Amended 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 (presented by the Commission pursuant to Article 250 (2) of the EC-Treaty)
Date: 2001-12-12
Institutions: European Commission
Subjects: EU environmental policy, European citizenship, decision-making, public awareness campaign

C 75 E/370

EN

Official Journal of the European Communities

26.3.2002

Amended 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 (1)

(2002/C 75 E/27)

(Text with EEA relevance)

COM(2001) 779 final (cid:151) 2000/0331(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 12 December 2001)

1. BACKGROUND

Date of transmission of the proposal to the EP and the Council
in
(document COM(2000) 839 final (cid:151) 2000/0331(COD))
accordance with Article 175(1) of the Treaty: 18 January 2001.

The wording acceptable to the Commission is (cid:145)human health
and well-being(cid:146). This is in line with the wording used in
Article 174 of the Treaty and elsewhere in environmental legis-
lation.

Date of the opinion of the Economic and Social Committee:
30 May 2001.

Date of the opinion of the Committee of the Regions: 14 June
2001.

Date of the opinion of the European Parliament, first reading:
23 October 2001.

2. OBJECTIVE OF THE COMMISSION PROPOSAL

to Justice in Environmental Matters

The proposal aims to contribute to the implementation of the
obligations arising from the UN/ECE Convention on Access to
Information, Public Participation in Decision-Making and
Access
((cid:145)the Aarhus
Convention(cid:146)). It establishes basic procedures for public partici-
pation in relation to certain plans and programmes in the
environmental field. In relation to environmentally significant
projects, the proposal amends Council Directive 85/337/EEC
on the assessment of the effects of certain public and private
projects on the environment (the (cid:145)EIA Directive(cid:146)) and Council
Directive 96/61/EC on integrated pollution prevention and
control (the (cid:145)IPPC Directive(cid:146)), to establish public participation
and access to justice provisions in line with the Aarhus
Convention.

3. COMMISSION OPINION ON THE AMENDMENTS ADOPTED

BY THE PARLIAMENT

3.1. Amendments accepted by the Commission

Amendment 13 (Article 2, point 1 of the proposal) replacing
Article 1(4) of Directive 85/337/EEC ((cid:145)EIA Directive(cid:146)), relating
to the exclusion of projects serving national defence purposes
which is to be decided upon by the Member States on a case-
by-case basis. Furthermore, the related changes in the presen-
tation of this point.

3.2. Amendments accepted in part or in principle by the

Commission

The Commission can accept in principle part of amendment 2,
in Recital 2.
to replace (cid:145)personal health and well-being(cid:146)

(1) OJ C 154 E, 29.5.2001, p. 123.

The Commission accepts in principle amendment 4, under the
condition that the text proposed by the Parliament is added to
thereby increasing the
(cid:145). . .
the end of Recital 3,
accountability
the decision-making
transparency of
process and contributing to public awareness of environmental
issues and support for the decisions taken.(cid:146) The Commission
prefers to maintain (cid:145)public awareness of environmental issues(cid:146)
which is specifically mentioned in the Aarhus Convention.

to read:

and

Amendment 5 can be accepted in principle, subject to the
following re-wording: (cid:145)Among the objectives of the Convention
is the desire to guarantee rights of public participation in
in environmental matters
decision-making
to
in order
contribute to the protection of
to live in an
the right
environment which is adequate to human health and well-
related
being.(cid:146) The
objective mentioned in Article 1 of the Aarhus Convention,
the second being in accordance with current terminology.

appropriately reflects

first part

the

the proposal.

The Commission accepts in part amendments 9, 10 and 33
(joint vote), all
It
relating to Article 1 of
accepts in principle to add the reference to electronic media,
to read in paragraph 2 (a) (cid:145)the public are informed whether by
public notices or electronic media or other appropriate means,
. . .(cid:146). The (cid:145)or(cid:146) indicates that the electronic media are mentioned
by means of example. The Commission also accepts adding at
the end of (a): (cid:145)including inter alia information about the right
the competent
to participate in decision-making and about
authority to which comments or questions may be submitted(cid:146).
Under Article 1(2)(b),
the Commission accepts in principle
adapting the text to more closely reflect the wording of the
Aarhus Convention. The wording which can be accepted is (cid:145)(b)
the public are entitled to express comments and opinions when
all options are open before decisions on the plans and
programmes are made(cid:146). The Commission accepts in principle
the part of the amendment providing for information about the
outcome of public participation. For reasons of coherence and
in order to be practicable, such obligation is to be added to
Article 1 paragraph 2. The new point
(cid:145)the
competent authority makes reasonable efforts to inform the
public about
reasons and
considerations upon which the decision is based(cid:146).

taken and the

the decisions

is to read:

(d)

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The Commission accepts part of amendment 14. In relation to
point (b),
it does not accept the reference to the (cid:145)practical
directions for seeking review(cid:146). The rest of the amendment on
this point is accepted subject to the following reformulation:
(cid:145)make available to the public concerned the information
obtained in the manner referred to in point (a), the information
relating to the exemption decision and the reasons for granting
it.(cid:146) The reference to the (cid:145)public concerned(cid:146) and the redrafting of
the last part are in line with the approach of the rest of the
proposal and the EIA Directive. While the Commission can
accept a more general
information of the public about the
judicial review procedures, such information is not appro-
priately referred to here in relation to the partial aspect in
the present article.

