WRITTEN QUESTION E-0518/00 by Hiltrud Breyer (Verts/ALE) to the Commission. Environmental impact assessment and the protection of species.
Date: 2000-02-28
Institutions: European Parliament, Provisional data
Subjects: North Rhine-Westphalia, competence of the Member States, environmental impact, industrial project, infringement of EU law, protection of animal life

28.12.2000

EN

Official Journal of the European Communities

C 374 E/95

for example the payment of child
This situation gives the Austrian employee specific advantages,
allowances provided for in Austria or the possibility of deducting compulsory sickness insurance from
tax over and above the limit for contributions set in Germany.

Is it consistent with European law that an Austrian employee should be in a better position than a German
one merely because of his nationality?

Answer given by Mr Bolkestein on behalf of the Commission

(19 April 2000)

As the Court of Justice has found on a number of occasions, the situation of residents and non-residents is
usually different, which accounts for different tax treatment (1).

Under Article 3 of the Austrian law on tax procedures (Bundesabgabenordnung (cid:129) BAO), Austrian civil
servants posted abroad are considered to be theoretically resident in Austria irrespective of where they
actually live. They are therefore liable for tax in Austria on income earned anywhere in the world. There
are comparable rules in all the Member States.

This legislation is not inconsistent with European law, since nationals of other Member States who are not
resident in Austria and who are paid by the Austrian state, such as an employee of the Austrian Chamber
of Commerce in Frankfurt (Germany), may opt for unlimited tax liability in Austria (Article 1 § 4 (cid:214)EStG),
if their income from Austrian sources makes up the greater part of their income from sources anywhere in
the world.

If this is not the case, and it is therefore not possible to opt for unlimited tax liability, an employee (cid:129)
unlike an Austrian civil servant (cid:129) is taxed as an Austrian non-resident (with his income as an employee of
the Chamber of Commerce). On the other hand, he is treated as resident for tax purposes in Germany. In
this situation, certain differences in treatment, such as those highlighted by the question by the
Honourable Member, may arise from the different status of residents as compared to non-residents. This
is an inevitable consequence of the existence of two different national tax systems which have not been
harmonised.

(1)

(CJEC, judgment of 14.2.1995, case C-279/93 (cid:129) Schumacker; judgment of 12.5.1998, case C-336/96 (cid:129) Gilly).

(2000/C 374 E/111)

WRITTEN QUESTION E-0518/00

by Hiltrud Breyer (Verts/ALE) to the Commission

(28 February 2000)

Subject: Environmental impact assessment and the protection of species

The council of the city of Leverkusen has noted with approval the attached decision on B-Plan No 143/III
Hornpottweg and instructed the administration to consider possible planning variants for the link to the
planned industrial area.

The area is well-known because of its importance for bird migration and as a buffer zone for the adjoining
nature reserve in the municipal area of Cologne, and it is one of the moorland, dry grassland and inland
dune biotypes which are at serious risk.

Many of the species relevant to North Rhine-Westphalia according to the EC bird conservation directive
(79/409/EEC (1)) and many of the migratory bird species regularly occurring in North Rhine-Westphalia as
referred to in Article 4(2) of the EC bird conservation directive for which protective measures are needed
occur in this area or use it as a stopover point on their migratory passage. Applications from the Working
Party on Biotype Networking of the Cologne, Leverkusen and Rheinisch-Bergischer Kreis groups of BUND
(Association for Nature and Environmental Protection Germany) for the area to be protected as a nature
reserve have been unsuccessful.

C 374 E/96

Official Journal of the European Communities

EN

28.12.2000

Several points of the environmental
decision conclude that the project should not be implemented.

impact assessment undertaken in the context of the preparation

1.

Does the Commission believe that the EIA is consistent with the new EU directives?

Does the Commission agree that the bird conservation directive and the protection of the area as a

2.
stopover point for migrating birds should be given a high priority?

Does the Commission take the view that the competent authorities should not simply dismiss the

3.
clearly adverse outcome of the EIA?

Does the Commission agree that particular account needs to be taken of the protection of nature and

4.
species in agglomerations?

(1) OJ L 103, 25.4.1979, p. 1.

Answer given by Mrs Wallstr(cid:246)m on behalf of the Commission

(11 April 2000)

The Commission agrees that Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild
birds (1) (Birds Directive) is of great importance in each Member State and is to be respected by every
competent authority. Therefore the Commission has launched a number of infringement proceedings
concerning the realisation of projects in SPAs, in addition to the general infringement proceedings dealing
with the failure of Germany to designate sufficient special protection areas (SPA). The Commission also
holds the view that nature and species protection is especially important in urban areas.

However, the literature about important bird areas in Europe indicates that there is no site of European
importance in Leverkusen (no indication of a national importance or regional importance for the area
concerned is known to the Commission). In line with the subsidiarity principle the Commission therefore
considers the case mentioned by the Honourable Member falls under the competence of the Member State.

For sites of local importance, even those hosting some species of the Birds Directive or a habitat of Council
Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora
(Habitats Directive) (2), the Honourable Member should address herself to the authorities of the Member
State.

The subsidiarity principle is also relevant to the question of how to handle the results of the environmental
impact assessment concerning the birds value of the site. Council Directive 85/337/EEC of 27 June 1985
on the assessment of the effects of certain public and private projects on the environment (EIA Directive) (3)
in Article 8 lays down that information gathered pursuant to Articles 5, 6 and 7 must be taken into
consideration in the development consent procedure. However, an adverse outcome of the EIA does not
necessarily lead to a decision to dismiss the project.

The material provided concerning the consent procedure of the council of the city of Leverkusen on the
B-Plan No 143/III Hornpottweg does not prove an infringement of the EIA Directive. According to the
consent, a comprehensive evaluation of all different effects of the construction plan has been carried out.
The material provided does not allow an assessment of how far the EIA was considered in the consent
procedure and public consultations have been executed.

(1) OJ L 103, 25.4.1979.
(2) OJ L 206, 22.7.1992.
(3) OJ L 175, 5.7.1985.