Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

Complaint 1140/2008/WP

1. On 21 April 2008, the Ombudsman received a complaint against the European Commission (complaint 1140/2008/WP). This complaint concerned the way in which the Commission was dealing with a complaint alleging an infringement of EU law by Austria (infringement complaint 2006/4959). The complaint to the Ombudsman was submitted by an Austrian lawyer who pointed out that she was acting on behalf of 27 citizens' initiatives fighting against the negative consequences of the expansion of Vienna airport ("the complainants").

2. Since 1999, the infrastructure at the airport of Vienna has been undergoing improvements and an extension through a series of building projects, which were authorised by the Austrian authorities. When its attention was drawn to these works, the Commission reached the conclusion that an environmental impact assessment ("EIA") ought to have been carried out pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment.[2] The Commission took the view that the purpose of Directive 85/337 could not be attained where the development consent had been given without an EIA having been carried out and where, as in the present case, the projects had already been realised or where construction was close to completion. In these circumstances, the Commission agreed in negotiations with Austria to abstain from further pursuing the infringement procedure while, in turn, Austria would elaborate an "ex post EIA" simulating in the best possible way an ex ante EIA and allowing for a full assessment of the relevant projects' environmental impact.

3. The complainants submitted that the Commission violated minimum standards of the rule of law by departing from standard infringement procedures in a way that strongly advantaged one side and disadvantaged the other. They criticized the fact that the Commission had included Flughafen Wien AG (the company running the airport of Vienna) as a de facto party in its negotiations, whereas it had denied a similar status to them. The complainants noted that they did not categorically object to the approach adopted by the Commission but argued that its implementation showed that it aimed at serving the interests of Flughafen Wien AG and of the Austrian government and at helping them to deal with their infringement in the easiest possible way. According to the complainants, the Commission's behaviour was not in conformity with Directive 85/337 and the judgment of the Court of Justice of the European Union (the "Court of Justice") in Case C-2/07.[3]

4. The complainants claimed that the Commission should either see to it that a proper ex post EIA was carried out, which in any event had to provide for proper monitoring in which the complainants had to be involved, or that it should bring the matter before the Court of Justice.

5. In their complaint to the Ombudsman, the complainants stated that on 9 April 2008 they had written to the Commissioner for Environment in relation to their case.

6. Given that fewer than two weeks had passed between the date that letter was sent out and the time when the complainants turned to the Ombudsman, the latter took the view that the complainants had not complied with Article 2(4) of his Statute. According to this provision, a complaint to the Ombudsman needs to be preceded by appropriate prior approaches to the EU institution or body concerned. This does not only mean that such approaches have to be made but also that the EU institution or body concerned has to be given a reasonable period of time to react.

7. The Ombudsman therefore informed the complainants that he was at that time unable to deal with their complaint but that they could renew their complaint if the Commission were to fail to provide a satisfactory reply to the letter of 9 April 2008 within a reasonable period of time.

Complaint 1532/2008/(WP)GG

8. On 25 May 2008, the complainants informed the Ombudsman that they had already approached the Commission on a number of occasions but that the latter was not ready to address their grievances. The complainants' letter of 25 May 2008 was therefore registered as a new complaint (complaint 1532/2008/(WP)GG).

9. The complainants enclosed copies of their correspondence with the Commission.

10. From this correspondence, it appeared that the complainants criticised in particular that (i) the Commission allowed Austria to use 1999 as the year on which to base the assessment, even though this year had witnessed an increase of flights by 100% in comparison to 1998 as regards one of the runways, (ii) no official document containing the results of the negotiations on the concept of the ex post EIA had been published, and (iii) the assessment was not properly monitored.

11. In reply, the Commission essentially stated that it had always been clear that 1999 was to be the reference year, that the concept for the EIA had been produced by an external consultant and published online and that the Commission would follow the EIA procedure while Austria would regularly report on progress. The EIA would also undergo public consultation. The Commission stated that it would only propose the closure of the infringement procedure after the ex post EIA had been carried out and possible compensation measures, which could result from the EIA, had been implemented.

12. The EO conducted an inquiry into the following allegations and the following claim:

(1) The Commission failed properly to conduct its infringement proceedings against Austria concerning Vienna airport. In support of this allegation, the complainant submitted that the Commission, having found an infringement of Community law, (1) deviated from normal procedures by negotiating an "ex post EIA" with Austria, (2) included Flughafen Wien AG as a de facto party in these negotiations, but did not do the same for the complainant, which unfairly disadvantaged the latter, and (3) failed to ensure that the EIA was carried out properly. As regards the last point, the complainant criticised in particular (i) that the Commission wrongly allowed Austria to base the assessment on the year 1999 as a reference year, (ii) that no official document containing the results of the negotiations on the concept of the ex post EIA was published and (iii) that the assessment was not properly monitored.

