Strasbourg, 17 December 2007

Dear Ms R.,

On 7 June 2006, acting on behalf of the Polish NGO Polska Zielona Siec (the complainant), you submitted a complaint to the European Ombudsman against the European Investment Bank ("EIB") concerning the Bank's financing of transport projects in Poland.

On 6 July 2006, I forwarded the complaint to the President of the EIB.

On 17 October 2006, the EIB sent an opinion, which I forwarded to you with an invitation to make observations.

On 23 November 2006, I received your observations.

On 27 March 2007, I asked the EIB for further explanations.

On 15 May 2007, the EIB sent its reply to my above request which I forwarded to you with the invitation to submit observations. No observations were received from you.

In the meantime, on 14 May 2007, my services carried out an inspection of the file in the EIB’s offices in Luxembourg, and, on 5 July 2007, copies of the report on that inspection were sent to you and to the EIB, for information.

On 10 July 2007, you sent me additional documents concerning your complaint, which I forwarded to the EIB, for information.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant is a Polish NGO dealing with environmental issues.

The complaint may be summarised as follows:

On 1 October 2001, a new Polish Environmental Protection Act of 27 April 2001 ("the 2001 Polish environmental law"), came into force in Poland. Pursuant to its Article 40, all projects of plans and programs concerning transport that are subject to preparation and/or adoption by an authority at the national or regional level and that are required by legislative, regulatory or administrative provisions, require the carrying out of an environmental assessment ("SEA").

On 5 May 2004, the Board of Directors of the EIB adopted its "Environmental Statement". According to that Statement, the EIB should (i) support investments that directly protect and improve the environment, (ii) therefore carefully assess their environmental impact, and (iii) in particular, ensure that projects financed by the Bank should comply with the principles and standards set by both EU and national environmental legislation, including requirements concerning occupational health and safety. When different laws impose different levels of requirements, the Statement requires that the stricter law should be applied.

In July 2004, Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment(1) (the "SEA Directive") came into force.

On 4 January 2005, the National Road Fund Programme 2005/2006 ("NRFP") composed of different investment schemes (individual roads and highway construction schemes) was adopted in Poland.

On 20 September 2005, the EIB agreed to finance part of the investment schemes of the NRFP ("the Project"). The Polish governmental administrative authority "General Directorate for National Roads and Motorways" was designated as the promoter of the Project ("the Promoter").

The complainant was of the view that the above NRFP fulfils all the requirements to be submitted to an SEA under Polish law, even if such an SEA appeared not be required by the SEA Directive. In the complainant’s view, Polish law imposes stricter environmental requirements as regards transport investments than the SEA Directive.

However, contrary to the 2001 Polish environmental law, an SEA was not carried out on the above NRFP and, on 1 December 2005, the complainant contacted the Promoter of the Project about this matter. The Promoter replied that the NRFP (and therefore the Project) did not require an SEA under Polish law because the Programme had been adopted as an ordinance.

The complainant did not agree with the above opinion and took the view that the form of the act by which the Programme was adopted had no relevance with respect to the requirement under Polish law to conduct an SEA as regards all the projects of plans, strategies and programmes concerning transport.

On 6 December 2005, when the Project was still under appraisal, the complainant contacted the EIB for the first time. It asked the EIB in writing to ensure that the Project which it was to co-finance complied with Polish law and with the SEA Directive. The complainant also informed the EIB that, in its view, the Project violated the above-mentioned legal provisions. Finally, it asked the EIB for access to the EIB's analysis of the NRFP's compliance with the SEA Directive.

On 31 January 2006, the EIB replied to the complainant. It stated that the projects contained in the NRFP were all set out prior to the beginning of 2002. All formal preparations to carry out this NRFP started at least in 2002 and, in all cases, before the SEA Directive entered into force. Therefore, according to the EIB, the SEA Directive was not applicable to the NRFP in Poland, including the Project to be co-financed by the EIB, and no analysis as requested by the complainant was therefore made by the EIB. The EIB did not refer to the issue of compliance of the Project with Polish law.

Therefore, on 13 February 2006, the complainant sent a complaint to the EIB. First, it emphasised that the NRFP was approved on 5 January 2005. Second, it took the view that, according to Polish law, the NRFP fulfilled all the requirements for it to be submitted to an SEA under Polish law. However, such a SEA had not been done to date. The complainant emphasised therefore that an SEA, even though it may not be required under the SEA Directive, was indeed required in terms of Polish law and that, according to the EIB's Environmental Statement, all projects financed by it should comply not only with European legislation but also with national legislation.

