges in a subsection on 34 the temporal aspect of complaint-making and –taking. 35

Finally, the documentation also addresses the various ways complainants may use to file their com-36 plaint. Complainants may choose personal contact and either drop by the office of the authority or 37 use a telephone hotline. Usually, complaint-handling bodies also accept complaints via letter, email 38 and applications, or even provide for contact forms on their websites. More recently, complaints via 39 social media have become more relevant. Complainants may also choose to complain indirectly via 40 the media or district and city councils. 41

Complaint-handling 42

The structure of this chapter addresses three sub-themes: Ends, Ways and Means. "Ends" covers the 43 objectives and purposes of complaint-handling, "Ways" the procedural steps involved and "Means" the 44 structures, tools and resources used. 45

Different governance principles are described that could guide complaint-handling bodies when deal-46 ing with individual cases. 47

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The documentation looks at the different steps of complaint-handling: receiving the complaint ana-1 lysing it; addressing substantiated concerns, and finalising the handling process through communica-2 tion with the complainant. 3

The different tasks public authorities may have in complaint-handling are described: communication, 4 coordination, investigation and decision-making. The responsibility for these tasks depends on the 5 mandate, functions, powers and capacities of complaint-handling bodies. These aspects - as well as 6 the relevance of cooperation - are defined and described. 7

The documentation puts a spotlight on the different complaint-handling bodies that take up tasks in 8 the handling of complaints. These may be service providers, investigation authorities, administrative 9 bodies and external bodies. There different features and possibly also different functions are de-10 scribed. 11

Organisational structures, resources and tools for achieving the goals of complaint-handling are also 12 addressed. 13

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1. Introduction 1

1.1. Scope 2

The principal focus of this documentation is on the handling of environmental complaints by public 3 authorities. 4

Its scope reflects the need to put such complaint-handling in context and explain the rationale of 5 complaint-handling mechanisms. 6

Complaint-handling mechanisms are only one of a number of mechanisms enabling the public to 7 actively engage in environmental protection ('citizen engagement'). Putting complaint-handling in 8 context means saying something about these mechanisms and about how complaint-handling relates 9 to them. This requires a conceptual understanding of how people and the environment interact. Dif-10 ferent conceptual frameworks help to explain this interaction. 11

One such framework focuses on cause and effect – on how environmental pressures affect the states 12 of water, air, land and nature, and these states produce impacts, including impacts on people. 13

This in turn leads to another framework, one focused more closely on how society responds to envi-14 ronmental threats – chiefly through the adoption and implementation of environmental laws. 15

Laws regulate human interaction with the environment by creating obligations and rights. Obligations 16 and rights are not always respected. Upholding them requires a range of interventions – some led by 17 public authorities, others by the public. Complaints involve both and typically draw attention to situ-18 ations in which obligations and rights are perceived as not being fulfilled. 19

Complaints are an example of a redress mechanism, i.e. a mechanism for putting right a situation 20 that is or may be wrong. It is not the only such mechanism and it is useful to mention others. 21

Moving beyond conceptual frameworks, the documentation addresses the making of complaints. The 22 rationale is that any consideration of complaint-handling will benefit from a clear understanding of 23 what environmental complaints are about, the range of persons who make them and how, when and 24 to whom they are submitted. 25

Finally, the effective operation of complaint-handling mechanisms is a matter of aligning objectives, 26 processes and capacities – what the documentation refers to as 'ends, ways and means'. The scope 27 encompasses each of these aspects. 28

The documentation can be adapted by Member States to their specific conditions. In this way, the 29 scope can further change. 30

1.2. Considerations that led to the preparation of the documentation 31

For information, the box below provides text from the Commission Staff Working Document setting 32 out the considerations that led to the commitment to prepare it. 33

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Action 7, prepare documentation on good practices in the handling of environmental complaints and citizen engagement at Member State level A number of specific considerations underlie Action 7: the Commission’s communication EU law: better results through better application stresses the

role national authorities play in securing the rights of individuals and the importance of supporting national redress mechanisms;

while complaint mechanisms form part of the concept of environmental compliance and while they figure in a number of environmental instruments, there is currently neither a general mechanism for, nor guidance on, handling environmental complaints at national level;

the high number of environmental complaints and petitions received by the European institutions show that there is scope for improving environmental complaint-handling within Member States;

citizen science offers a constructive model for how citizens can make environmental submissions to the competent authorities, something already acknowledged by the Commission in its report Actions to Streamline Environmental Reporting.

1.3. Addressees of this documentation 1

The documentation is mainly addressed to Member States authorities dealing with environmental 2 complaints. This includes national ombuds-institutions or similar bodies. 3

The aim is to help these authorities to identify and apply good practices. 4

Besides these authorities, national policy makers are addressed, as they set the regulatory frame-5 works and make decisions on resources. 6

Individuals, environmental associations and other private parties, including businesses, are further 7 addressees of the documentation, as a better understanding of complaint mechanisms can help im-8 prove citizen engagement. 9

1.4. How this documentation was developed 10

The documentation was prepared through an iterative process. A first outline was presented to rep-11 resentatives of Member States and practitioner networks of inspectors, environmental agencies and 12 ombuds-institutions in May 2018 and discussed in a first workshop in June 2018. This clarified the 13 structure and many detailed aspects of the content. Based on the input provided orally during the 14 workshop or in writing after the workshop, a first draft was prepared and shared in September 2018. 15 This was discussed during a second workshop in October 2018. The current version reflects the com-16 ments provided orally during the second workshop and in writing afterwards. The documentation will 17 continue to evolve, including in the light of input from the public consultation. A third and final work-18 shop is scheduled for February 2019. 19

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2. Citizen engagement 1

2.1. Introduction 2

This chapter puts complaint-handling into a wider context of engagement of the public in environ-3 mental protection - referred to as 'citizen engagement'. 4

First, it notes why the environment matters to people and people matter to the environment and it 5 explores the interaction between them. It then touches on the 'policy cycle', i.e. the different stages 6 involved in adopting, implementing and reviewing environmental laws. It explains environmental ob-7 ligations and rights and means of upholding these, including the roles of environmental compliance 8 assurance and good governance. It addresses the role of citizen engagement across the policy cycle 9 and more generally the different mechanisms for enabling it, including redress mechanisms, and 10 distinguishes complaint-handling from other forms of redress. 11

In this way, the chapter provides a conceptual foundation for the following chapters on environmental 12 complaint-making and –handling. 13

2.2. Why the environment matters to people and people matter to the environ-14

ment 15

The environment is the air we breathe and the water and land on which we depend for vital resources. 16 It is also the neighbourhoods, localities and landscapes in which we pass our lives, and the natural 17 and cultural heritage and amenities that enrich them. 18

This means that each of us as individuals has a stake in the environment. If it goes unprotected or is 19 poorly protected, we pay a price in our health and well-being. And not just as individuals. We bear 20 collective costs and suffer collective losses - through our societies and within and across generations. 21

This has two aspects. As individuals we seek a healthy environment that meets our needs and expec-22 tations. At the same time, the state of the environment depends on our individual and collective 23 conduct. If that conduct is driven by influences that are detrimental to the environment, the result is 24 negative environmental pressures. Close to home, these show up in poor air quality, impaired water 25 resources, lost heritage and degraded surroundings. Globally, they translate into a planet that is over-26 heating and rapidly losing its natural riches. 27

Citizen engagement means mobilising people to address these two aspects – helping them to enjoy 28 the benefits of environmental protection (including through redress mechanisms such as complaints) 29 and, at the same time, helping them to make choices in their conduct that protect the environment. 30

2.3. Understanding the interaction between people and the environment 31

The conceptual framework used to understand the interaction between people and the environment 32 set out here is based on one used for many years to guide environmental policy. In essence, it presents 33 a cycle of cause and effect. The framework recognises that the state of the environment – the con-34 dition of air, water, soil, nature and landscape - is influenced by the pressures on it, such as air 35 pollution. These pressures are, themselves, influenced by economic and other driving forces in society 36 – impulses to consume, for instance. Such forces constitute the drivers of the pressures. This describes 37 the framework 'upstream' of the state of the environment. 38

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It is also important to look 'downstream' of the state of the environment. The state or quality of the 1 environment has impacts – impacts on health, wellbeing, on businesses and the wider economy. Be-2 cause of these impacts, policy makers adopt different types of intervention – including environmental 3 laws. These constitute a response to the impacts. However, responses may come from others as well 4 – from businesses and even individuals. Such responses may seek to monitor and influence drivers, 5 pressures, state or even mitigate impacts – so showing that this conceptual framework is circular, 6 rather than linear. 7

Putting this together produces the DPSIR conceptual framework – Drivers, Pressures, State, Impacts, 8

and Responses. The following figure presents a simple outline. 9

Figure 1: Outline of the DPSIR conceptual framework 10

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Source: EEA, extension of the PSR model developed by the OECD1. 12

2.4. The policy cycle 13

If we look more closely at the response part of the DPSIR cause-and-effect framework, and in par-14 ticular at environmental laws, we will encounter a further conceptual framework, the policy cycle. This 15

refers to the different stages of preparing, adopting, implementing, evaluating and reviewing envi-16 ronmental laws or other environmental decisions. The first involves identifying a problem and framing 17 an approach to addressing it. A decision-making stage concludes with the adoption of a law or deci-18 sion. This is followed by implementation, monitoring and reporting. An evaluation stage allows the 19 value and effectiveness of the law to be examined. This may result in a new set of problems or 20 shortcomings being identified – usually by reference to DPSIR - and the law being revised and im-21 proved. 22

1 Permanent link: af92bfee37d25458235c42035abfbf67

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Figure 2: Citizen engagement across the policy cycle 1

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2.5. Obligations and rights 3

As shown in section 2.3, environmental laws can be responses under DPSIR. Laws create obligations 4 for some and rights for others. Sometimes they create both obligations and rights for the same per-5 sons. 6

Obligations 7

Environmental laws place obligations on individuals, businesses and public authorities in order to 8 deliver environmental protection and environmental benefits. Those with obligations are 'duty-hold-9 ers'. 10

Obligations can be related to the different aspects of DPSIR. 11

Drivers: Some laws directly address the drivers that cause environmental problems. For ex-12

ample, the drive to discard waste is constrained by a prohibition on waste-dumping; 13 Pressures: Many environmental pressures are regulated. For example, industrial facilities 14

must obtain and comply with environmental permits. 15 State: Public authorities are required to monitor air quality, the state of surface and ground-16

water and the condition of wildlife. 17 Impacts: Public authorities are required to act in response to certain environmental impacts. 18

For example, they must intervene if drinking water is contaminated or air pollution goes above 19 certain limits. 20

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Responses: A response to non-compliance with environmental obligations can be to look 1

again at the obligations that were previously required of duty-holders (they may prove to 2 have been poorly designed or incomplete, for example). The policy cycle then resumes. 3

Environmental laws adopted by the EU are usually closely inter-twined with environmental laws 4 adopted by the Member States. However, most detailed obligations on individuals, businesses and 5 public authorities are created at the national level. 6

Obligations on individuals and businesses cover all environment domains. Typically, they focus on the 7 drivers and pressures of the DPSIR framework2. For example, every individual must respect rules on 8 waste and many businesses must operate under an environmental permit. 9

Obligations on public authorities are often more extensive than those on individuals and businesses. 10 For example, public authorities are responsible for many strategic administrative tasks and actions 11 such as protecting sensitive nature sites and monitoring the state of air, water and nature. They also 12 have obligations to oversee and enforce fulfilment of obligations by individuals and businesses. Their 13 obligations may include operating complaint mechanisms. 14

Obligations can be substantive or procedural: 15

Substantive obligations concern the substance of environmental protection and improve-16

ment and focus on achieving outcomes such as safe disposal of waste, avoidance of envi-17 ronmental pollution and damage and gathering and sharing of information. Substantive ob-18 ligations may arise under specific environmental laws or under general principles. 19

Procedural obligations focus on the steps whereby tasks are fulfilled. For example, public 20

authorities may need to carry out a public consultation before making a decision on a plan or 21 project. Procedural obligations often set out a time-limit within which a public authority must 22 act. Procedural obligations can be divided between those arising under specific environmental 23 laws – such as those governing environmental impact assessments or information requests 24 – and those arising under general provisions on how public authorities should conduct them-25 selves with the public. Further distinctions can arise between clear, legally binding general 26 obligations on public authorities and general frameworks governed by principles of good ad-27 ministration. Administrative practices may evolve over time in response to such principles. By 28 making recommendations, one part of the public administration – ombuds-institutions – may 29 play a role in encouraging such an evolution. 30

The following table provides examples of substantive and procedural obligations. 31

Table 1: Examples of obligations on public authorities 32

Substantive Procedural

Environmental

laws

General obliga-

tions

Environmental laws General principles of

good governance

Planning and man-

agement obliga-

tions:

Obligations to pre-pare waste manage-ment plans, air pol-lution plans and ni-trate action plans.

Obligation to make sure that European Union laws are ef-fectively imple-mented under the principle of sincere co-operation in the Treaty on European Union.

Public consultation:

Obligation to inform the public about pro-posed plans, pro-grammes and projects that are environmen-tally significant and obligation to carry out a public consultation.

Obligation on public offi-cials to respond to a let-ter from a member of the public within a spe-cific deadline.

2 For an overview on EU environmental legislation see: https://eur-lex.europa.eu/summary/chapter/environ-ment.html?root_default=SUM_1_CODED%3D20&obsolete=true

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Data-collection

obligations:

Obligations to moni-tor levels of certain air pollutants. Regulatory re-

gimes:

Obligations to en-sure that certain in-dustries must hold a permit. These obli-gations can include obligations to carry out periodic environ-mental inspections.

Access to environ-

mental information:

Obligation to answer requests for environ-mental information within a certain time-frame.

Rights 1

The protection of the environment gives rise to individual rights, for example with regard to human 2 health. It also gives rise to collective rights, for example with regard to the conservation of nature. 3

As with obligations, rights can be categorised as substantive or procedural. Procedural rights are the 4 counterpart of procedural obligations. 5

Some persons may be recognised as having different rights to others. For example, when it comes to 6 rights that may be invoked before a court of law, environmental associations may be recognised as 7 being entitled to act in the collective interest whereas individuals may be confined to asserting rights 8 that concern only themselves. 9

Some rights may be enshrined in specific environmental laws. Others come from general European 10 Union law or principles – for example, the Charter of Fundamental Rights. 11

The following table provides examples. 12

Table 2: Examples of rights 13

Substantive Procedural

Right to have one’s health protected via spe-

cific environmental laws, for example on air pollution and drinking water. Right to have one’s property protected via

specific environmental laws.

Right to be consulted on certain decisions of

public authorities. Right to receive environmental information

on requests.

