Dear X,
I am writing to let you know the results of my inquiries into your complaint to the European Ombudsman in relation to the Newbury Bypass project. Your complaint is one of many that I received concerning this subject. In order to deal with it as effectively and as promptly as possible, I have treated it jointly with the others that are listed at the end of this letter.
To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.
My inquiries relating to the Newbury Bypass have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.
The Newbury Bypass case is also the subject of petitions to the European Parliament (numbers 865/95, 972/95, 90/96 and 387/96). A petition may concern any matter which comes within the Community's fields of activity. The Ombudsman does not usually deal with a matter pending before the Committee on Petitions of the European Parliament unless, with the consent of the petitioner, that Committee transfers it to the Ombudsman. In this case, however, the Ombudsman has also received many complaints from people who have not addressed petitions to the Parliament.
It appears appropriate, in any event, for both the Committee on Petitions and the Ombudsman to examine the Newbury Bypass case. The broad mandate of the Committee allows it to consider matters that are beyond the scope of an inquiry directed towards examining whether there has been maladministration in the activities of the European Commission. I understand from the chairman of the Committee on Petitions Mr Edward Newman, who wrote to me on 16 October 1996, that the Committee is continuing its inquiries into the Newbury Bypass.

The background to the complaints

On 27 June 1985, the Council adopted Directive 85/337/EEC ( Official Journal, 1985 L175/40). The Directive requires that, in certain cases, development consent for public or private projects should be granted only after there has been an environmental impact assessment. The latest date for transposition of the Directive into national law was 3 July 1988.
The Directive contains no transitional provisions. That is to say, it does not expressly state whether its requirements apply to projects for which application for development consent had been made, or consent procedures had been initiated, before the Directive came into force, but for which the consent itself was given only after the Directive came into force (so-called 'pipeline' cases).
Article 155 of the EC Treaty establishes the duty of the European Commission to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied. Article 169 provides for the main procedure through which the Commission acts to carry out this duty in the case of a failure by a Member State to fulfil its obligations.
Article 169 provides as follows:

If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.

The Commission has invited individuals to submit to it complaints about breaches of Community law by Member States and has published a standard form for this purpose.(1)
In 1994, complaints were made to the European Commission alleging that the UK authorities had failed to observe the requirements of Directive 85/337/EEC in relation to the Newbury Bypass road project. The Commission registered the complaints and opened a file in relation to the matter.
On 20 October 1995, the Commission issued press release IP/95/1098. This stated that, in the light of a decision from the European Court of Justice in August 1995 (C 431/92), the Commission had decided to interpret Directive 85/337/EEC as requiring an environmental impact assessment only for projects where the procedure for consent was started after the latest date for transposing the Directive into national law. The press release further stated that this meant that the Directive did not apply to the Newbury Bypass, for which lengthy consent procedures started well before 3 July 1988.
(The decision of the Court of Justice referred to in the press release is Case C- 431/92, Commission v Germany, judgement of 11 August 1995: 'the Großkrotzenburg case.')
The Commission subsequently wrote to the people whose complaints it had registered, stating that it had completed its investigation concerning the proposed Newbury Bypass and, since no breaches of Community law had been found, had decided to close the file. The complainants were also referred to an enclosed copy of the press release for a more detailed explanation as to why the file was being closed.

The complaints

Taking the complaints sent to the Ombudsman as a whole, four main claims were made concerning the Commission's decision to close the file on the Newbury Bypass case:

1. By closing the file, the Commission had deprived citizens of the benefit of an authoritative ruling from the Court of Justice on the disputed issues of Community law involved and risked subverting the role of the Court.
   
2. According to some complainants, the Commission's interpretation of the Großkrotzenburg case was disingenuous, in that it was motivated by political considerations, or was the result of political pressure.
   
3. The correct interpretation of the Großkrotzenburg case supports the view that Directive 85/337/EEC applies to the Newbury Bypass project.
   
4. The Commission should have informed the registered complainants of its decision to close the file before announcing it through a press release.

Complaints received by 1 February 1996 were sent to the President of the European Commission with a request for a First Opinion by 31 May 1996. To avoid possible delay, no further request for a First Opinion was made for subsequent complaints raising the same issues. At the request of the Commission, the deadline was subsequently extended to 19 July 1996. The First Opinion was sent to the Ombudsman by the Commission on 18 July 1996.

The First Opinion of the Commission

In its First Opinion on the complaints, the Commission argued as follows:

1. The subject matter of the complaints involves the exercise by the Commission of its discretion with regard to proceedings under Article 169. The Court of Justice has consistently held that:
   

   it is clear from the scheme of Article 169 of the EEC Treaty that the Commission has no obligation to commence proceedings under that article; it has a discretionary power precluding the right of individuals to require it to adopt a particular position and to bring an action for annulment against its refusal to take action.