On 12 April 2006, the EIB stated in reply that all the projects selected by the EIB for financing should be acceptable in environmental terms but a promoter of a project has the full responsibility for ensuring compliance with EU policies and law, as well as with the relevant national legislation. The EIB stated that it would inform the Promoter of the Project of the complainant's complaint and, in addition, ask the Polish authorities whether an SEA of the NRFP was required by Polish law and if so, when such an SEA would be performed and if not, what the legal basis of such a decision was. The EIB also stated that it would inform the complainant of the Polish authorities' answer.

However, up to the date of the complainant’s complaint to the Ombudsman, the EIB had not communicated to it the answers it had received from the Polish authorities. In this respect, the complainant also noted that, on 26 January 2006, it contacted the Polish Ministry of Environment as regards compliance of the NRFP with Polish law and, up to the date of the complaint, it had not received an answer.

In May 2006, the EIB concluded a loan contract with the Promoter.

In its complaint to the Ombudsman, the complainant alleged that, despite being informed about the Project's non-compliance with Polish law, the EIB accepted to co-finance it, contrary to its own guidelines, namely, its Environmental Statement.

The complainant also alleged that the EIB failed to inform it about the Polish authorities' answer.

It claimed that the EIB should suspend its financing until the legal status of the Project was clarified.

THE INQUIRY

The opinion of the EIB

The opinion of the EIB may be summarised as follows:

On 13 February 2006, the complainant submitted a complaint to the EIB's Secretary-General, in which it stated that the NRFP required an SEA under Polish law. On 12 April 2006, the EIB replied that it had informed the Promoter of the Project of the complaint and asked the Polish authorities to comment on it. Subsequently, the Polish Ministry of Transport and Construction informed the EIB "by letter and by direct contacts" that, contrary to the complainant's view, the relevant Polish law did not require the NRFP to undergo an SEA. First, according to that Ministry, the NRFP only constituted a financial plan which presented the sources of finance for road investments and was intended to support the undertaking of the policies, programmes and strategies adopted for the road sector, such as the strategy for the development of the road infrastructure for 2004-2006 and subsequent years as well as the timetable for the construction of motorways and express roads for 2005-2013. Second, according to the same Ministry, at the time when the above general strategy plan and timetable for the NRFP were issued, Polish law did not require an SEA.

Following contacts with the Polish Ministry of Transport and Construction and an extensive review of the case under complaint, the EIB, by letter of 28 June 2006, informed the complainant of the reasons why it considered that all the necessary steps had been taken in order to ensure compliance with its Environmental Statement. The EIB attached a copy of that letter to its opinion. In its letter of 28 June 2006, the EIB also informed the complainant that, "according to its knowledge", various programmes in the list of investments included in the NRFP were initially defined before the 2001 Polish environmental law required programmes to be submitted to an SEA (that is, prior to 1 October 2001). It stated that, from the information received during the appraisal, it was clear that, even though the fifteen schemes constituting part of the Project may be thought to constitute part of larger programme(s), the initial planning process for these schemes started before the Polish law requiring that investment schemes financed from an EIB loan should be subject to an SEA came into effect. Moreover, in that letter, the EIB invited the complainant to meet the EIB representatives in Warsaw and discuss the issue further in the event that it "believe[ed] that the Bank [is] not satisfactorily addressing [its] claim." The EIB repeated the same arguments in its further letter of 13 October 2007 sent to the complainant in reply to the latter's further letter of 25 July 2006.

The EIB stated that the complainant did not reply to that invitation.

The EIB also stated that, in its understanding, some requirements of the SEA Directive, which entered into force on 21 July 2001, were transposed into Polish law by the 2001 Polish environmental law. The EIB went on to note that, in 2005, further amendments to that Polish law were enacted. Pursuant to Article 13 of the SEA Directive, the obligation to carry out an SEA applies to plans and programmes of which the first formal preparatory act was prepared after 21 July 2004. Plans and programmes for which the first formal preparatory act is dated before 21 July 2004 also need an SEA unless the Member State concerned decides that this is not feasible and informs the public accordingly.

The EIB concluded that "as it did not see any violation of the Community or national law concerning EIA and believed to have followed its Environmental Guidelines", the loan contract was signed on 11 May 2006.

In addition, on 13 June 2006, the EIB Board of Directors approved a second loan "Poland Motorways", also financing individual motorways schemes under the NRFP.

The complainant's observations

The complainant's observations may be summarised as follows:

The complainant started by "emphasis[ing] [that] its complaint is based directly on Polish legislation - specifically non-compliance with Article 40(1) of the Polish Environment Protection Law Act (...) and not Directive 2001/42/EC."

