Dear Mr A.,
On 18 September 1995 you made, jointly with Mr H., a complaint to the European Ombudsman against the European Commission in relation to the widening of the M40 motorway in the United Kingdom. I am writing to let you know the results of the inquiries that have been made following your complaint.
To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.
The Ombudsman's inquiries into the matters raised by your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.
The subject matter of your complaint to the Ombudsman concerns the fulfilment by the Commission of its responsibilities under Articles 155 and 169 of the EC Treaty.
Article 155 of the Treaty establishes the duty of the Commission to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied. Article 169 provides for the main procedure through which the Commission carries out this duty in the case of a failure by a Member State to fulfil its obligations:

If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.

The Commission has invited individuals to submit complaints about infringements of Community law by Member States and has published a standard form for this purpose.(1)

The complaint to the European Commission

From your complaint to the European Ombudsman and the documents annexed thereto, it appears that on 29 November 1990 you made a complaint to the European Commission alleging that the United Kingdom authorities had failed to comply with Directive 85/337/EEC (2) in relation to the widening of the M40 motorway. You alleged that a full and accurate environmental assessment of the proposed development was not carried out in accordance with the requirements of the Directive.
On 6 June 1991 you addressed another letter to the Commission containing further information to be taken into consideration as part of your complaint.
Your complaint made the following specific claims concerning the environmental assessment:

1. the noise level assessment was not carried out in accordance with the United Kingdom Department of Transport Manual of Environmental Appraisal;
2. the noise level assessment was not produced at the public consultation meetings;
3. a charge was made for a copy of the document containing the noise level assessment;
4. no air quality checks were made.

On 26 August 1991, the Commission acknowledged receipt of your complaint and informed you that it had been registered under file number P1378/90. The letter also apologised for the delay in replying to you.
By letter dated 10 September 1992, the Commission informed you that it had concluded that there was no infringement of Directive 85/337/EEC and that this conclusion had been reached after enquiries had been made of the United Kingdom authorities and after examination of the information provided by them, which included the environmental statement and non-technical summary. The letter also stated that the Commission was unable to let you see a copy of the United Kingdom's response to its enquiries as such enquiries are made, and the replies are given, on a confidential basis.

The complaint to the United Kingdom Parliamentary Commissioner for Administration

From your complaint to the European Ombudsman and the documents annexed thereto, it appears that you asked the UK authorities for access to the information that they had put forward to the European Commission in response to the enquiries referred to in the Commission's letter to you of 10 September 1992.
You were concerned that the response from the UK authorities to your request did not represent a full and frank disclosure of all that had been said to the Commission. You therefore complained to the UK Parliamentary Commissioner for Administration, through your MP, Mr David Lidington.
In June 1995, the Parliamentary Commissioner, whilst critical of certain aspects of the way in which your request for access to information had been dealt with by the UK authorities, concluded that you were mistaken in thinking that the information given to you by the UK authorities represented a less than full and frank picture of the exchanges which had taken place between the European Commission and the United Kingdom government.

The complaint to the European Ombudsman

Following the report from the UK Parliamentary Commissioner, you complained to the European Ombudsman on 18 September 1995.
Your complaint claimed that:

1. you had submitted substantial evidence to the European Commission which proved beyond doubt that Directive 85/337/EEC had not been followed and correctly applied by the United Kingdom authorities;
2. the Commission had failed to make a full diligent and searching inquiry into the circumstances surrounding your complaint that the UK authorities' environmental assessment of the M40 widening project had been faulty but had accepted at face value and without demur the United Kingdom government's submission made in response to the complaint.

On 18 December 1995, I informed the President of the Commission of your complaint and asked him to submit a comment on it before 15 March 1996.

