REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On the Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC) - How successful are the Member States in implementing the EIA Directive

Introduction

The European Commission, has prepared the following 5 Years Report fulfilling the obligation found in Article 2 of Directive 97/11/EC and Article 11 paragraph 1 and 2 of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (EIA Directive), which requires that "five years after the notification of the Directive, the Commission shall send the European Parliament and the Council a report on its application and effectiveness. The report shall be based on exchange of information on experience gained in applying this Directive".

The report contains two parts, i.e., a summary of findings and actions to be taken and annexed the 5 Years review with detailed information on issues regarding the application of the EIA Directive prepared on the basis of answers by information provided by the Member States.

Summary of findings

This report by the Commission reviews the operation of Directive 85/337/EEC as amended by Directive 97/11/EC (the EIA Directive). It is the third review of the EIA Directive and builds on those carried out in 1993 and 1997. This review comes five years after the entry into force of Directive 97/11/EC and examines the effectiveness of both the changes made by 97/11/EC and the EIA Directive as a whole. The bulk of the report is based on material collected following a questionnaire survey of Member States by DG Environment. The Impacts Assessment Unit of Oxford Brookes complemented missing elements and assembled the information. Special thanks are expressed to all the staff from the Member States who have co-operated and helped in providing information for this report.

Apart from the changes introduced as a consequence of the Commission's first report evaluating the effectiveness of Directive 85/337/EEC, the amendments made by 97/11/EC also reflect the considerable strengthening and clarification given to certain elements of the EIA Directive as advanced by the European Court of Justice (ECJ). The report highlights the changes made by 97/11/EC and the ECJ rulings that underpinned them, and reflects upon the related policy context. The report also addresses the issue of complaints on the EIA Directive received by the Commission. Directive 97/11/EC widened the scope of EIA by increasing the number of types of project covered, and the number of projects requiring mandatory EIA (Annex I). It also strengthened the procedural base of the EIA Directive by providing for new screening arrangements, including new screening criteria (at Annex III) for Annex II projects, and providing minimum information requirements. The review of the implementation and application of Directive 97/11/EC has shown that the new measures introduced by the Directive have yet to be implemented in full in all Member States. The Commission's findings on the slow embrace of the amendments made by 97/11/EC by some Member States do not detract from the general importance that most of the Member States and the European Commission place on EIA as a tool for implementing wider environmental policies.

The Commission's report examines key areas of the operation of the EIA Directive including screening (the determination whether an EIA is required for a specific project), scoping (, i.e., the identification of the issues to be covered by the environmental impact statement), review (the examination of environmental impact statements and other information submitted by developers to ensure it complies with the minimum information requirements of the Directive), and decision making. The report also examines the arrangements made by Member States for dealing with key EIA issues such as the consideration of alternatives, public participation and quality control. Based on the information reviewed here there is no real evidence to suggest that further amendments to the EIA Directive are required at this stage.

1) The survey, on which this report is based, revealed few significant concerns among Member States regarding the current split between Annex I and Annex II projects; and Member States appear to have embraced the flexibility permitted by Article 4(2) to employ either a threshold or a case-by-case approach to screening Annex II projects. A variety of approaches to screening exists across the Member States. Many Member States appear to be making use of the 'traffic light' approach to screening and have developed inclusion thresholds (EIA always required - Red), exclusion thresholds (EIA never required - Green) and indicative or guidance thresholds (EIA may be required - Amber). However, in some cases Member States appear to be employing a variety of different approaches, using different screening procedures for different project types. In some cases only mandatory or inclusive thresholds are used and it is not always clear from the responses received that sub-mandatory threshold screening takes place in all cases. Very few Member States employ a case-by-case approach for all project types.

2) In the survey a wide variation was found in approach to the setting of thresholds exists across the European Union. While many Member States have set thresholds for the same project types, there are very large differences in the levels at which thresholds have been set. Some Member States have made EIA mandatory for some project types regardless of size. This means that a project will be subject to EIA on a mandatory basis in one Member State while the same project type, of the same size will require EIA only after case-by-case screening in another Member State. The report did not investigate the justification for the levels at which individual thresholds have been set. The information reviewed for this report is not based upon the operation of screening in practice by competent authorities and therefore it is not clear how the various thresholds and other screening criteria developed by Member States are applied by competent authorities. Few Member States involve the public in the screening process and many see it as a purely technical decision.

3) The annual number of EIAs that take place appears to vary considerably between the countries of the European Union. It was not an easy task to gather this information and in some cases a reporting system exists only at national level but not at regional one. While the report provides estimates of the number of EIAs that have taken place both before the transposition of 97/11/EC and since, it has not been possible to break these figures down into project types or even provide a split between Annex I and Annex II projects. In the Commission's view many Member States do not appear to keep accurate annual figures on EIA activity and where Member States do not in their national legislation distinguish between Annex I and Annex II projects it is difficult to disaggregate them for data collection purposes. The lack of national monitoring of EIA activity and the application of the EIA Directive in practice makes it difficult to speculate on the reasons why there are such wide variations between Member States on the number of EIAs that have been completed. The variation may be explained by the relative economic conditions within countries, or it may also relate to the levels at which thresholds have been set.

4) Scoping provisions are of a discretionary nature. The review revealed that there are a wide variety of approaches to the scoping stage of EIA. It would appear that some Member States appreciate the value of an early scoping stage more than others. There appears to be little real commitment to scoping in those countries that have not made it mandatory and have not provided for public consultation within their voluntary scoping stage. However, some of the Member States show the opposite tendency and require the publication of draft scoping reports or even draft EISs. There is also a recognition in some Member States that public involvement at the scoping stage identifies the issues that are 'significant' to the people who will have to live with the project and not just the 'experts' who will not.

5) Directive 97/11/EC introduced new minimum requirements for the information to be supplied by the developer. Failure to provide adequate information constitutes grounds for refusal of development consent in the majority of countries, under a variety of arrangements. Some Member States have formalised a review procedure to ensure that the environmental information supplied to the competent authority is in compliance with the Directive. In some cases an independent specialist review commission or panel of experts carries out the review of the EIS. However, since there is no explicit obligation in the Directive to provide for such a review, there is no harmonised approach to the matter. The review of the information provided is, in all but a few Member States, left to the competent authority and in many Member States they are asked to do this without the aid of specific review check-lists or review criteria. Whilst the elements listed in Annex IV underlie requirements for adequate assessments, this rather basic information has been built upon (e.g. with checklists) in only some Member States. Some research has been conducted in about half of all Member States on the quality of information contained in environmental statements and on the overall quality of the assessments. Where such studies have taken place, it has shown that up to 50% of EIS do not fully meet the requirements of the Directive.

6) Without formal monitoring of the outcomes of the EIA process and more detailed research, it is difficult to assess how the process of environmental assessment has influenced applications for, and decisions on, development consent. One aim of the EIA Directive is to strengthen the consideration of likely significant effects in the decision-making, but many of the responses pointed out that other social or economic benefits also need to be considered when decisions are taken on applications for development. The responses to the questions relating to delays between the production of the required EIA information and the decision, and between the decision on development consent and the commencement of development have shown that these are tackled very differently in the Member States and constitute an area of potential concern. This is because when there are long delays, changes to the state of the environment can occur, or new mitigation measures might become available. There is no indication from the Member States as to the scale or frequency of delays occurring, there appears to be little recognition of the environmental implications of these problems, and there is little consistency of approach in dealing with them.

7) In some Member States the consideration of alternatives is a central focus of the EIA process, elsewhere the consideration of alternatives appears to be less complete than it might be. The majority of Members States require assessment of the zero alternative and other project alternatives, which may include options for location, process, design, etc. A variety of institutions and sometimes the public may contribute to the selection of alternatives for assessment and these may include the most "environmentally friendly" alternative. Many of the Member States see a link between the issues of 'salami-slicing', considering 'changes and extensions' to projects and 'cumulative impacts'. The issue of possible salami-slicing is recognised by the Member States and some States have established measures to reveal and prevent such practice, including setting low thresholds or calling for assessment of "the whole programme" where this is appropriate. Very few Member States have concrete evidence on how widespread the practice of salami-slicing may be [1]. A variety of approaches to dealing with changes and extensions are used across the EU, in line with existing requirements for other permits, the nature of the project and the nature of the change or extension. Both specific thresholds (often set as a proportion of the original project's size) and case-by case screening are applied in different Member States, or a combination of both. Some Member States ask for an EIA when a change of capacity is proposed which does not necessarily involve construction works. According to the responses provided to the Commission there seems to be growing awareness of the issues raised by the requirement to assess the cumulation of impacts, and measures have been put in place in many Member States to address this. Clear and comprehensive guidance for developers and others would appear to be lacking in most Member States, e.g. on boundaries for the assessment area, on the need for co-operation between developers or other arrangements for making information available.

[1] Salami slicing refers to the practice of splitting an initial project into a number of separate projects, which individually do not exceed the threshold set or do not have significant effects on a case by case examination and therefore do not require an impact assessment but may, taken together, have significant environmental effects.

