EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 23.7.2009 
COM(2009) 378 final 
  
REPORT FROM THE COMMISSION TO  THE COUNCIL, THE EUROPEAN 
PARLIAMENT, THE EUROPEAN EC ONOMIC AND SOCIAL COMMITTEE AND 
THE COMMITTEE OF THE REGIONS 
On the application and effect iveness of the EIA Directive  
(Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC) 
 
EN 2   EN REPORT FROM THE COMMISSION TO  THE COUNCIL, THE EUROPEAN 
PARLIAMENT, THE EUROPEAN EC ONOMIC AND SOCIAL COMMITTEE AND 
THE COMMITTEE OF THE REGIONS 
On the application and effect iveness of the EIA Directive  
(Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC) 
1. P OLICY AND LEGAL CONTEXT  
The aim of this Communication report is to  review the application and effectiveness 
of Council Directive 85/337/EEC1 on the assessment of the effects of certain public 
and private projects on the environmen t, as amended by Directives 97/11/EC2 and 
2003/35/EC3 (hereinafter the Environmental Impa ct Assessment – EIA Directive), in 
the European Union (EU).  
The EIA Directive has been subject to simila r regular reports in the past, which were 
based on Article 11 of the Directive.  On the basis of such reports, this EIA Directive 
was amended in 1997. Directive 97/11/EC widened the scope, strengthened the 
procedural stages and integrated th e changes provided by the UN/ECE Espoo 
Convention on EIA in a transboundary c ontext. Following the signature by the 
Community (June 1998) of the Aarhus Conve ntion on Access to Information, Public 
Participation in Decision-Making and Access to Justice in Environmental Matters, 
the Community law had to be properly aligned with that Convention. Thus, the EIA Directive was amended by Directive 2003/35/EC, which sought to align the 
provisions on public participation with the Aarhus Convention.  
The Directive aims to protect the environm ent and the quality of life, while ensuring 
approximation of national laws  with regard to the assessment of the environmental 
effects of public and privat e projects. It is a key in strument of environmental 
integration, covering a wide  range of projects and ma king them environmentally 
sustainable. The means of achieving this obj ective are laid down in Article 2(1) of 
the Directive, which states that, before development consent is given, certain public 
and private projects likely to have si gnificant environmental effects by virtue, inter 
alia, of their nature, size or location ar e made subject to a requirement for 
development consent and an EIA. The Direct ive harmonises the principles of the EIA 
by introducing minimum requirements, in par ticular with regard to the type of 
projects that should be subject to assessmen t, the main obligations  of the developers, 
the content of the assessment and the par ticipation of the competent authorities and 
the public.  
At present, all Member States (hereinafter MS) have established comprehensive 
regulatory frameworks. However, the challe nge of ensuring that the Directive is 
implemented effectively and consistently across all MS is a continuous one. This 
                                                
