THE BACKGROUND TO THE COMPLAINT

1. On 31 January 2008, the complainant, a German citizen resident in Berlin, complained to the European Commission, alleging the following breaches of EU law by Germany:

• incorrect transposition of Directive 2003/35/EC[1] into German law, notably as concerns procedural rights of individuals and associations ('the first aspect');
• infringement of Directive 2001/42/EC[2], by not subjecting the Berlin Steglitz-Zehlendorf zoning plan dated 1958/1960 ('the zoning plan') to an environmental impact assessment; and
• infringement of Directive 85/337/EC[3], by not carrying out an environmental impact assessment before authorising a residential construction project based on the Berlin Steglitz-Zehlendorf zoning plan (the latter two points together, 'the second aspect').

2. On 16 February 2009, the complainant lodged a complaint with the European Ombudsman (complaint 493/2009/VL), alleging that the Commission failed properly to deal with the second aspect of his infringement complaint. Having examined this complaint, the Ombudsman's services contacted the Commission in order to explore the possibility of finding a rapid, informal solution. The Commission provided the Ombudsman with copies of letters it had sent to the complainant on 29 January 2008, and 12 December 2008. It explained that the complainant had written to it on 12 and 21 January 2008. The Commission's reply of 29 January 2008 related to that correspondence. In its letter dated 29 January 2008, the Commission explained that it had mandated a study on the transposition of Directive 2003/35/EC in the Member States and that it was waiting for the results of that study. In a further letter dated 11 March 2008, it repeated this position. The Commission expressed the view that the complainant probably submitted his infringement complaint of 31 January 2008 before receiving its letter dated 29 January 2008.

3. Having examined these letters, the Ombudsman's services drew the Commission's attention to the fact that the complainant's infringement complaint of 31 January 2008 comprised two issues. The Commission's letters dated 29 January 2008 and 11 March 2008 did not appear to address the second of these issues, which had given rise to complaint 493/2009/VL.

4. The Commission thereupon forwarded to the Ombudsman a copy of a letter it sent to the complainant on 17 March 2009. In that letter, the Commission referred explicitly to the complainant's letter dated 31 January 2008, and explained to him that, in light of the results of the study on the transposition of Directive 2003/35/EC in the Member States, it did not consider his infringement complaint to be well-founded.

5. Given that the Commission was of the opinion that it had thus dealt with the complainant's infringement complaint of 31 January 2008, the Ombudsman closed the case on 7 April 2009. He went on to inform the complainant, however, that this decision related only to the Commission's failure to deal with the matter and did not constitute an assessment of the substance of the Commission's answers to the complainant's questions.

6. In a letter dated 2 April 2009, received by the Ombudsman on 8 April 2009, the complainant pointed out that the Commission's letter dated 17 March 2009 did not adequately address the second aspect of his infringement complaint of 31 January 2008. In view of the fact that the complainant was clearly not satisfied with the Commission's reply, the Ombudsman decided to register the complainant's letter dated 2 April as a new complaint (complaint 1009/2009/(VL)KM), and to open an inquiry.

THE SUBJECT MATTER OF THE INQUIRY

7. The complainant alleged that, in violation of its Communication on relations with the complainant in respect of infringements of Community law[4] ('the Communication'), the Commission failed to (i) acknowledge receipt of the second aspect of his infringement complaint of 31 January 2008; (ii) provide him with a registration number for the infringement complaint, and (iii) inform him of the result of its assessment within one year.

8. The complainant claimed that the Commission should handle his infringement complaint in accordance with the Communication.

9. It should be noted that this allegation and claim relate only to the way in which the Commission dealt with the second aspect of the infringement complaint. As regards the first aspect, the complainant initially stated that he accepted that the Commission did not share his view. However, he later submitted complaint 2680/2009/(BEH)(VL)KM which related to the registration of the first aspect of his infringement complaint.