The complainant reiterated its view that the 2001 Polish environmental law applied stricter requirements than the subsequent SEA Directive and pointed out that "the EIB used the SEA Directive to weaken the requirements of [the 2001 Polish environmental law], in order to avoid a strategic environmental impact assessment." The complainant noted that every Member State may adopt stricter environmental requirements than those contained in European policies.

In summary, the complainant maintained its view that the 2001 Polish environmental law required the NRFP to undergo an SEA.

The complainant did not agree with the EIB statement that the NRFP did not require an SEA because this programme was "only a financial plan presenting the sources of finance for road investments and was intended to support the realisation of the policies, programmes and strategies adopted for the road sector." The complainant underlined that the NRFP itself is a source of finance and its aims are to set priorities for financing; to identify activities and projects; to provide the frameworks for the road investments; to outline external sources of finance; and to indicate the necessary legal or administrative activities for its implementation.

The complainant recalled that Article 40(1) of the 2001 Polish environmental law provides specifically that transport sector policy, strategies, plans and programmes which are subject to preparation and/or adoption by an authority at the national level require that an SEA be carried out. It follows therefore that the nature of NRFP meant an SEA was necessary.

The complainant also stated that it was unaware of any policies, programmes, strategies or plans in the transport sector adopted after the 2001 Polish environmental law took effect for which an SEA was carried out.

The complainant also noted that the EIB referred to the strategy for the development of the road infrastructure for 2004-2006 and subsequent years, and to the timetable for the construction of motorways and express roads for 2005-2013. According to the complainant, this strategy was prepared in 2003 and issued in August 2003, that is, two years after the 2001 Polish environmental law entered into force.

As regards the EIB's statement that investment schemes of the Project were defined prior to the date the 2001 Polish environmental law entered into force, the complainant noted that the EIB did not provide any examples in support of its view.

The complainant welcomed the EIB's invitation to meet it. However the complainant decided that it would be more convenient for it to express all its concerns in writing and to send them to the EIB. This is what the complainant did.

As regards the EIB's statement that it failed to identify violations of Community or national law in the case in question, the complainant stated that, while the EIB approved the second road loan in June 2006(2), the European Commission opened an infringement procedure against Poland regarding the lack of transposition of the relevant environmental Directives. The complainant attached a copy of the Commission's letter of formal notice addressed to the Polish authorities, dated 28 June 2006(3). According to the complainant, this meant that EIB projects in Poland did not comply with the environmental key directives and thus with the EIB's Environmental Statement.

The complainant stated that the "Polish government ordinance referred to by the EIB in its opinion, which [is] date[d] 15 May 2004 (Rozporządzenie Rady Ministrów z dnia 5 maja 2004 w sprawie sieci autostard i dróg ekspresowych, - DZU. 128, poz. 1334) is completely different from the ordinance from the [sic] 4 January 2005 by means of which the National Road Fund Programme for 2005-06 was approved. The 15 May 2004 ordinance is not at all a financial plan as the EIB states but only specifies which motorways and express roads constitute the NRFP target (Wykaz autostrad i dróg expresowych w RP. Układ docelowy)."

In the complainant's view, the 15 May 2004 ordinance should be considered to be complementary to the 4 January 2005 ordinance and, as such, to be subject to an SEA under Polish law.

The complainant states that an environmental impact assessment ("EIA") for individual projects is currently under way or has very recently been completed.

Finally, the complainant informed the Ombudsman that, "[in] this case, the compliance of [the NRFP] with Article 40(1) of [the 2001 Polish environment law] is also under investigation by the Polish Ombudsman."

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations and additional letters, it appeared that further inquiries were necessary.

The Ombudsman's letter to the Commission dated 27 March 2007

First, the Ombudsman asked the EIB to answer the complainant's observation concerning the EIB's statement that various investment schemes of the Project were defined prior to the date the relevant Polish law entered into force and that the EIB did not provide any examples in support of its view.

Second, the Ombudsman asked the EIB what means and methods of assessment are used by the EIB in situations in which the information provided by national authorities, promoters and implementing agencies of projects financed by the EIB and by other sources suggests that the relevant project is not, prima facie, in compliance with national or European law. In this context, the Ombudsman asked the EIB to comment on the complainant's observation that the Bank approved the second road loan in June 2006 and, at the same time, the Commission asked the Polish Government for an explanation regarding the lack of transposition of a relevant environmental Directive.

Third, the Ombudsman stated that he considered that an inspection of the relevant documents on the EIB's file would be useful.

