The background to the complaint

1. On 17 February 2010, the complainant submitted to the European Commission an infringement complaint against the UK authorities. The complainant pointed out that the UK authorities failed to comply with the provisions of the Environmental Impact Assessment ('EIA') Directive 85/337/EEC[1] ('EIA Directive') concerning a development project on a former hazardous chemical waste landfill at the Glebelands, Newport, Wales. The project includes the construction of a school, which is already operational and part of a residential housing development. According to the complainant, the UK authorities failed to undertake an EIA screening exercise in order to assess the need for an EIA for the development. This was in breach of the provisions of the EU legislation.

2. On 12 March 2010, the Commission acknowledged receipt of the complainant's infringement complaint, which was registered under reference number CHAP (2010) 530. It further stated that it did not intend to raise the complaint with the UK authorities. The Commission gave the complainant one month to submit his observations.

3. On 23 March, 8 April and 21 May 2010, the complainant provided the Commission with additional information in support of his infringement complaint.

4. The Commission replied by letter dated 23 June 2010. It informed the complainant that it intended to close his infringement complaint.

5. On 22 July, 3 September and 30 September 2010, the complainant reacted to the Commission's intention to close the infringement file. He reiterated the allegations he had made against the UK authorities.

6. By letter dated 30 September 2010, the Commission informed the complainant that it maintained its previous decision to close the infringement file.

7. The complainant again approached the Commission on the matter on 14 October 2011.

8. On 11 November 2010, the complainant turned to the Ombudsman.

The subject matter of the inquiry

9. In his complaint to the Ombudsman, the complainant submitted the following allegation and claim.

Allegation

The Commission failed properly to reason its decision to close his infringement complaint against the UK authorities.

Claim

The Commission should re-open his infringement complaint and provide a substantive response to his concerns.

The inquiry

10. On 7 December 2010, the Ombudsman opened an inquiry and asked the Commission to provide an opinion by 31 March 2011.

11. On 25 January and 21 February 2011, the complainant forwarded to the Ombudsman's services additional information and documents.

12. Upon receipt of the complainant's documents, the Commission's opinion dated 4 April 2011 was forwarded to the complainant with an invitation to submit observations. In that opinion, the Commission mentioned that on 30 March 2011, it sent a letter to the UK authorities requesting clarifications in relation to the complainant's concerns as set out in his infringement complaint.

13. The complainant sent his observations on the Commission's opinion on 26 April 2011. Subsequently, he forwarded to the Ombudsman a copy of the Commission's letter dated 8 July 2011, in which the latter informed him of its intention to close his infringement complaint. It invited the complainant to submit his observations within a one-month deadline. On 8 August 2011, the complainant replied to the Commission's above invitation and sent his observations, a copy of which he also forwarded to the Ombudsman's services.

14. On 14 September 2011, the Commission informed the Ombudsman's services that it intended to supplement its initial opinion on the complaint once it had assessed the complainant's new submissions of 8 August 2011.

15. On 11 November 2011, the complainant sent a further letter to the Commission concerning the subject matter of his complaint.

16. On 18 November 2011, the Commission sent the Ombudsman its supplementary opinion on the complaint, which was forwarded to the complainant with an invitation to submit observations.

17. On 5 January 2012, the complainant sent his observations on the Commission's supplementary opinion.

18. On 7 February 2012, the Commission informed the complainant and the Ombudsman that it had closed the complainant's infringement complaint against the UK authorities.

The Ombudsman's analysis and conclusions

A. Alleged failure properly to reason the decision to close the infringement file

Arguments presented to the Ombudsman[2]

19. In his complaint to the Ombudsman, the complainant argued that the Commission failed properly to consider all the supporting evidence before deciding not to follow up his infringement case with the UK authorities.

