Applicants: NGO’s and independent experts

Intervenor: Ombudsman

Defendant: Ministry of Defence

A permit for construction was issued by the competent authority that allowed the Ministry of Defence to build the NATO radar in the vicinity of a Natura 2000 site. NGOs brought an action for the annulment of the authorisation before the administrative court. The Ombudsman intervened in the court procedure in support of the applicants engaged in litigation and gave his opinion as follows, initiating further investigations and collection of evidence.

Natura 2000: The project should have been subject to an appropriate environmental assessment (92/43/EEC Art. 6.3) because the road which leads to the radar goes through Natura 2000 sites. Thus the construction and the operation of the radar (including the transport activity) is likely to affect the sites as well. No evidence of preliminary screening concerning the impacts of the project on the sites could be established.

Water protection: The waste water treatment of the planned military object raises some additional concerns as to groundwater quality, especially in the light of the fact that the radar is to be located on a drinking water reserve. As no connection to the main waste water treatment system is foreseen, individual purification equipment should be installed. The environmental suitability of any such individual system of the planned radar has not been assessed. There is a risk that such system may not be able to treat the waste water discharges of the radar complex, therefore compliance with the requirement of water protection could be in jeopardy. In order to maintain the quality of surface water and groundwater, compliance with the Water Framework Directive (2000/60/EC), in particular Article 7 concerning waters used for the abstraction of drinking water and Article 6 of the Groundwater Directive (2006/118/EC), concerning measures to prevent or limit inputs of pollutants into groundwater should be ensured.
The above-mentioned issues (Natura 2000 and water protection) could have been properly investigated in an EIA procedure. In the view of the Ombudsman the project should have been subject to environmental impact assessment (EIA) according to the EIA Directive (85/337/EEC) given its likely significant affects on the environment.

Legal Framework
a. EC Law:
• The Habitats Directive (92/43/EEC) Article 6.3; the Birds Directive (79/409/EEC) concerning the Natura 2000 network;
• The Water Framework Directive (2000/60/EC); the Groundwater Directive (2006/118/EC)
• The Environmental Impact Assessment Directive (85/337/EEC)

b. National Law:
• 10. §-10/A. § Governmental Decree No. 275/2004. (X. 8.) concerning the Natura 2000 network
• Governmental Decree No. 123/1997. (VII. 18.) concerning the drinking water reserve

Comments:

At project level the applicability of Article 7 Directive of 2000/60/EC concerning waters used for the abstraction of drinking water and Article 6 of Directive 2006/118/EC concerning measures to prevent or limit inputs of pollutants into groundwater gives rise to procedural question, especially if the project is not subject to an EIA and/or an appropriate environmental assessment under the Natura 2000 regime (92/43/EEC Art. 6.3).

In addition, the working group could exchange information on the judicial practice concerning the definition of “significant environmental impact” in EIA procedures that triggers the mandatory application of the Directive.