WRITTEN QUESTION P-1009/04 by Johannes Voggenhuber (Verts/ALE) to the Commission. Lobau motorway.
Date: 2004-03-25
Institutions: European Parliament, Provisional data
Subjects: Austria, EU law - national law, application of EU law, environmental impact, impact study, motorway, national implementing measure, road building

8.4.2004

EN

Official Journal of the European Union

C 88 E/269

The Commission contribution is based on Directive 2003/85/EC of 29 September 2003 on Community
measures for the control of foot-and-mouth disease (1), which reflects the lessons learned from the 2001
outbreak, the resolution of the Parliament of 13 December 2002 and the conditions for recovery of the
disease and infection free status as laid down in the Terrestrial Animal Health Code of the OIE.

With regard to the differentiation between protective vaccination to live and suppressive vaccination to
kill, the Commission wishes to reiterate that the latter is part of a stamping-out procedure applied in
infected or contaminated herds. However, where the different strategies are concerned with phasing out
protective vaccination, i.e. regaining disease- and infection-free status three months after the slaughter for
human consumption of the vaccinated animals as opposed to six months where the vaccinates remain
alive, the Commission wishes to draw attention to Article 62 of the above Directive which provides for a
derogation from the waiting period in the light of the outcome of the post-vaccination surveillance.

The Commission maintains its position that
the internationally accepted requirements for regaining
freedom from disease and infection following the resort to emergency vaccination must provide a high
level of security. Taking into account the biology of the virus and the epidemiology of the disease, any fast
track recovery of disease- and infection-free status may seriously enhance the risk of introducing FMD
virus with products of animal origin. In line with the recommendations in the report of the Temporary
Committee on FMD of the Parliament, the Commission is bound to minimise such risks while complying
with commitments the Community has made in the framework of international trade agreements.

(1) OJ L 306, 22.11.2003.

(2004/C 88 E/0274)

WRITTEN QUESTION P-1009/04

by Johannes Voggenhuber (Verts/ALE) to the Commission

(25 March 2004)

Subject: Lobau motorway

The EIA Directive (97/11/EC (1)) requires EU Member States to carry out an assessment of the effects of
certain public and private projects on the environment. An assessment of this kind is required also in the
case of motorways and express roads, pursuant to Annex I of the Directive. In Austria, consent for
motorways is granted by the issuing of decrees known as Trassenverordnungen,
in accordance with
Section 4 of the Austrian Highways Act. This means that consent for a project of this kind is given not on
the basis of specific information but by a general and abstract decree.

The European Court of Justice has ruled (Case C-287/98) that,
in connection with an environmental
impact assessment, while authorisation may be granted in principle by an individual piece of national
legislation, the details of a particular project must also be authorised by the relevant law or the decree.

The Austrian Constitutional Court has ruled, in a recent judgment on the Vienna orbital express road, that
a Trassenverordnung cannot, by its legal nature, include any kind of subsidiary provisions (conditions) to
meet the requirements set out by the EIA law for the authorisation of the project submitted. The Court
further stated that, in the case of decrees of this kind, consideration of the findings of the environmental
impact assessment was not binding.

Does the Commission deem that this method of authorising the construction of motorways, on the basis
of decrees that cannot guarantee that the findings of an environmental impact assessment will be taken
into account, is compatible with the EIA Directive?

(1) OJ L 73, 14.3.1997, p. 5.

C 88 E/270

Official Journal of the European Union

EN

8.4.2004

Answer given by Mrs Wallström on behalf of the Commission

(22 April 2004)

The Commission is of the view that Member States have to ensure that the results of an environmental
impact assessment concerning projects covered by Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private projects on the environment (1) as amended by
Council Directive 97/11/EEC of 3 March 1997 (EIA Directive), are taken into account in the development
consent procedure as is clearly stipulated in Article 8 of the aforementioned Directive.

As regards the specific motorway project mentioned in the petition (S1,
the
Commission recently closed a complaint file concerning the same road project on the undertaking of the
Austrian authorities that the requirements of the EIA Directive will be taken fully into account in the
current development consent procedure.

the former B301),

The Commission will follow up the question of a potential non-conform transposition of the EIA Directive
regarding road projects in Austria in the appropriate way.

the opinion that

the Commission is of

the said decrees granting consent

for motorways
Finally,
(‘Trassenverordnungen’) cannot be considered as specific acts of national legislation within the meaning of
Article 1(5) of the EIA Directive. Such decrees appear neither to cover all details of a particular road
project (additional permits are normally required to authorise a road project in Austria) nor are they
actually acts of legislation (they are issued by authorities, not by way of a law adopted by Parliament).
However, the EIA Directive does not stipulate that a single development consent procedure is required
(Article 2a). Member States are free to integrate the environmental impact assessment procedure into any
existing procedure or other appropriate procedure according to Article 2(2) of
the EIA Directive.
Therefore, the integration of the environmental impact assessment procedure for a road project into the
‘Trassenverordnung’ cannot be regarded per se as infringement of the EIA Directive.

(1) OJ L 175, 5.7.1985.

(2004/C 88 E/0275)

WRITTEN QUESTION E-1010/04

by Johannes Voggenhuber (Verts/ALE) to the Commission

(1 April 2004)

Subject: Lobau motorway

The Republic of Austria intends to build a motorway in the Lobau national park, which it notified to the
Commission as a designated bird conservation area under Directive 79/409/EEC (1) and as a protected FFH
area under Directive 92/43/EC (2).

The planned motorway will cut into the edge of the conservation area and run under it through a tunnel.
It would, however, be technically possible to choose another route which does not affect the Lobau
conservation area.

There are also plans to develop a four to six-lane road (plus two hard shoulders) in the immediate vicinity
of the Lobau conservation area, running in the direction of the motorway.

Is it permissible under Community law to reduce the Lobau Natura 2000 area for a motorway

1.
project?

2.

Is it permissible to run a motorway underneath a Natura 2000 conservation area?

3. Must an environmental
expansion of the road near the conservation area pursuant to Article 6 of the FFH Directive?

impact assessment also be carried out in respect of the four to six-lane

(1) OJ L 103, 25.4.1979, p. 1.
(2) OJ L 206, 22.7.1992, p. 7.