2.6. Upholding obligations and rights: compliance assurance and other means 14

Meeting obligations is compliance. Compliance includes not only what must (or must not) be done, 15 but also when and possibly how and sometimes by whom. 16

Obligations and rights are not always respected by duty-holders and means of upholding obligations 17 and rights are therefore important. 18

One means is through the interventions of public authorities – which can include local and regional 19 authorities, inspectorates, the police and other law enforcement bodies. 20

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Compliance assurance encompasses all of the interventions of public authorities aimed at ensuring 1

compliance. It involves public authorities 2

monitoring the fulfilment of obligations by businesses, utilities and individuals, 3

promoting compliance with obligations and 4

enforcing compliance against those who infringe. 5

To carry out these interventions, public authorities need powers and resources. 6

As will be seen, via complaint mechanisms, the public plays an important role in this work of public 7 authorities. 8

But what if public authorities themselves are non-compliant? Principles of good administration and 9 good governance can help to avert this eventuality. Furthermore, a number of redress mechanisms 10 come into play, complaint mechanisms being one. 11

2.7. Beyond legal obligations: the role of ethics and other standards 12

It is important to remember that legal obligations and rights are not the only frameworks that influ-13 ence conduct. Ethical considerations also come into play. In addition, other standards play a role. For 14 example, it is generally expected that government operates efficiently and effectively and delivers 15 value to the taxpayer. 16

2.8. The role of citizen engagement 17

In simple terms, citizen engagement enables the public to play a positive role in DPSIR and the policy 18 cycle, and to uphold obligations and rights as well as ethics and other standards. 19

Engagement has a dual character, covering: 20

Interventions by public authorities aimed at informing the public about the environment and 21 what is being done to protect it, and at influencing public perceptions, attitudes and conduct 22 that contribute to harmful drivers and pressures, e.g. wasteful consumption; 23

Interventions by the public, facilitated by public authorities, aimed at monitoring or posi-24

tively influencing drivers, pressures, state, impacts and responses. 25

Citizen engagement can also involve direct exchanges between the public and business. 26

The rationale is that the public have a stake in the environment and are at the same time actors that 27 affect it for good or ill. Engagement serves not only citizens but society at large by providing oppor-28 tunities to address environmental issues at local, national and global scales and influence decision-29 making by public authorities, business and individuals. 30

Citizen engagement is underpinned by the existence of obligations and rights as described in Section 31 2.5. Citizens can help in the fulfilment of obligations, for example by filing complaints and asserting 32 their individual or collective rights. 33

At the same time, the role of citizen engagement goes beyond existing obligations and rights. For 34 example, it can help shape future environmental policy by identifying current gaps. Similarly, it can 35 draw attention to how government can work more effectively and deliver better value to the taxpayer. 36

Citizen engagement can be facilitated by intermediaries, in particular environmental organisations. 37 Because of their knowledge and understanding, these can provide an efficient means of channeling 38 exchanges between the public, public authorities and business. In addition, intermediaries can express 39 the concerns of future generations, which usually are not taken into account in standard administra-40 tive procedures. 41

13

2.9. Motivation 1

In order to better respond to citizen engagement and channel it constructively, public authorities need 2 to understand people’s motivations. 3

Reason, emotion and economic interest ('head, heart and pocket') are all relevant. 4

In terms of individual interests, people may wish to safeguard their own health, well-being and prop-5 erty interests. In terms of collective interests, they may feel a responsibility towards society at large 6 and the natural world. Because interests vary, engagement may occur at many different levels – from 7 the local to the strategic. 8

Some people may be motivated by a strong sense that they can make a difference, either individually 9 or through a collective effort. Some may see it as an extension of a recreational pastime – as where 10 amateur naturalists contribute to citizen science. 11

Others may be well disposed to environmental protection but dissuaded from active engagement by 12 factors such as lack of time and perceived inconvenience and lack of agency ('I won’t make any 13 difference'). Dissuasive factors can lead to a sense of apathy – and indeed free rider attitudes ('the 14 harm I do is only a drop in the ocean'). 15

Moving further along the spectrum, some may be motivated by interests opposed to environmental 16 protection – because they perceive it as conflicting with other individual or collective interests. 17

Positive peer pressure may bridge the gap between the highly motivated and the unmotivated or 18 weakly and negatively motivated. It may be strong in local communities sharing a set of common 19 concerns, for instance, and may account for spontaneous grass-root campaigns. Positive peer pres-20 sure may also operate at societal level – and counter-act phenomena such as the free-rider. 21

It is useful to remember that understanding people’s motivations is often a central goal of the data 22 analytics that is now facilitated by the availability of massive amounts of data, including from social 23 media. 24

2.10. Mechanisms for citizen engagement 25

There are three broad classes of mechanism to facilitate citizen engagement (see table below). In 26 practice, there are no sharp divisions between these. Effective engagement will usually involve ele-27 ments from several of them. 28

14

Table 3: Overview of mechanisms for citizen engagement 1

Information, communica-

tion and awareness-raising

Consultation and participa-

tion in decisions and activi-

ties

Redress mechanisms, in-

cluding complaint-handling

Citizen science: collection and sharing of information by the public. Transparency: provision of en-vironmental information to the public

Raising the awareness of the public and of public authorities

Consultation Participation of the public in decision-making and activities

Judicial mechanisms Non-judicial state mechanisms Non-judicial non-state mecha-nisms

Information, communication and awareness-raising 2

Information coming from the public: role of citizen science 3

To make decisions and intervene effectively, public authorities need sound evidence of environmental 4 cause-and-effect. They themselves have the central role in collecting the necessary information - 5 data and information on environmental pressures, the state of the environment and environmental 6 impacts, for instance. However, the public too has a role. 7 Citizen science involves individuals and environmental associations collecting and sharing environ-8 mental data. The observations of amateur naturalists have long supported scientific analysis and 9 decision-making in relation to the status of endangered plants and animals, for instance. Advances 10 in technology have made it easier to record and distribute such observations and assure their quality. 11 Useful information from citizen science now goes well beyond providing biodiversity data. For exam-12 ple, in several European cities, individual volunteers – collectively numbering in their thousands - have 13 become living, mobile sensors, recording patterns of exposure to air pollution as they walk, cycle and 14 use other means of transport. Such contributions can greatly increase the capacity of public authori-15 ties to harvest and exploit useful data, information and knowledge. 16

Text box 1: Good practice for crowdsourcing/citizen science as a source for information 17

## Text box with good practice examples for crowdsourcing/citizen science as a source for information.

15

Transparency: information to the public 1

Figure 3: Importance of transparency 2

Like crystal-clear coastal water, transparency lets us see what is happening to the environment on and beneath the surface 3 (Source: Coastwatch Europe) 4

Citizens can usefully engage only if they are well informed. This requires public authorities to be 5 transparent. Easy public access to environmental information held by those authorities is essential. 6 To the extent feasible, the information needs to be accurate, comparable and up-to-date. 7 Public authorities actively disseminate certain information – through website and public information 8 leaflets, for instance. Other information they make available on request. 9 Taking care of both forms of access presents a set of challenges, including data storage and retrieval 10 and respect for specific rules on protection of personal data. 11

Communication 12

Communication is closely linked to information. To facilitate citizen engagement, authorities need to 13 be able to communicate effectively with the public. 14

Communication needs to be clear in terms of objectives, (specific) audiences and context. Language, 15 substantive focus and communication channels need to be adapted depending on the target audience 16 (for example, schools, businesses, consumers or the general public). 17

Effective communication will be sensitive to and learn from audience reactions. Interactive forms of 18 communication are therefore important. 19

Awareness-raising 20

Awareness-raising involves communicating information about specific environmental issues and the 21 obligations, responsibilities, rights and opportunities of those targeted. 22

Awareness-raising may foster a common understanding of what is at stake and bring about useful 23 changes in perception, attitude and conduct. Awareness-raising campaigns may be led by government 24 bodies, environmental associations or others. It may be embedded in children’s education or involve 25 novel forms of communication – such as the use of celebrities as influencers and ambassadors to 26 convey important environmental messages. 27

Consultation and participation 28

Protecting and improving the environment involves governments and public authorities making deci-29 sions at different levels. Decision-making covers legislation, regulatory acts, plans and programmes 30 and authorisation of specific activities. 31

16

Participation of the public helps decision-makers to be aware of and take account of public concerns. 1 Typically, it is enabled through formal consultative processes enshrined in legislation. These entail 2 informing the public of proposed decisions, giving the public an opportunity to comment and taking 3 account of comments in the final decision. 4

It may be further facilitated by recognizing and supporting the role of environmental associations as 5 intermediaries. 6

Innovative consultative and participatory mechanisms include citizen assemblies and online citizen 7 juries. 8

One of the main objectives of public participation is to resolve conflicts through an open and fair 9 process of discussion and compromise, thereby reducing the sense of grievance that can lead to 10 individuals and associations seeking redress. 11

Participation is not only about decision-making. It also encompasses volunteering – for example, par-12 ticipating in environmental associations or other civil society organisations that work to protect the 13 environment. This can include physical interventions such as waste clean-up campaigns and cam-14 paigns to remove invasive alien species from sensitive surroundings. 15

Redress mechanisms, including complaint-handling 16

To be complete, citizen engagement must include mechanisms that provide the public with effective 17 forms of redress if they consider that their grievances and concerns have not been satisfactorily 18 addressed. Three broad categories can be identified. It is important to note that there may not always 19 be a sharp dividing line between the first and second categories of redress. For example, a complaint 20 may disclose criminal conduct which results in a judicial process before a criminal court. Furthermore, 21 there may be a relationship with other forms of citizen engagement. For example, a dispute before 22 an administrative court may concern whether a public authority properly consulted the public. 23

Table 4: Overview of redress mechanisms 24

Judicial mechanisms Non-judicial state mecha-

nisms

Non-judicial non-state mecha-

nisms

Court proceedings before civil, administrative and criminal courts

Complaint mechanisms operated by public authorities directly re-sponsible Services of ombuds-institutions Mediation Conciliation Arbitration and specialised tribu-nals

Complaint mechanisms operated by businesses and intermediaries Mediation Neighbourhood dialogue

Judicial mechanisms 25

Judicial mechanisms involve disputes being decided by courts. The guarantees that allow individuals 26 and environmental associations to go to court are referred to as access to justice in environmental 27 matters. Under administrative law, claimants can challenge the actions or inaction of public au-28

thorities and the role of the court will be to examine the substantive and procedural legality of the 29 public authority’s conduct. Under civil law, claimants can for example bring claims for damages. 30

Under criminal law, prosecutors can seek sanctions for conduct that has harmed members of the 31

public or the environment. Only judicial mechanisms can provide definitive interpretations of the law. 32

17

Non-judicial state mechanisms 1

Non-judicial state mechanisms operate outside the court system. They involve state-appointed, state-2 supported and/or state-approved bodies – often with public regulatory and enforcement responsibil-3 ities. 4

Complaint-handling mechanisms allow individuals and environmental associations to ask a public 5

authority to intervene with regard to activities, acts and omissions of private parties or decisions, acts 6 and omissions of public authorities. Often, the role of ombuds-institutions is to address claims of 7 mal-administration. 8

Complaint-handling mechanisms are often closely associated with administrative appeals mech-9

anisms that allow individuals and associations to appeal to one administrative instance against an 10

act or omission of another administrative instance. One example is an administrative mechanism for 11 appeals against refusals of requests for environmental information. 12

Mediation is a structured, interactive process in which a neutral third party assists disputing parties 13

to resolve a conflict. This will often involve the use of specialised communication and negotiation 14 techniques. All participants in mediation are encouraged to actively participate in the process. 15

Like mediation, conciliation is a voluntary, flexible, confidential, and interest-based process. The 16

parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts 17 as a neutral third party. The conciliator at some point during the conciliation will be asked by the 18 parties to provide them with a non-binding settlement proposal. A mediator, by contrast, will in most 19 cases and as a matter of principle, refrain from making such a proposal. 20

Arbitration is another form of alternative dispute resolution (ADR), where the dispute will be decided 21

by one or more persons (arbitrators), which renders the arbitration award. This award is legally binding 22 on both sides and enforceable in the courts. Arbitration is often used for the resolution of commercial 23 disputes, particularly in the context of international commercial transactions. 24

Other mechanisms include restorative justice in which those who have caused criminal damage 25

provide a form of restitution to the injured parties. 26

Non-judicial non-state mechanisms 27

Non-judicial non-state mechanisms mainly consist in complaint-mechanisms, conciliation and arbi-28 tration operated by business and intermediaries. Typically, the complaint mechanisms are formalised 29 mechanisms within an organisation that give customers, citizens or business members a way to report 30 cases of misconduct or discontent about services or activities. For the organisation, it may be a tool 31 to ensure accountability for its activities and to establish good communication channels with its 32 stakeholders. An example would be a mechanism for a water utility to deal with complaints about 33 drinking water quality. Another would be a mechanism that allows complaints to be submitted about 34 environmental abuses along a business supply chain. 35

Neighbourhood dialogue is another mechanism that might be used as an option within complaint 36

procedures or within the context of an industrial permit. 37

2.11. Role of complaints in citizen engagement 38

For the public, complaints are: 39

A means of having their grievances, including about perceived infringement of rights, ad-40 dressed; 41

A means of alerting authorities to problems that concern the public. 42

For public authorities, complaints are a source of information on: 43

18

Public attitudes and concerns; 1 Individual and collective interests; 2 DPSIR; 3 Different stage of the policy cycle; 4 Environmental obligations and rights that need to be upheld; 5 Ethical and other considerations governing public administration. 6

Effective complaint mechanisms contribute to: 7

Environmental compliance assurance; 8 Policy-making; 9 Good public administration; 10 Building trust and confidence of the public in the effectiveness of public administration. 11

Table 5: Checklist citizen engagement 12

Complaint-handling and policy-making

bodies

Case-handlers

Have you a general policy on citizen engage-ment?

Are you aware of your role within the wider

context of citizen engagement?

How do you see your role in encouraging or fa-cilitating positive motivations for citizen en-gagement?

To enable citizen engagement to be structured and well informed, do you facilitate the role of environmental associations or other civil society intermediaries?

Do you facilitate and make use of citizen sci-ence?

How do your environmental complaint mecha-nisms fit within wider citizen engagement?

19

3. Complaint-making 1

3.1. Introduction 2

Before examining complaint-handling, it is useful to characterise complaint-making. This can be done 3 in different ways. The approach taken in this chapter is to look at the possible content of complaints 4 (“what”), the possible different classes and categories of complainant (“who”), the time component of 5 complaints (“when”), the bodies receiving complaints (“to whom”) and the ways in which complaints 6 are communicated (“how”). Looking at these different dimensions can help us to identify the range of 7 challenges that authorities face when handling complaints. It can also point towards some of the 8 analytical and other tasks involved in complaint-handling. In looking at the dimensions, this chapter 9 draws on the conceptual frameworks described in Chapter 2. 10

3.2. What are complaints about? 11

The content of complaints can be characterised according to what is environmentally and legally at 12 stake and how much information is offered in support of the claims made. 13

Content can be characterised by reference to three broad categories: 14

Environmental aspects; 15 Legal obligations and rights and other norms; 16 Substantiation. 17

Because it is based on cause and effect, the DPSIR conceptual framework explained in Section 2.3 is 18 valuable when looking at the environmental aspects of complaints. For example, complaints will often 19 primarily focus on the state of the environment and the impacts it has on the complainant, but a full 20 understanding of these may also require insights into the pressures and drivers involved. Furthermore, 21 complainants will often make clear the sort of outcome they seek, for example better controls on an 22 environmental pressure, such as a source of noise or odour nuisance. This, of course, is the response 23 element of DPSIR. 24

In this way, DPSIR provides a link to the second type of categorisation, since responses usually bring 25 into play legal obligations and rights and other norms. 26

In terms of obligations and rights and other norms, complainants might claim that there are infringe-27 ments of obligations under environmental laws by individuals, businesses or public authorities. They 28 might claim that, in addition, these infringements affect the complainants’ own rights (or the rights 29 of others). Or complainants might express grievances about how public authorities have inter-acted 30 with them in the light of the requirements of good administration. 31

In some cases, existing legal obligations and rights may not completely cover the DPSIR concerns 32 raised. In such cases, it is possible that the complaint can feed into the policy cycle – for example, 33 helping to pave the way for new obligations that better respond to the complainants’ concerns. 34

For this reason, in order to address public concerns, complaint systems often have to be “over-inclu-35 sive”, meaning that they have to be capable of responding to unknown or unappreciated or under-36 appreciated drivers, pressures and impacts. 37

A third category, substantiation, has to do with how many factual elements the complaint provides 38 to support the claims made. 39

Table 6 below provides some illustrations by reference to each category. 40

20

Table 6: Approaches to categorising the content of complaints 1

Environmental aspects Obligations, rights and

other norms

Substantiation

State

- Current condition of water, air, land and nature (e. g. a cit-izen complaining about air pol-lution levels near his/her home); Impacts

- Impacts on human health and well-being (e.g. a citizen complaining about air pollution levels affecting his/her health and well-being); Pressures and drivers - Polluting or damaging activi-ties at specific locations, driven by economic, social or other factors (e.g. cars emit-ting air pollutants along com-muter corridors, reflecting, amongst other things, poor provision for public transport and cycling); Response

- Complaints may seek certain responses (e.g. the interven-tion of a public authority against a private business causing an odour nuisance); - Complaints may be about re-sponses or an absence of re-sponses, in particular those of public authorities (e. g. a neighbour might complain to an ombuds-institution that a public authority has failed to act against an odour nuisance caused by a private business).