The Commission can accept in part amendments 34, 15 and 16
(joint vote), relating to Article 2, point 2 (amending Article 6
of the EIA Directive). As with amendments 9, 10 and 33, it can
accept in principle to add a reference to the use of electronic
media in paragraph 3: (cid:145)The public shall be informed, whether
by public notices or using electronic media or other appro-
priate means,
(cid:145)without
prejudice to any options(cid:146) in Article 6(4), the Commission can
accept reformulating (cid:145)when all options are open(cid:146), which is in
line with the Aarhus Convention. The Commission can also
accept the rewording of the second phrase of Article 6 (5).

. . .(cid:146). As concerns

the addition of

shall ensure that information is made available to the public on
access to administrative and judicial review procedures(cid:146).

Amendment 25 can be accepted in part, as concerns the
correction of the reference to be made to Article 1, and not
to Article 3 as in the Commission proposal.

Amendments 27, 28 and 29 (joint vote) relating to Annex V to
be added to the IPPC Directive 96/61/EC can be accepted in
part. The Commission can accept in principle the reference to
electronic media, provided that
is introduced with (cid:145)or(cid:146),
instead of (cid:145)and(cid:146). Furthermore, the rewording of paragraphs 2,
3 and 4 can be accepted.

it

3.3. Amendments not accepted by the Commission

Amendment 1 is unacceptable. The terminology (cid:145)human health(cid:146)
used in the Commission proposal in relation to the objectives
of Community environmental legislation is in conformity with
language used elsewhere, and in particular Article 174 of the
Treaty. There is nothing in the present proposal which would
justify replacing it by (cid:145)individual and public health(cid:146).

(cid:145)practical directions
seeking review pursuant

for
the Commission considers

Amendments 20 and 21 (joint vote) relating to Article 2, point
4, of the proposal can be accepted in part. The Commission
can accept in principle that the information to be given to the
concerning the
public also contains
to Article 10a(cid:146).
procedure
However,
this obligation
should be formulated in a more general way, in line with the
respective provision in the Aarhus Convention. It can therefore
accept to add the following wording at the end of Article 10a,
EIA Directive (Article 2, point 5): (cid:145)In order to further the effec-
tiveness of the provisions of this article, Member States shall
ensure that information is made available to the public on
access to administrative and judicial review procedures(cid:146).

that

Amendment 31/rev concerning the new Article 10a, EIA
Directive, on access to justice can be accepted in part. This
concerns adding the qualification (cid:145)independent and impartial(cid:146) as
concerns the (cid:145)body established by law(cid:146) mentioned in the first
sentence. The same applies to amendments 32/rev/23 (joint
vote) concerning the new Article 15a IPPC Directive.

the related amendment

The first part of amendment 2, i.e. replacing the reference to
(cid:145)Community environmental
legislation(cid:146) by a reference to
(cid:145)Community legislation, plans and programmes relating to the
environment and other fields of policy(cid:146) can not be accepted.
The same applies to amendments 3 and 8. Furthermore, the
Commission cannot accept
to the
substance of the proposal, i.e. amendment 26 adding a new
sub-item to Annex I which contains plans and programmes
subject to public participation ((cid:145)(ga) Other Community legis-
lation, plans and programmes, which may have a significant
effect on the environment or on individual and public health
and well-being, the implementation of which is required to take
account of Article 6 of the Treaty(cid:146)). The reference to (cid:145)other
Community legislation(cid:146) . . . is unclear. It can be understood as
referring to public participation in the preparation of
Community legislation, plans and programmes, in which case
the present proposal for a Directive is not the correct legal
instrument.
legislation,
plans and programmes at Member States level, the generic
reference in this point is much broader than the other items
contained in Annex I. Adding such a general clause is likely to
create duplication and ambiguity as
legal
instrument applicable and can thus not be accepted by the
Commission.

is understood to aim at

In case it

concerns

the

Amendment 35 can be accepted in part. The Commission
agrees in principle to add a reference to informing the public
about judicial review. As for amendment 20, the Commission
however considers that this reference is better placed at the end
of Article 15a on access to justice, to add: (cid:145)In order to further
the effectiveness of the provisions of this article, Member States

referring to Article 8 of

It would
The Commission cannot accept amendment 6.
introduce a recital
the Aarhus
Convention and public participation in the preparation of
executive regulations and other generally applicable legally
binding rules. The proposal does not
take this up in its
articles, nor do the amendments adopted by the Parliament.

