The background to the complaint

1. The present case concerns the Commission’s handling of an infringement complaint submitted to it by a member of the Danish civil society. That complaint related to the compatibility with European environmental law of a railway capacity extension scheme in Denmark.

2. The main issue in the case is the quality of the European Commission's explanations for why it found that the European Union's 2001 Strategic Environmental Assessment Directive (the 'SEA Directive')[1] was not applicable to the railway capacity extension scheme in question. The SEA Directive came into force in 2001. Member States were obliged to bring into force laws, regulations and administrative provisions necessary to comply with the Directive before 21 July 2004 (Article 13). The case also concerns the Commission’s explanations for its decision not to take further action in relation to Denmark's alleged breach of the European Union's 1985 Impact Assessment Directive (the 'EIA Directive')[2] and its Habitats Directive[3] as regards the railway capacity extension scheme. It furthermore concerns the Commission's omission to invite the complainant to a meeting that it held with the Danish authorities about the issues raised in the complainant's infringement complaint.

3. The railway capacity extension scheme in question is one that the Danish Parliament began to examine in the late 1990s. It concerns a connection between the cities of Copenhagen and Ringsted. The railway line forms part of the network that connects the capital to the rest of Denmark and neighbouring EU countries.

4. The attempts to find a solution in the 1990s were unfruitful. In early 2000, the Danish Parliament began studying the issue again. In late 2003, it was decided politically that a 'strategy analysis' should be carried out. One of the aims of this Strategy Analysis was to "clarify possible solutions (new constructions Copenhagen-Ringsted over [the city of] Køge or extensions in existing lines)". It was set to be carried out in 2004-2005[4].

5. The Danish Transport Authority ('Trafikstyrelsen') co-ordinated and authored the Strategy Analysis. In a summary of the Strategy Analysis published online in 2005, the Danish Transport Authority described the focus of the Analysis to be the following: to "compare the different solutions, thus providing the politicians with a basis for choosing one future strategy for extending or adding new installations".

6. The summary of the Strategy Analysis also pointed out that "The starting point of the Strategy Analysis is the situation after 2015 - 'Basis 2015'. It presupposes that today's infrastructure will be accompanied by minor capacity improvements between Copenhagen and Ringsted (the so-called KØR-project), and that by then, a permanent connection will have been established over the Femern Belt, including associated land-based installations, which, among others, improves the capacity east of Ringsted".

7. The summary also gave a brief account of what it referred to as "Previous analyses" of the possibility to extend the capacity between Copenhagen and Ringsted. "Over the last 10-12 years, a whole range of analyses have been carried out into the question of how the capacity of the railway connection between Copenhagen and Ringsted could be increased. Among others a 'project law'was adopted in 1997. This Law led to the assessment of three options: [...]. In 2000, two minor options were assessed: [...], and in 2001 it was decided to proceed with option [x]. An end was put to that project in 2002 before [the Parliament discussed the relevant legislation at its third reading]. In 2003, it was decided to carry out the Strategy Analysis" (see above).

8. In 2007, the Danish Parliament adopted new legislation, hereinafter 'Law 244 of 2007' or the 'Law', which authorised the then Minister for Transport to "examine and project/plan the necessary installations with a view to increasing the railway capacity between Copenhagen and Ringsted"[5]. The Law, a short text of some two A4 pages, states that this examination and planning/projecting should be done with a view (a) to constructing a new railway connection between Copenhagen and Ringsted and (b) to establishing a new railway line in a defined area related to this connection. The remaining text of the Law basically provided procedural instructions relating to expropriation issues.

9. In early 2007, the complainant here concerned submitted an infringement complaint to the European Commission concerning the railway capacity extension between Copenhagen and Ringsted. It alleged that Denmark failed to apply the 2001 SEA Directive. At the most, Denmark recognised the applicability of the 1985 EIA Directive. The complainant rightly pointed out that the SEA Directive provides for higher standards of environmental protection and planning than the EIA Directive.

10. The intended purpose of the SEA Directive is usefully summarised in the foreword of the European Commission's 2003 Guide on the Directive, as follows:

"The Strategic Environmental Assessment (SEA) Directive is an important step forward in European environmental law. At the moment, major projects likely to have an impact on the environment must be assessed under Directive 85/337/EEC [the EIA Directive]. However, this assessment takes place at a stage when options for significant change are often limited. Decisions on the site of a project, or on the choice of alternatives, may already have been taken in the context of plans for a whole sector or geographical area. The SEA Directive - 2001/42/EC – plugs this gap by requiring the environmental effects of a broad range of plans and programmes to be assessed, so that they can be taken into account while plans are actually being developed, and in due course adopted. The public must also be consulted on the draft plans and on the environmental assessment and their views must be taken into account.

Whilst the concept of strategic environmental assessment is relatively straightforward, implementation of the Directive sets Member States a considerable challenge. It goes to the heart of much public-sector decision-making. In many cases it will require more structured planning and consultation procedures. Proposals will have to be more systematically assessed against environmental criteria to determine their likely effects, and those of viable alternatives. There will be difficult questions of interpretation, but when properly applied, these assessments will help produce decisions that are better informed. This in turn will result in a better quality of life and a more sustainable environment, now and for generations to come."

11. In its infringement complaint to the Commission, the complainant also expressed doubts as to whether Denmark observed the EIA Directive and the Habitats Directive. However, inspired by the better protection offered by the SEA Directive, it focused its arguments on the application of that legislation.

12. The crux of the issue was whether the extension of the railway capacity between Copenhagen and Ringsted was, or was part of, a 'plan or programme'. The SEA Directive only applies to 'plans or programmes', not to 'projects'. The latter are covered by the EIA Directive. However, 'plans or programmes' are not defined in the SEA Directive. The SEA Directive describes with some precision which types of 'plans or programmes' it applies to, but it does not, as such, state what a 'plan or a programme' means. It therefore requires a certain degree of expertise to identify the subject matter of the SEA Directive. This matter is examined in more detail in the assessment part below.

13. In the case here concerned, the Commission focused on the above-mentioned Law 244 of 2007 (see paragraph 8 above), adopted shortly after the submission of the complainant's infringement complaint. The Commission concluded that this Law did not set out a 'plan or programme'. It stated that since this Law defined a "specific project purpose" - i.e., the extension of the railway capacity between two cities - it did not set out a 'plan or programme'. It found that Denmark therefore did not breach EU law by not applying the SEA Directive, and it closed the complainant's infringement complaint file. The complainant disagreed and therefore complained to the European Ombudsman about the Commission's findings on its infringement complaint.

