Opinion of the Committee of the Regions on the "Proposal from the Commission for a Directive 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: 2001-06-14
Institutions: European Committee of the Regions
Subjects: EU environmental policy, EU programme, access to information, environmental protection, public awareness campaign, waste management

C 357/58

EN

Official Journal of the European Communities

14.12.2001

Opinion of the Committee of the Regions on the ‘Proposal from the Commission for a Directive
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 357/15)

THE COMMITTEE OF THE REGIONS,

having regard to the Proposal from the Commission for a Directive 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 [COM(2000) 839 final — 2000/0331 (COD)];

having regard to the decision taken by the Council on 14 February 2001, under Article 175,
1st paragraph of the Treaty establishing the European Community, to consult the Committee of the
Regions on the matter;

having regard to the decision of its Bureau 13 June 2000 to instruct Commission 4 — Spatial Planning,
Urban Issues, Energy, Environment — to draw up the relevant opinion;

having regard to its opinion on the Proposal for a Directive of the European Parliament and the Council
on Public Access to Environmental Information (CdR 273/2000 fin) (1);

having regard to its opinion on the Proposal for a Council Directive on the assessment of the effects of
certain plans and programmes on the environment (CdR 349/1999 fin) (2);

having regard to the draft opinion (CdR 99/2001 rev.) adopted by Commission 4 on 3 May 2001 for
which the rapporteur was Mr Whitmore (UK, ELDR),

adopted the following opinion at its 39th plenary session on 13 and 14 June 2001 (meeting of 14 June).

1. The Committee of the Region’s views concerning the

proposed directive

shape thinking at local levels about sustainable futures for
cities and regions, is in the Committee of the Region’s view
essential.

1.1.
The current proposal seeks to develop the extent to
which the public, widely defined, has access to information,
opportunities to participate, and to justice, in relation to the
assessment of projects and the preparation of certain plans or
programmes (which may be undertaken at Member State,
regional or local level). In broad terms the Committee of the
Regions welcomes this as a valuable step in raising citizens’
involvement in determining their future environment.

The Committee of the Regions wishes to emphasise
1.2.
that the proposal should be set in a wider framework of
encouragement by the European Commission for citizens’
participation in local service delivery and governance; one
which is not simply related to specific plans or projects but
local or public
which suffuses and informs all areas of
authorities’ activities and strategic planning.

As part of these innovative strategic visions, early
1.3.
public access to information, and to active opportunities to

(1) OJ C 148, 18.5.2001, p. 9.
(2) OJ C 374, 23.12.1999, p. 9.

1.4.
The Committee of the Regions considers that tra-
ditional forms of top-down planning and decision-making will
need to be replaced, or set in the context of, consultation and
concerted action between all levels of public authorities and
broad stakeholder involvement (which should include non-
governmental organisations, business, and the education sec-
tors as well as public institutions). In some cases, specific
mechanisms may be required to ensure that all parts of the
community have sufficient access to information and are
engaged.

1.5.
The Aarhus Convention and the European Com-
mission’s proposed directive both employ a broad definition
of ‘the public concerned’, as including environmental non-
governmental organisations. This is welcomed by the Com-
mittee of the Regions insofar as it enables broad and inclusive
consultation with identified stakeholders; but in practice it is
likely to increase the extent to which environmental interest
and pressure groups are able to delay the implementation of
necessary development projects, even where every effort has

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been made to avoid, minimise, mitigate or compensate for
environmental impacts of that development. This is particu-
larly so as the requirements for access to justice within
Articles 2(5) and 3(4) of the proposed directive relate to both
substantive and procedural issues. Nevertheless, a look should
be taken at the definition of ‘the public concerned’ so that
consumers/users associations, and professional associations of
all types and levels could be expressly included alongside
environmental NGOs.

Obviously there needs to be a careful balance struck
1.6.
here between executive action and scrutiny; and the Committee
of the Regions’ recommendations should assist in developing
better consensus about environmental issues at an early stage
in developing strategies. It will be important for Member
States, in determining which associations (NGOs, non-profit
organisations of benefit to society, sectoral associations, con-
sumer and user associations, civil protection volunteer associ-
ations, welfare associations, etc.) fulfil the requirements for
having a legitimate interest, to consider this point.

the Regions notes that

in Articles 2(2)(a) and 3(3)(a) of

set out
the European
Commission’s proposed directive. These are unlikely to cause
competent authorities significant problems; indeed best prac-
tice already extends to cover these points. However, the
Committee of
the availability of
information at different stages in the application process is
likely to require elements of repetition — of re-notification, or
further meetings and so on. For that reason, it would urge that
these processes should be properly funded by Member States
and a requirement to this end this should be a feature of the
final Directive. The comments in point 2.8 below are also
pertinent.

the Committee of

2.4. More significantly,
the Regions
would strongly urge the European Commission explicitly to
consider how the requirements of the Aarhus Convention on
access to justice relate to the provisions of the Human Rights
Convention,
in identifying any minimum requirements for
Member States or competent authorities.

2. The Committee of the Regions’ recommendations

The Committee of the Regions welcomes the general
2.1.
thrust of the European Community’s proposal to leave the
Member States the task of identifying and deciding on the
methods and procedures for participation. In accordance with
the principle of subsidiarity, however, it would suggest that in
turn — while Member States may set out minimum require-
ments and provide advice — they should not be prescriptive
about what may be done. Cities and regions across Europe are
at the forefront of innovative thinking about inclusive forms
of governance — for example, local citizen’s Panels or juries;
regular public satisfaction surveys; small area-based delegation
of decisions or budgets; and active community or environmen-
tal fora.