8) Throughout the EU the public is given an opportunity to comment on the projects that are subject to EIA. The extent of public involvement varies considerably and the interpretation of "the public concerned" varies from quite narrow to wide. The responses provided to the Commission revealed that certain projects are more likely to generate high levels of participation. Given the large variety of project types covered by the Directive, the different consent systems used for different types of project and the different levels of interest they generate, it is not surprising that there is no standard practice of public participation across the EU. The transposition of the Aarhus Convention into EIA legislation may provide an opportunity for improvements in public participation in EIA. There is a need, in the Commission's view, for better formal and informal arrangements for consultation on transboundary impacts with neighbouring countries, and a need to ensure that those arrangements are practical. A need has also been identified for an improvement in the current intra-regional procedures of some countries. More precise auditing arrangements are needed, to provide reliable information on the number, type and outcome of transboundary projects.

9) The impacts of developments upon flora and fauna are assessed within EIA in the Member States and the information requirements of Directive 97/11/EC seem to be met in this respect. The questionnaire responses are less explicit concerning the extent to which the various levels of biodiversity are addressed in practice. Guidelines on incorporating biodiversity issues into impact assessments have recently been adopted under the Convention on Biological Diversity.

10) Risk is dealt with in a wide variety of ways and at very different levels across the EU, partly in response to the variety of geographical, geological, climate and other conditions. Risk is a screening criterion in Annex III and risk assessments appear in many EIS, and yet for most Member States risk is seen as separate from the EIA process as it is often handled by control regimes to which the EIA Directive is not applied. Relationships between EIA and national environmental control regimes are complex and there appear to be little real co-ordination between the EIA Directive and other Directives such as IPPC and the Habitats Directive. Few Member States have taken the opportunity offered by Directive 97/11/EC to provide for the greater consistency and reductions in repetitious documentation and assessments, provided by closer co-ordination of EIA and IPPC. In some Member States a link is said to exist but this link may simply consist of a recommendation that EIA and other relevant procedure should be dealt with simultaneously.

11) The assessment of health impacts is not a particularly strong feature of current practice. There is considerable variation in coverage from a narrow to a broad interpretation of health effects. There is evidence to suggest that health impacts are considered to be less relevant to EIA, and/or to a certain extent covered by other legislation. There is some evidence to suggest that health impacts are considered under other headings such as pollution or risk.

12) Although the current EIA Directive does not contain provisions on access to justice, the majority of Member States provide for such in their national systems. Access to justice for EIA is largely confined to members of the public having legislative rights to challenge decisions through the courts. In most cases such challenges can only be made once project authorisation is granted, few Member State provided for challenges at the earlier stages of EIA.

13) There are few formal measures in place for the overall control of the quality of the EIA procedures. The Directive itself is rather weak on this point and focuses more on the EIA procedural aspects. Ensuring quality control in EIA is largely left to the competent authorities and the checks provided by judicial review processes. The lack of central monitoring of the key stages of EIA make it difficult for Member States to ensure that their EIA systems are consistently and correctly applied. There are some examples of innovative practice, with some Member States making use of post-decision monitoring of projects to ensure the quality of the outcome of the EIA process.

Recommendations - Action to be taken

The information provided in this report has revealed several shortcomings and weaknesses. In the Commission's view in some Member States there are examples of very good practice, e.g. in relation to encouraging public participation or providing for clear quality control procedures. In others (and sometime in the very same Member States that have elements of good practice), there are still weaknesses. These findings need to be carefully assessed alongside other factors in order for the Commission to decide whether the EIA Directive should be further amended at this stage. It appears that the main problem lies with the application and implementation of the Directive and not, for the most part, with the transposition of the legal requirements of the Directive. It is clear, however, from the weaknesses identified that there is a need to improve and strengthen the application of the Directive in several aspects and the Commission will continue to promote this. The Directive provides the framework and the existing infringement mechanisms provide legal support for better transposition and application of the Directive. In order to improve the effectiveness of the Directive, The Commission believes that it is important that the Member States act responsibly and use the information provided in this report positively to enhance their individual and collective performance.

Based upon the material gathered for this review and an assessment of the strengths and weaknesses and effectiveness of the EIA Directive, the Commission makes the following recommendations that will help in better implementing the EIA Directive:

- Member States should check their national and regional EIA legislation and subsequently remedy shortcomings (e.g. with regard to thresholds, quality control, salami-slicing, cumulation etc). The Commission urges Member States to use the coming amendment of the EIA Directive in the context of the Aarhus transposition to do so.

- A precise form of annual recording and monitoring is indispensable to provide reliable annual information on the number and type of EIA projects and the outcome of key decisions. Member States should introduce such systems where they do not already exist. This will assist them, in the Commission's view, in evaluating the number of EIAs carried out, and the types of projects involved, and in assessing the performance and quality of work done. In turn, this will help them to improve their systems.

- In relation to screening, those Member States that employ a system with fixed mandatory thresholds should make certain it ensures that all projects that might have significant effects are subject to an appropriate screening process. In this exercise, the Commission expects that they will particularly consider projects planned in or near sensitive areas, and the possible cumulation of projects.

- The Commission urges Member States to make more widespread use of its existing guidance on screening, scoping, review and cumulative impacts. There should also be more training at national levels in the use of these quality control documents. These documents are found in the web page of DG ENV: http://europa.eu.int/comm/environment/eia/ home.htm.

- The quality of the EIA process, and especially the EIS, are the key for an effective EIA. The Commission urges those Member States that have yet to do so to introduce formal provisions for the review of the environmental information supplied by the developer to ensure strict compliance with the terms of the EIA Directive. Such measures could comprise the establishment of expert pools, guidelines on the co-ordination of experts, clear instructions about responsibilities, the use of independent external expert review etc. Another tool of quality control could be the introduction of an efficient post-decision monitoring system.

- The Commission believes that particular training needs to be introduced in certain Member States for authorities at local and regional level in order to improve their understanding of the EIA Directive and its application within the respective national system. Mechanisms for efficient administrative management should help to enhance capacity building.

- In the transboundary context Member States should make more use of guidance provided by the UNECE on bi- and multilateral agreements and the practicalities of transboundary EIA (see UNECE web page: http://www.unece.org/env/ eia). The Commission considers that this will help ensure that adequate provisions are in place, for instance for direct contact between the relevant competent authorities and other agencies for consultation on transboundary effects.

- The quality of the EIA has consequences in the decision making process and is of key importance for the effectiveness of the Directive. How the outcome of the EIA influences decision-making is central to the purpose of EIA and the Directive. The quality of the decision depends on the quality of the information provided in the EIA process and the strength of an effective EIA should be shown in a decision that has properly taken on board and reflects the environmental dimension highlighted in the EIA process. In some Member States, refusal of development consent is provided for in cases where serious environmental harm is forecast. In this respect the Commission believes that Member States should, where necessary, consider strengthening their national procedures by ensuring that the conditions attached to the (subsequent) decision(s) are adequate to prevent or mitigate any environmental harm that has been predicted.

- The Commission will consider the need for further research into the use of thresholds and the various systems applied in screening in order to get more clarity and comparable data which would enable robust conclusions to be drawn on how to achieve improvement and greater consistency of approach in the screening process. (Initiative 1).

- These recommendations, if put into effect, would go some way to improving the effectiveness of the Directive and the Commission will consider, in conjunction with the Member States, ways of improving and extending the guidance which is already available. The Commission envisages preparing interpretative and practical oriented guidance with the involvement of experts from the Member States as well as other stakeholders like NGOs, local and regional authorities and industry. This could help to overcome some of the disparities reported in the definition of the projects which are subject to the Directive, the setting and application of thresholds and screening criteria, the way scoping is carried out, the relationship between the effects of different projects (cumulation, salami-slicing), the way that risk is dealt with in assessments, and the type of data which should be gathered in monitoring systems. It would also be designed to improve considerations of health effects which are often inconsistently or partly addressed in the EIA process in the Member States. There is clearly a need for a more systematic approach. The forth-coming Community Strategy on Health and the Environment will form a sound basis for such an approach by establishing a consensus regarding the scope of environmental health, as well as strategies to increase awareness about the linkages between human health and the environment. (Initiative 2).

- The Commission will also consider with the Member States what might be done to improve the training of officials responsible for EIA in order to improve the situation. (Initiative 3).

- Capacity building and voluntary action have their limitations, however, and the Commission will continue to take enforcement action in cases of incomplete or inadequate transposition, and/or poor application of the Directive. (Initiative 4).

- In due time, more consistent application may require further amendments to the Directive. Based on the results of the actions outlined above, the Commission will consider what further amendments should be introduced. For example, this might be the most efficient way of providing for proper quality control and consistent data collection and might also be necessary to improve the way thresholds and cumulative effects are handled. Other clarifications and improvements could be introduced at the same time (for instance to the procedure for exempting exceptional cases (Article 2(3)). All these actions, combined with the implementation of the SEA Directive, will produce a robust set of procedures to improve decision-making and help to achieve the objectives set out in the 6 EAP. (Initiative 5).

