European Parliament 2014-2019

Committee on Petitions

3.2.2020

NOTICE TO MEMBERS

Subject: Petition No 1004/2014 by Paul Stefan (Austrian), on behalf of Verein Lebensraum Mattigtal, on alleged evasion of the Directive on assessment of effects on the environment

1. Summary of petition

The petitioner claims that the Austrian Government is acting in breach of the provisions of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. Plans by the Austrian authorities for a highway (B 147) between and Straβwalchen subdivide the whole construction project into five sections of less than 10 kilometres. The plans refer to each part as an individual bypass around a conurbation. The petitioner describes this as ‘divide and rule’ tactics on the part of the authorities which, he says, have chosen this approach to evade the requirements of Directive 2011/92/EU on the assessment of effects on the environment. According to the petitioner, the planned project runs through a very densely populated area, and traffic forecasts show that traffic will triple once the road is built, with all the consequences for the environment and public health that this will bring. The petitioner claims that the route could not be constructed if an EIA under Directive 2011/92/EU had to be carried out beforehand. According to the petitioner, there has also been no screening. Requests for this from the petitioner’s association to the Transport Attorney (Verkehrsanwalt) in Linz and to the Regional Auditor’s Office were ignored. The petitioner requests the European Parliament to investigate.

2. Admissibility

Declared admissible on 27 March 2015. Information requested from Commission under Rule 216(6) (new Rule 227(6).

3. Commission reply, received on 30 June 2015

As regards the first issue, it is noted at the outset that the Court has systematically stressed that splitting of projects into several parts in order to avoid the obligations under the EIA

CM\1198094EN.docx PE564.893v06-00

EN United in diversityEN Directive 2011/92/EU is contrary to its purpose. Thus, the Directive would be violated if a long-distance road construction project was split up into successive shorter sections in order to exclude both the project as a whole and the sections resulting from that division from the requirements of the Directive (C-392/96, C- 142/07, C-205/08, C-2/07, C/275/09 and C-531/13). However, it follows from the information submitted by the petitioner, as well as from further information publicly accessible, that only the bypass – Munderfing, with an overall length of 7.7 km is on a project stage. The development consent has been granted for the first out of three sub-parts of the bypass Mattighofen – Munderfing project, while the authorisation procedure for the second sub-part is on-going. Regarding the remaining part of the transit route, it seems that there had been corridor studies for a further development of the B 147 in the State of Upper . But according to the presently available information no concrete project in the sense of the EIA Directive has been identified on that basis. These studies concern the areas north and south of the bypass Mattighofen – Munderfing project. Thus, on the basis of the facts and information available to the Commission services, the petitioner's view that the Austrian authorities split up a project of road constructions between Braunau am Inn () and Straßwalchen (Salzburg), 40 km in length, in order to circumvent an EIA cannot be endorsed at this stage. However, in case of such a project, its environmental impact should be assessed as a whole. Furthermore, cumulative effects of any newly planned project with the already authorised and/or constructed ones, including bypass Mattighofen – Munderfing, will have to be taken into consideration (Case C-244/12, Salzburger Flughafen, paragraph 21). Furthermore, an EIA might also be necessary for the second or third sub-part of the aforementioned Mattighofen – Munderfing bypass, if national authorities determine that the project is likely to have significant effects on the environment, taking into account the relevant Annex III criteria. Apart from that it appears that a bypass in Straßwalchen in the region of Salzburg with a length of 2.5 km has already been constructed in 2014. This bypass road might have overlapping impacts with the bypass Mattighofen-Munderfing and, if so, its environmental effects should be considered cumulatively when authorising the 2nd and the 3rd sub-part of the Mattighofen-Munderfing bypass. The Committee on Petitions decided that the European Parliament will seek more information from Austria via the Permanent Representation on the alleged overall project between Straßwalchen and Braunau am Inn. The Commission will await transmission of this information before deciding on how to proceed with the matter. As regards the second issue, it is noted that an environmental association recognized under Section 19(7) of the Austrian EIA Act can file a judicial complaint against the negative determination of the necessity to conduct an EIA, i.e. the administrative decision that no EIA is required (cf. Section 3(7) lit. a). It cannot, however, request a formal administrative decision on the necessity to conduct an EIA (cf. Section 3(7) Austrian EIA Act). Thus, in the absence of an administrative decision that no EIA is necessary – as in the present case – an environmental association cannot file a judicial complaint against the alleged failure to conduct an EIA. This particular situation gives rise to concerns regarding a possible violation of Directive 2003/35/EC, which transposes the access to justice requirements of Article 9(2) of the Aarhus Convention for cases falling in the scope of the EIA Directive 2011/92/EU. On

