Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL PROVIDING FOR PUBLIC PARTICIPATION IN RESPECT OF THE DRAWING UP OF CERTAIN PLANS AND PROGRAMMES RELATING TO THE ENVIRONMENT AND AMENDING COUNCIL DIRECTIVES 85/337/EEC AND 96/61/EC

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. JUSTIFICATION FOR THE PROPOSAL

1.1 General considerations

In all the Member States public authorities and other bodies frequently take decisions which may have a significant effect on the environment as well as on personal health and well being. Community legislation in the field of the environment includes provisions which relate to this type of decision-making. Such legislation includes Council Directive 85/337/EEC [1] on the assessment of the effects of certain public and private projects on the environment ("the EIA Directive") and Council Directive 96/61/EC [2] on integrated pollution prevention and control ("the IPPC Directive").

[1] OJ L 175 , 5.7.1985, p. 40, amended by Council Directive 97/11/EC (OJ L 73, 14.3.1997, p. 5).

[2] OJ L 257, 10.10.1996, p. 26.

It is becoming clear that effective public participation in environmental decision-making has several benefits. It enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to the decisions in question. This increases the accountability and transparency of the decision-making process and contributes to public awareness of environmental issues.

The Commission accordingly considers that public participation in environmental decision-making should be encouraged. In addition to the participation of individuals, participation by associations, organisations and groups of the public in general or of sections of the public should be fostered, in particular, non-governmental organisations which promote environmental protection.

The importance of fostering increased public participation in environmental decision-making was recognised at the international level in the UN/ECE Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters ("the Aarhus Convention") which the Community signed on 25 June 1998 and which has also been signed by all the Member States. The Community intends to ratify the Convention. Before it does so, in accordance with its usual practice, relevant provisions of Community law should be properly aligned with the provisions of the Convention. This proposal for a single directive amending or modifying a number of existing Directives will assist that process.

1.2 Environmental objectives to be achieved

Article 2 of the EC Treaty provides that the Community shall have as one of its tasks the promotion of a high level of protection and improvement of the quality of the environment. For this purpose, the Community is required to include a policy in the field of the environment (Article 3(1)(l) of the EC Treaty). This policy should contribute to the pursuit of the following objectives:

- preserving, protecting and improving the quality of the environment;

- protecting human health;

- prudent and rational utilisation of natural resources;

- promoting measures at international level to deal with regional or world-wide environmental problems.

Public participation in environmental decision-making helps to achieve these aims. It improves the quality of decisions and makes the final results more acceptable to public opinion. It also contributes to a raising of public awareness and interest in environmental matters.

Further, given the transboundary nature of many environmental decisions, it is particularly desirable that there should be a harmonised approach to the procedures for public participation throughout the Community so that the public in the different Member States are not disadvantaged.

By aligning EC law to the relevant provisions of the Aarhus Convention, the proposal is part of the process that should lead to the Community's ratification of that Convention.

2. CHOICE AND JUSTIFICATION OF THE LEGAL BASE

As highlighted above, the proposal aims to further the objectives of the Community environmental policy defined in Article 174 of the EC Treaty. Therefore, the proposal is based on Article 175(1) (co-decision procedure) of the Treaty which is the specific legal base for the Community's policy in the field of the environment.

3. SUBSIDIARITY AND PROPORTIONALITY

3.1 Objectives of the proposed action in relation to the obligations of the Community

Under Article 2 of the EC Treaty, the Community has as one of its tasks the promotion of a high level of protection and improvement of the quality of the environment. To this end, since the mid 1970s, the Community has developed a considerable acquis in the field of the environment.

Community environmental law concerns both the Member States and the Commission. On the one hand, the implementation and enforcement of Community environmental legislation is the responsibility of the Member States. On the other hand, the task of monitoring the transposition, conformity and effective application of that legislation falls to the Commission using, in particular, the powers under Articles 211, 226 and 228 of the EC Treaty. Wider public participation in environmental decision-making contributes to an increase in public awareness of environmental issues and thus improves the protection and the quality of the environment throughout the Community.

In addition to this, the Community in June 1998 signed the Aarhus Convention (which has now also been signed by all the Member States). By signing the Convention, the Community demonstrated its commitment to furthering the effectiveness of its environmental policy, notably through increased public awareness and involvement in decision-making. The ratification of the Aarhus Convention is a political priority for the Commission.

The proposal aims to take forward the alignment of Community law to the provisions of the Aarhus Convention dealing with public participation. It will enable the Community to comply with its international obligations and pave the way towards the ratification of the Convention by the European Community.

3.2 What is the Community dimension of the problem-

The Community has developed a considerable amount of legislation in the environmental field to achieve the objectives in the field of environmental policy laid down in the EC Treaty. The EIA Directive and, to a lesser extent, the IPPC Directive include provisions for the public to be informed and consulted before relevant decisions are taken. These provisions are useful starting-points but they need to be improved. Provision for public participation should also be introduced into other directives in the environmental sphere.

Public concern for the protection of the environment is growing and citizens rightly wish to have a say in important decisions which affect their lives and those of future generations. Environmental problems have very often a transboundary dimension. Citizens, NGOs and the public in general should be able to participate in environmental decision-making on the same basic terms and conditions throughout the Community. Community action is therefore needed in order to achieve this objective.

