Modifications on the EIA process
in EU and in FranceMichel Prieur
Osaka
10 march 20151

Legal framework• Assessment of public and private projects
directive 85/337 of 27 June 1985 amended
and then codified by directive 2011/92 of 13
December 2011 amended by directive
2014/52 of 16 April 2014
• Assessment of plans and programs directive
2001/42• EU Party to Espoo convention 1991, Kiev
protocol 2008 and to Aarhus convention 19982• I. The new 2014/52 directive on EIA of 16
April 2014 to comply by 16 may 2017

• II. The first European Court of Justice (ECJ)
cases about plans and programs directive• III. The French transposition

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I. The new EIA 2014 directive• Reaffirm main objective: to ensure a high level ofprotection of the environment (art 191 TFUE),
included marine, and human health= tool of nonregression of environmental protection• Introduce biodiversity, disaster issue and HyogoFAP• Promote cultural heritage and landscape issue• Insist on soil protection and land degradation• Ensure objectivity by preventing conflicts ofinterest between developer and public body4

Procedural modifications of 2014
• Screening procedure and state the main reasonsfor requiring or not requiring preliminary
assessment before 90 days (art. 4-5)
• scoping in order to improve the quality of EIA(art. 5-2) remains voluntary upon request by thedeveloper• Requirement of experts qualified and competent(art. 5-3)
• Consultation regional and local authorities;
effective participation of the public minimum 30
days (art.6-7)
5• Covers demolition works (ECJ C-50/09)• Transboundary consultation: shall agree on a reasonable timeframe period of consultation detailed arrangements by agreements
to enable effective participation of the public (art. 7)• Assessment of “reasonable” alternatives (annex IV)• Development consent must incorporate the reasoned conclusion
taking into account the results of consultations and the information
gathered (art. 8)• Monitoring measures of significant adverse effects on theenvironment (art. 8 bis-4)• Requirement of rules of penalties applicable to infringements of EIA
regulations (art. 10 bis)
• Applies to more than 200 projects categories listed in Annex I and II

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II. The first cases about Plans andprograms• Preliminary ruling actions : interpretation ofthe directive• Action programmes for management of
nitrogen in agriculture pursuant directive on
protection of water against nitrate pollution,
are plans and programmes (ECJ 17 June 2010)• An assessment under 1985 directive does notdispense to carry out an assessment under
directive 2001/42 (ECJ 22 September 2011)7• The directive applies to plans andprogrammes compulsory or not .
• abrogation or repeal must be considered as amodification: applied to a total or partial
repeal of a land use plan (ECJ 22 march 2012)8

III. The French transposition• France had EIA procedure before UE in 1976 lawand 1977 decree: 4000 EIA/ year
• Procedure for failure to fulfill obligations: ECJ 7
November 2002: -no scoping procedure at therequest of developers – no information of thepublic of the reasons for a decision• Then Commission send new notice claim in 2005
and 2006, reasoned opinion in 2009
• Law Grenelle II 12 July 2010 and decree 29
December 2011
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Main reforms in 2010 to adapt French
EIA procedure to UE law• Annex 2 projects : case by case examination evenwith threshold, according criteria of annex III• Suppression of the financial threshold of 1, 9millions Euros• Introduction of the scoping at request of thedevelopers• Integration of cumulative impacts• Confirmation of the 2009 “environmentalauthority” to check the content of the EIA
102015 review• New Commission requirements during French
process of environmental law modernization andsimplification• 2014 special French Committee on EIA: revision
and adaptation without regression ofenvironmental protection• Main issues for the 2015 new revision:- exemption of EIA after case by caseexamination must be decided after screening as apreliminary assessment
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- requirement , where appropriate, of monitoringmeasures of significant adverse effects on theenvironment (art 8bis 1 et 4 directive 2014) –- situation of projects under the threshold but withenvironmental impact, possibility of case by caseexamination- Conflict of interest and competent authorities:
statute of the “environmental authority” and decision by
the prefect for public works- integration of disasters and risks of major
accidents

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Main issue of annex 2: scope ofapplication with thresholds• Case law by European Court of Justice- C/392/96 of 21/09/ 1999 Ireland- C/435/09 of 24/03/2011 Belgium
threshold cannot take into account only thedimension of the project but too their natureand localization, impact on man, fauna, flora,soil, air , cultural heritage, cumulative impact,risks of accidents, carrying capacity of thenatural environment….
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Transposition of plans andprogrammes directive• Law 2010 and two Decrees of 2012
• But Commission critics in 2012 and 2013
- too many exemptions of plans andprogrammes- conflict of interest between
environmental authority and administrativecompetent bodynew case law to come about France?
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Pecuniary penalties• Failure of a member State to fulfil obligation
by failing to take the necessary measures tocomply with judgment of the ECJ may conduct
the Commission to order to pay pecuniary
penalties under article 260 TFEU
• For failure of Ireland to comply a judgment ofNovember 2008 about incorrect transpositionof EIA directive, ECJ 19 December 2012 orderto pay a lump sum of 1 500 000 Euros15