Dear Mr C.,
On 10 April 1997 you made a complaint to the European Ombudsman on behalf of the association Save Our Shoreline Southport Association (SOS). The complaint concerned alleged failure of the European Commission to enforce Community environmental legislation in the UK, as well as alleged procedural errors in the handling of complaints lodged by the association referred to.
On 30 April 1997 I forwarded the complaint to the President of the European Commission.
On 15 May 1997 you sent me another submission. On 9 July 1997, the association addressed a submission to me.
The Commission sent its opinion on 18 July 1997 and I forwarded it to you with an invitation to make observations if you so wished. I received your observations on 1 October 1997.
On 5 November 1997 you sent me a further submission. On 24 November, 12 and 23 December 1997, and 8, 10 and 26 January 1998, SOS addressed submissions to me. On 8 and 30 January 1998 you sent further submissions to me.
On 18 March 1998, the Commission informed me that it had initiated an investigation into certain matters related to the subject-matter of the complaint. On 16 April 1998, you sent me a further submission. On 4 May 1998, the association addressed a further submission to me. On 23 June 1998, you sent a further submission.
After consideration of the opinion, the observations and the further submissions, I requested a second opinion from the Commission by letter of 13 August 1998. The Commission's reply was received on 26 October 1998, and I forwarded it to you with an invitation to make further observations if you so wished. On the same date you made a further submission, which concerned also another complaint, 813/98/PD. This other complaint raises issues which are linked with the present complaint. On 21 December 1998 I received your further observations on the Commission's second opinion.
On 8 March 1999 I received further material and submissions, forwarded by you on behalf of SOS and another association.
I am writing now to let you know the results of the inquiries that have been made.
I apologise for the length of time that it has taken to deal with your complaint.

THE COMPLAINT

The background to the complaint is in brief the following: On 10 December 1995 the complaining association lodged a complaint with the European Commission. In the complaint to the Commission it was put forward that the UK authorities infringed Community law by building a concrete sea defence wall in Southport, UK. The association considered that the local authority who gave the building permissions in 1993 and 1995 did not respect Community environmental legislation. The association had contacted the central government UK authorities who chose not to review or overturn the local authority's decision to grant building permissions.
In the complaint, the association drew attention to the protected status of the area in which the concrete sea wall was to be constructed, a status which is provided by Directive 92/43 on habitats and Directive 79/409 on wild birds. The association considered that the concrete sea wall would cause direct damage to fauna and flora, as well as indirect damage by facilitating a heavy increase in traffic. The association therefore asked the Commission to assess whether the local authority had acted in breach of its obligations under the above Directives. Art 6 of Directive 92/43 provides in respect of protected areas:

"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, ... , shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authority shall agree to the plan or projet only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the public." (Underlining added; the same provision applies in respect of Directive 79/407, see Article 7 of Directive 92/43).

The association considered that the sea wall would have a significant effect on the area. On the contrary, the local authority had considered that the sea wall was not "likely to have a significant effect" and had therefore not proceeded to conduct a full assessment of the environmental implications. The association contested the local authority's conclusions and put forward that a natural alternative to the concrete sea wall should have been considered. An adequate alternative would, according to the association, be sand dunes. The association also stated their suspicion that a concrete sea wall had deliberately been chosen to make increased traffic possible, an objective which would cause damage to the area's environment. This damage should have been considered in the environmental impact assessment under Directive 85/337.
On 4 July 1996 the Commission asked the UK authorities for comments on the matter. The UK authority who supplied the comments was English Nature, a statutory body under the Department of Environment, Transport and the Regions. The opinion produced by English Nature concluded that the contested sea wall project would not breach Community environmental legislation. In addition to the information from English Nature, the Commission undertook an on-site inspection early September 1996. On 30 September 1996 the Commission concluded that there was no breach of Community environmental law. On 3 February 1997 the association was informed of this decision.
Being dissatisfied with the Commission's conclusions and its handling of the complaint, the association wrote to its local Member of the European Parliament who forwarded the matter to the European Ombudsman. In substance, the association claimed:
- The Commission failed to involve the association in its on-site inspection in early September 1996.
- The Commission failed to inform the association in good time about the results of its investigation.
- The Commission interpreted EC environmental legislation incorrectly. The planning permissions should have been considered illegal because the planning process failed to consider natural sand dune defences in accordance with the conservation objectives and requirements under Directives 92/43 and 85/337.

THE INQUIRY

The Commission's opinion
As regards the first grievance, the Commission stated that the visit by representatives of the Commission was informal and undertaken at the request of the local Council. The Commission's interest in undertaking such a visit was only to establish visually, at first hand, the area of coast and precise location of the project. Given the limited role of the visit, a discussion with the association was not considered appropriate. The Commission added that it had been in receipt of a substantial correspondence and material relating to the potential environmental impact of the project from the association and understood fully its concerns with regard to the proposed development.
As for the second grievance, the Commission acknowledged that the delay was excessive, and informed the Ombudsman that measures had been taken to avoid similar delays in the future.
As concerns the third grievance, the Commission stated that the trigger for applying the safeguards under the above mentioned Directives is the likelihood that a plan or project will have a significant effect on the site concerned. This likelihood is not only to be seen in terms of the plan or project itself, but also in terms of other plans or projects. After considering the submissions from the UK authorities, the Commission had concluded that the project would not breach Community environmental law or policy, since there was no negative assessment of the implications for the site in view of the site's conservation objectives.
The complainant's observations
In substance, the association maintained its complaint.