The EIB’s reply of 15 May 2007

First, the EIB referred to the chronological development of the Polish road system, starting from the1930s.

The EIB stated, in summary, that the transport investment schemes to be financed are determined in the ordinance of the Polish Council of Ministers, which could cover a period from one to six years. The latest ordinance of the Council of Ministers establishing a network of motorways, expressways and roads of strategic significance is dated 29 September 2001, and thus precedes the 2001 Polish environmental law. In February 2001, the Polish Government approved the Programme providing for the adaptation, until 2015, of the Polish main road network to EU standards.

On 4 January 2005, the Polish Government adopted and, on 6 January 2006, amended a Resolution on the Programme for investments in the road sector to be financed by the NRFP. The investments are a selection of schemes previously determined in the ordinances referred to above. The Programme, which qualifies as a financial plan, details the projects motorways, expressways and bypasses as well as their funding sources to be implemented during this period.

The Project financed by the EIB comprised 15 individual road investment schemes, which were dispersed throughout Poland. An SEA was not necessary under the 2001 Polish environmental law or under the SEA Directive because (i) the schemes constitute complementary investments to the ongoing projects that are already in receipt of EU and EIB financing; (ii) the schemes are consistent with the EU's priority objectives as defined in Article 267(a) and (c) of the EC Treaty, and (iii) approval of the Project started before the entry into force of the 2001 Polish environmental law. However, given the importance attached to the environment, the need for EIAs was a condition of disbursement for each of the 15 individual schemes.

The EIB respects its obligation of due diligence in its assessment of loan requests by relying on the available evidence, including the necessary authorisations and permits issued in conformity with the appropriate national and European legislation. For projects located in the EU, the EIB applies a presumption of legality and, where appropriate, a presumption that national legislation conforms to EU legislation. "To the extent necessary", the EIB verifies compliance in order to ensure that its funds are used in a rational manner. For projects outside the EU, the EIB also applies the presumption of legality. This is based on the necessary authorisations to construct and operate the project and is supported by other available evidence, its own assessment and loan covenants. Subject to local conditions and law, each project must, at least, comply with the principles and standards set by EU policies. For all projects, the promoter is responsible for compliance whilst regulatory and enforcement tasks are the responsibility of the competent authorities. It is clearly appropriate and proper for the EIB to rely on EU Member States or the relevant authorities within the Member States in order to determine compliance with the relevant environmental standards and for the EIB to accept a Member State's documentation as evidence of their compliance. In circumstances where the environmental approval process within the Member State is not yet completed, the appropriate disbursement conditions will be attached to the financing contract.

Concerning the loan to cover the Project "Poland Motorways" (to which the original complaint did not refer), the EIB stated that it knew at the time of its appraisal that the Commission had reservations with respect to the transposition of the EIA Directive(4) into Polish law. As a result of the concerns expressed by the Commission, a number of disbursement conditions were imposed on the Borrower (Bank Gospodarstwa Krajowego(5)) in order to ensure that the process followed in respect of the schemes of the Project financed from that loan complied with the requirements of the EIA Directive. As a result, the Project received the Commission's formal non-objection on 27 June 2006.

The EIB concluded by stating that it regrets that the complainant did not accept the EIB's invitation for a meeting in Warsaw. It also stressed that "it remains as always open to a constructive cooperation with the NGOs."

The complainant's observations on the EIB´s reply of 15 May 2007

The complainant did not send observations.

The inspection of documents dated 14 May 2007

On 14 May 2007, the Ombudsman’s services carried out an inspection of the EIB's file concerning the case, in the EIB’s premises. The detailed report on the inspection was sent to the complainant and the EIB.

The complainant’s additional letter of 10 July 2007

In its letter of 10 July 2007, the complainant stated that it brought to the attention of the Polish Ombudsman the issue of the lack of an SEA under Polish law for the NRFP to the Polish Ombudsman and that the latter had concluded his inquiry into that issue. According to the complainant, "the Polish Ombudsman closed the case with the opinion that the [NRFP] should have been subjected to [an] environmental impact assessment" and that his opinion was "in compliance with the opinion of the Polish Ministry of Transport". The complainant attached a copy of the Polish Ombudsman's reply and of the reply of the Polish Ministry of Transport and Construction. In its letter dated 28 June 2007 and addressed to the Polish Ombudsman, the Ministry of Transport and Construction stated that "the Ministry of Environment took the view that the financial plan-list of projects for the road investments to be financed by the National Road Fund should be subject of [sic] the environmental impact assessment procedure, at the stage of the inter-ministerial consultations." In his letter to the complainant, the Polish Ombudsman stated that "the Ministry of Transport and of the Environment shares the Ombudsman’s opinion that the environmental impact assessment should be carried out for the enterprises covered by the National Road Fund."

