Amended 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: 1996-01-18
Institutions: European Commission
Subjects: environmental protection, industrial project, private sector, project evaluation, public sector

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  18.01.1996 
COM(95)720 final 

94/0078 (SYN) 

Amended  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  pursuant to Article  189 a (2) 
of the EC-Treaty) 

Explanatory  memorandum 

In accordance  with  Article  130s, paragraph  1, of  the EC  Treaty,  the  Council  consulted 
the European Parliament on the proposal for a Directive amending Directive 85/337/EEC 
on the assessment of the effects  of certain public and private projects on the environment 
(COM(93)  575 final, 94/0078  (SYN)).  At  its  Sitting  of  11 October  1995 the  European 
Parliament approved 58 amendments,  16 of which are accepted by the Commission, either 
in whole or in part1. These amendments are discussed below and included in the present 
modified  proposal. 

Amendments  accepted by the  Commission 

Amendments  of  the  recitals:  Relevant  background  matters  like  the  Fifth  Action 
Programme  on  the  Environment  and  Conclusions  of  the  Dublin  European  Council  are 
now  included  in  the  recitals  as  well  as  an  indication  of  the  Commission's  intention  to 
incorporate the main principles of the Espoo Convention  into the Directive (amendments 
2,  5,  11 and  15). An amendment  on a "high" level  of protection  and  "similar" criteria is 
in  line with  the purpose  of the Commission's  proposal  (amendment  3). As amended  by 
amendment  8, recital  3 will  better  reflect  the proposal, which  will  alter to some extent 
the scope of Member  States' obligations. 

Amendment of  articles of Directive 85/337/EEC:  As amended  in line with the first  part 
of amendment  32 it  is made clear in the directive that  projects  which  require an assess 
ment have to be made subject to a requirement  for  development  consent.  The Commis 
sion considers, however, that the amendment would fit better with the body of the Direc 
tive if  the change is  made to Article 2(1)  instead  of  Article  6,  as proposed by  the  Par 
liament. 

In Article 3 the definition  of the environmental  factors  covered by an assessment will be 
clarified  (amendment 25). In Article 5 the minimum list of information  to be gathered for 
an  environmental  impact  assessment  will  be  reintroduced.  This  will  aid  harmonisation 
within  the Member  States (amendment  28).  Article  7 will  be  improved  by  inserting  a 
new  opening  paragraph  concerning  the  timetable  for  consultations  in  a  transboundary 
context  (the first part  of the amendment  33). 

In Article  9 a new  final  paragraph  will  be  inserted  indicating that  the  detailed  arrange 
ments for  publishing  a development  consent  decision  are to  be  determined  by  Member 
States (the last part  of amendment 34). 

Amendment of Annex I of Directive 85/337/EEC: The scope of Annex I will be improved 
by  adding a reference to projects relating to certain activities, for example the production 
and enrichment of nuclear fuel,  installations for  the incineration  of waste, ground water 
(amendments  44  and  46  and 
abstraction,  and  certain  intensive  lifestock  installations 
points 9a,  9d,  9e, 9f,  9i,  9n and 9s of  amendment 47). 

Amendment  of  Annex  II  of  Directive  85/337/EEC:  The  scope  of  Annex  II  will  be 
improved  by  inserting  a  reference  to  extraction  of  minerals  by  marine  dredging,  to 

Minutes  of the Sitting of  11 October  1995, provisional  edition,  PE  194.336. 

windfarms,  to  permanent  racing  and  test  tracks,  the  storage  of  scrap  iron  and  scrap 
vehicles  and to cable  cars (certain  parts of  amendments  50  and  51). 

Amendments  not  accepted  bv  the  Commission 

Amendments  of  the  recitals:  The  amendments  not  accepted  to  the  recitals  generally  do 
not  fit  in with  the proposal,  are linked  with  other amendments  which  are being  rejected 
or  overlap  with  other  amendments.  They  concern  the  Fifth  Action  Programme  on  the 
Environment  (amendment  1),  "second  expert  opinions"  (amendment  6),  carrying  out  a 
cost benefit  analysis before carrying out a project (amendment  9), avoiding distortions  of 
competition (amendment 71), the definition  of the environment (amendment  12), the need 
to pay  particular attention to islands (amendment  13), mechanism  for determining  which 
projects  are  to  be  assessed  (amendment  14)  and  the  need  to  harmonise  community  law 
(amendment  17). 