The subject matter of the inquiry

14. The Ombudsman opened an inquiry into the following allegations and claim.

Allegations:

(1) The Commission failed adequately to explain why the SEA Directive 2001/42 is not applicable to the object of the complainant's infringement complaint.

(2) The Commission failed adequately to explain why, as it appears to consider, the EIA Directive 85/337 and the Habitats Directive 92/43 were fully respected by the Danish authorities.

(3) The Commission acted unfairly by holding a meeting with the Danish authorities on the subject of the infringement complaint, without also inviting the complainant.

Claim:

The complainant claims that the Commission should take appropriate measures to ensure compliance with the EU legislation referred to in the first and second allegations.

The inquiry

15. On 31 May 2010, the Ombudsman asked the Commission to submit an opinion on the complaint. The Commission submitted its opinion on 20 October 2010. The opinion was forwarded to the complainant, which submitted its observations on 31 December 2010. On 12 October 2011, the Ombudsman made a draft recommendation to the Commission. The latter submitted its opinion on the draft recommendation on 7 February 2012. The Ombudsman sent the Commission's opinion to the complainant, which submitted its observations in April 2012.

Preliminary remarks

16. The Ombudsman recalls that his inquiry is limited to investigating whether the Commission acted in accordance with the rules and principles binding upon it when handling the infringement complaint. His investigation does not imply a review of the question whether national legislation, decisions or practices may be contrary to EU law.

17. The Ombudsman also recalls that his assessment of whether 'instances of maladministration' occurred is limited to the facts up to the point in time when the complaint in question was submitted to the European Ombudsman.

A. Allegation that the Commission failed adequately to explain why the SEA Directive 2001/42 is not applicable to the object of the complainant's infringement complaint

Arguments presented to the Ombudsman

18. The complainant submitted, in summary, that the Commission failed to explain adequately why it took the view that the SEA Directive did not apply to the railway capacity extension scheme here in question. In its opinion on the complaint to the Ombudsman, the Commission essentially maintained its explanations, which it considered entirely adequate. In its subsequent observations, the complainant, for its part, essentially maintained its complaint.

19. The detailed issues that the complainant raised in its infringement complaint and the Commission's response are examined in further detail in the following part.

The Ombudsman's assessment leading to a draft recommendation

20. In its infringement complaint to the Commission, including its subsequent follow-up letters, the complainant gave a fairly detailed account of the history of the railway capacity extension scheme for the line Copenhagen-Ringsted (see the information under 'background' above). In this correspondence, the complainant raised, in summary, the following issues.

21. In its first letter, the complainant informed the Commission that the Danish Parliament was about to adopt the above-mentioned Law 244 of 2007. It asked the Commission for urgent action to stop this law from being adopted because, in its view, the preparatory stages did not respect the SEA Directive. It specified that its complaint mainly alleged that the railway capacity extension scheme was, at that point, about to reach the project/planning phase without the necessary environmental safeguards having been respected. It considered that it was important, and required by the Directive, that the environmental assessment take place before the adoption of Law 244 of 2007. It stated that the Minister for Transport had simply omitted the public hearing stage relating to the above-mentioned Strategy Analysis. It also stated its view that the hearings previously held in the 1990s could not suffice. The analyses that at the time had just been conducted and the related proposals were separate phases that required new hearings.

22. Shortly after this correspondence, the Danish Parliament adopted Law 244 of 2007.

23. A few months later, the Commission asked the complainant for further detailed information and clarifications.

24. The complainant replied in a detailed and structured letter. It strongly emphasised that the then recent political initiatives could not be considered mere extensions, in legal terms, of the policy initiatives that took place in the 1990s (that is, long before the SEA Directive was adopted). In the complainant's view, the SEA Directive was applicable. It noted that the Minister for Transport chose "merely" to apply the EIA Directive, but submitted that even this directive was not respected (nor, it added, was the EU's Habitats Directive). The complainant then provided a fairly detailed historical account of the political initiatives taken in connection with the railway capacity extension scheme, pointing to, among others, the Strategy Analysis 2004-2005. It criticised certain aspects of the Strategy Analysis and stated that "the environmental assessments lack entirely". Furthermore, the complainant highlighted one fact mentioned in the Strategy Analysis, namely that the importance of the railway connection between Copenhagen and Ringsted went far beyond the transportation of people and goods between those two cities. It pointed out that the connection would also be used for international traffic in the EU. It stated that it presumed that this EU-aspect of the railway capacity extension scheme would receive the European Commission's attention, among others in relation to any decision that it would have to take in connection with the EU structural funds. In various parts of its letter, the complainant also strongly emphasised the utility of applying the SEA Directive to the kind of scheme here in question.

25. The issues raised by the complainant in its infringement complaint and the relevant related correspondence, may thus be listed as follows:

(a) The analyses that immediately preceded the adoption of Law 244 of 2007 were separate and, within the framework of the SEA Directive, new steps. According to the complainant, this implied that the various hearings and actions relating to the idea of a railway capacity extension from the late 1990s onwards could not be taken into account for the purpose of an assessment of the applicability of the SEA Directive.

(b) The specific main analysis that preceded Law 244 of 2007 was the Strategy Analysis of 2004-2005. The environmental assessment required by the SEA Directive for such an analysis was entirely lacking.

(c) Law 244 of 2007 is not, or is not about, a 'project'. Therefore, it does not, by way of being referred to as a 'project law', fall under the EIA Directive to the exclusion of the SEA Directive. Accordingly, the SEA Directive applies. The Danish word 'projektering', which features in the title of Law 244 of 2007, is an active term that does not imply the existence or initiation of 'a project', but rather a 'plan'.

(d) The SEA Directive could have been applied by the Danish authorities, and ought to have been applied. The complainant referred to the intended purposes of this Directive set out in the foreword to the Commission's 2003 Guide on the SEA Directive.

(e) The clear EU-wide dimension of the railway capacity extension scheme, combined with its high environmental impact, created a logic in favour of considering the SEA Directive legally applicable.

26. Before examining the Commission's response to the complainant, the Ombudsman considered it important to put on record that the early replies to the complainant from the Commission service were thorough and service-minded. Notably in a letter of 20 July 2007, the Commission service explained to the complainant what it understood the infringement complaint to be about and it then indicated that, on a preliminary examination, it was not obvious to it that Denmark breached EU law. It therefore made inquiries regarding a number of specific issues. Among these was Law 244 of 2007, in respect of which it informed the complainant about the aspects which were still not fully clear to the Commission, and invited the complainant to reply to certain specific questions. It was clear from the letter that the Commission service had carefully examined the materials submitted to it by the complainant. The Commission service even pointed out, having apparently examined the above-mentioned Strategy Analysis 2004-2005, that a site of EU environmental interest under the EU's Habitats Directive would be affected. It also specifically pointed out that the EIA Directive and the Habitats Directive require that alternatives be examined and that it was not clear from the material provided by the complainant that such alternatives had indeed been examined. Finally, the letter was written in understandable language and, hence, with an appropriate degree of empathy towards the non-expert complainant here in question.