   
   In deciding not to open infringement proceedings, the Commission exercised its discretion as fully recognised by the Court.
   
2. The Commission proceeded vis-à-vis the complainants in accordance with the principles of good administrative behaviour by duly registering the complaints and keeping the complainants informed of the treatment of the case. Complainants in an Article 169 procedure do not possess any specific procedural rights as could be the case in other sectors like competition or anti-dumping. The Commission therefore sees no grounds for any complaint of maladministration in such a case.
   
3. In the case of the Newbury Bypass, the key issue was whether the date of the project's development consent or the date of commencement of the approval procedures for the project (date of application for consent) was decisive for application of the Directive.
   The Directive contains no transitional provisions, and there is a point of interpretation as to whether its requirements apply to 'pipeline' cases.
   Newbury Bypass was a pipeline case, in as much as the date of application for development consent preceded 3 July 1988, while the date of grant of development consent came later.
   The point of interpretation was touched upon in connection with two decisions of the Court of Justice: Case 396/92 Bund Naturschutz in Bayern Ev v Freistaat Bayern [1994] ECR I-3717 and Großkrotzenburg. In both cases the Advocate-General argued that Member States may omit an environmental impact assessment for projects in respect of which the development consent procedure was initiated before 3 July 1988.
   The Court itself did not explicitly state that the date of application/commencement of the development consent procedure was the decisive factor. However in Großkrotzenburg, the Court assessed the factual circumstances as to when a formal application was submitted. The latter would have been of no importance if the date of consent was the relevant factor.
   As a consequence of this jurisprudence, Directive 85/337/EEC is to be interpreted so as to exclude from its scope pipeline cases.
   The factual circumstances in respect of Newbury Bypass are that the consent procedure was initiated before 3 July 1988. Therefore, the Commission considers that Directive 85/337/EEC did not apply to the Newbury Bypass project.
   
4. The Commission should have informed the registered complainants of its decision to close the file before announcing it through a press release.

Complainants' observations on the First Opinion

Taking the observations sent to the Ombudsman as a whole, the following claims were made in relation to the First Opinion:

1. The Commission's remarks about its discretion amount to an assertion that it can act arbitrarily. Since the role of the Ombudsman is to enquire into cases of maladministration there is no reason why the restrictions on judicial remedies referred to in the First Opinion should be regarded as relevant.
   
2. The Commission failed to answer the allegation that it had acted disingenuously.
   
3. The Commission continued in its misinterpretation of the Großkrotzenburg case and failed to apply the reasoning in that case correctly to the UK development procedures used in the Newbury Bypass case.
   
4. The Commission claimed that it had kept the complainants informed. However, it had informed the media of the decision to close the Newbury file in a press release dated 20th October 1995, while complainants were finally informed by letters dated 6th December 1995.

