OPINION OF THE COMMISSION pursuant to Article 251 (2) (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the assessment of the effects of certain plans and programmes on the environment AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

EXPLANATORY MEMORANDUM

Article 251, paragraph 2, letter c) of the Treaty establishing the European Community establishes that the Commission gives an opinion on the amendments proposed by the European Parliament in the second reading.

The Commission hereafter gives its opinion on the seventeen amendments adopted by the European Parliament.

1. Background

Transmission of the Proposal to the Council and the European Parliament (COM(1996)511 final) (in accordance with Article 175 (1) of the Treaty)

Opinion of the Economic and Social Committee

Opinion of the Committee of the Regions

Opinion of the European Parliament - first reading

Amended Proposal of the Commission (COM(1999)73 final)

Adoption of the Common Position

Communication from the Commission to the European Parliament concerning the Common Position (SEC (2000)568 final)

Opinion of the European Parliament - second reading // 25 March 1997

28 May 1997

20 November 1997

20 October 1998

18 February 1999

30 March 2000

7 April 2000

6 September 2000

The second reading of the European Parliament on the one hand strengthens the Common Position in a number of areas, but on the other hand also introduces some significant limitations.

The Common Position is strengthened in areas such as information provision and public participation, monitoring of the effects of the implementation of plans and programmes on the environment and the quality and content of the environmental report; some additional plans and programmes are added to the scope.

Limitations have been introduced into the Common Position with respect to the flexibility allowed for screening of plans and programmes and for the implementation of the Directive where assessment obligations are arising simultaneously from this Directive and other Community legislation. Moreover, the scope of the Common Position is strongly reduced for plans and programmes that form part of a planning hierarchy.

2. Objective of the Commission Proposal

The objective of the Proposal is to provide for a high level of environmental protection and to contribute to the integration of environmental considerations into planning with a view to promoting sustainable development.

The Proposal enables the likely significant environmental effects of certain plans and programmes to be identified, described and assessed during their preparation and before their adoption. An environmental report will be prepared, the public and the environmental authorities concerned will be informed and given possibilities to comment. In the case of significant transboundary environmental effects, Member States likely to be affected will be consulted. Their public and their environmental authorities concerned will be given an opportunity to comment. Finally the results of the whole process will have to be taken into account in decision-making. After the adoption of the plan or programme the public and the environmental authorities concerned as well as any Member State consulted will have to be informed.

3. Commission opinion on the amendments adopted by the Parliament

17 amendments have been adopted by the Parliament. The Commission can accept one amendment fully (1), one amendment partly in principle (9 - the part on the requirement for a reasoning not to require a SEA) and seven amendments in principle (15, 17, 18, 20, 23, 24 and 25).

The remaining eight amendments (7, 10, 11, 14, 16, 19, 22, 27) and the remaining part of amendment 9 (requirement for a reasoning to require a SEA) are not acceptable.

The Commission's position with regard to the amendments adopted by the European Parliament is as follows:

3.1. Amendment accepted by the Commission

Amendment 1 is acceptable to the Commission. It refers to the UN Convention on Biological Diversity, is in line with the spirit and wording of this Convention and fits into the context of the Directive.

3.2. Amendments accepted in principle by the Commission

Amendment 9 asks for making available to the public the reasoning to require or not to require SEA in case a screening determination has been made. The Commission considers that such a justification is appropriate only when it is determined that no SEA is necessary. In this case, such a justification would represent useful information for the public and increase the transparency of the decision-making. For these reasons, this amendment is accepted partly in principle. The amendment could be reworded in order to reflect this point in the following way "as well as the reasons for not requiring an environmental assessment pursuant to Articles 4 to 9".

Amendment 15 defines in further detail the public to be consulted. The Commission accepts this amendment in principle. It should be ensured, however, that the wording of the amendment is made sufficiently clear and in line with the UN-ECE Convention on access to information, public participation in decision-making and access to justice in environmental matters. For this purpose, the Commission proposes to add after the words "the decision-making process" the following words: "subject to this Directive".

Amendment 17 adds the "monitoring measures decided" to the information to be given on the decision (see also amendments 18 and 25) and thus contributes to transparent decision-making. The Commission accepts this amendment in principle, but considers that it should be streamlined with amendments 18 and 25. This can be done by replacing the words starting with "the implementation of..." from this amendment with "the effects of the implementation of plans or programmes on the environment and of the measures decided to prevent, reduce and as fully as possible offset any significant adverse effects on the environment".

Amendment 18 requires the establishment of monitoring systems (see also amendments 17 and 25). The Commission accepts this amendment in principle and suggests streamlining with amendments 17 and 25 in the following way: "Member States shall establish appropriate systems for monitoring the effects of the implementation of plans or programmes on the environment and the effectiveness of the measures decided to prevent, reduce and as fully as possible offset any significant adverse effects on the environment and of any remedial action that may be required.

Amendment 20 proposes to strengthen the provision on the quality of the environmental reports. As their quality will be important for achieving the objectives of the future directive, the Commission accepts this amendment in principle, but considers that the wording should be streamlined. This can be achieved by formulating the amendment in the following way: "Member States shall ensure that necessary measures are taken in order to guarantee that the environmental reports are of an appropriate quality. Member States shall communicate to the Commission what these measures are. ".