ANNEX

5 Year Review on the Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC)

1. Introduction

1.1. Aims and Objectives

1.1.1. Council Directive 85/337/EEC (as amended by Directive 97/11/EC) on the assessment of the effects of certain public and private projects on the environment (hereafter the EIA Directive) is seen as one of the European Union's (EU) 'principal pieces of environmental legislation' [2]. The prime purpose of EIA is to identify any significant environmental effects of a major development project, and where possible to design mitigation measures to reduce or remedy those effects, in advance of any decision to authorise the construction of the project. As a tool to aid decision making, EIA is widely seen as a proactive environmental safeguard that, together with public participation and consultation, can help to meet the EU's wider environmental concerns and policy principles. However, to achieve these objectives, the EIA Directive must be applied as consistently as possible across the EU as a whole. Evidence from the European Commission's (EC) 1993 and 1997 reviews of the operation of Directive 85/337/EEC [3], and other evidence [4], indicates that there was little consistency in the application of key EIA procedures such as screening and scoping. Furthermore, some important European Court of Justice (ECJ) cases [5] found a number of Member States to be failing to fully implement the Directive. Due to the different project authorisation procedures in place within Member States there have been difficulties in achieving consistency in implementation across the Community as a whole. Indeed, a major objective of the amending Directive 97/11/EC was, in part, to minimise the differences of application between Member States and to harmonise implementation.

[2] See CEC (2001) Environmental Impact Assessment Guidance on Screening, Brussels, CEC.

[3] CEC (1993) Report from the Commission of the Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment and Annexes for Member States. Com (93) 28 Final - Vol.12, Brussels, April

[4] See Dresner, S. and N. Gilbert (1999) Decision-making Processes for Projects Requiring Environmental Impact Assessment: Case Studies in Six European Counturies in Journal of Environmental Assessment Policy and Management, Vol. 1, No. 1, pp. 105-130., also Ladeur,K-H and Prelle, R. (2001) Environmental Assessment and Judicial Approaches to Procedural Errors - A European and Comparative Law Analysis, Journal of Environmental Law, Vol. 3, no. 2, pp. 185-198.

[5] See Cases C-392/96, C-150/97 and C-287/98

1.1.2 The challenge of ensuring that the EIA Directive is adopted and implemented in an effective and consistent manner across all Member States of the EU is considerable. To monitor the effectiveness of the EIA Directive, the EC carried out two reviews, which reported in 1993 and in 1997. There are three main objectives of this current review:

- Provide a detailed overview of the arrangements made by Member States for implementing the amendments made by 97/11/EC;

- Provide a detailed overview and evaluation of the application of the EIA Directive as a whole;

- Provide suggestions and recommendations for the further enhancement of the application and effectiveness of the EIA Directive as a whole.

In particular the review examines the implementation of the key stages and key elements of the EIA Directive. Namely:

- the increase in the number and type of projects subject to EIA and the movement of some project types (for example large intensive livestock units) into Annex I;

- the means by which Member States exempt specific projects from the provisions of the Directive (Article 2, para. 3);

- the range and type of projects exempted from the Directive by means of Article 1, para 5, the means by which they are authorised, and the way in which the environmental information is considered in the decision making process;

- the screening and scoping provisions in place in Member States and the way in which case by case screening criteria or thresholds are employed;

- information provided by the developer and the completeness of the information provided, as well as the means by which competent authorities check that it is complete;

- health aspects and their relationship to matters such as air quality etc;

- evidence of "salami-slicing" or the potential for project proponents to avoid completing an EIA by designing developments in such a way that they fall below thresholds or triggers for EIA;

- cumulation of projects, and how spatial and temporal boundaries are established;

- risk assessment and the methods employed to assess and communicate risk;

- relationship with other Directives, in particular the IPPC and Habitats Directives;

- the provisions in place for dealing with transboundary consultations;

- the means by which Member States deal with changes or extensions to projects once authorised;

- the way that alternatives are assessed and reported, including how alternatives are identified and defined; and

- the mechanisms in place for public participation in light of the adoption of draft Directive COM(2000)839 amending the EIA Directive to conform with the provisions of the Aarhus Convention.

1.2. Research Team

1.2.1 This review has been carried out by the Impacts Assessment Unit (IAU) of the School of Planning (SoP), Oxford Brookes University [6] in conjunction with a steering committee of staff from DG Environment and a representative of the Member States.

[6] The SoP is the largest School of its kind in the UK, and one of the largest in Europe. The School hosts over 700 students on a wide range of undergraduate, postgraduate and research degree programmes, with a complement of over 60 teaching, administrative, technical and research staff. The School recently received a high ranking in the 2001 Higher Education Funding Council for England Research Assessment Exercise. This puts the School at the top amongst the UK's new university planning schools and endorses other recent reviews of planning schools which placed Oxford Brookes as the top planning school in the UK. The IAU is a well established, and EU recognised, centre for research, training and education in Environmental Impact Assessment (EIA), Environmental Policy and Environmental Decision-Making. The IAU is led by Professor John Glasson, who is also the Head of the School of Planning.

1.3. Methodology

1.3.1 The primary source of information for this study was the responses of Member States to a questionnaire designed and issued by the EC's DG Environment (the questionnaire appears as Appendix 1 of this report). To ensure the clearest understanding of the responses from Member States, DG Environment sought further clarification from most Member States on key aspects of their implementation of the Directive. The initial review of the responses identified a number of additional issues that needed further responses from individual Member States and the IAU team sought this on an individual level. A further set of questions was also circulated to all the national EIA experts of the Member States a further set of questions to aid the IAU's understanding and interpretation of the operation of the amending Directive (these additional questions are provided as Appendix 1 to this report). The DG Environment steering group along with the Impacts Assessment Unit would like to thank all the staff from the Member States who have co-operated and helped in providing information for this report. The responses to the questionnaire and follow up questions for clarification and amplification were analysed by the project team on the basis of each member of the team having responsibility for a group of questions.

1.3.2 To further the understanding of the issues relating to the implementation of Directive 97/11/EC, a literature search of existing research on the operation of the amended EIA Directive, including relevant court cases, was completed. In addition, Web sites of European academic institutions and EIA related sites were examined for further evidence of the practice of EIA within the EU.

1.4. Structure of the Report

1.4.1 This report has been structured around the transposition and implementation of Directive 97/11/EC and the operation of the EIA Directive as a whole, rather than on the basis of the individual questions posed by DG Environment's questionnaire. This facilitated a more comprehensive overview of progress on transposition and implementation and highlighted key issues that warrant further attention. Following this introduction, Section 2 of the report provides an overview of the background on the adoption of 97/11/EC and the factors that shaped the amendments that were introduced by the Directive and then examines the progress that has been made on transposing the Directive by the Member States and the issues raised by the implementation process. The main body of the report is contained within Sections 3 and 4 and focuses on the details of the Directive's implementation by examining the key changes introduced by the Directive in terms of screening, scoping and review, and the key issues that the amending Directive sought to address. Section 5 of the report provides an overview of the effectiveness of the EIA Directive as a whole and makes some recommendations for the future development of the EIA Directive.

1.5. Terminology

1.5.1 For purposes of clarity and understanding the following defines glossary key terms used in this report.

- EIA - Environmental Impact Assessment - the continuous assessment procedure that contains several individual stages such as screening, scoping and public participation.

- EIA Directive - the Directive as a whole - i.e. Directive 85/337/EEC as amended by 97/11/EC - where in the report reference is made to Directive 85/337/EEC or Directive 97/11/EC the discussion will only relate to the individual Directives referred to in the text;

- Environmental Information, including the Environmental Impact Statement (EIS) - the report, document or set of documents produced or paid for by the developer to provide the environmental information required by Article 5 of the EIA Directive and which forms the basis for public participation and the consultation of environmental authorities and is submitted to the competent authority for consideration.

2. Background to the Amendment of the EIA Directive (85/337/EEC)

2.1 Reviews of EIA Directive 85/337/EEC

2.1.1 The 1993 and 1997 reviews of the implementation of the Directive [7] found wide variation between the Member States on the application of some of the key stages required by the Directive. While the reviews concluded that the formal requirements of the Directive were, at the time, 'mostly in place' across the EU as a whole, there remained areas where it was unclear as to whether or not all Member States were strictly complying with key stages, such as screening. The 1993 review found that there was a danger that the discretion given by the Directive to Member States on establishing screening thresholds for Annex II projects could lead to a general devaluation of the provisions of Article 2 (1). It was largely for this reason that 97/11/EC introduced a new Annex III that established screening criteria to be used for the establishment of thresholds and for the case-by-case screening of Annex II projects. The 1993 review also identified concerns on the level and quality of the information provided to competent authorities within the EIA process. It was this concern that led to the introduction of the new minimum information requirements introduced by 97/11/EC (Article 3, paragraph 3) and the optional scoping procedures provided by Article 5(2).

