WRITTEN QUESTION E-3577/02

by Elisabeth Schroedter (Verts/ALE) to the Commission

(13 December 2002)

Subject: Destruction of the Lacoma wetlands and the Hammergraben (Brandenburg), potentially an FFH area of considerable size

The German Bundesland of Brandenburg has plans to irrevocably destroy the Lacoma wetlands and the Hammergraben, a potential FFH area of 380 hectares, for mining purposes. For this reason, Brandenburg has not proposed to the Commission, in accordance with the FFH Directive, that this area be designated a site of Community importance.

1. Is the Commission aware that this area is essential in ensuring overall coherence in the Natura 2000 network of conservation areas, as it is home to the largest population of fire-bellied toads (Annex II to the FFH Directive) in Brandenburg, and there is no comparable area of interconnecting sites anywhere in southern Brandenburg?

2. Does the Commission realise that there is no sufficiently large compensation area in southern Brandenburg comprising waters that are shallow and rich in nutrients, providing a haven for otters, resting migratory birds and breeding aquatic birds (the majority of which are protected under Annex I to the EU Bird Directive)?

3. Is the Commission of the opinion that the Bundesland Brandenburg should have registered the Lacoma wetlands and the Hammergraben with the Commission as an FFH area?

4. Does the Commission consider that a project for which the application for approval was received after 3 July 1988 (or 3 October 1990 in the case of the new Bundesländer) and which has far-reaching effects on the environment should be subject to an environmental impact assessment (EIA)?

5. If not, under what circumstances is an EIA not necessary?

6. Is the Commission aware that, in accordance with the Court of Justice ruling C-301/95 and the BbergG, the application for approval of the outline business plan for an open pit in Cottbus-Nord constitutes an application for initial authorisation of a project as defined in the EIA Directive, which was submitted on 1 December 1992, and is it aware that brown coal mining has not previously been authorised in the proposed area?

Answer given by Mrs Wallström on behalf of the Commission

(27 January 2003)

The Commission has received a complaint concerning the possible destruction of the site Lacomaer Teichgebiet by open-cast lignite mining. After having received additional information from the German Government, the Commission decided to ask the Federal Republic of Germany under Article 226 of the EC Treaty to submit its observations. In this letter, the Commission expressed the opinion that, by not proposing the site Lacomaer Teiche und Hammergraben as a Site of Community Importance, the Federal Republic of Germany had failed to fulfil its obligations under Article 4(1) and Annex III (Stage 1) of Directive 92/43/EEC(1). The observations of the Federal Republic of Germany have arrived recently. The German Government argues that the discretion enjoyed by the Member States would justify not proposing this site because a sufficient number of sites of comparable quality has been proposed to the Commission. These arguments are currently being assessed by the Environment Directorate General.

The applicability of Directive 85/337/EEC in its original(2) or in its amended form(3) depends upon the date on which the procedure for development consent was initiated. Therefore, provided the project in question meets the other criteria in the Directive, in particular the criteria in Article 4, an environmental impact assessment needs to be conducted if the procedure for development consent was initiated after 3 July 1988. In respect of the territory of the former German Democratic Republic, this date is 3 October 1990.

The Commission had already investigated in 1996 whether Directive 85/337/EEC had been respected with regard to another open-cast lignite mining project in the former German Democratic Republic: the neighbouring Jänschwalde project. The Commission arrived at the conclusion that this project had received authorisation before Community law first became applicable. Therefore, no infringement of Directive 85/337/EEC was found.

As for the open-cast mining project Cottbus-Nord, the assessment is similar. Moreover, according to the information available to the Commission, the failure to conduct an environmental impact assessment with regard to this project was unsuccessfully contested in the German courts. Assessment of these court decisions has confirmed that no environmental impact assessment was necessary.

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992.

(2) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175, 5.7.1985.

(3) Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, OJ L 73, 14.3.1997.