Proposal for a COUNCIL DIRECTIVE amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment
Date: 1993-03-16
Institutions: European Commission
Subjects: environmental protection, industrial project, private sector, project evaluation, public sector

COMMISSION OF THE EUROPEAN COMMUNITIES 

COM(93) 575  final 
Brussels,  16.03.1994 

94/0078  (SYN) 

Proposal  for a 
COUNCIL DIRECTIVE 
amending Directive 85/337/EEC on the assessment  of the effects  of 
certain public and private projects on the environment 

(presented by the Commission) 

IK 

C 

\ 

EXPLANATORY  MEMORANDUM 

1.  Justification  of the proposal 

This proposal for a Directive amending Directive 85/337/EEC on the assessment of the effects 
of certain public and private projects on the environment0* is  submitted in accordance with 
Article  11(4)  of  the  Directive,  which  calls  upon  the  Commission  to  submit  additional 
proposals to the Council with a view to ensuring that the Directive is applied in a sufficiently 
coordinated manner. 

The  proposal  is  based  chiefly  on  the  findings  of  the  report  on  the  implementation  of  the 
Directive(2),  which the Commission,  again in accordance with Article  11,  sent to Parliament 
and the Council. 

The  experience  gained  over  that  period  shows  that,  despite  considerable  efforts  to bring 
existing  national  procedures  more  closely  into  line  with  the  new  environmental  impact 
assessment requirements, there have been practical difficulties  in implementing the Directive 
owing  to  occasional  differences  in  interpretation  between  the  Member  States  and  the 
Commission.  The latter has  on  several  occasions  found  that Member  States are failing  to 
apply the Directive in its entirety. 

In  addition,  the  proposal  takes  account  of  the  Community's  and  the  Member  States" 
international commitments under the Espoo Convention on environmental impact assessment 
in a transboundary context(3): certain Articles of the Directive are adapted, including Article 7, 
which has been reworded in the light of the Convention's objectives. 

Lastly,  the proposal  is  a response to the concern  expressed by  Parliament in its Resolution 
on agriculture and the environment^ and by the Commission itself in its communication on 
the same subject(5). 

1.1  Report on the implementation  of Directive  85/337 

Detailed  analysis  of  the  information  in  the  report  on  the  implementation  of  Directive 
85/337/EEC revealed that the Directive has been applied very differently  from one Member 
State to another. 

These differences  particularly  concern the rules in the Directive on: 

- 

the  practical  scope  of  the  Directive,  as  laid  down  by  Article  2(1)  in  conjunction  with 
Article 4 (Annexes I and II); 

- 

the information  to be supplied based on Article 5 in conjunction with Annex III; 

-  monitoring of the impact of the project. 

(i)  OJNoL  175,  5.7.1985. 
(2)  COM(93)28,  2.4.1993. 
w  OJNoC  104,24.4.1992. 
(4)  OJ No C 68, 24.3.1986. 
(5)  COM(88) 338 final, 8.6.1988. 

1.1.1  Scope 

One of the key criteria for assessing practical implementation of the Directive are the data on 
the  total  number  and  types  of  projects  assessed.  These figures clearly  indicate  that  the 
differences  in the annual number of assessments are attributable to differences  in the extent 
of  the  obligations  imposed  by  the  national  legislation  for  Annex  II  projects  and  to  the 
thresholds applied for such projects. 

However, as currently defined in Article 4, the scope of the Directive covers both projects for 
which  assessment  is  a  mandatory  requirement  (Annex  I  projects)  and  those  for  which 
assessment must be performed only where Member States so deem necessary on the basis of 
the project's characteristics (Annex II projects). 

Taking issue with the way  certain Member  States have interpreted this latter provision, the 
Commission believes that giving Member States this discretionary power should not devalue 
the general provision in Article 2(1) which requires all projects referred to in both Annexes 
I and II of the Directive to be assessed if they are liable to have a significant  environmental 
impact. 

As the Commission  sees it, the reason for the difference  in approach to Annex I and Annex 
II projects in Article 4 is essentially  the following:  whereas it is unanimously  acknowledged 
that Annex I projects have to be  subjected to mandatory  systematic  analysis,  in the case of 
Annex  II  projects  it  has  been  agreed  that  the  detailed  arrangements  for  assessing 
environmental  impact  should  be  determined  by  the  Member  States  in  keeping  with  their 
individual  constitutional  and administrative procedures. 

In this connection, the report stresses that besides the fears that Annex II projects are not fully 
covered, there are also grounds to fear the opposite since the adoption of very low thresholds 
(or  no  thresholds  at  all)  could  result  in  large  numbers  of  relatively  minor  projects being 
submitted for assessment. 

The Commission is therefore  proposing to amend paragraph 2 of Article 4 so as to clarify: 

(i) 

(ii) 

the  circumstances  in  which  Annex  II  projects  will  be  required  to  undergo  an 
environmental  assessment,  i.e.  where they  are liable to have a significant  effect  on 
special  protection  areas  designated  by  Member  States  and  communicated  to  the 
Commission  in  accordance  with  the  Community  Directives  on  environmental 
protection; 

the selection procedure for Annex II projects which Member States must apply in all 
other cases  in order to ascertain  whether an assessment  is necessary,  using criteria 
defined  and  agreed  at Community  level.  Where  appropriate these  criteria can be 
accompanied by thresholds to be laid down by the Member  States in line with the 
principles of  subsidiarity  and shared responsibility. 

1.1.2 Content of the impact study 

The  current  practices  for  determining  the  information  provided  for  in  Article 5  vary 
considerably  from  one Member  State to another.  In most cases,  however, the result is that 
the  impact  assessments  contain  only  the  minimum  information  required  by  Article 5(2), 
thereby failing to satisfy  the requirement in paragraph  1 that the information,  under certain 
circumstances,  must be that specified  in Annex III. 

To  ensure  that  the  information  collected  is  more  relevant  to  the  type  of  project  being 
considered  and  to  improve  the  quality  of  that  information,  the  Commission  believes  the 
application of this article could be clarified  by introducing the concept of scoping. 

By  taking  this  approach  it  will  be  possible  to  indicate  which  items  from  the  information 
specified  in Annex III should be gathered and submitted by the developer.  In any event this 
information  should include a description of the alternatives being considered by the developer. 