Individuals and businesses

as subjects

- Complaints may indicate that an individual or business has infringed a general prohibition, general legal requirement, permit or consent under envi-ronmental law; - The conduct complained about may be sufficiently seri-ous to constitute an environ-mental crime; - The conduct complained about may also point to non-environmental infringements, such as fraud or tax evasion; - At the same time, the com-plaint may show how the com-plainant has been directly af-fected, in terms of property, health-related or other rights; Public authorities as sub-

jects

- Complaints about public au-thorities may be similar to those about individuals and businesses; - In addition, complaints about public authorities may raise is-sues unique to public authori-ties, such as norms of good administration in the relation-ship between such authorities and the public; Unknown infringers

It is possible that, while show-ing infringements, a complaint will not identify who is at fault.

- Substantiation might take the form of information col-lected by the complainant themselves or information col-lected by the authorities (e.g. monitoring information on the state of the environment) or others (e.g. media reports); - Substantiation might relate to some but not all the envi-ronmental aspects of the com-plaint; - Complaints might lack all substantiation and be limited to assertions and suspicions.

3.2.1 Categorisation by environmental aspect 2

The primary interest of this categorisation is to understand what the complaint says about the envi-3

ronment and the influences on it. The complainant will typically claim that there are environmental 4

problems or issues and expect the complaint-handling body to intervene to do something about the 5

state, impacts, pressures or responses mentioned in the complaint. Clarifying the environmental as-6

pects is likely to be an important step in identifying relevant environmental obligations and rights and 7 other norms, since, as has been seen, these are closely aligned to DPSIR. 8

21

State 1

The current condition of water, air, land, nature or an imminent threat to the current 2

condition from an activity might often be what triggers a complaint. Much environmental 3

legislation is thematic. It may therefore be important to know to what extent the complaint 4 relates to each environmental medium (i.e. water, air, soil). Nature covers habitats but also 5 protected animal and plant species, and individuals of those species (for example, a complaint 6 might raise the illegal killing of individual large carnivores such as wolves or bears). The cause 7 of damage to the environment (i.e. pressure) may be obvious or it may be hidden. The current 8 condition of the environment may also be a result of an inadequate restoration following an 9 incident3. 10

Impacts 11

As environmental impacts often have effects on health and well-being they are a cause for 12 complaints of the directly or indirectly affected citizens and are experienced as nuisances. 13

Noise, odours, radiation and particulate matter are the most obvious forms of these impacts 14 on air quality. Other impacts that might have effects on human health are intrusive lighting 15 and light pollution or exposure to hazardous substances (e. g. asbestos) in public buildings. 16 Some citizens may be more sensitive to nuisances than other. These nuisances may be caused 17 by illegal or legal activities. They may exceed legally defined thresholds or may not exceed 18 these thresholds but still be experienced as a nuisance. Complaints may often be simply about 19 the environmental impact or nuisance, and the complainant may well not know whether it is 20 associated with a regulated activity or not. 21

Some impacts – such as exposure of the public to contaminated drinking water - may point 22 to unsatisfactory provision of environmental services. Environmental services include, 23

among others, supply of drinking water, treatment of urban waste water, and treatment of 24 solid waste. Such services may be provided by public or private entities. Complainants may 25 complain about the poor quality of the services (e.g. drinking water with a bad taste) or about 26 negative or unwanted side-effects of the services (e.g. excessive use of cleansing agents 27 resulting in environmental damage). 28

Loss of natural or cultural heritage resulting from a single action or ongoing harmful 29

activities might be noticed by citizens and brought to the attention of complaint-handling 30 bodies. 31

Drivers and pressures 32

Single ongoing activity at a fixed location (e.g. a waste-water treatment plant not work-33

ing properly) might be the result of factors such as under-investment of a lack of mainte-34 nance or control. 35

Multiple ongoing activities at fixed locations (e.g. pollution of wells from farming activ-36

ities) might be unauthorised, illegal or unregulated as such and might be deliberate or be a 37 result of negligence. 38

Mobile activities might be a part of regulated trade and movement of goods within the EU 39

Single Market or worldwide (e.g. the import of timber or timber products under the EU Timber 40 Regulation from third countries) or might consist in illegal activities (e.g. persecution of wild 41 birds or illegal waste movements). 42

One-off incidents, accidents and events (e.g. pollution spill, fire, etc.) may occur at instal-43

lations and establishments or during the transport of dangerous goods such as chemicals or 44 waste or the management of waste. Such incidents may cause environmental damage. They 45 may be a result of intentional behaviour, negligence or mismanagement. Complaints related 46 to accidents may fall within the scope of the Seveso III Directive. 47

3 Related complaints may fall within the scope of the Environmental Liability Directive.

22

Drivers 1

Search for illicit profits might consist in non-compliant or illegal activity (e.g. illegal waste 2

disposal) and/or might be combined with fraud and financial irregularities. The latter may 3 affect environmental management and indirectly the environment. 4

Poor understanding of environmental obligations by duty-holders may be a factor in 5

breaches. 6 Perceptions by duty-holders that authorities do not monitor compliance may create a 7

sense of impunity. 8 Responses 9

(Non-)Activity of a public authority related to activities affecting the environment. 10

Assessment criteria 11

Complaints in regard to some subject-matters, e. g. nuisances or incidents, may have a temporal or 12 local component and be further classified. Such information will be relevant to assess the necessity 13 of an urgent intervention. 14

Time: Complaints may relate to a fixed point in time or a protracted period. 15

Location: Complaints may refer to a single location or multiple locations. Also, environmen-16

tal impacts may be transboundary (see Text Box 6 for experience and strategies of Member 17 States with transboundary complaints). 18

Scale of impact: The scale of impact of an incident referred to in the complaint or its like-19

lihood of occurrence in case it has not yet occurred are also important when it comes to the 20 assessment of the complaint. 21

In regard to the subject matter, complainants and complaint-handling bodies may face challenges 22 that determine the handling of a complaint. 23

Complexity: The subject matter may be complex in terms of the legal, technical and scien-24

tific issues that arise and will therefore require support from experts and/or further investi-25 gations. 26

Urgency: Some subject-matter may, depending on the issue at stake and the possible af-27

fects, call for more urgent intervention than other subject-matter. 28 Based on the DPSIR conceptual framework and taking into account the types of complaints as well 29 as these assessment criteria in Chapter 4 (see Section XXX) it is analysed how the complaint-han-30 dling mechanisms should be designed in order to adequately address the various categories of 31 complaints. 32

3.2.2. Categorisation by obligations and rights 33

Environmental complaints may also be categorised in terms of underlying obligations and rights that 34 might have been – or continue to be - infringed intentionally or unintentionally by individuals, busi-35 nesses or public authorities. The complainant will typically expect the complaint-handling body to take 36 an action to end the infringements or reverse a decision or action of the public authority complained 37 about. Complainants may not always identify correctly - or indeed at all - relevant obligations and 38 rights. Instead, this task will often fall to the case-handling body. Often the environmental aspects 39 presented by the complainant will provide a basis for identifying obligations and rights. Understanding 40 the relationship between environmental aspects and obligations and rights is therefore important. 41

Complainants may attribute infringements to individuals or businesses on the one hand or public 42 authorities on the other – or to both. Or complainants may point to infringements without identifying 43 who is at fault (for example, a complaint about a fish-kill in a river where the cause or parties re-44 sponsible are not immediately clear). 45

23

The obligations and rights that feature in a complaint may be significant in terms of identifying the 1 correct complaint-handling body and the complaint-handling tasks that arise. The following are some 2 relevant factors: 3

Competence: Different authorities may be responsible for different categories of infringe-4

ments of obligations or rights. It might not be evident right away which category of infringe-5 ment the complaint describes. Further investigations may be necessary. 6

Coordination: More than one authority may be responsible for different aspects of the com-7

plaint, raising co-ordination issues. 8 Efficiency: It might be necessary to designate the most competent authority in case more 9

than one authority is responsible because of different issues addressed in the complaint in 10 order to avoid duplication of work. 11

Prioritisation: Authorities have only limited resources to follow up complaints. As some au-12

thorities have powers of discretion to prioritise cases they will do so based on criteria such 13 as seriousness, urgency etc. 14

Obligations of individuals or businesses 15

It is important for complaint-handling bodies to know what precise obligations apply to the 16 individuals and businesses named in any complaint. These obligations may arise under dif-17 ferent kinds of legal instrument. Legislation or regulatory acts may contain prohibitions (such 18 as on dumping waste) or general binding rules (such as those applying to the use of fertilizers 19 on farms) that apply to those named in the complaint. Or those named in the complaint may 20 be subject to very specific, tailored obligations set out in a permit or development consent. 21 The obligations concerned will often correspond to the pressure aspect of DPSIR. 22

It may also be important for complaint-handling bodies to identify and understand any re-23 lated rights that exist in favour of the complainant or others. Some obligations, for example 24 on waste treatment, require individuals and businesses handling waste to avoid creating a 25 nuisance. Members of the public are entitled to be protected from nuisances, in particular 26 where these can cause harm to health or well-being. Substantive rights will often relate to 27 the impact aspect of DPSIR and procedural rights to the pressure aspect. For example, an 28 illegal development may deprive the public of the opportunity to exercise public participation 29 rights as part of a process requiring prior consent by the authorities to the development. 30

A further important rights-related point is that, depending on who complains, the complaint 31 itself may give rise to rights. Most complaint-handling systems will give some procedural 32 rights to complainants and special procedural rights may arise for crime victims and whistle-33 blowers (see below). 34

In looking at alleged infringements of obligations, complaint-handling bodies also need to be 35 aware of the different kinds of liability that can arise for the individual or business responsi-36 ble. In particular, those responsible may be liable to sanctions or other consequences under 37 administrative, criminal or civil law. Complaint-handling bodies will often need to take care 38 of applying any administrative or criminal law provisions. 39

The most serious infringements of environmental obligations may amount to environmental 40

crimes. Related complaints may be an important component of the wider system of crime-41

fighting as they may trigger criminal investigations. It is necessary to properly integrate such 42 complaints into efforts to combat environmental crime (for more information see the Guid-43 ance on strategies for combatting environmental crimes and other related breaches). 44

Environmental offences related to non-compliance with laws or permits below the level of 45

criminal liability may have negative impacts on the environment. It may sometimes be diffi-46 cult to draw the line between administrative offences and environmental crime. Information 47 about breaches need to be dealt with accordingly and will trigger different kinds of complaint-48 handling. Sanctions for administrative offences may be fines or other tools of administrative 49 law enforcement. 50

24

Evidence of past environmental illegality may be linked to serious crimes or offences. 1

The evidence found may be an environmental damage, including environmental damage cov-2 ered by the Environmental Liability Directive. 3

Specific activities may give rise to complaints, but so too can general non-compliance. 4

Specific activities may have caused accidents or incidents and have resulted in environmental 5 damage. Similarly, general non-compliance may cause environmental damage, either through 6 one big incident or through continued exposure of the environment e.g. to harmful substances. 7

The threat of imminent environmental damage may give rise to environmental liability. 8

Related complaints may be covered by the Environmental Liability Directive. 9

Complaints may also point to possible non-environmental infringements e. g. financial 10

irregularity or tax evasion. 11

Obligations of public authorities 12

Additional considerations will come into play when public authorities are themselves the subject of 13 complaints. This is because, under environmental law, public authorities typically have to fulfil either 14 different or a wider range of obligations compared to individuals and businesses. For example, public 15 authorities have to fulfil obligations to monitor the state of the environment and they have to operate 16 permit and consent systems. In addition, they will often need to comply with specific administrative 17 requirements when inter-acting with the public, e.g. an obligation to respond to members of the public 18 who communicate with them within a specified time. 19

The following are some of the issues that may feature in complaints made against named public 20 authorities. 21

Specific or generalised non-compliance with environmental obligations or rights 22

that are in the area of responsibility of the public authority (e. g. supply of drinking water that 23 does not comply with binding drinking water standards). A complainant may complain about 24 procedural and/or substantive aspects of the conduct. 25

Access to information requests to authorities may have not been answered or may not 26

have been addressed sufficiently. A complainant may therefore complain about the handling 27 of access to information requests or appeal against the decision of the authority. 28

Resource allocation may not have been adequate to ensure compliance with tasks as-29

signed. Complainants may raise this as a separate issue or together with negative conse-30 quences that have been caused by this. 31

Good governance may be an issue when the general relationship between citizens and au-32

thorities is affected. Citizens may then complain in general about e.g. a lack of responsive-33 ness, transparency or accountability (see under Section XX) for a list of possible good gov-34 ernance principles). 35

Procedural aspects of good administration (such as access to files and the right to be heard 36

may have been disregarded by authorities) or substantive aspects of good administration 37

(such as impartiality or equity) may be the cause of complaints. 38 Rights of complainants may themselves feature in secondary complaints. In other words, 39

complaints may be made to another public authority (such as an ombuds-institution) about 40 the conduct of a complaint-handling authority, with the complainant arguing that any rights 41 they have as complainants have been infringed by the first authority. 42

Financial irregularities or fraud within authorities may become public and provoke com-43

plaints. They may relate to a single incident or may be systemic and indirectly affect the 44 environment. 45

Corruption within authorities responsible for environmental compliance assurance may give 46

rise to complaints. These may be important in the context of the wider system of crime-47 fighting as they may trigger criminal investigations. They may be linked to the efforts to 48

25

combat environmental crime (for more information see the Guidance on strategies for com-1 batting environmental crimes and other related breaches). 2

Unknown 3

A complaint may identify infringements or possible infringements without it being clear who is or 4 was responsible. 5

3.2.3. Categorisation by substantiation 6

Environmental complaints can be characterised in terms of the factual elements provided to sup-7

port the claims made. These factual elements are described as “substantiation”. 8

The extent of substantiation provided may vary. At one end of the spectrum, environmental com-9

plaints may provide sufficient factual information to support each concern raised by the complainant. 10 At the other end, complaints may be entirely unsubstantiated and limited to assertions and suspicions. 11 The level of substantiation may also vary. At one end of the spectrum, the substantiation may be 12

sufficiently strong to constitute in itself an evidence base for enforcement action by the competent 13 authorities. At the other end, the authorities may need to themselves compile a lot of additional 14 factual elements for enforcement purposes. 15 The provenance of the factual elements submitted may include information obtained by the com-16

plainant themselves or information obtained by others, including information collected by public au-17 thorities (such as state-of-the-environment monitoring data). 18 In terms of reliability of factual elements, organised means of collecting facts such as citizen sci-19

ence may help both complainants and authorities. 20 Some complaints may be about phenomena that do not exist (e.g. chemtrails) or for which there is 21

(so far) no scientific proof of damaging or harmful effects (e.g. infrasound), see text box 4 for expe-22 rience and strategies in Member States on how to deal with this kind of complaint. 23

The dimension of substantiation can present several challenges to complaint-handling bodies: 24

Classification: It may be challenging to distinguish between factual elements and assertion. 25

This is related to the question of how much verification is necessary to follow up on com-26 plaints. 27

Motivation: Complaint-handling bodies may need to understand the motivation behind the 28

complaint. It may be difficult to identify this in case complainants do not share sufficient 29 information to allow an assessment. Sometimes, complaint-handling bodies may have a 30 "peace-keeping function" when dealing with complaints, especially in cases where complaints 31 are based on wrong assumptions. 32

Empathy: Especially when dealing with complaints about non-existing phenomena or phe-33

nomena for which there is no scientific proof of damaging or harmful effects (yet), it may be 34 important to take complainants seriously, see Text box 4 for experience and strategies in 35 Member States on how to deal with this kind of complaint. 36

3.3. Who complains? 37

Complaints about the environment are not only filed by individuals, but also by environmental organ-38 isations, authorities and businesses. Furthermore, they may be filed anonymously, leaving it unclear 39 who is behind the complaint. 40

