Dear Mr B.,
On 3 February 1997, you lodged a complaint on behalf of your association, Friends of the Lake District, concerning a decision by the European Commission to close the file on a complaint that you had lodged with the Commission concerning the UK authorities. In substance, you alleged that the Commission failed to give adequate reasons for its finding that the UK authorities had not acted in breach of Directive 85/337.
On 18 April 1997, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 1 July 1997 and I forwarded it to you with an invitation to make observations, if you so wished. I received your observations on 22 August 1997.
I asked the Commission for a second opinion on 12 November 1997. The Commission sent its second opinion on 22 December 1997 and I forwarded it to you with an invitation to make observations, if you so wished. I received your further observations on 16 February 1998.
On 4 August 1998, I asked the Commission for a third opinion. I received the Commission's third opinion on 3 November 1998, and forwarded it to you with an invitation to make further observations, if you so wished. I received your further observations on 31 December 1998.
I am writing now to let you know the results of the inquiries that have been made.
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 subject of a complaint to the Ombudsman.
The Ombudsman's inquiries into this complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT

The background to the complaint is in summary the following: In August 1995, the association lodged a complaint with the European Commission concerning the UK authorities. The complaint concerned a planning permission application for a so-called Rock Characterisation Facility (RCF). The association considered that in dealing with this application, the UK authorities had acted in breach of Directive 85/337 on Environmental Impact Assessment.
The association considered that the RCF project should be considered indissociable from a planned deep repository for the disposal of nuclear waste. Only by taking the two projects as one, could a correct environmental impact assessment be made. The association considered that previous administrative practice of the Commission supported this view.
Moreover, the association considered that the UK authorities had acted in breach of Article 5 of Directive 85/337 by not requiring the applicant company to provide and make public information on possible alternatives to the RCF project.
After having investigated the matter, the Commission informed the association that Directive 85/337 leaves considerable areas for discretion to the Member States in relation to environmental assessments. Information need only be supplied if the Member State considers that the information is relevant to the specific characteristics of a particular project and the environmental features likely to be affected. On the basis of the information available to it, the Commission did not find that the United Kingdom had breached Directive 85/337, and had therefore decided to close the file.
Considering that reply from the Commission unsatisfactory, the association lodged the complaint with the Ombudsman. In the complaint, it was in substance put forward that the Commission failed to give adequate reasoning why the RCF project was dissociable from a possible deep repository for the disposal of nuclear waste and why information on alternative sites was not considered necessary.

THE INQUIRY

The Commission's opinion
In its reply to the Ombudsman, the Commission in substance repeated the reasoning previously given to the complainants.
The complainant's observations
In its observations, the association maintained the complaint.

FURTHER INQUIRIES

After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman considered that the Commission could have replied more adequately to the relevant arguments put forward by the complainant. The Commission was therefore requested to clarify, firstly, why the Commission had considered the RCF project dissociable from the planned nuclear waste deposit project; secondly, on what basis the Commission had concluded that the UK had not acted contrary to Directive 85/337 when refraining from requesting the applicant company to give information on project alternatives.
The Commission's second opinion
In its reply, the Commission repeated that there was no evidence that the United Kingdom had failed to fulfill the obligations of Directive 85/337. The lacking request for publication of alternative project options was accordingly not an infringement on the part of the United Kingdom. As for the dissociability of the project, the building of a nuclear depository would have required a separate planning application; the RCF project could therefore be considered dissociable from any such plans for a nuclear depository.
The complainant's further observations
In its observations, the association maintained the complaint.
After careful consideration of the Commission's second opinion and the further observations from the complainant, the Ombudsman asked the Commission to elaborate further its opinion on why the RCF was a dissociable project and why information on alternative sites was not considered necessary.
The Commission's third opinion
In its third opinion, the Commission first provided further clarification of the issue of dissociability. It stated that:

"Although the RCF is an essential precursor to a depository, the RCF is capable of standing alone as a complete project without the depository being built. For that reason, the cases referred to by [the association] can be distinguished from this case. In particular, the proposed RCF and depository were separate, stand alone projects which were not dependent upon each other for their daily operation. This was not the case in the Wilton Power Station case where the development of a power station and the power transmissions were co-dependant and necessary for the daily operation of the plant. Similarly in the Channel Rail Link, the development of a rail line and a station were necessary for the daily operation of the railway. This was not the situation in this case. The development of the RCF was a stand alone project which would gather information which could be used to assess the suitability of a depository on that site.
In addition, each project would have been subject to a separate planning consent procedure and there is no necessary implication that if planning permission had been given to the RCF then a consent would be given to the depository."

As for the information on project alternatives, the Commission took the view that since the two projects were dissociable, the RCF project fell within Annex II of Directive 85/337. Thus, the matter was considered in relation to Article 4(2) of Directive 85/337, which states that projects listed in Annex II shall be made subject to an assessment where Member States consider that their characteristics so require. The RCF project being dissociable from a possible repository for the disposal of nuclear waste, the Commission considered that information on alternative sites was not needed.
The complainant's observations on the Commission's third opinion
In its observations on the Commission's third opinion, the association maintained in particular the grievance that the Commission had failed to explain itself adequately on the question of alternative sites.

THE DECISION

1. Failure to give adequate reasons
1.1 Principles of good administration require the administration to give adequate reasons for the decisions it takes on submissions that citizens have made to it. In this case, it is apparent that the Commission initially failed to give adequate reasons on the complainant's two concerns, the dissociability of the RCF project and the need for information on alternative sites.
1.2 However, in the course of the inquiry, the Commission has stated the reasons why it considered the RCF project to be dissociable and why it considered that information on alternative sites was not needed. It appears that the Commission in essence considers that the RCF project is a dissociable project as it can stand alone from a possible repository for nuclear waste. As the project can stand alone, the Commission considers that information on alternative sites is not needed. This reasoning does not appear unreasonable.
The Ombudsman therefore concludes that the Commission has rectified its original failure to provide an adequate statement of reason, a failure which amounted to an instance of maladministration.
2. Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to be no more maladministration by the Commission. The Ombudsman has therefore decided to close the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob SÖDERMAN