The developer will  henceforth  have access to the data held by  any authority,  in accordance 
with Directive 90/313/EEC on the freedom  of  access to information  on the environment^, 
Article 3 of which requires public authorities to make available information  relating to the 
environment to any natural or legal person at his request and without his having to prove an 
interest. 

1.1.3.  Monitoring 

The report highlighted the technical  shortcomings of the assessment procedure provided  for 
by the Directive, which makes no provision for monitoring the effects on the environment due 
to the implementation  of the project. 

However,  imposition  of  such  monitoring  would  have  a beneficial  effect  when  it  comes to 
implementing the project by enabling the competent authorities and the developer to take the 
necessary  measures  to  soften  or  compensate  for  the  impact  at  the  earliest  possible  stage, 
thereby  improving the cost-benefit  ratio for the measures. 

Moreover,  it  would  enable  the  environmental  authorities  and  the  public  to  take  a  more 
favourable  view if the impact assessments  revealed uncertainties  or gaps in the  information 
about a project  since they could be reconsidered  during the monitoring phase. 

A clause to this effect  has already been included in the Espoo Convention which the Member 
States and the Community must observe as regards the transfrontier  impact. 

However,  the  Commission  considers  that  there  is  no  need,  at  the  moment,  to  adapt  the 
Community  Directive  to the  rules  laid  down  in  the Directive,  by  providing  for  systematic 
monitoring  of the circumstances  in which the development  consent decision  was taken  and 
the proposed  corrective measures so as to avoid, reduce or offset  the adverse effects  on the 
environment. 

Before  submitting  specific  proposals  it  intends  to  examine  in  greater  depth  the  costs  and 
benefits  of such adaptation  and its compatibility  with the subsidiarity principle. 

1.1.4.  These new provisions are consistent with the experience of environmental  assessment 
at international level and in a number of Member  States.  They should, in the Commission's 
view, make this procedure more efficient  and yield greater benefits in terms of  safeguarding 
the environment. 

1.2  Compatibility with the fifth environmental  action programme and with the White Paper 

on growth, competitiveness and employment 

The fifth programme acknowledges the central  role of the environmental  impact assessment 
in decision-making  with regard  to both  individual  projects  and the underlying  development 
strategies. 

(6)  OJNoL  158, 23.6.1990. 

It  provides  decision-makers  with  the  information  needed  in  order  to  evaluate  the 
environmental  impact of the necessary investment more accurately, especially in the sectors 
which  are  given  priority  in  the  fifth  programme(7)  and  in  the  White  Paper  on  growth, 
competitiveness  and employment^. 

In  particular,  the  rules  in  force  and  those  proposed  enable the  Member  States to take  the 
appropriate measures to simplify and concentrate the existing national consent procedures and 
to avoid unnecessary delays during planning and implementation of priority projects identified 
and adopted  at Community level, particularly  as part of the trans-European  networks. 

More systematic and better coordinated application of the EIA procedure can also help reduce 
distortion to which the widely  differing  national  practices may give rise. 

2.  Costs and benefits  of the proposal 

2.1.  The  potential  benefits  of  the  new  provisions,  which  are  explained  in  detail  under 
point  1.1, are considerable: 

-  more  relevant  and  selective  gathering  of  the  information  required  from  the  developer 
based  on  the  particulars  supplied  by  the  competent  authority  in  agreement  with  the 
environmental  authorities  responsible and in consultation  with the developer.  It should 
be  emphasized  here  that  involving  the  public  in  appropriate  ways  at  this  stage  of  the 
assessment procedure can only improve public relations and make the necessary consensus 
on the project  easier to achieve; 

-  easier access to relevant  existing data for those who need it; 

-  better  control  over  the  quality  of  impact  assessments  and  the  conclusions  drawn  from 

them; 

-  closer attention to attenuation measures which tend not to be properly integrated into the 

project  design; 

- 

fewer  assessments  of  very  small  projects  (where  they  are  unlikely  to  have  any 
environmental  impact). 

2.2.  The  cost  of  putting  these  new  measures  into  effect  can  be  broken  down  into  three 
categories: funding,  time and personnel.  Since these three parameters will be dependent on 
the number and type of assessments to be conducted, it is impossible to put forward  accurate 
estimates at this stage. 

Experience gained in the Member States shows that generally the financial  cost of conducting 
an impact assessment is a minute fraction  of the total project cost.  Only in exceptional cases 
for  small projects requiring heavy capital investment will they be more than  1% of the total 
cost of the project(9). 

It therefore seems perfectly reasonable to assume that normally the cost of such an assessment 
will  remain below the  1% threshold. 

(7)  COM(92) 23 final, 12.6.1992, pages 26-27. 
(8)  COM(93) 700 final, 5.12.1993. 
(9)  See Report on the implementation  of Directive 85/337/EEC (COM(93) 28 final, 

pp. 55-57). 

The cost of attenuation measures varies appreciably from one project to another and is usually 
dictated by environmental  constraints.  Where the environmental  protection standards to be 
attained are the same, the necessary attenuation measures can be taken into account from the 
beginning of the project design, which  should permit a reduction in the overall  capital cost. 

Similarly,  the  time  taken  for  the  environmental  impact  assessment  seems  to  make  little 
difference  to  the total  time  needed  to  implement  the  project  as  it  can  be  included  in the 
consent procedure. 

Secondly, it is clear that the time required for the scoping exercise, if it is well managed, will 
be more than offset  by  savings at later stages in the development  consent process. 

2.3.  Lastly, given that the implementation  of these provisions will  create certain additional 
needs in terms of training people to conduct assessments and in terms of drafting appropriate 
guidelines, the Commission has already initiated a programme of technical  assistance to that 
end in conjunction with the Member States. 

3.  Subsidiarity and proportionality 

3.1.  The main purpose of harmonizing the provisions on environmental  impact assessment 
is  to  establish  at  Community  level  a general  frame  of  reference  to  ensure  that  action by 
Member States to protect the environment is following  similar lines. 

The same is true of the new provisions  contained  in this proposal,  insofar  as the proposed 
amendments  do  not  alter  the  actual  scope  of  the  Member  States'  obligations  under  the 
directive. 