PE564.893v06-00 2/6 CM\1198094EN.docx EN 11 February 2015, however, the Austrian Supreme Administrative Court found that the situation outlined above constitutes a legal gap which contravenes the "effet utile" principle. The court therefore decided that the complaining environmental association can request the administrative determination of whether or not an EIA is necessary and then – as the case may be – file a judicial complaint against the outcome of such determination (ECLI:AT:BVWG:2015:W104.2016940.1.00). It therefore seems that the Austrian courts has remedied the possible violation of the Aarhus Convention and transposing EU law. The responsible Commission services will inquire about Austria's intention to generally comply with this ruling or to change its relevant legislation. Against this background, the petitioner informed the Commission that the environmental association he is chairing requested such an administrative determination of the necessity to conduct an EIA on 6 March 2015. The Commission awaits the outcome of this request in order to assess whether the position of the Austrian court is reflected in administrative and further judicial practice. Conclusions On the basis of the further information to be obtained by the European Parliament and the outcome of the recent administrative proceedings in Austria, the Commission will then conclude its analysis of the issues at hand and decide on further steps.

4. Commission reply (REV I), received on 28 October 2016

Obligations under Directive 2011/92/EU of the European Parliament and the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (EIA Directive)

It is noted at the outset that the Committee on Petitions decided that the European Parliament will seek more information from Austria via the Permanent Representation on the alleged overall project between Braunau am Inn and Straßwalchen. The Commission wanted to await this information before deciding on how to proceed with the matter. The Commission did not receive such information from the Parliament. However, the Austrian Federal Ministry of Environment (BMLFUW) sent a note (from 4 January 2016) to the Commission which replies to the questions raised by the latter during the package meeting on 16 October 2015.

According to this information (TOP 14, point 1.3), the factual situation does not seem to have changed since 30 June 2015 (date of the transmission of the previous communication from the Commission to the Parliament): only the bypass Mattighofen – Munderfing, with a total length of 8.5 km, is on a project stage. Regarding the remaining part of the transit route, the Ministry confirmed that there had only been "corridor studies" and that it was not clear yet if and when the planning process will be finished and the authorisation procedure could be launched.

Finally, as far as the obligations under the EIA Directive are concerned, the Ministry stressed that in the case of such an authorisation procedure, the cumulative effects of the newly planned projects with the already authorised ones will have to be assessed. It thus follows the view of the Commission that in the case of further road constructions between Braunau am Inn and Straßwalchen, the environmental impact of such projects will have to be assessed as a whole and environmental effects be considered cumulatively, including the ones resulting from the already authorised bypass Mattighofen – Munderfing.

CM\1198094EN.docx 3/6 PE564.893v06-00 EN Furthermore, it has to be noted that, according to the information submitted by the petitioner, several administrative decisions in the context of this project are the subject of legal proceedings brought by different complainants before the relevant Courts in Austria, inter alia the Supreme Administrative Court. The rulings have to be awaited.

Transposition of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC in Austrian legislation

The environmental association chaired by the petitioner requested an administrative determination on 6 March 2015 of the necessity to conduct an EIA.

On 7 July 2015, the government of Upper Austria considered the request inadmissible by highlighting that the environmental association cannot be treated as a party in these proceedings. This administrative decision has been confirmed by judgment of the Austrian Supreme Administrative Court on 28 October 2015 (ECLI:AT:BVWG:2015:W225.2112512.1.00) which specifies that section 3 (7) of the Austrian EIA Act does not provide for a request by an environmental association for determination of the necessity to conduct an EIA. This judicial decision seems however to contradict the judgment of the same Court from 11 February 2015 (ECLI:AT:BVWG:2015:W104.2016940.1.00). In the latter judgment, the Court found that there is a legal gap in Austrian law insofar as an environmental association can only file a judicial complaint against the negative determination of the necessity to conduct an EIA, i.e. the administrative decision that no EIA is required, but it cannot request a formal administrative decision on the necessity to conduct an EIA and that this gap has to be closed.

Conclusions

Concerning the implementation of Directive 2011/92/EU, the information transmitted to the Commission by Austria does not provide any indications of an intention by the Austrian authorities to circumvent the obligations resulting from the EIA Directive at this stage. The rulings of the Austrian Courts related to the case have to be awaited.