The Commission's initial response

On 19 March 1996, the Commission sent the Ombudsman the following comments:

"The subject matter of the complaint involves a decision of the Commission with regard to proceedings under Article 169. The Court of Justice has consistently held that:

"...it is clear from the scheme of Article 169 of the EEC Treaty that the Commission has no obligation to commence proceedings under that article; it has a discretionary power precluding the right of individuals to require it to adopt a particular position and to bring an action for annulment against its refusal to take action."

In deciding not to open infringement proceedings in the present case, the Commission exercised its discretion as fully recognised by the Court. Moreover, it has proceeded vis-à-vis the complainants in accordance with the principles of good administrative behaviour by duly registering the complaints and keeping the complainants informed on the treatment of the case. It should be added that complainants in a 169 EC procedure do not possess any specific procedural rights as could be the case in other sectors like competition or anti-dumping. The Commission therefore sees no grounds for any complaint of maladministration in such a case."

The Commission also asked the Ombudsman to take a position on the admissibility of the complaint, in view of the requirement of Article 2 (4) of the Statute of the Ombudsman that a complaint must be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint.
On 26 March 1996 I forwarded these comments to you with an invitation to submit observations. You replied on 8 April 1996 giving reasons why you believed that your complaint had been made within the two-year time limit.

The further inquiries

After careful examination of the Commission's comments, it appeared that the main questions raised by the complaint to the Ombudsman remained unanswered.
To avoid fruitless debate on the two-year time limit, I decided to conduct further inquiries on my own initiative, in accordance with Article 138e of the Treaty and Article 3 (1) of the Statute of the Ombudsman.
On 21 May 1996, I asked the President of the European Commission to let me know:

1. what steps the Commission took to deal with the complaint registered under file number P1378/90;
2. what material formed the basis of the Commission's conclusion that there had been no infringement of Directive 85/337/EEC;
3. what correspondence was exchanged between the Commission and the UK authorities regarding the case.

A reply was requested by 14 June 1996. On that date, the Commission asked for an extension until the end of July. On 19 June 1996 I replied granting an extension until 19 July 1996. The reply from the Commission was sent on 18 July 1996.

The Commission's reply

The reply from the Commission included information about

1. its interpretation of Directive 85/337/EEC;
2. its view of the principles on which it should act in cases of this kind;
3. an account of how it dealt with the complaint.

As regards the interpretation of the Directive, the Commission stated that:

Article 5 of the Directive provides that the information required to be supplied is limited, as it need be supplied only in as much as:

(i) the Member State considers that the information is relevant to a given stage of the consent procedure,

(ii) the Member State considers that the information is relevant to the specific characteristics of the particular project and of the environmental features likely to be affected,

(ii) the Member State considers that the developer may reasonably be required to compile the information having regard, inter alia, to current knowledge and methods of assessment.

As regards the principles on which it should act in cases of this kind, the Commission stated that:

"In reviewing a complaint, such as that made by Messrs A. and H., about the extent of information provided in relation to a particular Annex II project, therefore, the Commission must consider the extent to which it can review the exercise of discretion by the Member State in deciding on the extent of the information required to be supplied. Although there is little jurisprudence from the Court of Justice regarding the judicial review of the exercise of discretion, assistance is gained from Case 42/84 Remia, in which the Court recognised that its grounds for review of a Commission decision based on complex economic appraisal should be limited. It stated that it would limit its review to three main categories:

(i) failure of procedural rules

(ii) facts on which the decision was taken were inaccurately stated,

(iii) manifest error of appraisal or misuse of powers

The Commission considers these criteria to be appropriate for reviewing the exercise of discretion by Member States, and on which to decide whether or not to start proceedings against a Member State under Article 169, which could result in an action against the Member State in the Court of Justice concerning that Member State's exercise of discretion based on a complex appraisal such as environmental assessment under Directive 85/337/EEC."