 
1 OJ L 175, 5.7. 85, p. 40. 
2 OJ L 73, 14.3. 97, p. 5. 
3 OJ L 156, 25.6.03, p.17. 
 
EN 3   EN report assesses the 20 years of implementation in an effort to address this challenge. 
The main sources of this repor t are mentioned in Annex 1.  
The report is well-timed for several reasons: 
– after EU enlargement in 2004 and 2007, th e Directive began to apply in 12 new 
MS;  
– there are growing environmental challenges  in the areas of climate change and 
biodiversity;  
– the European Court of Justice (ECJ) ha s delivered important  rulings clarifying 
some of the EIA provisions;  
– there is a need to generate syner gy between the Directive and the Espoo 
Convention, including the Protocol on  Strategic Environmental Assessment4;  
– the EIA Directive has been identified as  a potential instrument for a future 
simplification exercise,5 the aim being to identify overlaps, gaps and potential for 
reducing regulatory and administrative burdens, in particular regarding 
transboundary projects (e.g. pipelines or power cables on the sea bed).  
The report outlines the strengths of the EI A Directive, highlights the main areas 
where improvements are needed and provide s recommendations, where relevant. It 
concludes with consideration of appr oaches to improving the Directive.  
2. S TRENGTHS OF THE EIA  DIRECTIVE  
2.1. Establishment of comprehensive EIA regimes in all MS 
In general, MS have transposed and implement the EIA Directive largely in line with 
the Directive’s objectives a nd requirements. In several cases, MS have introduced 
obligations which go beyond the Directive's mi nimum requirements. This is the case 
regarding the key stages of the EIA, such as "screening"  and "scoping" :  
– "Screening"  is the part of the EIA process that determines whether an EIA is 
required. In some MS, an EIA is mandatory for some types of projects listed in 
Annex II or for other project categories in  addition to those listed in Annexes I 
and II.  
– "Scoping"  is the stage of the EIA process that determines the content and extent of 
the matters to be covered in the environmental information to be submitted to a competent authority. It is an important f eature of an adequate EIA regime, mainly 
because it improves the quality of the EI A. Many MS have gone further than the 
minimum requirements of the Direc tive, making scoping mandatory and 
providing for public consultation during scoping. 
2.2. Increasing public participation in  the decision-making process  
Directive 2003/35/EC was to be implemented in national law by 25 June 2005. At 
the time of writing, only Ire land has not completely tran sposed the Directive; the 
case is pending before the ECJ (C-427/07). The general impression is that experience 
in the application of the new provisions introduced by Di rective 2003/35/EC is still 
                                                
 
4 It was approved by Decision 2008/871/EC, OJ L 308, 19.11.08, p.33. 
5 COM(09)15. 
 
EN 4   EN limited. Working on the basis of the informa tion available, preliminary observations 
on the implementation of these provision s are made in Annex 2. Significant 
conclusions will be drawn by the ongoing a ssessment of the conformity of the 
national transposition measures. 
Most of the MS reported that the amen dments introduced by Directive 2003/35/EC 
increase public participation in the decision-making process. In addition, the MS that 
joined the EU in 2004 and 2007 reported th at the EIA Directive had contributed 
directly to consolidating de mocratic development, by im proving public participation 
and transparency in decision-making. 
2.3. Clarification of the provisions  of the EIA Directive by the ECJ 
The ECJ has emphasised that the Direc tive is broad in scope and purpose and 
confines the MS' degree of discretio n. Most of the ECJ rulings focus on "screening"  
and the decision as to whethe r or not to carry out an EIA. The ECJ has also provided 
interpretations of some of the pr oject categories and the concept of "development 
consent" , and has dealt with the issu e of retention permissions.  The main findings of 
recent rulings are summarised in Annex 3.  
2.4. Overall benefits of the EIA Directive 
Two major benefits have been identified. Fi rstly, the EIA ensures that environmental 
considerations are taken into account as early as possible in the decision-making 
process. Secondly, by involving the publ ic, the EIA procedure ensures more 
transparency in environmental decisi on-making and, consequently, social 
acceptance. Even if most benefits of the EI A cannot be expressed in monetary terms, 
there is widespread agreement, confirmed by the studies available, that the benefits 
of carrying out an EIA outweigh the costs of preparing an EIA6.  
In addition, the Commission's experience fr om the assessment of projects co-funded 
under the EU Regional Policy, in particular  major projects, shows that EIAs have 
improved the project design and the decision-making process (including the participation 
of environmental authorities and the public) and have helped to improve the 
incorporation of environmental considerations. 
Finally, implementation of the Directive has created specific national dynamics. MS 
have often built on the minimum require ments of the Directive and have gone 
beyond them, by introducing more stringent provisions (on the basis of Article 176 
of the EC Treaty), which aim to ensure better environmental protection and more 
transparency. Many MS have also deve loped their own guidance on good practice 
and on specific project categories and issu es. These national experiences can be 
shared across the EU. 
It can therefore be concluded that the pr incipal objective of the EIA Directive has 
been achieved and that the momentum is there to step up the Directive's minimum 
requirements and improve the Directive. 
                                                 
6 The costs of preparing an EIA as a share of project costs typically ra nge from 0.1% for large projects to 
1.0% for small projects. These costs provide an initial perspective but obviously do not take into 
consideration other costs (e.g. subsequent amendments, reporting, delays).  
 