20. In this respect, the complainant stated that in 2000 the UK authorities 'in principle' granted an outline planning permission for developing the Glebelands project (which included the building of a school and a residential housing site), despite public concerns about the lack of detailed site investigations and public consultation. According to the complainant, the initial planning permission was subject to planning conditions and reserved matters, which have led to an multi-stage development consent involving several planning applications. In the case of a multi-stage development consent, the EIA screening exercise should be undertaken prior to the granting of an outline planning permission, prior to the approval of reserved matters, or prior to the subsequent removal or variation of planning conditions. Moreover, the project should have also been screened when the planning permission was amended at two significant and subsequent points in time. In this respect, the complainant stated that the initial planning decision notice issued in 2000 was re-issued in June 2002. Furthermore, in November 2008, the UK authorities made another change to the initial planning permission by allowing the original single-phase project to become a two-phase project (the school site and the residential housing site). However, the UK authorities failed to carry out an EIA screening exercise at any of these stages.

21. The complainant also pointed out that the initial planning permission was granted for the project as a whole. Accordingly, the remediation strategy was approved for the development site in its entirety. However, in 2008, when the local authorities agreed to the division of the project into two phases (the school site and the residential housing site), the Lotery's Reen, which crosses the development site and empties into River Usk, was not included in either of the sites. The complainant pointed out that the Lotery's Reen represents the "key contamination pathway". In his view, it was not possible for the originally approved project to be applied to the school site independently of the residential housing site without leaving the River Usk Special Area of Conservation (hereinafter 'SAC') vulnerable to pollution.

22. In its opinion, the Commission first pointed out that it had not yet closed the complainant's infringement file. In this respect, it explained that, on 12 March 2010, it had suggested closing the file, given that "it could see little to be gained from investigating with the UK authorities a planning permission almost 10 years old for a development now built and operational". It gave the complainant a month to submit his comments. In a subsequent telephone conversation with the complainant, the Commission clarified that "there was little interest to open infringement proceedings against the UK authorities with regard to a decision taken in 2000, unless the complainant could supply evidence of possible pollution from the site that required action in 2010". Given that the complainant failed to provide such evidence, by letter dated 30 September 2010, the Commission informed him of its intention to close the infringement case. Subsequently, the complainant reacted by letters dated 30 September and 14 October 2010. The Commission emphasised that it could not assess and reply to this further correspondence before the complainant submitted the present complaint to the Ombudsman. Thus, his infringement file remained open throughout this period.

23. As regards the substance of the complainant's allegations against the UK authorities, the Commission emphasised that it had provided the complainant with a complete and reasoned reply. In this respect, it stated that the EIA Directive[3] requires Member States to carry out an EIA for projects likely to have a significant impact on the environment before the development consent is granted. The EIA is mandatory for the projects listed in Annex I of the EIA Directive. As regards projects listed in Annex II of the EIA Directive, the Member States have to establish the need for an EIA on a case-by-case basis or by setting thresholds and criteria. However, the Member States' discretion in this respect must be exercised within the limits and the scope of the EIA Directive.

24. In relation to the complainant's infringement case, although neither the residential nor the school developments are specifically listed in either annex of the EIA Directive, the Commission considered that such developments generally fall under Annex II of the EIA Directive (for which the EIA is not mandatory but has to be assessed on a case-by-case basis). The Commission further stated that it appeared that no formal screening exercise had been carried out as regards the Glebelands Development, which could be made available to the complainant in writing.

25. The Commission further explained that it was aware of considerable failures by the UK properly to implement the EIA Directive in the last 10 years. As a result, it brought before the Court of Justice a number of infringements against the UK[4]. The Court upheld the Commission's position and clarified that: i) if a multi-stage development consent involving outline and reserved matters is given, the national authorities have to consider the need for an EIA at each stage; and ii) the national authorities should record and make available to the public a record of screening exercises for developments included in Annex II of the EIA Directive. The UK national legislation was subsequently amended in order to comply with the Court's above ruling.

26. In the Commission's view, the above infringement cases against the UK authorities clarified the national implementing obligations and also explained why "it would be disproportionate for the Commission to go over the same grounds again with the complainant's infringement file". Moreover, the Commission was not convinced that the UK authorities should have undertaken the EIA screening exercises in 2002 and 2008, when the original planning permission in question was reviewed. In the Commission's view, neither of these decisions would appear clearly to trigger the need for new development consent and thus a re-assessment of the need for the EIA, as the complainant argued. The UK authorities could have nevertheless re-assessed the need for an EIA in 2003, when the reserved matters had been decided (and not in 2002 and 2008, as the complainant argued). However, at that time, that is to say, in 2003, the national implementing legislation was generally not in line with the provisions of the EIA Directive[5], while now it is.