[7] CEC (1993) Report from the Commission of the Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment and Annexes for Member States. Com (93) 28 Final - Vol.12, Brussels, April CEC. CEC (1997) Report from the Commission of the Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment, CEC

2.1.2 The 1997 review highlighted the many different EIA systems that operate across the EU. On the basis of the principle of subsidiarity, Member States had transposed the Directive into domestic law, often within the framework of existing systems that had developed on the basis of Member States' own historical legal traditions and culture. The report also identified a number of issues relating to the language of the Directive and complaints from Member States over the clarity of some terms used in the Directive and sought clearer definitions or interpretations of key terms such as 'projects'.

2.1.3 The reviews also identified the wide variety of authorisation procedures used for different types of projects in different Member States. In some cases, Member States make use of a single licensing procedure for all project types, some make use of two or more (many more in some cases), while others have a two stage system whereby some aspects of a project are authorised under one set of legislation (e.g. land use planning), and other aspects are dealt with under another (e.g. environmental licensing). These differences make a straightforward comparison of the operation of the Directive between Member States and across the EU as a whole a very complex task. This remains the case in 2002.

2.1.4 The 1997 review found that all Member States had made provision for the EIA of the projects listed in Annex I; however, the position as regards Annex II projects was far less clear. There were differences in approach to dealing with Annex II projects, both in terms of interpretation and perceived relevance to particular countries. Most Member States were found to make use of some form of screening criteria or thresholds for determining when an Annex II project should be subject to EIA. In some cases these were indicative, for use in a case-by-case screening procedure, while in others the thresholds were mandatory whereby a project that exceeded the thresholds would always automatically require an EIA. In some cases thresholds were set that had the practical effect of excluding whole project types from EIA. These cases formed the basis for legal challenges that established firm case law on the application of the EIA Directive within the EU. The 1997 review also found that there was a great deal of variation in the level at which thresholds (e.g. area, capacity) had been set for the same project types in the different Member States.

2.1.5 The key findings of the 1997 review of the Directive can be summarised as follows:

- EIA is a regular feature of project licensing/authorisation systems, yet wide variation exists in relation to those procedures (e.g. different procedural steps; relationships with other relevant procedures);

- different interpretations and procedures for Annex II projects;

- quality control over the EIA process is deficient;

- Member States did not give enough attention to the consideration of alternatives;

- improvements had been made over public participation and consultation; and

- Member States complained about the ambiguity and lack of definitions of key terms in the Directive.

2.2. Policy and Legal Context

2.2.1 The development of EIA within the European Union can be seen as an evolving process that is shaped by the development of policy and law. The five yearly reviews of the EIA Directive have been part of that evolution and the process of identifying the strengths, weaknesses, costs and benefits of the operation of the EIA procedures. This process identified areas where improvements could be made and/or where the general provisions of the Directive could be clarified or strengthened. These reviews have not been the only influence on the development of the EIA Directive. Since its adoption in 1985 and the passing of the deadline for transposition in 1988, there have been a number of cases brought before the European Court of Justice that have provided some clarification of key issues and helped to develop the interpretation and hence implementation of the Directive. There have also been some key policy decisions made by the EU since 1985 that have needed to be integrated into the EIA Directive.

2.2.2 The EIA Directive pre-dates very many important changes within the EU. The first of these is the Single European Act of 1986, which, together with the Maastricht Treaty of 1992, consolidated the main principles of European environmental policy and made them a central concern of all EU policy areas. These were followed by the adoption of the 5th Environmental Action Programme with its emphasis on an integrated approach to environmental protection and management. There have also been a number of key Directives that have had implications for EIA. These include:

- Directive 79/409/EEC on the Conservation of Wild Birds and Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, which establish their own assessment procedures affecting Natura 2000 sites;

- Directive 90/313/EEC on the freedom of access to information on the environment, which has implications for public participation and consultation within the EIA process;

- Directive 96/61/EC on integrated pollution, prevention and control, which introduced a new licensing authorisation scheme for many of the projects types lists in the Annexes to the EIA Directive and 97/11/EC introduced Article 2(a) to allow Member States to make use of a single procedure to fulfil the requirements of 85/337/EEC and 96/61/EC.

2.2.3 The Espoo Convention on EIA in a Transboundary Context was signed by 29 countries and the EU in 1991 and widened and strengthened the requirements for consultation on transboundary impacts provided for in 85/337/EEC. The requirements of the Convention meant that Articles 7 and 9 of 85/337/EEC had to be amended by 97/11/EC to provide for a greater level of information to be made available to affected Member States where a significant transboundary impact is identified. The Convention defines transboundary impacts as: "any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party (to the Convention) caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party". This definition deals with both projects and impacts that cross boundaries and therefore does not limit in scope the effect of the Convention to a consideration of projects that are in close proximity to a boundary. Furthermore, in C-133/94 Commission v Belgium the ECJ ruled that the consultation obligations contained in Article 7 of 85/337/EEC were not confined to projects located in regions with frontiers with other countries. The Espoo Convention provides a list of project types to which the Convention applies and these included a number of projects not in the Annexes to 85/337/EEC:

- Nuclear fuel production and reprocessing installations;

- Groundwater abstraction (10 million cubic metres or more per year); and

- Large scale deforestation.

The amending Directive 97/11/EC added two of these project types to Annex I and one (deforestation) to Annex II; it also moved a further eight Espoo Convention project types from Annex II to Annex I to make the EIA Directive compatible with the Convention.

2.2.4 The EIA Directive has generated a considerable number of complaints to the Commission to which they have had to respond. The tables and figures on the following pages provide details of these complaints and other procedures. These tables set out statistical information for the five-year period 1997-2001 on infringement procedures relating to the application of Community law on EIA. As an aid to their correct interpretation, Box 1 provides definitions of the key terms used.

Box 1

Letter of formal notice

The letter of formal notice is the first stage of an infringement procedure. When the Commission envisages that a Member State has failed to fulfil an obligation under the Treaty establishing the European Community, it delivers a letter of formal notice giving the State concerned the opportunity to comment.

Reasoned opinion

The reasoned opinion is issued when the Commission is confident it has identified an infringement. Article 226, paragraph 1 of the Treaty establishing the European Community: If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to comment.

Saisine

Saisine is the stage of application to the European Court of Justice, when the infringement procedure becomes a judicial procedure. Under Article 226, paragraph 2 of the Treaty: If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.

Own initiative case

"Own initiative" cases are cases opened directly by the Commission. They are mainly commenced on the basis of Written Questions and Petitions of the European Parliament. Note that the reasons why there are more in one Member State than in another are the same as for complaints (see below). Thus, the fact that Commission opened many "own initiative cases" for certain Member States does not mean that it considers the situation in these States to be worse than in other Member States.

2.2.5 In order to check the correct implementation of Community law in the Member States the Commission acts at different stages: first it checks that Member States transpose the Directives in their legal systems within the deadlines set. Then it checks, on one hand, the conformity of the Member States' legislation with the Directives which this legislation is intended to transpose and then on the other hand, the correct application of this legislation on the ground, as well as the correctness of administrative practices in each Member States. To assess the correct application in Member States, the Commission bases its deliberations on reports from Member States on: the application of the Directives, any complaints revealing specific situations of potential breach of EC Law; and facts raised through written questions and petitions brought to the Commission's attention by the European Parliament. Thus the Commission's actions in checking the correct application of the EIA Directive is mainly based on complaints, petitions and written questions. While this source of information is very useful to identify shortcomings within the different Member States, is not always able to produce objective data which compares the "performance" of the different Member States. Only those problems which are made the subject of a complaint, petition or written question are visible to the Commission and it can happen that serious problems never come to light. The number of complaints vary from State to State depending on factors such as environmental awareness, sense of participation in public decisions and the level of confidence in the European institutions.

Table 1. 2001 Non-Conformity with Directive 1985/337 & 1997/11 by Stage, 1997-2001

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Table 2. Bad Application of Directive 1985/337 & 1997/11 by Stage, 1997-2001

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Table 3. Impact Assessment New Own initiative Cases Opened by Year

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Figure 1. Total New Own Initiative Cases (1997-2001)

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Table 4. Impact Assessment New Complaints Opened by Year

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Figure 2. Total New Complaints Opened (1997-2001)

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Figure 3. Impact Assessment Open Cases (Situation: 25/09/2002)

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2.2.6 In addition, as can be deduced from these figures, only a very small proportion of complaints and "own initiative" cases develop into infringement procedures. Between 1997 and 2001 the Commission has opened 977 complaints (including "own initiative" cases) on conformity and the wrong application of the EIA directive. In the same years the Commission has sent only 36 reasoned opinions to Member States, 22 for non-conformity and 36 wrong application of the EIA directive. This can be explained by two main reasons:

a) Complaints may not be well-founded (however, the Commission is obliged to open complaint files, under its own rules, even when there is only a very weak possibility of breach) [8]. In many cases it is clear that the general public misunderstands the Directive and the role of the Commission: in some cases people comment a long time before any administrative procedure is started and claim that no EIA procedure has been carried out, when in fact in these cases no breach can be identified since the situation is at too early a stage and the Directive requires only that an EIA be carried out before consent is given. In some other cases it may be claimed that a project will have a significant impact but the Commission is not informed that a screening or an EIA procedure is in progress (and therefore that the competent authorities are applying the Directive). The Commission is not competent to assess the environmental impact of individual projects, it is only competent to assess whether and how the Directive is applied. In some further cases information on the basis of which the complaint was opened needs to be more specific in order to assess the relevance under the Directive (for instance: the nature of a project or the stages of the procedures) and the complainants are not able to clarify this. Many complainants are convinced that a negative assessment can prevent the authorities from granting development consents or that the lack of EIA on an Annex II project is in itself a breach of the directive. In addition, some cases reveal what are simply problems of application of internal law, in particular national or regional procedures.

