# Decision of the European Ombudsman on complaint 3254/2006/ID against the European Commission
- Author: European Ombudsman
- Date: 2008-04-21T00:00+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/3252)
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> The complainant had submitted an Article 226 complaint to the Commission, concerning an alleged violation of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment[\[1\]](#_ftn1){#_ftnref1}, with regard to a motorway project ("the Project"). The complainant had argued, in particular, (i) that an environmental impact assessment ("EIA") had not been carried out before the publication of the tender notice concerning the construction of the Project; and (ii) that only an EIA had been made regarding a county road which concerned a project quite different from the one at issue.
> 
> In its reply to the complaint, the Commission accepted the above argument. However, it concluded that the Greek authorities had taken the steps required for the termination of the violation, given that the Project was submitted to a new EIA procedure. Hence, an infringement procedure would not have had an object and its initiation would not have been useful. In his complaint to the Ombudsman, the complainant contested the above assessment made by the Commission.
> 
> In his decision on the complaint, the Ombudsman noted the following. The question of whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period set out in the reasoned opinion[\[2\]](#_ftn2){#_ftnref2}. In the event that the infringement no longer exists at that time, an action against the Member State would be inadmissible[\[3\]](#_ftn3){#_ftnref3}. In support of his allegation, the complainant argued that there was an ongoing infringement, because the national authorities had failed to revoke or annul the national acts from which the violation originated, namely the tender procedure and subsequent award of a public works contract for the carrying out of the Project. In this regard, it appears that there is no case-law confirming that the national authorities were required to act in the way indicated by the complainant, in order to terminate the infringement of Article 2(1) of Directive 85/337 found by the Commission. Moreover, it is reasonable to consider that, in a situation like the one at issue, the infringement is terminated when (i) the competent national authorities require, before the execution of the works envisaged for the Project, that the latter be the object of an EIA, in accordance with the relevant provisions of Community law, and (ii) these authorities make a (new) decision to grant or refuse development consent, following the EIA procedure and after taking its results into account. This is what seems to have happened in the case at hand. In view of the above, the Ombudsman found no maladministration on the part of the Commission.
> 
> *** ** * ** ***
> 
> [\[1\]](#_ftnref1){#_ftn1} Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175, p. 40.
> 
> [\[2\]](#_ftnref2){#_ftn2} See, for example, Case C-209/02 *Commission v Austria* ECR \[2004\] I-1211, paragraph 16.
> 
> [\[3\]](#_ftnref3){#_ftn3} See, for example, Case C-362/90 *Commission v Italy* ECR \[1992\] I-2353, paragraph 13.
> 
Strasbourg, 21 April 2008   

Dear Mr V.,

On 5 October 2006, you submitted a complaint to the European Ombudsman against the European Commission. Your complaint, which was complemented by your letter of 9 December 2006, concerned the Commission's reply to an Article 226 complaint against Greece you had lodged with the Commission. On 20 December 2006, I opened an inquiry into this case. On 27 March 2006, the Commission sent me its opinion on your complaint. I forwarded it to you with an invitation to submit observations. In your subsequent correspondence, you maintained your complaint.

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

THE COMPLAINT
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On 8 August 2006, the complainant, together with many other citizens, submitted to the Commission an Article 226 complaint against Greece. The complaint concerned an alleged violation of Council Directive 85/337/EEC of 27 June 1985, on the assessment of the effects of certain public and private projects on the environment[(1)](#(1)){#Footnote1}, as amended by Council Directive 97/11/EC of 3 March 1997[(2)](#(2)){#Footnote2}, with regard to a motorway project ("the Project"). The complainant argued that (i) an environmental impact assessment ("EIA") had not been carried out before the publication (in September 2005) of the tender notice concerning the construction of the Project (an EIA had only been made regarding a county road which concerned a project clearly different from the one at issue); (ii) following relevant complaints, an EIA study of the Project was prepared and was submitted to the Prefecture of Chalkidiki (Greece) in February 2006; (iii) the local population, the municipality of N. Moudania ( Greece) and the Prefectoral Council of Chalkidiki expressed their opposition to the Project. The complainant submitted a number of documents together with his complaint and also a photograph of a sign indicating that the works relating to the Project would cost EUR 25 000 000 and would be carried out by the constructor X. By letter dated 15 September 2006, the Commission replied to the complainant, stressing that the mere fact that the local population and that the Prefectoral Council of Chalkidiki had expressed a negative opinion with respect to the Project did not establish a violation of Directive 85/337. The Commission, thus, stated that it was not possible "to register a complaint."