27. The Commission's subsequent correspondence, containing its rejection of the infringement complaint, was less elaborate.

28. With regard to the Commission's explanations as to why, in its view, it considered the SEA Directive inapplicable to the railway capacity extension scheme here in question, the infringement complaint raised the specific issues listed above. The Ombudsman considered that the main question is therefore whether the Commission addressed those issues, either (i) expressly or (ii) implicitly, but so clearly that they did not need to be addressed expressly.

29. With regard to the issues referred to in points (a) and (b) of the list in paragraph 25 above, it did not appear to the Ombudsman that the Commission addressed these either expressly or implicitly. It thus remained undetermined, for instance, whether the Strategy Analysis of 2004-2005, which preceded Law 244 of 2007, could in itself be considered a 'plan or programme'. The Strategy Analysis appeared to lack specificity because it was merely a study of various options, and it placed its object in a larger traffic context (see paragraph 6). Similarly, the Commission did not address the issue as to when the developments that the complainant criticised became "separate", for the purposes of the potential applicability of the SEA Directive. It did not, however, appear irrelevant to address this issue, given that the SEA Directive became applicable only several years after the Danish Parliament began studying the idea of increasing the capacity of the railway extension here concerned.

30. With regard to point (c), the Commission essentially informed the complainant that a scheme intended to increase the railway capacity between two cities is so concrete that it cannot, in its view, fall under the definition of 'plan or programme' in the SEA Directive. It stated the following:

"It appears clearly that Law 244 defines a specific project purpose intended to extend the railway capacity between the two cities. Unlike the SEA Directive, Law 244 therefore concerns a project and not a 'plan or a programme'. This conclusion is supported by the fact that the Law does not set out how it is proposed to implement a scheme or a policy. The Law is therefore not a 'plan' under the terms of the [SEA] Directive. Moreover, the Law does not cover a set of projects in a given area, and does not contain proposals as to how a specific policy shall be implemented. The Law is therefore not a 'programme' under the terms of the [SEA] Directive.

The Law concerns a 'project' about the extension of the railway capacity between Copenhagen and Ringsted, since the project is well defined and well specified. The SEA Directive does not apply to projects, and can therefore not be invoked / applied in the situation referred to in [your infringement] complaint."

31. Apart from Article 2 of the SEA Directive, the Commission did not refer to other sources in support of its explanations quoted above.

32. In its subsequent letters to the Commission, the complainant maintained its above-mentioned arguments. In a letter of 23 January 2009, it added detailed arguments about the wording of Law 244 of 2007, which in its view could not be understood, in Danish, to refer to a 'project' and which therefore had to be understood to refer to a 'plan or programme'. At any rate, according to the complainant, the Law did not contain any reference to a well-defined and specific 'project'. The complainant also stated that it simply did not understand the Commission's above-mentioned explanations for why Law 244 of 2007 concerned, in the Commission's view, a 'project' and not a 'plan or programme'. It asked for clarifications.

33. In its reply, the Commission reiterated its findings. It stated that the SEA Directive concerns 'plans and programmes' referred to in Article 2 of the Directive, and that Law 244 of 2007, concerning a railway line between two cities, "defines a specific project aim about an extension of the railway capacity between the two cities. Unlike the SEA Directive, Law 244 therefore concerns a project and not a plan or a programme".

34. The Commission emphasised that even if the SEA Directive - or the principles that it contains - could have been applied by the Danish authorities in relation to the railway capacity extension, it is not possible to identify and impose a duty to do so.

35. In a further letter of 10 December 2009, the complainant again contested the Commission's view. The complainant repeated that the Danish word "projektering" in the title of Law 244 of 2007 was misleading. It emphasised that the Law merely authorised the transport minister to study and "projektere" ('plan' / 'examine' / 'look into') the necessary infrastructure for the railway line. The Law essentially left everything open to be studied and could therefore not be seen to concern a 'project' within the meaning of the SEA Directive.

36. The Commission replied on 22 March 2010, referring to its previous comments. It informed the complainant that the Commission closed the case in January 2010.

37. In its opinion on the present complaint to the Ombudsman, the Commission essentially maintained its position referred to above. It recalled that the meaning of the words 'plan or programme' in Article 2 of the SEA Directive are not further defined.

38. The Commission then stated, in relation to the facts of the present case, that "[p]lanning and programming thus takes place at more general and abstract level than when the railway capacity extension between two determined cities is being authorised. At this point, as has also been pointed out to the complainant, it is only the means to achieve the capacity increase that is studied. The fact that it will be increased in one way or another has already been decided previously. The Commission has thus concluded that the railway capacity extension in question constituted a project which falls under the EEA Directive".

39. Before proceeding to assess the Commission's explanations, the Ombudsman recalled that the case before him concerns alleged maladministration by the Commission in its handling of the complainant’s infringement complaint. The case does not concern possible shortcomings in EU legislation, in particular the fact that the SEA Directive does not include a definition of two of its key terms.

40. The Ombudsman added that the aim of his assessment, therefore, is to determine whether the Commission adequately explained to the complainant why it took the view that the SEA Directive did not apply to the scheme for extending the railway capacity between the two Danish cities here concerned. He stated that, as far as reasonably possible, such explanations should, in general: (i) address the complainant's relevant arguments; (ii) be reasonably coherent with the Commission's general practices, communications and policies in the area; and (iii) be such that the citizens concerned would be better able to decide whether it is relevant to complain about similar matters in the future.

41. The Commission clearly addressed the question whether Law 244 of 2007 constituted, or contained, a 'plan or programme' within the meaning of Article 2 of the SEA Directive. It took a clear-cut view, finding that this Law was not, or did not contain, such a 'plan or programme'. The question was therefore whether the Commission's related explanations were adequate for the complainant here in question.

42. The Commission's most detailed attempt at expressly explaining to the complainant why the SEA Directive is not, in its view, applicable, was formulated in the quotation set out in paragraphs 30 and 38 above. The complainant stated that it simply did not understand the explanations, including their terminology. In a subsequent letter, the Commission confirmed its explanations and added that Law 244 of 2007 "defines a specific project aim" about the railway capacity extension.