26

Table 7: Different classes and categories of complainant 1

Individuals Environmental or-

ganisations

Authorities Businesses

- Employees, whistle-blowers - Crime victims - Neighbours - Other ordinary mem-bers of the public - Professionals such as lawyers - Political representa-tives - Local councillors - Journalists - Citizens from neigh-bouring countries

- Local organisations - Environmental or so-cial organisations - Citizen campaigns - Due diligence organ-isations

- Local and regional authorities

- Economic operators - Business associa-tions - Producer responsibil-ity bodies - Media organisations

Each class and category of complainant will have characteristics that need to be taken into account 2 by complaint-handling bodies. Some complainants may present specific challenges, e.g. because of 3 their status or the way in which they file their complaints. The dividing line between different classes 4 and categories may be blurred. For example, it may not always be clear whether a political repre-5 sentative is acting in a personal capacity or in exercise of an official function. 6

Classes and categories of complainant 7

Individuals 8

Apart from their all being natural persons, the different categories of individual that file a complaint 9 may share few if any common characteristics. 10

The following are some significant categories: 11

Employees of a business or a public authority may disclose confidential information informally to 12

complaint-handling bodies or file a complaint with them. Their status as whistle-blowers points to the 13 need for treatment that takes their exposed situation into account (see below Section 3.3.2). 14 Crime victims may file complaints about activities that disclose environmental crimes, e.g. illegal 15

waste disposal that causes serious environmental damage. The Victims’ Rights Directive (Directive 16 2012/29/EU) with its minimum standards on the rights, support and protection of victims of crime 17 applies to the rights of victims and their position in criminal proceedings. 18 Neighbours may file complaints about nearby businesses or environmental infrastructure, or in the 19

context of a dispute between neighbours. They may have tried to contact the operator or the neigh-20 bour without success before turning to the complaint-handling body. 21 Members of the public may file complaints about issues to which they are less directly linked than 22

employees, crime victims and neighbours. 23 Professional and expert complainants may file complaints based on or providing expert 24

knowledge. Legal professionals will know the legal context and may file the complaint in their own 25 name or in the name of their clients. Other professionals, e. g. biologists, may have expert knowledge 26 as regards (potential) adverse effects of non-compliance on the environment. 27 Journalists may file complaints after finding out about cases of non-compliance or maladministra-28

tion from individuals or during a journalistic investigation. The complaint or submission to the com-29 plaint-handling body may form part of a journalistic exercise, with attendant publicity. Instead of 30

27

turning directly to complaint-handling bodies they may also use media outlets to bring those cases 1 to the attention of complaint-handling bodies and the public. 2 Local councillors, similarly to local authorities, may receive and file complaints. They can pass on 3

complaints for issues that do not fall within their competence and/or may file complaints in their own 4 name. 5

Environmental organisations 6

Depending on their mandate and capacity, environmental organisations may monitor compliance with 7 environmental provisions or may become active in reaction to a specific incident. Their level of organ-8 isation, access to expertise and legal knowledge and available financial means vary widely. 9

The following are some indicative categories: 10

Local “grass-roots” organisations may be single-issue groups, as where people come together in 11

a local community to address a common concern such as an odour or noise nuisance or be established 12 bodies to represent the interests of a local community on an ongoing basis. 13 Environmental organisations and social organisations may be local with limited manpower and 14

access to expertise or national with a higher level of division of labour and more experience and 15 expertise. They may focus on one topic and monitor compliance or work on a variety of different 16 issues. 17 Citizen campaigns usually emerge out of one incident that occurred or one topic that is pursued. 18

Professional environmental monitoring organisations have been established e.g. for the forest 19

sector to maintain, evaluate and provide due diligence systems to economic operators. For example, 20 they may bring cases of non-compliance with the EU Timber Regulation to the attention of the com-21 petent authorities responsible for the inspection of operators. 22

Authorities 23

Authorities may not only act as complaint-handling bodies, but may also file complaints within their 24 mandate to the responsible complaint-handling body. The filing of the complaint may be caused by 25 citizens complaining to them about issues that do not fall within their competence to address. 26

Local or regional authorities may file complaints to pass on complaints received from individuals 27

or to alert complaint-handling bodies about cases of non-compliance or maladministration in their 28 own name. These complaints will usually address issues that do not fall within their competence to 29 solve. 30

Businesses 31

The private sector may not only be the subject of complaints, but may also file complaints about non-32 compliance with environmental provisions or cases of maladministration. Reasons may be to ensure 33 a level playing field or the reputation of a sector among consumers. 34

The following are some examples: 35

Economic operators may become aware of cases of non-compliance with environmental provisions 36

by other economic operators, especially competitors. They also may be affected by maladministration 37 by competent authorities. In addition, they may counter complaints made against them by submitting 38 complaints of their own. 39 Business associations that represent certain businesses or producer responsibility bodies pur-40

suing compliance with legal requirements in a certain sector may file complaints regarding businesses 41 or producers inside or outside of their network. The reasons will typically relate to ensuring a level 42 playing field, and, in the case of producer responsibility bodies, to ensuring that the business model 43 on which they depend is upheld. In particular, producer responsibility bodies typically fulfil certain 44 environmental obligations on behalf of their business members in return for a fee. However, it may 45

28

be difficult to persuade businesses to participate if non-members enjoy de facto immunity when they 1 breach obligations. 2 Media organisations may lead or associate themselves with specific campaigns. 3

Specific challenges 4

Protection of whistle-blowers 5

Employees of business companies or authorities may disclose confidential information about cases 6 of non-compliance with environmental provisions or maladministration that they have gained access 7 to due to their position as an employee. This may be related to the company or authority where these 8 persons are employed or to third party organisations. Complaint-handling bodies must take the con-9 sequences for such whistle-blowers into account when dealing with the case. The employees and 10 their personal data need to be protected (for further information see the work of DG JUST). 11

Text box 2: Member State experiences with whistle-blowers 12

United Kingdom: Information from whistle-blowers are not treated in the same way as other complaints.

There are special procedures and additional protections. Confidentiality is guaranteed.

Sweden: Due to the wide access of the public to documents related to administrative proceedings, it is

difficult to keep the identity of whistle-blowers a secret.

Anonymous complaints 13

Some complainants may not reveal their identity and therefore remain anonymous. The extent to 14 which anonymous complaints are followed up – or merit follow-up – will depend on, amongst other 15 things, the issues involved and the information provided. Fear may dissuade some complainants from 16 identifying themselves - in the case of serious criminality, for instance. At the same time, such com-17 plainants may provide information that is important, in particular in relation to crime-fighting. On the 18 other hand, it may be impossible or excessively difficult to act on foot of an anonymous complaint 19 about maladministration, in particular if the maladministration relates to how a public authority in-20 teracts with the public. By guaranteeing that the identity of complainants will be kept confidential, 21 complaint-handling systems may address at least to some extent the concerns that might otherwise 22 induce some people to complain anonymously. 23

Text box 3: Member State experiences of dealing with anonymous complaints 24

Belgium: In Flanders several authorities such as OVAM, state on their websites that anonymous com-

plaints will not be treated.

Poland: No legal obligation to act on anonymous complaints.

Portugal: Confidentiality about the complainant identity is guaranteed by the Portuguese Ombudsman,

whenever requested and if it is justified by security reasons. However, anonymous complaints may be rejected by the Ombudsman if the identification of the complainant is essential for the assessment. If necessary, the Ombudsman undertakes investigations on his/her own initiative.

Spain: Ombudsmen do not accept anonymous complaints, but confidentiality can be guaranteed to com-

plainants.

Sweden: Legal obligation to act on anonymous complaints.

United Kingdom: Anonymous complaints are accepted, but treated as information only. Hence, officials

can judge whether or not to act on them.

29

Problematical and challenging complainants 1

The following categories of complainant might be mentioned: 2

Complainants who are mentally ill or have personality disorders or mental health issues, with 3 effects on the content of the complaint and/or the complainant’s attitude towards the com-4 plaint-handling body; 5

Complainants who make unfounded, malicious or abusive complaints; 6 Complainants who persist with requests to the authorities to act despite their complaints hav-7

ing been rejected as unfounded; 8 Complainants who, on a recurring basis, submit unsubstantiated complaints. 9

Dealing with complainants falling into these categories requires sensitivity and balance on the part 10 of complaint-handling bodies. Authorities as well as single complaint-handlers might need clear in-11 structions for dealing with them, including in order to protect themselves against unsubstantiated 12 allegations (see also text box 4 with strategies of MS authorities and good practice examples). 13

Text box 4: Dealing with challenging complainants 14

Germany: Complainants who lodge unsubstantiated complaints are referred to websites that proactively

provide information on how to lodge complaints.

Dealing with media 15

It may be unwise for individual case-handlers to directly communicate with the media as they will 16 often be inexperienced in doing so. In some cases, technical expertise might be necessary for media 17 communication. This might require directing media enquiries to specialised public relation depart-18 ments or head of units/higher level of the administration. 19

Text box 5: Examples of Member State approaches to dealing with media 20

Ireland: Categorisation of complaints leads to reactive or proactive communication with the media. Spe-

cialised public relation departments are installed to deal with the media.

Germany: Authorities may proactively provide questions and answers for relevant cases on their website.

The media can then be referred to the website.

Suggestion to have internal manuals that assign responsibilities for external communication and com-plaint-handling to different units.

Experience that the level of information increases throughout the process of complaint-handling. This also needs to be reflected in the communication with the media.

Dealing with transboundary complaints 21

Complaint-handling bodies may need to address several kinds of transboundary complaint. One kind 22 involves complaints being submitted by complainants based in another Member State about an action 23 or activity in the Member State where the complaint-handling body is located – for example, a holi-24 day-maker may submit a complaint about illegal waste disposal that they have observed. Within the 25 European Union, principles of non-discrimination point to the appropriateness of treating such com-26 plaints no less seriously than complaints arising nationally. 27

Another kind involves complaints about actions or activities that concern one or more Member States 28 at the same time – for example, illegal transfrontier waste movements between Member States. A 29 further kind involves complaints within an extra-territorial dimension – for example, a complaint may 30

30

concern imports of timber from third countries where illegal logging is taking place. These kinds of 1 complaint may require cross-border or transfrontier co-operation between authorities. 2

Text box 6: Member States’ experience of dealing with transboundary complaints 3

Germany: Possible impacts of a Belgian nuclear power plant were resolved under the Espoo Convention.

In case authorities learn about alleged illegality, they have to react no matter where the complaint is coming from.

Sweden: Complaint-mechanisms are not limited to Swedish nationals. No jurisdiction in case damage

takes place outside Sweden.

3.4. When are complaints made? 4

Complaints may be made at any time. 5

Many complaint-handling bodies organise themselves according to regular week-day office hours 6 and, generally, may not be in a position to handle complaints out-of-hours (beyond automated re-7 sponses to complaints filed electronically). 8

However, some situations (for example accidents, harmful occurrences, imminent risks or criminal 9 conduct) may call for urgent intervention by complaint-handling or other authorities. A fire might 10 break out at the weekend at a waste facility, for instance. Providing some 24/7 cover to respond to 11 complaints may therefore be unavoidable. Sometimes, this function will fall to the police. 12

Text box 7: Member State experience of dealing with out-of-hours complaints 13

Scotland: The Scottish Environmental Protection Agency (SEPA), which has broad environmental inspection

and enforcement functions, provides for out-of-hours follow-up in urgent situations. This is demanding in terms of resources, in particular some complaint-handlers must remain on stand-by over weekends.

3.5. To whom are complaints directed? 14

Complaints may go to a single authority or multiple authorities at the same time or successively. 15 Some complaints may go to authorities in more than one Member State and some may go to the 16 European Commission and the European Parliament as well. The roles and competences of these 17 different complaint-handling bodies differ. Table 8 below provides a summary. 18

31

Table 8: Bodies to whom complaints may be directed 1

Service providers First responders and

administrative

authorities

Investigating

authorities (for envi-

ronmental crimes)

General oversight

- Private utilities, e.g. drinking water suppli-ers - Public utilities, e.g. operator of a municipal landfill

- Police, fire services and other first re-sponders in case of ac-cidents and incidents - Local authorities - Higher administrative authorities, often with a supervisory role in respect of a local au-thority - Specialist agencies, such as environmental agencies or specialist enforcement officers (for example, wildlife rangers or wardens) - Ministries

- Police - Customs - Prosecutors

- Ombuds-Institution - Supreme audit bodies - Petition committees - Parliamentary com-mittees - Political parties

Complaints are not necessarily sent directly to the authority competent to ensure compliance or oth-2 erwise best address the grievance. In some Member States, for instance, complaints are often first 3 filed with the police as police forces have high visibility and are at the disposal of the public around 4 the clock. 5

This presents the challenge of ensuring that complaints are passed on to the body best placed to deal 6 with them (for more details see Chapter 4 on complaint-handling). 7

Complaints about non-compliance of public authorities may be directed to the authority itself, a su-8 pervisory authority, an ombuds-institution or a similar body. They may also be filed with petition 9 committees in national parliaments (see Table 8 above). These complaints may be an alternative or 10 a necessary preliminary step for a judicial review (for access to justice see the Commission Notice on 11 Access to Justice in Environmental Matters). 12

3.6. How are complaints made? 13

Member States usually refrain from prescribing the means of complaint-making and give complain-14 ants the opportunity to choose the means most convenient to them. Depending on the specific cir-15 cumstances of the case as well as the age or capacities of the complainant, different means to file 16 a complaint may be suitable. 17

The different means of complaint-making may be clustered according to the types listed in Table 9. 18

32

Table 9: Ways of communicating complaints 1

Personal contact Letter or technical

means

Social media Indirect complaints

- Complainant drops by the office - Complaint-handling bodies visit municipali-ties in order to re-ceive/hear complaints - Telephone hotline

- Letter - E-mail - Apps - Internet contact form

- Facebook - Twitter

- Media outlets - Discussions, debates and questions in city or district councils - Discussions, debates and questions by parlia-mentary representatives

Complaint-handling bodies need to be equipped with the technical, personnel and financial resources 2 to be able to receive the different types of complaints as well as to ensure record keeping and data 3 protection in accordance with the provisions of the General Data Protection Regulation (GDPR). 4

Types of complaint-making 5

Personal contact 6

Some complainants may not have access to technical means, struggle with writing or simply find it 7 more convenient to file their complaint orally and therefore seek personal contact with the complaint-8 handling body, either face to face or via telephone. Some complaint-handling bodies permit com-9 plainants to drop by the office. Some visit municipalities to hear complaints as a form of outreach. 10

Text box 8: Outreach by the Portuguese Ombudsman 11

Portugal: The Portuguese Ombudsman makes regular visits to the Autonomous Regions of the Azores and

Madeira to receive complaints orally and to have meetings with regional public entities addressed in these complaints. He also provides information regarding the Ombudsman’s activities and scope of intervention. In addition citizens can make complaints with the two local offices in the Autonomous Regions of the Azores and Madeira. These regions, situated in the Atlantic Ocean, require special attention in order to ensure that access to the Ombudsman is guaranteed.