By letter dated 5 October 2006, the complainant informed the Commission that it had not taken into account its argument (i) above and requested, on this basis, the registration of his infringement complaint. This letter was also sent (and explicitly addressed) to the European Ombudsman, who registered it as a complaint against the Commission. On 1 December 2006, the Ombudsman received a copy of the Commission's reply (dated 23 November 2006) to the complainant's letter of 5 October 2006. The Commission, first, expressed its regret at the fact that the complainant's argument (i) had not been dealt with appropriately in its letter of 15 September 2006. The Commission further stated that:

(a) the tender procedure for the Project, indeed, concerned the construction of a motorway with barriers on both sides and not simply the improvement of an existing county road, which amounted to a violation of Article 2(1) of Directive 85/337;

(b) subsequently the developer of the Project carried out a new EIA, which was submitted to the competent Ministry on 29 December 2005;

(c) the new EIA was submitted to a consultation/evaluation procedure;

(d) this procedure was completed with the adoption of joint ministerial decision 1000838 of 16 October 2006, which approved the environmental conditions of the Project;

(e) in light of the above, there had been a violation of Community law, which had already produced and "exhausted" its effects;

(f) the Greek authorities took the steps required for the termination of the violation, given that the Project was submitted to a new EIA procedure;

(g) hence, an infringement procedure would not have had an object and its initiation would not have been useful;

(h) the purpose of an infringement procedure was to achieve a change in the behaviour of the non-compliant Member State and not to ascertain, in general, whether an infringement had occurred in the past.

On 9 December 2006, the complainant sent a fax to the Ombudsman, in which he emphasised that the Commission's reply of 23 November 2006 was an instance of maladministration. He alleged that the Commission had failed to deal properly with his Article 226 complaint. More specifically, he contested the Commission's conclusion that the national authorities had taken appropriate steps to put an end to the violation of Directive 85/337. He argued that the Commission should consider that there was an ongoing infringement, because the national authorities had failed to revoke or annul the national acts that were the source of the above violation, namely, the tender procedure and subsequent award of a public works contract for the construction of the Project. The Ombudsman opened an inquiry into the above allegation and supporting argument made by the complainant.

THE INQUIRY
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In its opinion, the Commission, first, referred to its above-mentioned correspondence with the complainant. The Commission confirmed its position that there had been an infringement of Article 2(1) of Directive 85/337/EEC, which had produced and exhausted its effects ("*infraction consomée* "), since the contested Project had been subject *ex post* to an EIA. The Commission added that the complainant's allegations against this EIA had been registered as an Article 226 complaint and it would inform the complainant of its decision thereon in due course. In his observations, the complainant, in essence, maintained his allegation.

THE DECISION
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**1 Allegation that that the Commission failed to deal properly with the complainant's Article 226 complaint, by considering that the infringement of Directive 85/337 had produced and exhausted its effects**   

1.1 On 8 August 2006, the complainant, together with many other citizens, submitted to the European Commission an Article 226 complaint against Greece. The complaint concerned an alleged violation of Council Directive 85/337 of 27 June 1985, on the assessment of the effects of certain public and private projects on the environment[(3)](#(3)){#Footnote3}, as amended by Council Directive 97/11/EC of 3 March 1997[(4)](#(4)){#Footnote4}, with regard to a motorway project ("the Project"). The complainant argued, in particular, that an environmental impact assessment ("EIA") had not been carried out before the publication (in September 2005) of the tender notice concerning the construction of the Project. He further argued that an EIA had only been made regarding a county road which concerned project quite different from the one at issue. The Commission refused to investigate the complaint. In reply to the above argument, the Commission stated that:

