Common Position (EC) No 41/2002 of 25 April 2002 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting 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 with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC
Date: 2002-04-25
Institutions: Council of the European Union
Subjects: EU environmental policy, EU programme, access to information, access to the courts, decision-making, public awareness campaign, shareholding

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COMMON POSITION (EC) No 41/2002

adopted by the Council on 25 April 2002

with a view to the adoption of a Directive 2002/. . ./EC of the European Parliament and of the
Council of . . . providing for public participation in respect of the drawing up of certain plans and
programmes relating to the environment and amending with regard to public participation and
access to justice Council Directives 85/337/EEC and 96/61/EC

(2002/C 170 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 175(1) thereof,

(5) On 25 June 1998 the Community signed the UN/ECE
Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environ-
(‘the Århus Convention’). Community
mental Matters
law should be properly aligned with that Convention
with a view to its ratification by the Community.

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Having regard to the opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1) Community legislation in the field of the environment
aims
and
improving the quality of the environment and protecting
human health.

to preserving, protecting

to contribute

(2) Community environmental legislation includes provisions
for public authorities and other bodies to take decisions
which may have a significant effect on the environment as
well as on personal health and well-being.

(3) Effective public participation in the taking of decisions
enables the public to express, and the decision-maker to
take account of, opinions and concerns which may be
relevant
thereby increasing the
accountability and transparency of the decision-making
process and contributing to public awareness of environ-
mental issues.

to those decisions,

(6) Among the objectives of the Convention is the desire to
guarantee rights of public participation in certain kinds of
environmental decision-making in order to contribute to
the protection of the right to live in an environment
which is adequate for personal health and well-being.

(7) Article 6 of the Århus Convention provides for public
participation in decisions on the specific activities listed
in Annex I thereto and on activities not so listed which
may have a significant effect on the environment.

(8) Article 7 of the Århus Convention provides for public
participation concerning plans and programmes relating
to the environment.

(9) Article 9(2) and (4) of the Århus Convention provides for
access to judicial or other procedures for challenging the
substantive or procedural
legality of decisions, acts or
omissions subject to the public participation provisions
of Article 6 of the Convention.

plans

(10) Provision should be made in respect of certain Directives
in the environmental area which require Member States to
the
relating
programmes
produce
contain sufficient
environment but which do not
provisions on public participation,
to ensure
so as
public participation consistent with the provisions of the
Århus Convention, in particular Article 7 thereof.

and

to

(4) Participation,

including participation by associations,
organisations and groups, in particular non-governmental
organisations promoting environmental protection, should
accordingly be fostered.

(1) OJ C 154 E, 29.5.2001, p. 123.
(2) OJ C 221, 7.8.2001, p. 65.
(3) OJ C 357, 14.12.2001, p. 58.
(4) Opinion of the European Parliament of 23 October 2001 (OJ C
112 E, 9.5.2002, p. 125), Council Common Position of 25 April
2002, and Decision of the European Parliament of . . .
(not yet
published in the Official Journal).

(11) Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private
projects on the environment (5), and Council Directive
96/61/EC of 24 September 1996 concerning integrated
pollution prevention and control (6) should be amended
they are fully compatible with the
to ensure that
provisions of
in particular
Articles 6 and 9(2) and (4) thereof.

the Århus Convention,

(5) OJ L 175, 5.7.1985, p. 40. Directive as amended by Directive

97/11/EC (OJ L 73, 14.3.1997, p. 5).

(6) OJ L 257, 10.10.1996, p. 26.

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under

the Århus Convention,

(12) Since the objective of the proposed action, namely to
the obligations
contribute to the implementation of
arising
be
cannot
sufficiently achieved by the Member States and can
the
the scale and effects of
therefore, by reason of
action, be better achieved at Community level,
the
Community may adopt measures in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty.
In accordance with the principle of propor-
tionality, as set out in that Article, this Directive does
not go beyond what
is necessary in order to achieve
that objective,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objective

The objective of
implementation of
Convention, in particular by:

to contribute to the
this Directive is
the obligations arising under the Århus

(a) providing for public participation in respect of the drawing
relating to the

up of certain plans and programmes
environment;

(b) improving the public participation and providing for
provisions on access to justice within Council Directives
85/337/EEC and 96/61/EC.

Article 2

Public participation concerning plans and programmes

For the purposes of this Article,

1.
‘the public’ shall mean
one or more natural or legal persons and, in accordance with
national legislation or practice, their associations, organisations
or groups.