As regards the way in which it had dealt with the complaint, the Commission stated that it had written to the UK authorities on 13 September 1991, notifying them that a complaint had been received concerning the M40 project and asking for a copy of the environmental statement and the non-technical summary produced in relation to the project together with the assessment made of that information. The UK supplied, in a letter of 17 October 1991, a copy of the environmental statement for the project, the non-technical summary, and the seven-page reasoned decision granting development consent for the project.
The Commission further stated that it considered the information supplied to it by the complainants and by the UK authorities. It formed the view that this information:

"(a) disclosed no failure on the part of the United Kingdom to follow the procedural rules of Directive 85/337/EEC,

(b) disclosed no evidence that the facts on which the decision of the United Kingdom to grant development consent for the M40 project was taken were inaccurately stated,

(c) disclosed no evidence that the United Kingdom had committed a manifest error of appraisal or had misused its powers.

The Commission therefore considered that the information before it contained no grounds on which to conclude that the United Kingdom exercised its discretion under Directive 85/337/EEC in a manner contrary to the requirements of that Directive. There was therefore no basis on which the Commission could have correctly decided to bring a formal action against the United Kingdom under Article 169 of the Treaty."

The complainant's observations

The Commission's comments of 18 July 1996 were forwarded to you on 22 July 1996. You sent observations on 1 August 1996 in which you repeated both your allegation that the UK authorities had failed to carry out procedures laid down by Directive 85/337/EEC and the four specific claims, concerning noise level assessments and the failure to carry out air pollution checks, that you had made in your complaint to the Commission.

Examination of the file

After careful consideration of the Commission's reply of 18 July 1996 and the observations made by the complainant, I decided that it was necessary to examine the documents held by the Commission relating to the complaint in order to satisfy myself that the decision to close the file had been made in conformity with general principles of good administrative behaviour.
The examination was carried out on 5 November 1996.

Decision of the European Ombudsman

1. The Commission's analysis of the Directive
1.1 Article 3 of Directive 85/337/EEC provides that an environmental impact assessment will identify, describe and assess the effects of a project on various listed factors, including human beings and the air.
1.2 Article 5 requires Member States to adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex III. Annex III requires, amongst other things, estimates of air pollution and noise.
1.3 The obligation imposed on Member States by Article 5 of the Directive is qualified. Information only has to be provided inasmuch as a Member State considers:

(a) that it is relevant to:

a given stage of the consent procedure and

the specific characteristics of a particular project and of the environmental features likely to be affected;

and

(b) that the developer may reasonably be required to compile the information having regard, inter alia, to current knowledge and methods of assessment.