[8] In many casesa complaints are not progressed beyond a consideration by the Commission and Member States may not even be notified that a complaint has been received.

b) The second reason is that in some cases where there is real breach of the Directive, raised by complaints, written questions or petitions, the Member States apply or comply with the Directive once a simple request for information has been sent by the Commission services or once a letter of formal notice is issued by the Commission. Consequently, situations of breach are often solved before the Commission is obliged to issue a reasoned opinion.

2.2.7 The provision which is more frequently concerned in infringement procedures on EIA Directive is Article 4(2) in particular as regards 1) the "screening" in itself, 2) the application of the thresholds, and 3) the listing of the projects of Annex II. Both under the old and the new version of the Directive, the assessment of the characteristics of Annex II projects (in order to determine, in individual cases, whether the project is to be made the subject of an EIA) is often not correctly carried out (this is a case of wrong application). It is also true that in some cases thresholds are set so high that decision-makers often reject the need for EIA for smaller projects which probably require it, e.g. because they are in sensitive areas (this is a case of wrong application). Finally some Member States are not in conformity with the EIA Directive because not all Annex II projects are covered by EIA domestic legislation (the non conformity case) (see e.g. Case C-474/99 Commission v. Spain).

2.2.8 Infringements procedures for non conformity and wrong application also concern Article 6 (public participation) in that a too short public consultation period is given) and Article 8 (Information gathered pursuant to Articles 5, 6 and 7 to be taken into consideration in the development consent procedure) of Directive 85/337/EEC. These procedures also concern Article 3(2) of Directive 97/11/EC (transitional provision).

2.2.9 The operation of the EIA Directive has been the focus of a great deal of attention in the European Court of Justice (ECJ). Many of the EIA cases considered by the Court have related to the implementation of Directive 85/337/EEC by individual Member States, while others have related to the operation of the EIA Directive in specific cases. It is not the purpose of this report to deal exhaustively with all the EIA cases that have been before the ECJ. However it is useful, in the context of the amending Directive 97/11/EC, to refer to some key court rulings and judgements that have helped to shape the changes introduced. The key cases that lay behind many of the amendments provided for in 97/11/EC are:

- C-431/92 Commission of the European Communities v Federal Republic of Germany (hereafter C-431/92 the Grosskrotzenburg case);

- C-133/94 Commission of the European Communities v Kingdom of Belgium. (hereafter C-133/94 Commission v Belgium);

- C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland. (hereafter C-72/95 the Dutch Dykes case);

- C-392/96 Commission of the European Communities v Ireland. (hereafter C-392/96 Commission v Ireland) (while the ECJ judgement in this case post-dates the adoption of 97/11/EEC, the Commission were mindful of the issues raised by the case when drafting the amendments to the Directive).

2.2.10 The ECJ has consistently ruled that the Directive should be interpreted as having a wide scope and very broad purpose (see for example C-72/95 the Dutch Dykes case) and that individual Member States or competent authorities should not seek to narrow that purpose in its operation. While much of the EIA Directive provides for discretion in the application of the procedures under the principle of subsidiary, the ECJ has limited the discretion available to Member States in a number of ways. The Dutch Dykes case made clear that the discretionary powers provided by the Directive should not be used to devalue the general requirements of the Directive provided by Article 2(1) that all projects in Annex II be the subject of EIA should they give rise to significant environmental effects. This means in practice that all Annex II projects must be passed through a screening procedure (i.e. Based upon the establishment of thresholds and/or the use of a case-by-case examination). In C-133/94 Commission v Belgium the ECJ ruled that Member States were at liberty to use either a case-by-case or a threshold approach to screening Annex II projects. The rulings in C-133/94 Commission v Belgium, C-72/95 the Dutch Dykes case and C-431/92 the Grosskrotzenburg cases also made clear that while Member States had the discretion to define thresholds for screening Annex II projects, these thresholds could not be fixed at such a level as to exclude whole project types from assessment. Furthermore, in Commission v Ireland (C-392/96), the ECJ held that screening criteria or thresholds could not be limited to a consideration of the size of projects and that the nature and location of the project also needed to be taken into consideration. In C-392/96 Commission v Ireland the ECJ also ruled that the setting of thresholds or criteria for Annex II projects could not be set at such a high level that the objectives of the Directive would be circumvented by the splitting of projects into smaller units and that the cumulative effects of such an approach would need to be assessed. It was because of the issues raised on the screening of Annex II projects by these cases, together with the findings of the 1993 review of the operation of the EIA Directive, that Article 4(3), and Annex III was inserted into the Directive by 97/11/EC. This new Annex provides the criteria on which thresholds and other screening criteria must be based. In C-431/92 the Grosskrotzenburg and C-72/95 the Dutch Dykes case the ECJ also dealt with the issues of changes or extensions to projects and ruled that additions or extensions to existing projects should be subject to EIA should their size or scale or other factors meet the EIA requirements for a new project of that type. Aspects of these rulings were transferred into the EIA Directive by 97/11/EC through the addition to Annex II of point 13, dealing with changes or extensions to Annex I or Annex II projects

2.3 Transposition of Directive 97/11/EC

Main Features of Directive 97/11/EC

2.3.1 In response to the issues discussed in 2.2 above, the European Commission proposed an amending Directive (97/11/EC) that would strengthen the Directive in line with the wider development of the environmental policies of the European Community and the results of the five year reviews of the operation of the Directive and consolidate the changes and clarifications provided by the Espoo Convention and the rulings of the ECJ. The sources for the changes made by 97/11/EC are set out in Table 5. The amending Directive (97/11/EC) was adopted in 1997 and required Member States to transpose the changes into their domestic legislation by 14 March 1999.

Table 5.

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2.3.2 The main changes introduced by 97/11/EC include:

- Changes in Article 2

- Member States have to ensure that all projects that are subject to EIA must also be the subject of a development consent;

- Changes to the Annexes

- the number of Annex 1 projects was increased, with 14 new project types and the extension of 4 others;

- the number of Annex II projects was increased by 8 and 8 others were extended, 1 project type was deleted ( production of particle and fibre board);

- changes or extensions to Annex I and II projects were added to Annex II;

- Screening

- Member States may either specify Annex II project criteria and thresholds, consider projects on a case by case basis or use a combination of both approaches;

- there is a new Annex III which is devoted to screening criteria that must be taken into consideration by Member States (in drawing up their legislation) and by competent authorities when making screening decisions for Annex II projects and the development of screening thresholds and criteria. Annex III includes matters such as the characteristics of projects, the location of projects and the characteristics of the potential impact such as cumulation with other projects and risk.

- competent authorities must make public the reasons for their determination as to why an EIA s required in each case;

- Scoping

- on a developer's request, the competent authorities must give their opinion about what should be contained in the environmental information to be supplied by the developer;

- Member States may require authorities to provide scoping guidance irrespective of any such request;

- Environmental Report

- the provision of an outline of the main alternatives studied was added as an element in the minimum requirements for the information that must be supplied by the developer in all cases;

- Alternatives

- developers must include an outline of the main alternatives studied and an indication of the main reasons for the choice made, taking into account environmental effects; this also became an element of the minimum information to be supplied (see above);

- Consultation and public participation

- consultations must be undertaken with the public and environmental authorities in other affected Member States likely to be affected by a project, in addition to the existing Member State consultation requirements;

- the results of these consultations must be taken into account in the decision;

- the reasons for the decision must be made public in all cases; and

- the main mitigation measures adopted must be made public.

Member States' Arrangements for Transposition

2.3.3 Based upon the responses to the Commission's questionnaire for this review, follow up questions of clarification and further research, it can be stated that most Member States have made arrangements for the transposition of the amending Directive (see Table 6). However it should be noted that the transposition of the Directive into the legal system of a Member State does not necessarily mean that the transposition is in complete compliance with the Directive. The federal/regional structure of some of the Member States, and the fact that the questionnaires for this review were largely only distributed at national level, makes it impossible to state, with any real confidence, whether the amending Directive has been fully transposed at sub-national level. Other research into the transposition of the EIA Directive in the federally organised Member States has highlighted the complexity of the different administrative arrangements and procedures as affecting the operation of the Directive at a local level in practice [9]. In some cases Member States report that their original arrangements already incorporated many of the amendments provided by 97/11/EC. Some of the Member States point out that, as their original arrangements were in the process of being amended, because they were either incomplete or required changes to be in accord with ECJ case law, they were in a position to include the requirements of some of the amending Directive when it was still in draft form.