2. Member States shall ensure that the public is given early
and effective opportunities to participate in the preparation and
modification or review of the plans or programmes required to
be drawn up under the provisions listed in Annex I.

To that end, Member States shall ensure that:

about

(a) the public is informed, whether by public notices or other
electronic media where
such as
appropriate means
available,
such plans or
any proposals
programmes or for their modification or review and that
relevant
is made
available to the public including inter alia information
the right
about
to participate in decision-making and
about
the competent authority to which comments or
questions may be submitted;

information about

such proposals

for

(b) the public is entitled to express comments and opinions
when all options are open before decisions on the plans
and programmes are made;

(c)

in making those decisions, due account shall be taken of
the results of the public participation;

for

shall

3. Member States
participate
relevant
requirements
promoting environmental protection.

non-governmental

imposed under national

identify the public entitled to
including
any
those

organisations meeting
such as
law,

the purposes of paragraph 2,

The detailed arrangements for public participation under this
Article shall be determined by the Member States so as to
enable the public to prepare and participate effectively.

Reasonable time-frames shall be provided allowing sufficient
time for each of the different stages of public participation
required by this Article.

This Article shall not apply to plans and programmes
4.
designed for the sole purpose of serving national defence or
taken in case of civil emergencies.

5.
This Article shall not apply to plans and programmes set
out in Annex I for which a public participation procedure is
carried out under Directive 2001/42/EC of
the European
Parliament and of
the Council of 27 June 2001 on the
assessment of the effects of certain plans and programmes on
the environment (1) or under Directive 2000/60/EC of
the
European Parliament and of the Council of 23 October 2000
establishing a framework for Community action in the field of
water policy (2).

Article 3

Amendment of Directive 85/337/EEC

Directive 85/337/EEC is amended as follows:

1.

in Article 1(2), the following definitions shall be added:

‘“the public” means: one or more natural or legal persons
and,
legislation or practice,
in accordance with national
their associations, organisations or groups;

“the public concerned” means: the public affected or likely
to be affected by, or having an interest in, the environ-
mental decision-making procedures referred to in Article
2(2); for the purposes of this definition, non-governmental
organisations promoting environmental protection and
meeting any requirements under national
law shall be
deemed to have an interest.’;

2.

in Article 6, paragraphs 2 and 3 shall be replaced by the
following paragraphs:

‘2.
The public shall be informed, whether by public
notices or other appropriate means such as electronic
media where available, of the following matters early in
the environmental decision-making procedures referred to
in Article 2(2) and, at the latest, as soon as information
can reasonably be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental
impact assessment procedure and, where relevant, the
fact that Article 7 applies;

(d) the competent authority makes reasonable efforts to inform
the public about the decisions taken and the reasons and
considerations upon which those decisions are based.

(1) OJ L 197, 21.7.2001, p. 30.
(2) OJ L 327, 22.12.2000, p. 1. Directive as amended by Decision

No 2455/2001/EC (OJ L 331, 15.12.2001, p. 1).

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the competent authorities responsible for
(c) details of
from which relevant
taking
the
information
to which
comments or questions can be submitted, and details
the time schedule for transmitting comments or
of
questions;

those
obtained,

decision,
be
can

those

(d) the nature of possible decisions or, where there is one,

the draft decision;

(e) an indication of

the availability of

the information

gathered pursuant to Article 5;

(f) an indication of the times and places where and means
information will be made

by which the relevant
available;

(g) details of

the arrangements for public participation

made pursuant to paragraph 5 of this Article.

3. Member States shall ensure that, within reasonable
time-frames, the following is made available to the public
concerned:

(a) any information gathered pursuant to Article 5;

(b) in accordance with national legislation, the main reports
and advice issued to the competent authority or auth-
orities at
the time when the public concerned is
informed in accordance with paragraph 2 of this Article;

(c)

in accordance with the provisions of Directive
the European Parliament and of
2002/. . ./EC of
the
. . . concerning public access to environ-
Council of
than that
mental
information other
information (*),
referred to in paragraph 2 of
this Article which is
relevant for the decision in accordance with Article 8
and which only becomes available after the time the
public concerned was informed in accordance with
paragraph 2 of this Article.

4.
The public concerned shall be given early and effective
opportunities to participate in the environmental decision-
making procedures referred to in Article 2(2) and shall, for
that purpose, be entitled to express comments and opinions
when all options are open to the competent authority or
authorities before the decision on the request for devel-
opment consent is taken.