3.3 What is the most effective solution, comparing the means of Member States and the Community-

Action at Community level is required to ensure that the basic procedures for public participation in environmental decision-making are consistent in all Member States so that the benefits of such participation are available across the Community as well as in cases with a transboundary dimension. Furthermore, Community action is needed in order to enable Community ratification of the Aarhus Convention.

The proposal sets out the minimum required for effective public participation in fulfilment of the objectives laid down by the EC Treaty in the field of the environment and leaves the practical detailed arrangements to be determined by the Member States, thereby honouring the subsidiarity principle.

3.4 What would be the cost of inaction by the Community-

Inaction by the Community would mean that the Community would not be in a position to ratify the Aarhus Convention and would thus not be in a position to comply with its international obligations.

3.5 Which instruments does the Community have available in order to meet the objectives-

The alignment of existing Community legislation with Article 6 of the Aarhus Convention requires the amendment of the EIA and IPPC Directives. (Consideration was also given as to whether it was necessary to provide for public participation in respect of certain authorisations given under Council Directive 91/271/EEC [3] concerning urban waste water treatment, given that there is no specific such procedure contained therein at present. It was decided that as all such authorisations falling within Article 6(1)(a) of the Convention would be covered by an EIA assessment in any event, it was not necessary to make an amendment to this Directive).

[3] OJ L 135, 30.5.1991 p. 40, amended by Commission Directive 98/15/EC (OJ L 67, 7.3.1998, p. 29).

For Article 7 of the Convention, it is necessary to make provision for public participation in the preparation and review of certain plans and programmes required to be drawn up under a number of existing Directives. The proposed directive on the assessment of the effects of certain plans and programmes on the environment ("the SEA Proposal") and the recently adopted European Parliament and Council Directive establishing a framework for Community action in the field of water policy ("the Water Framework Directive") [4] already include provisions which are consistent with Article 7 and will cover a number of plans and programmes. For other plans and programmes which clearly relate to the environment, it is necessary to make provision for public participation.

[4] Directive of the European Parliament and of the Council establishing a framework for Community action in the field of water policy (2000/60/EC). Not yet published in OJ.

In the light of the above, the objectives can only be met through one or more directives. It is considered to be more practical and efficient, in terms of time and resources, for all the provisions needed to align existing legislation with Articles 6 and 7 of the Convention to be combined in a single "package" directive.

3.6 Proportionality

At the time that provisions for a degree of public participation were included in the EIA and IPPC Directives, Community action in the form of a legislative act was considered proportionate to the objective pursued. Those provisions set out minimum requirements leaving the Member States to define the detailed arrangements. The present provisions ought to be developed and updated in the light of the Aarhus Convention but the basic approach should be maintained.

4. COSTS OF IMPLEMENTING THE PROPOSAL FOR MEMBER STATES

Since all Member States and the Community have already signed the Convention and the Community intends to ratify the Convention, the proposal does not create new costs for Member States over and above those that would stem from implementing in national laws the provisions of the Convention.

The proposal sets out the general requirements stemming from the Aarhus Convention but still leaves Member States free to tailor the implementation according to their specific situations. This is efficient from a subsidiarity point of view too.

Under such circumstances, a comprehensive assessment of the costs of implementation was not attempted. However there will be costs of implementation associated with disclosing information and outreach activities, as well with the organisation and analysis of the public participation inputs and the possible generation of alternatives to the initial regulatory proposals. An effective and efficient management of public participation in environmental decision-making will also require an analysis of the existing flows of information and decision-making with a view to determining how best to adapt and/or change them. This will not be free either. But the benefits of public participation in environmental decision-making can also be appreciable, as it should permit a finer identification of the needs policy should address.

Assessments of existing provisions enabling public participation in environmental decision-making [5] point to a number of benefits, including discouraging poor proposals, reducing the amount of documentation down the road, supporting innovation, helping managers make better decisions, building trust in surrounding communities, avoiding or resolving costly conflicts and reducing duplication of effort. Ultimately, better decisions - decisions that meet the needs of the community while minimising adverse impacts on the environment - require the integrated perspective that is only achieved by involving the community at large.

[5] (The US) National Environmental Policy Act - A Study of Its Effectiveness after Twenty-Five Years, Council on Environmental Quality, Executive Office of the President, January 1997, see http://ceq.eh.doe.gov/nepa/nepa25fn.pdf.

However, the assessments also stress that for the benefits to materialise it is important that regulatory agencies systematically identify and reach out to those who will be most affected by a proposal, gather information and ideas from them and respond to the input by actually modifying or adding alternatives. Costs and delays will be avoided, and benefits maximised, to the extent that regulatory agencies proactively consult the public before making decisions and adapt their decision-making procedures to the participation of the public, e.g. by producing short and clear documents for public consultation purposes and introducing adapted training schemes for agency officials. The effectiveness and efficiency of public participation depends heavily on whether the related procedures are integrated in the strategic planning of the agencies concerned (as opposed to being added on as an end-of-pipe procedure).

