WRITTEN QUESTION E-2990/00

by Daniela Raschhofer (NI) to the Commission

(20 September 2000)

Subject: Habitats Directive 92/43 EEC

1. Since the expiry of the deadline for its transposition into national law, is Directive 92/43/EEC(1) on the conservation of natural habitats and of wild fauna and flora directly applicable where it has not been properly transposed?

2. Is the protection scheme pursuant to Article 6 of the Directive already applicable to the areas referred to in the national lists?

3. How many sets of proceedings for treaty violations have been initiated against Austria in connection with this Directive, and how many have already been dropped?

4. To which projects and areas did these relate?

(1) OJ L 206, 22.7.1992, p. 7.

Answer given by Mrs Wallström on behalf of the Commission

(23 November 2000)

1. The Court of justice has developed in its case law the doctrine of direct effect of Community provisions, according to which a provision of a directive might be directly applicable under the following conditions: expiry of the transposition date; absence of transposition by the Member State concerned; unconditional character of the provision (the legal consequence follows directly from the provision without an intermediate act); the provision is sufficiently precise (the content, e.g. rights or obligations, deriving from the provision are unambiguous and clear); it confers on individuals some rights (i.e. favourable position with regard to public authorities). It follows moreover from Articles 10 and 249 (ex Articles 5 and 189) of the EC Treaty that Community legal provisions have supremacy over national provisions, whether these national provisions came into effect before or after Community law. Therefore national, regional or local courts and administrative authorities have to give priority to the Community provision in the event of a conflict of rules. They have to interpret national law in a way which best ensures that the Community provision is effective and, where the Community provision is of direct effect, to set aside the contradicting national rule and apply the Community provision alone.

2. According to Article 4 (5) of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(1) a site shall be subject to Article 6 (2), (3) and (4) as soon as it is placed on the list under third subparagraph of paragraph 2. The Commission published an interpretation guideline on the provisions of Article 6 of Directive 92/43/EEC in April 2000. It is accessible under http://europa.eu.int/comm/environment/nature/legis.htm. There in chapter 1.4.2. Sites based on Directive 92/43/EEC, some useful information can be found. The chapter summarises with regard to sites in national lists as follows: As regards sites based on Directive 92/43/EEC, it can be argued that Member States, particularly after the date for adoption of the Community list expired on 10 June 1998, have certain obligations to act in a way so as to ensure that the aims of the Directive are not jeopardised. Even in the absence of a Community list, Member States are therefore advised to at least abstain from all activities that may cause a site on the national list to deteriorate.

3. and 4. 27 cases (complaints plus others) have been registered altogether under Directive 92/43/EEC concerning Austria, of which 15 cases are still pending at the Commission (12 been closed so far). Infringement procedures have been opened in two of them, none of which is site related.

(1) OJ L 206, 22.7.1992.