It  is  for  the  Member  States,  working  within  their  own  administrative  and  organizational 
structures, but on the basis of principles laid down at Community level, to: 

-  define the required content and form of the information to be supplied by the developer; 

-  explain the manner in which the outcome of the assessment is taken into consideration; 

- 

examine, in certain circumstances, whether the likely  environmental  impact of Annex II 
projects makes an assessment necessary. 

3.2.  Consequently, these provisions are consistent with the principle of subsidiarity enshrined 
in Article  13Or of the Treaty and restated in the fifth environmental  action programme. 

4.  Consultation of  socio-economic  interests 

Consulting  the  Economic  and  Social  Committee  under  Article  198  of  the  Treaty  will 
guarantee a wide-ranging debate with the representatives of the various economic and socio-
professional  groups. 

5.  Legislative  situation in the Member States 

Although the new provisions on screening and scoping have not yet been fully  incorporated 
into the laws of the Member States, some of the practices involved are already being applied 
to differing degrees in a number of Member States, and in certain non-Community countries. 
The  following  tables  give  an  idea  of  the  experience  gained  and  the  extent  to  which  the 
procedures mentioned above,  and monitoring have been formalized. 

TABLE A 

LEGISLATIVE SITUATION  IN MEMBER STATES RECARDINC SCREENING. SCOPING  AND  MONITORING 

MEMBER  STATES 

SCREENING 

MONITORING 

Belgium 

Single list of projects  subject  ot EIA in Flanders (1 & 

No mandatory  provision  in  Flanders regulation . 

Industrial installations conditions of licence may  require that 

2 of EIA admin orders). 

Public enquiry  provided  for  projects  initiated  by a 

monitoring is carried  out. 

Wallonia  more individual  evaluation  of projects  to 

public body 

assess requirement  for  EIA. 

Denmark 

Lists of projects requiring  EIA in several  Acts; no 

No mandatory  provision 

Local authorities undertake monitoring  requirements  as part 

screening procedure. 

Informal  discussion  in EIS preparation. 

of planning  process. 

Netherlands 

List of projects requiring  EIA in annex  C of EIA 

Competent  authority  draws up guidelines  after 

Regulations require monitoring  of effects  detailed  in EIS. 

Decree; no screening  procedure. 

mandatory  consultation  of other authorities, 

independent  EIA Commission  and the public. 

Greece 

Two list of projects (Group  1 & Group  2 ); all  piojects 

No formal  provision  at present. 

Only occasional monitoring  and post-auditing  undertaken by 

require  EIA but the two groups have different  EIS 

Binding arrangements  in  preparation. 

PERPA. 

content  requirements; no screening procedure 

Germany 

Lists of projects  requiring  EIA at both  federal  and 

Discussion  of information  requirements  between 

Some projects  monitored, under  FIA act and consent  agency 

regional (Lander-) level, screening  of significance  of 

developer and competent  authority  mandatory  at 

may require additional  monitoring. 

effects  in the case of modification  to projects 

federal  level; in some  "Lander" mandatory  public 

consultation 

Ireland 

Single list of projects; EIA mandatory  when project 

No formal  provision  at present 

No formal  system  for monitoring  under  EIA regulations. 

above threshold, case-by-case screening  possible when 

Proposed  EPA to prvide  scoping guidelines  for  EIS 

Proposed  EPA may have a monitoring  and evaluation rôle. 

under  threshold. 

information  on project  classes. 

Italy 

Single list of projects  requiring  EIA, no  screening 

No mandatory  provision 

Consent may  be conditional  on  formation  of monitoring 

procedure. 

network. 

Lists of projects  requiring  EIA in  several  Acts; no 

No mandatory  provision  for  formal,  systematic 

All  "Installations classées" subject  to monitoring  by  relevant 

scteening procedure 

scoping 

inspectorates.  All other projects  not  subject. 

Portugal 

Annex of DR.  No.38/90, project  list  and  thresholds 

No mandatory  provision. 

No formal  provision  for  monitoring. 

(24  types of projects). 

Spain 

Lists of projects  requiring  EIA in several acts, both at 

the national level and the level of autonomous 

communities  (lists of additional  projects  requiring 

EIS), no  screening  procedure. 

Voluntary  scoping  only (takes place in most 

casesj.Monitoring  required  by programme  of  Environmental 

Surveillance.  Conditional  in declaration  of  Environmental 

Impact. 

UK 

No mandatory thresholds/criteria, UK regulations 

No mandatory provision. 

provide for case by case consideration of projects by 

Developer/competent  authorities consultation 

competent  authorities. 

recommended  by DoF. 

No mandatory provision, but monitoring  conditions 

may be attached to certain consent procedures. 

Luxembourg 

Projects covered by "commodo Law" (Annex  1 & 

No formal  provision for scoping, check lists drawn by 

Some monitoring  carried out under the "commodo-law" 

most of Annex 10 are screened for full-EIA 

CA for specific  projects  No new  legislation 

requirement on the basis of preliminary  EIA, other 

envisaged, 

projects case-by-case screening. 

I ABLE It 

LEGISLATIVE SITUATION  REGARDING SCREENING. SCOPING AND  MONITORING 
mi i inn i s a a a B a c a a s s a a n m g a g m a c a a a; 

i 11 

i i 

i 

i 

' 

IN COUNTRIES CANDIDATE FOR THE MEMBERSHIP OF THE UNION 

COUNTRY 

SCREENING 

SCOPING 

MONITORING 

Single list of projects 

Competent  authority, after  consultation of other 

Mandatory  monitoring  under the responsibility  of the 

authorities & public, decides on acceptability  of a 

competent  authority; results must be communicated  to other 

draft  EIS content proposed  by the developer. 

authorities. 

Finland 

Single list of projects, in addition  possibility  for a 

The competent  aulhontics decide, following  public 

Monitoring  of projects  mandatory  under sectoral  acts; 

(NB. proposal  for EIA 

case-by-case screening by  Minister of  Environment. 

consultation and involving  the developer, on the 

monitoring  programme  mandatory  part of EIS; monitoring 

Act) 

content of the EIS. 

information  is public. 

