The background to the complaint

1. The complainant, a Romanian citizen, submitted an infringement complaint to the European Commission against the Romanian authorities concerning an urban development project. The project is located in the northern area of Bucharest, in the vicinity of Băneasa forest. The project includes a residential area, commercial and public facilities. It was partially implemented.

2. In his infringement complaint to the Commission, the complainant raised several problems concerning the project's non-compliance with EU environmental legislation, namely Directive 85/337/EEC[1] (the 'EIA Directive') and Directive 2001/42/EC[2] (the 'SEA Directive').

3. On 3 May 2012, the Commission informed the complainant that it had opened an infringement procedure and addressed a letter of formal notice to the Romanian authorities on 30 April 2012.

4. On 11 May, 12 June, 13 June and 17 July 2012, the complainant sent the Commission further correspondence in relation to his infringement complaint.

5. On 8 August 2012, the Commission informed the complainant about its intention to close the infringement procedure against the Romanian authorities.

6. On 27 August 2012, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

7. In his complaint to the Ombudsman, the complainant submitted the following allegation and claim.

Allegation

The Commission wrongly decided to close the complainant's infringement complaint against the Romanian authorities.

Claim

The Commission should continue the infringement proceedings against the Romanian authorities.

8. In his further correspondence of 2 and 6 April 2013, the complainant submitted a new allegation as follows:

The Commission failed to investigate the circumstances in which the Romanian authorities decided on 27 March 2013 to disburse EU funding for a new construction project in the Băneasa area in Bucharest.

9. The Ombudsman notes that the complainant failed to make the appropriate administrative approaches to the Commission in relation to this allegation. Therefore and in accordance with Article 2(4) of the European Ombudsman's Statute, the Ombudsman is not competent to conduct inquiries into this aspect of the complainant's case. However, should the complainant decide to raise the matter with the Commission, he could then renew this aspect of his complaint with the Ombudsman, if he is not satisfied with the Commission's reply.

The inquiry

10. On 19 September 2012, the Ombudsman opened an inquiry and asked the Commission to submit an opinion on the complainant's allegation and claim by 31 December 2012.

11. On 13 November and 3 December 2012, the complainant sent further letters concerning his complaint.

12. The Commission's opinion was forwarded to the complainant with an invitation to send observations. The complainant did so on 20 February 2013.

13. On 2 April, 6 April and 10 June 2013, the complainant sent further letters relating to his complaint.

The Ombudsman's analysis and conclusions

A. Alleged wrong decision to close the infringement file

Arguments presented to the Ombudsman

14. In support of his allegation, the complainant stated that the Commission closed the administrative investigation concerning his infringement complaint. He argued that the Commission erred in its consideration that the Romanian authorities had correctly applied the provisions of EU environmental law in relation to the residential project in the Băneasa area in Bucharest. The complainant noted that the Romanian authorities approved the two land use plans for the project (that is to say, PUZ Strada Pădurea Neagră – Pădurea Pustnicu and PUZ amendment of PUZ Aleea Teişani (tarlaua 468) – Strada Pădurea Pustnicu – Pădurea Băneasa, Sector 1) in breach of the EIA and SEA Directives. These land use plans allow derogations from the General Urban Plan of Bucharest in terms of the height of constructions[3]. According to the complainant, the General Council of Bucharest ('CGMB') granted these derogations on the assumption that the developer of the project would build a six-lane motorway, which would be the main access road to the residential project. However, in the meantime, the national courts cancelled the plan for the motorway. Moreover, the project provides for an extension of the electricity network, for which no environmental impact assessment has been carried out.

15. In its opinion, the Commission referred in detail to its correspondence with the complainant concerning the subject matter of his complaint.

16. The complainant first approached the Commission in March 2010 (and the Commission registered the complaint with the reference CHAP(2010)00875). In this complaint, the complainant referred to the illegal use of a forestry road – Vadul Moldovei Street – in order to create vehicular and pedestrian access to a residential project in the Băneasa area. The complainant also referred to utilities such as electricity, gas, water and sewage being illegally established in the area. From the correspondence attached to his complaint, the Commission noted that an inspection carried out by the competent Romanian services did not find the overground utilities mentioned in his complaint. Moreover, the Romanian institution managing the forest addressed the issue of the alleged illegal use of a forestry road to national courts and obtained a positive judgment. Therefore, on 26 March 2010, the Commission announced to the complainant its intention to close the case and invited him to submit observations.