EN 5   EN 3. I NDICATIVE AREAS OF THE EIA  DIRECTIVE WHERE IMPROVEMENTS ARE NEEDED  
The EIA Directive has evolved after 20 year s of implementation. At the same time, 
EU legislation has grown and new policies have developed. While ensuring that the 
EIA Directive is effectively implemented across the EU, it is also necessary to 
identify areas where improvements are needed, such as implementation gaps, overlaps with other pieces of legislation a nd inconsistencies with other EU policies, 
and to provide recommendations, where relevant. 
3.1. Concerns regarding the "screening"  procedure 
The EIA Directive gives MS broad scope to determine, through a case-by-case 
examination and/or through national thres holds or criteria, whether an EIA is 
required for projects listed in Annex II. When establishing those thresholds or 
criteria, MS must take into account the releva nt selection criteria se t out in Annex III. 
This provision, which is based on the principl e of subsidiarity, resulted in a wide 
variation in the types and levels of  thresholds or criteria set by MS.  
Implementation and case-law show that, wh en establishing thresholds, MS often 
exceed their margin of discretion, either  by taking account only of some selection 
criteria in Annex III or by exempting some  projects in advance.  In addition, although 
the trend is on the increase, EIAs carried out in the various MS vary considerably 
(from fewer than 100 to 5 000), even when comparing MS of a similar size. The levels at which thresholds have been set has clear implications for the amount of EIA activity. Furthermore, there are still severa l cases in which cumulative effects are not 
taken into account, while problems remain when it comes to eliminating "salami-slicing"
7 practices, especially for big invest ment plans. These features could 
jeopardise the legitimacy of the Directive and undermine efforts to establish common screening standards. Thus, the screen ing mechanism should be simplified and 
clarified, for example, by detailing the select ion criteria listed in Annex III and by 
establishing Community thre sholds, criteria or triggers  (e.g. by comitology). The 
possibility of granting consent on the basis of a simplified prior assessment 
procedure should be considered. 
3.2. Concerns regarding the quality of the EIA  
The EIA Directive lays down essentially procedural requirements; it does not 
establish obligatory environmental standard s. The competent authorities are obliged 
to take into consideration the results of consultations and the information gathered 
and to provide specific information at the end of the development consent procedure 
(Articles 8 and 9), but they are not obliged to draw specific conclusions from the 
findings of the EIA. Ensuring quality control in an EIA is largely left to the national 
competent authorities. However, the ability  to make valid deci sions depends on the 
quality of the information used in the EI A documentation and the quality of the EIA 
process. Quality is therefore a crucial elemen t for the effectiveness of the Directive.  
                                                
 
7 The practice of dividing projects up into 2 or more  separate entities so that each individual element does 
not require an EIA and thus the project as a whol e is not assessed; or the practice of obtaining 
permission for a project that is below a threshold (and thus not subject to EIA) and at a later date 
extending that project or its capacity above the threshold limits. 
 