Norway 

Single list of projects  in  principle requiring  EIA; for 

The competent  authority  decides, after  consultation  of 

Monitoring programme  mandatory  part of  EIS; competent 

projects  not listed  possibility  of casc-by-case screening 

public and  Minister  of  Environment,  on  the need  for a 

authority  establishes programme,  after  consultation  of public 

by  Minister of Environment. 

full  EIS and sets guidelines  for its content. 

&  Minister of Environment; programme  responsibility  of 

developer. 

In principle, according  to the Natural  Resources 

Each Competent  Authority has the power to determine 

No specific  EIA provisions or procedures  for  monitoring, 

Management  Act, all projects  needing a permit  under 

the scope of each assessment  but scoping  procedures 

Some more general provisions  for monitoring  project 

13 different  Acts require EIA. 

arc not yet contained  in legislation. 

implementation  may  exist under specific  permitting 

procedures. 

TABLEC 

I.K.USI.A IIVK SI I UAI ION  REGARDING  SCREENING, SCOPING  AM)  MONITORING  IN (.KIM AIN COIIN IKIKS 

SCREENING 

MONITORING 

Yes 

Variable • only in certain  cases 

Yes 

Variable - generally  no 

No specific  provision  in  ordonance 

Canada 

New  Zealand 

10 

6.  Legal  basis 

The  main  reason  for  choosing  Article  130s(l)  was the fact  that  the Directive  dates back  to 
1985 when it was based on Article  100, in view of the distortion which could arise from  the 
diverging impact assessment requirements in the different  Member States, and on Article 235 
in  view  of the  lack  of  any  provision  explicitly  on the  environment  in  the Treaty  of Rome. 
This proposal  is being  submitted  after  the entry  into force  of the Treaty  on European  Union 
and places the emphasis on the Community's environmental  obligations with regard to impact 
assessment  and, hence, is covered by  Article  130s(l). 

The  environmental  assessment  procedure  not  only  plays  a  crucial  role  in  the  proper 
functioning  of  the  internal  market;  its  purpose,  above  all,  is  to  provide  the  competent 
authorities with the information they need to reach an informed  decision on any given project. 
This makes it a basic instrument  of  environmental  policy. 

The possibility that the costs of the environmental  assessment procedure could create unequal 
conditions of competition  and give rise to market distortions between Member  States is only 
a secondary  consideration with regard to the need for this common step, since the cost of the 
procedure is not  such  as would  sway  the investor's  choice as to the  site of the  project. 

7.  Commentary  on the individual  articles of the  proposal 

Article  1 announces the amendments to the following  Articles of Directive  85/337/EEC: 

Article 1 

The  proposal  is  to  transfer  and  clarify  the  definition  of  "modifications  to  projects"  which 
appears as a project  class in Annex  II to the Directive.  This operation is felt to be necessary 
because in practice the interpretation of "modifications to projects" has given rise to problems 
regarding the scope of the proposed  modification  (restructuring of a project)  and changes to 
the conditions under which  the project  has been  authorized. 

Article 4 

The aim of the amendments to this Article is to initiate the screening procedure to be applied 
by the Member  States for  identifying  Annex  II projects  which  require  assessment. 

Article  5 

This Article introduces the concept of scoping, the main purpose of which is to facilitate the 
exchange of information  between the various parties concerned and to improve the quality of 
the  assessment. 

Article 6 

It is made clear in paragraph  1  that the environmental  authorities must be consulted not only 
on the developer's application for  development  consent, but also on the information  supplied 
by the  developer. 

Similarly,  it  is  made  clear  in  paragraph  2  that  the  public  must  be  consulted  before 
development consent is granted rather than before the work actually commences.  In practice, 
development  consent may be granted  a long time before  work begins, which in turn may be 
at a time when  the  consent  can  no longer  be withdrawn.  Consultation  of the public would 
then  be pointless. 

11 

Article 7 

In accordance  with the Espoo Convention,  this  proposal  advocates a major  improvement  in 
bilateral relations between the Member States as regards consultation of the authorities of any 
Member  State  liable  to  be  particularly  affected  and  the  latter's  participation  in  the 
environmental  assessment  procedure. 

The Member States affected  by the project  must therefore  conduct a joint examination  of the 
transboundary  effects  of the project and the measures to reduce or offset  them, all this on the 
basis of the  opinions of  the authorities  responsible  for  the environment  and their  respective 
nationals.  This should ensure closer cooperation  between the Member  States, in view of the 
fact that pollution, as is stressed in the fifth environmental action programme(10), does not stop 
at  frontiers. 

Article 8 

The report highlighted another difficulty  in implementing the Directive, namely the extent to 
which the environmental  assessment  procedure  can exert pro-environmental  pressure  on the 
development  consent  decision. 

It would  appear that the attention given to the findings  of the assessment  procedure in terms 
of  preventing  or  offsetting  the  effects  on  the  environment  is  not  properly  reflected  in  the 
decisions taken by the competent  authorities. 

The  requirement  that  express  account  be  taken  of  the  opinions  given  by  the  environment 
authority and the public concerned  should, to some extent, lead to greater transparency in the 
decisions taken by the competent  authority. 

Article 9 

The  main  aim  of  the  amendment  is  to  require justification  of  the  decisions  taken  by  the 
competent  authority  so  that  the  public  may  be  aware  of  the  effects  of  the  environmental 
assessment  on these decisions. 

Article  11 

The new wording of Article 4 of Directive 85/337/EEC makes Article  11(2) of that Directive 
redundant.  The latter is therefore  deleted. 

Article  12 

The new wording  of Article 2 of the proposal  makes Article  12 of the Directive  redundant. 
The latter is therefore  deleted. 

Article  13 

Article  13 is to be deleted,  since Article  130t of the Treaty now allows Member  States to lay 
down  stricter  rules on environmental  protection. 

(10)  COM(92) 23  final,  12.6.1992. 

12 

Annex 1 

Two new categories of project  are introduced:  installations for  the reprocessing of irradiated 
nuclear  fuel,  and temporary  storage of  radioactive waste. 

The inclusion  of reprocessing installations is justified  by the fact that more radioactive waste 
is produced by this type of installation than by the nuclear power stations already listed in the 
Annex.  Similarly,  the temporary  storage  of  waste which  presents  such  a danger  to human 
health  must also be assessed  prior to  authorization. 

Lastly, the proposed  amendment  clarifies  the definition  of integrated  chemical  installations. 

