WRITTEN QUESTION E-0628/02

by Raina Echerer (Verts/ALE) to the Commission

(8 March 2002)

Subject: Implementation of the environmental impact assessment (EIA) directive in Austria

When the EEA Agreement came into force on 1 January 1994 Austria gave an undertaking to transpose the acquis communautaire. Pursuant to Article 74 of the EEA Agreement, the specific provisions dealing with environmental protection measures are set out in Annex XX to the Agreement. That annex stipulates that Directive 85/337/EEC(1) must be transposed into national law. The EEA Agreement came into force in Austria on 1 January 1994 with no transitional arrangements attaching to it. Only three derogations were agreed from the principle of the immediate transposition of the acquis communautaire, none of which applies to the EIA directive, however.

Pursuant to § 46(1) of the Austrian EIA law, that federal law came into force on 1 July 1994, save as otherwise provided. However, pursuant to § 46(4), the provisions of that law are not applicable to projects in respect of which authorisation was sought by 30 June 1994. The result was that in the last few days prior to the entry into force of the federal EIA law applications for authorisation were submitted in connection with a large number of projects which would have been subject to an environmental impact assessment, in accordance with Directive 85/337/EEC, the aim being to circumvent the federal EIA law. However, the EIA directive incorporates no transitional provisions consistent with § 46 of the federal EIA law, so that the provisions of the EIA directive are directly applicable to projects in respect of which authorisation was sought before 1 July 1994.

In its case law, however, the Austrian Federal Administrative Court (FAC) has adopted the standpoint that the EEA Agreement represents a traditional treaty under international law. Unlike the EC Treaty, it is thus not applicable on a supranational basis. The case law of the CJEC regarding Article 5 of the EC Treaty is not applicable by analogy to Article 3 of the EEA Agreement. The FAC takes the view that, under Austrian law, the EEA Agreement does not have primacy over national law, so that in the period between 1 January and 1 July 1994 the EIA directive had no immediate legal effect, and § 46 of the federal EIA law could not be supplanted by the EIA directive (FAC, 3 October 1996, 95/06/0246).

Does the Commission share the FAC's view that the EEA Agreement represents a traditional treaty under international law which is not supranational in character?

Does the Commission share the FAC's view that, in the framework of the EEA, Community law does not have primacy over national law?

Does the Commission share the FAC's view that in the period between 1 January and 1 July 1994 the EIA directive could have no immediate legal effect in Austria?

(1) OJ L 175, 5.7.1985, p. 40.

Answer given by Mrs Wallström on behalf of the Commission

(25 April 2002)

The question concerns the legal nature of the European Economic Area (EEA) Agreement and the relevant secondary legislation under this Agreement with regard to the period when Austria formed part of the EEA (1 January until 31 December 1994). It focuses in particular on Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (Environmental Impact Assessment (EIA) Directive), as amended by Council Directive 97/11/EC of 3 March 1997(1) which was due to be applied by Austria under the EEA Agreement from 1 January 1994 on.

However, the Austrian transposing law (UVP-G) entered into force only on 1 July 1994 and was not applicable to projects applied for before that date. The Honourable Member refers furthermore to a 1996 judgement of the Austrian High Court according to which the EEA Agreement is to be considered an international treaty of traditional kind, without supranational effects. Thus, the case-law on Article 5 of the EC Treaty (after the Amsterdam Treaty Article 10) developed by the European Court of Justice would not be applicable to the EEA Agreement with the consequence that the EIA Directive would not have direct effect.

In detail, the Commission is asked to give an opinion on the judgement of the Austrian High Court as regards:

- the legal nature of the EEA Agreement (supranational character or traditional international treaty),

- precedence of Community law within the EEA over national law, and

- direct applicability of the EIA Directive between 1 January and 1 July 1994 in Austria.

In the light of the situation, as described by the Honourable Member, the Commission would suggest that his query be addressed to the European Free Trade Association (EFTA) Surveillance Authority.

On the nature of the EEA Agreement, the Honourable Member is referred to cases T-115/94, Opel Austria, [1997] ECR II-39; E-9/97, Sveinbjörnsdóttir, [1998] EFTA Court Report 95 and E-1/01, Einarsson, judgment of the EFTA Court of 22 February 2002, not yet reported.

(1) OJ L 73, 14.3.1997.