[9] see Prelle, R. (2001) Environmental Assessment and Judicial Approaches to Procedural Errors - A European and Comparative Law Analysis, Journal of Environmental Law, Vol. 3, no. 2, pp. 185-198.

Table 6

Status of Transposition of Directive 97/11/EC by Member States as of 1st November 2002

Member State // Transposition Status

Austria // Deficits in transposition still exist as regards Annex II (1a) projects in 3 Länder (Burgenland, Carinthia, and Salzburg)

Belgium // The transposition is not complete for Walloon and Flanders regions

Denmark // Directive 97/11/EC transposed

Finland // Directive 97/11/EC transposed

France // Deficits in transposition still exist as regards the provisions concerning the scoping procedure under Article 1 (7) of Directive 97/11/EC with reference to certain projects. Case C-348/01 Commission v. Republic of France.

Germany // Directive 97/11/EC transposed

Greece // Directive 97/11/EC transposed

Ireland // Directive 97/11/EC transposed

Italy // Directive 97/11/EC transposed

Luxembourg // Lack of transposition. Judgement of the ECJ of 19/2/2002 (in case C2000/366) has declared the failure of Luxembourg to transpose Directive 97/11/EC. Luxembourg is preparing draft regulations to transpose the Directive.

Netherlands // Directive 97/11/EC transposed

Portugal // Directive 97/11/EC transposed

Spain // Directive 97/11/EC transposed

Sweden // Directive 97/11/EC transposed

UK // Directive 97/11/EC transposed

2.3.4 Many Member States missed the deadline for transposition of all or part of the Directive. Germany, for example, only transposed Directive 97/11/EC into German law, in July 2001. In other cases the transposition appears to have been rather piecemeal, with parts of the Directive transposed and other parts not. With federal states, as stated earlier, the position is less clear. Only Belgium provided separate responses for each region and transposition here is also rather patchy. The Flanders region, for example, included many of the changes in the amending Directive in its original arrangements, but is still in the process of drafting new legislation to complete the transposition. Greece also included many of the requirements of the amending Directive in its original national legislation, but it has yet fully to comply with all of the requirements of the Directive. Luxembourg has yet to transpose the amending Directive and at the time of this research was the subject of investigation by the Commission. Action by the Commission was also pending on many other Member States for failure fully to comply with 97/11/EC.

2.3.5 There appears to be a fairly even split between those Member States that introduced wholly new legislation to transpose Directive 97/11/EC and those that simply amended existing arrangements. Many Member States took the opportunity offered by transposition to make other changes to their EIA systems. As with the original EIA Directive, in some countries EIA is dealt with by a single piece of legislation, while in others separate legislation exists for different project types. In some Member States separate EIA legislation was required to reflect the different authorisation procedures used for different types of project - e.g. land use planning consents and environmental licences. The amendment to Article 2(1) made by 97/11/EC requiring all projects defined by Article 4 to be the subject of development consent brought under control projects that had previously not been the subject of authorisation procedures. This required new consent procedures to be developed in some countries so that EIA could be applied. For example, the UK's regulations for the EIA of 'uncultivated land or semi-natural areas for intensive agricultural purposes' only came into force in January 2002.

Overview of 97/11/EC

In addition to the changes introduced as a consequence of the first report evaluating the effectiveness of Directive 85/337/EEC, the amendments made by 97/11/EC also reflect the considerable strengthening and clarification given to certain elements of the EIA Directive as advanced by the ECJ. The Directive also widened the procedural base by providing, at Annex III, screening criteria for Annex II projects as the basis on which screening thresholds and decisions must be based.

The review of the transposition of 97/11/EC has shown that the new measures introduced by the Directive have yet to be implemented in full in all Member States. The slow embrace of the amendments made by 97/11/EC by some Member States does not reflect the general importance that the Member States and the European Commission, places on EIA as a tool for implementing wider environmental policies.

3. Arrangements for key Stages

3.1 Introduction

3.1.1 This section of the report examines the operation of the amended Directive within the Member States, with particular focus on the amendments made by 97/11/EC. Member States, either originally or in subsequent amendments to their own EIA systems, included many of the new requirements of 97/11/EC. It has not, therefore always been possible here to disentangle the operation of an original system from any changes that have taken place subsequent to the adoption of 97/11/EC. The section reviews the key stages of the EIA process, and Section 4 will deal with specific topic areas that are central to the operation of the Directive as a whole. Both Section 3 and 4 are based upon an analysis of the questionnaire sent to the EIA experts in the government offices of each Member States. In some cases this analysis has been supported by further contact with the EIA experts for clarification and amplification of their responses. Nevertheless, the quality and detail of responses is very variable, ranging from full answers with references to legislation, regulations and cases, to much briefer responses where insufficient time was available to answer more fully. As a consequence the analysis cannot be as detailed as we might wish and direct comparison between Member States on all points has not been possible.

3.2 Screening

Introduction

3.2.1 The European Commission's guidance [10] defines screening as "that part of the EIA process which determines whether an EIA is required for a particular project" (http://europa.eu.int/comm/environment/eia/ eia-guidelines/g-screening-full-text.pdf).In common with most EIA systems around the world, the EIA Directive requires an EIA to be carried out for projects "likely to have significant effects on the environment" (Article 2). The Directive provides two lists of projects covered by Article 2 and these are listed as Annex I and Annex II projects. Article 4 (1) requires that all projects listed in Annex I are made subject to EIA on a mandatory basis. Due to the amendments required by 97/11/EC and resulting from relevant ECJ rulings, all projects listed in Annex II must be made subject to screening. This means that for Annex II projects Member States must first determine whether there are 'likely' to be significant environmental effects. In the affirmative case the full EIA procedures of the Directive apply. The screening decision requires an examination of a project and its receiving environment to determine the likelihood of 'significant environmental effects'. To facilitate this screening decision the Directive provides Member States with a certain amount of discretion to determine the basis on which significant environmental effects should be identified. However, in the Grosskrotzenburg case, Commission v Belgium and the Dutch Dykes cases the ECJ ruled that the discretion given to Member States was considerably limited by clarifying the margin within which the Member States may operate. Directive 97/11/EC inserted a new Article 4(2) that requires that Member States make the screening determination through:

[10] See CEC (2001) Environmental Impact Assessment Guidance on Screening, Brussels, CEC.

(a) a case-by-case examination of projects; or

(b) thresholds and criteria set by any of the Member States; or

(c) a combination of (a) and (b) above.

3.2.2 Following the Grosskrotzenburg, Commission v Belgium and the Dutch Dykes cases, Member States could not use thresholds to exclude whole classes of projects, but thresholds could be used to exclude very small or minor projects. In C-392/96 Commission v Ireland the ECJ ruled that thresholds could not be based on the size or other physical characteristics of a project alone and that they had to be based upon locational and other environmental factors. Directive 97/11/EC implemented this principle by inserting Article 4(3), and states "When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant screening criteria set out in Annex III shall be taken into account". That screening criteria is based upon:

- characteristics of the project - e.g. size, use of natural resources etc;

- project locational factors - e.g. in or near sensitive areas such as wetlands, protected wildlife sites and densely populated areas etc; and

- characteristics of potential impacts - e.g. extent and magnitude of impact, transfrontier nature of impact etc.

3.2.3 Following the adoption of 97/11/EC, and the application of the rulings in the above cases, Member States developed the following types of screening thresholds for Annex II projects:

- inclusion or mandatory thresholds or criteria - projects of a certain size or of particular locational or other characteristics which require mandatory EIA;

- indicative or guidance thresholds or criteria - thresholds are provided as a guide only -projects above a given size or other threshold/criteria levels are considered more likely to require EIA, while projects below these thresholds are considered less likely to require EIA, but will still need to be screened on a case-by-case basis for the likelihood of significant environmental effects; and

- exclusion thresholds or criteria - projects below a given size or of particular locational or other characteristics which do not require EIA.

All of the above thresholds and criteria must be based upon the screening criteria set out in Annex III. For those countries not adopting a wholly case-by-case assessment approach to screening Annex II projects, the combined use of thresholds and a case-by-case approach can be characterised as the 'traffic light' approach to screening (see Fig. 4 below). Where no exclusion thresholds exist a modified 'traffic light' approach is created (se Fig. 5 below).

Figure 4: 'Traffic Light' Approach to Screening

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Figure 5: Modified 'Traffic Light' Approach to Screening

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Changes made by 97/11/EC to Annex I and Annex II

3.2.4 Directive 97/11/EC amended the two project lists provided in Annexes I and II. The number of Annex I projects was increased, with 14 new project types and the extension of 4 others. In some cases, projects previously in Annex II were moved into Annex I if they exceed a given threshold - for example, installations for the intensive rearing of poultry and pigs were previously all Annex II projects now, under 97/11/EC, projects that exceed a threshold of 85,000 places for broilers, 60,000 places for hens, 3,000 places for the production of pigs over 30 kg and 900 places for sows are Annex I projects where EIA would is mandatory. The number of Annex II projects was increased by 8 with the extension 8 others. The Commission's survey of Member States sought opinions on the operation and effectiveness of the division of projects between the two Annexes. The survey also sought views on whether the Annex I thresholds were set at the right level or the criteria provided the right trigger for requiring a mandatory EIA.