27. The Commission further outlined that, without evidence of actual pollution from the site of nearby waters or harm to the adjacent Natura 2000 site[6], "there is no live issue that the Commission would open infringement proceedings on". In this respect, the main development, namely, the school, is built and operational. Thus, the failure to carry out a proper screening exercise, even if proven, would be without a viable remedy unless it can be shown that some action should be taken potentially to remedy an existing pollution source.

28. On the basis of the information at its disposal, the Commission noted that the site appeared to have been restored before the school had been built and that the remediation plan was presented to the planning authority before the consent had been granted. Moreover, in his correspondence, the complainant submitted generalised comments criticising the remediation process without setting out substantive concerns that would warrant raising the issue with the UK authorities. The Commission presented the above views to the complainant, in its letters dated 23 June and 30 September 2010. At that point, the Commission's intention was to close the case. However, in his letter dated 30 September 2010[7], the complainant raised for the first time "a potential issue of concern that the remediation process failed to tackle a pollution pathway, the Lotery's Reen". Thus, the Commission asked the complainant for further information about the contamination levels within the Lotery's Reen. He replied by letter dated 14 February 2011, in which he stated that the planning permission identified the Lotery's Ren as a significant pollution pathway which should be closed off and put into a new concrete bed to avoid pollution before the remediation works were completed. According to him, this was not done and pollution from the adjacent former landfill site was thus allowed to escape into the Reen and thereby into the River Usk SAC. The complainant also provided evidence of one contamination incident where pollution appeared to have entered the Reen during the remediation of the site. Furthermore, the complainant put forward that regular monitoring of the site, which was required by the authorities, had not been carried out.

29. In light of the above, the Commission asked the UK authorities to clarify the complainant's above arguments through the EU pilot mechanism. However, the Commission does not consider it useful to pursue the complainant's main allegation relating to the failure to carry out a proper screening of the Glebelands Development before the planning permission was granted in 2000.

30. The Commission concluded that it would wait for the response from the UK authorities as regards Lotery's Reen and take a further decision on the case upon receiving this reply.

31. In his further letters and his observations, the complainant first clarified "why he turned to the Ombudsman for help by raising a complaint against the Commission". In this respect, he stated that, unlike previous letters from the Commission, the letter dated 30 September 2010 did not invite him to submit further comments. Thus, he had no reason to believe that his infringement file would remain open.

32. The complainant declared himself pleased with the Commission's initiative to contact the UK authorities as regards the contamination of Lotery's Reen. However, he pointed out that there were important outstanding issues, which were not taken into account and which raised concerns such as the following: a) the UK authorities failed to carry out a proper screening of the proposed development before outline planning permission was granted in 2000; b) the UK authorities side-stepped many opportunities (particularly in 2002 and 2008) to regularise EIA matters pertaining to Glebelands Development and failed to ensure that the remediation plan was fully completed prior to commencing the works on site; c) the likely environmental effects of the Glebelands Development have still not been established and the land remediation strategy has not been fully implemented.

33. The complainant acknowledged the Commission's efforts to promote compliance with the EIA Directive. However, he is not convinced that the UK authorities have fully embraced the provisions of the above Directive. In this respect, the prohibitive costs of legal action in the UK and the limited time frames within which a public body’s action or planning decision can be challenged through the Courts, permits UK authorities to apply "dubious interpretations of the law".

34. In the complainant's view, the Commission should bring infringement proceedings against the UK authorities, given that the Glebelands Development as a whole has not been completed and even though the school, which comprises one part of the development, is now in use.

35. In its further letter dated 8 July 2011, the Commission stated that it had requested the UK authorities to provide clarifications in relation to possible contamination of the River Usk SAC. The Commission asked the UK authorities about the complainant's following arguments: a) the local planning authority had promised that the environmental quality of the site would be regularly monitored, in particular with regard to the water quality in the Reen and the adjacent River Usk SAC, but this promise was not fulfilled; b) the Lotery's Reen was not redirected through a fully concrete-lined channel and continues to feed into the River Usk SAC with contaminants released from the excavation works on the site; and c) whether assessments of the impacts of the works on the project site on the River Usk SAC have been undertaken.