(2) The Commission (i) was granting preferential treatment to Austria by refraining from bringing an action before the Court of Justice, even though it had found a manifest infringement of Community law and (ii) was trying to protect Austria and to cover up the infringement.

The complainant claimed that the Commission should either see to it that a proper ex post EIA was carried out, which in any event had to comprise a monitoring mechanism in which the complainant had to be involved or, should this not be possible, bring the case before the Court of Justice.

13. On 2 December 2009, the EO closed his inquiry.

14. As regards the complainant's second allegation, the Commission explained that, in those cases where a Member State failed to carry out an EIA pursuant to Directive 85/337 before giving a development consent, it had been its practice for years to seek a solution by means of an 'ex post EIA'. The Ombudsman considered these explanations to be reasonable.

15. As regards aspect (1) of the complainants' first allegation, the Ombudsman considered that the Commission's approach to ask Austria to carry out an ex post EIA, which would objectively assess the project's environmental impact following the criteria laid down in Directive 85/337 and render it possible to determine on a scientific basis whether compensatory measures had to be taken, was both appropriate and reasonable in principle.

16. As regards aspect (2) of this allegation, the Ombudsman concluded that it could not be considered as having been established that the Commission had included Flughafen Wien AG as a de facto party in its negotiations with the Austrian authorities, since the complainants had not put forward any evidence to refute the Commission's arguments.

17. As regards aspect (3) of this allegation, the Ombudsman noted that the complainants did not dispute the Commission's statement that there was no official document containing the results of its negotiations with the Austrian authorities.

18. As regards the remainder of this allegation, the Ombudsman reached the following conclusions:

- The Austrian authorities consistently referred to an "Umweltverträglichkeitsbericht" (environmental impact report) rather than to an "Umweltverträglichkeitsprüfung" (environmental impact assessment). It was difficult to see what would have prevented the Austrian authorities from using the term 'ex post EIA'. (Points 80-81 of the Ombudsman's decision)

- The authority that was entrusted with the ex post EIA was the Austrian Federal Ministry for Traffic, Innovation and Technology ('BMVIT'). The Commission did not dispute that this Ministry had issued some of the permits for the projects concerned. Given that (a) Directive 85/337 provides that such permits should only be granted if an EIA has been carried out, where such an EIA is necessary, and (b) the Commission agreed that an EIA ought to have been carried out in the present case, it followed that the ex post EIA was entrusted to an authority that initially seemed to have failed to ascertain that Directive 85/337 was respected. In these circumstances, the complainants' argument that the involvement of the BMVIT gave rise to a manifest conflict of interest at first sight seemed to be well-founded. (Points 83-85 of the Ombudsman's decision)

- It would have been more logical to choose 1998 as the reference year in the present case, i.e., the year immediately preceding the commencement of the project. The Ombudsman therefore considered that the Commission had not sufficiently explained why it was appropriate to use 1999 rather than 1998 as the reference year. (Point 86 of the Ombudsman's decision)

- The Commission had stated that the ex post EIA would be carried out pursuant to Articles 5 to 10 of Directive 85/337. In the complainants' view, however, Article 10a (concerning access to a review procedure for members of the public with an interest in the EIA) had to apply as well. The Commission explained that it did not seek explicit assurances from Austria concerning the applicability of Article 10a of Directive 85/337 when accepting that an ex post EIA was to be carried out, since this provision constitutes substantive law and could not be made the subject of an agreement with Member States. The Ombudsman was at a loss to understand this argument. Regardless of whether Article 10a constitutes substantive or procedural law, it was difficult to see what could have prevented the Commission from seeking an explicit assurance from the Austrian authorities that this provision would be respected, provided that it was applicable in this case. (Points 87-92 of the Ombudsman's decision)

19. In view of those circumstances, the Ombudsman took the view that, at that point in time, he was unable to conclude that the Commission had ensured that the ex post EIA was carried out properly and that it had thus properly conducted its infringement proceedings against Austria concerning Vienna airport.

20. However, the Ombudsman also noted that neither the ex post EIA nor the Commission's investigation had been completed at that time.

