WRITTEN QUESTION E-0628/02 by Raina Echerer (Verts/ALE) to the Commission. Implementation of the environmental impact assessment (EIA) directive in Austria.
Date: 2002-03-08
Institutions: European Parliament, Provisional data
Subjects: Austria, European Economic Area, application of EU law, environmental impact, environmental law, interpretation of the law, national implementing measure, supranationality

29.8.2002

EN

Official Journal of the European Communities

C 205 E/179

(2002/C 205 E/191)

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.

C 205 E/180

Official Journal of the European Communities

EN

29.8.2002

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

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

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

A 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.

(2002/C 205 E/192)

WRITTEN QUESTION E-0629/02

by Chris Davies (ELDR) to the Commission

(8 March 2002)

Subject: Data from animal tests and EU chemicals policy

When it draw up the draft directive on chemicals policy, how does the Commission propose to ensure that
animal tests for which data already exist do not have to be repeated?

Is the Commission aware of the success of the 120-day public comment period and other measures aimed
at reducing the need for animal testing introduced by the US Environmental Protection Agency in the
course of the HPV Challenge programme, and does it believe that there are lessons which can be learnt
from this?

Answer given by Mrs Wallström on behalf of the Commission

(26 April 2002)

the White Paper on the ‘Strategy for a Future Chemicals Policy’ (1),

the
Following publication of
Commission consulted extensively with a wide range of stakeholder working groups, which included
representatives of animal welfare organisations, Member States and industry, on how best to implement
the strategy. One such working group considered the issues related to animal testing and in particular how
to avoid unnecessary repeated testing. This group’s discussions are being taken into account in the
preparation of the new legislation.

Although the working groups consisted of representatives of organisations based in the Union, the
Commission wishes to take advantage of all relevant international information. It has therefore approached
the American Environmental Protection Agency to ask for further details on its 120-day public comment
period. The response will also be considered in the preparation of the new legislation.

Once the Commission has prepared its legislative proposal, it will be submitted to Parliament and Council
under the co-decision procedure. The provisions related to animal testing can then be discussed with all
stakeholders as an important element of the wider debate on the new legislation.

(1) COM(2001) 88 final.