43. The Commission's explanations were, at various points, accompanied by a reference to its 2003 Guide on the SEA Directive. This document is not intended to guide citizens in their reading of the Directive, but it is "designed to help Member States, Acceding States and Candidate Countries understand fully the obligations contained in the Directive and assist them in transposing the Directive into their national law and, equally important, in creating or improving the procedures, which will give effect to the legal obligations." Moreover, "it should also be of use to authorities which have to apply the Directive". Nevertheless, the complainant is a member of civil society, and showed considerable insight into relevant factual and legal issues. As a starting point, it was therefore reasonable to expect that the complainant would study the relevant sections of this document and read them in combination with the Commission's additional explanations. For the purpose of the present assessment, the Ombudsman therefore considered those sections to form part of the Commission's relevant explanations to the complainant.

44. The relevant part of the Commission's 2003 Guide is part 3, "Scope of the Directive". The relevant sections of this part are sections 3.1 to 3.6. The following sections explain how the Directive may apply to plans and programmes that are funded by the EU and how the Directive may apply to plans and programmes that are modified. The Ombudsman deemed it useful to quote sections 3.1 to 3.6 in full (the footnotes are original):

"3. SCOPE OF THE DIRECTIVE[6]

3.1. The provisions determining the scope of application of the Directive are mainly expressed in two related articles. Article 2 sets out certain characteristics which plans and programmes must possess for the Directive to apply to them. Article 3 then sets out rules for determining which of those plans and programmes are likely to have significant effects on the environment and must therefore be subject to environmental assessment. Article 13(3) defines the temporal scope of application (see paragraphs 3.64-66 below).

Article 2

(a) ’plans and programmes’ shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:

- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

- which are required by legislative, regulatory or administrative provisions.

3.2. The first requirement in order for plans and programmes to be subject to the Directive, is that they must meet the conditions of both indents in Article 2(a). In other words, they must be both 'subject to preparation and/or adoption by the prescribed authorities' and 'required by legislative, regulatory or administrative provisions'.

3.3. Plans and programmes are not further defined. The words are not synonymous but they are both capable of a broad range of meanings which at some points overlap. So far as the Directive’s requirements are concerned, they are treated in an identical way. It is therefore neither necessary nor possible to provide a rigorous distinction between the two. In identifying whether a document is a plan or programme for the purposes of the Directive, it is necessary to decide whether it has the main characteristics of such a plan or programme. The name alone ('plan', 'programme', 'strategy', 'guidelines', etc) will not be a sufficiently reliable guide: documents having all the characteristics of a plan or programme as defined in the Directive may be found under a variety of names.

3.4. In considering the concept of ’project’ under the EIA Directive in case C-72/95 Kraaijeveld, the ECJ noted that that Directive had a wide scope and a broad purpose. In view of the language used in Directive 2001/42/EC, the related purposes of that Directive and the EIA Directive, and the conceptual similarities between them, Member States are advised to adopt a similar approach in considering whether an act is to be considered a plan or a programme falling within the scope of Directive 2001/42/EC. The extent to which an act is likely to have significant environmental effects may be used as one yardstick. It may be that the terms should be taken to cover any formal statement which goes beyond aspiration and sets out an intended course of future action.

3.5. The kind of document which in some Member States is thought of as a plan is one which sets out how it is proposed to carry out or implement a scheme or a policy. This could include, for example, land use plans setting out how land is to be developed, or laying down rules or guidance as to the kind of development which might be appropriate or permissible in particular areas, or giving criteria which should be taken into account in designing new development. Waste management plans, water resources plans, etc, would also count as plans for the purposes of the Directive if they fall within the definition in Article 2(a) and meet the criteria in Article 3.[7]

3.6. In some Member States, programme is usually thought of as the plan covering a set of projects in a given area, for example a scheme for regeneration of an urban area, comprising a number of separate construction projects, might be classed as a programme. In this sense, 'programme' would be quite detailed and concrete. One good example of such a programme could be the Icelandic Integrated Transportation Programme which is planned to take the place of independent programmes for road, airport, harbour and coastal defence projects. The transport infrastructure is defined and policy on transport infrastructure is laid out for a period of 12 years (identifying projects by name, location and cost). But these distinctions are not clear cut and need to be considered case by case. Other Member States use the word 'programme' to mean 'the way it is proposed to carry out a policy' – the sense in which 'plan' was used in the previous paragraph. In town and country planning in Sweden, for instance, the programme is thought of as preceding a plan and as being an inquiry into the need for, and appropriateness and feasibility of, a plan."

45. The Ombudsman stated that the clarifications quoted above convey several messages. They clarify that 'plans and programmes' are notions that are undefined, and that a rigorous distinction between the two is essentially impossible (or perhaps unwanted). The clarifications advise Member States to give a broad interpretation to these notions. The clarifications furthermore indicate in several parts that a relevant source - perhaps even the main source - of understanding what 'plan or programme' mean, are national practices ("in some Member States..."). In terms of the (required) specificity of the schemes in question, the clarifications refer to matters that "cover any formal statement which goes beyond aspiration and sets out an intended course of future action" and matters that "would be quite detailed and concrete".

46. The Ombudsman added that, while he possesses no empirical insights into how the 2003 Guide was received by non-experts, he cannot, on the basis of the text alone, be confident that the Guide is generally likely to enable non-experts to predict with any degree of assurance when the SEA Directive may be legally applicable. In concrete 'cases' like the present one, where the Commission responded to an infringement complaint submitted according to procedures foreseen for that purpose, the Commission is faced with more specific facts and contexts. An author of an infringement complaint may reasonably expect that this would enable the Commission to concretise, to some extent, the clarifications contained in the 2003 Guide.

47. The previously quoted attempt by the Commission to clarify why, in its view, Law 244 of 2007 is not covered by the SEA Directive, appeared to be an attempt to apply some of the phrases in the 2003 Guide to the concrete case in question. The Ombudsman considered that this was positive from the point of view of coherence, and that it could help to establish a practice that may, over time, procure some degree of legal certainty in the application of the Directive.

48. However, from the point of view of communication with the complainant in this specific case, the Ombudsman pointed out that he understood why the complainant expressed incomprehension at the Commission's explanations.