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The Commission cannot accept amendments 7 and 30/rev
relating to access to judicial review procedures in relation to
plans, programmes and policies. Access to justice in relation to
public participation in plans, programmes and policies is not
the Aarhus
under Article 9(2)
explicitly
Convention.
such
access to justice is not foreseen under Directive 2001/42/EC
on strategic environmental assessment and accepting it under
the present proposal would create an incoherent situation.

In relation to (cid:145)plans and programmes(cid:146),

required

of

In relation to amendments 9, 10 and 33 (joint vote) to Article
1, the Commission cannot accept providing for public partici-
pation in the preparation of policies. Under
the Aarhus
Convention, this is only a (cid:145)best endeavour clause(cid:146), and has as
such no place in this Directive proposal. Neither can the
Commission accept the reference to public participation (cid:145)in
the different stages(cid:146) of the preparation and review of plans
and programmes. Such wording is not explicitly required to
implement the Aarhus Convention and the present text already
provides for early and effective participation. The phrase (cid:145)These
arrangements may include educating the public about decision-
making, or the funding about such education(cid:146) is not acceptable
for the Commission. While the importance of environmental
education also about public participation is fully supported by
the Commission and indeed mentioned in the Aarhus
Convention,
the
proposal. The detailed arrangements for public participation
to be determined by the Member States are meant to be the
(cid:145)practical modalities(cid:146) for such participation.

the wording does not

in the text of

fit

Concerning amendments 34, 15 and 16 (joint vote) to Article
2, point 2, the Commission cannot accept that the reference to
the development consent procedure in Article 6(3) of the EIA
Directive is extended by referring also to the review of the
development consent. Such explicit reference might lead to
an interpretation which would contradict Article 2(1) of the
EIA Directive, as it suggests that the change of an existing
installation requiring environmental impact assessment would
not necessarily require development consent. The Commission
furthermore cannot accept adding at the end of Article 6 (4)
EIA Directive: (cid:145)In making those decisions, due account shall be
taken of the results of the public participation(cid:146). Similar wording
the EIA
to that end is already contained in Article 8 of
Directive. The proposed wording, under paragraph 5a, on
informing the public about the result of public participation,
cannot be accepted. Article 9(1) of the EIA Directive already
obliges the competent authorities to inform the public of the
decision taken, and the main reasons and considerations on
which it
is based. Requiring more would be imposing an
unnecessary administrative burden, and lastly constitute an
obstacle to public participation.

be made available to the public concerned in the affected
Member State (cid:145)in an appropriate manner(cid:146)
in their own
territory and language. In line with the subsidiarity principle,
procedural details as such are not dealt with in the present
proposal and the element (cid:145)in an appropriate manner(cid:146) is super-
fluous in the light of the formulation (cid:145)is made available(cid:146). The
same applies to amendment 24 which can not be accepted in
its entirety.

In relation to amendments 31/rev and 32/rev/23 on access to
justice (Article 10a of the EIA Directive and 15a of the IPPC
the Commission cannot accept adding anything
Directive),
(see above). For the
more than (cid:145)independent and impartial(cid:146)
the
the amended article would only partially reflect
rest,
wording of Article 9(2) of the Aarhus Convention. For the
Commission to be acceptable, the Aarhus wording must be
reproduced as
(cid:145)sufficient
interest(cid:146) and (cid:145)impairment of a right(cid:146) of non-governmental
organizations. Furthermore, the last subparagraph ((cid:145)Any such
shall
procedure
prohibitively
expensive.(cid:146))
is to remain in. The wording (cid:145)not prohibitively
expensive(cid:146) corresponds to the Aarhus Convention.

expeditious

reference

concerns

to the

and

not

the

be

the

reflect

does not

the
proposed

The Commission cannot accept the part of amendment 35
introducing (cid:145)different stages(cid:146) of the decision-making procedure.
This is not explicitly foreseen under the Aarhus Convention
IPPC permitting procedure.
and
concerning
4a
paragraph
Furthermore,
(cid:145)reasonable efforts to reply to the public(cid:146) cannot be accepted
here. The proposed formulation of article 15(5)(b)
IPPC
Directive already provides for making available to the public
the decision taken, and the reasons and the considerations on
which it is based. As in the case of the EIA Directive, requiring
more would constitute an unnecessary administrative burden.

In relation to amendment 25 the Commission cannot accept
the reference to (cid:145)policies(cid:146) being added, given that the Annex 1
only lists plans and programmes (see also amendment 26
above which has not been accepted).

For amendments 27, 28 and 29 (joint) relating to Annex V
the Commission cannot accept making the
IPPC Directive,
reconsideration of permits
to public participation.
Such reconsideration is in many cases an internal adminis-
trative action. To the extent that it leads to changes of the
permit, the Commission proposal foresees public participation
in relation to permit updates.

subject

4. AMENDED PROPOSAL

On amendments 20 and 21 (joint vote),
the Commission
cannot accept the part which adds that the information is to

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