17. In his reply of April 2010, the complainant submitted new grievances. Namely, he referred to the approval of a land use plan ('PUZ') PUZ Strada Pădurea Neagră – Pădurea Pustnicu, through a decision of the CGMB in breach of the EIA Directive.

18. In its reply of 21 May 2010, the Commission noted that: i) the relevant EU legislation was the SEA Directive and not the EIA Directive; and ii) a plan adopted in 2005 is not under its investigatory competence, since it predates Romania's accession to the EU[4]. The Commission closed the infringement complaint on 22 July 2010.

19. The complainant wrote again to the Commission on 2 June 2011 and provided new information in respect of the extension of an electricity network for the same residential project in the Băneasa area. The Commission registered the complainant's correspondence as a new complaint (and the Commission registered the complaint with the reference CHAP (2012)4032) and decided to initiate a dialogue with the complainant for the purpose of obtaining additional clarifications. By letter of 22 June 2011, the Commission informed the complainant about the potential applicability of the EIA Directive to the extension of the electricity network and asked him whether he was in a position to provide additional information which would enable it to determine whether this project would qualify as a project referred to in Annex I to that Directive, for which it is mandatory to carry out an impact assessment[5]. The Commission also requested information about on-going judicial proceedings at the national level.

20. By letter of 30 June 2011[6], the complainant confirmed that the electrical network fell under the provisions of point 20 of Annex I to the EIA Directive[7]. The construction permit for the extension of the electricity network was granted in breach of the EIA Directive as no environmental impact assessment was carried out.

21. In light of the correspondence received in 2011 concerning the extension of the electricity network for the residential project in Băneasa, the Commission identified a potential breach of the EIA Directive as regards this aspect. Thus, on 12 October 2011, the Commission opened an investigation and asked for explanations from the Romanian authorities, In their reply of 21 December 2011[8], the Romanian authorities indicated that no 'screening' procedure had been carried out before approval of the project.

22. The Commission considered that the project should at least have been made the subject of a 'screening' procedure. Therefore, on 30 April 2012, it decided to open infringement proceedings and addressed a letter of formal notice to the Romanian authorities, alleging a breach of Articles 2(1) and 4(2)-(4) of the EIA Directive. The complainant was informed accordingly on 3 May 2012.

23. The complainant sent further correspondence on 11 May, 12 June, 13 June and 17 July 2012.

24. In a meeting with the Commission services held in Bucharest in May 2012 ('package meeting'), the Romanian authorities pointed out for the first time that the project would not fall under the EIA Directive since the electricity network would be an underground one with a limited length, thus it falls outside the scope of point 20 of Annex I or point 3(b) of Annex II to the EIA Directive[9].

25. Subsequently, in the reply to the letter of formal notice of 29 June 2012, the Romanian authorities confirmed that the project for the extension of the electricity network did not fall within the scope of the EIA Directive[10] for the above reasons.

26. In light of the Romanian authorities' reply, and as the correspondence from the complainant presented no evidence to the contrary, the Commission found no grounds to pursue the case and sent the complainant a pre-closure letter on 8 August 2012.

27. The complainant replied on 10 August, 12 August and 24 August 2012. On 23 September 2012, he addressed the Commission's Directorate-General for Regional and Urban Policy invoking, for the first time, the use of EU funds for a project of a different developer. At the date of the Commission’s opinion the infringement case was still open in order to allow the Commission to examine this new correspondence.

28. The Commission further noted that the complainant raised other issues, after he had submitted the original complaint in 2010, which fell outside the scope of infringement proceedings, namely: i) illegal use of a forestry road; ii) illegal covering with gravel of a portion of the forest to extend the forestry road by 350 m and illegal use by the developer; iii) approval of PUZ Strada Pădurea Neagră – Pădurea Pustnicu through a decision of the CGMB in breach of the EIA Directive; iv) Approval of PUZ amendment of PUZ Aleea Teişani (tarlaua 468) – Strada Pădurea Pustnicu – Pădurea Băneasa, Sector 1 through a decision of the CGMB allegedly in breach of the SEA Directive; and v) allegations related to a future six-lane motorway passing through Băneasa forest. The Commission, nevertheless, assessed all these points as follows.

29. With respect to the illegal use of the forestry road (under i) – which is not a public road – and in light of the judicial proceedings taking place at the national level, the Commission informed the complainant by letter of 26 March 2010 that the matter falls under national competence.