49. The Commission stated, first, that Law 244 of 2007 was not a 'plan' because "the Law does not set out how it is proposed to implement a scheme or a policy". The Ombudsman stated that this expression appears to be inspired by section 3.5 of the above-mentioned 2003 Guide, in the part which states that "[t]he kind of document which in some Member States is thought of as a plan is one which sets out how it is proposed to carry out or implement a scheme or a policy". The Commission also attempted to explain that Law 244 of 2007 is not a 'programme' because "the Law does not cover projects within a given area, and does not contain proposals as to how a specific policy shall be implemented" and the extension is "well defined and well specified". This expression appeared to be inspired by the first sentence of section 3.6 of the 2003 Guide quoted above.

50. The Commission's explanations appeared to revolve around the idea that Law 244 of 2007 was, or was about something, so "specific" that it could (for that reason) not be a 'plan or a programme' within the meaning of Article 2 of the SEA Directive. However, the Ombudsman went on to state, this idea was conveyed to the complainant through the use of terms or phrases that are as imprecise as the key terms here in question are recognised to be (for instance 'scheme' and 'policy') and which were found in sections of the 2003 Guide that (contrary to the above-mentioned idea of a lack of 'specificity') appear to allude to something that is in fact rather specific: "cover any formal statement which goes beyond aspiration and sets out an intended course of future action" and "would be quite detailed and concrete".

51. In light of the above, the Ombudsman shared the complainant's view that the explanations given to the complainant did not clarify in a very helpful manner the Commission's finding that Law 244 of 2007 was not, or did not contain, a 'plan or programme' within the meaning of Article 2 of the SEA Directive.

52. At this point, the Ombudsman deemed it necessary to consider whether the Commission's opinion in the present inquiry compensated for this shortcoming.

53. In the relevant part of its opinion, the Commission stated that "[p]lanning and programming thus takes place at more general and abstract level than when the railway capacity extension between two determined cities is being authorised. At this point, as has also been pointed out to the complainant, it is only the means to achieve the capacity increase that is studied. The fact that it will be increased in one way or another has already been decided previously. The Commission has thus concluded that the railway capacity extension in question constituted a project which falls under the EEA Directive".

54. The Commission accordingly maintained its position. It also added that it "... is only the means to achieve the capacity increase that is studied. The fact that it will be increased in one way or another has already been decided previously" (emphases added).

55. The Ombudsman took the view that this statement does not specify what is meant by "decided previously". He stated that it is clear from the history of the idea to extend the railway capacity between Copenhagen and Ringsted that, for several years, the idea has been examined during different periods and studied in different analyses. The "decision" to which the Commission's statement quoted above refers therefore remained unidentified, and there is no information that clearly indicates what the Commission intended to refer to. It was, for instance, unclear whether the Commission intended to convey the message that some sort of 'plan or programme' - or an equivalent (prior to the SEA Directive) of such a 'plan or programme' - may be considered to have existed, in the past, in relation to the idea to extend the railway capacity between the two cities.

56. In light of the above, the Ombudsman could not find that the Commission, in its opinion, compensated for the lack of useful explanations in its letters to the complainant.

57. With regard to issue (d), the Commission did not address it. However, its 2003 Guide on the SEA Directive, to which it referred the complainant, states that "[t]he extent to which an act is likely to have significant environmental effects may be used as one yardstick." The Ombudsman noted that this consideration is not presented in the Guide as having less weight or relevance than the other considerations which the Commission applied in its explanations quoted above in paragraphs 30 and 38.

58. With regard to issue (e), the Commission also did not clarify whether the EU dimension of the railway capacity extension scheme was, or could be, of any relevance to the applicability of the SEA Directive. It was not, however, unreasonable of the complainant to think that an EU transport context might be of relevance to the EU environmental legislation here in question. Citizens are, for instance, regularly reminded that the environment is an obvious cross-border issue.

59. With regard to the complainant's repeated argument that the SEA Directive could, and in its view ought, to have been applied, the Commission explained that the freedom that a Member State has to apply the methods in the Directive cannot, in itself, imply a legal obligation to do so. It appeared to the Ombudsman that this explanation was clear and logical.

60. In light of the foregoing, the Ombudsman made the following draft recommendation to the Commission:

"The Commission should provide more specific and easily understandable explanations for its finding that the SEA Directive does not apply to the railway capacity extension scheme Copenhagen-Ringsted in Denmark.

Specifically, the Commission should, first, address points (a) and (b) of the list set out in paragraph 25 above.

Second, it should provide more understandable explanations than the ones quoted in paragraphs 30 and 38, taking into account the aims of such explanations as set out in paragraph [40].

Third, the Commission should explain whether, in line with its 2003 Guide, it took into account the extent of the environmental impact of the railway capacity extension scheme, and if it did not do so, it should explain why.

Fourth, the Commission should explain whether the EU-wide transport dimension referred to by the complainant was an irrelevant factor for the purposes of determining the applicability of the SEA Directive."

The Ombudsman also made the following related systemic draft recommendation:

"At a systemic level, the Commission should consider the possibility of producing a revised guide to the SEA Directive which is specifically addressed to citizens, enabling the latter to acquire a reasonable understanding of when the SEA Directive may be applicable. Such a guide could include useful illustrative examples of what has so far, in various EU Member States, been considered to constitute a 'plan or programme'."

The arguments presented to the Ombudsman after his draft recommendation

61. In its opinion on the draft recommendation, the Commission put forward the information and points reproduced below.

The specific points related to the present case

"According to the Ombudsman's draft recommendation, the complainant has stated that

'the analyses that immediately preceded the adoption of Law 244 of 2007 were separate and, within the framework of the SEA Directive, new steps. According to the complainant, this implied that the various hearings and actions relating to the idea of a railway capacity extension from the late 1990s onwards could not be taken into account for the purpose of an assessment of the applicability of the SEA Directive.'

The Ombudsman has addressed this issue, stating that 'the Commission did not address the issue as to when the developments that the complainant criticised became "separate", for the purposes of the potential applicability of the SEA Directive. It did not, however, appear irrelevant to address this issue, given that the SEA Directive became applicable only several years after the Danish Parliament began studying the idea of increasing the capacity of the railway extension here concerned.'

The Commission's understanding of the complainant's argument is that he claims that the various hearings and actions from the late 1990s onwards could not be invoked in order to argue that the requirements of the SEA Directive had been fulfilled. It is true that the Commission has not expressly addressed this issue in its closure letters to the complainant. This is because the Commission agrees with the complainant on this point. Thus, the hearings and actions in question were not a circumstance which contributed to the Commission's conclusions on the complaint as a whole and it was therefore not necessary to address them in the closure letter(s) to the complainant.

According to the Ombudsman's draft recommendation, the complainant has stated that 'the specific main analysis that preceded Law 244 of 2007 was the Strategy Analysis of 2004-2005. The environmental assessment required by the SEA Directive for such an analysis was entirely lacking.'