Annex II 

The main  purpose  of the  amendments to this  Annex  is to amalgamate  certain  categories  of 
project  and to tighten  up  some of the  definitions. 

It  is  proposed,  for  instance,  that  the  agricultural  projects  category  be  restructured  by 
transferring the projects for the use of uncultivated land and for the reclamation of land  from 
the sea into a new land use  category. 

Another  new  category,  "Tourism  and  leisure",  will  now  encompass the  construction  of  ski-
runs  and  bobsleigh  tracks,  ski-lifts,  golf  courses,  marinas,  camp  sites  and  caravan  sites, 
holiday  villages and  leisure and  cultural  centres. 

Other  amendments  cover the infrastructure  projects  category. 

All these amendments are aimed at a clearer definition  of the practical scope of the Directive. 

Annex Ha (new Annex) 

The objective  of  adding this new Annex to Directive  85/337/EEC  is to allow application  of 
the new provision  in Article 4(3). 

This Annex lays down  selection  criteria to allow Member  States to appraise, on an identical 
basis,  whether  or  not  Annex  II  projects  are  likely  to  have  a  significant  impact  on  the 
environment. 

Annex  III 

Point  2  of  the  Annex  is  amended  to  make  the  examination  of  the  main  alternatives  to the 
project  compulsory.  This  is  to  make  the  Directive  more  effective  and  to  harmonize  the 
relevant  national  provisions. 

Annex IV 

The  objective  of  this  new  Annex  is  to  define  the  procedure  for  consultation  between  the 
Member  States  and  the  information  considered  appropriate  in  the  case  of  projects  with  a 
transboundary  impact. 

13 

Proposal  for a 
COUNCIL DIRECTIVE 
amending Directive  85/337/EEC  on the assessment  of the effects  of 
certain public and private projects on the environment 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article  130s(l) thereof, 

Having regard to the proposal  from the Commission(1), 

In cooperation with the European Parliament(2), 

Having regard to the opinion of the Economic and Social  Committee(3), 

Whereas  the  main  purpose  of  the  environmental  assessment  procedure  under  Council 
Directive 85/337/EEC(4) is to provide the competent authorities with relevant information to 
enable them to make a decision on a specific project in full knowledge of the facts regarding 
the  project's  probable  impact  on  the  environment;  whereas  the  assessment  procedure  is 
therefore a fundamental  instrument of environmental  policy as defined  in Article  130r of the 
Treaty; 

Whereas a sufficient  degree of environmental protection must be ensured at Community level 
by laying down a general assessment framework and criteria for defining those projects which 
must be submitted for an environmental  assessment; whereas, however,  in accordance with 
the subsidiarity principle, the Member States are in the best position to apply those criteria 
in specific  instances; 

Whereas  the  report  on  the  implementation  of  Directive  85/337/EEC,  as  adopted  by  the 
Commission  on  2 April  1993,  shows  that  there  are  problems  in  applying  the  Directive; 
whereas certain provisions of the Directive should therefore be clarified so that the assessment 
procedure may produce greater benefits, but without altering the actual  scope of the Member 
States' obligations under the Directive; 

Whereas it would, nevertheless, appear necessary to introduce provisions designed to improve 
the rules on the assessment procedure; 

Whereas additions should be made to the list of projects which have significant effects on the 
environment and which must on that account be made subject to systematic assessment; 

Whereas  it  should  also be  made  clear that  such  assessment  is  compulsory  for  the projects 
listed  in  Annex II  to  the  Directive  which  may  have  a  significant  effect  on  the  specific 
environmental  protection  objectives  laid  down  by  mutual  agreement  at  Community  level; 
whereas  in  all  other  cases,  however,  it  falls  to  the  Member  States  to  determine  whether 
assessment is necessary  in accordance with the selection  criteria set out in this Directive; 

(1)  OJ No C 
(2)  OJ No C 
(3)  OJ No C 
(4)  OJNoL  175,  5.7.1985,  p. 40. 

14 

Whereas  some  of  these  measures  bring  the  provisions  of  the  Directive  into  line  with  the 
Convention  on  environmental  impact  assessment  in  a  transboundary  context  (Espoo 
Convention),  which  the  Community  signed  at  the  same  time  as  the  Member  States  on 
25 February  1991, 

HAS ADOPTED THIS DIRECTIVE: 

Directive  85/337/EEC  is hereby  amended as follows: 

Article 1 

1. 

In Article  1(2), the following  definition  is inserted after the first definition: 

'"modifications to projects' means: 

any restructuring of a project which affects  it substantially or any substantial  change in 
the conditions of execution  or operation  of a project;". 

2.  Article 4 is replaced by the following: 

"Article 4 

1.  Subject to  Article 2(3),  projects  listed  in  Annex I  shall  be  assessed  in  accordance 

with Articles 5 to 10. 

2.  Subject  to Article 2(3),  projects listed  in Annex II shall  be assessed  in accordance 
with Articles 5 to  10 where they are liable to have a significant effect  on the special 
protection areas designated by Member States pursuant to Community law. 

3.  In all  other cases,  projects listed  in  Annex II  shall  be examined  by  the  competent 
authority to determine, on the basis of thresholds set, where appropriate, by Member 
States and of the selection  criteria laid down  in  Annex  Ha, whether their probable 
environmental  impact necessitates assessment  in accordance with  Articles  5 to 10. 

Member  States  shall  ensure  that  decisions  taken  by  the  competent  authority  are 
published." 

3.  Article  5(1) is replaced by the following: 

"I.  In the  case  of  projects  which,  pursuant  to  Article 4,  must  undergo  environmental 
impact  assessment  in accordance  with Articles  5 to  10, Member  States shall adopt 
the necessary measures to ensure that the competent authority defines,  in agreement 
with the authorities referred to in Article 6 and in consultation with the developer, 
the information specified in Annex III which the developer is required to provide, in 
an appropriate form,  in so far as: 

(a) 

the  information  is  relevant  to  a  given  stage  of  the  development  consent 
procedure and to the specific  characteristics of a particular project or type of 
project, or those of the environmental  features liable to be  affected; 

(b) 

a  developer  may  reasonably  be  required  to  gather  this  information  having 
regard, inter alia, to current knowledge and methods of assessment." 