21. As regards the investigation carried out by the Commission, the Ombudsman noted that, prior to the opening of the inquiry, the Commission informed the complainants that it would only propose closing the infringement procedure after the ex post EIA had been carried out and possible compensation measures which could result from the EIA had been implemented. The Commission further pointed out that, in line with the principles set out by the Court of Justice in its judgment in Case C-201/02, it would follow up on the outcome of the ex post EIA and its eventual implementation. It confirmed that it would only close the infringement case when it was satisfied that possible relevant impacts from the various airport extensions had been adequately assessed and, in particular, that Austria had taken the necessary steps in order to give the findings of the impact assessment practical effect.

22. In these circumstances, the Ombudsman considered that, at that time, there were no grounds for further inquiries into the allegation that the Commission failed properly to handle its infringement proceedings against Austria in relation to Vienna airport. The Ombudsman therefore closed his inquiry.

23. However, in his decision closing his inquiry the Ombudsman pointed out that he trusted that the Commission would take due account of this decision when adopting its final decision on the complainant's infringement complaint.

The present complaint

24. On 30 November 2010, the complainants turned anew to the Ombudsman. They informed the Ombudsman that, as far as they knew, the Commission had not taken any further steps in pursuing the infringement proceedings against Austria since the Ombudsman's decision had been adopted.

25. The complainants therefore renewed their complaint and asked the Ombudsman to open a new inquiry into the case.

The subject matter of the inquiry

26. In their complaint, the complainants pointed out that they wished to submit the same allegations and claims as in complaint 1532/2008/(WP)GG.

27. The Ombudsman took the view that, in light of his decision on complaint 1532/2008/(WP)GG of 2 December 2009, there were insufficient grounds for an inquiry into the complainants' allegations that the Commission (1) deviated from normal procedures by negotiating an "ex post Environmental Impact Assessment (EIA)" with Austria, (2) included Vienna airport as a de facto party in these negotiations, but did not do the same for the complainants in the case, which unfairly disadvantaged the latter, (3) granted preferential treatment to Austria by refraining from bringing an action before the Court of Justice, even though it had found a manifest infringement of Community law, and (4) was trying to protect Austria and to cover up the infringement.

28. The Ombudsman therefore decided only to include the following allegation and the following claim in his new inquiry:[4]

Allegation:

The Commission failed properly to conduct its infringement proceedings against Austria concerning Vienna airport, in particular by failing to ensure that the EIA was carried out properly.

Claim:

The Commission should either see to it that a proper ex post EIA is carried out, including a monitoring mechanism in which the complainants have the right to be involved or, should this not be possible, bring the case before the Court of Justice.

The inquiry

29. On 20 December 2010, the Ombudsman asked the Commission for an opinion on the above allegation and claim.

30. The Commission submitted its opinion on 7 April 2011.

31. This opinion was forwarded to the complainants, who submitted their observations on 11, 19 and 20 April 2011.

32. On 7 June 2011, the Ombudsman's services inspected the Commission's file.

33. On 20 June 2011, a copy of the report on this inspection was sent to the Commission. A further copy was sent to the complainants, who submitted their observations on 28 June 2011.

34. On 25 July 2011, the complainants submitted further information concerning this case.

The Ombudsman's analysis and conclusions

A. Alleged failure properly to conduct infringement proceedings and related claim

Arguments presented to the Ombudsman

35. The complainants reiterated their view that the Commission failed properly to handle their infringement complaint. They stated that the BMVIT had informed them on 26 January 2010 that the ex post environmental impact report was undergoing a final assessment and that the relevant experts would subsequently submit a report to the Commission concerning compensatory measures that could become necessary. The complainants added that they submitted an opinion on the ex post environmental impact report to the BMVIT but did not receive any reaction. The complainants criticized that their right to appeal pursuant to Article 10a of Directive 85/337 had been violated.

36. In its opinion, the Commission reiterated its view that it was proportionate and reasonable for it to abstain from further pursuing the infringement procedure while Austria carried out an ex post EIA simulating in the best possible way an ex ante EIA.

37. The Commission provided the following information on the way the ex post EIA had been carried out:

- Austria had submitted the concept for an ex post EIA to the Commission, which had assessed it in the first half of 2008.

- On 27 March 2008, the concept for the ex post EIA was published on the website of Flughafen Wien. It was also published in a number of newspapers.

- On 26 August 2008, an external expert was appointed for the co-ordination of the ex post EIA.

- The ex post EIA was submitted to the BMVIT on 3 April 2009.

- After certain improvements had been made, the ex post EIA was published on the Internet on 15 October 2009.