30. As regards, the fact that portion of the forest was covered with gravel to extend the forestry road by 350 m and illegally used by the developer (under ii), the complainant pointed out the absence of an environmental impact assessment. In a letter of 8 August 2012, the Commission informed the complainant that these developments did not fall within the meaning of project for the purposes of the EIA Directive and therefore the provisions of that Directive were inapplicable. Moreover, the fact that the forest was used as an access route which might seem to reveal illegalities under national law was challenged before the national courts.

31. With respect to the allegation that PUZ Strada Pădurea Neagră – Pădurea Pustnicu was approved in breach of the EIA Directive (under iii), the Commission informed the complainant by letter of 21 May 2010 that the matter raised relates to the SEA Directive. Moreover, given that the approval decision was issued in 2005, that is before Romania's accession to the EU, the Commission could not identify a breach of EU law, which was not applicable to Romania before 2007. This was reiterated in the pre-closure letter sent to the complainant on 8 August 2012.

32. As regards, the allegation of a breach of the SEA Directive with respect to PUZ amendment of PUZ Aleea Teişani (tarlaua 468) – Strada Pădurea Pustnicu – Pădurea Băneasa, Sector 1 (under iv), SEA procedural rules appear to have been applied (the Romanian authorities carried out a 'screening'). The complainant was informed of this in the letter of 8 August 2012.

33. Finally, in relation to the allegations related to a six-lane motorway passing through Băneasa forest (under v), the complainant mentioned a study which anticipates the need for such a motorway. This fact does not in itself lead to a presumption of breach, since such a study does not have the legal characteristics of a plan or project within the meaning of the SEA and EIA Directives. The complainant was informed of these aspects in the pre-closure letter of 8 August 2012.

34. The Commission also noted that in his correspondence of August 2012, the complainant raised two new arguments as follows.

i) First argument

Two land use plans – that is PUZ Strada Pădurea Neagră – Pădurea Pustnicu and PUZ Amendment of PUZ Aleea Teişani (tarlaua 468) – Pădurea Pustnicu – Pădurea Băneasa, Sector 1 – would have been approved based on a "supposition that the report on the environmental impact assessment will be favourable to a six-lane motorway through Băneasa forest". By letter of 24 August 2012, the complainant sent to the Commission the urbanism certificate, which refers to a public road, part of which would serve the residential area.

ii) Second argument

Article 6(4)[11] of the SEA Directive on public consultation had been breached in relation to PUZ Amendment of PUZ Aleea Teişani (tarlaua 468) – Pădurea Pustnicu – Pădurea Băneasa, Sector 1.

35. With reference to the argument under paragraph 34 i) the Commission took the view that the new elements communicated by the complainant do not lead to a presumption of a breach of EU law because the urbanism certificates do not have the legal characteristics of a plan or project within the meaning of the SEA and EIA Directives. It appears that the six-lane motorway does not exist at present, neither as a plan within the meaning of the SEA Directive nor as a project within the meaning of the EIA Directive. According to the information available, there is no decision related to a land use plan (which would fall under the SEA Directive) or to a project (which would fall under the EIA Directive).

36. As regards, the argument under paragraph 34 ii), the Commission outlined that Article 6(4) of the SEA Directive is only applicable where a full SEA procedure is deemed necessary by the national authorities, but this was not the case here.

37. Finally, the Commission noted that it is currently preparing a further reply to the complainant in order to explain in detail all these aspects. The Commission also noted that the complainant's correspondence was becoming repetitive.

38. In his observations on the opinion, the complainant stated that he had never denied that an environmental impact assessment was carried out as regards the land use plan PUZ amendment of PUZ Aleea Teişani (tarlaua 468) – Strada Pădurea Pustnicu – Pădurea Băneasa, Sector 1. However, the environmental impact assessment was made superficially and unlawfully, in his view. The complainant pointed out that a report issued by the Romanian Ministry of Environment upholds the conclusions that the "EIA was carried out illegally" and the entire documentation submitted to the CGMB for the approval of the PUZ amendment of PUZ Aleea Teişani (tarlaua 468) – Strada Pădurea Pustnicu – Pădurea Băneasa, Sector 1 is contrary to a ruling of a national court, which "cancelled the plan for the motorway through the forest before the above land use plan was adopted". According to the complainant, the CGMB refused to bring the land use plan within the court's ruling and to reduce the height coefficients of the buildings included in the project.

39. The complainant emphasised that he wishes to denounce "a practice, t[h]rough which projecting an imaginary motorway, the developer obtains spectacular urbanism coefficients and thereby ensures for himself a future high profit, and afterwards argues and demands from the [competent] authorities the necessity of constructing the motorway once the [project] is finished with the 12 stor[ey] tower block". In the complainant's view, the right approach would have been to first carry out the environmental impact assessment and all other formalities concerning the six-lane motorway and afterwards to approve the land use plan in question.

