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Brussels, 27.10.2006

SEC(2006) 1375

COMMISSION STAFF WORKING DOCUMENT

Document accompanying theREPORT FROM THE COMMISSIONRELATIONSHIP BETWEEN THE SEA DIRECTIVE AND COMMUNITY FUNDS{COM(2006) 639 final} ANNEXES

Annex 1

When is SEA required? The tests in Articles 2 and 3 of Directive 2001/42/EC

Articles 2 and 3 of the Directive set out a series of criteria which determine whether or not SEA is required of any given plan or programme. The criteria and their application are outlined briefly below. This material is based on guidance issued by the Commission in 2003, The Implementation of Directive 2001/42/EC , which should be consulted for a fuller discussion of the issues raised.[1] The headings used in the remainder of this section correspond to the criteria set out in the respective Articles of the Directive.

Article 2(a)

‘Plans and programmes’?

The Directive does not define the meaning of the words ‘plan and programme’ as such but there seems no doubt that the term includes SF plans and programmes.[2] They have the necessary quality of setting out how it is proposed to carry out or implement a scheme, policy, or set of projects. This conclusion is reinforced by the exemption in Article 3(9). Modifications are treated in the same way as plans and programmes.

Co-financed by the European Community?

Plans and programmes co-financed by the European Community are treated under the SEA Directive in the same way as other plans and programmes.

Prepared and/or adopted by an authority at national, regional or local level?

All the SF plans and programmes are prepared by (or on behalf of) an authority at national, regional or local level and they therefore pass this test.

Required by legislative, regulatory or administrative provisions?

These plans and programmes are required by legislative provisions (the relevant EC Regulation). They therefore comply with the requirements of the second indent of Article 2 of the Directive (‘which are required by legislative, regulatory or administrative provisions.’)

Article 3(2)

Within the sectors listed in Article 3(2)?

Article 3(2) states that “an environmental assessment shall be carried out for all plans and programmes:

1. which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC[3], or

2. which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC.’

Although, in many cases, SF plans and programmes will clearly fall within the sectors listed in Article 3(2)(a), this will not invariably be the case. Thus improvements to infrastructure would normally fall within one or more of the sectors listed (for example, transport, waste or water management, energy, town and country planning or land use).[4] Other activities supported by the SF (such as community activities and voluntary groups, training projects or business development schemes) are less likely to come necessarily within any of the sectors listed in Article 3(2)(a) although they may fall within Article 3(4) (see below).

‘Do they set the framework for future development consent of projects?’

If the plans and programmes also fulfil the second criterion in Article 3(2)(a), that is, they 'set the framework for future development consent of projects' listed in the EIA Directive,[5] assessment is automatically required. Although there is no definition of the words ‘set the framework’, they would be likely to mean that the plan or programme contains criteria or conditions which would guide the way a consenting authority decides an application for development consent (for instance by specifying location, nature, size or operating conditions of projects or the allocation of resources). Thus a plan or programme which did not ‘set the framework’ in this sense would not require assessment under Article 3(2)(a) of the SEA Directive. It is likely that many SF plans and programmes dealing with infrastructure do indeed ‘set the framework’ for the future development consent (or authorisation) of projects and that these projects are ones which would require Environmental Impact Assessment under the terms of the EIA Directive. But plans or programmes designed to stimulate innovation or open up training opportunities may not.

Is assessment required under the Habitats Directive?

It is possible that some SF plans or programmes would trigger the requirement for mandatory assessment under Article 3(2)(b) because of their likely effect on sites identified under the Habitats Directive (92/43/EC) or the Wild Birds Directive (79/409/EEC). In this case, the plans or programmes do not need to set the framework for projects listed in the EIA Directive.

Article 3(3)

Small areas at local level or minor modifications?

If the plans and programmes identified in Article 3(2) determine the use of small areas at local level, or if they themselves are minor modifications to plans or programmes, the appropriate authorities in the Member State must determine (using criteria set out in Annex II to the Directive) whether they are likely to have significant environmental effects. If the determination is positive, SEA is required.

Article 3(4)

Do they set the framework for future development consent of other projects?

If SF plans or programmes set the framework for the future development consent of projects which are not covered by Article 3(2), the appropriate authorities in the Member State concerned must determine (using the criteria set out in annex II) whether they are likely to have significant environmental effects. If so, they would require assessment under Article 3(4) of the Directive. If neither the conditions in Article 3(2) nor those in Article 3(4) were met, no assessment would be needed.

Article 3(8)

National defence, civil emergency, financial or budget plans?

Certain plans and programmes are exempted by Article 3(8) from the requirement for environmental assessment under the SEA Directive (but it should be noted that assessment may still be needed under other legislation (for example, the Habitats Directive). It is unlikely that these exemptions would apply to SF plans and programmes as they are not prepared for the sole purpose of national defence or civil emergency and cannot be regarded as financial or budget plans in any normal meaning of these terms. They are clearly not budgets. The test of whether they are financial plans or programmes would focus on their characteristics. Many plans include a financial component without being financial plans. National plans (NSRFs and NSPs) and OPs set out a vision for an area or field of activity which is far from being restricted to financial matters. The Commission therefore does not consider them to be financial plans or programmes.