EN 6   EN 3.2.1. Quality of the information used in the EIA documentation 
Many MS have pointed out that the lack of sufficient quality in the information used 
in the EIA documentation is a problem. There are major differences in the quality of EIA documentation, not only betw een different MS but also within MS themselves.  
There are several ways of ensuring prope r quality control of EIA documentation, 
(often presented as a report) : proper accreditati on of consultants that undertake EIA 
work; preparation of reports by independent consultants; use of independent external 
review or expert assistance; use of guide lines on specific issues  to be taken into 
account for certain types of projects; keep  the data used up to date; mandatory 
"scoping" ; introduction of comitology to update Annex IV (information to be 
supplied by the developer). 
3.2.2. Quality of the EIA process  
Experience with implementation shows that  some issues are often raised in EIA 
procedures.  
With regard to alternatives , the Directive includes among the information to be 
provided in the EIA documentation "an outline of the main alternatives studied by 
the developer and an indication of the main reasons for his choice" . Some MS have 
introduced a legal obligation to consider sp ecific alternatives, wh ile others have not. 
The competent authorities and the public ma y also contribute to  the selection of 
alternatives for assessment. The assessment of alternatives in EIA procedures is 
usually a difficult issue. It may be necessary to specify what should be required under the provisions of the Directive, e.g. by introduci ng the obligatory assessment 
of alternatives or by specifying a range of  alternatives (such as the "do-nothing" 
alternative) to be studied.  
The lack of provisions in the Directiv e relating to reasonable timeframe and 
preferably fixed timeframe for granting deve lopment consent, to the duration of the 
validity  of the EIA and to monitoring  the significant environmental effects of the 
implementation of projects is also a cau se for concern. Those gaps could be 
addressed by introducing specifi c provisions in the Directive. 
3.3. Lack of harmonised practi ces for public participation 
Despite increasing public participation in th e decision-making process there is still 
no standard practice across the EU. This is confirmed by the following: 
– The public must be given early and eff ective opportunities to participate in the 
environmental decision-making process. Th ere is no common reference point for 
the beginning of the consultation. In seve ral MS, the public is already consulted at 
an early stage (at the screening stage or at the scoping stage). However, in most 
cases, the public is consulted for the first time on the information gathered pursuant to Article 5, which corresponds to the minimum requirement laid down 
by the Directive. 
 
EN 7   EN – Under the EIA Directive, the timeframe for effective public consultation should 
be reasonable, since short timeframes are an obstacle in this respect. However, timeframes vary considerably
8.  
– The detailed arrangements for informing a nd consulting the public are determined 
by the MS. However, public participation is not effective when national arrangements are constricted (e.g. when the EIA documentation is only available 
for consultation at the offices of the competent authority).  
– As for access of the public concerned to a review procedure,  the criteria for 
standing differ considerably from one MS to another, and the cost of procedures is considered to be an obstacle to  access to justice in some MS. 
These gaps could be addressed by provi ding for early public consultation at the 
scoping or screening stages  (including involvement of stakeholders) and by 
establishing minimum timeframes. Guidel ines could also be developed on best 
practices for making the EIA documentation available to the public concerned.  
3.4. Difficulties regarding EIA transboundary procedures  
The EIA Directive gives MS broad scope to  decide when and how other MS should 
be involved in EIA procedures for projects with transboundary impacts. 
Many MS pointed out that transboundary EIA procedures give rise to difficulties 
which are mainly due to differences in nati onal EIA procedures, such as the different 
stages of the project propos al process, different timefr ames and language barriers.  
The risks of duplications, inconsistencies, burdens (e.g. administrative) and potential 
conflicts are high for projects which are carr ied out in areas under the jurisdiction of 
more than one MS (e.g. in sea basins). In a ddition, there is a risk that the impacts of a 
multi-country project are not assessed as a whole. 
Improved formal and informal arrangements are needed for consultation on 
transboundary impacts with neighbouring c ountries. This could be achieved by 
developing guidance or by strengthening the Directive's provisions (e.g. definition of 
minimum timeframes for transboundary cons ultation, coordinated or possibly joint 
EIA procedures for multi-country projects; explore the possibility for having a single 
EIA procedure).  
Furthermore, following approval by the C ouncil of the SEA Protocol to the Espoo 
Convention, the EIA Directive could be revi ewed to ensure better implementation of 
the requirements of the Protocol.  
3.5. Better coordination between the EIA and other EU directives and policies  
In many cases, projects covered by the EI A Directive are also subject to the 
provisions of other EU environmental Direc tives and policies. Despite the risk of 
overlaps in assessment requirements, no majo r problems are reported with regard to 
                                                
 
8 At the screening stage, the range goes up to 45 days; at the stages of scoping and of the consultation on 
the EIA documentation, the timeframe is between 10 and 60 days. 
 
