Niet-naleving Seveso-II richtlijn in Hessen (luchthaven Frankfurt): Commissie stuurt Duitsland een waarschuwing (en)

The European Commission has sent Germany a first written warning for failing, in connection with an extension to Frankfurt Airport, to implement correctly an EU law aimed at avoiding major industrial accidents. The Hessian Government wishes to proceed with a new northwest runway at Frankfurt Airport, despite the close proximity of this to the Ticona chemical plant and despite a negative opinion from the German Accident Commission ("Störfallkommission"). The Commission believes that the land-use planning rules of the EU's Seveso II Directive have not been respected. The Commisson will also send Germany final written warnings for failing to implement correctly EU laws on nature conservation and on environmental impact assessment in three other cases. One case concerns the natural site "Niederungen der Unteren Havel" in Brandenburg. A stretch of this land might be affected by the construction of a new road (B 102n), and Germany did not correctly define the exact borders of the site when planning the road. Another case concerns the failure of four German states - Brandenburg, Rheinland-Pfalz, Saarland and Sachsen-Anhalt - to adopt state laws on the environmental assessment of plans and projects that may significantly affect EU nature conservation sites. Laws for such assessments should have been put in place by June 1994. The final case relates to the failure to undertake an environmental impact assessment for a large wind farm project at "Brualer Moor," in Niedersachsen. Under EU environmental law, environmental impact assessments are an important safeguard for ensuring that development projects are well-designed and do not lead to unnecessary environmental harm. ; ;

Commenting on the decisions, Environment Commissioner, Margot Wallström, said: "These four cases show that Germany needs to better assess the impacts of its decisions on the environment, nature and human health. Member States have committed themselves to halting the loss of bio-diversity in the EU by 2010⁽¹⁾. I therefore urge the German authorities to help achieve this objective by improving their practice and procedures for protecting important nature sites and by carrying out the required environmental impact assessments."

Frankfurt Airport case

The Seveso II Directive ⁽²⁾ is aimed at preventing major accidents involving dangerous substances and at limiting their consequences for citizens' health and the environment. It replaces a previous Directive on the same subject, Council Directive 82/501/EEC ("Seveso I"), providing both a wider scope and stronger provisions. It imposes stringent obligations on companies that store dangerous substances. It also requires that information be notified to public authorities and that a major-accident prevention policy, a safety report and emergency plans are prepared in advance. It also sets requirements for land-use planning (article 12) and public information, as well as emergency procedures that must be followed when an accident occurs.

The first written warning to Germany relates to the land-use planning requirements of the Directive. The planned new northwest runway at Frankfurt would be less than one kilometre from the "Ticona" chemical plant. Both the airport and Ticona are installations covered by the Seveso-II-Directive. The regional planning statement, which concluded the regional planning procedure, found that the northwest runway was compatible with regional planning and development aims and was also preferable to the other alternatives (northeast and south). However, the risk that planes destined for the northwest runway might crash into Ticona was not appropriately taken into account. According to the Directive, Member States have to ensure that the objectives of preventing major accidents and limiting the consequences of such accidents are taken into consideration in their land-use policies and/or other relevant policies.

The Commission now gives the German authorities two months to reply to its letter.

Habitats Directive

The Habitats Directive⁽³⁾ provides a comprehensive protection scheme for a range of animals and plants, as well as for a selection of habitat types. It provided for the creation, by June 1998, of a network of protected sites known as Natura 2000, which embraces sites proposed by Member States under the Habitats Directive. The sites proposed by Member States, together with their boundaries, must be based on scientific criteria and scientific information. The Commission has sent Germany a final written warning because it considers that, on scientific grounds, the boundaries of the site "Niederungen der Unteren Havel" in Brandenburg are not correct. A stretch of land coinciding with a possible corridor for a new road (B 102n) was excluded. Therefore, this stretch of land cannot benefit from the protection it would have if it was included in the nature site. In the event of the corridor being chosen for the road project, this stretch will therefore not receive the same level of protection it would have if it was included in the nature site.