Amendment 23 broadens the scope of application of the Directive slightly to planning that was started before the transposition date of the Directive and where the plan would be adopted after more than one year after that date. The Commission accepts this amendment in principle provided the timing element is clarified. This could be achieved by adding the word "after" after the words "will occur".

Amendment 24 specifies the environmental aspects to be dealt with in the environmental report. The Commission accepts this in principle, but considers that these aspects should be aligned with other Community legislation. In particular, "cultural heritage" should be used instead of "architectural and archaeological heritage", because this term is in line with Directive 85/337/EEC and covers more aspects.

Amendment 25 broadens the information requirements of the environmental report. The environmental report should include both information on measures for monitoring the effects of the implementation of the plans or programmes on the environment and information on measures for monitoring the effectiveness of the mitigation measures. For this purpose and in order to streamline this amendment with amendment 18 and especially amendment 17, a technical amendment is needed in the first part of Annex I(i) and the comma (",") between the words "plan or programme" and "and the effectiveness" should be dropped. Annex I(i) would then read as following: "a description of the measures envisaged for monitoring the effects of the implementation of the plan or programme on the environment and the effectiveness of any measures to prevent, reduce or offset any adverse effect on the environment;"

3.3. Amendments not accepted by the Commission

Amendment 7 drops the possibility of screening plans and programmes by specifying types of plans and programmes or by combining this with case by case examination. This would mean that all plans or programmes subject to screening would have to undergo a case by case examination, even in the case where it is for instance almost certain that they are likely to have significant impacts on the environment. In such cases, this examination would clearly be superfluous and the screening process needs flexibility. For these reasons, this amendment is not acceptable to the Commission.

Amendment 9 asks for making available to the public the reasoning to require or not to require SEA after a screening determination has been made. The Commission cannot accept the part of the amendment to require a justification if the decision is to require a SEA. Such a requirement would create unnecessary administrative burden especially since the SEA process itself already provides for information and consultation rights to the public. Therefore, only the requirement to give a reasoning not to require a SEA can be justified.

Amendment 10 includes all future plans and programmes under the current Structural Funds and rural development Regulations or under new EC Regulations into the scope of this Directive. The Commission cannot accept this amendment which raises several difficulties. Firstly, it cannot be anticipated that all future plans or programmes funded by these or new EC Regulations will have a significant impact on the environment and this Directive should concentrate on those. Secondly, as regards the Structural Funds Regulation, this proposed clause would in practice apply only to the Structural Funds after 2006 given that almost all the plans and programmes under the current 2000 - 2006 Structural Funds period have already been decided or will be decided well before the final adoption of this Directive. It cannot be anticipated how the future Structural Funds Regulations will look like after 2006. Therefore, for the six coming years, the practical effect of this proposal would be insignificant and for the next programming period, it is definitely premature to make proposals. Thirdly, as regards the Structural Funds, the amendment would leave the review report of article 11(4) of this Directive on this matter without purpose. The content and form of future Structural Funds plans and the outcome of the Commission report on the relation between Structural Funds and this Directive are not known yet and should not be anticipated.

Amendment 11 turns the requirement of the common position for making assessments at different levels of a planning hierarchy into the possibility to make assessments at only one level and states that the aims, content and validity of the Directive shall remain unaffected by this. The Commission cannot accept this amendment because enabling Member States to define one level at which an assessment is carried out would strongly reduce scope of this Directive and go against its objectives. Additionally, the last sentence of this amendment is in contradiction to its first part and would introduce legal uncertainty. Moreover, this amendment could impede a harmonised application of the Directive within the Member States.

Amendment 14 provides for public consultation "in appropriate timeframes to be defined by the Member States" instead of "within appropriate time frames" as provided in the common position. This amendment is not acceptable to the Commission because it represents no improvement to the Directive. Article 6(5) already provides that the detailed arrangements for the information and consultation shall be determined by the Member States.

Amendment 16 proposes to open transboundary consultations up to States other than Member States. This Directive deals with relations between Member States. The relations between Member States and third countries are subject to international law. In the context of the UN-ECE Convention on environmental impact assessment in a transboundary context, it is currently foreseen that the next meeting of the parties would decide to start negotiations on a transboundary SEA protocol which will cover these aspects. For these reasons, the Commission cannot accept this amendment.

Amendment 19 makes the use of co-ordinated or joint procedures mandatory when the obligation to carry out assessments of the effects of plans or programmes on the environment arises simultaneously from this Directive and other Community legislation. The Commission cannot accept this amendment because Member States should, in line with the subsidiarity principle, have the choice of how they implement the requirements of the Directive into their national planning systems.

Amendment 22 proposes to broaden the Commission reporting requirement on the relation between this Directive and the Structural Funds and Rural Development Regulations to the relation between this Directive and other related Community legislation. As this aspect is already covered by the report referred to in Article 11(3) and as such relationship is in general terms already dealt with in article 10 of the common position, the amendment would introduce duplication. For these reasons, the Commission cannot accept this amendment.

Amendment 27 adds 'plans or programmes which are funded by the European Union' to the definition of plans and programmes. The Commission cannot accept this amendment because the simple fact that plans or programmes are funded by the European Union does not necessarily mean that they are likely to have a significant effect on the environment. This addition is also irrelevant for the definition of plans and programmes.

3.4. Amended Proposal

Having regard to Article 250, paragraph 2 of the EC Treaty, the Commission modifies its proposal as indicated above.