36. The Commission took the view that the UK authorities' reply[8] to the above questions was satisfactory. In this respect, the Commission noted that, on the basis of the information provided by the UK authorities, the site and the water quality of the Lotery's Reen and the River Usk SAC have been monitored. The results provided would appear to indicate that there are no issues of substantive concern. The UK authorities admitted that the Reen was not indeed re-directed into a fully concrete-lined channel, but that this would remain a condition of the planning permission if and when the second phase of the development begins as this would be the phase that would impact on the Reen. Furthermore, an appropriate assessment of the potential effects of the development on the adjacent SAC was carried out.

37. The Commission reiterated that it will not launch fresh infringement proceedings as regards the UK local authorities' failure to record their decision not to require an EIA, given that this matter has been remedied in national law since 2000. Finally, the Commission stated that it had referred the matter of the prohibitive costs of judicial review in the UK to the Court of Justice in Luxembourg as a breach of the EIA Directive[9].

38. The Commission concluded that it cannot identify a breach of European environmental legislation or indeed evidence that the authorities failed to carry out adequate assessments or monitoring of the site before or during the period when construction works were completed. Thus, the Commission proposed to close the case, but, before doing so, it invited the complainant to submit his observations on the matter.

39. In response to the Commission's above invitation, the complainant submitted very detailed comments on 8 August 2011, in which he reiterated the allegations he had made against the UK authorities.

40. In its supplementary opinion, which was drafted following the above-mentioned complainant's comments and then sent to the Ombudsman, the Commission took the view that there were no grounds further to pursue the complainant's infringement case. The Commission emphasised that the aim of its infringement powers is to rectify ongoing breaches of EU law and not to punish Member States for possible past breaches, even where these breaches have been clearly proven and in particular where the underlying causes of the past breaches have been addressed.

41. The Commission further pointed out that the potential breaches of the UK national planning process (such as the verification of the remediation strategy for the site) referred to by the complainant were outside the Commission's jurisdiction, unless it could be shown that, as a result, there has been a breach of one of the EU Directives. On the basis of the information provided, the Commission concluded that there was no evidence of pollution or potential impacts on River Usk SAC, as a result of the works carried out, which could result in a breach of EU law (e.g., on groundwater pollution, Habitats Directive).

42. In light of the foregoing, the Commission concluded that it cannot bring infringement proceedings against a Member State on the basis of an alleged potential breach without substantive evidence. It thus decided to close the complainant's infringement file.

43. In his very detailed observations on the Commission's supplementary opinion, the complainant first pointed out that the Commission's discretionary power in infringement proceedings does not extend to environmental matters in general or EIA in particular, because the harm arising from such infringements may not become apparent for years, or even decades. In his view, where the Commission chooses to use its discretionary power in deciding whether or not to initiate infringement proceedings, it should make it clear to the complainant that such discretion has been invoked. The Commission failed to do so as regards the case brought forward by the complainant. Thus, the Ombudsman should 'set aside the availability of such discretionary powers to the Commission', and focus on the matter of whether the Commission has properly reasoned its decision not to follow up on his infringement complaint against the UK authorities.

44. In the complainant’s view, if the UK authorities had made substantive improvements in the legal regime of the EIA Directive since 2000, several records relating to EIA screening exercises carried out for the project would now exist.

45. Moreover, pollution was not relevant to the risk management aims of the EIA process. The EIA Directive is about processes for preventing pollution. The Commission failed to explain which regulation or policy prevents it from following up on possible EIA infringements committed by a Member State, except in cases where there is evidence of pollution. In any event, no environmental monitoring program for the project in question was set up. Thus, there is no possibility of such incidents of pollution being reported. Nor is it possible to conclude that the site is not causing pollution. The complainant further argued that there was no appropriate assessment of the potential effects of the development which was carried out on the adjacent River Usk SAC. Moreover, the failure to re-direct Lotery's Reen into a fully concrete-lined channel, as foreseen by the remediation strategy, means that a contamination pathway exists between the landfill and Lotery's Reen. Lotery's Reen empties directly into the River Usk SAC. Thus, the Commission cannot rely on the UK authorities' statements, which are not supported by appropriate evidence.