The Ombudsman forwarded to the EIB, for information, the complainant’s letter, together with its annexes.

THE DECISION

1 Preliminary remark

1.1 The European Ombudsman notes that, in its observations, the complainant referred to the fact that the European Commission had opened an infringement procedure against Poland regarding the lack of transposition of the relevant environmental Directives and stated that "this means that EIB projects in Poland do not comply with the relevant EU EIA Directive and thus with the EIB's Environmental Statement 2004."

The Ombudsman also notes, however, that, in the same observations, the complainant emphasised that "its complaint is based directly on Polish legislation - specifically non-compliance with Article 40(1) of the Polish Environment Protection Law Act (...) and not Directive 2001/42/EC."

In light of the above emphasis made by the complainant, the Ombudsman understands that the complainant's statement should not be considered as a new allegation to be dealt with in the present decision.

2 Assessment by the EIB of the legal compliance of the Project

2.1 The complaint concerns an EIB loan covering 15 investment schemes related to the construction in Poland of motorways, expressways and bypasses included in the National Road Fund Programme 2005/2006 ("NRFP") established by the Polish government. The above 15 investment schemes constituted the EIB project entitled "Poland Road Modernisation " which encompassed "upgrading investments on motorways, expressways and bypasses under [NRFP]", hereinafter "the Project". The Project was proposed for EIB financing by the Polish authorities on 1 June 2005(6). On 6 December 2005, the complainant approached the EIB as regards the Project, which at that time was still under discussion. The complainant complained that, contrary to the relevant provisions of the 2001 Polish environmental law, the strategic environmental impact assessment ("SEA") was not conducted with respect to the entire NRFP. In reply, the EIB informed the complainant that it had addressed the Polish authorities as regards the complainant’s concerns and that it would inform it about their answer. However, the EIB did not inform the complainant of that answer but decided to finance the Project and, on 11 May 2006, signed the loan and made the first payment. Then, on 6 June 2006, the complainant turned to the Ombudsman.

The complainant alleged that, despite being informed about the non-compliance of the Project with Polish law, the EIB, contrary to its "Environmental Statement", accepted to co-finance that Project. According to that Statement, the EIB ensures that projects financed by the Bank should comply with the principles and standards set by both EU and national environmental legislation, including requirements concerning occupational health and safety. The Statement also provides that, when different laws impose different levels of requirements, the stricter should be applied ("first allegation").

The complainant also alleged that the EIB failed to inform it about the answer that the Polish authorities had sent to it ("second allegation").

The complainant claimed that the EIB should suspend its financing until the legal status of the Project was clarified ("claim").

2.2 In summary, the EIB stated that the Promoter of a Project, that is, in the present case, the Polish General Directorate for National Roads and Motorways, hereinafter the "Polish Directorate", has full responsibility for ensuring compliance with EU policies and EU law and with the relevant national legislation. Following the complainant’s complaint, the EIB contacted the Polish authorities which informed it that the relevant Polish law did not require the NRFP to undergo an SEA because (i) NRFP takes the form of a Government ordinance; (ii) NRFP is a financial plan only and (iii) it does not define the development strategy nor does it establish a framework for future implementation. In addition, the initial planning process for 15 investment schemes of the Project, which were covered by the EIB loan and were part of the NRFP, was defined prior to 1 October 2001, that is, the date when the 2001 Polish environment law entered into force. The EIB also confirmed that, in accordance with its Environmental Statement. checking the legal compliance of investments forms an integral part of its appraisal procedures. The EIB also stated that it believes that, in this particular case, it took all the necessary steps to ensure such compliance. The EIB concluded by stating that, given that it had not considered that there was any violation of Community or national law concerning the environmental impact assessment ("EIA") and its view that it had followed its Environmental Statement, the loan contract was signed on 11 May 2006.

In its opinion, the EIB also explained that, in the meantime, on 28 June 2006, it informed the complainant, in a separate letter, about the conclusions of the Polish authorities. That information was explained in more detail in the EIB's further letters to the complainant.

2.3 At the outset, the Ombudsman points out that the present complaint refers to the Project "Poland Road Modernisation" (EIB Project number 20050226), which was financed through a loan signed by the EIB on 11 May 2005, and not to Project "Poland Motorways" (EIB Project 20050428), which was subsequently financed by the EIB.

