COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT Pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the amended Proposal for a European Parliament and Council Directive on the assessment of the effects of certain plans and programmes on the environment

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT Pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the amended Proposal for a European Parliament and Council Directive on the assessment of the effects of certain plans and programmes on the environment

1. Procedure

The Proposal (COM(1996)511 final - 1996/0304 (SYN) of 4 December 1996, OJ C 129 of 25 April 1997) was forwarded to the Council on 25 March 1997 in accordance with the co-operation procedure pursuant to Article 175 (1) of the EC Treaty.

The Economic and Social Committee gave its Opinion on 29 May 1997 (OJ C 287 of 22 September 1997).

The Committee of the Regions gave its Opinion on 20 November 1997 (OJ C 64 of 27 February 1998) and on the amended Commission Proposal on 15 September 1999 (OJ C 374 of 23 December 1999).

The European Parliament gave its Opinion at the First Reading on 20 October 1998 (OJ C 341 of 9 November 1998).

Following the Opinion of the European Parliament and pursuant to Article 250(2) of the EC Treaty the Commission adopted an Amended Proposal (COM(1999)73 final, OJ C 83 of 25 March 1999) on 18 February 1999.

The Council Common Position was adopted on 30 March 2000.

2. Purpose of the directive

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

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

Central elements of the future Directive include:

- The Common Position splits the scope of application into a mandatory and a non-mandatory part. For certain types of plans and programmes of a closed list of sectors and plans and programmes being identified as significantly affecting Natura-2000 sites an environmental assessment will be mandatory. For certain other plans and programmes not falling within the mandatory part it is up to the Member States to determine whether such plans and programmes are likely to have significant environmental effects and shall consequently carry out an environmental assessment.

- The integration principle is set out as one of the objectives of the future directive and referred to in the reasons to be given about the final decision (i.e. 'a statement summarising how environmental considerations have been integrated into the plans and programmes').

- The main provisions of the second pillar of the Aarhus Convention with regard to public participation in the preparation of plans/programmes relating to the environment are integrated into the future Directive.

- Provisions clarifying the relationship between the future directive and other Community instruments dealing with environmental assessments (e.g. habitats directive 92/43/EEC or the future water framework directive) are incorporated.

- Provisions clarifying that no duplication of assessment would be required when different planning levels in a hierarchy of plans are implied (e.g. existing relevant information could be used for the environmental report) are introduced in the future Directive.

- In the case of significant transboundary effects a provision involving a Member State likely to be significantly affected as well as the affected public and the environmental authorities concerned implements the key principles of the UNECE Espoo-Convention on transboundary project environmental impact assessment.

3. Commission comments

3.1. General comments

The Commission accepted fully, in principle or in part fifteen of the twenty-nine amendments proposed by the European Parliament in the First Reading (whilst voting, the 33 original amendments were merged to finally 29). They were incorporated in the amended Proposal COM(1999)73 final of 18 February 1999. All of these amendments of the European Parliament have been incorporated into the common position fully, in principle or in part.

The scope of application of the future Directive formed the key issue of the negotiations. In its amended proposal, the Commission, responding also to a request of the European Parliament, went for a rather broad scope for which an environmental assessment was mandatory for all plans and programmes in unlimited planning or programming areas or sectors when fulfilling certain conditions. Only as regards minor modifications and certain plans or programmes at local level Member States were given the possibility of determining themselves whether an environmental assessment was necessary or not. The result achieved in the Common Position is quite different. The Common Position clearly splits the scope of application into mandatory and non-mandatory parts resulting in a limitation of the plans and programmes covered in comparison to the amended Commission proposal. Additionally the definition of plans and programmes is more limited because further formal requirements were added and several exemptions for certain types of plans and programmes have been inserted into the Common Position which reduce the scope of application (see more details under 3.2.2 on article 3).

The cumulation of a more narrow definition of plans and programmes, of additional exemptions and of a differently balanced scope reduces the field of application significantly. Such a limited scope does not live up to the principles and objectives on environmental integration as launched at the Cardiff Council and confirmed by subsequent Councils the Commission made a statement to the minutes of the Council meeting of 13 December 1999, to the effect that because of the limitations inserted in the Common Position with regard to the scope of application in comparison to the Commission Proposal it could not support the Common Position (see under 5.)