- By the deadline foreseen (3 December 2009), 13 written observations were received.

- The completion of the final steps was delayed, mainly due to the fact that the observations that had been received necessitated additional expert assessments and technical reports.

- A new expert report on noise also became necessary after the "Österreichische Ring für Lärmbekämpfung" (Austrian Noise Abatement Society) concluded in February 2010 that the methods and guidelines it used for calculating noise levels no longer reflected the 'state of art'.

- Following the resulting additional assessments, new improvements were made to the ex post EIA and submitted to the relevant Ministry on 30 June 2010.

- On 15 February 2011, Austria transmitted the final report on the ex post EIA to the Commission.

38. The Commission stated that it would follow up on the outcome of the ex post EIA and its eventual implementation. More specifically, the Commission would verify whether potential significant environmental impacts had adequately been taken into account with a view to taking retroactive compensation measures where necessary.

39. The Commission reiterated that the infringement case would only be closed once it was satisfied that possible relevant impacts from the various airport extensions had adequately been assessed and, in particular, that Austria had taken the necessary steps in order to give practical effect to the findings of the impact assessment, that is to say, after possible compensation measures resulting from the EIA had been implemented.

40. In their observations, the complainants pointed out that the Commission still maintained that an ex post environmental impact report was acceptable, even though it did not even remotely correspond to an ex post environmental impact assessment. The Commission was ignoring all the arguments submitted to it. It also ignored the Ombudsman's references to the deficiencies of the relevant procedure.

41. The complainants submitted that the Commission did not take into account the fact that the public prosecutor in Vienna had opened an investigation concerning the suppression of an EIA in the present case. This investigation was directed at the very person with whom the Commission had to deal as regards the ex post EIA. Nor did the Commission consider the fact that the Austrian Court of Auditors had, in a report concerning Vienna airport, reached the following conclusion as regards the ex post EIA carried out in this case: "As regards the possibilities for citizens to participate and the possibilities of legal protection, this procedure does not meet the standard of an EIA procedure".

42. The complainants argued that the Commission acted as the servant of the aviation sector. For four years, it had allowed Austria illegally to extend Vienna airport. The costs of the investment by now amounted to around EUR 1.5 billion. All the relevant works had been carried out without an EIA.

43. In the complainants' view, there was manifest maladministration.

44. Having examined the above submissions, the Ombudsman took the view that it was necessary to inspect the Commission's file.

45. The inspection showed that the concept for the ex post EIA had been submitted to the Commission on 17 March 2008. It confirmed that the Austrian authorities had reported to the Commission on the progress of the ex post EIA on 22 September 2008, 23 June 2009, 13 November 2009 and 13 July 2010.

46. The inspection further showed that the file did not contain any other significant correspondence between the Commission and the Austrian authorities during the period when the ex post EIA was carried out. In particular, there was nothing to suggest that the representations that the complainant had made during that period had been discussed in writing with the Austrian authorities. Nor did the Ombudsman's decision of 2 December 2009 on complaint 1532/2008 appear to have given rise to any such correspondence.

47. In response to a question to that effect, the Commission's representatives present at the inspection explained that Directorate-General Environment would endeavour to complete its examination of the final report submitted by the Austrian authorities before the summer break. However, they were unable to indicate when the Commission itself would decide on the case.

48. In their observations on the inspection report, the complainants stated that the inspection confirmed that their arguments had either not at all or not properly been dealt with.

49. The complainants noted that it was only through the inspection report that they had learnt that the case was now handled by Mr D. They stressed that the main actor in this case had been Mr M., who was in charge of the case from around November 2007 until November 2010. According to the complainants, Mr M. had made no secret of the fact that he was not interested in their arguments. If he dealt with these arguments, he only did so in a cynical or unfriendly way. The complainants added that, on a personal level, Mr M. was simply arrogant and that it was impossible to have any reasonable discussion of the case with him.

50. The complainants concluded by stating that they trusted that the Ombudsman would find adequate ways and means to convince the Commission that it had to act in accordance with EU law.

51. On 25 July 2011, the complainants forwarded to the Ombudsman the reply that Mrs B., Federal Minister for Transport, Innovation and Technology had, on 8 July 2011, provided to a number of questions put to her by members of the Austrian parliament. According to this reply, the final report had reached the conclusion "that the ex post environmental impact report submitted to the BMVIT by FWAG [Flughafen Wien AG] could be accepted on condition that FWAG implemented all the compensatory measures it had itself proposed in its report" and that it added another 10.45 ha to the area foreseen for compensatory measures. Mrs B. also confirmed that, in line with the legal nature of the the ex post environmental assessment report, no remedies were available under Austrian law as regards this report.