4.  Article  5(2) is deleted. 

15 

5.  Article 5(3) is replaced by the following: 

"3.  Member States shall ensure that any authorities holding relevant information, regard 
being  had  in  particular  to  Article  3,  shall  make  this  information  available  to  the 
developer." 

6.  Article 6(1) is replaced by the following: 

" 1.  Member States shall take the measures necessary to ensure that the authorities likely 
to  be  concerned  by  the  project  by  reason  of  their  specific  environmental 
responsibilities are given an opportunity to express their opinion on the information 
supplied by the developer and on the request for development consent.  To this end, 
Member States shall designate the authorities to be consulted, either in general terms 
or on a case-by-case basis, when the request for development consent is made.  The 
information  gathered  pursuant to Article  5  shall  be forwarded  to those authorities. 
Detailed  arrangements for consultation  shall be laid down by the Member States." 

7.  In  Article  6(2),  the  words  "before  the  project  is  initiated"  are  replaced  by  the  words 

"before development  consent is granted". 

8.  Article 7 is replaced by the following: 

"Article 7 

1.  Where a Member  State considers that a project referred  to in Article 4 is  liable to 
have  significant  adverse  effects  on  the  environment  of  another  Member  State,  or 
where  a Member  State whose  environment  is  liable to be  significantly  affected  so 
requests,  the  Member  State  on  whose  territory  the  project  is  located  shall 
communicate  to  the  other  Member  State,  at  the  latest  when  it  informs  its  own 
nationals, the information  specified  in Annex IV. 

2.  The  Member  States  concerned  shall  enter  into  consultations,  setting  a  reasonable 

timetable for: 

(i) 

the main alternative solutions to the project which have been examined; 

(ii) 

the measures which may be taken to avoid, reduce and, if possible,  offset the 
adverse transboundary  effects; 

(iii)  possible forms of mutual assistance to lessen any major harmful transboundary 

impact caused by the proposed project; 

(iv) 

the  measures  which  may  be  taken  to  ensure  the  monitoring  of  the 
transboundary  effects  of  the  project  at the  expense  of  the  Member  State in 
which the project is proposed. 

3.  The authorities of the Member State whose environment is liable to be significantly 
affected  shall hold consultations with the authorities concerned and with the public, 
in  accordance  with  the  provisions  of  Article 6  and  shall,  within  the  time  limit 
provided  for  in  paragraph 2,  communicate  their  opinion  on  the  project  to  the 
authorities of the Member State on whose territory the project is located. 

However, failure by the authorities of the Member State whose environment is liable 
to be affected to deliver the opinion mentioned in paragraph  1 within the time limit 
and in  the  form  specified  above,  those  authorities  having  been  properly  informed 
pursuant to paragraph 2, shall not provide grounds which may be invoked in support 
of  a challenge  to  the  validity  of  the  competent  authorities'  decision  regarding the 
project." 

16 

9. 

Article 8 is replaced by the following: 

"Article 8 

The  opinions  and the  information  gathered  pursuant  to  Articles  5,  6  and  7  must  be 
taken into consideration in the development  consent procedure." 

10.  Article 9 is replaced by the following: 

"Article 9 

When a decision has been taken, the competent authority or authorities shall  publish it 
and,  where  appropriate,  inform  the  other  Member  State  which  has  been  consulted 
pursuant to Article 7 thereof,  indicating: 

-  the content of the decision  and any conditions attached thereto; 

-  the reasons and considerations on which its decision to refuse to grant development 
consent,  or to  grant  development  consent  despite  receiving  unfavourable  opinions 
pursuant to Articles 6 and 7, is based; 

-  a description,  where  necessary,  of  the  measures to  avoid,  reduce  and,  if  possible, 

offset  the major adverse effects." 

11.  Article  11(2) is hereby deleted. 

1.2.  Article  13 is hereby deleted. 

13.  The Annexes are amended as shown in the Annex hereto. 

Article 2 

1.  Member States shall bring into force the laws, regulations and administrative provisions 
necessary  to  comply  with  this  Directive  by  30 June  1996  at  the  latest.  They  shall 
forthwith  inform  the Commission  thereof. 

When  Member  States  adopt  these  provisions,  these  shall  contain  a reference  to  this 
Directive  or  shall  be  accompanied  by  such  reference  at  the  time  of  their  official 
publication.  The procedure for such reference  shall be adopted by Member States. 

2. 

If  a  request  for  development  consent  has  been  submitted  to  a  competent  authority 
before  1  July  1996, the provisions of Directive 85/337/EEC prior to these amendments 
shall  continue to apply. 

Article 3 

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

This Directive is addressed to the Member States. 

Article 4 

Done at Brussels, 

For the Council 
The President 

17 

ANNEX 

1. 

Point  3 in  Annex  I is replaced  by  the  following: 

"3. 

(a) 

Installations for  the reprocessing  of irradiated  nuclear  fuel. 

(b) 

Installations designed  solely for the permanent storage or final disposal of 
radioactive  waste  and  centralized  temporary  storage  installations  for 
radioactive  waste or irradiated  nuclear  fuel." 

2. 

Point  6 in  Annex  I is replaced  by the  following: 

"6. 

Integrated  chemical  installations:  installations located  in  a geographical  area in 
which  several  units  for  the  industrial  production  of  chemical  products,  not 
necessarily  belonging to the same company,  are juxtaposed  and are  functionally 
linked to one another." 

3. 

Point  8 in  Annex  I is replaced  by the  following: 

"8. 

(a) 

Inland  waterways  which  permit 
1 350 tonnes; 

the  passage  of  vessels  of  over 

(b)  Trading  ports  and  port  installations,  including  offshore  installations,  and 
ports and installations for inland-waterway traffic which permit the passage 
of vessels of over  1 350 tonnes." 

4. 

Point  1 in  Annex  II is replaced  by the  following: 

" 1.  Agriculture 

(a) 

Projects  for  the restructuring  of  rural  land  holdings. 

(b) 

Irrigation  and  land  drainage  projects. 

(c)  Afforestation,  reafforestation,  deforestation. 

(d) 

Intensive  stockfarming. 

(e) 

Production  of exotic  species  of flora  and  fauna. 

(f) 

Intensive fish or  shellfish  farming." 

5. 

6. 

