WRITTEN QUESTION E-3829/97 by Wilfried Telkämper (V) to the Commission (28 November 1997)

Subject: Implementation of the Habitats Directive with regard to the Söllingen airport site

What measures are the authorities of the German Länder required to take under the Habitats Directive when this has not yet been transposed into national law but where there is a site of several hundred hectares which fulfils the conditions for conservation under the Directive (e.g. in the form of 'habitat types of Community interest')? Under what circumstances can the Land authorities refrain from taking the measures provided for, and who decides whether such measures must be taken or can be dispensed with?

What procedure should be followed in respect of areas eligible for habitat conservation where there are conflicting plans by the Federal Government, the Land and the local authorities, and what are the legal consequences for habitat conservation where planners disregard the required procedures and

- the habitats still exist but plans exist which would involve their destruction?

- the habitats have been destroyed?

Answer given by Mrs Bjerregaard on behalf of the Commission (20 January 1998)

The Commission is aware that the Söllingen airport site was discussed in the parliament (Landtag) of Baden-Württemberg and that the responsible authorities stated that there are no sites of similar importance for the conservation of sedo-scleranthetea habitat types in that German state. The Commission is currently investigating the matter further in the light of a complaint.

As matters stand, it would seem that the site in question has an importance which may lead the German authorities to select it for inclusion in the national list of sites required to be proposed under Article 4(1) of Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna ((OJ L 206, 22.7.1992. )). However, no complete national list has yet been proposed for Germany (as the complete list was due in June 1995, the Commission has launched a general infringement procedure) and this site does not appear on the partial list which Germany has already provided. The ultimate inclusion of this site in either the national list or the subsequent list of sites of Community importance is therefore uncertain.

In these circumstances, it is difficult for the Commission to advise the Honourable Member on the implications of Directive 92/43/EEC for the site in question, particularly in the absence of specific case-law of the European Court of Justice. However, the following observations may be of assistance.

The site protection provisions of Directive 92/43/EEC, which are set out in Article 6, in general only apply from the time a site appears on the list of sites of Community importance, which is not the case here. An exception arises where the Commission invokes Article 5 of the Directive, in which case the provisions of Article 6(2) of the Directive apply pending a Council decision. Where there is as yet no Community list and where Article 5 of the Directive has not been invoked, competent authorities may nonetheless need to take account of Article 5 of the EC Treaty, which inter alia provides that Member States shall abstain from any measure which could jeopardize the attainment of the objectives of the EC Treaty. The destruction of important nature conservation sites without adequate prior consideration may give rise to questions of compliance with Article 5 of the EC Treaty if the effect would be to frustrate the achievement of the objectives of Directive 92/43/EEC.

Other Community legislation may also be relevant. The significance of the site may necessitate a project environmental impact assessment pursuant to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment ((OJ L 175, 5.7.1985. )). The significance may also bring into play Article 4 of the Convention on the conservation of European wildlife and natural habitats. This requires contracting parties (which include both Germany and the Community ((Council Decision 82/72/EEC concerning the conclusion of the Convention on the conservation of European wildlife and natural habitats, OJ L 38, 10.2.1982. ))) in their planning and development policies to avoid or minimize as far as possible the deterioration of endangered natural habitats. In the Commission's view, compliance with such provisions should help ensure that the objectives of Directive 92/43/EEC are not compromised in advance of the establishment of the Community list.