WRITTEN QUESTION E-3196/98

by Heidi Hautala (V) to the Commission

(27 October 1998)

Subject: Order of priority of the reasons justifying derogations from the Natura provisions

1. Does the following order of priority apply to the reasons justifying derogations granted by the Commission in connection with the implementation of the Natura provisions:

(a) alternative proposals for the project have been investigated,

(b) the project is of vital public interest,

(c) the loss of value in terms of environmental protection can be offset?

2. Does this order of priority mean that the government must first investigate whether there are alternative solutions for a project and that the government must reject the first project if there is an alternative more suited to the implementation of the Natura provisions?

3. Does the order of priority also imply that the issue of the vital public interest of the project is only considered if there is no alternative solution?

4. At what planning stage does the Commission require the alternatives to be investigated? Does the Commission take the view, in connection with the Vuosaari port project in Finland, for example, that the alternatives should already have been investigated when the regional development plan was drawn up?

5. Does the Commission plan to take measures on the grounds that the draft regional development plan completely disregarded possible alternatives for the project, e.g. other locations or the expansion of the capacity of existing ports?

6. At what stage can a derogation procedure be initiated? Can the derogation be requested before the national Natura proposal has been completed, in order to ascertain from which body or agency the derogation can be requested?

Answer given by Mrs Bjerregaard on behalf of the Commission

(19 November 1998)

The Habitats Directive(1) provides for a setting up of a network of special areas of conservation, Natura 2000. This network consists of sites hosting the natural habitat types listed in Annex I, and habitats of the species listed in Annex II (sites of Community interest, SCI). Further, it shall include the special protection areas (SPAs) classified by the Member State pursuant to the Birds Directive(2).

The list of sites selected as of Community importance for Natura 2000 is set up in a step-by-step procedure, which ends with the adoption of the list by the Commission. As soon as a site is placed on the list, it is the subject of the provisions of Article 6(2), (3) and (4). However, these provisions are already applicable to special protection areas under the Birds Directive.

The Habitats Directive provides that the Member States shall take appropriate steps to avoid the deterioration of sites in Natura 2000. However under the strict conditions of Article 6(3) and (4), the Member State may carry out a project even if it has negative impact for the site. The conditions include assessment of the project's implications for the site, absence of alternative solutions, the project being of overriding public interest and compensatory measures. The Commission confirms that all these safeguards must be ensured before a negative project can be allowed to proceed, but it is up to the Member State to choose the appropriate procedures for this purpose. While it is ultimately for the Court of justice to interpret whether a particular sequential order should govern the safeguards, the Commission considers that it would not be unreasonable to envisage different safeguards being addressed at the same time, e.g. a consideration of alternative solutions as part of an environmental impact assessment which also deals with the ecological implications of a project.

The alternative solutions must be seen in relation to the project under consideration. The Habitats Directive does not regulate any specific evaluation of alternatives, but leaves it to the Member State to assess in an appropriate manner if there are alternative solutions. A negative project can be carried out only in the absence of alternative solutions. The Commission can require the Member State to demonstrate that it has respected the condition.

The Honourable Member refers to a specific project concerning the new port of Helsinki in Vuosaari. The project affects the site Mustavuori-Östersundom, which Finland has recognised should be an SPA and which also is proposed as SCI in its national list under the Habitats Directive. On this basis, the provisions of Article 6(3) and (4) would appear to be relevant from the date of accession, 1 January 1995. The Commission is in correspondence with the Finnish authorities on the matter.

(1) Council Directive 92/43/EEC of 21.5.1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992.

(2) Council Directive 79/409/EEC of 2.4.1979 on the conservation of wild birds, OJ L 103, 25.4.1979.