EN 8   EN coordination between the EIA Directive and ot her Directives and po licies; in general, 
coordination is smooth. However, there is  a need to reflect on how to improve 
synergy between the EIA Directive and legislation and policy in specific 
environmental sectors such as air qua lity, noise exposure , waste and water 
management, protection of the marine envi ronment, soil protection, disaster risk 
prevention (including control of major- accident hazards), climate change, and 
biodiversity. There are specific issues, for example, which require a thorough 
assessment to ensure better coordination.  
3.5.1. EIA and SEA 
Directive 2001/42/EC9 (Strategic Environmental Assessment – SEA) applies 
"upstream" to certain public plans and programmes , while the EIA Directive 
applies "downstream" to certain public and private projects . The 2 Directives 
address different subjects and are distinct  in nature. The following main differences 
have been identified: the objectives of the SEA are expressed in terms of sustainable 
development, whereas the aims of the EIA are purely environmental; the SEA requires the competent authorities to be c onsulted at the screening stage; the SEA 
requires an assessment of reasonable alte rnatives and has an explicit provision 
concerning the use of information from other sources; the SEA includes requirements 
on monitoring and quality control. 
In theory, overlap should not be expect ed. However, different areas of potential 
overlaps
10 in the application of the two Directiv es have been identified. In particular, 
the boundaries between the definition of a plan, a programme or a project are not 
always clear, and therefore there may be so me doubt as to whether the subject of the 
assessment meets the criteria for requiring th e application of either or both of the 
EIA and SEA Directives. In this regard, th e definitions of some project categories, 
which often relate to land use, are not cl ear and this might creat e confusion with the 
SEA. 
Different approaches have been chosen by MS to solve potential ineffectiveness 
resulting from overlapping procedures. Howe ver, many MS often consider that they 
do not have sufficient experience to id entify and assess any overlapping issues 
properly. This is why very  few MS recommended consol idating the two Directives. 
Many MS underlined that each process should be preserved and distinguished, as these are complementary procedures addressi ng different stages and processes; MS 
have also asked for guidance documents to be produced. 
Given the specificities of the two proce sses and the limited experience in applying 
the SEA, there is currently no case for mergi ng these Directives. At this stage, better 
coordination can be achieved by addressing th e differences between the provisions of 
the two Directives and by cl arifying the definitions of project categories for which 
overlaps can occur. This can be done in the context of the EIA review. 
                                                
 
9 OJ L 197, 21.7.01, p.30. 
10 For instance, where large projects ar e made up of sub-projects; projects that require changes to land use 
plans; plans and programmes which set binding criteria for the subsequent development consent of 
projects; and hierarch ical linking between SEA and EIA ('tiering'). 
 