THE INQUIRY

10. On 28 May 2009, the Ombudsman opened an inquiry and asked the Commission for an opinion on the complaint.

11. On 7 September 2009, the Commission submitted its opinion in English, and on 14 September 2009, it provided the German translation of its opinion. It was forwarded to the complainant on 25 September 2009, with a request for the complainant to submit his observations.

12. The complainant submitted his observations on 17 November 2009, and on 12 April 2010.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of failure to acknowledge receipt of, allocate a registration number to, and reply to the second aspect of the complainant's infringement complaint of 31 January 2008, and related claim

Arguments presented to the Ombudsman

13. The complainant argued that the second aspect raised in his letter dated 31 January 2008 was an infringement complaint, and that the Commission should have registered it as such, in accordance with the Communication. Furthermore, it should have informed him of the outcome of its assessment within one year of the complaint's registration.

14. In its opinion, the Commission noted that, from July 2006 onwards, the complainant sent it a number of letters concerning the matters raised in his complaint of 31 January 2008. The letter dated 31 January 2008 was thus not a new infringement complaint, but concerned rather matters to which the Commission had already replied on a number of occasions.

15. In five letters sent to the complainant between 4 August 2006 and 25 October 2007, the Commission stressed that, as argued by the German authorities, Directive 2001/42 applies only to plans or programmes whose first preparatory act was taken after the Directive was transposed, that is, after 21 July 2004. Therefore, the Directive did not apply to the zoning plan dated 1958/1960. It further explained that urban residential construction projects fall under Annex II.10.b of Directive 85/337/EC, and thus require an environmental impact assessment only in cases where they are likely to have significant effects on the environment. Further information on the size, nature and location of the project were, therefore, necessary to determine whether the project might be covered by the Directive.

16. In its letter dated 4 August 2006, the Commission stated that, on the basis of the information available to it at that time, it could not ascertain whether there was a duty to consult the public in relation to the construction project. It added that it could not, therefore, deal with the complainant's letter as a complaint at that point in time.

17. On 20 December 2006, the Commission confirmed its position in relation to the application of Directive 2001/42 to the zoning plan. It added, however, that, on the basis of the information submitted by the complainant, it appeared that an environmental impact assessment would probably be carried out in relation to the construction project at issue. At the time, the Commission took the view that there was no reason to believe that EU law would be breached. However, if the authorities handled the case differently, and if the complainant took the view that the project would have a significant impact on the environment, he was advised that he could consider turning to the Commission again.

18. On 21 June 2007, the Commission replied to further letters from the complainant, in which he informed the Commission that, amongst other things, the building permit had been granted and that no environmental impact assessment appeared to have been carried out. The Commission pointed out that it informed the complainant that he could turn to the Commission if he could show that an environmental impact assessment should have been carried out. It stated that it would be grateful if the complainant could provide further information in this respect. It further pointed out that it had not yet received any clear evidence that EU law had been infringed, which was why no infringement proceedings had been opened until then and, thus, the one-year deadline mentioned by the complainant did not apply. It added that, if the complainant could provide the necessary additional information, it would not hesitate to open such proceedings, provided that it could be sufficiently substantiated that there had been an infringement of the environmental impact assessment directive.

19. On 1 August 2007, the Commission informed the complainant that his further letters did not contain sufficient details to substantiate a clear breach of EU law. It invited the complainant to use the complaint form if he wished to uphold his complaint, and to substantiate it with references to relevant expert opinions, plans, maps, or further documents.

20. On 25 October 2007, the Commission clarified that it was not for the Commission to assist complainants in developing their complaints sufficiently. In fact, if it were to do so, it would be in breach of its duty to cooperate loyally with the Member States. In any event, in cases where a complainant is represented by a lawyer, the Commission's assistance should not be necessary. As regards the content of the complainant's letters dated 18 July, 13 August and 10 October 2007[5], the Commission stated that the complainant did not specify precisely (i) which provision of Directive 85/337 was breached by the fact that no environmental impact assessment had been carried out and (ii) why the environmental impact assessment Directive, dated 1985, should be applicable at all, given that the zoning plan is dated 1958/1960. It further rejected a number of other arguments and documents on which the complainant relied, since it considered that they provided insufficient evidence of a breach of EU law. In the event that the complainant wished to maintain his complaint, the Commission encouraged him to use the complaint form, and to back up his statements with sufficient evidence.