3.2.5 The logic behind the movement of some projects - e.g. intensive pig rearing - to Annex I is questioned by some Member States on the basis of their size and likely impacts. Concern was expressed at the vagueness of some project descriptions - for example open cast mining (Annex I (19)) could include land reclamation schemes where it was felt the need for EIA may be better considered on a case-by-case basis. There was also some support for the view that there should be far more flexibility in the operation of Annex I, so that thresholds could be adapted to suit national circumstances and the socio-economic conditions of individual countries. Some Member States (Austria, Belgium-Brussels, France, Greece, Ireland, Netherlands, and Portugal) have set some thresholds at lower levels than those of Annex I. The point is made by some Member States that in small countries the Directive's thresholds may be seen as high.

3.2.6 There was a degree of consensus among Member States at the usefulness of the threshold approach used in Annex I. However, some Member States queried the justification for the thresholds used and there was some concern that not all of the thresholds are clear - for example, for Annex I (16) (pipelines for the transport of gas, oil or chemicals), it is not clear whether the 800mm threshold refers to an outer or inner diameter. A number of Member States suggested that more appropriate thresholds should be used for certain projects. These include:

- production of organic nitrogen for intensive livestock units (Annex I (17));

- size of the development rather than weight of the vessel for trading ports (Annex l (8b);

- resource input or production outputs for projects such as integrated works for the initial smelting of cast-iron and steel, and integrated chemical installations (Annex I (4) and (6)).

3.2.7 The Member States were asked whether they believed that there was a case for moving some projects from Annex II to Annex I. Some Member States have already done this by placing some projects in their own version of Annex I or by having mandatory thresholds for certain Annex II projects. However, the largest single proportion of respondents felt that there is no case for moving projects from Annex II to Annex I (i.e. Austria, Denmark, Greece, Netherlands, Spain, Sweden, UK). There was some consensus on the view that it was far too early to judge whether the Annex I and II lists needed further revision and that there needs to be far more research on the relationship between the Annexes and how the system operates in practice across the EU as a whole. There was also a suggestion that there is a need for more reliable data on differences [between Member States] and to explore whether or not these differences result, perhaps from some geographical, socio-economic or other basis. However, some Member States (Belgium-Flanders, Belgium-Walloon and Italy), do see possibilities for further adjustment and one suggestion is that the two Annexes should be merged with the introduction of mandatory EIA thresholds for each project category. Austria, France and Greece already use this approach and do not currently differentiate between Annex I and II projects in their domestic EIA legislation.

3.2.8 Over half of the respondents indicated their domestic legislation required EIA for other project categories than those mentioned in Annexes I and II. The most frequently mentioned category was golf courses. Other suggested additions to the Annexes included the following (in some cases the Member States suggesting these additions already include them in their own domestic arrangements):

- installations for working with high risk biological substances;

- Genetically Modified Organism installations such as laboratories, test facilities and trial areas;

- shooting ranges;

- mobile phones masts;

- manufacture of fibreboard;

- particle accelerators (of 50 MeV and over);

- intensive rearing of cattle and calves;

- military practise grounds; and

- manufacture of lime.

However the respondents did not make clear whether their proposed changes should be in Annex I or II; it is assumed most would be Annex II.

3.2.9 The suggestion for the inclusion of intensive rearing of cattle and calves may be worth further examination as some evidence would suggests that this form of livestock farming is the cause of high levels of ammonia pollution in some countries and that control may be necessary to meet the requirements of the UN ECE Protocol on Combating Acidification, Eutrophication and Ground Level Ozone (the multi-component protocol). The suggestion for including the construction, or change or extension of a military practice ground (for actual development of 100 ha. or more) is interesting in that it covers defence/security issues which are often EIA exempt. The main reason for its suggested inclusion is that such training areas are often located in the vicinity of nature conservation areas. These suggestions should not be seen as an overall demand for a widening of the scope of Annex I and II. Several respondents to the questionnaire saw no case for adding new project types to Annexes I and II at this stage, seeing it as premature as the amendments are themselves only recent. Some Member States have already extended the list of Annex II projects to cover some of the above project types and recognise that the EIA Directive, and their national procedures, provides the necessary flexibility for them to add new projects to Annex II if deemed necessary. That others have not, and yet suggest that certain projects should be included in the Annexes, may mean that clarification is required on the discretion that Member States have on the widening of Annex II.

Summary of Main Findings: Changes made by 97/11/EC to Annex I and II

There do appear to be few significant concerns regarding the current split between Annex I and Annex II projects and the flexibility provided by the Directive that allows Member States to increase the projects covered by Annex I. There is a good deal of support among Member States for the threshold approach employed in Annex I.

Action: See recommendation 5.4.2.(i)

Screening Annex II Projects following 97/11/EC

3.2.10 Most of the Member States appear to make use of a combination of both thresholds and the case-by-case approach (See Table 7). Table 7 Annex II Screening Mechanisms Across the Member States

Austria // Screening is based on a combination of thresholds and case-by-case examination. Some thresholds trigger mandatory EIA. Indicative thresholds are used with case-by-case examination, and in sensitive areas the threshold values are usually halved. Exclusion thresholds are also used; new projects or modifications of existing projects that are less than 25% of the relevant threshold do not require EIA.

//

Belgium // (Brussels)

Thresholds for mandatory EIA are set for some project types (category A thresholds). Indicative thresholds (category B thresholds) with a case-by-case examination. The indicative thresholds (category B thresholds) also act as exclusion thresholds for smaller installations.

(Flanders)

In principle, under the intended legislation, a list of project types / activities (including some thresholds) for which EIA will be mandatory is proposed. A second list will identify activities for which case-by-case examination will be necessary.

(Walloon)

A system of mandatory, fixed thresholds is employed. Below these thresholds no EIA is required.

//

Denmark // Annex II projects are screened primarily on a case-by-case basis, using criteria based on Annex III. A limited number of mandatory thresholds and/or locational criteria exist, and below these thresholds a case-by-case approach is taken. There are no exclusion thresholds.

//

Finland // Some Annex II projects have been included in the mandatory list with thresholds. For other Annex II projects screening is principally carried out using case-by-case examination based on Annex II, with no indicative or exclusion thresholds.

//

France // Exclusion thresholds and criteria (both technical, monetary and also in relation to the nature of the proposal) are used. In principle, all projects that are not excluded in this way will require EIA. A simplified EIA procedure is used in some cases where a full EIA is not considered necessary.

//

Germany // A system of mandatory thresholds is used. Below these levels, additional thresholds are set that distinguish between general and site related screening. For "general screening" criteria based on Annex III must be examined in full. For "site-related screening" the thresholds are lower and concentrate on the criteria that relate only to the proposed project site.

//

Greece // For Annex II projects a mandatory list is used which defines the thresholds and criteria above which EIA is always required. For projects that fall below these limits a "simplified EIA" procedure applies.

//

Ireland // Mandatory thresholds have been set for each of the project classes in Annex II. A statutory basis exists to enable a requirement for EIA in cases where a project falls below these thresholds and the Competent Authority considers that significant environmental effects are likely (through reference to Annex III criteria). Exclusion thresholds are not used.

//

Italy // A list is used to identify Annex II projects for which EIA is mandatory. Other Annex II projects are screened using a combination of thresholds and case-by-case examination. Exclusion thresholds have been set for almost every Annex II project.

//

Luxemb'g // No information

//

Netherlands // For Annex II projects, thresholds are set above which a case-by-case examination takes place (using Annex III criteria). Below the thresholds no EIA is required.

//

Portugal // Mandatory thresholds are used for screening Annex II projects. Different thresholds apply in sensitive areas. There is no case-by-case screening.

//

Spain // Mandatory thresholds are used to identify projects for which EIA is obligatory. Other Annex II projects are screened using case-by-case examination combined with indicative thresholds. Exclusion thresholds are not used.

//

Sweden // Certain project types have a general requirement for EIA e.g. railways, roads, cement manufacture. For other projects, a combination of mandatory thresholds and case-by-case examination is used. There are no exclusion thresholds.

//

UK // Screening is conducted using a combination of indicative thresholds and case-by-case examination. Exclusive thresholds are set below which EIA is not required (except in exceptional circumstances when the Secretary of State can use reserve powers to require EIA).