Experience with public participation also suggests that monitoring the effectiveness of existing provisions increases the chances that they will not only be effectively used, but also improved over time. Therefore, Member States would do well to collect systematically information on, for example, the impact of public participation procedures on the final outcome of permitting procedures, plans and programmes and on the frequency and actual costs of legal procedures challenging the legality of acts or omissions which are subject to the public participation provisions being proposed.

5. RESULTS OF CONSULTATIONS WITH INTERESTED PARTIES

The Commission services sent a Working Paper setting out their main proposals for aligning EC legislation to the provisions of the second pillar of the Convention in June 2000. Consultation meetings were held on the basis of this paper with NGOs and industry representatives on 22 June 2000 and with officials from the Member States on 10 July 2000. In general, the Working Paper was well received and the Commission has taken account of the comments made, where appropriate, in the proposal.

The following NGOs attended the Consultation meeting:

Bird Life International

EEB (European Environmental Bureau)

World Wildlife Fund

Additionally, EEB made written comments.

The following industry representatives attended the Consultation meeting:

CEFIC (European Chemical Industry Council)

EUREAU (European Association for the Water Sector)

Eurocommerce

European Property Federation

German Mining Industry

Additionally, CEFIC, EUREAU, and FEPORT (Federation of European Private Port Operators) made written comments.

In addition to attending the meeting of Member States' representatives on 10 July, Austria, Germany the Netherlands and the United Kingdom, made written comments.

6. DETAILED EXPLANATION OF THE PROPOSAL

6.1 Public participation concerning plans and programmes (Article 1)

6.1.1 Objective

Article 7 of the Aarhus Convention makes provision in respect of public participation concerning plans, programmes and policies relating to the environment. With a view to deciding the provision required to align Community environmental legislation with this Article 7, the Commission reviewed existing relevant Community legislation and had regard to the views of the Member States expressed at the first meeting of the signatories of the Convention (Moldova, April 1999) as to the intentions of the Parties, in particular, in respect of Articles 6 and 7 of the Convention. It also took into account the provisions for public participation in the SEA proposal and the recently adopted Water Framework Directive.

The Commission considers that the exhortatory reference at the end of Article 7 to public participation in the preparation of policies is "soft law" and that it does not require any Community legislation.

Therefore, to align existing legislation with Article 7, it proposes that a public participation procedure should be provided for in relation to certain directives which provide for the drawing up of plans or programmes which clearly relate to the environment. Further consideration is being given to the question whether other Community legislation needs to be amended and, if so, the best means of doing so.

6.1.2 Proposal

The Proposal makes provision for a public participation procedure in respect of plans or programmes required to be drawn up under the following provisions of Community legislation:

(a) Article 7(1) of Council Directive 75/442/EEC on waste [6].

[6] OJ L 194, 25.7.1975, p. 39. The Directive has been amended by Council Directive 91/156/EEC (OJ L 78, 18.3.91, p. 32).

(b) Article 6 of Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances [7].

[7] OJ L 78, 26.3.1991, p. 38. The Directive has been amended by Directive 98/101/EC (OJ L 1, 5.1.1999, p. 1) and supplemented by Directive 93/86/EEC (OJ L 264, 23.10.1993, p. 51).

(c) Article 5 of Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources. [8]

[8] OJ L 375, 31.12.1991, p. 1.

(d) Article 6(1) of Council Directive 91/689/EEC on hazardous waste [9].

[9] OJ L 377, 31.12.1991, p. 20. The Directive has been amended by Council Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28).

(e) Article 14 of Council Directive 94/62/EC on packaging and packaging waste [10].

[10] OJ L 365, 31.12.1994, p. 10.

(f) Article 8(3) of Council Directive 96/62/EC on ambient air quality assessment and management [11] (including plans referred to in Articles 3(4), 5(4) and 5(5) of Council Directive 1999/30/EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air [12]).

[11] OJ L 296, 21.11.96, p. 55.

[12] OJ L 163, 29.6.1999, p. 41.

(g) Article 14 of Council Directive 99/31/EC on the landfill of waste [13].

[13] OJ L 182, 16.7.1999, p. 1.

The provision proposed requires Member States to take the necessary measures to ensure that the public are given early and effective opportunities to participate in the preparation (and review) of the plans and programmes listed above. For this purpose, "the public" has the same meaning as in Article 2(4) of the Aarhus Convention.

To that end, Member States are required to ensure that:

(a) the public are informed (by public notices or other appropriate means) about any proposals for such plans or programmes and that relevant information about such proposals is made available to the public

(b) the public are entitled to express comments and opinions before decisions on the plans and programmes are made;

(c) in making those decisions, due account is required to be taken of the results of the public participation.

The detailed arrangements for such participation including identification of the public who may participate are left to be determined by the Member States taking into account the aims of the Proposal, namely to ensure a wide participation by the public, including NGOs promoting environmental protection, having regard to the particular circumstances of the case. In view of their importance for effective participation, there is a specific requirement for reasonable time-frames to be provided allowing sufficient time for each of the different stages of the required public participation.

