WRITTEN QUESTION E-4110/00

by Elisabeth Schroedter (Verts/ALE) to the Commission

(11 January 2001)

Subject: Road improvement project being undertaken without an environmental impact assessment (EIA) in a wetland area in Brandenburg

The improvement of main road 189 between Retzin and Rohlsdorf in Brandenburg (Germany) is being carried out under the Brandenburg Land road construction law. I consider that the criteria set out in Annex III section 2, according to which an EIA is essential, have not been implemented in line with EU legislation. The section of road concerned crosses a wetland area which is extremely vulnerable and valuable in ecological terms and has plant communities which should be protected. The groundwater is only two metres below the surface and is extremely vulnerable to discharges of pollutants.

1. Does the Commission consider that EU environmental legislation will be correctly applied only if an EIA is carried out for this road improvement project?

2. Does the Commission consider that a plan approval procedure for this section of road is the appropriate way to make a comprehensive survey of the sensitivity of the area, to provide a full assessment of the environmental effects of the road improvement project and to assess the road construction department's plans adequately in terms of the impact on the sensitive wetland area?

3. Does the Commission consider that the Brandenburg road construction law has correctly and fully transposed the amendment of the EIA directive 97/11/EC, in particular Annex III section 2?

4. Does the Commission consider that the Brandenburg government must be asked to amend the road construction law?

If so, when will it do so?

If not, why not?

5. Does the Commission consider that, irrespective of directive 97/11/EC on EIA, the Brandenburg government should examine road construction projects through sensitive natural areas more carefully?

6. Has the Commission examined whether European aid funds are being used directly or indirectly for this road construction project?

If so, what steps will it take?

Answer given by Mrs Wallström on behalf of the Commission

(6 March 2001)

The extension of Federal Road B 189 could be either covered by Annex I.7(b)(1) or (c) or by Annex II.10.(e)(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment(3) as amended by Council Directive 97/11/EC(4) (in the following: Environmental impact assessment (EIA) Directive). Without the necessary information about the current project it appears impossible to assess whether it must be subject to an environmental impact assessment pursuant to the EIA Directive.

It is not completely clear to the Commission what the Honourable Member means by Question No 2 (whether a plan approval procedure is an appropriate instrument in general or whether in the current case it is appropriate). It is in any event, according to Article 2(2) of the EIA Directive, up to the Member States to choose an appropriate procedure to carry out an environmental impact assessment in line with the aims of this Directive.

Annex III(2) of the EIA Directive lists inter alia in (d) nature reserves and forest parks, in (e) areas classified or protected under Member States' legislation; special protection areas designated by Member States pursuant to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds(5), and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora(6) and in (h) landscapes of historical, cultural and archaeological significance.

Germany notified the Commission of the Gesetz- und Verordnungssblatt für das Land Brandenburg Teil I Nr. 12 vom 28. Juli 1999 as the measure transposing Directive 97/11/EC as far as road construction in the Land Brandenburg is concerned. This Brandenburg law is apparently meant to transpose Annex I.7(b) and (c) EIA Directive in its Article 38(3)1. and 2. and Annex II.10(e) EIA Directive in its Article 38(3)3. As regards projects falling under Annex II, the Land Brandenburg has therefore apparently chosen to apply the option provided by Article 4(2)(b) of the EIA Directive. Therefore Brandenburg had to take into account the relevant selection criteria set out in Annex III in setting the thresholds or criteria for road construction projects falling under Annex II in Brandenburg.

Whether Brandenburg has completely taken into account the relevant selection criteria in Annex III in its transposing legislation, in particular in Article 38(3)3. of the aforementioned legislation has not yet been assessed by the Commission since Germany has so far notified the Commission of only two small pieces of legislation as transposing measures to Directive 97/11/EC (one of which is the afore mentioned Brandenburg law) and a complete conformity assessment will be carried out by the Commission once the notification by Germany of the transposition concerning Directive 97/11/EC is completed. It seems however that not all relevant selection criteria of Annex III might be reflected by the thresholds or criteria set in Article 38(3)3 in the said Brandenburg law.

In any event, as the Court of Justice has held in its jurisprudence, as far as the application of thresholds are concerned, that although the second subparagraph of Article 4(2) of the Directive confers on Member States a measure of discretion to specify certain types of projects which are to be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion lie in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment (Case C-72/95 Kraaijeveld, paragraph 50, C-392/96 Commision v. Ireland, paragraph 64).

The Commission has no jurisdiction to answer the Honourable Member's fifth question.

According to the available information, Community aid funds are not being used for this road construction project.

(1) Annex I.7(b) and (c) EIA Directive lists the construction of motorways and express roads as well as the construction of a new road of four or more lanes, or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new road, or realigned and/or widened section of road would be 10 km or more in a continuous length.

(2) Annex II.10.(e) lists the construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I).

(3) OJ L 175, 5.7.1985.

(4) OJ L 73, 14.3.1997.

(5) OJ L 103, 25.4.1979.

(6) OJ L 206, 22.7.1992.