2.4 Furthermore, the Ombudsman points out, again, that the complaint refers to the a lleged failure of the Polish authorities to comply with the 2001 Polish environmental law, which, according to the complainant, required an SEA for the entire NRFP. As expressly stated by the complainant, compliance with the Environmental European Directives, including Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment(7) (the "SEA Directive") is not the subject of the present complaint.

In this respect, the Ombudsman recalls that, according to Article 195 of the EC Treaty, the European Ombudsman has the power to receive and examine complaints about maladministration in the activities of the Community institutions and bodies. No action by another authority or person may therefore be the subject of a complaint to the Ombudsman. It is thus not the task of the Ombudsman to examine the merits of Community or national legislation and whether the national authorities correctly applied national or European law.

For the above reasons, the Ombudsman, in his inquiry into the present complaint, deals exclusively with possible maladministration on the part of the EIB.

2.5 Further, the Ombudsman notes that, in May 2004, the EIB issued a document, its Environmental Statement, which outlines its approach to environmental issues when financing projects. The paragraph entitled "Protecting and improving the Environment" contains the following statement:

"Within the 25 EU Member States and the Candidates Countries, projects financed by the EIB comply with the principles and standards set both by EU (…) and national environmental legislation, including requirements on occupational health and safety. When [a] different law impose[s] different requirements, the stricter applies."

Moreover, the paragraph entitled "Organisation and Approach", contains the following statement:

"The outcome of the EIB’s environmental assessment determines the "acceptability" of a project for financing. This will be based on the balance between the nature and extent of the environmental impact and the measures needed to avoid, reduce and, where appropriate, offset any negative impacts as well as other criteria such [as] legal compliance and environmental management. The Bank does not accept a project for financing that is likely to have a significant negative environmental impact and/or be of high risk for the environment."

2.6 The Ombudsman points out that, although the above EIB document is not a source of legal obligations, it is an important declaration of EIB policy with which the Bank declares it should comply with.

On the basis of the above document, the Ombudsman understands that the EIB limits itself to financing only those projects which were compliant with both national environmental law and the key EC Environmental Directives and, in the event that national law is stricter as regards the requirements to ensure the protection of the environment, the latter should be applied. It appears that the EIB ensures such compliance initially by screening projects before accepting them for financing and, subsequently, by monitoring them during their execution.

2.7 The Ombudsman points out, however, that, in order to act in accordance with its above Environmental Statement, the EIB appears to be largely dependent on information provided by national authorities which it use to check whether the environmental legal provisions have been applied to any project financed by the Bank and operating in the territory of the country concerned.

2.8 In this respect, the Ombudsman considers it useful to recall the principle of sincere co-operation imposed on the Community institutions and its Member States by Article 10(2) of the EC Treaty and Article 192(2) of the Euratom Treaty, as referred to by the Community Courts in the context of the infringement procedure under Article 226 of the EC Treaty(8). Both Articles provide that Member States shall abstain from any measure which could jeopardise the attainment of the objectives of the EC Treaty.

2.9 Applying the above principle by analogy to the circumstances of the present case, the Ombudsman takes the view that the EIB could (i) legitimately consider that the Polish authorities complied with the applicable legal provisions on the protection of the environment, and (ii) legitimately expect that the Polish authorities provide it with reliable information concerning the application, on their part, of the relevant Polish environmental law. As stated by the EIB in its 2004 Environmental Statement, "(f)or the projects located in the EU, the Bank applies a presumption of legality and that national legislation conforms with the EU legislation, where appropriate. The promoter is responsible for compliance, whilst regulatory and enforcement tasks are the responsibility of the competent authorities."

2.10 In light of the above considerations and on the basis of the documentary evidence gathered during the inquiry and, in particular, during the inspection of the file by his services, the Ombudsman takes the following view. It appears that, in the initial appraisal stage of the Project, carrying out an SEA with respect to the NRFP, on the basis of Article 40 of the 2001 Polish environmental law, did not appear to be the subject of communications between the EIB and the Polish authorities, while compliance with the SEA Directive was.

2.11 It may be concluded, therefore, that, up to 6 December 2005, that is, before the complainant informed the EIB that the NRFP failed to comply with Article 40 of the 2001 Polish environmental law which, according to the complainant, required an SEA, the EIB was not aware of such potential non-compliance.

2.12 The Ombudsman takes the view, however, that following receipt of the above information submitted by the complainant, the EIB could, in light of its Environmental Statement referred to in point 2.5 above, be reasonably expected to be particularly careful in checking such information.