The Ombudsman's assessment

46. At the outset, the Ombudsman recalls that, according to the case law of the Union courts, the Commission has a wide margin of discretion to decide whether or not to bring an action against a Member State for an alleged infringement of EU law[10]. This discretion is not limited to certain areas of EU law nor is its exercise conditional upon a prior statement from the Commission to this effect in a given infringement complaint, as the complainant appears to believe.

47. The scope of the Ombudsman's mandate in relation to such complaints, however, is limited to examining whether the Commission acted with diligence in relation to the infringement complaint submitted to it[11]. In this respect, the Ombudsman's review tries to ascertain whether the Commission: a) complied with the rules and procedures established in the 2002 Communication on relations with the complainant in respect of infringements of Community law ('the 2002 Communication')[12], which aims to establish a clear and transparent framework for the handling of infringement complaints; and b) provided an adequate statement of reasons when responding to infringement complaints submitted to it.

48. The Ombudsman notes that the complainant's initial allegation concerned the procedural aspects relating to the handling of his infringement complaint by the Commission. The Commission clarified that, when the complainant initially turned to the Ombudsman, it had not yet reached its decision on his infringement complaint. In the course of the Ombudsman's inquiry, the Commission asked the UK authorities to provide clarifications in relation to one aspect of the above infringement complaint. The UK authorities' reply to the Commission's above request was sent to the complainant and he was invited to submit his observations on the matter. After assessing the UK authorities' reply and the complainant's observations, the Commission decided to close the complainant's infringement case on 7 February 2012.

49. In light of the above developments, the Ombudsman considers that the Commission complied with the procedural requirements laid down in its 2002 Communication. First, pursuant to Article 7 of the Communication, it informed the complainant of the steps taken in response to his complaint. Second, after the complainant submitted the complaint in February 2010, the Commission communicated to him in June 2010, its intention to close the case. However, in light of the further information submitted by the complainant, the Commission made contact with the UK authorities on 30 March 2011 and decided to close the case on 7 February 2012. This shows that, although the Commission did not reach the above decision within one year from the date of the registration of the complaint, as required by the 2002 Communication, its delay was justified by the steps taken to clarify the facts of the case in response to the additional information provided by the complainant.

50. As regards the Commission's duty to provide a proper statement of reasons, the Ombudsman understands that the complainant's grievances are directed against the Commission's decision of 7 February 2012 to close his infringement complaint. Thus, the Ombudsman's review will concern this decision only.

51. He first recalls that, in deciding whether to bring infringement proceedings against a Member State and thus to exercise its discretionary power, the Commission must carefully strike a balance between all interests at stake. The EU interests are, pursuant to the well-established case law[13], to ensure the full and proper application of EU law by the Member States. This means that, upon finding that there has been an infringement, the Commission needs to decide, within its margin of discretion, whether it would be appropriate to initiate infringement proceedings where the objective of uniform observance of EU law could be achieved otherwise or has already been achieved.

52. The complainant argued, in substance, that the Commission should follow the infringement proceedings for the following reasons: (i) there was a persistent breach of the EIA Directive because the national authorities failed to carry out an EIA screening exercise at any time during the multi-stage development consent; and ii) there were failures resulting from the national planning process, which may have led to the possible pollution of the site. The complainant also expressed concerns relating to the prohibitive costs of judicial review in the UK as regards breaches of the EIA Directive.

53. With regard to argument above i), the Ombudsman understands that the Commission and the complainant agree that there was a breach of the EIA Directive because the UK authorities did not undertake an EIA screening exercise for the project under scrutiny at the time when they granted the outline permission for the project in 2000. The complainant and the Commission do not appear, however, to agree on the period of time and the subsequent stage of the project when this breach could have been remedied (point 26 above). Nevertheless, the Commission does not consider that it would be useful, overall, to pursue this aspect of the complainant's complaint any further, given that: a) the national legislation has been amended in the meantime in order to comply with the provisions of the EIA Directive; and b) such proceedings would not give rise to any practical results as regards the Glebelands Development, given that 10 years have since passed and the project has already been implemented, at least partially.