The decision of the European Ombudsman

1 The Commission's decision
1.1 The Commission has explained the decision to close the file in the Newbury Bypass case solely in terms of a legal conclusion that Directive 85/337/EEC does not apply to the Newbury Bypass project.
1.2 Article 169 of the EC Treaty provides for the Commission to issue a reasoned opinion if it considers that a Member State has failed to fulfil an obligation under this Treaty. If the Commission reaches the conclusion that there is no breach of Community law, then the essential condition for the issuing of a reasoned opinion is not met. In such circumstances, no issue of discretion arises because the Commission has no power to open infringement proceedings.
1.3 The Ombudsman therefore considers that it was misleading to the complainants for the question of discretion to be raised in the Commission's First Opinion.
1.4 The Ombudsman found that the complaints provided insufficient grounds to raise doubts as to whether the Commission's legal conclusion was reached in good faith, after due inquiry and on the basis of objective and expert consideration of the legal issues.
1.5 The arguments presented by the complainants did, however, provide grounds for the Ombudsman to examine the Commission's legal conclusion that Directive 85/337/EEC does not apply to the Newbury Bypass, in order to ascertain whether there is maladministration in the interpretation of Community law, or in its application to the facts and to the national legal context of the case. The results of the examination are set out in section 2 of this decision.
2 The applicability of Directive 85/337/EEC to the Newbury Bypass case
2.1 The Commission's conclusion that Directive 85/337/EEC does not apply to the Newbury Bypass depends on a process of legal reasoning that has two stages.
2.2 The first stage is the argument that the Directive does not apply to projects for which development consent was granted after 3 July 1988, provided that the formal application for development consent (or its equivalent, in procedures where no formal application takes place) occurred before that date. This is the argument that 'pipeline' cases are excluded. The second stage of the argument is that the Newbury Bypass project is a 'pipeline' case.
2.3 As regards the first stage of the argument, the Commission relies in its First Opinion on the judgements of the Court of Justice and the opinions of the Advocates-General in Großkrotzenburg(2) and Bund Naturschutz to argue that the Directive is to be interpreted so as to exclude pipeline cases from its scope.
2.4 The Ombudsman notes that in other contexts, including its reply to the Committee on Petitions concerning petitions 865/95 and 972/95, the Commission has also referred to the general unwritten principle of legal certainty and the principles of legitimate expectations and proportionality in support of its interpretation.
2.5 The Commission's interpretation of the Directive has been criticized by the complainants and by some commentators.(3) The criticisms point out that, in Großkrotzenburg, the Court of Justice expressly left open the question of the application of the Directive to 'pipeline' cases (paragraph 28 of the judgement) and that the principles of legal certainty and legitimate expectations also provide arguments against the Commission's interpretation.
2.6 The Ombudsman considers it regrettable that the First Opinion contains only a very brief, and possibly incomplete, outline of the Commission's legal reasoning in support of its conclusion that the Directive does not apply to 'pipeline' cases.
2.7 The Ombudsman does not consider, however, that the conclusion itself is wrong as a matter of law. In view of the opinions of the Advocates-General in Bund Naturschutz and Großkrotzenburg and the fact that the Court of Justice in Großkrotzenburg evaluated the factual circumstances as to when a formal application was submitted, the conclusion that Directive 85/337/EEC does not apply to 'pipeline' cases is probably correct. It must be recalled, however, that the Court of Justice is the highest authority on questions of Community law.
2.8 As regards the second stage of the argument, and subject to the qualification in the last sentence of paragraph 2.7, the Ombudsman considers that, prima facie, the appropriate criterion to identify 'pipeline' cases is that used in Großkrotzenburg: i.e. the date when the application for consent was formally lodged.
2.9 The legal procedures in England for development consent in the case of highway projects do not involve an application for development consent by one body to another. The procedure is an administrative one, in which both the developer and the authority which grants development consent are parts of the central government administration.
2.10 The question therefore arises as to which stage of the administrative procedure under English law is to be regarded as the equivalent of 'the date when the application for consent was formally lodged.' In identifying such an equivalent it is important to recall that the Court of Justice in Großkrotzenburg expressly rejected a claim that a preliminary stage of the consent procedure, involving informal contacts and meetings between the competent authority and the developer, could be treated as a definite indication of the date on which the consent procedure was initiated.
2.11 Draft orders for the Newbury Bypass were published between 1986 and 1988; the public inquiry began on 14 June 1988 and closed on 9 November 1988; the final Statutory Instrument was made on 18 June 1991 and became effective on 16 August 1991.
2.12 The complainants argued that the publication of draft orders and the public inquiry were preliminary procedures for consultation and discussion of the Department of Transport's preferred route and alternative schemes. In their view, such procedures cannot be described as a formal application and are the equivalent of 'informal contacts and meetings between the competent authority and the developer'. According to the complainants, the equivalent of a formal application is the making of the final Statutory Instrument, which is followed by a six-week period within which it is subject to challenge in the High Court.
2.13 The Commission's position on this point is not entirely clear from the First Opinion, which states only that:

'Newbury Bypass was a pipeline case, in as much as the date of application for development consent preceded 3 July 1988, while the date of grant of development consent came later'; and

'The factual circumstances in respect of Newbury Bypass are that the consent procedure was initiated before 3 July 1988.'