2.13 The Ombudsman notes therefore that, on 27 March 2006, the EIB sent a letter to the Borrower (Bank Gospodarstwa Krajowego(9)) stating that "[it] received a complaint (…) that the National Road (Fund)Programme (NRFP) for 2005-2006 fulfilled all necessary conditions to become subject to an environmental assessment on the basis of Article 40 of the Environmental Protection Act (...)". In the same letter, the EIB asked the Borrower to inform it of the Polish authorities' position as regards "(1) whether the environmental assessment of the NRFP is required by Polish law, and (2) if so, when such assessment will be performed or, (3) if not what the legal basis of such decision is." The EIB copied that letter to the Polish Ministry of Finance and to the Ministry of the Transport and Construction.

2.14 The Ombudsman further notes that the Borrower answered the above EIB letter on 7 April 2006. In that communication, the Borrower informed the EIB that it was not competent to take a position on the Bank's query but that it had forwarded it to the governmental authorities for their comments.

Subsequently, on 6 April 2006, the Polish Ministry of Transport and Construction sent its first reply to the EIB, in which explained that the NRFP is a financial plan and indicates the sources of finances for transport investments. The Ministry added that the NRFP is only an instrument meant to carry out the financial part of the transport investments which are contained in other governmental documents of strategic importance for the transport field. The Ministry explained that these documents include "[t]he strategy for the development of the transport infrastructure in the years 2004-2006 and subsequent years" which was published in 2003 as part of the National Plan of Development. The Ministry also referred to the document "[t]he Timetable for the construction of motorways and expressways for the years 2005-2013", which was published in June 2005, and in which the direction for further development of the road network in Poland was outlined and the related tasks and their timetable were decided. With regard to these "strategies" an SEA was not carried out because at the time of their drafting an SEA was not required by law.

The Ministry of Transport and Construction further pointed out that (i) the NRFP was discussed by a number of ministries, including the Ministry of the Environment which "did not comment on it". Therefore, the Ministry of Transport and Construction understood that there was no obligation to carry out an SEA for NRFP under Article 40 of the Polish Environmental Act. It went out to point out that (ii) for each single project within the NRFP, including projects to be financed from the EIB loan, the EIAs have already been carried out or are in the process of being carried out.

The Ministry concluded that the SEA procedure regarding the effects of the implementation of the entire NRFP, in the meaning of the above Article 40 of the 2001 Polish environmental law, was not required.

2.15 The Ombudsman understands that, on the basis of the above explanations given by the Polish authorities, the EIB concluded that compliance of the Project with the national law was ensured, even though it may have required further clarification., the request for which was contained in its letter of 10 May 2006(10) addressed to the Polish Ministry.

In light of his considerations in points 2.7, 2.8 and 2.9 above, the Ombudsman finds this conclusion reasonable.

Moreover, it appears that, in its replies to the EIB's request for further clarification of 1 June 2006 and of 28 July 2006, the Ministry of Transport and Construction confirmed its initial view and added that Article 40 of the 2001 Polish environmental law was amended, in accordance with the SEA Directive, and that pursuant to this amendment, the relevant public authorities are obliged to carry out an SEA for policies, strategies, plans and programmes including those in the field of transport. The Ministry reiterated that, under Article 40 in its pre-amendment version, an EIA was not required either for "[t]the strategy for the development of the transport infrastructure in the years 2004-2006 and subsequent years" or for "[t]he Timetable for the construction of motorways and expressways for the years 2005-2013".

2.16 The Ombudsman also notes, in particular, the specific statement of the Polish authorities contained in their letter of 6 April 2006 that "for each single project within the NRFP, including projects to be financed from the EIB loan, the EIAs have already been carried out or are in the process of being carried out."(11)

The Ombudsman understands that, whilst the complainant does not agree with the Polish authorities' opinion that the overall NRFP did not require the SEA under the 2001 Polish environmental law, it appears to agree with the above specific statement.

Moreover, it appears indisputable that the 15 individual investment schemes covered by the EIB loan were not in the planning stage when the loan started to be discussed. The Ombudsman does not take a position on the other point, which is by contrast disputable, and concerns the exact date on which the individual investment schemes covered by the EIB loan were defined (that is, their plans had started). In this regard, the Ombudsman does not understand how an SEA of the investment schemes, if considered part of a programme or plan, could reasonably be required when the investments had already started and at least they were no longer at the planning stage. He also notes that the same point was made by the EIB in its further letter sent to the complainant in the course of the inquiry (on 23 October 2006).

Finally, according to the EIB, the investment schemes covered by the EIB loan constitute complementary investments to projects already ongoing with the EU and EIB financing, and are consistent with the EU's priority objectives as defined in Article 267(a) and (c) of the EC Treaty.

