Opinion of the Commission pursuant to Article 251 (2) (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2000-10-16
Institutions: European Commission
Subjects: access to EU information, environmental impact, environmental policy, sustainable development, transparency in decision-making

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 16.10.2000
COM(2000) 636 final

1996/0304 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2) (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on the assessment of the effects of certain plans and programmes
on the environment

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

EXPLANATORY MEMORANDUM

Article 251, paragraph 2, letter c) of the Treaty establishing the European Community
establishes that the Commission gives an opinion on the amendments proposed by the
European Parliament in the second reading.

The Commission hereafter gives its opinion on the seventeen amendments adopted by the
European Parliament.

1.

BACKGROUND

to the Council and the European
Transmission of
Parliament (COM(1996)511 final) (in accordance with Article 175 (1)
of the Treaty)

the Proposal

25 March 1997

Opinion of the Economic and Social Committee

28 May 1997

Opinion of the Committee of the Regions

20 November 1997

Opinion of the European Parliament – first reading

20 October 1998

Amended Proposal of the Commission (COM(1999)73 final)

18 February 1999

Adoption of the Common Position

30 March 2000

Communication from the Commission to the European Parliament
concerning the Common Position (SEC (2000)568 final)

7 April 2000

Opinion of the European Parliament – second reading

6 September 2000

The second reading of the European Parliament on the one hand strengthens the Common
Position in a number of areas, but on the other hand also introduces some significant
limitations.

The Common Position is strengthened in areas such as information provision and public
participation, monitoring of the effects of the implementation of plans and programmes on the
environment and the quality and content of the environmental report; some additional plans
and programmes are added to the scope.

Limitations have been introduced into the Common Position with respect to the flexibility
allowed for screening of plans and programmes and for the implementation of the Directive
where assessment obligations are arising simultaneously from this Directive and other
Community legislation. Moreover, the scope of the Common Position is strongly reduced for
plans and programmes that form part of a planning hierarchy.

2.

OBJECTIVE OF THE COMMISSION PROPOSAL

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

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

3.

COMMISSION OPINION ON THE AMENDMENTS ADOPTED BY THE PARLIAMENT

17 amendments have been adopted by the Parliament. The Commission can accept one
amendment fully (1), one amendment partly in principle (9 - the part on the requirement for a
reasoning not to require a SEA) and seven amendments in principle (15, 17, 18, 20, 23, 24
and 25).

The remaining eight amendments (7, 10, 11, 14, 16, 19, 22, 27) and the remaining part of
amendment 9 (requirement for a reasoning to require a SEA) are not acceptable.

The Commission’s position with regard to the amendments adopted by the European
Parliament is as follows:

3.1.

Amendment accepted by the Commission

Amendment 1 is acceptable to the Commission. It refers to the UN Convention on Biological
Diversity, is in line with the spirit and wording of this Convention and fits into the context of
the Directive.

3.2.

Amendments accepted in principle by the Commission

Amendment 9 asks for making available to the public the reasoning to require or not to
require SEA in case a screening determination has been made. The Commission considers
that such a justification is appropriate only when it is determined that no SEA is necessary. In
this case, such a justification would represent useful information for the public and increase
the transparency of the decision-making. For these reasons, this amendment is accepted partly
in principle. The amendment could be reworded in order to reflect this point in the following
way “as well as the reasons for not requiring an environmental assessment pursuant to
Articles 4 to 9”.

in principle. It should be ensured, however,

Amendment 15 defines in further detail the public to be consulted. The Commission accepts
this amendment
the wording of the
amendment is made sufficiently clear and in line with the UN-ECE Convention on access to
information, public participation in decision-making and access to justice in environmental
matters. For this purpose, the Commission proposes to add after the words “the decision-
making process” the following words: “subject to this Directive”.

that

Amendment 17 adds the “monitoring measures decided” to the information to be given on the
decision (see also amendments 18 and 25) and thus contributes to transparent decision-
making. The Commission accepts this amendment in principle, but considers that it should be
streamlined with amendments 18 and 25. This can be done by replacing the words starting

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with “the implementation of…” from this amendment with “the effects of the implementation
of plans or programmes on the environment and of the measures decided to prevent, reduce
and as fully as possible offset any significant adverse effects on the environment”.

Amendment 18 requires the establishment of monitoring systems (see also amendments 17
and 25). The Commission accepts this amendment in principle and suggests streamlining with
amendments 17 and 25 in the following way: “Member States shall establish appropriate
systems for monitoring the effects of the implementation of plans or programmes on the
environment and the effectiveness of the measures decided to prevent, reduce and as fully as
possible offset any significant adverse effects on the environment and of any remedial action
that may be required.

Amendment 20 proposes to strengthen the provision on the quality of the environmental
reports. As their quality will be important for achieving the objectives of the future directive,
the Commission accepts this amendment in principle, but considers that the wording should
be streamlined. This can be achieved by formulating the amendment in the following way:
“Member States shall ensure that necessary measures are taken in order to guarantee that the
environmental reports are of an appropriate quality. Member States shall communicate to the
Commission what these measures are. ”.

Amendment 23 broadens the scope of application of the Directive slightly to planning that
was started before the transposition date of the Directive and where the plan would be
adopted after more than one year after that date. The Commission accepts this amendment in
principle provided the timing element is clarified. This could be achieved by adding the word
“after” after the words “will occur”.