Amendment of articles of Directive 85/337/EEC: In general the proposed amendments not 
accepted to the Articles overlap with  other Community  proposals or legislation  or do not 
fit  in  with  the  approach  taken  in  the  proposal.  In  the  case  of  some  amendments  it  is 
considered  that  the  Directive  is  not  an  appropriate  instrument  for  implementing  the 
amendments  proposed. 

Regarding Article  1 it was suggested that a requirement for an assessment of programmes 
be  inserted  (amendment  19,  as  well  as  amendments  4  and  7  of  the  recitals),  but  this 
should be dealt with in a separate proposal.  It was also proposed to amend the  definitions 
(amendments 20 and 21). These proposals are already covered by the Directive or overlap 
with other amendments. Furthermore,  it is  not considered appropriate to include projects 
for  national  defence  purposes  (amendment  22).  The  exemption  of  projects  adopted  by 
specific  acts  of  national  legislation  (amendment  23)  is  not  in  line  with  the objective  of 
avoiding  duplication  which  objective  already  is  indicated  in  the  Directive. 

Concerning  Article  2,  it  was  suggested  that  new  arrangements  be  inserted  for  applying 
the  power  to  exempt  specific  projects  in  exceptional  cases  (amendment  24  and 
amendment  18 of the recitals); this is not considered necessary  since this power is rarely 
used.  As  regards  Article  4,  the  goal  of  the  Commission  proposal  is  to  establish  a  clear 
and  effective  mechanism  for  determining  which  Annex  II projects  have  to  be  assessed. 
In  this  context  it  is  not  considered  that  amendment  26  would  improve  the  text  of  the 
proposal. 

With regard to Article 5(1), a new scoping process is foreseen with consultations between 
the  developer  and  the  authorities.  It  was  suggested  that  this  be  amended  by  inserting 
public  involvement  in  the  scoping  phase  (amendment  27).  This  provision  is  considered 
too far reaching.  The rest of the suggested  amendments to this Article are not  considered 
to  improve  the  Commissions  proposal  i.e.  information  to  be  available  to  the  developer 
(amendment  29),  a register of  environmental  impact  assessment  consultants  (amendment 
30)  and  civil  liability  (amendment  31). 

Regarding  Article  6,  a proposal  was made  concerning  the details  of  public  consultations 
(the second part of  the  amendment  32)  and on  Article  7  on transbouisdary  conauNations 
a  proposal  was  made  to  set  out  detailed  procedural  requirements  (the  inaj«rity  of 

amendment  33  and  amendment  18 of  the  recitals). However  the Commission  considers 
that  such  details are best worked  out by  Member  States themselves. 

Regarding Article 9, the Commission  proposed  that the development  decision  sliould be 
notified  to an affected  Member State in a transboundary  case. This should not be deleted 
as suggested  in the first part  of the amendment  34.  Amendment  34 also suggested that 
environmental compensation would be dealt with here, but the Directive is not considered 
to be an appropriate instrument for dealing with this matter. Furthermore it was suggested 
that post-consent monitoring be included, (amendments 36, 37 and amendment  16 of the 
recitals), but this would overlap with other Commission proposals such as the draft Direc 
tive on Integrated  Pollution  Control. Regarding  setting up an ad hoc committee to assist 
the Commission  when reviewing the effectiveness  of the Directive (amendment 38), the 
Commission  already  has regular  contacts  with  Member  States to  discuss the  Directive. 
Requirements  on  environmental  impact  assessment  are  also  proposed  in  respect  of 
projects outside of the EU which receive financing from the EU (amendments 39 and 84). 
This  kind  of  assessment  requirement  is  more  appropriate  to  the  relevant  Community 
funding  instrument. 

Amendment  of commencement  provision.  There  are two  suggestions  regarding  com 
mencement provisions (amendments 40 and 41). However, the provisions of the Directive 
as adopted  in  1985  should  apply  to  all  applications  received  before  the  date  on  which 
Member  States have to comply  with the provisions  of the proposal. 

Amendment  of  Annex  I of  Directive  85/337/EEC:  Certain  amendments  have  not  been 
accepted because the definitions  therein  are too imprecise to be useful  (amendments 42, 
43,  45 and points 9b, 9c, 9g, 9h,  9j, 9k, 91, 9m,  9o, 9p, 9q, 9r  and 9t to 9w of amend 
ment 47). 

Amendment  of  Annex  II  of  Directive  85/337/EEC:  It  was  suggested  that  new  types  of 
projects be introduced to Annex II. However a large number of projects will  not usually 
have  significant  environmental  effects  or  are  already  adequately  dealt  with  in  the 
Directive (this applies to amendments 49 and the rest of the amendments 50 and 51 men 
tioned  above,  52, 53, 54 and 65). 