Letter  (h) under  point  3 in  Annex  II is deleted. 

Point  10 in  Annex  II  is replaced  by the  following: 

"10.  Infrastructure  projects 

(a) 

Industrial  estate development  projects. 

(b)  Urban  development  projects,  including  the  construction  of  shopping 

centres and  car parks. 

(c)  Doubling, electrification  and adjustment  to standard gauge of railway lines 
or tracks for  combined  transport,  construction  of  railway  and  intermodal 
transshipment  facilities,  and  of intermodal  terminals. 

18 

(d)  Construction  of airfields  and extension  of the airport capacity of  airfields 

(projects  not  listed  in  Annex I). 

(e)  Construction  and  upgrading  of  roads  (widening  and  alternative  routes), 
harbours  and  port  installations,  including  fishing  harbours  (projects  not 
listed  in Annex  I). 

(f) 

Inland-waterway  construction,  canalization  and  flood-relief  works. 

(g)  Dams and other installations designed to hold water or store it on a long-

term basis. 

(h)  Tramways, elevated and underground railways, suspended lines or similar 
lines  of  a  particular  type,  used  exclusively  or  mainly  for  passenger 
transport. 

(i)  Oil  and gas pipeline  installations. 

(j) 

Installation  of long-distance  aqueducts. 

(k)  Coastal  work  to  combat  erosion  and  maritime  works  capable  of  altering 
the  coast  through  the  construction,  for  example,  of  dykes,  moles, jetties 
and  other  sea defence  works." 

7. 

Point  11 in Annex  II is replaced  by the  following: 

"11.  Other  projects 

(a) 

Permanent  racing  and test tracks for  cars and  motor cycles. 

(b) 

Installations  for  the  disposal  of  industrial  and  domestic  waste  (unless 
included  in Annex I). 

(c)  Waste-water treatment  plants. 

(d) 

Sludge-deposition  sites. 

(e) 

Storage of  scrap iron. 

(f) 

Test benches for  engines, turbines  or reactors. 

(g)  Manufacture  of artificial  mineral  fibres. 

(h)  Manufacture,  packing, loading or placing in cartridges of gunpowder and 

explosives. 

(i)  Knackers' yards." 

8. 

The following  points are added to  Annex II: 

"11a  Tourism  and leisure 

(a) 

Ski-runs, bobsleigh  tracks and  ski-lifts  and  artificial  snow installations. 

(b)  Golf  courses and  associated  developments. 

(c)  Marinas. 

19 

(d)  Holiday  villages, hotel  complexes  and  associated  developments. 

(e)  Camp  sites and  caravan  sites 

(f) 

Leisure centres. 

1 lb  Land-use  projects 

(a)  Changes in the use of uncultivated  land,  semi-natural  areas and natural  or 

semi-natural  forests. 

(b)  Reclamation  of land from  the sea." 

9. 

Point  12 in Annex  II  is replaced by  the  following: 

"12.  Modifications  to projects  listed in Annex  I or Annex  II and projects in Annex I 
undertaken  exclusively  or  mainly  for  the  development  and  testing  of  new 
methods or products  and  not used  for  more than  two years." 

10.  A new Annex  Ha is inserted,  as follows: 

"ANNEX  Ha 

SELECTION  CRITERIA  REFERRED  TO IN ARTICLE  4(3) 

1.  Characteristics  of the  project 

The characteristics  of the project  must be considered  having regard,  in particular, to: 

-  the size of the project(1); 
-  the use of natural  resources; 
-  the production  of waste; 
-  pollution  and nuisances; 
-  the risk of accidents; 
-  the  impact  on  the  natural  and  historical  heritage  having  regard  to  the  existing 
functions  of  the  areas  likely  to  be  affected  (such  as  tourism,  urban  settlement, 
agriculture). 

2. 

Location  of the  project 

The environmental  sensitivity  of geographical  areas likely to be affected  by the project 

, 
(  must be considered,  having regard,  in  particular,  to: 

-  the relative abundance, quality  and regenerative  capacity  of natural  resources in the 

area; 

-  the absorption  capacity  of the natural  environment, paying particular attention to the 

following  areas: 

(a)  wetlands; 
(b)  coastal  zones; 
(c)  mountain  and forest  areas; 
(d)  nature reserves and parks; 

(1) 

The  size of  the  project  must  be  considered  in  relation  to the  duration,  frequency  and 
reversibility  of its likely  impacts. 

20 

(e)  areas already  classified  or protected  under Member  States' legislation; 
(f)  areas  in  which  the  environmental  quality  standards  laid  down  in  Community 

legislation  have already  been  exceeded; 

(g)  densely  populated  areas; 
(h)  landscapes of historical,  cultural  or archaeological  significance." 

11.  Point  2 in Annex  III is replaced  by the  following: 

"2.  A  description  of  the  main  alternatives  which  might  be  envisaged  and  an 
indication of the main reasons for the developer's choice, taking into account the 
environmental  effects." 

12.  A new Annex  IV is added,  as follows: 

"ANNEX  IV 

INFORMATION  REFERRED  TO IN ARTICLE 7 

1.  A  description  of  the  project  together  with  any  available  information  on  the  possible 

transboundary  impact. 

2. 

3. 

4. 

5. 

Information  on the nature of the decision  which  may be taken. 

A reasonable time limit within which the other Member  State must indicate whether it 
intends to take part  in the assessment  procedure.  Notification  of  such intention  shall 
be  accompanied  by  all  available  relevant  information  on the environment  in that  part 
of the territory  which  might be  affected. 

The information  gathered  pursuant  to  Article 5. 

An indication of the date on which a decision will be taken on the project  and the time 
limit,  calculated  on  a  reasonable  basis,  within  which  the  Member  State  likely  to  be 
affected  must  communicate  its  opinion  to  the  Member  State  on  whose  territory  the 
project  is located." 

21 

IMPACT ASSESSMENT  FORM 

THE  IMPACT OF THE PROPOSAL ON  BUSINESSES 

Title of  proposal:  Amendment  of  Directive  85/337/EEC  on  the assessment  of  the  effects 

of certain  public  and  private  projects  on  the  environment. 

