The background to the complaint

1. The complainant is a German citizen who complained against the European Commission's alleged failure to investigate his infringement complaint against Germany which concerned unauthorized construction works in an area protected by Council Directive 92/43/EEC (hereinafter the 'Habitats Directive' or the 'Directive')[1].

2. On 20 October 2010, the complainant wrote to the Commission to inform it of what he considered to be unauthorised construction works on the banks of the Lower Havel River in Brandenburg and Saxony, an area protected under the Habitats Directive. He argued that, according to the Habitats Directive, the fact that the works were carried out on a protected site and had an impact on protected species meant that an appropriate impact assessment should have been carried out.

3. On 14 July 2011, the Commission informed the complainant that the said works were part of a project to restore the natural river course. They were thus directly connected with the management of the site and therefore the obligation imposed by Article 6(3) of the Habitats Directive did not apply. Furthermore, the effects of the project had been examined in detail in the development plan. For this reason, the Commission decided to close the case.

4. The complainant replied that the project developer was not part of the management of the site, and that if project developers were to be regarded as forming part of the management of a site, Article 6(3) of the Habitats Directive would become devoid of purpose. He argued that there was no authorised management plan for the area concerned and that there had been no analysis of whether the works would adversely affect protected species or the site. The development plan drawn up by a German environmental NGO failed to mention a number of endangered species in the area. Therefore, the complainant felt that the Commission should have investigated his infringement complaint in more depth.

5. More specifically, the complainant doubted whether construction projects could be carried out in protected sites without a proper impact assessment study and whether different standards could apply to different project developers. The complainant underlined that the construction works formed part of a project that would destroy the meadows which made up 80% of the site, thus endangering its biodiversity.

6. On 7 October 2011, the Commission replied that it had never said that the project developer was part of the management of the site but that the works were part of the management and development plan, and that therefore there was no need for an assessment based on Article 6(3) of the Habitats Directive. Furthermore, it pointed out that the effects of the project had been examined in detail in the development plan. It acknowledged that Member States had to ensure that a project did not result in a deterioration or disturb the habitats in the area, according to Article 6(2) of the Directive. However, there was no such deterioration in the present case.

The subject matter of the inquiry

7. The complainant submitted the following allegation and claim.

Allegation

The Commission failed properly to handle his complaint about unauthorised construction on a site protected under the Habitats Directive.

Claim

The Commission should handle the complaint properly.

The inquiry

8. The complainant submitted his complaint on 29 November 2011. On 14 December 2011, the European Ombudsman asked him to provide certain clarifications and missing documents which the complainant did on 19 January 2012.

9. On 22 February 2012, the Ombudsman invited the Commission to submit an opinion on the above allegation and claim.

10. On 30 May 2012, the Commission sent its opinion, which was subsequently forwarded to the complainant with an invitation to submit observations.

11. The complainant submitted his observations on 20 July 2012.

The Ombudsman's analysis and conclusions

A. Alleged failure to handle the infringement complaint properly and related claim

Arguments presented to the Ombudsman

12. The complainant argued that the Commission did not investigate which conditions ought to have been fulfilled, under the relevant EU and national rules, before the works could commence. Nor did it investigate which authority should have granted permission for the works to be carried out in accordance with the applicable legal provisions. The complainant suggested that the Commission did not want to take any action on this matter as it was a politically sensitive one.

13. In its opinion, the Commission explained that the construction activities were part of a project aiming at restoring the natural river and shore area, which had been deteriorating. Therefore, these activities had to be regarded as measures linked to the management of the Natura 2000 site of the Lower Havel River, and were as such (in accordance with Article 6(3) of the Habitats Directive) excluded from the obligation of carrying out an impact assessment. As regards the obligation to avoid causing the deterioration of sites (Article 6(2) of the Directive), which applies even in situations when no prior assessment is required, the Commission explained that the information submitted by the complainant did not indicate any such deterioration. The fact of the matter was that only two minor measures related to the project had been implemented at the time. The impact of those measures was found to be insignificant. Moreover, an additional study on the impact of all other measures on species and habitats was still ongoing. The Commission thus found no breach of Article 6(2) of the Directive.

14. In his observations, the complainant reiterated that the construction activities were not connected with the management of the site and had an impact on protected species and habitats. He explained that the development plan did not include all species affected and did not fully examine the environmental impact of the measures, some of which had already been implemented before that plan was drawn up. The complainant stated that the Commission had at its disposal enough information and evidence to know that the projects led to a deterioration of the site. He alleged that, by not carrying out a proper investigation, the Commission failed to fulfil its duties.

The Ombudsman's assessment

15. It should first of all be borne in mind that the Commission's role in the context of infringement complaints is to investigate whether a Member State has breached EU law, while the investigation of the Ombudsman is limited to verifying whether the Commission's assessment appears to be reasonable and whether it took into account all the relevant factors.

16. The Habitats Directive imposes upon Member States the duty: (i) to establish the necessary conservation measures and, if need be, appropriate management plans for special areas of conservation (Article 6(1)); (ii) to avoid deterioration of natural habitats and habitats of species, and significant disturbance of the protected species (Article 6(2)); (iii) to assess the impact of any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon (Article 6(3)); and (iv) to take compensatory measures if a plan or project must be carried out despite the negative assessment of its implications for the site (Article 6(4)).

17. In the present case, as stated by the Commission, and as acknowledged by the complainant, a management plan had been drawn up for the protected site under discussion. The obligation imposed by Article 6(1) thus appears to have been fulfilled.

18. With regard to Article 6(2) of the Habitats Directive, the Ombudsman notes that, although the complainant explained in detail which protected species live in the construction site, and the kind of construction activities that were undertaken, he did not put forward any concrete evidence of deterioration of any natural habitat, or deterioration of the habitats of species, or significant disturbance of protected species, which would imply a failure to comply with Article 6(2) of the Directive. The complainant has therefore not cast any significant doubt on the Commission's analysis that, since the measures of the project which had already been implemented were monitored and were found to have an insignificant impact, and since an additional study on the impact of all other measures was ongoing, it did not have to intervene in the matter.

19. Article 6(3) applies to plans or projects which are not directly connected with or necessary to the management of the site, and are likely to have a significant effect thereon. Therefore, this provision is not applicable to any plan or project which is directly connected with or necessary to the management of a site, even if such a plan or project is likely to have a significant effect on the site. The Commission's interpretation document ‘Managing Natura 2000 sites: The provisions of Article 6 of the ‘‘Habitats’’ Directive 92/43/EEC’[2] explains that a "project directly connected with or necessary to the management of the site" refers to management measures whose aim is the conservation of the site (as opposed to a component of an overall plan which does not further conservation aims, such as the commercial exploitation of timber from a protected area). The Commission noted that the project in question aims to restore the natural river course. The complainant did not put forward any evidence to the contrary. Instead, he placed emphasis on the fact that the project developer was not part of the management from an organisational point of view. This, however, is not relevant for the purposes of Article 6(3). What is decisive is whether the project itself, and not the project developer, is directly connected with or necessary to the management of the site.

20. Moreover, the complainant did not provide any concrete evidence in relation to the alleged negative implications for the site. Therefore, the Commission's view, that Article 6(4) of the Directive did not apply and that, accordingly, there were no grounds for initiating infringement proceedings against Germany, was reasonable.

B. Conclusion

On the basis of her 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.

 

Emily O'Reilly

Done in Strasbourg on 26 February 2014

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[1] 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.

[2] http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/provision_of_art6_en.pdf