1.4 Article 5 therefore requires an exercise of judgement by the Member State as to what information is to be provided and, in that sense, leaves the extent of the information required to be supplied to the discretion of the Member State.
1.5 The requirements of Article 3 of the Directive are expressed to be "in accordance with the Articles 4 to 11." Given that Annex III (referred to by Article 5) is more detailed than Article 3, it does not appear that the latter was intended to impose obligations on Member States independent of those under Article 5. It must be recalled, however, that the Court of Justice is the highest authority on questions of Community law.
1.6 The Ombudsman's inquiries have not, therefore, revealed any instance of maladministration by the Commission in its interpretation of the information requirements of the Directive.
2. The Commission's analysis of its own role
2.1 Article 169 of the Treaty does not lay down procedures or criteria to be used by the Commission in the period preceding the issuing of a reasoned opinion to a Member State. Furthermore, the jurisprudence of the Court of Justice provides only limited guidance. The Commission itself therefore must decide what procedures and criteria to adopt in order to discharge its responsibilities under Article 169 in the process that may lead to the issuing of a reasoned opinion.
2.2 From its reply to the Ombudsman dated 18 July 1996 it appears that, in examining complaints of the kind made by Messrs A. and H. against the United Kingdom, the Commission has decided to limit its review to verifying whether procedural rules have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers. In explaining its decision thus to limit its review, the Commission has drawn by analogy on the principles used by the Court of Justice in Remia v Commission(3), to review Commission decisions based on complex economic appraisal.
2.3 The Commission's analysis of its role appears reasonable given, in particular, the evidential burden that the Commission must discharge if it brings a Member State before the Court of Justice. The Ombudsman's inquiries have not, therefore, revealed any instance of maladministration by the Commission in its approach to the discharge of its responsibilities under Articles 155 and 169 in cases involving the exercise of judgement by a Member State as regards the information to be supplied under Directive 85/337/EEC.
3. The Commission's investigation of the complaint by Messrs A. and H.
3.1 In their complaint to the Commission, Messrs A. and H. made four specific claims. Two of these claims, concerning air quality and noise level assessments, contest the adequacy of the information contained in the environmental statement. As noted in paragraph 1.4 above, the extent of the information to be supplied is a matter within the judgement of the Member State.
3.2 The other two claims concern the availability of information to the public. The Directive's requirements in this respect are contained in Article 6, which also leaves to the judgement of Member States the detailed arrangements for public information and consultation.
3.3 It therefore appears that all four claims made by the complainants raised issues within the area of judgement left by the Directive to Member States. On the basis of the Commission's analysis of its own role, it therefore appears that there would have been no basis for further action under Article 169, even assuming that the complainants were right in all four claims that they made. Therefore a detailed investigation of the claims was unnecessary and the Commission was entitled to limit its inquiry to the documents which it requested from the UK authorities and to base its decision to close the file on those documents.
3.4 The Ombudsman's inquiries have not, therefore, revealed any instance of maladministration by the Commission in the application of Community law to the facts of the case.
4. Undue delay
4.1 The original complaint to the Commission was made on 29 November 1990. Receipt of the complaint was acknowledged on 26 August 1991. The Commission has already apologised for this delay, which was clearly too long, and no further remark by the Ombudsman seems necessary.
4.2 From the examination of the documents, it is clear that there was delay of over nine months between the date when the Commission decided to close the file and the communication of this decision to the complainants. Since the date of the decision was not specified in the letter to the complainants, they were unaware of the delay.
4.3 As a matter of good administrative practice, the Commission should always communicate a decision to close a file to the complainant reasonably promptly. There appears to have been no justification for the delay in this case. However, there is no evidence that the delay was the result of anything other than an administrative failure.

Further remarks by the Ombudsman

The complaints to the European Commission, to the UK Parliamentary Commissioner for Administration and to the European Ombudsman were all based on the assumption that, if their four specific claims concerning the environmental assessment of the M40 project were correct, then the UK authorities had necessarily failed to comply with the requirements of Directive 85/337/EEC. The complainants therefore also assumed that the Commission had a duty to investigate their four claims in detail.
These assumptions - though understandable - were mistaken, for the reasons given above.
The Commission's letter informing the complainants of its decision, as well as being unduly delayed, gave no reasons for the conclusion that there was no infringement of the Directive. The Ombudsman has already noted in his decision of 29 October 1996 on the complaints against the European Commission concerning the Newbury Bypass (206/27.10.95/HS/UK and others) that an administrative process of this kind normally concludes with a reasoned decision communicated to those who have participated in the process.
Had reasons been given, the complainants would have learnt that their assumptions were mistaken in 1992, or earlier, rather than in 1996. Because they did not know the reason why their complaint had been rejected, the complainants directed their energies in the matter - understandably and reasonably - first to finding out what the United Kingdom authorities had said to the Commission and then, following the investigation by the UK Parliamentary Commissioner for Administration, to the way their complaint had been dealt with by the Commission. In the event, both these lines of enquiry were bound to be fruitless. It would not be surprising if the complainants were left with a sense of grievance as a result of their participation in the Article 169 procedure.
The further remarks of the Ombudsman in the present case will be taken into account in an own-initiative inquiry into the procedural position of complainants to the Commission in the Article 169 procedure.
Yours sincerely,
Jacob SÖDERMAN

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(1) Official Journal, 1989 C 26/6.

(2) Official Journal, 1985 L175/40.

(3) Case 42/84, [1985] ECR 2545, para. 34