40. In his further letter to the Ombudsman of 10 June 2013, the complainant stated that on 25 April 2013, the Commission decided to close his infringement complaint. He also provided a copy of the Commission's closing letter.

The Ombudsman's assessment

41. The complainant's allegation relates to an alleged wrong decision to close his infringement complaint. At the time when the complainant turned to the Ombudsman, the Commission had not yet closed the investigation, but in the course of the inquiry, on 25 April 2013, the Commission did so. In its closure decision, the Commission did not provide any justification for the closure but stated that the reasons for closing the investigation were set out in its pre-closure letter dated 8 August 2012. The Ombudsman's review will thus concern the Commission's assessment of the complainant's case made in its pre-closure letter. The Ombudsman considers that maladministration in the decision to close an infringement case may exist case if the Commission fails to explain its decision adequately; makes a procedural error, or a manifest error of assessment; clearly misinterprets the law; or takes into account irrelevant matters.

42. In this respect, the Ombudsman notes that the complainant's infringement complaint, on the basis of which the Commission launched infringement proceedings against the Romanian authorities, concerned the extension of the electricity network for the residential project in Băneasa, which was allegedly in breach of the provisions of the EIA Directive (argument i). Subsequently, the complainant argued that the Commission should pursue the infringement proceedings because the land use plans PUZ Strada Pădurea Neagră – Pădurea Pustnicu and PUZ Amendment of PUZ Aleea Teişani (tarlaua 468) – Pădurea Pustnicu – Pădurea Băneasa, Sector 1 were adopted on the false assumption of the construction of a six-lane motorway through Băneasa forest and in breach of the provisions of the SEA Directive (argument ii).

43. With reference to the complainant's argument under i), the Commission's infringement investigation revealed that the extension of the electricity network for the project in question did not fall under the provisions of the EIA Directive. Furthermore, the complainant did not dispute the Commission's findings. In these circumstances, the Commission's preliminary conclusion not to pursue the infringement proceedings further as regards this aspect appears to be reasonable and legally correct.

44. As regards the argument under ii), the complainant did not contest the Commission's position that, at the moment, the six-lane motorway does not exist, either as a plan within the meaning of the SEA Directive or as a project within the meaning of the EIA Directive. Moreover, there is no decision related to a land use plan (which would fall under the SEA Directive) or to a project (which would fall under the EIA Directive). Nor did the complainant dispute the Commission's conclusion that the evidence he submitted in support of his grievances, namely the urbanism certificates do not have the legal characteristics of a plan or project within the meaning of the SEA and EIA Directives. However, the complainant appears to argue that the land use plans were adopted assuming that the six-lane motorway would be constructed. Given that, in the meantime, a national court cancelled the plan for construction of the motorway, the two land use plans should be amended accordingly.

45. The Ombudsman notes that, as the Commission correctly pointed out, the land use plan PUZ Strada Pădurea Neagră – Pădurea Pustnicu does not fall within the scope of EU law given that the approval decision predates Romania's accession to the EU. As regards the PUZ Amendment of PUZ Aleea Teişani (tarlaua 468) – Pădurea Pustnicu – Pădurea Băneasa, Sector 1, on the basis of the Commission's opinion and its previous correspondence with the complainant[12], the Ombudsman understands that the Commission decided not to pursue the matter further because the SEA procedural rules appear to have been applied. In this respect, although the Romanian authorities did not consider that a full SEA procedure was necessary, they nevertheless carried out a 'screening' procedure before the approval of the project. Finally, the Ombudsman accepts as reasonable the Commission's position that the modification of the initial land use plan may point to a problem of application of national planning legislation but does not indicate a breach of the SEA Directive.

46. The Ombudsman is of the view that, in principle, this is a satisfactory justification for the Commission's decision not to pursue the infringement complaint submitted to it. In the present case, the infringement investigation carried out did not reveal a breach of EU law. It was therefore reasonable for the Commission to refrain from pursuing the investigation with the Romanian authorities.