21. In its opinion, the Commission referred to these letters and argued that, despite its extensive correspondence with the complainant, it had not been able to identify an infringement of EU law. The complainant's letter dated 31 January 2008 did not contain any new information, so the Commission did not register it as a complaint. In fact, it considered that, in light of the correspondence which had previously been exchanged, the complainant's allegations in that letter were pointless and repetitive.

22. The Commission pointed out that it nevertheless sent a further reply to the complainant, in which it summarised its analysis of the substance of his arguments. It also informed the complainant that it did not consider Directive 2001/42 to be applicable to the zoning plan dated 1958/60, and informed the complainant that he had not submitted sufficient evidence to show that Directive 85/337 should be applied. The Commission explained that it could not, therefore, pursue his complaint any further and apologised for the late clarification.

23. In his observations, the complainant argued that the Commission had confused two separate aspects raised in his letter dated 31 January 2008. Furthermore, it had not dealt with the second aspect properly, since some of the letters exchanged before 31 January 2008, to which the Commission had referred, were, in fact, related to the first aspect. He further argued that the Commission had simply rejected his complaint without referring to relevant case-law, thus usurping the competence of the Court of Justice of the European Union to interpret EU law.

24. As regards the registration in particular, the complainant considered that the Commission was incorrect to assume that his complaint "fell clearly outside the scope of Community law" within the meaning of point 3 of the Communication, and he did not accept that there were any other valid reasons for not registering his letter as a complaint. In fact, the Commission was not even able to treat his complaint as being obviously "groundless or irrelevant", and thus close it under the simplified procedure mentioned in point 11 of the Communication. The complainant therefore maintained his claim that the Commission should register his complaint, and provide him with a reasoned reply.

The Ombudsman's assessment

25. As the complainant correctly submitted, the Commission has undertaken to comply with a number of procedural requirements when it receives an infringement complaint from a citizen. These requirements are set out in the Communication. One of these requirements is that the Commission should send an acknowledgment of receipt, and a registration number for the complaint submitted.

26. In accordance with point 3 of the Communication, the Commission does not register a complaint which it is unlikely to investigate, that is, when it falls into one of the following categories:

"– it is anonymous, fails to show the address of the sender or shows an incomplete address;

– it fails to refer, explicitly or implicitly, to a Member State to which the measures or practice contrary to Community law may be attributed;

– it denounces the acts or omissions of a private person or body, unless the measure or complaint reveals the involvement of public authorities or alleges their failure to act in response to those acts or omissions. In all cases, the Commission shall verify whether the correspondence discloses behaviour that is contrary to the competition rules (Articles 81 and 82 of the EC Treaty);

– it fails to set out a grievance;

– it sets out a grievance with regard to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant;

– it sets out a grievance which clearly falls outside the scope of Community law."

27. The Commission did not register the second aspect raised in the complainant's letter dated 31 January 2008, even though the complainant used the complaint form provided for that purpose, and marked his letter as an infringement complaint. Nor did it acknowledge receipt of this infringement complaint. This is all the more surprising in view of the fact that, in previous correspondence, the Commission itself drew the complainant's attention to the possibility of submitting a further infringement complaint, and suggested that the complaint form be used for that purpose. The letter dated 31 January 2008 was preceded by what appears to have been fairly extensive correspondence between the Commission and the complainant concerning the issues raised in that letter. However, the Ombudsman takes the view that the Commission cannot rely on this previous exchange of correspondence to justify its decision not to register the second aspect of the letter dated 31 January 2008 as an infringement complaint. The fact that an infringement complaint is submitted after an exchange of correspondence with the Commission is not one of the reasons listed under point 3 of the Communication entitling the Commission not to register it. In any event, it is clearly evident to the Ombudsman that none of the complainant's previous letters concerning the second aspect of his letter dated 31 January 2008 was ever registered as an infringement complaint.