The Ombudsman's assessment

52. The Ombudsman notes that the Commission has reiterated that it would only close the infringement case once it was satisfied that possible relevant impacts from the various airport extensions had adequately been assessed and, in particular, that Austria had taken the necessary steps in order to give practical effect to the findings of the impact assessment.

53. It was this reassurance that led the Ombudsman to close his first inquiry into this matter in December 2009.

54. It should be noted, however, that, when that decision was taken, the ex post EIA carried out by the Austrian authorities was ongoing.

55. At that stage, it would therefore have been easy for the Commission to intervene with the Austrian authorities in order to address the issues that had been raised by the Ombudsman in his decision of 2 December 2009. It should be recalled that in that decision, the Ombudsman highlighted four specific aspects, which are summarised in point 18 of the present decision.

56. However, the inspection of the Commission's file carried out in June 2011 showed that the Commission had not taken any further action but simply waited for the final report to be submitted to it by the Austrian authorities.

57. However, some of the issues raised by the Ombudsman concerned the very foundation of the ex post EIA. In particular, the Ombudsman had pointed out that, in light of the circumstances of the case, the complainants' argument that the involvement of the BMVIT gave rise to a manifest conflict of interest appeared to be well-founded at first sight.

58. Moreover, in his decision of 2 December 2009 the Ombudsman stressed the importance of Article 10a of Directive 85/337, which provides that "members of the public" shall, subject to certain conditions, "have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive". The Ombudsman furthermore underlined that it was far from sure that citizens would be able to make use of a review procedure under Austrian law as regards the ex post EIA.

59. The Ombudsman therefore considers that it would have been appropriate for the Commission to assess the issues that he had raised in his decision on complaint 1532/2008. He fails to understand why the Commission does not appear to have taken any action in this regard. It is true that, in his said decision, the Ombudsman stated that he trusted that the Commission would take due account of this decision when adopting its final decision on the complainant's infringement complaint. However, and given the nature of the issues raised by the Ombudsman, the Commission could hardly interpret this as meaning that it should postpone dealing with these issues till the very end.

60. The Commission's lack of action is particularly deplorable as regards the absence, in so far as the ex post environmental impact report is concerned, of the remedies foreseen by Article 10a of Directive 85/337. Given that the relevant report was submitted to the Commission on 15 February 2011, it must have been adopted by the Austrian authorities on or before that date. In order to be useful, the availability of the remedies foreseen by Article 10a of Directive 85/337 as regards this report would therefore have had to be clarified by the Commission at the latest by the date of its adoption.

61. For the sake of completeness, it should be added that the doubts concerning the availability of means of review in the present case that the Ombudsman expressed in his decision of 2 December 2009 have in the meantime been reinforced by statements made by the Austrian Court of Auditors. As the complainants have pointed out, the Austrian Court of Auditors reached, in a report concerning Vienna airport, the following conclusion as regards the ex post EIA carried out in this case: "As regards the possibilities for citizens to participate and of legal protection this procedure does not meet the standard of an EIA procedure". The complainants drew the Commission's attention to this report in an e-mail of 19 January 2011, a copy of which was sent to the Ombudsman. In her reply of 8 July 2011 to a number of questions put to her by members of the Austrian parliament, the Federal Minister for Transport, Innovation and Technology explicitly stated that no remedies are available under Austrian law as regards the ex post EIA or, as the Minister called it, the ex post environmental impact report.

61. In view of the above, the Ombudsman considers that the complainant's allegation that the Commission manifestly failed properly to conduct its infringement proceedings against Austria concerning Vienna airport is indeed well-founded.

B. The draft recommendation

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the Commission:

The Commission should correct its approach as regards the handling of the complainants' infringement complaint concerning Vienna airport, address the deficiencies highlighted by the Ombudsman in his decision of 2 December 2009 on complaint 1532/2008 and conclude its assessment as rapidly as possible.

The Commission and the complainants will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 31 October 2011. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 29 July 2011

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] OJ L 175, p. 40. This directive was amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ L 156, p. 17) and Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 (OJ L 140, p. 114).

[3] Case C-2/07 Paul Abraham and others [2008] ECR I-1197.

[4] In his letter opening the new inquiry, the Ombudsman referred to the complainant as being an association of citizens' initiatives. In fact, and as in complaint 1532/2008, it is the citizens' initiatives that are the complainants.