6.2 Amendment of EIA Directive (Article 2)

6.2.1 Objective

Article 6 of the Aarhus Convention makes provision in respect of public participation in decisions on the specific activities listed in Annex I to the Convention and on activities not so listed which may have a significant effect on the environment. The list of activities in the Convention's Annex I was largely based on those listed in Annex I to the EIA Directive and Annex I to the IPPC Directive. To prepare for Community ratification of the Convention, those Directives should be amended to ensure that they are fully compatible with Article 6.

The EIA Directive provides for projects likely to have significant effects on the environment (and defined in Article 4 of the Directive) to be made subject to a requirement for development consent (as defined in Article 1 of the Directive) and an assessment with regard to their effects. This "environmental impact assessment" is detailed in Articles 5 to 10 of the Directive. Article 2(2) of the Directive provides that the environmental impact assessment may be integrated into existing consent procedures or into procedures specially established to comply with the Directive.

The proposal aims to concentrate on the essential aspects of the Convention and so to extend or secure rights of public participation in certain cases of environmental decision-making. The nature of the proposed directive, and the requirements of subsidiarity, suggest that it is not necessary to include all the detail in the Convention's provisions, some of which may have been intended to provide examples of best practice or to illustrate the differences between the legal systems of the Convention Parties.

6.2.2 Definitions (Article 2(1))

For the purposes of the later substantive provisions, the definition in Article 2(4) of the Aarhus Convention of "the public" is inserted into the EIA Directive. The definition in Article 2(5) of the Convention of the "public concerned" is also inserted, suitably adapted to fit the purposes of this particular Directive. For that reason, "the public concerned" is here defined as the public affected or likely to be affected by, or having an interest in, the development consent procedure.

6.2.3 Public participation (Article 2(2) and (3))

Article 6 of the EIA Directive already makes some provision for consulting and informing the public. Article 8 of the Directive deals with that aspect of participation which concerns taking due account of the outcome of consultations and Article 9 deals with information about the decision when finally taken.

It is necessary to align the Directive's provisions more closely with those of Article 6 of the Convention. Accordingly the Proposal replaces paragraphs (2) and (3) of Article 6 of the Directive with new paragraphs derived from Article 6 of the Convention. The proposed new Article 6(2) of the Directive provides that Member States should be required to take the necessary measures to ensure that the public concerned are given early and effective opportunities to participate in the development consent procedure. While Member States, in transposing this requirement, will be able to adopt wide-ranging and innovative measures, the proposal itself indicates the minimum requirements.

The new Article 6(3) of the Directive essentially requires that the public should be informed of the following matters (all of which are drawn from Article 6(2) of the Aarhus Convention):

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment and, where relevant, the fact that there is a transboundary environmental impact assessment;

(c) details of the competent authorities responsible for taking the decision or from which relevant information can be obtained or to which comments (or questions) can be submitted);

(d) the nature of possible decisions and, where there is one, the draft decision;

(e) any information gathered pursuant to Article 5 of the EIA Directive;

(f) the main reports and advice issued to the competent authority or authorities during the development consent procedure, including any opinions on the request expressed by any public authorities or bodies consulted under Article 6(1) of the Directive;

(g) an indication of the times and places where and means by which the relevant information it will be made available;

(h) details of the arrangements for public participation and consultation made in the national legislation.

The public in general should be notified of these matters so that individuals and organisations have the opportunity to identify themselves as being affected or having an interest in the development consent procedure in question. Nonetheless the detailed arrangements to be determined by the Member States will be expected to have a role in defining the public to be targeted.

It is proposed that the public should be informed of the above matters (whether by public notices or other appropriate means) early in the development consent procedure and, at the latest, as soon as information can be provided. This is intended to recognise that not all the information may be available to the competent authority at the very beginning of the procedure.

Some members of the public may be satisfied with the information aspect of participation. They will be told what is happening and can consider how a proposal will affect them personally or the environment in general. They may wish to ask more detailed questions or may take no further action. Nonetheless it is a vital aspect of participation that the public concerned (whether individuals or groups, including environmental protection groups) should have proper opportunities to express comments and opinions before a decision on a request for development consent is taken. This aspect is included as a requirement in a new Article 6(4) of the Directive.

While the proposed amendments to Article 6 of the EIA Directive set out the minimum needed to ensure an effective public participation, the detailed arrangements for informing and consulting the public should be left to be determined by the Member States (a new Article 6(5)). Some guidance as to how this may be done is set out in examples, such as giving information by bill posting or publication in local newspapers; ensuring consultation by the receipt of written submissions or by the holding of a public enquiry. However, in view of its importance for effective participation, reasonable time-frames must be provided allowing sufficient time for each of the different stages of participation provided for in the Proposal.

6.2.4 Transboundary environmental impact assessment (Article 2(3) to (6))

A project for which development consent is required may have significant effects on the environment in Member States other than the one in whose territory it is intended to be carried out. It is clearly desirable that those other Member States should have the opportunity to participate in the procedure leading to the decision on a project and, in particular, that the public concerned in those other Member States should have the opportunity to express their opinions. Article 7 of the EIA Directive already makes some provision for this but that Article needs to be amended to reflect the changes elsewhere in the EIA Directive which implement Article 6 of the Aarhus Convention. The aim of these amendments is to increase the effectiveness of the transboundary public participation.