The Committee of the Regions considers that the
2.5.
proposed directive might usefully indicate that NGOs might
include, not only environmental interest groups but also other
interested organisations, for example consumer groups.

2.6.
The Committee of the Regions welcomes the clarifi-
cation provided in the proposed directive that extensions to
Annex 1 activities which would, in themselves, require an
environmental impact assessment, must have an assessment
prepared. However, it considers that the proposed directive
could usefully say more about the requirements to be imposed
on non-Annex 1 activities which Member States or competent
authorities consider require an environmental impact assess-
ment, in general terms which replicate the approach taken for
Annex 1 activities.

The Committee of

in public involvement

the Regions requests that

2.2.
the
European Commission seeks to collect and disseminate best
in
local and regional practices
developing strategic visions for their area;
in developing
visions; in participatory practices; in using electronic means of
communication and delivery of information and opportunities
to participate; and in environmental education and awareness
raising. The Interreg Community initiative could be used to
good effect
in this, and Member States should also be
encouraged to discuss innovative examples of legislation or
advice. The role of Local Agenda 21 in providing fora for local
people to identify and prioritise their aspirations for sustainable
development and in particular for better environments could
usefully be explored and analysed at European level.

Broadly speaking,

2.3.
the Regions
supports and welcomes the specific minimum requirements

the Committee of

2.7.
The Committee of the Regions welcomes the emphasis
in Articles 2(2)(b) and 3(a) (via the new Annex V) on adequate
and appropriate time-frames being allowed for consultation
on development consents and on permit applications.
It
considers that the proposed directive should clearly state that
constituent authorities should not be penalised (including
through any measure of performance applied by Member
States) for allowing adequate time-frames for consultation,
including any re-notifications required as more information
becomes available.

2.8.
The Committee of the Regions notes that the Aarhus
Convention explicitly encourages applicants for consents
(which may of course include public authorities themselves) to
identify the public who may be concerned, to enter into
dialogue and to provide information about their objectives,

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before applying for consent. The Committee of the Regions
considers that a similar exhortation should be incorporated
into the proposed directive, in the interests of effective and
efficient administration and full public participation.

allows or requires it — access to justice might also apply to
the preparation of plans and programmes by public authorities
has not been addressed explicitly. This would appear to be an
omission.

2.9.
Notwithstanding the wording of Article 6(6)(e) of the
Aarhus Convention, the Committee of the Regions would
strongly urge the European Commission to incorporate a
requirement in the proposed directive for alternative proposals
to be developed by applicants for development consents and
permits, and for information about such alternatives — and
the applicant’s reasons for not pursuing them — to be made
publicly available as part of the process. As currently worded,
Article 3(2) of the proposed directive would place additional
burdens on those responsible applicants who have properly
considered alternative means of pollution control, but would
not require applicants who have not done so even to justify
this position. This could mean that applicants will increasingly
and deliberately choose not to explicitly consider alternatives.
A requirement to have regard to best available techniques
might form the basis for a fuller requirement to explicitly
consider, and provide information on, alternative technical
solutions.

The Committee of the Regions considers that this
2.10.
requirement could usefully apply also to the preparation by
public authorities of plans and programmes in Article 1 of the
proposed directive, in relation to considering, and consulting
on, a number of strategic options rather than on a ‘preferred’
strategy which many might then regard as a foregone con-
clusion.

2.11.
Indeed, while the Committee of the Regions under-
stands that the context of Article 1 is different, and therefore
the specific minimum requirements referred to in Articles 2
and 3 may not all be applicable,
it considers that a final
Directive could usefully set out relevant requirements or
principles for participation in relation to plans and pro-
grammes, in a non-prescriptive fashion.

2.12.
The Committee of the Regions notes that, while the
proposed directive has dealt with the requirements imposed
by the Aarhus Convention in relation to access for justice on
specific development consents through Articles 2(5) and
3(4) of the proposed directive, the further provision in the
Convention (Article 9 paragraph 2) that — where national law

Brussels, 14 June 2001.

The Committee of

the Regions welcomes

2.13.
the
strengthening of the arrangements for transnational consul-
tation in the proposed directive. It hopes that the European
Commission’s proposal can be a starting point for adding value
to cross-border participation over the long term. However,
it points out
language barriers may limit both the
understanding of information and the establishment of a
common framework for participation, and would urge the
European Commission and Member States to pay special
regard to this matter in the final Directive and in its translation
into Member States’ own legislation and procedures.

that

2.14.
The Committee of the Regions would suggest that
the reference in Article 3(3)(b) to the provision of information
about decisions which have been subject
to the public
participation requirements of the proposed directive should
include the caveat ‘at reasonable cost’; while opportunities to
examine such information might be free of charge, provision
of the actual
involve a cost to the
competent authority.

information itself will

2.15.
Finally, the Committee of the Regions would draw
the European Commission’s attention to the points made in its
earlier Opinion on the amended proposal
for a Council
Directive on the assessment of the effects of certain plans
and programmes on the environment (1), and which remain
pertinent, namely that:

‘The Committee of the Regions recognises that the pro-
posed directive will impose costs in widely varying degrees
upon competent authorities within the Union and calls
upon the respective Member States to ensure that these
costs are fully funded.

The Committee of the Regions notes that EU plans and
programmes prepared, for example, under the Structural
Funds are not covered by the proposed directive. Although
the Structural Funds guidelines do contain environmental
criteria, these are not as rigorous as full environmental
assessment and there is currently no requirement for public
consultation.’

(1) CdR 349/1999 fin.

The President

of the Committee of the Regions

Jos CHABERT