In dealing with complaints made orally, complaint-handling bodies should remember that the person 12 making the complaint may sometimes find it quite distressing to do so (as where the complainant is 13 a crime victim). It is important to ensure all relevant information to handle the complaint is captured 14 in a consistent manner by asking the right questions. 15

Letters or technical means 16

Written complaints may be made either by letter and email or via an online contact form. Contact 17 forms may be especially helpful for complaint-handling bodies as they can be set up to collect the 18 necessary information. However, they may not be accessible by all possible complainants, especially 19 those with limited or no internet access. 20

Complaint-handling bodies should keep in mind that complainants may struggle when formulating 21 complaints and may not always express themselves very clearly. 22

Social media 23

Complaints may be made via social media, either directly addressed to the complaint-handling body 24 or without an addressee. It may be necessary to first establish whether the complainant wants to 25 have a formal response and be part of the complaint-handling or not. 26

33

When learning about complaints made via social media, the complaint-handling body in its commu-1 nication needs to consider that the complaint may have been read by a significant number of people 2 and will need to be dealt with accordingly. 3

Indirect complaints 4

Complaints may also be brought to the attention of complaint-handling bodies indirectly, e.g. via 5 media outlets, via city or district councils, or via parliamentary representatives. While the identity of 6 the actual complainant may not be transparent, the complaint-handling body will still need to respond. 7 Complaints being picked up by media or councils will usually be of relevance either because of the 8 seriousness of the case or its relevance for a larger number of people. 9

Recommended information from complainants 10

To ensure complaint-handling bodies get the required information from complainants to handle the 11 complaint, they should name what kind and what quality of information they recommend in order to 12 allow an easy follow up on the complaint. This information includes: 13

Contact details of the complainant, including name, address, telephone number, email ad-14 dress (if available); 15

Information on whether the person is acting in its own name or on behalf of someone else; 16 Description of the issue of the complaint including location, dates and times; 17 Supporting evidence, 18 List of the specific concerns starting with the most important concern; 19 Information about the purpose of the complaint, i.e. what the complainant is hoping to 20

achieve; 21 Preferred method of communication, e.g. telephone, email or letter. 22

Templates for complaint-making might be useful, however, should be helpful and respond to the 23 needs of the complainants. 24

Text box 9: Information about how to complain 25

Portugal: Screenshots of Flyers/Websites presenting ways of complaining with the Portuguese Ombuds-

man to be added.

The role of citizen science in complaint-making 26

Citizen science may be utilised by complaint-handling bodies to gain access to facts collected by 27 members of the public, either to identify cases of non-compliance or to substantiate complaints about 28 non-compliance (for more information see the Citizen Science Annex II in the background document). 29

Text box 10: Example of citizen science in action 30

Belgium: In Flanders, in May 2018 more than 20.000 citizens, associations and businesses have measured

air quality at their home or premises. Nitrogen dioxide was measured as an important indicator for air pollution by traffic. Air quality was measured during one month under the supervision of scientists. The results were published in September 2018 and will be used to improve the map of air quality, to develop a computer model and to inform policy makers.

The role of citizen science centres on providing useful and reliable facts. These may, amongst other 31 things, relate to non-compliance of certain businesses or utilities with environmental provisions or 32 proof an environmental damage without linking it to the polluter. However, there are limitations for 33

34

authorities to use such facts, especially as a basis for restrictive measures. Additional investigations 1 by authorities may be necessary. 2

Table 10: Checklist on complaint-making 3

Complaint-handling and policy-making

bodies

Case-handlers

Does your body or your Member State periodi-cally characterise environmental complaint-making in order to form an overview of what en-vironmental complaints are about, who makes them and in what manner?

Are you clear about all the relevant characteris-tics of the complaints you have to handle?

In terms of complaint content, is your body or is your Member State organised to receive com-plaints on all aspects of the environment as

reflected in DPSIR, i.e. environmental drivers, pressures, state, impacts and responses?

In terms of complaint content, do you under-stand all of the relevant environmental as-

pects raised in complaints and how they may

be inter-connected across the DPSIR model?

In terms of content, is your body aware of all of the obligations, rights and norms that are

relevant to handling the environmental com-plaints received?

In terms of content, are you aware of the differ-ent kinds of obligation, right and norms that

are relevant for handling environmental com-plaints?

In terms of content, does your body ensure that case-handlers can identify relevant obligations, rights and norms from the environmental as-pects that the complainant presents?

In terms of content, are you able to identify rel-evant obligations, rights and norms from the en-vironmental aspects presented by complain-ants?

In terms of content, has your body a defined ap-proach to addressing the varying factual ele-

ments found in complaints, i.e. substantia-

tion?

In terms of content, are you able to separate out the different factual elements submitted with

a complaint, in particular to validate the envi-ronmental aspects and support possible in-fringements of obligations and rights?

As regards complainants, has your body pre-

pared itself for addressing the different classes and categories of complainant that may submit complaints? In particular, has it procedures, pro-tocols or other arrangements that take account of challenging categories of complainant, such as crime victims, whistle-blowers, those

with mental health issues and anonymous

complainants?

As regards complainants, are you aware of

challenging classes and categories of complain-ant, and do you have an approach to dealing with these?

As regards complainants from or acting via the

media, does your body have a defined policy on

communicating with the media?

As regards complainants who generate media

enquiries, are you clear about whether or how you should communicate with the media?

As regards complainants, has your body or

Member State a defined approach to dealing with complainants from outside the Member

State or about other Member States or

third countries?

As regards complainants, are you clear about

how you should deal with non-national com-

plainants?

As regards when complaints are made, has your

body or Member State made arrangements for handling urgent situations and out-of-hours

complaints?

As regards when complaints are made, do you

know how to handle urgent situations?

35

As regards the bodies to whom environmental

complaints are addressed, do you – or does someone else - have the full picture for your Member State of the full range of bodies con-cerned?

As regards the bodies to whom environmental

complaints are addressed, are you aware of all of the other bodies in your Member State who handle environmental complaints?

As regards how complaints are communicated,

to what extent does your body or Member State facilitate different types of communica-

tion such as personal contact and use of elec-

tronic means?

As regards how complaints are communicated,

are you aware of all of the different types of complaint communication to which you should respond as a complaint-handler?

As regards how complaints are communicated,

does your body or Member State provide assis-tance such as electronic tools, including citi-

zen science ones?

1

36

4. Complaint-handling 1

4.1. Introduction 2

Logically, complaint-handling systems should relate to the characteristics of the complaints that are 3 or could be made and the challenges that these present – as reflected in Chapter 3. 4

This chapter explores that relationship by reference to three main themes: 'ends', 'ways' and 'means'. 5 'Ends' covers purposes. It has to do with what governments, institutions and bodies aim to achieve 6

by handling environmental complaints submitted by citizens. 'Ways' means the step-by-step pro-7

cesses that complaint-handling bodies use to deal with individual complaints. 'Means' covers all the 8

administrative structures, frameworks and resources used to enable complaint-handling systems to 9 carry out these processes in order to fulfil the purposes of complaint-handling. This chapter treats 10 'means' under three main sub-headings: complaint-handling bodies; the principles that may guide 11

them; and the capacities and tools on which such bodies rely or may rely. 12

In an ideal world, ends, ways and means will all be aligned with each other. For many reasons, full 13 alignment may be very challenging. Purposes may not always be clear. Processes may sometimes be 14 sub-optimal. The roles of complaint-handling bodies may be poorly defined or they may lack certain 15 guiding principles, capacities and tools. This chapter suggests ways in which such challenges can be 16 addressed. 17

4.2. Ends 18

Taking into account the conceptual frameworks set out in Chapter 2, the purposes of environmental 19 complaint-handling can be seen to fall into two main clusters, one centred on benefits complaint-20 handling can bring to the state, i.e. the government, institutions and authorities, and the other centred 21 on the benefits it can bring to complainants. 22

In essence, the first cluster responds to the question: How can environmental complaint-handling help 23 the state? And the second cluster to the question: How can environmental complaint-handling help 24 the citizen? 25

The state-centred purposes of complaint-handling have to do with three wider objectives: 26

first, ensuring compliance with existing environmental obligations (in other words environ-27 mental compliance assurance), 28

second, protecting the environment through environmental policy and, 29

third, promoting more efficient and effective government. 30

As regards compliance assurance, a core function of government is to uphold the law as it exists and 31 complaints are one means of finding out where, when and by whom the law might have been broken. 32 Complaints serve compliance assurance by providing authorities with a potentially valuable source of 33 information on compliance. They are, of course, just one source of information, others including offi-34 cial environmental inspections and checks. Fulfilling this information purpose of environmental com-35 plaints will typically depend on how well complaint-handling is integrated into wider compliance as-36 surance tasks. 37

As regards environmental policy, this cannot be defined solely in terms of existing environmental law. 38 Both DPSIR (see Section XX) and the policy cycle (see Section XX) described in Chapter 2 represent 39 models that are dynamic and responsive. New or reinforced environmental concerns and insights are 40

37

constantly emerging. Complaints from the public can be one means by which the state takes note of 1 popular and expert environmental concerns. They can be particularly valuable within a complaint-2 handling context that has a political dimension, such as a parliamentary petitions committee. 3

As regards government efficiency and effectiveness, organs of state such as supreme audit bodies 4 have an important role in identifying systemic weaknesses or areas for improvement within public 5 administration. Complaints may be a means of learning where such weaknesses exist. 6

The complainant- or citizen-centred purposes of complaint-handling have to do with uphold-7

ing the rights that complainants have, both under environmental law and codes of good administra-8 tion and other normative frameworks regulating or guiding how the state should respond to citizens. 9

The distinction between rights derived from environmental law and rights derived from codes of good 10 administration is important. The former are closely aligned to environmental obligations, as obliga-11 tions often give rise to and are associated with rights. For example, an obligation on an industrial 12 facility to prevent pollution may correspond to a right of the facility’s neighbours to be protected from 13 pollution, especially where it can harm human health or well-being. The latter are not specific to the 14 environment and will typically relate to the conduct that members of the public are entitled to expect 15 from public officials and public authorities – for example, responses within a specific time-period. 16 Often, this conduct will be the main – or sole – focus of an ombuds-institution. Of course, the conduct 17 will need to be seen in context – which is why ombuds-institutions need to be aware of environmental 18 law and what citizens can reasonably expect their public authorities to do to uphold it. 19

A wider normative framework may come into play, as where an ombuds-institution has a broad man-20 date to promote good relations between citizens and the administration, and, following a complaint-21 investigation, considers it appropriate to make recommendations on future conduct that go beyond 22 the parameters of existing practice. For example, an ombuds-institution might recommend that a 23 public body improves its level of accessibility to citizens. A wider framework may also include efforts 24 to maintain 'social peace', for example to minimize disputes between neighbours. 25

In practice, these different purposes exist alongside and influence each other. Thus, it is likely that 26 the purpose of upholding citizen rights and responding to their major concerns will influence the 27 priorities administrations set for compliance assurance. 28

The key point is that clarity about the purposes of complaint-handling is an important factor in shap-29 ing public expectations and in organising the ways and means by which complaints are handled. 30

Of course, for purposes of communication, state bodies might also express the purpose of environ-31 mental complaint-handling in simpler generic terms such as 'ensuring a high level of environmental 32 protection' (which is one of the objectives of EU environmental policy) or ensuring confidence and 33 trust in government. 34

Table 11: Purposes of complaint-handling 35

State-centred Citizen-centred

(1) Ensure compliance with existing envi-ronmental laws (environmental compli-ance assurance)

(2) Make useful environmental policy, laws and rules

(3) Ensure the efficiency and effectiveness of public administration.

(1) Uphold the legal rights of citizens de-rived from environmental law

(2) Uphold codes of good administration (3) Promote good relations between the

public and state bodies

38

State-centred: environmental compliance assurance 1

The handling of complaints about the state of the environment and environmental pressures can 2 serve general compliance assurance objectives (see Section 2.6 for the three components of environ-3 mental compliance assurance). First, it can be a means of compliance monitoring. Second, it can help 4 define the context for follow-up and enforcement. In terms of compliance monitoring, complaints 5

will often provide authorities with useful information and may lead them to carry out their own ad-6 ditional checks. In terms of enforcement, complaints will often trigger a need to consider different 7

enforcement objectives, in particular as the public will often have expectations in terms of enforce-8 ment outcomes. 9

Relevant in this regard are the following enforcement objectives:. 10

End breaches as soon as possible: An early intervention may be necessary to prevent 11

harm to the environment or the ending of a nuisance linked to the breach. In particular, on-12 going nuisances may be a source of frustration to complainants and be a big factor in how 13 they inter-act with complaint-handling bodies. 14

Remedy environmental damage: Complaints may be made in situations where environ-15

mental damage has already been caused and complainants will often expect authorities to 16 ensure remediation. 17

Sanction effectively, dissuasively and proportionately: Sanctions are intended to deter 18

non-compliance. Showing that sanctions have been imposed is one means of demonstrating 19 to complainants that the authorities have taken action on foot of a complaint. 20

Ensure that non-compliance does not bring economic gain or advantage: As Chapter 21

3 has shown, some complaints can come from businesses concerned about unfair competi-22 tion from other businesses acting unlawfully. Complainants may expect authorities to ensure 23 a level playing field. 24

When considering the state-centred objectives of complaint-handling, it is of course necessary to 25 have a sense of proportion. The expectations – and entitlements – of individual complainants must 26 be balanced against wider compliance assurance priorities and the need for the state to devote re-27 sources to ensuring compliance in situations not addressed by complaints. The state-centred purposes 28 of complaint-handling will therefore typically seek to ensure that complaint-handling does not mo-29 nopolise or disproportionately dominate the work of compliance assurance bodies. 30

State-centred: environmental policy-making 31

DPSIR data and information derived from complaints can inform policy-makers as well as law- and 32 rule-makers about gaps in the scope of existing environmental legislation and rules. Complaint-han-33 dling can feed into the development of new or amended legislation and rules. One not uncommon 34 example relates to industrial permits. Permit-granting authorities typically have a power – and some-35 times a duty – to review permits and, following complaints, may revise permit conditions to address 36 specific concerns expressed by neighbours. 37

Complainant- or citizen-centred 38

As can be seen, complainant or citizen-centred purposes overlap with state-centred purposes. How-39 ever, in some types of complaint-handling, the citizen-centred purposes will be more to the fore. This 40 is especially the case with complaints handled by ombuds-institutions which relate to fulfilment of 41 codes of good administration. 42

39

The complainant-centred purposes will typically focus on the rights and entitlements of the complain-1 ant. In principle, these should be coherent with state-centred purposes. One way of ensuring coher-2 ence is to create clear and realistic expectations of what complainants can expect in terms of com-3 plaint-handling procedures and outcomes. For example, citizens are entitled to expect that the state 4 will protect their fundamental rights – which is why complaints about serious and substantiated en-5 vironmental nuisances (touching on people’s health and property) must be considered very significant. 6 On the other hand, there are limits to what complaint-handling bodies can do with complaints that 7 cannot be substantiated. 8

4.3. Ways 9

Whatever the purposes served, complaint-handling systems will need to subject individual complaints 10 to processes that have a beginning, a middle and an end. Handling of complaints logically follows 11 different steps that are associated with certain tasks for complaint handling bodies. Procedures and 12 protocols for complaint handling bodies should reflect those to ensure the purposes of complaint 13 handling are served. While for complaints about less significant events it may not be necessary to 14 perform all tasks, more serious events will usually require complaint handling bodies to follow through 15 with all the tasks. 16

Figure 4: Decision Tree 17

When receiving complaints, different questions will determine the further procedure for handling the 18 complaint, in the following this is first displayed in a simplified decision tree (see Figure XX) and then 19 explained in more details in the following sections and tables. 20

Figure 5: Steps of a typical complaint-handling procedure ## Table Figure 21

Step 1: Receive Step 2: Initially as-

sess and assign

Step 3: Analyse and

respond

Step 4: Finalise

- Register complaint - Acknowledge receipt of complaint

- Carry out initial as-sessment of com-plaint - Assign responsibility

- Plan response - Investigate - Take measures

- Communicate - Follow up - Keep record - Review

40

Typical steps of a complaint-handling procedure 1

Handling of complaints logically involves certain tasks for complaint-handling bodies. There are dif-2 ferent ways to cluster them (see Volkéry et al., 2012, Study on environmental complaint-handling 3 and mediation mechanisms at national level, pp. 3 et seq.). For the purpose of this documentation, 4 we have allocated the different tasks to four steps as demonstrated in Figure XX. 5

Step 1: Receive the complaint 6

When receiving complaints, complaint-handling bodies should enter them in a register and 7 acknowledge the receipt of the complaint. 8

Register complaint: When registering complaints, information relevant for the further complaint-9

handling procedure should be collected. This information may include the name of the complainant 10 and the time of complaint making. Also, complaints should be categorised using a set of criteria that 11 simplifies the further procedure. One criterion could be the type of complaint as this might help to 12 determine whether there will be a future interest. If kept electronically, the register may make proce-13 dures more effective and efficient. In case the register is made accessible to the public to ensure 14 transparency, data protection and confidentiality should be guaranteed. 15

Text box 11: Practice example – Receiving complaints 16

Ireland: The Irish Environmental Protection Agency has developed a phone application that allows

citizens to submit complaints about waste (e.g. dumping and littering), air quality (e.g. backyard burning and odour), noise (e.g. from commercial premises and small factors) and water quality (e.g. fish killing and pollution).