FURTHER INQUIRIES

After a careful consideration of the Commission's opinion and the association' observations it appeared that there were still outstanding differences between the Commission and the association, in particular as concerns the question whether the Commission investigated the option of allowing sand dunes to develop natural sea defences and as concerns the question why the Commission considered that the project would not have a significant impact on the area concerned in the meaning of Art 6 of Directive 92/43. Accordingly, the Ombudsman asked the Commission to submit an opinion on these issues.
The Commission replied in more detail, stating that after having examined the evidence submitted by the UK authorities, it considered that none of the phases of the sea wall development would have a significant adverse effect on the protected area. It had also been able to verify that the assessment by the UK authorities had been carried out properly. As for the alleged failure to consider alternatives, the Commission repeated that Article 6(3) of Directive 92/43 requires the authorities to look for alternatives only when it has been considered that the proposed project will have a significant impact on the protected area. In this case it was considered that the project did not have significant environmental effects on the area in question, and it had therefore not been a legal requirement to look for alternatives. The Commission added that notwithstanding this lack of a legal obligation, the UK authorities had in fact investigated the option of allowing sand dunes to develop sea defences. They had explained to the Commission that after having examined the matter carefully, they had reached the conclusion that a natural defence could not provide, neither in the short nor in the medium term, the degree of flood protection afforded by hard (concrete) defences.
To substantiate and provide evidence for these conclusions and observations, the Commission provided the Ombudsman with the relevant confidential correspondence between itself and the UK authorities.
The complainant's further observations
In substance, the association maintained its complaint.

THE DECISION

1 Preliminary observation
1.1 In its submissions, the association raised issues which were not put forward in the original complaint, in particular concerns about plans to strengthen and increase the use of costal roads in Southport.
1.2 The Ombudsman shall observe that he has received a complaint from another association concerning the plans to strengthen and increase the use of coastal roads in Southport, complaint 813/98/PD.
The Ombudsman finds that the substance of these new issues is better investigated within the inquiry of this other complaint, for which reason they will not be decided on in the present inquiry.
2 The complainant's participation in the on-site meeting
2.1 The association considered that the Commission should have ensured the association's participation in the on-site meeting, organised by the British authorities.
2.2 The exclusion of a complainant from a meeting intended to negotiate or otherwise discuss the subject matter of the complaint would prima facie be unreasonable in a normal administrative procedure in which the complainant is a party. In addition, beyond the complainant's individual interest in participating in such meetings, the participation can assist to bring about the most relevant information and deliberation and thus ensure a higher confidence in the correctness of the Commission's final conclusions.
However, in the present case, the on-site inspection had very limited objectives, and was furthermore undertaken at an invitation by the UK local authority. Against this background, the Ombudsman does not consider that the Commission acted unreasonably by not ensuring the association's participation. This aspect of the complaint has however led the Ombudsman to formulate further remarks to the attention of the Commission.
3 The failure to inform the complainant in good time about the results of the Commission's investigation
3.1 The association considered that the Commission had failed to inform it in good time about the results of its investigations.
3.2 In 1997 the European Ombudsman made an own initiative inquiry 303/97/PD concerning the Commission's administrative procedures with complaints like the present one. As a result the Commission undertook to keep complainants informed about the dealings with their complaints, in particular about its possible intention to close the file, so that the complainant concerned may comment thereon, see the European Ombudsman's Annual Report for 1997, under chapter 3.7, OJ 1998 C 380/1). However, that undertaking is posterior to the facts of this case; the administration cannot be requested to comply with undertakings which had not been made at the time of the disputed facts. Furthermore, the Commission has acknowledged in this case that the delay in informing the association of its final decision to close the file was excessive. It also informed the Ombudsman that measures had been taken to avoid similar delays in the future. The Ombudsman therefore finds that it is not necessary to conduct further inquiries into this part of the complaint.
4 The Commission's conclusions concerning non-infringement
The central points put forward by the association are, firstly, that the Commission wrongly concluded that the sea wall project was not likely to have a significant effect on the protected site in question, and secondly, that natural alternatives to a concrete sea wall should have been considered. The association refers to Directive 92/43 and Directive 85/337.
4.2 The Commission has acknowledged that alternatives must be considered under Directive 92/43 if the project in question is deemed "likely to have a significant effect". The overall issue therefore turns on the Commission's assessment of whether such "significant effect" was likely or not. The Ombudsman's present inquiry is aimed at investigating whether the Commission acted correctly and diligently in making this assessment.
In cases like the present one, the Commission's assessment is normally limited to verifying whether national authorities have complied with procedural rules, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or misuse of power. Thus, its investigation is not aimed at a decision on whether or not to replace a national discretionary decision.
4.3 The association disputes the correctness and relevance of the facts provided by the UK authorities. The confidential correspondence to which the Ombudsman was given access by the Commission suggests that the submissions from the UK authorities contained relevant and objective criteria. Thus, the present inquiry has not revealed evidence which would indicate that the Commission's reliance on the facts submitted by the national authorities was irrational or unreasonable and thereby constituted an instance of maladministration.
5 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to be no maladministration by the Commission. The Ombudsman therefore closes the case.

FURTHER REMARKS

It appears in this case that a local association had lodged a complaint with the Commission concerning a local building project, alleging that the project infringed Community environmental law. In the course of the examination of the complaint, the Commission services responsible participated in an on-site inspection of the project, at the invitation of the authority concerned. The Ombudsman finds that in such a situation, where the Commission services responsible are on the site because of the complaint, they should take steps to meet also with the complainant.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob SÖDERMAN