All sites in the network must respect the safeguards set out. These include the prior assessment of potentially damaging plans and projects, the requirement that these plans and projects be approved only if they represent an overriding interest and only if no alternative solution exists, and measures for providing compensatory habitats in the event of damage. National legislation to give effect to these safeguards should have been in place by June 1994.

The Commission has sent Germany a second written warning because of the failure of Brandenburg, Rheinland-Pfalz, Saarland and Sachsen-Anhalt to incorporate the assessment requirement into their state laws.

Once fully in place, the Natura 2000 network should ensure that the best examples of EU natural habitats and areas hosting rare and endangered plant and animal species, are properly conserved and protected. The Habitats Directive is the EU's flagship contribution to the safeguarding of global bio-diversity.

Environmental Impact Assessment Directive

The EIA Directive⁽⁴⁾ is an important part of EU environmental legislation. It requires Member States to carry out environmental impact assessments (EIA) on certain public and private projects, before they are authorised, where it is believed that the projects are likely to have a significant impact on the environment. For some projects (such as motorways, airfields and nuclear power stations) listed in an Annex I to the Directive, such assessments are obligatory. For others (such as wind-farms, urban development projects, tourism and leisure activities) listed in Annex II, Member States must operate a screening system to determine which projects require assessment. They can apply thresholds or criteria, carry out case-by-case examination or use a combination of these screening instruments, the aim being to ensure that all projects having significant environmental effects are assessed.

The objective of an EIA is to identify and describe the environmental impacts of projects and to assess whether prevention or mitigation is appropriate. During the EIA procedure, the public can provide input and express environmental concerns with regard to the project. The results of this consultation must be taken into account during the authorisation process.

The necessary national legislation should have been implemented by July 1988. An amendment to the Directive was adopted in 1997. While retaining the basic framework of the original Directive, the amendment reinforced many of the Directive's details. It also made explicit provision for wind-farms. Member States should have adopted the necessary national legislation to take account of this amendment by March 1999.

The Commission has sent Germany a second written warning because of the failure to undertake an EIA with regard to a major wind-farm project ;at "Brualer Moor" in Lower Saxony. Following an application which predated the 1997 amending Directive, the German authorities approved the construction of 17 turbines in December 1999. However, the project was never carried out. In March 2000, after the 1997 amendments entered into effect, an application was submitted for a revised project that involves larger turbines.

The German authorities felt that the application was just a simple change to the old project rather than a new one, and, therefore, did not think that an EIA was necessary. However, in the Commission's view, it did de facto constitute a new project and should have been subjected to an EIA or at least to an EIA-screening.

Legal Process

Article 226 of the Treaty gives the Commission powers to take legal action against a Member State that is not respecting its obligations. If the Commission considers that there may be an infringement of EU law that warrants the opening of an infringement procedure, it addresses a "Letter of Formal Notice" (first written warning) to the Member State concerned, requesting it to submit its observations by a specified date, usually two months.

In the light of the reply or absence of a reply from the Member State concerned, the Commission may decide to address a "Reasoned Opinion" (final written warning) to the Member State. This clearly and definitively sets out the reasons why it considers there to have been an infringement of EU law and calls upon the Member State to comply within a specified period, usually two months.

If the Member State fails to comply with the Reasoned Opinion, the Commission may decide to bring the case before the Court of Justice.

Article 228 of the Treaty gives the Commission power to act against a Member State that does not comply with a previous judgement of the European Court of Justice. The article also allows the Commission to ask the Court to impose a financial penalty on the Member State concerned.

For current statistics on infringements in general see:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#infractions ;

^{(1) Decision of the European Council in Göteburg in June 2001 to halt biodiversity decline within the EU by 2010}

^{(2) Council Directive 96/82 on the control of major accident hazards involving dangerous substances}

^{(3) Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna}

^{(4) Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, amended by Directive 97/11/EC}