Annex 2

Comparison between steps required for SEA under the SEA Directive and for ex ante evaluation under the current SF Regulation [6] , [7]

PROCESS OF ASSESSMENT UNDER SEA DIRECTIVE | Ex Ante EVALUATION UNDER STRUCTURAL FUNDS REGULATION |

Mandatory application (Article 3(2)), or determination of application by MSs (only under Article 3(3) & (4))(‘Screening’). | Ex ante environmental evaluation is obligatory in all levels of the programming process (Development Plan, OP, Programme Complement). Screening would be used in modifications of the programming instruments (after mid-term evaluation and review or under special social, economic or labour market circumstances). |

Decision, following consultation with environmental authorities, on the scope and level of detail to be included in the environmental report ('Scoping'). | Environmental authorities should be involved in the programming process from the beginning via the ‘Partnership’ but there is no formal procedure or requirement for this; the partnership should contain ‘all the relevant bodies’ (Art 8). |

Assessment of reasonable alternatives. | No explicit requirement for an appraisal of alternatives in SF programming. |

Preparation of Environmental Report identifying, describing and evaluating the likely significant effects of implementing the plan or programme. The contents are prescribed in annex I to the Directive. | Ex-ante environmental evaluation contains much information required by Annex I of SEA Directive but the Regulation is less detailed and omits several aspects identified there. For example, it does not mention: an outline of the contents and aims of the plan (Annex I(a) of the Directive), individual elements of the environment to be covered (I(f)), mitigating measures (I(g)), the reasons for selecting the alternatives dealt with and a description of how the assessment was undertaken (I(h)), or a non-technical summary (I(j)). In practice, information of this kind is sometimes included. |

Consultation with environmental authorities, the public, and when appropriate other Member States. | Development plans are to be drawn up in consultation with the partners identified as relevant by the competent authority (environmental, labour, gender equality authorities, Unions, and in some cases NGOs). - Consultation with other MSs not required (except for Interreg initiatives and Peace II programme). |

Taking into account the environmental report, and the results of consultations with environmental authorities, the public and any affected countries. | No explicit requirement for the planning authority to take this information into account but in practice the European Commission considers the adequacy of the environmental report before adoption of the Development Plan. The Monitoring Committee also considers in each annual report whether environmental considerations are taken into account adequately. |

Provision of information on the decision (i.e. summarising how the environment has been integrated into the plan or programme, how the environmental report and the results of consultation have been taken into account, and why the plan or programme was chosen in the light of reasonable alternatives). | The adopted plan or programme is publicly available, (but a statement summarising how environmental considerations have been integrated is not required). The results of the evaluations have to be made available to the public on request (Art. 40). |

MSs must monitor the significant environmental effects of implementing the plan or programme and describe the measures they have selected along with the information given on the decision. | Monitoring is carried out by reference to environmental and other indicators specified in the document in question and designed to follow up the interventions. (Art 36). The Monitoring Committee considers in each annual report whether environmental considerations are taken into account. Socio-economic ‘partners’ (including in most cases environmental authorities) are also members of the Monitoring Committees. The mid-term and final evaluations should contain a report on the cross-cutting principles (equal opportunities, information technology and sustainable development). |

Annex 3

Content of the Environment Report required under Directive 2001/42/EC

(a) An outline of the contents and main objectives of the plan or programme and relationship with other relevant plans and programmes;

(b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme;

(c) the environmental characteristics of areas likely to be significantly affected;

(d) any existing environmental problems which are relevant to the plan or programme, including in particular those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC;

(e) the environmental protection objectives established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation;

(f) the likely significant effects on the environment including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors; these effects should include secondary, cumulative, synergistic, short, medium and long-term, permanent and temporary, positive and negative effects;

(g) the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme;

(h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;

(i) a description of the measures envisaged concerning monitoring in accordance with Article 10;

(j) a non-technical summary of the information provided under the above headings.

[1] See http://www.europa.eu.int/comm/environment/eia/home.htm.

[2] The phrase 'SF plans and programmes' used in this Annex includes those plans and programmes subject to Council Regulations 1698/2005, 1083/2006 and 1198/2006 [EFF].

[3] As amended by Directives 97/11/EC and 2003/35/EC.

[4] The UN ECE SEA Protocol on Strategic Environmental Assessment has provisions very similar in most respects to those in 2001/42/EC but the list of sectors which parallels those in Article 3(2)(a) also contains “regional development.” For those countries which implement the Directive and the Protocol by the same national law, there is the possibility that this specific reference may confirm the scope of application in respect of some plans or programmes.

[5] Directive 85/337/EEC as amended by Directive 97/11/EC.

[6] Regulation (EC) No 1260/1999.

[7] The 1998 DG Environment Handbook (see note 15) recommended additional steps to bring ex ante evaluation closer to SEA and to the extent that MSs have followed that advice, their evaluations will be closer to complying with SEA practice.