Article 7 at present provides for transboundary participation in the Environmental Impact Assessment procedure. The environmental impact assessment forms a very significant part of the development consent procedure but it is only a part of that procedure. If the EIA Directive is amended as proposed, that procedure will also include enhanced arrangements for public participation and consultation. For the purposes of transboundary participation, it is considered more appropriate to focus on the development consent procedure taken as a whole. Accordingly, through Article 2(3)(a) of the Proposal, the references in Article 7(1) and (2) of the EIA Directive to "the Environmental Impact Assessment procedure" are replaced by references to the development consent procedure.

Article 2(3)(b) of the Proposal changes the description of information which the Member State in whose territory the project is intended to be carried out should send to any Member State likely to be significantly affected by the project. In place of the present description in Article 7(2) of the EIA Directive, all information required to be given or made available pursuant to Article 6 of the Directive as proposed to be amended should be sent.

Article 2(3)(c) of the Proposal amends Article 7(5) of the EIA Directive to require the Member States in a transboundary case to make detailed arrangements for implementing Article 7. This would be a prelude to provision requiring those arrangements to be such as will enable the public concerned in the territory of the affected Member State to participate effectively in the development consent procedure for the project.

It is considered that Article 9 of the EIA Directive is already adequately aligned with Article 6(9) of the Aarhus Convention save in transboundary cases. For such cases, Article 2(4) of the Proposal amends Article 9 of the Directive to require a Member State consulted pursuant to Article 7 of the Directive to take the measures necessary to ensure that information about the final decision is made available to the public concerned in its own territory.

6.2.5 Access to justice (Article 2(5))

Article 9(2) and (4) of the Convention require the Parties to ensure that the public concerned has access to legal procedures which enable the public to challenge the legality of acts or omissions which are subject to the public participation provisions of Article 6 of the Convention. Such procedures should be expeditious and not prohibitively expensive. To complete the alignment of the EIA Directive to the Convention, and to give teeth to the public participation rights conferred by the Proposal, it is necessary to have provision which reflects Article 9(2) and (4) of the Convention.

Article 2(5) of the Proposal, therefore, inserts a new Article 10a into the EIA Directive by which Member States are required to ensure that, in accordance with the relevant national legal system, the public concerned has access to a review procedure before a court of law or another body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the EIA Directive. Such procedures should be expeditious and not prohibitively expensive.

As the definition of "public concerned" includes non-governmental organisations promoting environmental protection, Member States should adopt measures to ensure that their national legal systems enable these organisations to have access to justice.

6.2.6 Projects subject to environmental impact assessment (Article 2(6))

Article 4(1) of the EIA Directive introduces Annex I which lists the projects for which an environmental impact assessment is mandatory. Article 1(6) of the Proposal amends that Annex I to align it with paragraph 22 of Annex I to the Aarhus Convention. The consequence is that any change to or extension of any of the projects listed in Annex I to the EIA Directive would require an environmental impact assessment where the change or extension in itself meets the appropriate criteria or thresholds set out in the preceding paragraphs of that Annex.

6.3. Amendment of IPPC Directive (Article 3)

6.3.1 Objective

With the aim of reducing or preventing pollution, the IPPC Directive introduces procedures for permits for installations in which one or more activities listed in Annex I to the Directive are carried out. Limited provision for informing and consulting the public is made at Article 15 of the Directive but, to align the Directive more fully with Article 6 of the Aarhus Convention, amendments should be made.

6.3.2 Definitions (Article 3(1))

Substantial changes in the operation of an installation also require a permit under the IPPC Directive. The expressions "change in operation" and "substantial change" are defined in Article 2(10) of the Directive. In order to align the Directive's provisions with paragraph 22 of Annex I to the Aarhus Convention, Article 3(1)(a) of the Proposal amends the definitions in Article 2(10) of the IPPC Directive by providing that any change to or extension of an operation, where such a change or extension in itself meets the appropriate criteria or thresholds set out in Annex I to the Directive, shall be deemed to be substantial. In such a case a permit will be required which will be subject to public participation. It should be emphasised that other changes or extensions might also be considered "substantial" in terms of the existing definition.

For the purposes of the later substantive provisions, the definition in Article 2(4) of the Aarhus Convention of "the public" is inserted into Article 2 of the IPPC Directive. The definition in Article 2(5) of the Convention of the "public concerned" is also inserted, suitably adapted to fit the purposes of this particular Directive. For that reason, "the public concerned" is here defined as the public affected or likely to be affected by, or having an interest in, the taking of a decision on the issuing or the updating of a permit or permit conditions.

6.3.3 Applications for permits (Article 3(2))

Article 6(1) of the IPPC Directive requires Member States to ensure that an application for a permit includes a description of various matters. To reflect Article 6(6)(e) of the Aarhus Convention it is proposed to amend Article 6(1) of the Directive to require a permit application to include an outline of the main alternatives studied by the applicant. It should be emphasised that this refers only to alternatives actually studied by the applicant.

