WRITTEN QUESTION E-1293/02

by Patricia McKenna (Verts/ALE) to the Commission

(7 May 2002)

Subject: Incomplete incorporation of Directive 97/11/EC by the Spanish state

Directive 97/11/EC(1) on environmental impact assessment states, in Article 7(3)(b), that before development consent for a project is granted the Member State in whose territory it is intended to be carried out shall ensure that the public and the authorities concerned by the project are given an opportunity to forward their opinion on the information supplied to the competent authority in that Member State.

This directive was incorporated into national law by the Spanish state on 10 May 2001, by means of Law 6/2001(2) (it should in fact have been incorporated no later than 14 March 1999). The provisions of Article 7(3)(b) do not appear in Law 6/2001. Since this article has not been transposed in that law, it must be concluded that Article 13 of Royal Decree [RD] 1131/1988 is still in force.

The third paragraph of Article 13 of RD 1131/1988(3) states that the administrative body responsible for the environment may consult such persons, institutions and administrations as are liable to be affected by implementation of the project on the environmental impact which each of those parties believes it is likely to have.

To give an example, this Article 13 of RD 1131/1988 has been used in the environmental impact assessment procedure relating to the extension of the port of Castellón in the Valencia region (a complaint was submitted to the Commission by the Valencian association Colla Ecologista d'Almassora; the author of the present question also put a question on the matter). In that case, the Directorate-General for Environmental Assessment and Quality had not, prior to granting authorisation, given the opportunity to express an opinion on the project for extension of the port of Castellón to any of a range of parties in the town of Almassora(4), from the citizens themselves to their organisations and institutions, even including the municipal council.

1. Does the Commission not believe that the incorporation by the Spanish state of Directive 97/11/EC is seriously incomplete as far as the public participation procedure is concerned?

2. Does the Commission consider the third paragraph of Article 13 of RD 1131/1988 to be compatible with Article 7(3)(b) of Directive 97/11/EC?

(1) OJ L 73, 14.3.1997, p. 5.

(2) BOE [official journal of the Spanish state] No 111, 9 May 2001.

(3) BOE No 239, 5 October 1988.

(4) The municipality of Almassora is located a few kilometres away from the port of Castellón, and it has historically been the locality most affected by the port and the successive extensions to it. This is recognised even in the environmental impact statement on the extension of the port of Castellón (BOE No 224, 18 September 2001).

Answer given by Mrs Wallström on behalf of the Commission

(27 June 2002)

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment(1) was amended by Council Directive 97/11/EC of 3 March 1997(2).

The deadline for the transposition of Directive 97/11/EC into national law expired on 14 March 1999. Since the Commission did not receive the national measures transposing Directive 97/11/EC within the time limit, it started an infringement procedure against Spain pursuant to Article 226 of the EC Treaty and brought action against Spain before the Court of Justice(3) for failure to act.

The Spanish Government has adopted Royal Decree-Law 9/2000 of 6 October 2000 (published in the Spanish Official Gazette on 7 October 2000) which is intended to transpose Directive 97/11/EC into Spanish law. The Spanish authorities have officially sent the Commission this text, which amends the Spanish environmental impact assessment law (Royal Legislative Decree 1302/1986 of 28 June 1986). Against this background, and in accordance with customary practice, the Commission has decided to abandon the proceedings before the Court of Justice since the Spanish authorities notified the national measures transposing Directive 97/11/EC after the proceedings were started.

With regard to the transposition of Directive 97/11/EC, it should be added that the abovementioned Royal Decree-Law 9/2000 was later discussed as a draft law by the Spanish Parliament, which finally adopted Law 6/2001 of 8 May 2001 on environmental impact assessment which amends the 1986 legislation (published in the Spanish Official Gazette of 9 May 2001). The Spanish authorities have officially communicated this new legislation to the Commission.

It should be pointed out that Article 7 of the Directive referred to by the Honourable Member is concerned with the possible cross-border impact of certain projects in other Member States. The Honourable Member surely wishes to refer to Article 6 of the Directive which states that other authorities and the public concerned must be allowed to express their opinion before a project is authorised.

The present Spanish legislation on environmental impact assessment is Royal Legislative Decree 1302/1986, as amended by the abovementioned Law 6/2001. The implementing Regulation is Royal Decree 1131/1988 of 30 September 1988, to which the Honourable Member refers.

Article 3 of Royal Legislative Decree 1302/1986 requires the public concerned to be consulted about the environmental impact study and the project and other institutions concerned to be asked for appropriate reports.

Royal Decree 1131/1988 includes these obligations in a more detailed form. Article 13 refers to the consultation of other persons, institutions and administrations likely to be affected by the project. Article 15 refers to the public consultation period which must be followed as part of the environmental impact assessment procedure.

In the light of the above, the Commission does not conclude that Directive 97/11/EC has not been properly transposed into Spanish law as regards giving the public concerned an opportunity to take part in the procedure.

(1) OJ L 175, 5.7.1985.

(2) OJ L 73, 14.3.1997.

(3) Case C-342/00.