EN 9   EN 3.5.2. EIA and IPPC 
Very few MS have used the option of es tablishing a single procedure for projects 
falling under the EIA Direct ive and Directive 2008/1/EC11 (concerning integrated 
pollution prevention and control - IPPC); in some MS, a single procedure may be 
used at the request of the developer.  MS have provided for solid forms of 
coordination (e.g. the EIA documentation pa rt of the documentation for IPPC 
applications; IPPC permit conditioned by a positive EIA decision; use of same data; 
common public particip ation procedure).  
In general, no specific coordination problem s have been reported. However, for the 
same type of activities, the IPPC Direct ive sometimes sets thresholds which differ 
from those used in the EIA; this ma y cause some confusion. Harmonising the 
thresholds and criteria used to define pr ojects subject to the requirements of these 
Directives (e.g. by comitology) and str eamlining the provisions on information 
requirements (also taking the ongoing revision  of the IPPC Directive into account) 
should therefore be considered. 
3.5.3. EIA and biodiversity 
MS have established both informal and fo rmal links between the EIA Directive and 
the Habitats12 and Birds13 Directives (in particular Article 6(3)-(4)14 of the former). 
Although no major problems have been reported, the Commission's implementation experience shows that the requirements of Article 6(3)-(4) are not  taken properly into 
account in the context of EIA procedures. Furthermore, EIA procedures focus on the 
impact on Natura 2000 sites, while the sp ecies protection provi sions tend to be 
neglected.  
The EIA Directive does not make explicit refe rence to the concept of biodiversity (it 
only refers to fauna and fl ora). Many MS replied that the provisions of the EIA 
Directive already take sufficient account of the substance of the Biodiversity Action 
Plan
15 (BAP) and that their national EIA systems are effective in preventing 
biodiversity loss. However, it appears highl y unlikely that the EU will meet its 2010 
target of halting biodiversity decline16; intensive efforts will be required. In this 
regard, the biodiversity consider ations could be expressly re flected within the text of 
the EIA Directive. In addition, a single as sessment procedure for projects falling 
under the EIA Directive and Article 6(3)-(4 ) of the Habitats Directive could be 
established.  
3.5.4. EIA and climate change 
The EIA Directive does not expressly address climate change issues. Most of the MS 
recognise that climate change issues ar e not adequately identified and assessed 
                                                 
11 OJ L 24, 29.1.08, p.7. 
12 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 
22.7.92, p.7. 
13 Directive 79/409/EEC on the conservation of wild birds, OJ L 103, 25.4.79, p.1. 
14 This Article contains procedural and substantive safeguards for any plan or project likely to have a 
significant effect on a Natura 2000 site. 
15 COM(06)216. 
16 COM(08)864. 
 
EN 10   EN within the EIA process. Any review of the impacts of climate change is often limited 
to CO 2 and other greenhouse gas emissions fr om industry and from increases in 
transport as part of air quality studies or as indirect impacts. The EIA assessment will 
often not go beyond evaluating existing em issions and ensuring that ambient air 
quality standards are met. In addition, the effects on global clim ate, the cumulative 
effects of an additional project and adapta tion to climate change are not sufficiently 
considered within the EIA. 
The above issues need to be tackled. Various specific project categories where 
climate change considerations should be expressly reflected within the EIA have 
been identified. These relate mainly to projects with potential significant CO 2 
emissions, such as energy and transport infr astructure projects, but they also include 
projects for which energy efficiency is a key issue. The introduction of comitology 
could be an option for updating Annexes I and II.  
In addition, the MS called for assessm ent tools to be developed (e.g. on the 
integration of climate change issues into the EIA process). The Commission will develop guidelines by 2011 to ensure that climate impacts are taken into account in 
the EIA Directive.
17 
4. C ONCLUSION  
This report confirms that the objectives of the EIA Directive have generally been 
achieved. The principles of environmental a ssessment have been integrated into the 
national EIA systems. All MS have es tablished comprehensive regulatory 
frameworks and implement the EIA in a ma nner which is largely in line with the 
Directive’s requirements; in many cas es, MS have built on the minimum 
requirements of the Directive and have gone beyond them. As a result, environmental considerations are taken into  account in the deci sion-making process, 
which has become more transparent.  
However, the development of EIA is an evolving process. While ensuring that the 
EIA Directive is effectively implemented acro ss an enlarged EU, it is also necessary 
to ensure that the EIA Directive is adapted to the Community and international policy and legal contexts. This report indi cates areas where improvements are needed 
(e.g. screening, public part icipation, quality of th e EIA, EIA transboundary 
procedures, coordination between the EIA and other environmental directives and 
policies, such as climate change a nd biodiversity) and presents possible 
recommendations for action.  
                                                
 
17 COM(09)147. 
 
EN 11   EN These findings are relevant in the fram ework of a simplification exercise. The 
Commission will consider all simplifica tion methods (codification, codification 
combined with the introduction of comito logy, recasting, merging, use of regulation). 
Any simplification initiative will aim to improve envir onmental protection, increase 
the degree of harmonisation and simplify existing procedures. Regardless of the 
approach chosen, the Commission will ensure that any major modification will be subjected to a consultation with all stake holders and will undergo a legislative impact 
assessment. 
 