Amendment  of the New Annex Ha of Directive 85/337/EEC: To the new Annex Ha two 
amendments  have been  proposed. However  the  "rational  use of energy" proposal  can be 
dealt with under the existing  "use of natural  resources" heading  (amendment  55). In the 
other amendment the aim was to impose a requirement on the contents of land use plans, 
which  are not  covered  by the Directive  (amendment  56). 

Amendment  of  Annex  III  of  Directive  85/337/EEC:  Two  proposals  have been  made to 
amend  Annex  III concerning  the information  collected  under  Article  5. It  is  considered 
unnecessary  to spell out in the Directive the definition  of "alternatives" (amendment 57). 
It  is not  considered  appropriate  to refer  to  "insurance  cover"  in  Annex  III  (amendment 
67). 

In  accordance  with  Article  189  A  paragraph  2  of  the  EC  Treaty,  the  Commission 
modifies  as follows the text of its proposal  concerning environmental  impact  assessment 
in order to include the accepted  amendments  into its proposal. 

AMENDED PROPOSAL FOR A COUNCIL  DIRECTIVE  AMENDING 
DIRECTIVE  85/337/EEC ON THE ASSESSMENT  OF  THE  EFFECTS  OF 
CERTAIN  PUBUC  AND PRIVATE  PROJECTS ON  THE  ENVIRONMENT 

COM(93) 575 final, SYN 94/0078 

(Submitted  by the Commission  pursuant to Article  189a (2) of the EC Treaty  on***) 

ORIGINAL  TEXT 

AMENDED TEXT 

Recital  1 

Whereas  the  main  purpose  of  the  envi 
ronmental  assessment  procedure  under 
Council  Directive  85/337/EEC4  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 environ 
ment; whereas the assessment  procedure 
is therefore  a fundamental  instrument of 
environmental  policy  as  defined 
in 
Article  130r of the Treaty; 

Whereas  the  main  purpose  of  the  envi 
ronmental  assessment  procedure  under 
Council  Directive  85/337/EEC4  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 environ 
ment; whereas the assessment  procedure 
is therefore  a fundamental  instrument of 
environmental  policy  as  defined 
in 
Article  130r  of  the  Treaty  and  of  the 
Fifth  Community  programme  of  policy 
and action in relation to the environment 
and sustainable development: 

Recital  2 

Whereas  a sufficient  degree  of environ 
mental  protection  must  be  ensured  at 
Community  level  by  laying  down  a 
general  assessment  framework  and  cri 
teria  for  defining  those  projects  which 
must be submitted  for an  environmental 
assessment; 

Whereas a high degree of environmental 
protection must be ensured  at Commun 
ity  level  by  laying  down  a  general 
assessment  framework  and  similar  cri 
teria  for  defining  those  projects  which 
must be  submitted  for  an  environmental 
assessment; 

Recital  2b  (new) 

Whereas  the  conclusions  of  the  Dublin 
European  Council  stipulate  that the pur 
pose of action  by the Community  and its 
Member  States  must  be  to  guarantee 
their  citizens  the  right  to  a  clean  and 
healthy  environment: 

Recital  3 

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

that 

the 

so 

Whereas  the  report  on  the  implementa 
tion of Directive 85/337/EEC, as adopted 
by  the  Commission  on  2  April  1993, 
shows  that there  are problems in  apply 
ing the Directive; whereas certain  provi 
sions of the Directive should therefore be 
clarified 
assessment 
procedure  may  produce greater  benefits, 

that 

the 

so 

Recital  4 

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

introduce 

to 

Whereas experience acquired in environ 
it 
mental 
necessary 
provisions 
designed  to  improve  the  rules  on  the 
assessment  procedure; 

impact  assessment  makes 
introduce 

to 

p/v»p/impact/KIA/<lirectiv/amen-en 
/em 

Recital 7 

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, 

Whereas it is necessary to incorporate in 
this Directive the main principles of the 
Convention  on  environmental  impact 
assessment  in  a  transboundary  context 
(Espoo  Convention),  which  the  Com 
munity  signed  at  the  same  time  as  the 
Member States on 25 February  1991, 

Article  1 (la)  (new) 

Article 2  (1)  is  replaced by  the  follow 
ing: 

Member  States shall  adopt all  measures 
necessary to ensure that projects likely to 
have  significant  effects  on the environ 
ment by virtue inter alia of their nature, 
size  or  location  are  made  subject  to  a 
requirement for development consent and 
an  assessment  with  regard  to  their 
effects. 

These projects are defined m Article 4.' 

