WRITTEN QUESTION P-4045/00

by Giovanni Fava (PSE) to the Commission

(20 December 2000)

Subject: Building amnesty and the 2000-2006 regional operational programme in Sicily

In November, the Council of Government of the Sicilian region submitted a proposal for a law including provision for the regularisation of unauthorised constructions built along the coastline, estimated to be around 170 000 units. This draft law represents a wholesale repeal of the only instrument in force in Sicily protecting the coasts, which lays down a prohibition on building in a coastal strip 150 metres wide (regional law 78 of 12 June 1976).

The draft law provides for a line to be drawn around built-up areas whose construction was not authorised and for the communes to be given responsibility for drawing up urban and environmental reorganisation plans for them. This also places on the communes the tasks of delimitation and the consequent planning of measures, avoiding entering into details regarding figures.

Such uncertainty regarding the financial resources to be made available for the regularisation makes it seem likely that the region wishes to try to use the resources available under the 2000-2006 Structural Funds programming period. This could be done by means of covering the measures set out in the regional operational programme, to which the communes could have recourse when preparing projects to be funded through ROP funds. One of the ways in which the Structural Funds could also be used is to pay the engineers asked by the local authorities to prepare projects, and this would contribute to fostering a considerable customer network. In the face of this risk, business (Confindustria) and organisations protecting environmental and cultural heritage (Italia Nostra) have launched an appeal against the regularisation measure.

Among others, the measure is likely to affect the coastal areas included in the Natura 2000 network, where unauthorised construction has taken place, and it could enable town-planning projects to be legalised without any checking procedure or environmental impact assessment.

Is the Commission aware of this initiative by the Sicilian regional Council?

Can the Commission ensure that in the additional stage of programming currently being assessed the proposal to use Structural Funds for the possible building amnesty is rejected?

Can the Commission ensure that the possible building amnesty does not permit Community legislation on environmental impact assessment to be ignored?

What steps does the Commission intend to take to ensure that areas in the Natura 2000 network in which unauthorised construction has taken place are not jeopardised?

Joint answer to Written Questions P-4045/00 and P-4049/00 given by Mrs Wallström on behalf of the Commission

(20 February 2001)

The Commission was not aware of the draft Law referred to by the Honourable Member. Nonetheless, it will make sure that the programmes it co-finances are implemented in compliance with the rules governing the Structural Funds(1) and that any action is consistent with programme objectives and compatible with all Community policies, including environment policy.

According to Article 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(2), as amended by Council Directive 97/11/EC of 3 March 1997(3), Member States must ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Classes of projects relevant to the Directive are defined in Article 4 and listed in Annexes I and II.

Directive 85/337/EEC, as amended, concerns projects. The aim of the Directive is to prevent the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects. The principle on which it is based is that development consent for public and private projects likely to have significant effects on the environment should be granted only after prior assessment has been made of the likely significant environmental effects of those projects. In contrast, the works the Honourable Member refers to have been already carried out. They are no longer projects. In this specific case, an environmental impact assessment (EIA) procedure is not justified under the EIA Directive because it would be useful only in verifying the environmental impact but could in no way affect the development consent. Therefore, no provision is found in Directive 85/337/EEC, as amended, to justify an obligation to carry out an EIA procedure in respect of the works in question.

In addition, it should be stressed that the Directive applies to the classes of projects listed in Annexes I and II to the Directive. On the basis of the information given by the Honourable Member, it is not possible to assess whether the works in question fall into one of the classes listed in those annexes.

Should the said works fall within a proposed Site of Community Importance (pSCI) under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora(4), or within a Special Protection Area (SPA) under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds(5), the provisions of Article 6 of Directive 92/43/EEC could be considered relevant.

With reference to pSCIs under Directive 92/43/EEC, Member States have certain obligations to act in such a way as to ensure that the aims of the Directive are not jeopardised. Even in the absence of a Community list, Member States' authorities are therefore advised to at least abstain from all activities that may cause a site on the national list to deteriorate.

With reference to SPAs, Member States are obliged to take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of the Directive. In addition, any plan or project likely to have a significant effect on the area, either individually or in combination with other plans or projects, should have been subject to appropriate assessment of its implications for the area.

However, on the basis of the information given, it is not possible to identify which and how many of the works mentioned fall within pSCIs or SPAs; nor is it possible to assess whether and how the amnesty in question can be considered a measure that may cause a deterioration of natural habitats or the habitats of species or disturbance of the species for which the areas have been designated.

Therefore, due to a lack of grounds for complaint regarding the application of Community law, no breach of that law can be identified at present. It should also be noted that the regional law in question is at this stage only a proposal and, as such, cannot breach Community law.

(1) OJ L 161, 26.6.1999.

(2) OJ L 175, 5.7.1985.

(3) OJ L 73, 14.3.1997.

(4) OJ L 206, 22.7.1992.

(5) OJ L 103, 25.4.1979.