The Ombudsman has addressed this issue, stating that 'it thus remained undetermined, for instance, whether the Strategy Analysis of 2004-2005, which preceded Law 244 of 2007, could in itself be considered a plan or programme'. The Strategy Analysis appeared to lack specificity because it was merely a study of various options, and it placed its object in a larger traffic context'.

The Commission would first like to point out that the complainant, in his letters related to complaint 2008/4152 in the Commission's possession, has neither claimed that the SEA Directive would require an environmental assessment of the strategic analysis nor argued that the analysis would in itself constitute a plan or a programme. The Commission therefore disagrees with the Ombudsman on this point.

Nonetheless, the strategic analysis is an essential part of the background material that the complainant refers to in support of his claims in complaint 2008/4152. The Commission draws therefore the attention to the fact that the nature and purpose of the strategic analysis was examined during the investigation of complaint 2008/4152. As a starting point, the Commission, in its letter of 20 July 2007, asked for details about the function that the strategic analysis fills and for what purpose, in the framework of the assessment procedure, that document had been elaborated. The complainant has replied in a detailed manner about the context surrounding the analysis, however without giving information which would allow drawing solid legal conclusions about the document's role in the procedure leading to the adoption of Law 244.

In reply to the Ombudsman's question the Commission considers that the strategic analysis does not appear to in itself constitute a plan or programme falling under the SEA Directive inter alia because, on the basis of available information, it is not required in legislative, regulatory or administrative provisions (Article 2(a) second indent).

The Ombudsman has also recommended that the Commission provide more specific and easily understandable explanations for its finding that the SEA Directive does not apply to the railway capacity extension scheme Copenhagen-Ringsted in Denmark and on the differentiation between plans/programmes on the one hand and projects on the other hand.

It should be stated at the outset that the Commission has carefully examined whether the SEA Directive was applicable in the situation raised in complaint 2008/4152. The issue has been raised repeatedly, both formally during the so-called package meeting with Danish authorities in June 2009 and informally within the services of the Commission and with the relevant services within the Danish administration. However, the conclusion of the Commission's assessment of the complaint was that it was not possible to demonstrate that Denmark had breached the SEA Directive in the procedure leading to the adoption of Law 244.

The complainant has on several occasions provided detailed assessments of the meaning of certain words in Law 244. However, it is the content of the document which determines whether it is to be considered as a plan or a programme, not the name given to the document. The fact that Law 244 is entitled 'Projecting Act on a railway installation between Copenhagen and Ringsted' is therefore not relevant in the Commission's conclusion that the railway extension is a project (and not a plan or a programme).

Looking at the content of Law 244, it is clear that it authorises the Minister for Transport and Energy to examine and map out ("projektere") the necessary installations in view of an increase of the railway capacity between Copenhagen and Ringsted. Law 244 thus defines that the purpose is to increase the railway capacity between those two cities. The Law further specifies how the capacity increase shall be reached, i.e. inter alia, by tracing a new railway line between Copenhagen and Ringsted which will pass by Køge. The Commission has concluded that, in view of how specific the intentions expressed in Law 244 are, the object of the Law is a project instead of a plan or a programme.

The Ombudsman has, in point 51 of his draft Recommendation pointed to the 2003 Guidance on the SEA Directive and underlined that a plan or programme could actually be something rather specific: 'cover any formal statement which goes beyond aspiration and sets out an intended course of future action' and 'would be quite detailed and concrete'. These citations are taken from points 3.4 and 3.6 of the Guidance.

In order to clarify the context of these citations, it may be useful to see plans, programmes and projects on a timeline. At first there is the idea phase where a plan is being sketched. We can refer to this stage as the policy stage. This stage is not covered by EU legislation. When the policy becomes intent, formally expressed, going beyond aspiration, and setting out the main frames how the policy will be realised, the policy phase finishes and the planning/programming phase starts. This phase is covered by the SEA Directive. The first citation by the Ombudsman concerns the point at which a policy (unregulated area with no legal rules) becomes a plan/programme (a regulated area where legal rules exist and apply).

Then, when the plan/programme further concretises it moves from the plan/programme phase, which is governed by the SEA Directive, to the project phase, which is regulated by the EIA Directive. A project is well specified and concerns the construction/modification of a defined piece of infrastructure. Contrary to a plan/programme, it does not cover a set of projects with a common aim, such as increasing the railway capacity in general or the regeneration of an urban area. The second citation by the Ombudsman is relevant in this context. Plans/programmes which cover sets of projects would 'in this sense ... be quite detailed and concrete'.

However, in complaint 2008/4152 the Commission was assessing one infrastructure construction consisting in increasing railway capacity between Copenhagen and Ringsted, inter alia, by tracing a new railway line. The railway extension was therefore considered to be a project to which the SEA Directive is not applicable.

The Commission wishes to recall that the Court has accepted that a project is made subject to a multistage consent procedure. In such cases both/all the decisions form part of the final consent for a project.[8] This means that, although the first decision/consent for a project contains only an outline of the project, this does not mean that the first decision would be a plan/programme (and therefore that it would have to be submitted to the procedure provided for in the SEA Directive).

Finally, the Commission considers that the differentiation between plans/programmes on the one hand and projects on the other hand is a difficult task. It is not possible to draw a dividing line which would be applicable in all cases. A case-by-case assessment must therefore be made based on the characteristics of each individual case. The characteristics shall not be seen as criteria to be met (in order for an object to qualify as a plan/programme) but rather as indications weighing in the direction of plans/programmes or of projects. For instance, if a document relates to a number of projects, it may be an indication that the document is a plan/programme and not a project.

In the case at hand in complaint 2008/4152 the balance weighed in favour of the railway extension being considered as a project.

The Ombudsman has recommended that the Commission explain whether, in line with its 2003 Guide, it took into account the extent of the environmental impact of the railway capacity extension scheme, and if it did not do so it should explain the reason why.

The Commission notes that the 2003 Guidance, in point 3.4, mentions that 'the extent to which an act is likely to have significant environmental effects may be used as one yardstick' when determining whether an act is to be considered as a plan or a programme falling within the scope of the SEA Directive.

The Commission would like to refer to its reasoning above, in relation to a timeline on which the planning/programming phase precedes the project phase. The extent of environmental impact is to be taken into consideration when determining if an infrastructure is still in the policy phase (which is unregulated) or has already moved to the planing/programming stage (which is governed by the SEA Directive). Since the issue in the complaint at hand is about whether the Law is a plan/programme or a project and since in accordance with the EIA Directive an environmental impact assessment for the project was being conducted where the environmental impacts were addressed, this aspect is not a concern. The extent of the environmental impact of the railway extension has therefore not been further assessed in the context of the complaint concerning the applicability of the SEA Directive.