6.3.4 Public participation (Article 3(3) and (6))

Although Article 15 of the IPPC Directive makes some provision for access to information and public participation in the permit procedure, that provision is not wholly aligned to the requirements of Article 6 of the Convention. The Proposal therefore amends Article 15 to make it compatible with the Convention. Apart from a small number of minor changes to respect the specific terminology of the IPPC Directive, the provisions for public participation to be introduced into that Directive will be very similar to the provisions proposed for the EIA Directive. Article 3(3) of the Proposal replaces Article 15(1) of the IPPC Directive with provision requiring the Member States to take the necessary measures to ensure that the public concerned are given early and effective opportunities to participate in the procedure for the taking of decisions on permits and permit conditions. In order to make a clear distinction between public participation and the information to be given to the public on the outcome of the permitting procedure, the provisions of the second part of Article 15(1) will be transferred to a new paragraph 5 - see paragraph 6.3.5 below. It also introduces a new Annex V in which detailed provisions for public participation will be set out. The new Annex is inserted by Article 3(6) of the Proposal.

The detailed provisions in the new Annex V follow the pattern described for the EIA Directive in Paragraph 6.2.3 above but with the following differences.

It is provided that the public should be informed of the application for a permit or, as the case may be, the proposal for the updating of a permit or of permit conditions. The public should clearly only be informed about national or transboundary environmental impact assessments if it is relevant in a particular case; but it is important that the public should be informed if a decision is subject to transboundary consultations in accordance with Article 17 of the IPPC Directive. This will assist co-operation or co-ordination between members of the public concerned, including environmental NGOs, in the different Member States concerned.

The rest of the public participation provision is similar to that made in respect of the EIA Directive.

6.3.5 Post-decision procedures (Article 3(3)(b))

To align the IPPC Directive with Article 6(9) of the Aarhus Convention, Article 3(3)(b) of the Proposal adds a new paragraph 5 to Article 15 of the IPPC Directive to provide that, when a decision has been taken, the competent authority should have to inform the public and make the following information available to the public:

(a) the content of the decision (including a copy of the permit and of any conditions and any subsequent updates); and

(b) the reasons and considerations on which the decision is based.

6.3.6 Access to justice (Article (3(4))

To align the IPPC Directive with Article 9(2) and (4) of the Aarhus Convention, Article 3(4) of the Proposal inserts a new Article 15a in the Directive to provide for access by the public concerned to a review procedure which is similar to that described in Paragraph 6.2.5 above.

6.3.7 Transboundary consultations (Article 3(5))

The operation of an installation for which a permit is required under the IPPC Directive may have significant negative effects on the environment in Member States other than the one in whose territory it is intended to be carried out. Article 17 of that Directive provides for transboundary consultations in such cases.

Article 17 of the Directive is amended to reflect the changes proposed for Article 15 described in Paragraph 6.3.4 above. In Article 17(1) the reference to information provided pursuant to Article 6 of the IPPC Directive is replaced by a reference to any information required to be given or made available pursuant to the new Annex V. This will result in more information being forwarded to the Member State which is being consulted.

Article 17 is also amended to provide that the results of any transboundary consultations must be taken into consideration when a competent authority reaches a decision on an application. Finally Article 17 is amended to provide that a Member State which has been consulted is entitled to the post-decision information which a competent authority is required to give under the proposed new Article 15(5) of the Directive. That Member State is required to give it to its own nationals.

6.4 Supplementary provisions (Articles 4 to 6)

The proposal requires member states to take all necessary measures to comply with the directive no later than [date to be specified].

2000/0331 (COD)

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL PROVIDING FOR PUBLIC PARTICIPATION IN RESPECT OF THE DRAWING UP OF CERTAIN PLANS AND PROGRAMMES RELATING TO THE ENVIRONMENT AND AMENDING COUNCIL DIRECTIVES 85/337/EEC AND 96/61/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal of the Commission [14],

[14] OJ

Having regard to the Opinion of the Economic and Social Committee [15],

[15] OJ

Having regard to the Opinion of the Committee of the Regions [16],

[16] OJ

Acting in accordance with the procedure laid down in Article 251 of the Treaty [17],

[17] OJ

Whereas:

(1) Community legislation in the field of the environment aims to contribute to preserving, protecting and improving the quality of the environment and protecting human health.

(2) Community environmental legislation includes provisions for public authorities and other bodies to take decisions which may have a significant effect on the environment as well as on personal health and well-being.

(3) Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues.

(4) Participation, including participation by associations, organisations and groups, in particular non-governmental organisations promoting environmental protection, should accordingly be fostered.

(5) On 25 June 1998 the Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ("the Aarhus Convention"). Community law should be properly aligned with that Convention with a view to its ratification by the Community.

(6) Among the objectives of the Convention is the desire to guarantee rights of public participation in certain kinds of environmental decision-making in order to contribute to the protection of the right to live in an environment which is adequate to personal health and well-being.

(7) Article 6 of the Aarhus Convention provides for public participation in decisions on the specific activities listed in Annex I to the Convention and on activities not so listed which may have a significant effect on the environment.

(8) Article 7 of the Aarhus Convention provides for public participation concerning plans, programmes and policies relating to the environment.