The phone application may be used to submit photos, other important details and contact infor-mation. The submission will be logged on a website where the photo and the other details are publically visible, but the contact information remain confidential.

Acknowledge receipt of complaint: To provide transparency and ensure trust and confidence in 17

the complaint-handling procedure, the complainant should be informed about the registration of the 18 complaint, the further procedure and the presumed time line. This procedure could be inspired by the 19 mechanism of the Public Access to Environmental Information Directive. 20

Step 2: Initial assessment and assignment of the complaint 21

Complaint-handling will depend on various factors and the body contacted by the complainant may 22 not have the mandate or power to respond to the complaint. It is therefore necessary to analyse the 23 complaint in order to prepare for complaint-handling itself, and to then assign it to the responsible 24 body that will either coordinate the process or has the power to take the final decision. 25

Initial assessment: The way of complaint-handling depends on the type of complaint and the avail-26

able resources. Complaint-handling bodies may make a preliminary assessment of the complaint to 27 decide on its importance and urgency, the necessity for investigations, and to assign responsibility. 28 This may be done with the help of templates that avoid missing out on minimum information and 29 help to structure the complaint. 30

Text box 12: Practice example – Categorisation of complaints 31

Portugal: The Portuguese General Inspection of Agriculture, Sea, Environment and Spatial Planning

differentiates in a first step between four degrees of complaints:

1. Exclusive competence & Severe environmental damage

41

2. Shared competence with another organisation under another ministry

3. Shared competence with enforcement authorities

4. No competence

Depending on the degree of the complaint, another protocol will be followed.

Assign responsibility: Complaints often have to be re-directed because complainants contact those 1

bodies that are most visible to them, but may not have the mandate or power to properly handle their 2 complaints. The responsibility for the different tasks associated with complaint-handling need to be 3 assigned depending on the importance, type and location of the complaint. The different roles in 4 complaint-handling may be taken by a single body or by different bodies: communication, coordina-5 tion, investigation and decision-making (for the different roles see Section XX). In case the complaint-6 handling procedure does not appear appropriate, another redress mechanism, for example mediation 7 or neighbourhood dialogue, may be chosen (for an overview of redress mechanisms see Section 8 2.10.3). 9

Text box 13: Practice example – Assignment of responsibility 10

The Netherlands: In the Netherlands, authorities are required by law to forward complaints to the

competent authority. There is even a fine for non-compliance with this obligation.

Step 3: Respond to the complaint 11

The complaint-handling body will respond to the complaint within a reasonable period of time. This 12 depends, for example, on the importance of the case and the investigations needed to verify the 13 complaint. 14

Plan response: As a first task, the complaint-handling body should make a plan on who to involve 15

and how to respond to the complaint in a reasonable time. Complaint-handling bodies may have a 16 protocol to assist with this task for recurring cases. 17 Investigate: Some complaints may require further substantiation. Complaint-handling bodies will 18

only be able to take measures on the basis of validated information and may not be able to act on 19 the basis of the information provided by the complainant. Therefore, further investigations to gather 20 more information may be necessary to respond to the complaint. The investigations should feed into 21 inspection and monitoring work. Data collected by citizens may be used to validate information (for 22 the role of citizen science in information gathering and especially in complaint-handling see Section 23 4.3.2). The outcome of the investigation will determine the appropriate response by the complaint 24 handling body (see Figure 6). 25

Figure 6: Outcomes of investigation and their response 26

No power to act Lack of evidence Substantiation of complaint

Options: - Redirect complaint - Close case

Options: - Further investigation - Close case

- Take measures

Take measures: Complaint-handling bodies will respond to the complaint in case the information 27

could be validated and there is a basis to take measures. Taking measures may mean legal action 28 like the withdrawal or adjustment of a permit. It may also be the clean-up of an illegal landfill. If the 29 existing legislation has been proven insufficient, an amendment or the adoption of new legislation 30 may be necessary. In this case, however, the complainant needs to be informed pointing both to the 31 facts that amendments of laws are time consuming and that case-handlers can only act within the 32 limits of applicable laws. 33

42

In case the information given by the complainant could not be validated, the complaint-handling body 1 may choose not to take measures. 2

Text box 14: Practice example – Respond to the complaint 3

The Netherlands: In the Netherlands, substantiated complaints will automatically trigger an ad-

ministrative procedure. A system based on points has been introduced that will require authorities to rewrite the permit in case many substantiated complaints have been submitted.

Step 4: Finalise 4

Complaint-handling also involves the communication of the result to the complainant. Ideally, there 5 will also be a follow-up for the complaints that have been handled and a regular review of the com-6 plaint-handling system. 7

Communicate result: The complainant should be informed throughout the process to manage ex-8

pectations and to provide transparency, and about the outcome of the complaint-handling procedure 9 and the reasoning for the decision. During the procedure to handle the complaint, a balance needs to 10 be found between effectiveness and transparency. Giving an explanation is especially important in 11 those cases where no measures are taken (e.g. the complaint is not a sufficient basis for follow-up 12 activities). Here, the reasons need to be communicated clearly. In case an administrative decision is 13 taken, it should include information about the right to appeal and the conditions (e.g. time and form). 14 Besides the complainant, the public should be informed about the result of the complaint-handling 15 procedure. This may be done electronically. 16 Follow up: The complaint-handling bodies should follow up on the complaint after the complaint-17

handling procedure has been finalised to see whether the cause for the complaint has been handled. 18 For example, inspection plans for installations could ensure a different treatment for installations 19 that have been complaint about. 20 Keep record: Records of complaints should be kept for some time for statistical, data-analytical and 21

other purposes. The information may help to identify patterns of repeated complaints about the same 22 subject-matter. It will also allow authorities to see the geographical distribution of complaints and 23 conduct a risk evaluation. For these purposes, information that relates the complaint to the complain-24 ant will lose its importance and confidentiality of data will prevail (for information on the General 25 Data Protection Regulation see Annex I). 26 Review: Complaint handling bodies may compile and publish annual reports about their activities or 27

issue reports about systematic failures to enhance transparency. These could provide statistical in-28 formation and highlight successful cases of complaint handling and mention remaining challenges. 29

The role of citizen science in complaint-handling 30

Citizen science may be used in complaint handling. For example, data provided by citizens may be 31 used for validation of information provided by the complainant and as a basis for taking measures. 32

Text box 15: Practice example – Citizen science in complaint handling 33

## Example: Is there an example for citizen science in complaint handling? ##

When using citizen science, complaint handling bodies should keep the following aspects in mind: 34

Reliability of data: Especially when being used as a basis for restrictive measures, data provided 35

via citizen science needs to be validated to ensure it is sufficiently robust. An alternative to checking 36 the quality of data is the validation of a system for data generation. 37

43

Protection of citizens: Citizens should not be encouraged to engage in surveillance activities as this 1

might involve health and safety risks for them. 2 Efficiency and proportionality: Considering the resources necessary for complaint handling, the 3

areas for using citizen science should be well chosen and the procedures must be well structured. 4

Specific features for appeals and complaints about maladministration 5

Procedures to handle complaints about mal-administration and appeal procedures may differ from 6 other complaint handling procedures. 7

Means for investigation: External independent bodies like ombuds-institutions and appeal bodies 8

may have limited means to engage in further investigations and may be limited to the information 9 they can access themselves or via the complainant. 10 Power to take measures: External independent bodies like ombuds-institutions may not have the 11

power to take administrative measures to rectify the situation that caused the complaint. Their influ-12 ence may be limited to the issuance of a public opinion. 13

Text box 16: Practice example – Complaints about maladministration 14

Slovenia: In Slovenia, the Ombudsman is of a proactive nature. It is his responsibility to protect

human rights and fundamental freedoms. To this end, he is given the right to initiate proceedings against violations of human rights.

Relation with other procedures: There are several interrelations between complaints to ombuds-15

institutions and appeals to administrative, civil or criminal court procedures (see Figure 7). Findings 16 of ombuds-institutions might have implications in civil procedures. Appealing a decision may be nec-17 essary to access justice. Complaining to external independent bodies may delay possible appeals. 18 Complainants and appellants should be informed about these kind of interrelations. 19

Figure 7: Relation of complaints to ombuds-institutions and appeals to other procedures 20

Civil court Criminal court Ombuds-insti-

tution

Appeal body Administrative

court

Findings of om-buds-institution might serve as proof

Ombuds-institu-tion may not be allowed to deal with complaints about criminal behaviour

An appeal may be necessary pre-condition for a complaint to ombuds-institu-tion

Complaining to an ombuds-insti-tution may have impacts on the time limit for an appeal

Appealing a deci-sion may be a pre-condition for access to justice Complaining to an ombuds-insti-tution may have impacts on the time limit for ac-cess to justice

4.4. Means: Complaint-handling bodies 21

Whatever the ‘ends’ and ‘ways’ of complaint-handling, there need to be ‘means’ of fulfilling the pur-22 poses of complaint-handling and undertaking complaint-handling processes. In the first place, this 23 requires bodies charged with handling complaints or aspects of them. In the second place, such bodies 24 will benefit from a number of principles. Third, they need to have the capacity to handle complaints. 25 These aspects are addressed in turn. 26

44

Types of complaint-handling body 1

In practice, complaint-handling is likely to involve a wide range of different bodies. The range will 2 reflect the different kinds of complaint that are made in practice and how Member States organise 3 themselves. Table X below attempts to identify some broad categories. 4

The complaint-handling roles of different complaint-handling body may have evolved over time and 5 not be the result of an overall prior design. As a result, one of the over-arching challenges that Mem-6 ber States face is ensuring overall coherence across all the different categories of body. 7

Table 12: Complaint-handling bodies 8

Service providers First responders

and administrative

authorities

Investigating

authorities (for envi-

ronmental crimes)

General oversight

- Private utilities, e.g. drinking water suppli-ers - Public utilities, e.g. operator of a municipal landfill

- Police, fire services and other first re-sponders in case of ac-cidents and incidents - Local authorities - Higher administrative authorities, often with a supervisory role in respect of a local au-thority - Specialist agencies, such as environmental agencies or specialist enforcement officers (for example, wildlife rangers or wardens) - Ministries

- Police - Customs - Prosecutors

- Ombuds-Institution - Supreme audit bodies - Petition committees - Parliamentary com-mittees

Due to the various topics complaints may cover and the different purposes of complaint handling, it 9 may not be possible to establish one single system to receive, analyse, respond to and follow up on 10 complaints. 11

Especially complaints about maladministration to external bodies such as ombuds-institutions will 12 usually not be directly connected to the complaint handling system of administrative and investigat-13 ing authorities. Also, some complaint handling bodies may only be responsible as a last resort, when 14 other options have been used without success. 15

Service providers 16

Public services such as waste water management or supply with drinking water may be provided by 17 private companies or public entities. Complaints about singular incidents will usually be directed to 18 the service providers themselves or municipalities that will forward them to the service providers. In 19 contrast, handling of complaints about structural problems should involve other complaint handling 20 bodies. 21

Private companies: As they are offering environmental services, private service providers should 22

have a system in place to handle complaints equivalent to those of public entities. Private service 23 providers will usually act more autonomous and are not integrated into complaint handling systems 24 of public authorities. They may ask authorities for available data or whether the same complaint has 25

45

been submitted there. However, they will not be able to formally request assistance of other com-1 plaint handling bodies. 2 Public entities: Public service providers may have different organisational structures and levels of 3

interrelation with municipalities or other administrative authorities. These factors will determine their 4 mandate and power to handle complaints. 5

First responders and administrative authorities 6

Authorities at the different levels of administration may receive complaints and may be responsible 7 for complaint handling. They have differing mandates and differing decision-making powers. Appeals 8 about decisions or omissions of administrative authorities will usually either go to a higher level or a 9 different department. 10

Municipalities: Municipalities are closest to citizens and are therefore an important contact point for 11

complainants. They will usually have a mandate to handle complaints about minor infringements and 12 will forward other complaints to the competent authorities. Municipalities may get involved in com-13 plaint handling when local knowledge is needed. 14 Other competent authorities, including inspectorates: Authorities responsible e.g. for the issu-15

ance of permits for installations, monitoring of water bodies or responding to emergencies will either 16 be first contact point for complainants or get involved in complaint handling in case measures need 17 to be taken that fall within their exclusive competence. Some Member States may have established 18 integrated environmental authorities while others have various authorities in the environment sector 19 with different tasks – for example for water or air quality. 20 Inspectors: Inspectors will usually have a limited mandate to handle violations of environmental law. 21

Complaints may either be handled by them within their mandate or forwarded to the responsible 22 complaint handling body. Inspectors may be directed by the competent complaint handling bodies to 23 gather and substantiate information. 24 Ministries: Environmental ministries may be contacted with complaints about activities or the state 25

of the environment and complaints about maladministration in the environment sector. Depending on 26 the severity and importance of the case they may wish to coordinate the complaint handling process 27 or forward the complaint to the competent authority. 28 Rangers: Rangers are entrusted with preserving nature conservation sites and may therefore be the 29

first point of contact for complainants detecting non-compliance with nature conservation rules. Han-30 dling minor cases of non-compliance may also fall within their mandate and power to handle. 31

Investigating authorities 32

Investigating authorities may perform various functions during the process of complaint handling. 33 They will often be the first point of contact due to their public image and their availability. However, 34 investigating authorities may have a limited mandate to handle complaints and may therefore for-35 ward them to the competent authorities. Investigating authorities will get involved in complaint han-36 dling in case further information or information needs to be substantiated to take measures. 37

Police: The police offers its services 24/7 and will therefore often be the first point of contact for 38

complainants. It may investigate complaints within its own mandate or upon request of administrative 39 authorities or prosecutors. Officers from competent authorities may not have the power for example 40 to enter premises and may depend on police officers to be present. And vice versa, police officers 41 may not have the necessary environmental expertise to act on their own. Complaints about criminal 42 behaviour of persons or officials affecting the environment will be handled as environmental crimes 43 (for more information see the Guidance on strategies for combatting environmental crimes and other 44 related breaches). 45 Criminal investigation bodies: Cases of serious environmental crime may be investigated and 46

handled by criminal investigation agencies or departments. They may cooperate with the police and 47

46

prosecutors (for more information see the Guidance on strategies for combatting environmental 1 crimes and other related breaches). 2 Prosecutors: When receiving complaints, prosecutors will open a criminal investigation in case they 3

suspect criminal behaviour (for more information see the Guidance on strategies for combatting en-4 vironmental crimes and other related breaches). Prosecutors can dismiss the case when there is no 5 criminal offence, when there is not enough proof to press charges, or when the offender remains 6 unknown. In case the investigation finds evidence for wrong-doing below the threshold of a criminal 7 offence, the prosecutor may forward the complaint to the responsible complaint handling body. 8

General oversight 9

External bodies may usually be contacted in case of maladministration – especially in cases where 10 no other mechanisms exist to question decisions, omissions or activities of the administration. It is 11 necessary to draw the line between complaint handling and access to justice and citizens. Also, the 12 mandate and power of the external bodies needs to be considered. An ombuds-institution may not 13 have the power to take measures to rectify the situation. 14

Ombuds-institution: Ombuds-institutions may have different mandates to handle complaints. While 15

some may only review procedural aspects of decision-making, others may also review the content of 16 the decision. Also, ombuds-institutions may not have a mandate to deal with criminal cases. Some 17 ombuds-institutions may in addition have a mandate to check whether principles of good governance 18 have been applied, e.g. whether a decision or omission was ethical. Complaints to ombuds-institutions 19 may have a different role in the complaint handling system and in relation to access to justice. Ad-20 ministrative or judicial procedures may be suspended for the time the ombuds-institution handles the 21 complaint. Some ombuds-institutions may only act once the complainant has tried to solve the prob-22 lem with the responsible body itself. 23

Text box 17: Practice example – Types of ombuds-institutions 24

Austria: Austria knows two different types of ombudsmen: environmental ombudsmen and om-

budsman boards – both of which have been established in each of the nine states. While environ-mental ombudsmen represent the public interest in environmental questions in administrative pro-ceedings, ombudsman boards have the competence to handle complaints about maladministration.