54. The Ombudsman is of the view that, in principle, this is a satisfactory justification for the Commission's decision to exercise its discretion and not pursue an infringement complaint submitted to it. As the Commission rightly pointed out, its discretion under Article 258 TFEU has to be understood as a means of rectifying breaches of EU law and not as a means of punishing Member States for breaches. In the present case, the failure to undertake an EIA screening exercise by the UK authorities has already been addressed in the framework of a number of judicial procedures and the national legislation has been amended accordingly. It was therefore reasonable for the Commission to refrain from pursuing the UK for an infringement of EU law which took place at a certain point in time, taking into account the fact that the UK authorities subsequently amended the national legislation. A new infringement procedure concerning the same matter would be void of purpose and contrary to the "effet utile" of EU law.

55. Furthermore, the Commission emphasised that, even if proven, the alleged infringement, whereby the Member State failed to carry out a proper screening exercise would be without a viable remedy unless it can be shown that some action should be taken potentially to remedy an existing source of pollution. For this reason, the Commission requested the UK authorities to submit further information on the possible pollution of River Usk SAC. In the Ombudsman's view, this action constituted a reasonable response to the complainant's second argument.

56. After the Commission had received further information from the UK authorities concerning the monitoring of the works carried out on the site, it closed the case. The complainant appears, however, to argue that the information provided by the UK authorities is not factually correct because there was no monitoring programme set up for the project in question which could prove that the site does not cause pollution. The Ombudsman cannot agree with the complainant for the following reasons. The UK authorities clearly replied to the Commission that the pollution in question does not exist. The Ombudsman does not see why the Commission should not trust the UK authorities, particularly when taking into account the fact that the complainant did not submit objective evidence which calls into question the evaluation carried out by the national authorities.

57. As regards the complainant's concerns relating to the prohibitive costs of judicial review in UK, the Ombudsman notes that the Commission already decided to refer this matter to the Court of Justice as a breach of the EIA Directive.

58. In light of the above, the Ombudsman considers that the Commission provided an accurate and reasonable justification as to why it decided to close the complainant's complaint. He does not, therefore, find an instance of maladministration in relation to the complainant's allegation. It follows that his claim cannot be upheld.

B. Conclusions

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

There has been no maladministration.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 9 July 2012

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[1] Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, OJ L 175, 5.7.1985, p. 40.

[2] These arguments include those submitted with the initial complaint and the Commission's opinion, exchanged directly by the parties and those forwarded to the Ombudsman. Where relevant to the developements relating to the case, those above-mentioned arguments also include those put forward in the complainant's observations on the Commission's opinion and those contained in the Commission's supplementary opinion and the complainant's observations on that opinion, when relevant in view of the developments of the case.

[3] Amended by Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, OJ L 73, 14.3.1997, p. 5 and 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 L 156, 25.6.2003, p. 17.

[4] The Commission referred to cases C-508/03, Commission v. United Kingdom, ECR 2006 p. I-3969, and C- 495/08, Commission v. United Kingdom, ECR 2009 p. I-188. Preliminary referrals were simultaneously submitted to the Court by national jurisdictions concerning the same issue: Case C-75/08, Mellor, ECR 2009 p. I-3799.

[5] The UK legislation was amended after the Court of Justice ruling in case C-508/03 on 4 May 2006.

[6] Designated under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.07.1992, p 7.

[7] The Commission explained that it had received this letter after its letter of the same date was sent out.

[8] The Commission provided a copy of this reply to the complainant.

[9] Case C-530/11, Commission v United Kingdom.

[10] See case C-200/88, Commission v Greece, ECR [1990] I-4299, paragraph 9.

[11] Decision on complaint 1561/2010/FOR, available on the Ombudsman's website.

[12] COM/2002/0141 final, OJ 244 , 10.10.2002, p. 5 - 8.

[13] In its judgment in Molkerei-Zentrale , the ECJ held that:

"proceedings [at national level] are intended to protect individual rights in a specific case, whilst intervention by the Community authorities has as its object the general and uniform observance of Community law."