(9) Article 9(2) and (4) of the Aarhus Convention provides for access to judicial or other procedures for challenging the substantive or procedural legality of acts or omissions subject to the public participation provisions of Article 6 of the Convention.

(10) Provision should be made in respect of certain directives in the environmental area which require Member States to produce plans and programmes relating to the environment, so as to ensure public participation consistent with the provisions of the Aarhus Convention, in particular Article 7 thereof.

(11) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment [18], and Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [19] should be amended to ensure that they are fully compatible with the provisions of the Aarhus Convention, in particular Articles 6 and 9(2) and (4) thereof.

[18] OJ L 175 , 5.7.1985, p. 40, Directive as amended by Directive 97/11/EC (OJ L 73, 14.3.1997, p. 5).

[19] OJ L 257, 10.10.1996, p. 26.

(12) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved by the Community. This Directive confines itself to the minimum required to achieve those objectives and does not go beyond what is necessary for that purpose,

HAVE ADOPTED THIS DIRECTIVE

Article 1

Public participation concerning plans and programmes

1. For the purposes of this Article "the public" shall mean one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups.

2. Member States shall ensure that the public are given early and effective opportunities to participate in the preparation and review of the plans or, as the case may be, programmes required to be drawn up under the provisions listed in Annex I.

To that end, Member States shall ensure that:

(a) the public are informed, whether by public notices or other appropriate means, about any proposals for such plans or programmes or for their review and that relevant information about such proposals is made available to the public

(b) the public are entitled to express comments and opinions before decisions on the plans and programmes are made;

(c) in making those decisions, due account shall be taken of the results of the public participation.

3. Member States shall identify the public entitled to participate for the purposes of paragraph 2, including relevant non-governmental organisations, such as those promoting environmental protection

The detailed arrangements for public participation under this Article shall be determined by the Member States so as to secure a wide participation by the public.

Reasonable time-frames shall be provided allowing sufficient time for each of the different stages of public participation required by this Article.

Article 2

Amendment of Directive 85/337/EEC

Directive 85/337/EEC is amended as follows:

(1) In Article 1(2) the following definitions are added:

"the public" means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups.

"the public concerned" means the public affected or likely to be affected by, or having an interest in, the development consent procedure; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

(2) Article 6 is amended as follows:

(a) Paragraphs 2 and 3 are replaced by the following:

"2. Member States shall ensure that the public concerned are given early and effective opportunities to participate in the development consent procedure. Paragraphs 3, 4 and 5 shall apply for the purposes of such participation.

3. The public shall be informed, whether by public notices or other appropriate means, of the following matters early in the development consent procedure and, at the latest, as soon as information can be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies;

(c) details of the competent authorities responsible for taking the decision or from which relevant information can be obtained or to which comments or questions can be submitted;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) any information gathered pursuant to Article 5;

(f) the main reports and advice issued to the competent authority or authorities during the development consent procedure, including any opinions on the request expressed by any authorities consulted under paragraph 1;

(g) an indication of the times and places where and means by which the relevant information will be made available;

(h) details of the arrangements for public participation made pursuant to paragraph 5."

(b) The following paragraphs 4 and 5 are added:

"4. The public concerned shall be entitled to express comments and opinions to the competent authority or authorities before the decision on the request for development consent is taken.

5. The detailed arrangements, for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public enquiry), shall be determined by the Member States. Reasonable time-frames shall be provided, allowing sufficient time for each of the different stages provided for in this Article."

(3) Article 7 is amended as follows:

(a) In paragraph 1, "Environmental Impact Assessment procedure" is replaced by "development consent procedure".

(b) Paragraph 2 is replaced by the following:

"2. If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the development consent procedure, the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information required to be given or made available pursuant to Article 6(3) and (5)".

(c) Paragraph 5 is replaced by the following:

"5. The detailed arrangements for implementing the provisions of this Article shall be determined by the Member States concerned and shall be such as to enable the public concerned in the territory of the affected Member State to participate effectively in the development consent procedure for the project."

(4) In Article 9, paragraph 2 is replaced by the following:

"2. The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7, forwarding to it the information referred to in paragraph 1 of this Article.

The consulted Member States shall ensure that that information is made available to the public concerned in their own territory."

(5) The following Article 10a is inserted:

"Article 10a

Member States shall ensure that, in accordance with the relevant national legal system, the public concerned has access to a review procedure before a court of law or another body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

Any such procedure shall be expeditious and shall not be prohibitively expensive."

(6) Annex I is amended in accordance with Annex II to this Directive.

Article 3

Amendment of Directive 96/61/EC

Directive 96/61/EC is amended as follows:

(1) Article 2 is amended as follows:

(a) the following paragraph is added to point 10:

"For the purposes of point (b), any change to or extension of an operation, where such a change or extension in itself meets the appropriate criteria or thresholds set out in Annex I, shall be deemed to be substantial";

(b) the following points 13 and 14 are added:

"13. "the public" shall mean one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;

14. "the public concerned" shall mean the public affected or likely to be affected by, or having an interest in, the taking of a decision on the issuing or the updating of a permit or of permit conditions; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest"

(2) In Article 6(1), first subparagraph, the following indent is added:

"- the main alternatives studied by the applicant, in outline."

