WRITTEN QUESTION E-2381/99

by Bart Staes (Verts/ALE) to the Commission

(16 December 1999)

Subject: Priority of international law over an EU directive, and compliance with provisions of treaties concerning the Iron Rhine

The increase in the budget for trans-European networks confirms their importance for the European Union. Both the construction of new transport infrastructure and the modernisation of existing infrastructure are eligible for co-financing. The question of the Iron Rhine is a matter which is particularly deserving of the Commission's attention in this respect. By virtue of Article 12 of the Belgium-Netherlands Arbitration Treaty (19 April 1839) and the Belgium-Netherlands treaties of 5 November 1842 and 13 January 1873 deriving therefrom (the Iron Rhine Treaty), Belgium is entitled to a link via the Dutch district of Sittard to the German frontier. This international right of transit assumed physical shape between 1869 and 1879 with the construction of the first cross-border rail link in Europe. However, after the two world wars the Iron Rhine between Antwerp and the Ruhr in Germany fell into disuse. The Dutch authorities are currently using national legislation to put obstacles in the way of resuming this international rail link.

1. Does the Commission acknowledge that by virtue of Article 12 of the Belgium-Netherlands Arbitration Treaty (19 April 1839), and the Belgium-Netherlands treaties of 5 November 1842 ands 13 January 1873 deriving therefrom, Belgium is entitled to a link via the Dutch district of Sittard to the German frontier?

2. Is Dutch environmental legislation pursuant to the habitats directive subordinate to the abovementioned international agreements, given that one of the contracting parties to the Belgium-Netherlands Arbitration Treaty (Russia) is not an EU Member State? (N.B.: The Treaty of Vienna explicitly stipulates that international law takes precedence over national law.)

3. In the light of the answers to questions 1 and 2, will the Commission call on the Dutch authorities to comply with their obligations under the treaties, particularly as completion of the Iron Rhine is covered by the general principle of loyalty to the Community? If not, why not?

Answer given by Mrs de Palacio on behalf of the Commission

(26 January 2000)

1. The Belgium-Netherlands arbitration treaty (19 April 1839) and the Belgium-Netherlands treaties of 5 November 1842 and 13 January 1873 deriving therefrom are bilateral agreements between two Member States. As long as these bilateral agreements are not violating Community law it is not for the Commission to judge their effects. According to the subsidiarity principle, it is for the Member States concerned to assess and determine the future use of the Iron Rhine railway line.

2. The Commission is not informed in detail about the contents of the Treaties mentioned above. As far as the Commission knows the Treaties concern a right of way through a certain area (the Sittard canton in the Netherlands) but do not specify the precise location of the railway track inside this area. This means that both Member States will have to agree by their respective procedures on the manner in which the right of way is made effective. Consequently, the Commission sees no obstacle in advance for the application of the relevant Community law concerning the re-opening of the Iron Rhine railway line by the Dutch authorities if this would mean that an alternative route through the Sittard canton must be adopted. As a result of this, the question about the order of importance of international treaties and national legislation is not relevant in this case, since the application of the Community law will not necessarily obstruct the application of the treaties.

3. It is not for the Commission to direct the Dutch government to implement any non-Community treaty obligation it may have entered into. But the government of the Netherlands has declared that, because the old line runs through a special area of conservation in the sense

of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds(1), Article 6 (3) and (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna(2) have to be applied. This means that all the specific requirements of those provisions have to be met. One of the requirements in Article 6 (4) is that a plan or project can only be carried out in the absence of alternative solutions. This requirement may lead to the adoption of an alternative route in stead of a re-opening of the Iron Rhine railway line.

(1) OJ L 103, 25.4.1979.

(2) OJ L 206, 22.7.1992.