The Ombudsman has recommended that the Commission explain whether the EU-wide transport dimension referred to by the complainant was an irrelevant factor for the purposes of determining the applicability of the SEA Directive.

It is true that the complainant has drawn the Commission's attention to the planned fixed link between Denmark and Germany over the Fehmarn Belt strait, stating that the link will further increase the importance of the railway between Copenhagen and Ringsted as it will be a transit connection between Germany and Scandinavia.

However, the Commission does not consider that this aspect determines the applicability of the Directive. The possible future traffic increase due to the Fehmarn Belt link could in fact be invoked for a number of Danish railways and roads. This aspect of the complaint was therefore not further assessed."

The systemic issue

"The Ombudsman has recommended that the Commission, on a systemic level, should consider the possibility of producing a revised guide to the SEA Directive which is specifically addressed to citizens, enabling the latter to acquire a reasonable understanding of when the SEA Directive may be applicable. Such a guide could include useful illustrative examples of what has so far, in various EU Member States, been considered to constitute a 'plan or programme'.

The Commission considers that it has already taken appropriate action with regard to this draft recommendation.

In 2009, the Commission published a report on the application of the SEA Directive[9] (available in all languages). This is the first implementation report, which concludes that 'the application of the SEA in Member States is in its infancy, and that further experience is needed', and gives a broad picture of how the SEA Directive has been applied in the various EU Member States.

It should be stressed that the first implementation report was preceded by a study which already contained detailed information and more concrete examples on how the SEA is applied in the EU Member States[10]. In the context of the next implementation report, the Commission will include illustrative examples of "plans and programmes" that have been considered in various Member States as requiring a SEA.

As regards the guidance document on the implementation of the SEA Directive, which was published in 2003 by the Commission services in close cooperation with national SEA experts, it can also be used by citizens. The Guidance document is not outdated, although the Commission is aware that some updates may be needed. The first ever judgment on this Directive was delivered in 2010 and there are still only 3 judgments in total.[11] Given that some relevant Court rulings were delivered recently with regard to the SEA Directive and some cases are still pending where the judgment will be delivered in the near future[12], the Commission will have to find the most appropriate and meaningful timing to revise the guidance. A compendium of ECJ case law could also be considered for the SEA Directive as the one published on the EI A case law."

In its conclusion, the Commission expressed the view that it had "thus accepted the draft recommendations by the Ombudsman in this case and has provided the further explanations as requested."

62. In its observations, the complainant essentially maintained its position.

The Ombudsman's assessment after his draft recommendation

63. The Ombudsman notes that the main points of disagreement in the present case primarily arise as a result of lack of precision in the wording of legislation. The Ombudsman very much appreciates the Commission's frankness in this respect. Rather than purporting to rebut the complainant's arguments with legal-scientific reasoning, the Commission fully recognised, in its own words, "that the differentiation between plans/programmes on the one hand and projects on the other hand is a difficult task. It is not possible to draw a dividing line which would be applicable in all cases. A case-by-case assessment must therefore be made based on the characteristics of each individual case."

64. Two approaches are possible to the administrative application of imprecise legislation. The first approach is to seek pragmatic solutions that seem appropriate for specific circumstances and which are not inconsistent with the wording of the legislation. The second is to offer a general interpretation which, in principle, would also cover future applications of the legislation. This approach aims, in effect, to complement the work of the legislator. (Adopting the first approach does not exclude moving to the second in the light of experience).The explanations provided by the Commission in the framework of the present inquiry appear to indicate that, in dealing with the complainant’s infringement complaint, the Commission basically adopted the first approach. It explained how it reached its findings taking into account the complainant's submissions, and subsequently addressed the specific points raised by the Ombudsman. The Commission was frank and clear in its explanations as to when and why it had to make a choice in favour of the direction it ultimately found most appropriate on the facts.

66. The Ombudsman considers (a) that it was reasonable for the Commission to adopt the first approach in the circumstances of the present case and (b) that its explanations suggest that, in applying that approach, it could reasonably have reached the findings quoted above. He therefore ends his assessment of this part of the case.

67. The problematic context described above, which flows from the wording of the legislation here in question, is part of the reason why in his draft recommendation the Ombudsman referred to the need for systemic improvement. When legislation is imprecise and local review options are very limited - as appears to have been the case in Denmark in relation to the facts of the present case - it is important that the Commission take systemic measures to promote the implementation of EU law. The Ombudsman was delighted to see that the Commission responded in the same spirit. Although it did not express a specific commitment to issue a new Guidance document within a precise time frame, the Commission referred to concrete improvements which, at the time it submitted its opinion, it intended to introduce with a view to pursuing the objective of greater certainty and transparency in the application of the legislation.

68. In light of the above considerations, the Ombudsman considers that the Commission responded well to his draft recommendation, and therefore closes the present inquiry. The claim referred to in paragraph 14 above will therefore not be pursed within the inquiry.

B. Allegation that the Commission failed adequately to explain why, as it appears to consider, the EIA Directive 85/337 and the Habitats Directive 92/43 were fully respected by the Danish authorities

Arguments presented to the Ombudsman

69. In its infringement complaint, including its follow-up correspondence in response to the Commission's letter of 20 July 2007, the complainant appeared to suggest that Denmark did not respect the EIA Directive because the relevant hearing standards were not respected. The complainant also appeared to suggest that the Habitats Directive was not sufficiently taken into account. In its opinion on the present complaint, the Commission considered that these issues were not put forward in such a manner that they could reasonably be considered to form part of the infringement complaint as such.

The Ombudsman's assessment

70. The Ombudsman understands the Commission's argument that the issues raised here were not presented in a very explicit manner in the infringement complaint. However, he considers that a reasonable and contextual reading of the early correspondence makes it fair to view those issues as having formed part of the infringement case. In its infringement complaint, the complainant made comments about Denmark's alleged lack of observance of the rules in the EIA Directive and the Habitats Directive. It is clear that the complainant's comments about those directives were secondary. This, however, was only natural. The complainant's main point in the infringement complaint was that it was the SEA Directive that was applicable to the railway capacity extension scheme here in question, and not other EU environmental legislation. It would have been illogical for the complainant to pursue its criticism regarding the EIA Directive and the Habitats Directive with equal vigour. These directives, and possible related breaches of them, were nevertheless mentioned. Furthermore, the Commission's initial and detailed letter of 20 July 2007 to the complainant expressly referred to the EIA Directive and the Habitats Directive, recalling a requirement in these directives and asking the complainant for further information. It was therefore reasonable of the complainant to presume that they formed part of the file on his infringement complaint.