As for the issue of the transposition of Directive 2003/35/EC into the Austrian legal order, the responsible Commission services are further inquiring about Austria's intention to safeguard a uniform interpretation of law and/or to change its relevant legislation for the sake of legal certainty and equal treatment.

5. Commission reply (REV II), received on 31 May 2017

By letter of 17 May 2017, the Commission asked the Austrian Federal Ministry of Environment (BMLFUW) to provide an update on the state of play of the alleged overall transit route between Braunau am Inn and Straßwalchen, as well as on the legal proceedings brought by different complainants against administrative decisions in this context before the relevant Courts in Austria.

PE564.893v06-00 4/6 CM\1198094EN.docx EN Moreover, the Commission asked the Austrian authorities to make sure that for any further project in the framework of the transit route their cumulative environmental effects with the already authorised ones will be assessed. It has to be noted that the burden of proof concerning the alleged circumvention of relevant EU law lies with the Commission.

Conclusion

The Commission will await transmission of the information by the Austrian authorities before deciding on how to proceed with the matter.

6. Commission reply (REV III), received on 31 October 2017

By letter of 12 July 2017, Austria provided an update on the state of play of the street construction project between Braunau am Inn and Straßwalchen, as well as on the legal proceedings brought by different complainants against the administrative decisions in this context before the relevant courts in Austria.

The Commission is analysing this reply and continues to be in contact with the Austrian authorities in order to clarify further issues as necessary.

7. Commission reply (REV IV), received on 30 May 2018

By letter of 7 November 2017, the petitioner provided the decision of 10 August 2017 (W225 2128090-1/3E) of the Federal Administrative Court of the Republic of Austria (Bundesverwaltungsgericht Republik Österreich) concerning the street construction project between Braunau am Inn and Straßwalchen. In its decision, the court rejected the obligation to carry out an Environmental Impact Assessment (EIA) according to Directive 2011/92/EU (EIA Directive) for the project in question. In the meantime, during the package meeting between the Commission services and the Austrian authorities on 15 November 2017, the issue of examination of cumulative effects of projects pursuant to Section 3(2) of the Umweltverträglichkeitsprüfungsgesetz (UVP-G 2000) was discussed. The EIA Directive was transposed in Austria into the UVP-G 2000. The Austrian authorities have reported that national courts had not identified any salami slicing/circumvention of the EIA Directive in the context of permitting procedures for the project in question and confirmed that the relevant requirements of the EIA Directive regarding project definition and thresholds as well as provisions on cumulation were correctly transposed in the Austrian legislation, and applied accordingly. The detailed follow-up replies received from the Austrian authorities in December 2017 confirm this information. Conclusion In view of the above, the Commission considers that the issue is now resolved and does notintend to further investigate this point.

8. Commission reply (REV V), received on 3 February 2020

By letter of 27 June 2019, the petitioner provided the decision of 26 June 2019 (W225 2199673-2/8E) of the Federal Administrative Court of the Republic of Austria (Bundesverwaltungsgericht Republik Österreich) concerning the street construction project

CM\1198094EN.docx 5/6 PE564.893v06-00 EN between Braunau am Inn and Straßwalchen. In its decision, the court rejected the obligation to carry out an Environmental Impact Assessment (EIA) according to Directive 2011/92/EU (EIA Directive)1 for the project in question. In consequence, the new court decision confirmed the legal point of view in the previous decisions.

The issue of examination of cumulative effects of projects pursuant to Section 3(2) of the Umweltverträglichkeitsprüfungsgesetz (UVP-G 2000) was already discussed during the package meeting between the Commission and the Austrian authorities on 15 November 2017. The EIA Directive was transposed in Austria into the UVP-G 2000. The Austrian authorities informed the Commission that national courts had not identified any circumvention of the EIA Directive in the context of permitting procedures for the project in question and confirmed that the relevant requirements of the EIA Directive regarding project definition and thresholds as well as provisions on cumulation were correctly transposed in the Austrian legislation, and applied accordingly. The follow-up detailed replies of the Austrian authorities received in December 2017 confirm this information. The Commission considered that the issue was resolved and did not intend to further investigate this point.

Conclusion

In the light of the above, the Commission does not consider the information provided to change its decision not to further investigate.

1 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance, OJ L 26, 28.1.2012, p. 1–21.

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