The Commission does not, therefore, specify which point of the national procedures it regards as the equivalent of a formal application in the Newbury Bypass case. Logically, however, it must be either the publication of the draft orders or the opening of the public inquiry, since these are the only stages of the procedure that occurred before 3 July 1988.
2.14 In the Ombudsman's view, the publication of the draft orders can reasonably be regarded as the equivalent of a formal planning application, in that the developer makes a public statement containing definite proposals for development, which may then be the subject of a public inquiry. The fact that there may be differences between the draft order and the final project does not affect this conclusion, since there may also be changes made to an application during the course of the procedure for granting development consent. The possibility of such changes in both cases is inherent in the fact that the procedures involved are more than a mere formality.
2.15 Although it is regrettable that the First Opinion does not contain all the legal reasoning necessary to support the Commission's view that Newbury Bypass is a 'pipeline' case, the Ombudsman does not consider, therefore, that the conclusion itself contains an error in the application of Community law to the facts and the national legal context of the Newbury Bypass case.
2.16 The Ombudsman's inquiries into the complaints concerning the Newbury Bypass have not, therefore, revealed any instance of maladministration by the Commission in the interpretation of Community law, or in the application of Community law to the facts and to the national legal context of the case.
3 The failure to inform the registered complainants before issuing the press release
3.1 The Commission has invited individuals to submit to it complaints about breaches of Community law by Member States and has published a standard form for this purpose.(4) In its First Opinion, the Commission acknowledges procedural obligations duly to register complaints and to keep the complainants informed of the treatment of the case.
3.2 An administrative process of this kind normally concludes with a reasoned decision communicated to those who have participated in the process. The Ombudsman considers that, as a matter of good administrative behaviour, the Commission should have informed the registered complainants of its decision before, or at least at the same time as, announcing the decision publicly through a press release. There may have been practical reasons why this was not possible in this particular case (although no such reasons have been advanced by the Commission in its First Opinion). If so, the Commission should at least have explained those reasons to the complainants.
3.3 Given that this aspect of the case concerns procedures relating to specific events in the past, it is not necessary to make further inquiries or to pursue a friendly settlement of the matter.
In view of the above findings, I consider that it is unnecessary to conduct further inquiries into this case. I trust, however, that the European Commission will take note of the critical remark made in paragraph 3.2 above.

Further remarks by the Ombudsman

As noted in my Annual Report for 1995, an important part of the Ombudsman's mission is to enhance relations between the Community institutions and European citizens. The creation of the office of Ombudsman by the Treaty on European Union was meant to underline the commitment of the Union to open, democratic and accountable forms of administration.
My inquiries into the Newbury Bypass, and into several other complaints against the Commission, have led me to conclude that it is appropriate for there to be a more general examination of the procedural position of individual complainants in the Article 169 procedure.
On the basis of the complaints that I have received, it appears that the procedure currently used by the Commission causes considerable dissatisfaction amongst European citizens, some of whom regard the Commission's approach to the discharge of its responsibilities under Article 169 as arrogant and high-handed. Furthermore, the procedure appears not to promote the degree of transparency which European citizens increasingly expect in the functioning of Community institutions and bodies.
Without prejudice to the question of whether the principles of Community law might require more developed procedural rights for private complainants under Article 169, the Commission could itself decide to create such rights as a matter of good administrative behaviour, consistent with the case-law of the Court of Justice and Court of First Instance that individuals cannot challenge the Commission's decision not to open infringement proceedings.
In particular, before making its final decision, the Commission might communicate to registered complainants a provisional conclusion that there is no breach of Community law and its findings in support of that conclusion, with an invitation to submit observations within a defined period.
Such a procedure could have two advantages over the present position. First, it might contribute towards more effective administration, by creating an opportunity for the Commission to receive criticisms of its views in time for it to evaluate and respond to those criticisms before committing itself to a final conclusion. Second, it could enhance relations between European citizens and the Commission, by allowing citizens to participate fully in the administrative procedure under Article 169 and by improving the transparency of the Commission's activities.
I have therefore decided to begin an own-initiative inquiry into this matter. I shall be writing to the President of the Commission in the near future with details of the inquiry.
Yours sincerely,
Jacob SÖDERMAN
This decision relates to all the following complaints:
206/27.10.95/HS/UK; 211/03.11.95/JC/UK;226/13.11.95/JC/UK 229/14.11.95/PAD/UK;303/03.01.96/COW/UK;327/08.01.96/RW/UK 335/08.01.96/AK/UK; 358/15.01.96/EC/UK; 359/16.01.96/JK/UK 360/09.01.96/SJ/UK; 361/09.01.96/JB/UK; 362/15.01.96/JB/UK 363/15.01.96/MN/UK; 364/03.11.96/JS/UK; 377/31.1.96/MJ/UK 378/25.1.96/JB/UK; 382/24.1.96/CW/UK; 383/24.1.96/JK/UK 403/01.02.96/TPA/UK;471/4.3.96/PC/UK;487/14.3.96/BRF/UK; 488/14.3.96/PB/UK; 514/25.3.96/DB/UK; 515/25.3.96/PJW/UK; 526/27.3.96/DHW/UK; 562/18.4.96/DD/UK;607/24.5.96/BB/UK

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(1) Official Journal 1989, C 26/6.

(2) Cases C-431/92, judgement of 11 August 1995 and C-396/92 [1994] ECR I-3717.

(3) See e.g. P. Kunzlik, 'Environmental Impact Assessment: Bund Naturschutz, Großkrotzenburg and the Commission's retreat on the 'Pipe-line' point', European Environmental Law Review, 1 March 1996, 87-93.

(4) Official Journal 1989, C 26/6.