Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Council Directives 85/337/EEC and 96/61/EC"
Date: 2001-05-30
Institutions: European Economic and Social Committee
Subjects: EU environmental policy, application of EU law, environmental monitoring, environmental protection, pollution control measures, public awareness campaign

7.8.2001

EN

Official Journal of the European Communities

C 221/65

4.3.
The Committee asks the Commission to consider an
extension of the deadline for an evaluation of the regulation
from the proposed three years to five years. The Committee
does not think it realistic to expect a thorough assessment of
the effectiveness and quality of the statistical data collected
after such a short period, or to be able to present a reasoned
report to the European Parliament and the Council.

4.4.
The Committee recommends exploiting all technologi-
cal potentialities for the collection of statistics. It is thinking in
particular of the possibilities opened up by satellite communi-
cations. In addition it attaches great importance to keeping the
applicant countries and Switzerland of future obligations, so
as to further improve the comparability of statistics in the
future.

Brussels, 30 May 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Directive of the European
Parliament and of the Council providing for public participation in respect of the drawing up of
certain plans and programmes relating to the environment and amending Council Directives
85/337/EEC and 96/61/EC’

(2001/C 221/09)

On 14 February 2001 the Council decided to consult the Economic and Social Committee, under
Article 175 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 10 May 2001. The rapporteur
was Mr Braghin.

At its 382nd plenary session (meeting of 30 May 2001) the Economic and Social Committee adopted the
following opinion with 109 votes in favour and 3 abstentions.

1.

Introduction

regards the authorisation of categories of industrial activities
listed in the relevant annex.

1.1.
The proposal in question is intended to promote the
alignment of Community law with Articles 6 and 7 of the
Aarhus Convention covering public participation in environ-
mental decision-making and access to justice in environmental
matters,
thus enabling the Commission to meet its own
international commitments and open the way to ratification
of the Convention by the European Community.

These articles contain provisions on informing and
1.2.
consulting the public before decisions with an environmental
impact are adopted: the proposal mentions a series of amend-
ments to Directive 85/337/EEC (‘the EIA Directive’) on the
impact of certain public
assessment of the environmental
and private projects, and to Directive 96/61/EC (‘the IPPC
Directive’) on integrated pollution prevention and control, as

1.3.
Action at Community level is deemed to be necessary
to ensure that the procedures governing public participation
in the environmental decision-making process are uniform in
all Member States, leaving it to the Member States themselves
to define the practical ways of implementing them.

1.4.
Since all the Member States and the Community have
already signed the Convention, the proposal should not give
rise to additional costs for the Member States apart from
those arising in any case from transposing the Convention’s
provisions into national law. However, there are likely to be
costs connected with the more widespread dissemination of
information, with the organisation and analysis of contri-
butions (envisaged also in the form of opinions) deriving from
public participation, and with possible consultation of the
public through public-opinion surveys and subsequent publi-
cation of the decisions taken.

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2. Comments

first with its proposal

2.1.
The Committee thinks the Commission is right to
attach importance to providing the public with environmental
to amend Directive
information,
90/313/EEC (1) and now with the present draft directive on
public participation in the drawing up of certain plans and
programmes relating to the environment. The subject is highly
important politically and has some technical and political
content; the Commission has taken account of this in the
specific amendments proposed for Directives 85/337/EEC and
96/61/EC to bring them into line with the content and spirit
of the Aarhus Convention. This effort to achieve consistency
and precision — including terminological precision — explains
why in some respects the proposal goes beyond the content of
the Convention, whereas in others it does not fully comply
with it — see the points below.

2.2.
The Committee agrees that it is necessary to align
Community rules with the provisions of the Aarhus Conven-
tion as regards access to information (the first pillar — see
above), public participation in the decision-making process
(second pillar) and access to justice in environmental matters
(third pillar) — aspects covered in the present draft directive
— and endorses the effort to eliminate any legal disparities
between the Member States and to define homogeneous
procedures for action.

2.3.
The Committee takes the view that the citizen has a
right to information, which should be provided in the most
appropriate manner and timescale, providing the public with
a real, constructive participation instrument and avoiding
unnecessary commitments and burdens for the public auth-
orities and distortions in the performance of
important
economic activities. This aspect must be borne in mind when
assessing the effectiveness of the proposed measures.