3.2. Detailed Comments

3.2.1. Parliamentary amendments accepted by the Commission in its amended Proposal and incorporated fully, in principle or in part in the Common Position

All amendments from the European Parliament accepted by the Commission are incorporated fully, in principle or in part in the Common Position. Due to redrafting of recitals and articles during the negotiations, however, a certain rearranging and adapting of these amendments to the corresponding provisions of the Common Position was necessary.

Amendments 2 to 4, 7, 9, 11 and 14 relate to recitals and are incorporated in recitals 1, 2, 4, 7, 14 and 19. The recitals in general correspond closely to the content of the Articles of the Common Position.

Amendment 16 highlighting the importance of contributing to sustainable development is integrated in Article 1 as one of the objectives of the Common Position.

Amendments 17 and 19 are related to the scope of application of the Common Position which is now incorporated in Articles 2 and 3 of the Common Position.

Amendments 22 and 33 deal with the content, the types of information to be given and the quality of the environmental report. These are now included in Articles 5 and 11 and annex I of the Common Position.

Amendment 27 deals with details of public consultation and is incorporated in Article 6 of the Common Position.

Amendments 31 and 32 deal with timing of the evaluation report on the application and effectiveness of the Directive and with exchange of information requirements. These are now included in Articles 11 and 12 of the Common Position.

3.2.2. Changes made by the Council to the amended Proposal

Recitals

The order of some recitals has been changed so as to reflect the order of the corresponding Articles, some recitals have been merged and new recitals have been introduced to reflect new requirements in the text.

Article 1 (Objectives)

To take account of latest developments highlighting the importance of integrating environmental considerations into decision-making, the integration principle was added to the objectives envisaged by the future Directive.

Article 2 (Definitions)

The main change in Article 2 relates to the definition of "plans and programmes". In the Commission Proposal the definition of plans and programmes encompassed at the same time their scope of application. In the Common Position these two elements have been split into two Articles (scope part explained in Article 3). Some additional restrictive elements have been added to the definition of plans and programmes dealing with formal requirements (e.g. plans and programmes be required by legislative, regulatory or administrative provisions). Other elements of the definition's article which were included in the Commission Proposal were dropped and a definition of "the public" was added because of changed requirements in the text.

Article 3 (Scope)

In its amended Proposal the Commission responding also to the European Parliaments request went for a rather broad scope covering all plans and programmes in unlimited planning or programming areas or sectors when fulfilling certain conditions. Only as regards minor modifications and certain plans or programmes at local level Member States were given the possibility of determining themselves whether an environmental assessment was necessary or not. The result achieved in the Common Position is quite different. The Common Position clearly splits the scope of application into mandatory and non-mandatory parts which limits the coverage of plans and programmes in comparison to the amended Commission proposal.

The mandatory part covers certain plans and programmes prepared for a limited number of sectors and areas which set the framework for future development consents of projects listed in Directive 85/337/EEC and certain plans and programmes which are being identified as having likely significant environmental impact on Natura-2000 sites according to Article 6 or 7 of the habitats directive 92/43/EEC. Compared to this approach the amended Commission proposal covered plans and programmes in all planning or programming areas which set the framework for future development consents of projects without restricting those to Directive 85/337/EEC.

For certain plans and programmes at local level and minor modifications, as well as for other plans and programmes setting the framework for future development consents of projects, but not falling within the mandatory part, it is up to the Member States to determine whether such plans and programmes are likely to have significant environmental effects. This decision has to be arrived at on the basis of relevant selection criteria included in a new annex to the Common Position and by consulting environmental authorities (so-called 'screening'). A provision is included to ensure that the decisions arrived at are transparent for the public. The amended Commission Proposal did not provide for a general 'screening' possibility nor included separate 'screening' criteria in an annex. It left some flexibility as regards minor modifications and certain plans and programmes at local level but apart from these exceptions the amended Proposal would have applied to all plans and programmes fulfilling its conditions.

Additionally, several exemptions from the future Directive were added to this article (such as national defence or civil emergency plans, financial or budget plans, plans of the current Structural Funds programming period). There is no justification for legally exempting the EU Structural Funds from the scope of this directive. However, the Commission stated in the explanatory memorandum to its proposal for the directive in 1996 that its provisions 'will mean that the new Directive will not apply to plans submitted to the Commission under the Structural Funds Regulations.' Moreover, article 41 of Regulation 1260/99 already provides for a thorough ex-ante environmental impact assessment . The Commission intends to undertake a thorough study of the matter within the framework of the report provided for in Article 11.4 of the directive, before reaching a definitive view as to whether, for the next programming period, Structural Funds programming documents should be included within the scope of the Directive.