Article  1 (lb)  (new) 

Article  3  is  replaced  by  the  following: 

'Article 3 

The  environmental 
impact  assessment 
will  identify,  describe  and  assess  in  an 
appropriate  manner,  in  the  light  of  each 
individual  case  and  in  accordance  with 
Articles  4  to  11.  the direct  and  indirect 
effects  of  a  project  on  the  following 
factors: 

human  beings  (including  their 
health  and  safety  and  quality  of 
life),  fauna  and flora; 

soil,  water, air, climate, and land 
scape; 

material  assets  and  the  cultural 
heritage 
(including  historical 
monuments  and  buildings  and 
other buildings); 

z 

interaction  between  the  factors 
mentioned  in  the  first,  second 
and third  indents.' 

4. 

Article  5  (2)  is  deleted. 

Deleted. 

Article  1 (4) 

Article  1 (8) 

2. 
The  Member  States  concerned 
shall  «nter  into  consultations,  setting  a 
reasonable timetable for: 

2. 
The  Member  States  concerned 
shall  enter  into  consultations,  and  shall 
set a reasonable time limit for the length 
of  the  consultation  period  for: 

Article  1 (10),  final  paragraph  of  Article  9  (new) 

The detailed arrangements for such infor 
mation shall be determined by the Mem 
ber  States ' 

ANNEX  (1) 

3.(a) 

Installations  for  the  reprocessing 
of  irradiated  nuclear  fuel; 

3.(a) 

Installations  for  the  reprocessing 
of  irradiated  nuclear  fuel; 

(b)  Installations  designed  solely  for 
the  permanent  storage  or  final 
disposal  of  radioactive  waste 
storage  installations  for  radioac 
tive  waste  or irradiated  fuel.' 

(b)  Installations  designed  solely  for 
the  production  or  enrichment  of 
nuclear  fuels,  the  processing  of 
irradiated  nuclear  fuels  or  other 
radioactive  waste,  the  permanent 
or  temporary  storage  and/or  the 
disposal  of  radioactive  waste  or 
irradiated  nuclear  fuel: 

-bai-

The dismantling of nuclear power 
stations.' 

ANNEX  (3a)  (new) 

Point  9  in  Annex  I  is  replaced  by  the 
following:: 

'9.  Waste  disposal  installations  for 
the  incineration,  chemical  treat 
ment  or : landfill  of  toxic  and 
dangerous  wastes,  and  installa 
tions 
incineration  of 
industrial  and  domestic  waste 
with a capacity  of more than 300 
tonnes  per day.' 

for  the 

ANNEX  (3b)  (new) 

The following points are added to Annex 
L 

10. 

Ground-water  capture  schemes 
where  the  annual  volume  of 
water captured is equivalent to or 
exceeds  10 million  cubic  metres. 

11.  Works  for  the  transfer  of  water 

resources  between  river basins. 

a 

12.  Waste  water  treatment  plants 
with 
exceeding 
capacity 
300  000  population  equivalents1 
including  the  management  and 
treatment  of  the  sludge. 

13. 

14. 

15. 

Installations for the production of 
hydrocarbons  at sea. 

Dams  and  other 
installations 
designed  for  the  holding  back  or 
permanent  storage  of  water  with 
a capacity  of more than  100 Hm3. 

intensive 
Installations  for 
rearing  of  poultry  or  pigs  with 
more than: 

the 

40,000  places for poultry; 

2,000  places  for  the  pro 
duction  of  pigs  (over  30 
kg),  or 

750  places  for  sows. 

For  the  purpose  of  this  Directive, one  population  equivalent  is an  organic  biodegradable  load 
having a five day  biochemical  oxygen demand  of 60g of oxygen per day. 

ANNEX  (5a)  (new) 

The  following  new  pqwfe  jfe  aj<fed 
under points  2  and  3 in  Annex  H: 

2.  Extractive  Industry 

Extraction  of  minerals  by  marine 
dredging. 

3.  Energy  Industry 

installations 

Large-scale 
the 
harnessing of wind power for energy 
production  (wind  farmsY 

for 

ANNEX  (7) 

Other  projects 

11.  Other  projects 

(a)  Permanent racing and test tracks for 

(a)  Permanent racing and test tracks for 

cars and motor cycles. 

motorised vehicles. 

(e)  Storage  of  scrap iron. 

(e)  Storage  of  scrap  iron  and  scrap 

vehicles. 

(j)  Cable cars 

10 

ISSN 0254-1475 

COM(95) 720  final 

DOCUMENTS 

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ISBN 92-77-98415-5 

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