Petition committees: Complaints either directly submitted to the petition committee or to parlia-25

ments will be handled by the petition committee. It will assess whether legislation is achieving its 26 intended aims or causing new problems and therefore needs to be reviewed critically, or whether the 27 parliament should take action to address a particular concern. 28 Parliamentary committees: Specialised standing or ad-hoc committees at parliament may be ad-29

dressed with complaints falling within their mandate. The committee may send the complainant to 30 the responsible complaint handling body or may, depending on the scope of the case presented, act 31 upon the complaint. 32 Supreme audit bodies: Complaints about public expenditure may be directed to and handled by 33

supreme audit bodies that have oversight role. 34

Legal roles, powers and duties of complaint-handling bodies 35

Complaint-handling bodies operate within pre-defined legal frameworks that set out their role, pow-36 ers and duties. Such frameworks will create limits as to what individual bodies can do. They will also 37 set limits on the extent to which individual bodies can fulfil the purposes of complaint-handling. 38

There will often be multiple frameworks that individual complaint-handling bodies need to respect. 39 Some frameworks will be specific to the body itself, for example a statue establishing an environ-40 mental agency. Other frameworks may apply across state institutions – for example, codes of good 41

47

administrative conduct. And of course all complaint-handling bodies will need to act within the law 1 as more generally defined – for example, they will need to respect the fundamental rights not only 2 of complainants but of persons against whom complaints are made. 3

It is important that individual bodies – and individual complaint-handlers – are aware of the legal 4 frameworks that define these limits. The following are some key concepts: 5

Mandate: The mandate determines the types of complaints the complaint handling body can 6

handle and may be defined along the topics complaints can cover. It will usually overlap with 7 the general mandate of the complaint-handling body. Also, it will determine whether appeals 8 and complaints about maladministration may be handled. 9

Functions: Some complaint-handling bodies – like ombuds-institutions – may have been es-10

tablished specifically to handle complaints. Other complaint-handling bodies – such as in-11 spectorates – may have other functions apart from complaint-handling. 12

Powers: The powers determine whether a complaint handling body has the authority to rec-13

tify the situation leading to the complaint, for example by revoking a permit or ordering the 14 clean-up of a polluted site. The powers can vary considerably, even within a specific category 15 like ombuds-institutions. 16

Duties: Complaint-handling bodies will also have a range of specific legal duties to fulfil. 17

Appeal bodies and their specific features 18

While complaints will usually be about an activity or the state of the environment, or about malad-19 ministration, appeals question the decision taken in response to the complaint on the first tier. As a 20 consequence, the complaint-handling body should not be responsible. Also the powers need to be 21 appropriate considering the different circumstances. 22

Figure 8: Complaint and appeal bodies 23

## Include figure that visualises differentiation between: responsible authority; independent appeal 24 authority; judge and in contrast to these: extrajudicial ombudsmen 25

Ombuds institution Independent appeal body Courts

Competent authority

The following specific features should be considered: 26

Independence: The appeal body handling second tier complaints needs to be distinct from 27

the complaint handling body handling first tier complaints. This may be achieved by estab-28 lishing an authority that is responsible for administrative review. Another option is the estab-29 lishment of a higher-level compliance assurance authority. While ombuds-institutions are in-30 dependent, they are not responsible for appeal as they are independent external bodies. 31

Powers: To effectively handle complaints, appeal bodies need the power to repeal decisions 32

and order authorities to take a decision. Appeal bodies may even have the power to take 33 decisions themselves that replace the decision of the competent authority. 34

Conditions for appeal: Appeals may only be admissible in case they have been presented 35

to the appeal body within a certain period of time. There also may be a requirement concern-36 ing the form of the appeal. 37

48

Co-ordination and co-operation 1

Complaint-handling may require coordination and co-operation across different bodies. As complaints 2 are not always made with the responsible complaint-handling body, they need to be forwarded. Bod-3 ies need to be integrated in the complaint-handling system to be able to forward and receive com-4 plaints, to contact the coordination body and to cooperate with other bodies that have the necessary 5 powers to respond to the complaint. When forwarding complaints, the General Data Protection Regu-6 lation needs to be considered (for more information on the General Data Protection Regulation see 7 Annex I). 8

Text box 18: Practice examples – Coordination 9

## Example of cooperation between police and competent authorities to explain mandate, function and power. ##

4.5. Means: Principles 10

Complaint handling should comply with principles of good governance to ensure effective handling 11 of complaints and to ensure trust and confidence with the institutions and the process (for an over-12 view of the good governance principles see Table 14). 13

Table 13: Good governance principles 14

Responsibility Organisation Information Process

- Accessibility - Simplicity - Clarity of purpose

- Independence - Accountability - Comprehensiveness - Cooperation

- Transparency - Confidentiality

- Fairness - Flexibility - Effectiveness - Independence - Responsiveness

Out of the good governance principles listed in Table 14, not all principles have the same relevance 15 for every complaint handling procedure. For example, complaints about maladministration will require 16 more safeguards for independence on an organisational level. 17

Responsibility for complaint-handling 18

Accessibility: Accessibility involves public awareness of the possibility to alert authorities via com-19

plaints and the functioning of the complaint mechanism. Complaint handling bodies should provide 20 for different means of complaint making. The public needs to be informed about where to complain. 21 Tool can be databases and one-stop-portals (see above Section XX). 22

Text box 19: Practice example – Accessibility 23

Portugal: See “Manual for complaints”.

Simplicity: Simplicity requires a clear explanation on how to make complaints that is easily accessi-24

ble as well as drafted in a simple and clear language. It also means that making a complaint should 25 be easy and not require too much effort. 26 Clarity of purpose: The powers and functions of complaint handling bodies need to be clear includ-27

ing their mandates to remedy breaches of environmental law or maladministration. 28

49

Organisational features for complaint-handling 1

Independence: The complaint handling body should be independent from political bias or private 2

interests as this aspect is key to ensure public trust. The principle needs to be implemented on all 3 levels of administration, from the municipal level to the national level. This needs to be true for the 4 complaint handling body as well as for the people working there. Declarations of a conflict of interest 5 may be an appropriate tool to ensure independence. For appeal bodies this also requires that they 6 are independent from the competent authority (for appeal bodies see above Section XX). 7 Accountability: Accountability may be achieved through the presence of independent supervisory 8

bodies. Independence and accountability may be demonstrated via publication of periodic activity 9 reporting containing measureable information. 10 Comprehensiveness: Complaint handling bodies can only comprehensively deal with complaints in 11

case they have the mandate and power to take the necessary measures in all areas of environmental 12 protection. 13 Cooperation: Good cooperation between complaint handling bodies may result in faster results and 14

avoid double work. This will serve the overall efficiency of the complaint handling system. It may be 15 facilitated via cooperation protocols between the different complaint handling bodies or via legal 16 provisions. 17

Information about complaint-handling 18

In dealing with information throughout the complaint handling procedures, complaint handling bodies 19 are required to balance the public's interest in transparency and the confidentiality that needs to be 20 guaranteed to alleged wrong-doers. Aspects in balancing these two principles are the purpose of 21 complaint handling and the principle of proportionality. 22

Transparency: A transparent complaint handling system presupposes clear rules governing its func-23

tioning that are accessible by the public. Transparency implies that complainants have access to in-24 formation on the steps that are being taken and are informed about decisions taken. A system to 25 record, analyse and report on complaints needs to be established. For complaint handling bodies it is 26 necessary to find a balance between handling the complaint as quickly as possible and engaging in 27 communication. Transparency should be guaranteed not only towards the complainant, but towards 28 everybody. 29 Confidentiality: The mechanisms should ensure that information about the identity of the com-30

plainant is protected. Confidentiality means accepting anonymous complaints and giving more far 31 reaching legal protection to whistle-blowers. Also, confidentially must be guaranteed to the alleged 32 wrong-doers as well, since not all complaints are well-founded. Complaints may be made by compet-33 itors or may be based on assumptions (for more information see Section 3). 34

Process of complaint-handling 35

Fairness: Fairness in the sense of equity can be ensured by overall transparency of the system and 36

the possibility for complainants to keep track of their complaints throughout the proceeding. Fairness 37 also needs to extend to alleged wrong-doers, since not all complaints are well-founded. 38 Flexibility: The complaint mechanism should be able to respond to different types of complaints and 39

open for constant review and improvement through the exchange of good practice. 40 Effectiveness: Whether complaint handling mechanisms are effective is determined by various fac-41

tors, such as the financial capacities of a complaint handling body, the expertise of the staff and the 42 existence of a review mechanism (for capacities and tools for complaint handling see Section XX). It 43 also requires an ethos of problem-solving and the possibility to prioritize complaints – including the 44 decision not to investigate complaints. 45

50

Independence: Not only the complaint handling body, but also the procedures along the steps of 1

complaint handling need to be independent (for the steps of complaint handling see below Section 2 4.3). Bias can be prevented through balancing the contact with operators and complainants. 3 Responsiveness: Trust can be ensured by giving feedback about the stage the complaint is in, also 4

about whether the economic operator has been contacted, etc. Lack of feedback is one of the main 5 grievances that complainants express when complaining about authorities. The complainant needs to 6 be communicated with, also to ensure his expectations about the time spans needed are right. Com-7 plaint-handling bodies should have a system in place to acknowledge the receipt of complaints and 8 to respond to complaints within a reasonable time frame. 9

4.6. Means: capacities and tools 10

To follow the different steps of complaint handling in line with the governance principles, certain 11 capacities and tools are necessary or may improve the process (for an overview of capacities and 12 tools see Table 13). For example, a protocol on dealing with complaints may make the process trans-13 parent and efficient. 14

Table 14: Capacities and tools for complaint-handling 15

Staff resources Technical

means

Efficiency

mechanisms

Evaluation

mechanisms

Proactive

mechanisms

- Expertise - Training - Networks - Conflict of in-terest

- Recording - Assignment of responsibility - Communication

- Prioritisation criteria - Protocols and templates - Standardisation - Databases - Explanations - Benchmarks

- Reporting - Evaluation

- Citizen engage-ment - Good practice sharing - Information dissemination

Staff resources 16

Handling complaints can be challenging and time consuming for two reasons: First, the number of 17 complaints can be overwhelming, and second, some complaints may require special attention (see 18 for more details Section 3.3.2). Whether complaints can be handled appropriately will depend on the 19 human resources and time capacities of the complaint-handling body. Complaint-handling bodies 20 either have a specific responsibility for complaint-handling or enough time capacity to do so on the 21 side. Finding an adequate balance between complaint handling and completing the other tasks as-22 signed will be vital in the second case. 23

Number of staff: Depending on the number of complaints submitted and the possibility of 24

staff to prioritise or not, sufficient staff needs to be allocated. 25

Responsibilities of staff: While some bodies or divisions thereof may only be responsible 26

for complaint handling, others will have to handle complaints in addition to the other tasks 27 they have been assigned. 28

Having the necessary staff resources is essential to handle complaints in line with the good govern-29 ance principles. Various aspects determine, whether the staff can handle complaints appropriately: 30

Expertise: Complaint handling bodies should have access to scientific, legal and other tech-31

nical expertise. This may require staff to be sufficiently specialised or to have access to the 32 necessary expertise via networks. A lack of expertise staff, especially at the district level, may 33

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pose a problem in effectively handling environmental complaints. Complaint handling bodies 1 should not be forced to re-direct environmental complaints due to a lack of expertise. 2

Training programmes: Staff should have access to regular training programmes to keep 3

informed about the legal context and other developments. Apart from expertise, training pro-4 grammes also help staff to develop a network of experts that can be consulted in case new 5 questions arise. 6

Text box 20: Practice examples – Staff training 7

Training for staff from different complaint handling bodies could include:

Investigation skills Rules on data-protection Writing of permits for and inspection of industrial installations in light of complaints

Network: Staff should be integrated in formal and informal wider network of experts. These networks 8

may facilitate knowledge transfer through exchange and consultation. 9 Conflict of interest: It is important that complaint handling bodies maintain a system to record 10

potential staff conflicts of interest and a protocol to manage such cases. They should maintain trained 11 investigators who are not from the business area. 12

Technical means 13

Complaint handling bodies should use technical means to fulfil their tasks. Technical means may 14 especially be used for the following tasks: 15

Record keeping: Complaints may be registered electronically. The system used should be easy to 16

manage and could provide for a public part. An electronic system may also have the advantage of 17 being accessible after office hours. It may be set up in a way to serve as a one-stop-portal, making 18 it easy for citizens to submit complaints. 19 Re-direction: Complaints may be redirected to the responsible complaint handling body electroni-20

cally. This requires different complaint handling bodies to use the same or compatible electronic sys-21 tems. 22 Communication: Web-solutions may be used to communicate with the complainants and the public 23

about the state and result of complaint handling. 24

Text box 21: Practice example – Technical means 25

Germany: The Brandenburger Maerker is an internet portal that allows citizens to submit infor-

mation about local problems such as potholes, illegal dumping sites or barriers for disabled people to their municipalities. The online contact form to submit information follows three questions:

1. Where? 2. What? 3. Who?

Each submissions is published on the website with its status indicated by a traffic light:

O Received

O In process

O Dealt with

Also, for each submission published on the website, a comment about what is being done is added.

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Efficiency mechanisms 1

Some complaint handling bodies may receive various complaints and therefore need to handle them 2 efficiently. The following tools may help to achieve that: 3

Prioritisation criteria: If Member States allow for the different treatment of complaints and a 4

prioritisation, different procedures for a possible quick response to a local complaint and longer pro-5 cedures for complex issues may be an option. Regulators could maintain informal, frontline complaint 6 resolution procedures for less significant events, with a more formal escalated procedure for more 7 serious events. The procedure should also include an internal appeal mechanism, prior to external 8 appeal to ombuds-institutions. The criteria of the Aarhus Convention may be used as guidance. 9

Text box 22: Practice examples – Prioritisation of complaints 10

There are good practice examples from various Member States that allow for a prioritisation of complaints:

Risk-based approach Etc.

Protocols and templates: Protocols and templates can help to get the necessary information from 11

the complainant, to assign responsibility and to handle the complaint. Such protocols could also, 12 where necessary, address complaints submitted from neighbouring countries. Also, it is essential to 13 provide inspectors with good templates that respond to legal criteria and expectations of the com-14 plainant. 15

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Text box 23: Practice example – IMPEL Checklist for complaint-handling 1

Standardisation: Complaint handling bodies could draft standard answers for unsubstantiated and 2

recurrent complaints that allow them to easily reply and give sufficient information at the same time. 3 Databases: Information should be shared about complaints, the body assigned to handle the com-4

plaint, and complaint handling to avoid duplication of work and unnecessary search for solutions. In 5 setting up such databases, complaint handling bodies need to consider data protection provided by 6 the General Data Protection Regulation. 7

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Explanations: Complaint handling bodies may be provided with easy explanations of the legal pro-1

visions that need to be enforced. Especially inspectors may benefit from short explanations that pro-2 vide the context for their work. It should be kept in mind that inspectors enforce mainly national law 3 (except for EU regulations). They may therefore not necessarily benefit from more guidance on the 4 interpretation of EU environmental law, but also need to be given the national context. 5

Evaluation mechanisms 6

To ensure transparency and to improve the process, regular reporting and evaluation may be imple-7 mented. In case the reporting covers not only aspects of complaint handling, but also of the situations 8 the complaints related to, gaps in environmental legislation or shortcomings in its implementation 9 may be detected. 10

Reporting: One tool to provide transparency and to assure quality is reporting. Complaint handling 11

bodies could either regularly report on their activities or report on specific reoccurring issues of rele-12 vance. Information to be given may include statistical data, but also single cases and how they have 13 been handled. 14

Text box 24: Practice example – Evaluation and reporting 15

Portugal: In Portugal, the ombudsman will issue an annual report that is submitted to the Parlia-

ment. It includes the following information: own-initiative cases, inspections, complaints received, actions undertaken and results achieved.