2.4.
The definitions of ‘the public’ and ‘the public con-
cerned’ given in Article 2, paragraphs 4 and 5 of the Aarhus
Convention constitute an important step in the direction of
harmonising the national systems. The Committee would
however point out that the definition of the public concerned
remains vague:
in the said
procedure. It is not specified that the interest must be direct
and practical, and in every case recognised by national law.

those who have an interest

2.5.
The proposal envisages that non-governmental organ-
isations which promote environmental protection and satisfy
the requirements of national law should be deemed to have
the interest referred to in point 2.4 above. The Committee
regards the phrase ‘meeting any requirements under national
law’ as too generic, and suggests that a definition be found
which links their participation to specific related environmen-
tal interests.

2.6.
The Aarhus Convention, dealing with information in
the context of public participation, calls for the safeguarding
of legitimate interests such as the confidentiality of personal
data and of commercial and industrial information, intellectual
property rights, and the need for consent to the dissemination
of information if the party concerned is not bound by existing
rules to make them public (Articles 6(6), 4(3) and 4(4) of the
Convention). The proposal does not deal with these aspects
under the heading of dissemination of environmental infor-
mation, and the Committee takes the view that it is desirable
to safeguard such interests without going beyond the limits
properly set by the Convention (2).

2.7.
The Committee agrees that it would be desirable to
include (3) an obligation upon Member States to set up, as part
of their national law, a procedure for appeals to a judicial body
or another body set up by law; such a procedure must be rapid
and not over-burdensome, with fixed, short deadlines. Given
that principles and conditions for access to justice in environ-
mental matters arising from decisions by public authorities
already exist
the Commission
should make proposals for greater harmonisation of national
provisions.

legal systems,

in national

affected)

2.7.1.
The proposed directive lays down an indisputable
right to contest the legitimacy (in substance or procedure) of
any decision or act, for any body or person affected (or
procedure
the
potentially
(Article 2.1) or by the decision-making procedure relating to
the issuing or updating of the authorisations or their conditions
(Article 3.1 b.14). The present wording of
the proposal
therefore allows someone whose right to participate in the
procedure has not been respected to appeal, not only to

authorisation

by

(1) COM(2000) 402 final of 29.6.2000, on which the ESC gave its
opinion on 29 November 2000 (CES 1408/2000 in OJ C 116,
20.4.2001, p. 43).

(2) ESC Opinion on the Proposal for a Directive of the European
Parliament and of the Council on public access to environmental
information, CES 1408/2000 — 2000/0169 (COD), 29 Novem-
ber 2000, in OJ C 116, 20.4.2001, p. 43.

(3) As an Article 10a in Directive 85/337/EEC and as an Article 15a

in Directive 96/61/EC.

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contest a procedural error but also to contest the substantive
legitimacy of the procedure.
It follows from this that in
operational terms it could encourage appeals intended solely
to slow down administrative procedures, with increased costs
and an unjustified resort to legal disputes.

2.7.2.
According to accepted legal principles, the oppor-
tunity to contest the substantive legitimacy of an act must be
guaranteed for anyone wishing to protect specific rights
safeguarded by law; it must not be confused with the possibility
of appeal on procedural grounds, or on grounds of neglect.
The Commission proposal should therefore distinguish clearly
between cases of access to justice to contest procedural
legitimacy from cases relating to substantive legitimacy.

where the decision must be taken or the authorisation granted,
and so as to clarify the problem of languages and translation
costs, thereby avoiding excessive costs and time-lags. The
Committee thinks it desirable for the Commission to receive
periodic reports from Member States on the implementation
of this provision.

The Commission is called upon to ensure that, in the
2.8.1.
context of the enlargement negotiations, the public’s right to
information and participation in plans and programmes
relating to the environment is guaranteed, in accordance with
the terms of the directives currently being amended, and in
particular to ensure that there is an effective procedure for
dealing with cross-border problems.

2.8.
The Committee recognises the desirability of taking
into account the problem of public information and partici-
pation with regard to decisions which can have cross-frontier
effects, although this is not covered by the Aarhus Convention.
In order to be practicable, the proposal should lay down the
principle of balance between the various legitimate interests
involved, so as to avoid any abuse of this instrument on the
basis of presumed cross-frontier environmental effects, at the
expense of the social and economic interests of the country

2.9.
The assessment criterion for substantial modification
and/or enlargement of a plant or a production process, as
expressed in Article 3(1)(a), is not sufficiently clear and can
give rise to confusion. It would be more logical to maintain
the definition of substantial modification given in Article 2 of
Council Directive 99/13/EC of 11 March 1999 on limiting the
emissions of volatile organic compounds (VOCs), which relates
inter alia to plant coming within the scope of Directive
96/61/EC.

Brussels, 30 May 2001.

The President

of the Economic and Social Committee

Göke FRERICHS