71. In its opinion, the Commission recognised that the issues relating to possible breaches of the Habitats Directive were not addressed. It stated that "a case concerning this issue has therefore been registered in our database for complaint handling with reference CHAP (2010)02157 and the complainant has been informed of this Commission action. The available information is being analysed in order to assess whether the railway extension has complied with the requirements in Article 6(3) of the Habitats Directive".

72. The Commission therefore intended to carry out a separate inquiry into this matter and inform the complainant of the outcome in due course. In its observations, the complainant did not appear to object to this way of proceeding. In light of the foregoing, the Ombudsman takes the view that this aspect of the present case received an appropriate response in the Commission's opinion, which accordingly requires no further inquiries within the framework of the present case.

73. With regard to the EIA Directive, the Commission stated that it received, at the relevant point in time, assurances from the Danish authorities that "the railroad extension would be subject to the procedure provided for in Article 1(5) of the EIA Directive. This provides that the EIA Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of the Directive, including that of supplying information, are achieved through the legislative process. As explained to the complainant in the letter of 10 November 2009, this procedure is a possibility that the Member States are authorised to use provided that the conditions therein are fulfilled. There were no indications that the conditions would not have been fulfilled and that the procedure could not be used."

74. Having examined the correspondence in this case, the Ombudsman finds that the Commission, at the relevant point in time, clearly informed the complainant about its position on this matter. The Ombudsman also points out that, from an administrative and/or operational point of view, it is common and legitimate for a control or review body to count on reassurances given to it by public bodies, and to act - or postpone eventual action - accordingly.

75. In light of the foregoing, the Ombudsman does not make a finding of maladministration against the Commission as regards this part of the case.

76. If the complainant wishes to pursue this matter, it is free to contact the Commission again for information and explanations as to the complete and detailed view that it may have formulated in light of the developments succeeding its above-mentioned response. If it considers that it receives an unsatisfactory reply that could constitute maladministration, the complainant could consider submitting another complaint to the European Ombudsman.

C. Allegation that the Commission acted unfairly by holding a meeting with the Danish authorities on the subject of the infringement complaint, without also inviting the complainant

Arguments presented to the Ombudsman

77. The complainant took the view that the Commission should have invited it to a meeting that it held with the Danish authorities about the complainant's infringement complaint. In its opinion, the Commission clarified that the 'meeting' was one part of a "so-called package meeting where a number of environmental complaints and infringements were discussed". It added that it informed the complainant about the conclusions drawn from that meeting. In response to the allegation here concerned, the Commission stated that "[h]owever, in view of the fact that the examination of a complaint is a bilateral procedure between the Commission and the Member State and in order to permit an open exchange of information and views between the two parties with the aim of resolving breaches of EU environmental legislation which have been identified, complainant[s] are not invited to such kinds of meetings...".

The Ombudsman's assessment

78. The Commission accurately pointed out, in summary, that it is under no legal obligation to invite complainants to meetings that it holds with Member States in relation to infringement issues. This is not disputed and the Ombudsman's decision to include the above allegation in his inquiry should not be understood to suggest the contrary. At the same time, and again rightly so, the Commission did not suggest that it is legally barred from inviting complainants to all meetings that it holds with Member States in this context. The Commission therefore retains a degree of discretion as to what may be the appropriate action in a concrete case. It is the exercise of this discretion that may be subject to assessment by the Ombudsman.

79. In the present state of EU law, the relationship between the Commission and the Member States in infringement cases is such that it would be most unusual for the Commission to discuss - in the sense of arguing or negotiating - infringement issues in a round-table setting with a Member State and the complainant. The matter is different, however, if the Commission meets with the Member State simply to obtain factual information. This may for instance happen if Commission officials carry out an on-site visit of certain projects in a Member State. In those cases, it may be both fair and operationally expedient to ensure the complainant's presence.

80. In the present case, it appears from the Commission's opinion that the meeting in question clearly fell within the first category of meetings where actual discussion of the infringement issues took place, or was likely to take place. Moreover, it constituted good administration on the part of the Commission to inform the complainant about the meeting and its related findings.

81. In light of the above, the Ombudsman therefore finds that there was no maladministration corresponding to the allegation here in question.

D. Conclusions

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

The Commission has accepted the draft recommendation and has given an appropriate response to it.

There was no maladministration by the Commission in relation to allegations 2 and 3 and, therefore, the related claim cannot be sustained.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 25 June 2013

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[1] 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, OJ 2001 L 197, p. 30.

[2] 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.

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

[4] Trafikaftalen (Political agreement on traffic issues) 5. November 2003 (http://www.trm.dk/da/publikationer/2003/aftale+om+trafik+af+5+november+2003/~/media/Files/Publication/2003/Aftalenrvdfkrf.ashx).

[5] The Danish term used in the Law for 'project/plan' is 'projektere'. The complainant attached some importance to the meaning of this term in its complaint. In particular, it argues that the term should not be understood to refer to a 'project'. This is why 'plan/project', or the Danish term itself ("projektere") will be used throughout the present text.

[6] In the jargon of environmental assessment, 'scope' usually refers to the coverage of the environmental report described in Article 5. This is not to be confused with the term 'scope' as used in the title of Article 3 to refer to the scope of the application of the Directive.

[7] In Case C-387/97 (Commission v Greece), the ECJ considered what would not qualify as the plans which the Member States are required to adopt under Article 6 of Directive 75/442 and Article 12 of Directive 78/319. It said that ‘legislation or specific measures amounting only to a series of ad hoc normative interventions that are incapable of constituting an organised and coordinated system for the disposal of waste and toxic and dangerous waste cannot be regarded as [such] plans’ (paragraph 76).

[8] See case C-508/03, Commission v United Kingdom, ECR 2006, p. I-03969, paragraph 102.

[9] Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the Directive on Strategic Environmental Assessment (Directive 2001/42/EC), COM(2009)469 final.

[10] Documents available under: http://ec.europa.eu/environment/eia/sea-support.htm

[11] Joint cases C-105/09 and C-l 10/09, Terre wallonne, Case C-295/10 Valciukiene, Case C-474/10 Seaport.

[12] Pending cases at the Court of Justice include C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias and others, C-567/10, Inter-Environnement Bruxelles and others, C-41/11 Inter-Environnement Wallonie and Terre wallonne., C-177/11, Syllogos Ellinon Poleodomon and xorotakton.