(a) the tender procedure for the Project, indeed, concerned the construction of a motorway with barriers on both sides and not simply the improvement of an existing county road, which amounted to a violation of Article 2(1) of Directive 85/337[(5)](#(5)){#Footnote5};

(b) subsequently, the developer of the Project carried out a new EIA, which was submitted to the competent Ministry on 29 December 2005;

(c) the new EIA was submitted to a consultation/evaluation procedure;

(d) this procedure was completed with the adoption of joint ministerial decision 1000838 of 16 October 2006, which approved the environmental conditions of the Project;

(e) in light of the above, the Commission concluded that there had been a violation of Community law, which had already produced and "exhausted" its effects;

(f) the Greek authorities took the steps required for the termination of the violation, given that the Project was submitted to a new EIA procedure;

(g) hence, an infringement procedure would not have had an object and its initiation would not have been useful;

(h) the purpose of an infringement procedure was to achieve a change in the behaviour of the non-compliant Member State and not to ascertain, in general, whether an infringement had occurred in the past.

In its opinion on the complaint, the Commission confirmed its foregoing position about an "*infraction consomée* ", noting that the contested Project was subject *ex post* to an EIA. It added that the complainant's allegations against this EIA had now been registered as an Article 226 complaint and the Commission would inform the complainant of its decision thereon in due course.

1.2 The European Ombudsman, first, recalls that the question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period set out in the reasoned opinion[(6)](#(6)){#Footnote6}. In the event that the infringement no longer exists at that time, the action against the Member State would be inadmissible[(7)](#(7)){#Footnote7}. With respect to the present complaint and in support of his allegation, the complainant argued that there was an ongoing infringement, because the national authorities had failed to revoke or annul the national acts from which the violation originated. More specifically, the complainant argued that the relevant Greek authority had failed to revoke the tender procedure and subsequent award of a public works contract for the carrying out of the Project. In this regard, it appears that there is no case-law confirming that the national authorities were required to act in the way indicated by the complainant, in order to terminate the infringement (of Article 2(1) of Directive 85/337) found by the Commission, in a situation like the one at issue. Moreover, it is reasonable to consider that, in such a situation, the infringement is terminated when (i) the competent national authorities require, before the execution of the works planned for the Project, that the Project be subject to an EIA, in accordance with the relevant provisions of Community law, and (ii) these authorities make a (new) decision to grant or refuse development consent, following the EIA procedure and in light of its results. This is what seems to have happened in the case at hand. In view of the above, the complainant's allegation has not been substantiated. Hence, the Ombudsman finds no corresponding instance of maladministration on the part of the Commission.

1.3 The Ombudsman also remarks that the complainant has put forward a number of arguments concerning, in essence, the (new) EIA. These arguments do not have a bearing on the present inquiry, but are rather relevant to the Commission's rejection of the complainant's Article 226 complaint against this EIA and the subsequent development consent for the Project. This rejection is the subject-matter of another complaint lodged by the complainant with the Ombudsman (complaint 629/2008/ID) and will be examined in that context.
**2 Conclusion**   

On the basis of his inquiries into this complaint, the Ombudsman finds no maladministration by the Commission. The Ombudsman, thus, closes the case.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

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[(1)](#Footnote1){#(1)} OJ 1985 L 175, p. 40.

[(2)](#Footnote2){#(2)} OJ 1997 L 73, p. 5.

[(3)](#Footnote3){#(3)} OJ 1985 L 175, p. 40.

[(4)](#Footnote4){#(4)} OJ 1997 L 73, p. 5.

[(5)](#Footnote5){#(5)} Article 2(1) of Directive 85/337, as amended by Directive 97/11, reads as follows: "*Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location, are made subject to a requirement for development consent and assessment with regard to its effects. These projects are defined in Article 4.* " Thus, the Commission considered, in essence, that the tender notice in question, which appears to have led to a decision awarding a relevant public works contract, involved "*consent (...) given*" in relation to the carrying out of the project.

[(6)](#Footnote6){#(6)} See, for example, Case C-209/02 *Commission v Austria* \[2004\] ECR I-1211, paragraph 16.

[(7)](#Footnote7){#(7)} See, for example, Case C-362/90 *Commission v Italy* \[1992\] ECR I-2353, paragraph 13.