Thresholds are established to exclude projects that are below certain sizes or criteria from EIA in Austria, Belgium-Brussels, France, Germany, Italy, Netherlands, Portugal, Spain, and the UK. However, it is important to qualify this statement as different approaches are used for different project types within individual Member States. Exclusion thresholds are not necessarily in place for all project types in all of the above countries. In some cases mandatory or inclusion thresholds also act as exclusion thresholds so that if a project is above a given threshold EIA is always required and below the threshold, EIA is not required. Sub-threshold screening takes place in some of the Member States for some projects, but not all. In still other cases projects below mandatory thresholds are made subject to a simplified EIA procedure. Austria, France, Germany and Greece make no distinction between Annex I and II projects and base their screening decisions on inclusion or mandatory thresholds and a case-by-case examination of the project and its receiving environment for both groups of projects. In some cases only mandatory thresholds exist for Annex II projects and screening takes place on a case-by-case basis of projects below those thresholds. Where this practice occurs the respondents are generally of the view that there is limited need for sub-threshold screening as the mandatory thresholds have been set (in their view) at a very low level (Belgium-Flanders and Walloon regions, Ireland, Portugal and Spain). In some of these cases the competent authority may require the developer to carry out an EIA even if the project is below a threshold or, in some cases, a simplified EIA procedure is completed. A tiered system of EIA is in place in a number of Member States. This approach is largely based upon the use of mandatory thresholds: above the threshold EIA is always required, below the threshold only a simplified EIA or report is required. In Greece this comprises responses to a questionnaire. In Belgium-Brussels the developer is required to produce an environmental report for most Annex II projects unless the Government deems a full EIA is necessary. The use of a tiered approach to EIA does have the benefit of ensuring that all Annex II projects are subject to some form of assessment and report, however the requirements of the Directive will only be met, in such cases, if under the simplified EIA no significant environmental effects are identified.

3.2.11 Some Member States have moved some Annex II project types into their own Annex I (for example, Denmark and Finland). In a number of Member States mandatory thresholds have been set for some Annex II projects and where that is the case it is essential that a case-by-case screening procedure is in place for projects that fall below the mandatory thresholds (the 'modified traffic lights' approach - see para. 3.2.3 above). Denmark, Sweden and Finland appear to make use of a case-by-case assessment for the majority of Annex II projects that have not been moved into their own mandatory (Annex I) list. It is not clear what approaches to screening are being used in some of the federal states where the EIA function has been devolved down to regional level and no evidence has been presented on the way the EIA systems are operated in practice. There is also no information of how competent authorities within the Member States apply the thresholds or the case-by-case screening procedures in practice.

3.2.12 Most Member States have established either their own screening criteria or indicative thresholds or make use of the screening criteria in Annex III. Where Member States have established their own criteria these are largely based upon the Annex III list but expand on the Annex III list to include specific nationally designated areas or other factors such as cultural and historic landscapes or archaeological features. The general view of the Member States is positive about the efficiency of the screening criteria of Annex III. On the advice of the Commission most countries (including Austria, Denmark, Finland, Ireland, Netherlands, Spain, Sweden and the UK) have now transposed Annex III directly into their own legislation. The Annex III criteria are seen by some respondents as making the screening process clearer and more transparent. On the other hand, some respondents found them unclear, quite technical, and subjective.

3.2.13 The screening process is complicated in a number of Member States by the fact that for some Annex II projects a land use planning or construction authorisation is required, for other projects only an environmental permit (similar to IPPC) is required, while in still others both consents are necessary. The screening decision is then often based upon the relevant thresholds and criteria for the particular consent regime and it is not at all clear from the responses that these are or can be applied consistently. For example, similar project types can be screened using different criteria, the use of project size in terms of land area for some projects and emission rates or energy output for similar projects in the same project category.

3.2.14 In some Member States domestic EIA legislation only requires an EIA of an Annex II project where there are likely to be significant adverse or negative environmental effects. However, Article 2 paragraph 1 of the Directive does not distinguish between positive or negative effects. It is important that where only significant 'adverse' or 'negative' effects are used as the trigger for EIA, such effects are not first measured against any positive effects. In Austria any single significant adverse effect triggers the need for an EIA, regardless of there being significant positive effects. Where only significant adverse effects are used to trigger EIA, there need to be very careful checks in place to ensure that competent authorities do not misuse this approach to override environmental concerns with economic benefits.

Summary of Main Findings: Screening Annex II Projects

Member States have embraced the flexibility permitted by Article 4(2) and a range of approaches to screening exists across the European Union. Many Member States appear to be making use of the 'traffic light' approach to screening and have developed inclusion, exclusion and indicative or guidance thresholds. However, in some cases Member States appear to be employing a variety of different approaches, using different screening procedures for different project types and in some cases only mandatory or inclusive thresholds are used. Very few Member States employ a case-by-case approach for all project types. The following key issues arise from the review of screening procedures:

It is not clear from the evidence reviewed here that all Annex II projects are being subjected to a systematic screening procedure. In some cases there is little evidence that screening takes place below nationally established mandatory thresholds or criteria;

There is little evidence of how the screening systems put in place have been operating in practice at competent authority level;

There are few examples of how the screening process operates at regional level in the federal states;

Action: See recommendation 5.4.2.(a), (c), (d), (i) and (j).

Examples of thresholds/criteria for certain projects

3.2.16 Previous reviews and other research have identified particular screening problems, including inconsistency of approach and concerns over definition and or interpretation for certain types of project. The Commission's questionnaire sought from Member States information on the screening thresholds and criteria used for the following projects:

- Annex II, 1(d) Forestation and Deforestation

- Annex II, 1(e) Intensive Livestock Installations

- Annex II, 3(h) Hydroelectric Plant

- Annex II, 3(i) Wind farms

- Annex II, 4(c) Ferrous Metal Foundries

- Annex II, 5(b) Cement Manufacture

- Annex II, 10(b) Urban Development

- Annex II, 10(c) Railways and Intermodal Transhipment Facilities

- Annex II, 10(d) Airfields

- Annex II, 10 (e)Roads

3.2.17 The results show a wide variety of approaches. In most of the Member States some of the project types have been sub-divided, for example Annex II, 1(d) (Forestation and Deforestation) is split into two, as is Annex II 10(c) (Railways and Intermodal Transhipment Facilities). In the case of intensive livestock installations (Annex II 1(e) a variety of different types of livestock are made subject to EIA. For example: in Austria, poultry unit thresholds are based on different types of production with thresholds of 48,000 places for laying hens or young hens or turkeys, and 65,000 places for broilers; in Belgium (Walloon) there are mandatory thresholds for ducks, geese and turkeys (over 25,000 animals); in Denmark there are mandatory thresholds of 2,400 places for pigs between 30-100 kg and 750 places for sows. Appendix 3 provides an overview of the thresholds used for the projects listed at 3.2.16 above. In some cases Member States are applying the 'traffic light' approach to screening, having exclusion (GREEN), indicative thresholds and criteria for case-by-case assessments (AMBER) and inclusion (mandatory) thresholds (RED) (See Figs. 6-11 below). However, it should be noted that in many cases the thresholds are used in combination with other screening criteria, such as those provided by Annex III, and therefore a strict comparison of thresholds between Member States may be misleading.

3.2.18 There is a great deal of variation in the levels at which some of the thresholds are set. For example, with afforestation projects the area of planting that triggers mandatory EIA is 30 ha in Denmark, 50 ha in Spain and Germany, 200 ha in Finland and 350 ha in Portugal. Little justification has been provided for the levels at which thresholds have been set and it is not clear how Annex III has been used to establish project size mandatory thresholds. In some of the Member States many of the projects are deemed to always require EIA, regardless of size or other project or locational factors - deforestation and hydroelectric plant in Sweden, ferrous metal foundries in Denmark and Greece, cement manufacturing in Denmark, Finland, Greece, Ireland and Sweden, railways in Germany, Greece and Ireland, intermodal transhipment facilities, airfields and roads in Greece.

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Fig. 9 [11]

[11] The Member States have not identified explicit types of projects covered by the category Annex II 10 (a) "industrial estate development projects". However, thresholds have been used to identify the requirement for EIA in this category. In France, a monetary threshold is used, and EIA is also mandatory where an urban development plan is in operation. For other Member States the threshold is based on the area of the proposed industrial estate development

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3.2.19 Where Member States use a case-by-case approach to screening Annex II projects using Annex III and other screening criteria, these are usually supported by indicative or guidance thresholds. Here too there is considerable variation of approach across the EU. The screening criteria developed and used by some Member States extremely complex and are often combined a number of factors. For example, the mandatory threshold for deforestation in Denmark is:

"if area affected is older than 20 years and over 30ha, in an afforestation area designated in a regional plan and where a comparable area of at least the same size is not afforested, unless the relevant state authority declares that the forest to be cleared is without significant forestry, biological, landscape or recreational value".

Project Specification

3.2.20 The two earlier Commission's reviews into the operation of 85/337/EEC discovered a number of issues relating to the interpretation of the definitions of some project types. There were particular concerns over the definitions of industrial estate development projects (Annex II 10[a]) and urban development projects (Annex II 10[b]) The Commission's questionnaire for this current review specifically asked Member States for information on the operation of these two categories. The responses are varied but it would appear that those concerns over interpretation remain. For example, there appeared to be a degree of concern as to whether projects outside towns and villages can be categorised as "urban development projects". Based upon the broad interpretation of the Directive required by the ECJ, an urban development project should be seen as a project that is urban in nature regardless of its location. While many Member States still have problems with the definition of these project categories, only three consider that any further specification is necessary. Most of the Member State