The Proposal 

The proposal  does not impose new  obligations beyond  those already  present in the  existing 
Directive  85/337/EEC,  but  further  Community  legislation  is  necessary  in  this  area  for  the 
following  reasons: 

- 

- 

- 

to  remove  uncertainties  from  the  existing  Directive  as  revealed  by  the  review  of  its 
implementation  (COM(93) 28 final); 

to  provide  for  implementation  of  the  Convention  on  transboundary  EIA  (Espoo 
Convention: COM(92) 93 final), which requirements do not go beyond the existing Article 
7 of the Directive; 

to  improve  the  effectiveness  of  the  Directive  by  making  more  explicit  provision  for 
screening Annex II projects for their need for  EIA and for  scoping and monitoring of the 
assessment.  Since  some Member  States have adopted  these provisions  and  others  have 
not, both environmental  protection  and distortion of the market are affected  in the absence 
of legislation  at Community  level; 

- 

to  clarify  various  terms  used  in  the  Directive  (for  example  "integrated  chemical 
installation"). 

The impact  on  businesses 

Who will  be affected  by the proposal? 

Bearing in mind that no new obligations concerning the procedure which is to be applied are 
imposed by this proposed  modification: 

- 

- 

- 

- 

there  are three  additions  to Annex  I  requiring  compulsory  assessment  which  will  affect 
only  those businesses  engaged  in the treatment  of  spent nuclear  fuel  and those  carrying 
out projects  listed  in  Annex  II,  capable  of  affecting  the  special  protection  areas (SPAs) 
provided  for  in Community  environmental  protection  legislation; 

in the main, therefore, the additions to Annex I will have impacts only upon a very small 
number  of  projects  by  the  large-scale  nuclear  industry.  As  regards  Annex  II  projects 
located in or affecting  SPAs, it is impossible to identify  whether these will be carried out 
by large, medium  or small-scale businesses. 

the new screening provision  will  avoid the application  of EIA for  (mostly  small) Annex 
II projects  without  likely  significant  environmental  impacts; 

the  benefit  of  the  scoping  provision  will  be  that  the  process  of  producing  an 
environmental  impact  statement in accordance with the requirements of Annex III to the 
Directive  is  likely  to  be  accelerated,  since  the  coverage  required  by  the  statement  will 
have been  set and agreed  upon in  advance of its production  rather than  after  it has been 
submitted  to  the  competent  authority.  This  has been  welcomed  by,  among  others,  the 
electricity  generating  and  distribution  industry  in Europe; 

22 

-  no  particular  type  of business  is  affected  by  the  proposed  insertion  of  a  requirement  to 
provide  details  of  monitoring  of  impacts,  although  it will  not  really  affect  certain  types 
of finite project  as much  as those with  a continuing  impact  on the  environment. 

What will  businesses have to do to comply  with  the  proposal? 

In the vast majority  of cases, no more than they do currently under the existing Directive on 
EIA.  Except for the obligation to submit certain projects (i.e. spent nuclear fuel  reprocessing 
and  those  affecting  protected  zones)  to  an  assessment,  there  is  no  great  increase  in  the 
numbers  of EIAs that  will  be  required  of  businesses  in  the Member  States.  The  screening 
process, as well  as some of the clarifications  to the projects  listed  in Annex II, will  serve to 
reduce the burdens on certain  businesses. 

The  new  requirement  concerning  scoping  of  the  assessment  is  expected  to  speed  up  the 
process  of  information-gathering.  Also  it  will  reduce  the  need  for  late  and  expensive 
additional work to a submitted environmental impact statement, since its scope will have been 
set in advance. 

What economic  effects  is the proposal  likely  to have? 

On  employment: 

- 

since the purpose  of EIA  is not to  prevent  development  but to provide  decision-makers 
with  better  information  on  impacts,  mitigatory  measures  and  alternative  locations  and 
developments,  the  impact  on  employment  is  likely  to  be  negligible  other  than  in  local 
terms  where  there  may  be  some  relocation  of  projects  as  a  result  of  EIA.  Also  some 
increase  in consultancy  work  can be expected. 

On investment  and the creation  of businesses: 

-  given  clearer  information  on the impact  of  a proposal,  both  investors  and  entrepreneurs 

will  be better informed  of the risks inherent  in  a particular  project; 

On the competitive  position  of businesses: 

-  within  the  Community,  assuming  correct  transposition  by  all  Member  States, the  effect 
should  be neutral.  As regards  other  countries,  the  effect  will  depend  upon the  regimes 
operated there since certain countries, e.g. Canada and the USA, have similar if not more 
advanced  systems  of  EIA  (including  assessment  in  certain  cases  at  the  higher  levels of 
policy, plan and programme-making).  Assessment in the developing countries is usually 
less well-developed. 

Does  the  proposal  contain  measures  to  take  account  of  the  specific  situation  of  small  and 
medium-sized firms (reduced  or different  requirements  etc.)? 

Under the terms of the new Article 4 it is the competence of Member  States to determine, on 
the  basis  of  specified  criteria,  whether  their  probable  impact  gives  rise  to  the  need  for 
assessment.  This  gives  Member  States the  opportunity  to  specify  levels  of  activity  which 
would  exclude  small  or  medium-sized  enterprises  being  required  to  carry  out  an  EIA  for 
projects  normally  contemplated  by  such  size of businesses.  It is unlikely  that  SMEs would 
be carrying out an Annex  I  project. 

Consultation 

Outside the Commission  the  Member  States  Experts  Working  Group has considered  the 
proposal  at three meetings and has amended it in a number of  significant  respects as a result 
(for  example, by the removal  of a number  of projects  introduced  into Annex I). 

23 

Also  comments  made  by  UNICE  have  resulted  in  other  amendments  to  the  proposal,  in 
particular concerning the definition  of integrated chemical  installations. 

Within the Commission  it was anticipated that other DGs might be in the position to bring 
into the discussion the major considerations to be expected in their respective policy sectors. 

However,  consultations with the Economic  and Social  Committee  under Article  198 of the 
Treaty will  guarantee a wide-ranging debate with the socio-economic  groups involved. 

24 

ISSN 0254-1475 

COM(93) 575 final 

DOCUMENTS 

EN 

14 

Catalogue number : CB-CO-93-613-EN-C 

ISBN 92-77-61503-6 

Office for Official  Publications of the European Communities 

L-2985 Luxembourg 

25