(3) Article 15 is amended as follows:

(a) Paragraph 1 is replaced by the following:

"1. Member States shall ensure that the public concerned are given early and effective opportunities to participate in the procedure for the taking of decisions on the issuing or the updating of a permit or of permit conditions. The procedure set out in Annex V shall apply for the purposes of such participation."

(b) The following paragraph 5 is added:

"5. When a decision has been taken, the competent authority shall inform the public in accordance with the appropriate procedures and shall make available to the public the following information:

(a) the content of the decision, including a copy of the permit and of any conditions and any subsequent updates; and

(b) the reasons and considerations on which the decision is based."

(4) The following Article 15a is inserted:

"Article 15a

Access to justice

Member States shall ensure that, in accordance with the relevant national legal system, the public concerned has access to a review procedure before a court of law or another body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

Any such procedure shall be expeditious and shall not be prohibitively expensive."

(5) Article 17 is amended as follows:

(a) In paragraph 1, the first sentence is replaced by the following:

"Where a Member State is aware that the operation of an installation is likely to have significant negative effects on the environment of another Member State, or where a Member State likely to be significantly affected so requests, the Member State in whose territory the application for a permit pursuant to Article 4 or Article 12(2) was submitted shall forward to the other Member State any information required to be given or made available pursuant to Annex V at the same time as it makes it available to its own nationals".

(b) The following paragraphs 3 and 4 are added:

"3. The results of any consultations pursuant to paragraphs 1 and 2 must be taken into consideration when the competent authority reaches a decision on the application.

4. The competent authority shall inform any Member State which has been consulted pursuant to paragraph 1, of the decision reached on the application and shall forward to it the information referred to in Article 15(5). That Member State shall take the measures necessary to ensure that that information is made available to the public concerned in its own territory"

(6) An Annex V is added, as shown in Annex III to this Directive.

Article 4

Implementation

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2002 at the latest. They shall forthwith communicate them to the Commission.

When Member States adopt those provisions , they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 5

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 6

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

ANNEX I

PROVISIONS FOR PLANS AND PROGRAMMES REFERRED TO IN ARTICLE 3

(a) Article 7(1) of Council Directive 75/442/EEC on waste [20].

[20] OJ L 194, 25.7.1975, p. 39. Directive as amended by Council Directive 91/156/EEC (OJ L 78, 18.3.1991, p. 32).

(b) Article 6 of Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances [21].

[21] OJ L 78, 26.3.1991, p. 38. Directive as amended by Directive 98/101/EC (OJ L 1, 5.1.1999, p. 1) and supplemented by Directive 93/86/EEC (OJ L 264, 23.10.1993, p. 51).

(c) Article 5(1) of Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources [22].

[22] OJ L 375, 31.12.1991, p. 1.

(d) Article 6(1) of Council Directive 91/689/EEC on hazardous waste [23].

[23] OJ L 377, 31.12.1991, p. 20. Directive as amended by Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28)

(e) Article 14 of Council Directive 94/62/EC on packaging and packaging waste. [24]

[24] OJ L 365, 31.12.1994, p. 10

(f) Article 8(3) of Council Directive 96/62/EC on ambient air quality assessment and management [25] (including plans referred to in Articles 3(4), 5(4) and 5(5) of Council Directive 1999/30/EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air [26])

[25] OJ L 296, 21.11.1996, p. 55.

[26] OJ L 163, 29.6.1999, p. 41.

(g) Article 14 of Council Directive 99/31/EC on the landfill of waste [27].

[27] OJ L 182, 16.7.1999, p. 1.

Annex II

In Directive 85/337/EEC, Annex I, the following paragraph 22 is added:

"22. Any change to or extension of projects listed in this Annex where such a change or extension in itself meets the appropriate criteria or thresholds set out in this Annex.".

Annex III

In Directive 96/61/EC, the following Annex V is added:

"Annex V

Public participation in decision-making

1. The public shall be informed (by public notices or other appropriate means) of the following matters early in the procedure for the taking of a decision or, at the latest, as soon as the information can be provided:

(a) the application for a permit or, as the case may be, the proposal for the updating of a permit or of permit conditions, including in all cases the description of the elements listed in Article 6(1);

(b) where applicable, the fact that a decision is subject to a national or transboundary environmental impact assessment or to consultations between Member States in accordance with Article 17;

(c) details of the competent authorities responsible for taking the decision or from which relevant information can be obtained or to which comments (or questions) can be submitted;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) where applicable, the details relating to a proposal for the updating of a permit or of permit conditions;

(f) the main reports and advice issued to the competent authority in connection with the taking of the decision;

(g) an indication of the times and places where or means by which the relevant information will be made available;

(h) details of the arrangements for public participation and consultation made pursuant to paragraph 4.

2. The public concerned shall be entitled to express comments and opinions to the competent authority before a decision is taken.

3. The results of the consultations held pursuant to this Annex must be taken into consideration in the taking of a decision.

4. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and consulting the public concerned (for example by written submissions or by way of a public enquiry) shall be determined by the Member States. Reasonable time-frames shall be provided allowing sufficient time for each of the different stages provided for in this Annex."