In light of points 2.15 and 2.16 above, the Ombudsman accepts the reasons given by EIB in the course of the inquiry as to why the Bank, relying on the information made available to it by Polish authorities at that time, could have signed the loan on 11 May 2006. The Ombudsman does not, therefore, find any instance of maladministration as regards the complainant’s first allegation.

As regards the complainant’s claim that the EIB should suspend its financing until the legal status of the Project is clarified , the Ombudsman points out that it appears that the relevant payment has already been made by the EIB and therefore he considers that no further inquiries are justified.

However, the Ombudsman refers to the complainant’s letter dated 10 July 2007, which the Ombudsman subsequently forwarded to the EIB. According to that letter, it appears that, one year after the information referred to in point 2.14 above, had been provided to the EIB by the Polish authorities, the same Polish authorities stated, in the course of the Polish Ombudsman's inquiry, that "the Ministry of Environment took the view that the financial plan-list of projects for the road investments to be financed by the National Road Fund should be subject of the environmental impact assessment procedure, at the stage of the inter-ministerial consultations." If the EIB considers that, in light of the above letter, there is some action which could be taken by the EIB , the Ombudsman invites the Bank to enter into direct contact with the complainant in this respect.

Moreover, the Ombudsman wishes to point out the potential role of national and regional control instances, such as ombudsmen, as additional sources of information concerning compliance with national and European law of projects financed by the EIB. In this respect, the Ombudsman will make a further remark below.

2.19 Finally, as regards the complainant's allegation concerning the EIB's failure to inform it about the reply of the Polish authorities, the Ombudsman notes that, in its letter to the complainant dated 31 January 2006, the EIB stated that "[it] will [reply] to [the complainant] on this matter as soon as we receive a satisfactory reply from Polish authorities".

The EIB sent the complainant the information it had promised on 28 June 2006, after it had received that information from the Polish authorities in April and June 2006. The EIB completed that information in its further letters sent to the complainant in the course of the Ombudsman's inquiry, on 25 July and 13 October 2006. Moreover, the Ombudsman notes that the EIB proposed to give more explanations to the complainant during a meeting to be organised for that purpose.

In light of the above, the Ombudsman does not consider that further inquiries are justified as regards the complainant’s second allegation.

3 Conclusion

As regards the complainant’s first allegation, for the reasons explained in points 2.14, 2.15, 2.16 above, the Ombudsman does not find an instance of maladministration.

As regards the complainant’s second allegation, for the reasons explained in point 2.19 above, the Ombudsman considers that no further inquires are justified.

As regards the complainant’s claim, for the reasons explained in point 2.18 above, the Ombudsman considers that no further inquires are justified.

The Ombudsman therefore closes the case. The President of the EIB will be informed of this decision.

FURTHER REMARK

The EIB might wish to consider, in the future, establishing channels of communication with, and seeking information from, relevant national and regional control instances, such as ombudsmen, which can serve as an additional source of information concerning compliance with national and European law of projects financed by the EIB.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2001 L 197, p. 30.

(2) In the Ombudsman's understanding, the complainant is referring to the Project "Poland Motorways" (EIB Project 20050428).

(3) It appears that the Commission's letter referred in fact to the amendment of the 2001 Polish environment law, which came into effect in 2004 and, unlike the 2001 Polish law itself, appeared not to be compliant with European law.

(4) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as 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.

(5) This Bank is controlled by the Polish State Treasury.

(6) The complainant attached to its complaint an outprint concerning EIB-Projects-Pipeline, which was taken from the EIB website (http://www.eib.org/projects/pipeline/project).

(7) OJ 2001 L 197, p. 30.

(8) See Case C-10/00 Commission v Italy [2002] ECR I-2357, paragraph 88.

(9) See note 4.

(10) The Ombudsman notes that, on 10 May 2006, the EIB asked the Polish Ministry of Transport and Infrastructure for further clarification as to whether the documents mentioned in the Ministry letter of 6 April 2006, namely, "[t]he strategy for the development of the transport infrastructure in the years 2004-2006 and subsequent years", and "[t]he Timetable for the construction of motorways and expressways for the years 2005-2013 strategies" required an SEA in terms of Article 40 of the 2001 Polish environmental law.

(11) Translation from Polish by the Ombudsman's services. The original text provides as follows:

"Zwracamy uwagę, że dla każdego projektu objętego Programem KFD, w tym dla projektów przeznaczonych do sfinansowania z kredytow EBI zostaly przeprowadzone bądź są w trakcie przeprowadzenia oceny oddziaływania na środowisko wymagane przepisami ustawy Prawo ochrony środowiska."