EN 12   EN ANNEX 1: Main sources of the report  
– MS’ responses to the Commission questionnaire on the application and 
effectiveness of the EIA Directive (these were sent in 2007 and 2008). 
– The study commissioned by the Commission on the application and effectiveness 
of the EIA Directive (2009) 
– The findings of previous reports on the application and effectiveness of the EIA 
Directive. 
– Relevant studies commissioned by the Commission: "The Relationship between 
the EIA and the SEA Directives" (2005); "Costs and benefits of  the EIA Directive" 
(2006); "Inventory of EU Member States' measures on access to justice in 
environmental matters"  (2007); "Evaluation of EU legislation - Directive 
85/337/EEC (Environmental Impact Assessment, EIA) and associated 
amendments" (2007).   
– The Commission's experience with the implementation of the EIA Directive 
(including information from complain ts and petitions and the case-law). 
 
EN 13   EN ANNEX 2: Preliminary observations on th e implementation of the new provisions 
introduced by Directive 2003/35/EC  
Definitions of the "publ ic" and "public concer ned" (Article 1(2)):  all MS appear to apply a 
broad definition of the "public" , allowing all natural and legal persons to take part in the 
decision-making process. The pict ure regarding the definition of "public concerned"  is more 
varied. The majority of the MS have included a definition in their national legislation. Some 
MS do not distinguish between the "public"  and the "public concerned" ; it is not yet clear 
whether the lack of a specific  definition may be a problem. 
Option of exempting national de fence projects from EIA on a case-by-case basis (Article 
1(4)):  the majority of the MS have included rele vant provisions in their laws. However, it 
appears from the information available to the Comm ission that this option is used very rarely.  
Strengthened provisions on public c onsultation (Article 6(2) and (3)) : in general the public 
has acceptable access to the de cision-making process. Although a more detailed investigation 
is required to assess the effective implementa tion of these provisions, some positive features 
emerge: several MS already provide for public consultation at the scopi ng stage, while some 
MS also provide for public consultation at the screening stage. 
Changes or extensions of Annex I and II projects : all MS report that they have adopted 
national measures to comply with the changes introduced by Directive 2003/35/EC. 
Information on the public partici pation process contained in th e information provided on the 
final decision (Article 9(1))  and provisions on public access to a review procedure (Article 
10(a)) : it is not possible to draw any conclusions at this stage on the implementation of these 
provisions. However, the Comm ission has already identified transposition problems in some 
MS and initiated infringement procedures, in accordance with Ar ticle 226 EC Treaty.  
 