47. In addition, the Ombudsman notes that the Commission fully complied with the procedural requirements laid down in its Communication updating the handling of relations with the complainant in respect of the application of Union law ('the Communication')[13], which aims to establish a clear and transparent framework for the handling of infringement complaints. First, pursuant to point 7 of the Communication, it informed the complainant of the steps taken in response to his complaint. Second, after the complainant submitted the complaint in June 2011, the Commission contacted the Romanian authorities asking for clarification on the matter. In May 2012, it informed the complainant about the opening of the infringement proceedings against the Romanian authorities and that a letter of formal notice had been sent. The Commission sent the complainant a pre-closure letter on 8 August 2012, informing him of its intention to close the case and inviting him to submit his observations. In light of the complainant's new correspondence submitted to the Commission in the course of the Ombudsman's inquiry, the Commission decided to assess this new information before closing the case on 25 April 2013 and informed the complainant accordingly.

48. Finally, the Ombudsman welcomes the Commission's detailed explanation of its handling of the complainant's case provided in its opinion (summarised in paragraphs 16-37 above).

49. In light of the above, the Ombudsman considers that the Commission provided an accurate and reasonable justification as to why it decided not to pursue the complainant's infringement complaint further. He does not, therefore, find an instance of maladministration in relation to the complainant's allegation. It follows that the complainant's claim cannot be upheld.

B. Conclusion

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

There has been no maladministration.

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 3 September 2013

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[1] Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175, p. 40.

[2] 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.

[3] According to the complainant, while the General Urban Plan of Bucharest provides that the maximum height allowed for the area is the ground floor + 2 floors, the land use plan in question allows a height of the ground floor + 12 floors.

[4] Further correspondence was exchanged between the Commission and the complainant on the matter.

[5] In this respect, point 20 of Annex I to the EIA Directive refers to the "construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km."

[6] The complainant sent further letters on 21 July and 26 September 2011.

[7] According to the complainant, the project consisted of the extension of the electricity network so it was more than 15 km in length and had a voltage higher than 220 kV.

[8] The Romanian authorities informed the Commission that the project fell under Annex II to the EIA Directive as the length was less than 15 km (the length of the extension of the electricity network is approximately 4.5 km which is below the 15 km threshold set at point 20 of Annex I to the Directive). In addition, the construction permit was issued without the application of the procedural requirements of the EIA Directive (screening to decide if an environmental impact assessment would be requested).

[9] This fact was confirmed by the Ministry of Environment inspection report itself, which the complainant communicated to the Commission.

[10] According to the Commission, in their reply, the Romanian authorities explained that, while point 3(b) of Annex II to the EIA Directive refers to industrial installations for transmission of electrical energy by overhead cables (projects not included in Annex I), the extension of the electricity network for the project in question was done through an underground cable and the network that is powered is also underground. Given that the Directive explicitly refers to "overhead cables", the Romanian authorities argued that the extension of the electricity network through underground cables does not fall within the scope of the Directive. Moreover, the application of point 20 of Annex I to the EIA Directive concerns projects referred to in Article 4(1), while it regulates the construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km, the Romanian authorities stated that the electricity network in question is an underground network with an average voltage of 20 kV and a length of 4.5 km. On the basis of the above reasoning, the Romanian authorities concluded that the project does not qualify as a project under point 13 of Annex II, i.e. a change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed. Lastly, the national authorities stressed the fact that the project for the extension of the electricity network under discussion was not likely to have a significant impact on the environment given its nature (transmission of electric energy through underground cables, of an average voltage of 20 kV), size (4.5 km length) and location (the works were carried out under the pavements of some streets in an urban area).

[11] Article 6 of the SEA Directive, so far as relevant, refers to the consultations of the public concerning the draft plan and the environmental report.

[12] In particular in its letter of 6 November 2012, the Commission explained in sum, that the initial land use plan PUZ Strada Pădurea Neagră – Pădurea Pustnicu was subject to an SEA procedure. Subsequently, this land use plan was amended through the land use plan PUZ Amendment of PUZ Aleea Teişani (tarlaua 468) – Pădurea Pustnicu – Pădurea Băneasa, Sector 1. This amendment was brought to the attention of the Romanian environmental authorities, who, after the 'screening' procedure, considered that the data which were at the basis of the environmental report prepared during the SEA procedure for the initial land use plan (PUZ Strada Pădurea Neagră – Pădurea Pustnicu) were not significantly modified. Therefore, the initial environmental opinion issued by the Romanian authorities remained valid. The Commission concluded that the above procedure complied with the provisions of Article 3(3) of the SEA Directive, which stipulates that plans and programmes which determine the use of small areas at local level and minor modifications to plans and programmes referred to in paragraph 2 shall require an environmental impact assessment only where the Member States determine that they are likely to have significant environmental effects.

[13] COM(2012) 154 final, Brussels, 2.4.2012.