Article 4 (General obligations)

Several elements concerning procedural matters with a view to limiting administrative burden for the Member States were introduced into this article.

Article 5 (Environmental Report)

The main change to this article makes explicit that the environment report shall not only deal with the plan or programme but also with its reasonable alternatives. Provisions ensure, however, that when preparing the environmental report, duplication of assessment can be avoided by focussing on information that may reasonably be required whilst taking account of certain additional elements. The types of information to be included in the environment report are listed in annex I to the Common Position.

However, a useful precision concerning the detailed elements of the environment (e.g. human beings, fauna, flora, soil, water etc) which shall be dealt with when doing the environmental assessment has been dropped from the Common Position.

Article 6 (Consultations)

Article 6 deals with consultation requirements of the public and the environmental authorities concerned. These consultation requirements are aligned with and transpose obligations coming from the second pillar of the Aarhus-Convention on access to information, public participation and access to justice.

Article 7 (Transboundary consultations)

Apart from requirements concerning transboundary consultations between Member States already introduced by the Commission Proposal the Common Position adds the involvement of the public and environmental authorities of the Member State likely to be significantly affected by transboundary environmental effects of the plan or programme. This provision takes on board some basic principles of the Espoo-Convention on transboundary project environmental assessment and applies them to certain plans and programmes.

Article 8 (Decision making)

This article basically remained the same with some adaptations aligning it to the changes done in previous articles.

Article 9 (Information on the decision)

This article was aligned with changes done in previous articles and thus includes some additional important elements of information to be given to the public and other stakeholders consulted during the procedure (e.g. 'statement summarising how environmental considerations have been integrated', 'the reasons for choosing the plan or programme as adopted in the light of other reasonable alternatives dealt with').

Article 10 (Relationship with other Community legislation)

In order to clarify the relationship of the future Directive with other Community legislation dealing with environmental assessments and to avoid duplication of assessment a provision was introduced into the Common Position providing for the possibility of having joint or co-ordinated procedures fulfilling the requirements of the relevant Community legislation. Such provision is an improvement since its intention is to limit the administrative burden.

The provision concerning judicial review in relation to plans and programmes adopted by Parliament has been deleted since it was likely to create a distorted application of the future Directive.

Article 11 (Information, report and review)

Some further important elements dealing with the quality of the environmental report, items to be considered in the evaluation report of the directive, especially the possibility of extending the scope of the Directive, and a provision asking the Commission to clarify the relationship between the future Directive and the Structural Funds Regulations were added to this article.

Article 12 (Implementation of the Directive)

The only significant change made in this article was that the period for transposing the future Directive into national legislation was extended from two to three years, which is average for directives of this type.

Article 13 (Entry into force)

Remained unchanged.

Article 14 (Addressees)

Remained unchanged.

Annex I (Information referred to in Article 5(1))

In comparison to the amended Commission Proposal annex I which is linked to Article 5 (environmental report) of the Common Position remained unchanged in substance but improved in terms of structure and clarity. Another improvement is the addition of the requirement to describe environmental monitoring measures envisaged.

Annex II (Criteria for determining the likely significance of effects referred to in Article 3 (5))

This annex did not form part of the amended Commission Proposal since it did not provide for a system according to which Member States themselves could identify which plans and programmes should be subject to an environmental assessment. Since the Common Position makes a distinction between plans and programmes for which an environmental assessment is mandatory from the outset and those for which an environmental assessment is mandatory only after it has been determined they are likely to have significant environmental effects, a list of selection criteria was added to the Common Position in order to give Member States relevant elements for making this determination.

4. Conclusion

In general the changes introduced by the Council clarify and improve the text of the proposed Directive. As regards the scope of application of the future Directive, however, the Commission is of the opinion that it is too limited in comparison to the approach pursued in the Commission Proposal.

5. Statement by the Commission

"The Council's common position on the proposal for a Directive on the assessment of the effects of certain plans and programmes on the environment, in limiting the scope of application, contrasts sharply with the Commission's original proposal. Such a limited scope does not live up to the principles and objectives on environmental integration as launched at the Cardiff Council and confirmed by subsequent Councils, especially the Helsinki Council, nor with the broad scope of application requested by the European Parliament at the first reading. Moreover, it should be stressed that there is no justification for legally exempting the EU Structural Funds from the scope of this Directive. Therefore, the Commission cannot support the common position."