EN 14   EN ANNEX 3: Main findings of recent ECJ rulings  
The ECJ has emphasised that the EIA Dire ctive is broad in both scope and purpose18 and 
seeks to ensure that MS' discretion does not unde rmine the objective of the Directive, which is 
that no project likely to have significant effect s on the environment, within the meaning of the 
directive, should be exempt from assessment, unless the sp ecific project ex cluded could, on 
the basis of a comprehensive screening, be rega rded as not likely to have such effects.  
Screening mechanism  (decision as to whether or not to carry out an EIA)   
MS are obliged to take account of all the releva nt selection criteria listed in Annex III when 
establishing criteria or threshol ds for Annex II projects. A MS th at has established thresholds 
and/or criteria that take account  only of the size of projects , without taking all the criteria 
listed in Annex III into consideration, would exceed the limits of its discretion under the 
Directive19.  
A decision by which the national competent authority takes the view that a project’s 
characteristics do not require it to be subjected to an assessment of its effects on the 
environment must contain or be accompanied by all the information that makes it possible to 
check that it is based on adequate screening, ca rried out in accordance with the requirements 
of Directive 85/337 .20 
Interpretation of certain Annex I and II categories of projects  
The EIA Directive must be interpreted as meaning that it provides for an EIA of 
refurbishment and improvement projects for ur ban roads (projects covered by Annex I.7.b or 
c, or by Annex II.10.e or by Annex II.13) that ar e likely, by virtue of their nature, size or 
location and, if appropriate, thei r interaction with other projects,  to have significant effects on 
the environment.21  
Annex II.12 read in conjunction with Annex I.7 of  Directive 85/337, in their original versions, 
also encompasses works to modify the infrastruc ture of an existing airport, without extension 
of the runway, where they may be regarded, in particular because of th eir nature, extent and 
characteristics, as a modification of the airpor t itself. This applies in particular to works 
designed to increase airport operati ons and air traffic significantly.22  
A national provision requ iring an EIA only for urban development projects  (Annex II.10.b) 
outside urban areas narrows the scope of the Directive.23 The argument that a project intended 
to be constructed on completely transformed land would not have significant environmental 
effects was rejected. When determ ining whether this type of project has significant effects, 
MS should take into account their nature, size or location, and all the scr eening criteria listed 
in Annex III.  
                                                 
18 E.g.C-121/03. 
19 C-66/06, §§62-63. 
20 C-87/02, §49. 
21 C-142/07. 
22 C-2/07. 
23 C-332/04. 
 
EN 15   EN Development consent   
An agreement between public authorities and a pr ivate undertaking is not a project within the 
meaning of the EIA Directive; "it is for the national court to determine, on the basis of the 
applicable national legislation, whether such  an agreement constitutes a development consent 
within the meaning of Artic le 1(2). It is necessary, in that context, to consider whether that 
consent forms part of a procedure carried out in several stages involving a principal decision and implementing decisions and whet her account is to be taken of the cumulative effect of 
several projects whose impact on the environment must be assessed globally".
24 
Where national law provides for a consent procedure comprising more than one stage, one 
involving a principal decision and the other in volving an implementing decision which cannot 
extend beyond the parameters set by the principa l decision, the effects which a project may 
have on the environment must be identified and assessed at the time of the procedure relating 
to the principal decision. It is only if those effects are not identifiabl e until the time of the 
procedure relating to the implem enting decision that the assessm ent should be carried out in 
the course of that procedure.25 An EIA should be carried out at a later stage where, in the case 
of grant of consent comprising more than one st age, it becomes apparent, in the course of the 
second stage, that the project is likely to have significan t effects on the environment. 
Retention permissions and "after-the-event regularisations" of unlawful operations 
While EC law cannot preclude the applicable na tional rules from allowing, in certain cases, 
the regularisation of operations or measures wh ich are unlawful in the light of EC law, "such 
a possibility should be subject to the conditions  that it does not offer the persons concerned 
the opportunity to circumvent the Community ru les or to dispense with applying them, and 
that it should remain the exception" .26  
Administrative fees 
The levying of an administrative fee for public participation in the consultation process is not 
in itself incompatible with the purpose of the EIA Directive27. "A fee cannot, however, be 
fixed at a level which would be such as to prev ent the directive from being fully effective, in 
accordance with the objective pursued by it" . This would be the case if, because of the 
amount, a fee were liable to obstruct the exercise  of the rights of participation conferred by 
Article 6 of the Directive.  
                                                 
24 C-2/07. 
25 C-201/02, §52; C-508/03; C-290/03. 
26 C-215/06, §§57-61. 
27 C-216/05, §§37-38 and 42-44. This ruling relates to  the Directive prior to the amendments introduced 
by Directive 2003/35/EC.