EN Official Journal of the European Union CE 88/269

(2004/C 88 E/0274)

WRITTEN QUESTION P-1009/04

by Johannes Voggenhuber (Verts/ALE) to the Commission

(25 March 2004)

Subject: Lobau motorway

The EIA Directive (97/11/EC (1)) requires EU Member States to carry out an assessment of the effects of certain public and private projects on the environment. An assessment of this kind is required also in the case of motorways and express roads, pursuant to Annex I of the Directive. In Austria, consent for motorways is granted by the issuing of decrees known as Trassenverordnungen, in accordance with Section 4 of the Austrian Highways Act. This means that consent for a project of this kind is given not on the basis of specific information but by a general and abstract decree.

The European Court of Justice has ruled (Case C-287/98) that, in connection with an environmental impact assessment, while authorisation may be granted in principle by an individual piece of national legislation, the details of a particular project must also be authorised by the relevant law or the decree.

The Austrian Constitutional Court has ruled, in a recent judgment on the Vienna orbital express road, that a Trassenverordnung cannot, by its legal nature, include any kind of subsidiary provisions (conditions) to meet the requirements set out by the EIA law for the authorisation of the project submitted. The Court further stated that, in the case of decrees of this kind, consideration of the findings of the environmental impact assessment was not binding.

Does the Commission deem that this method of authorising the construction of motorways, on the basis of decrees that cannot guarantee that the findings of an environmental impact assessment will be taken into account, is compatible with the EIA Directive?

Answer given by Mrs Wallström on behalf of the Commission

(22 April 2004)

The Commission is of the view that Member States have to ensure that the results of an environmental impact assessment concerning projects covered by 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) as amended by Council Directive 97/11/EEC of 3 March 1997 (EIA Directive), are taken into account in the development consent procedure as is clearly stipulated in Article 8 of the aforementioned Directive.

As regards the specific motorway project mentioned in the petition (S1, the former B301), the Commission recently closed a complaint file concerning the same road project on the undertaking of the Austrian authorities that the requirements of the EIA Directive will be taken fully into account in the current development consent procedure.

The Commission will follow up the question of a potential non-conform transposition of the EIA Directive regarding road projects in Austria in the appropriate way.

Finally, the Commission is of the opinion that the said decrees granting consent for motorways (‘Trassenverordnungen’) cannot be considered as specific acts of national legislation within the meaning of Article 1(5) of the EIA Directive. Such decrees appear neither to cover all details of a particular road project (additional permits are normally required to authorise a road project in Austria) nor are they actually acts of legislation (they are issued by authorities, not by way of a law adopted by Parliament). However, the EIA Directive does not stipulate that a single development consent procedure is required (Article 2a). Member States are free to integrate the environmental impact assessment procedure into any existing procedure or other appropriate procedure according to Article 2(2) of the EIA Directive. Therefore, the integration of the environmental impact assessment procedure for a road project into the ‘Trassenverordnung’ cannot be regarded per se as infringement of the EIA Directive.

(1) OJ L 73, 14.3.1997, p. 5.

(2) OJ L 175, 5.7.1985.