Amendment 24 specifies the environmental aspects to be dealt with in the environmental
report. The Commission accepts this in principle, but considers that these aspects should be
aligned with other Community legislation. In particular, “cultural heritage” should be used
instead of “architectural and archaeological heritage”, because this term is in line with
Directive 85/337/EEC and covers more aspects.

Amendment 25 broadens the information requirements of the environmental report. The
environmental report should include both information on measures for monitoring the effects
of the implementation of the plans or programmes on the environment and information on
measures for monitoring the effectiveness of the mitigation measures. For this purpose and in
order to streamline this amendment with amendment 18 and especially amendment 17, a
technical amendment is needed in the first part of Annex I(i) and the comma (“,”) between the
words “plan or programme” and “and the effectiveness” should be dropped. Annex I(i) would
then read as following: “a description of the measures envisaged for monitoring the effects of
the implementation of the plan or programme on the environment and the effectiveness of
any measures to prevent, reduce or offset any adverse effect on the environment;”

3.3.

Amendments not accepted by the Commission

Amendment 7 drops the possibility of screening plans and programmes by specifying types of
plans and programmes or by combining this with case by case examination. This would mean
that all plans or programmes subject to screening would have to undergo a case by case
examination, even in the case where it is for instance almost certain that they are likely to
have significant impacts on the environment. In such cases, this examination would clearly be
superfluous and the screening process needs flexibility. For these reasons, this amendment is
not acceptable to the Commission.

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Amendment 9 asks for making available to the public the reasoning to require or not to
require SEA after a screening determination has been made. The Commission cannot accept
the part of the amendment to require a justification if the decision is to require a SEA. Such a
requirement would create unnecessary administrative burden especially since the SEA process
itself already provides for information and consultation rights to the public. Therefore, only
the requirement to give a reasoning not to require a SEA can be justified.

Amendment 10 includes all future plans and programmes under the current Structural Funds
and rural development Regulations or under new EC Regulations into the scope of this
Directive. The Commission cannot accept this amendment which raises several difficulties.
Firstly, it cannot be anticipated that all future plans or programmes funded by these or new
EC Regulations will have a significant impact on the environment and this Directive should
concentrate on those. Secondly, as regards the Structural Funds Regulation, this proposed
clause would in practice apply only to the Structural Funds after 2006 given that almost all the
plans and programmes under the current 2000 – 2006 Structural Funds period have already
been decided or will be decided well before the final adoption of this Directive. It cannot be
anticipated how the future Structural Funds Regulations will look like after 2006. Therefore,
for the six coming years, the practical effect of this proposal would be insignificant and for
the next programming period, it is definitely premature to make proposals. Thirdly, as regards
the Structural Funds, the amendment would leave the review report of article 11(4) of this
Directive on this matter without purpose. The content and form of future Structural Funds
plans and the outcome of the Commission report on the relation between Structural Funds and
this Directive are not known yet and should not be anticipated.

Amendment 11 turns the requirement of the common position for making assessments at
different levels of a planning hierarchy into the possibility to make assessments at only one
level and states that the aims, content and validity of the Directive shall remain unaffected by
this. The Commission cannot accept this amendment because enabling Member States to
define one level at which an assessment is carried out would strongly reduce scope of this
Directive and go against its objectives. Additionally, the last sentence of this amendment is in
this
contradiction to its first part and would introduce legal uncertainty. Moreover,
amendment could impede a harmonised application of the Directive within the Member
States.

Amendment 14 provides for public consultation “in appropriate timeframes to be defined by
the Member States” instead of “within appropriate time frames” as provided in the common
position. This amendment is not acceptable to the Commission because it represents no
improvement to the Directive. Article 6(5) already provides that the detailed arrangements for
the information and consultation shall be determined by the Member States.

Amendment 16 proposes to open transboundary consultations up to States other than Member
States. This Directive deals with relations between Member States. The relations between
Member States and third countries are subject to international law. In the context of the UN-
ECE Convention on environmental impact assessment
is
currently foreseen that the next meeting of the parties would decide to start negotiations on a
the
transboundary SEA protocol which will cover
Commission cannot accept this amendment.

in a transboundary context,

these aspects. For

these reasons,

it

Amendment 19 makes the use of co-ordinated or joint procedures mandatory when the
obligation to carry out assessments of the effects of plans or programmes on the environment
arises simultaneously from this Directive and other Community legislation. The Commission
cannot accept this amendment because Member States should, in line with the subsidiarity

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principle, have the choice of how they implement the requirements of the Directive into their
national planning systems.

Amendment 22 proposes to broaden the Commission reporting requirement on the relation
between this Directive and the Structural Funds and Rural Development Regulations to the
relation between this Directive and other related Community legislation. As this aspect is
already covered by the report referred to in Article 11(3) and as such relationship is in general
terms already dealt with in article 10 of the common position,
the amendment would
introduce duplication. For these reasons, the Commission cannot accept this amendment.

Amendment 27 adds ‘plans or programmes which are funded by the European Union’ to the
definition of plans and programmes. The Commission cannot accept this amendment because
the simple fact that plans or programmes are funded by the European Union does not
necessarily mean that they are likely to have a significant effect on the environment. This
addition is also irrelevant for the definition of plans and programmes.

3.4.

Amended Proposal

Having regard to Article 250, paragraph 2 of the EC Treaty, the Commission modifies its
proposal as indicated above.

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