The ombudsman may also publish issue-specific reports whenever complaints point to systemic failures that needs to be addressed.

Evaluation: Complaint handling bodies or systems should be evaluated by an independent body on 16

a regular basis. Their results may lead to more successful procedures. For example, complaint analysis 17 may be improved, best methods on certain types of complaints may be identified, or the communi-18 cation and information policy may be improved. 19

Proactive mechanisms 20

Complaint handling bodies should apply proactive mechanisms in order to avoid complaints. 21

Citizen Engagement: Mechanisms to encourage economic operators and others to engage proac-22

tively with citizens, so reducing likelihood of complaints (see Chapter on Citizen Engagement). 23 Good practice sharing: Complaint handling bodies may share good practice examples either via 24

publications or via networks. These may be internal practitioner networks or European-level networks 25 like IMPEL for sharing and developing successful practices. 26 Information dissemination: To avoid complaints in the first place, and to be able to quickly respond 27

to similar complaints, complaint handling bodies may proactively provide certain information online. 28 In case complaints relate to issues addressed by the information, complaint handling bodies may 29 simply refer to the website. 30

Table 15: Checklist on complaint-handling 31

Complaint-handling and policy-making

bodies

Case-handlers

Ends:

Does your body or your Member State operate a complaint-handling system or systems address-ing one or more of the following purposes:

Ends:

Are you clear about the purposes of handling the complaints under your responsibility? To what extent do these purposes cover:

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environmental compliance assurance,

protecting the environment through en-vironmental policy,

promoting more efficient and effective government,

upholding legal rights of citizens derived from environmental law

upholding codes of good administration

promoting good relations between the public and state bodies?

environmental compliance assurance,

protecting the environment through en-vironmental policy,

promoting more efficient and effective government,

upholding legal rights of citizens derived from environmental law

upholding codes of good administration

promoting good relations between the public and state bodies?

Ways:

Does your body or your Member State operate a well-defined step-by-step process for address-ing individual complaints?

Ways:

Do you work according to a well-defined step-by-step process for dealing with complaints? Are you familiar with all the steps?

Means: Complaint-handling bodies

Would you categorise your body as falling under one or more of the following categories:

service provider

first responder or administrative author-ity

investigative authority (for environmen-tal crimes)

oversight body?

Means: Complaint-handling bodies

Which of the following would best describe the body for which you work:

service provider

first responder or administrative au-thority

investigative authority (for environmen-tal crimes)

oversight body?

Means: Principles

Means: Principles

Means: Capacities and tools

Means: Capacities and tools

1

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5. Conclusions 1

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6. Glossary 1

This Chapter contains definitions of the key terms used in the documentation. 2

Term Definition

Citizen engage-ment

Involvement of citizens in decision-making processes of the state through measures and/or institutional arrangements in order to increase their influ-ence on public policies and programmes ensuring a more positive impact on their social and economic lives. Citizen engagement requires an active, in-tentional dialogue between citizens and public decision makers.

Citizen science General public engagement in scientific research activities when citizens ac-tively contribute to science either with their intellectual effort or surrounding knowledge or with their tools and resources.

Competent au-thority

Authority that has the legally delegated or invested power to perform a des-ignated function.

Complainants Individuals, organisations, public authorities or businesses who file com-plaints.

Complaint Expression of dissatisfaction about an activity, a condition, a service or mal-administration in the activities of a public authority or an independent body.

Complaint-han-dling

Dealing with an issue brought to the complaint-handling body via complaint.

Complaint-han-dling bodies

Public authorities or independent bodies to whom complaints are (to be) di-rected.

Compliance Compliance is behaviour that ensures that an obligation (e.g. arising from law) is met. This might involve a positive action to do something or, alterna-tively, to ensure that a particular action is not taken.

Compliance assur-ance

Compliance assurance is any action, or combination of actions, by an envi-ronmental authority (on its own or in combination with others) that assists in ensuring that duty holders comply with their obligations. This may include compliance promotion, compliance monitoring and/or enforcement.

Compliance moni-toring and assess-ment

Compliance monitoring and assessment means analysis, surveillance, in-spections, investigations, audits or other interventions carried out by, on be-half of, or under the supervision of, a competent authority to examine com-pliance by duty-holders with enforceable obligations.

Compliance pro-motion and pre-vention of non-compliance

Compliance promotion and prevention of non-compliance means action to pursue compliance with enforceable obligations other than by means of compliance monitoring assessment or enforcement and follow-up.

Duty holder Duty holder is any legal person (a business or an individual) to which obliga-tions in law apply.

Enforcement and follow-up

Enforcement and follow-up means action by a competent authority under civil, administrative or criminal law in response to non-compliance or sus-pected non-compliance with an enforceable obligation.

Good governance An effective and responsible management of a body/institution that in-cludes considering society’s needs in the decisions it makes.

Maladministration Acts, omissions or other administrative decisions of public authorities that are contrary to law, unreasonable, unjust, or based on improper motives.

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Mediation A structured process, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.

Neighbourhood di-alogue

A structured long-term communication process in which companies, neigh-bours and the competent authority meet face-to-face to resolve an environ-mental conflict by balancing their interest and improving the environmental performance of the company.

Ombuds-institu-tion/Ombuds-per-son

An official person or institution charged to represent the interest of the pub-lic by investigating and addressing complaints about maladministration or the violation of rights.

Operator Any natural or legal, private or public person who operates or controls the activity. This includes the holder of a permit or authorisation for the activity, or the person registering or notifying the activity.

Public One or more natural or legal persons and, in accordance with national legis-lation or practice, their associations, organisations or groups.

Public participa-tion

Public participation is citizen initiated and aims at improving public service and public policies programmes. It consists of rather informal procedures.

Whistle-blower Person who reports or discloses information about a threat or harm to the public interest based on immoral or illegal activities in the context of her or his work-based relationship, whether it be in the public or private sector.

1

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7. References ##still to be completed## 1

Barkhuysen, Tom; den Ouden, Willemien, Schuurmans, Ymre E. (2012), The Law on Administrative 2 Procedures in the Netherlands’, Netherlands Administrative Law Library 2012. 3

Cantrell, Richard D. (1980), A method for investigation of environmental complaints, Journal of Envi-4 ronmental Health, Vol. 43, No. 1 (July/August, 1980), pp. 14-18. 5

Eliantonio, Mariolina (2015), The proceduralisation of EU environmental legislation: international pres-6 sures, some victories and some way to go, Review of European administrative law, vol. 8, pp. 99-123. 7

European Commission (2010), Recommendation of 12 May 2010 on the use of a harmonised meth-8 odology for classifying and reporting consumer complaints and enquiries, 2010/304/EU, https://eur-9 lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010H0304&from=EN 10

European Commission (2012), Communication from the Commission, Towards a reinforced culture of 11 consultation and dialogue - General principles and minimum standards for consultation of interested 12 parties by the Commission, COM (2002) 704 final, https://eur-lex.europa.eu/LexUriServ/LexUriS-13 erv.do?uri=COM:2002:0704:FIN:en:PDF 14

European Commission and Socientize.eu (2013), Green Paper on Citizen Science. Citizen Science for 15 Europe. Towards a better society of empowered citizens and enhanced research, https://ec.eu-16 ropa.eu/digital-single-market/en/news/green-paper-citizen-science-europe-towards-society-empow-17 ered-citizens-and-enhanced-research 18

European Environment Agency (2016), The DPSIR framework, figure, permalink: 19 af92bfee37d25458235c42035abfbf67 20

Haklay, M. (2012), Crowdsourcing Geographic Knowledge: Volunteered Geographic Information (VGI) 21 in Theory and Practice. Berlin: Springer. 22

Hadzi-Miceva-Evans, K. (2010), Comparative Overview of European Standards and Practices in Reg-23 ulating Public Participation, European Center for Not-for-Profit Law (ECNL), commissioned by the Or-24 ganization for Security and Co-operation in Europe (OSCE) Spillover Monitor Mission in Skopje and the 25 Macedonian Center for International Cooperation – MCIC Skopje, for the publication “Transparency 26 and public participation in law-making processes”, http://www.icnl.org/research/re-27 sources/ngogovcoop/compover.pdf 28

O'Rourke, D. and Macey, G. P. (2003), Community environmental policing: Assessing new strategies of 29 public participation in environmental regulation. J. Pol. Anal. Manage., 22: 383-414. 30 doi:10.1002/pam.10138 31

OECD (2012), Enhancing consumer policy making: The role of consumer complaints. 32 DSTI/CP(2011)22/FINAL, http://www.oecd.org/officialdocuments/publicdisplaydocu-33 mentpdf/?cote=DSTI/CP(2011)22/FINAL&docLanguage=En 34

Salgado Carvalho, Daniela; Fidélis, Teresa (2011), Citizen complaints as a new source of information 35 for local environmental governance, Management of Environmental Quality: An International Jour-36 nal, Vol. 22 Issue: 3, pp.386-400, https://doi.org/10.1108/14777831111122941 37

Scott, Ryan P. (2018), Should we call the neighbors? Voluntary deliberation and citizen complaints 38 about oil and gas drilling, Energy Policy, Volume 115, April 2018, Pages 258-272. 39

Umweltbundesamt (UBA) (2017), Das 3x3 einer guten Öffentlichkeitsbeteiligung bei Großprojekten. 40 Dokumentation des Fachgesprächs, https://www.bmu.de/fileadmin/Daten_BMU/Download_PDF/For-41 schung/beteiligungsverfahren_umweltrelevante_vorhaben_bf.pdf 42

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United Nations High Commissioner for Human Rights (2018), Improving accountability and access to 1 remedy for victims of business-related human rights abuse through State-based non-judicial mech-2 anisms, Human Rights Council, Thirty-eighth session 18 June–6 July 2018, Agenda items 2 and 3: 3 Annual report of the United Nations High Commissioner for Human Rights and reports of the Office 4 of the High Commissioner and the Secretary-General, Promotion and protection of all human rights, 5 civil, political, economic, social and cultural rights, including the right to development. 6

Volkéry et al. (2012), Study on environmental complaint-handling and mediation mechanisms at na-7 tional level. Commissioned by the European Commission. 8

1

Annex I: Relevant EU provisions and frameworks

Introduction

This section will guide the reader through relevant EU instruments. The focus will be on provisions and frameworks that are relevant for the handling of environmental complaints at national level.

Environmental provisions and instruments

1. Environmental law principles

EU law principles in Article 191(2) Treaty on Functioning of European (in particular preventive and precautionary principles, polluter-pays principle and principle of rectification at source).

2. Environmental provisions and instruments referring to complaints and grievances

The Recommendation on Minimum Criteria for Environmental Inspections; The Industrial Emissions Directive 2010/75/EU (Article 23); The Seveso III Directive 2012/18/EU (Article 20); The CCS Directive 2009/31/EC (Article 15); The Environmental Liability Directive 2004/35/EC (Article 12, 13); The Timber Regulation 995/2010 (Articles 10-13); The Access to Environmental Information Directive (Article 6); The EMAS Regulation 1221/2009 as amended (see Annex II of Regulation).

3. Relationship with access to justice in environmental matters

Boundary between complaint-handling and access to justice.

Aarhus Convention (Article 9(1), 9(2) and 9(3) and Article 3(8)). Notice on Access to Justice in Environmental Matters. Access to Information Directive (provision for both administrative appeal and access to justice) and Environmental Liability Directive (provision for calling on authorities to act as well as provision for access to justice).

4. Importance of public participation

Brief reference to the Aarhus Convention and related instruments on the importance of public partic-ipation.

Public Participation Directive 2003/35/EC.

More general provisions and frameworks

5. Fundamental Rights

Such as the Charter of Fundamental Rights.

Effective complaint-handling mechanisms promote the public’s trust in institutions and the govern-ment. A treatment of complainants and complaints in line with the principles of the Charter of Fun-damental Rights contributes to the effectiveness of complaint-handling and to safeguarding funda-mental rights, including freedom of speech and democratic accountability. There are various linkages between complaint-handling and fundamental rights protection:

Data protection (Article 8); Freedom of expression (Article 11), Freedom of assembly and association (Article 12); Environmental protection (Article 37);

2

Right to good administration (Article 41), Right of access to documents (Article 42), Ombudsman (Article 43), Right to petition (Article 44).

6. The Victims’ Rights Directive 2012/29/EU (Article 5)

7. Mediation

8. Commission complaint mechanism

9. Role of European Ombudsman and Ombudsman Network

10. Right to petition the European Parliament

Relevant ECJ case law

Case-law which enshrined inter alia good administration as a general principle of law (see inter alia Court of Justice judgment of 31 March 1992 in Case C-255/90 P Burban [1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403).

1

Annex II: Citizen Science

Definitions

"The general public engagement in scientific research activities when citizens actively contribute to science either with their intellectual effort or surrounding knowledge or with their tools and resources. Participants provide experimental data and facilities for researchers, raise new questions and co-create a new scientific culture. While adding value, volunteers acquire new learning and skills, and deeper understanding of the scientific work in an appealing way. As a result of this open, networked and trans-disciplinary scenario, science-society-policy interactions are improved [,] leading to a more democratic research, based on evidence-informed decision making." (Green Paper on Citizen Science)4.

Citizen Science is a growing worldwide phenomenon which describes the contribution of citizens to generate scientific information and knowledge. Initially coined to generally describe local and tradi-tional lay knowledge, Citizen Science refers today to a wide range of activities ranging from mobilising the public to gather data, to the involvement of trained volunteers in interpreting data and providing solutions, to the full participation of citizens in science and policy-making (based on Indepth Report: Environmental Citizen Science)5.

Four levels of citizen science

Source: Haklay, M. (2012). Crowdsourcing Geographic Knowledge: Volunteered Geographic Information (VGI) in Theory and Practice. Berlin: Springer.

Ten Principles of citizen science:

The Ten Principles of Citizen Science6 have been developed by the "Sharing best practice and building capacity" working group of the European Citizen Science Association (ECSA);

4 Published by the European Commission's Digital Science Unit and Socientize.eu in 2013, see https://ec.eu-ropa.eu/digital-single-market/en/news/green-paper-citizen-science-europe-towards-society-empowered-citi-zens-and-enhanced-research. 5 Science Communication Unit, University of the West of England, Bristol (2013). Science for Environment Pol-icy Indepth Report: Environmental Citizen Science. Report produced for the European Commission DG Environ-ment, December 2013. Available at: http://ec.europa.eu/science-environment-policy).

6 Published by the European Citizen Science Association (ECSA) in September 2015, see https://ecsa.citizen-science.net/sites/default/files/ecsa_ten_principles_of_citizen_science.pdf.

2

1. Citizen science projects actively involve citizens in scientific endeavour that generates new knowledge or understanding.

2. Citizen science projects have a genuine science outcome.

3. Both the professional scientists and the citizen scientists benefit from taking part.

4. Citizen scientists may, if they wish, participate in multiple stages of the scientific process.

5. Citizen scientists receive feedback from the project.

6. Citizen science is considered a research approach like any other, with limitations and biases that should be considered and controlled for.

However, unlike traditional research approaches, citizen science provides opportunity for greater public engagement and democratisation of science.

7. Citizen science project data and meta-data are made publicly available and where possible, results are published in an open access format.

8. Citizen scientists are acknowledged in project results and publications.

9. Citizen science programmes are evaluated for their scientific output, data quality, participant experience and wider societal or policy impact.

10. The leaders of the citizen science projects take into consideration legal and ethical issues surrounding copyright, intellectual property, data sharing agreements, confidentiality, attribu-tion, and the environmental impact of any activities.

Guidance documents

Such as the Green Paper - Citizen Science Strategy 2020 for Germany and others.