28. In view of the above, the Ombudsman concludes that, by failing to register the second aspect of the complainant's letter dated 31 January 2008 as an infringement complaint, and by failing to acknowledge receipt of this infringement complaint, the Commission failed to comply with the commitments set out in its own Communication. This is an instance of maladministration.

29. However, it is also abundantly clear, both from the correspondence between the Commission and the complainant, and from the opinion submitted by the Commission, that the latter addressed the substance of the relevant infringement complaint. As mentioned above, the Commission decided that the complainant's submissions did not permit it to conclude that EU law had been infringed.

30. The Ombudsman considers that the reasoning on which this conclusion is based is reasonable as regards both Directive 2001/42 and Directive 85/337.

31. As regards Directive 2001/42, Article 13(1) provides that Member States had to transpose the directive before 21 July 2004. According to Article 13(3), the obligation to carry out an environmental impact assessment applies to "the plans and programmes of which the first formal preparatory act is subsequent to the date referred to in paragraph 1", that is, 21 July 2004, and to plans and programmes of which the first formal act occurred prior to the transposition date, but which were only finally adopted two years after that first formal act. None of these conditions appear to apply to the zoning plan dated 1958/60.

32. As regards Directive 85/337, the Commission stated that the duty to carry out an environmental impact assessment depends on the size, the nature, and the likely environmental impact of the project, but that the complainant had not submitted sufficient information to enable the Commission to assess this matter. The Ombudsman considers this appraisal to be justified.

33. The complainant argued that the Commission's analysis of his infringement complaint was flawed. His criticism was based mainly on the fact that, when explaining why it did not think that there had been an infringement of EU law, the Commission did not cite any relevant case-law. In the complainant's view, even if the Commission's view were materially correct, it could not validly interpret EU law without referring to the case-law of the Court of Justice to support its point of view.

34. The Ombudsman does not find this argument convincing. As regards Directive 2001/42, the Commission invoked the provision it considered to be relevant in this context. As regards the Court of Justice, it is indisputably the highest authority as regards the interpretation of EU law, but the Ombudsman considers that this cannot mean that a provision in a directive, or an interpretation thereof, can only be invoked once it has been considered by the Court. Given that little case-law concerning Directive 2001/42 has so far been recorded, the complainant's argument would, in effect, jeopardise the useful effect of this Directive. As regards Directive 85/337, the Commission took the view that not enough information was provided to establish that a duty existed in the present case to proceed to an environmental impact assessment, as foreseen in the Directive. It is difficult to see what case-law could have been relevant in these circumstances.

35. In these circumstances, the Ombudsman considers that it would serve no useful purpose to ask the Commission to undo the procedural error it committed by not registering the second aspect of the complainant's letter dated 31 January 2008 as an infringement complaint, and by not dealing with it accordingly. The Commission has, in fact, already made it clear that it does not consider this infringement complaint to be well-founded.

B. Conclusions

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

The Commission's Communication provides that infringement complaints should be registered, unless one of the reasons set out in point 3 of the Communication applies, and that an acknowledgment of receipt should be sent to the complainant. In the present case, the Commission failed to register the second aspect of the complainant's letter dated 31 January 2008 as an infringement complaint, and also failed to acknowledge receipt of the infringement complaint without establishing that one of the reasons set out in point 3 of the Communication applied. This is an instance of maladministration.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 31 May 2010

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[1] Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17).

[2] Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).

[3] Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

[4] COM(2002) 141 final.

[5] These letters were not submitted to the European Ombudsman.