5.
The detailed arrangements for informing the public
(for example by bill posting within a certain radius or publi-
cation in local newspapers) and for consulting the public
concerned (for example by written submissions or by way
of a public inquiry) shall be determined by the Member
States.

(a) paragraphs 1 and 2 shall be replaced by the following:

‘1. Where a Member State is aware that a project is
likely to have significant effects on the environment in
another Member State or where a Member State likely
to be significantly affected so requests, the Member State
in whose territory the project is intended to be carried
out shall send to the affected Member State as soon as
possible and no later than when informing its own
public, inter alia:

(a) a description of

together with any
the project,
available information on its possible transboundary
impact;

(b) information on the nature of the decision which

may be taken,

and shall give the other Member State a reasonable time
in which to indicate whether it wishes to participate in
the environmental decision-making procedures referred
to in Article 2(2), and may include the information
referred to in paragraph 2 of this Article.

in

the

environmental

2.
If a Member State which receives information
pursuant to paragraph 1 indicates that it intends to
decision-making
participate
the Member
procedures referred to in Article 2(2),
State in whose territory the project is intended to be
carried out shall, if it has not already done so, send to
the affected Member State the information required to
be given pursuant to Article 6(2) and made available
pursuant to Article 6(3)(a) and (b).’;

(b) paragraph 5 shall be replaced by the following:

The detailed arrangements for implementing this
‘5.
Article may be determined by the Member States
concerned and shall be such as to enable the public
concerned in the territory of
the affected Member
State to participate effectively in the environmental
decision-making procedures referred to in Article 2(2)
for the project.’;

4.

in Article 9, paragraph 2 shall be replaced by the following:

‘2.
The competent authority or authorities shall inform
any Member State which has been consulted pursuant to
Article 7, forwarding to it the information referred to in
paragraph 1 of this Article.

consulted Member States

The
that
information is made available in an appropriate manner
to the public concerned in their own territory.’;

ensure

shall

that

6.
Reasonable time-frames shall be provided, allowing
sufficient time for each of the different stages provided for
in this Article.

‘Article 10a

5. the following Article shall be inserted:

___________
(*) OJ . . .’;

Member States shall ensure that,
relevant national
concerned:

legal

system, members of

in accordance with the
the public

3. Article 7 shall be amended as follows:

(a) having a sufficient interest, or alternatively,

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(b) maintaining the impairment of a right, where adminis-
trative procedural law of a Member State requires this as
a precondition,

have access to a review procedure before a court of law or
another independent and impartial body established by law
to challenge the substantive or procedural
legality of
decisions, acts or omissions subject to the public partici-
pation provisions of this Directive.

Member States shall determine at what stage the decisions,
acts or omissions may be challenged.

to justice. To this

What constitutes a sufficient interest and impairment of a
right shall be determined by the Member States, consistently
with the objective of giving the public concerned wide
access
any
non-governmental organisation meeting the requirements
referred to in Article 1(2), shall be deemed sufficient for
the purpose of subparagraph (a) of this Article. Such organi-
sations shall also be deemed to have rights capable of being
impaired for the purpose of subparagraph (b) of this Article.

interest of

end,

the

The provisions of this Article shall not exclude the possi-
bility of a preliminary review procedure before an adminis-
trative authority and shall not affect the requirement of
exhaustion of administrative review procedures prior to
recourse to judicial
review procedures, where such a
requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not
prohibitively expensive.

In order to further the effectiveness 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.’;

6.

in Annex I, the following point shall be added:

‘22. Any change to or extension of projects listed in this
Annex where such a change or extension in itself
meets the thresholds, if any, set out in this Annex.’;

7.

in Annex II, point 13, first indent, the following shall be
added at the end:

‘(change or extension not included in Annex I)’.

Article 4

Amendment of Directive 96/61/EC

Directive 96/61/EC is amended as follows:

1. Article 2 shall be amended as follows:

(a) the following sentence shall be added to point 10(b):

substantial
the thresholds, if any, set out in Annex I.’;

if the change or extension in itself meets

(b) the following points shall be added:

‘13.

“the public” shall mean one or more natural or
legal persons and,
in accordance with national
legislation or practice, their associations, organi-
sations or groups;

14. “the public concerned”

shall mean the public
affected or likely to be affected by, or having an
interest in, the taking of a decision on the issuing
the updating of a permit or of permit
or
this definition,
conditions;
promoting
non-governmental
environmental
any
requirements under national law shall be deemed
to have an interest.’;

for the purposes of

and meeting

organisations

protection

2.

in Article 6(1), first subparagraph, the following indent shall
be added:

‘— the main alternatives, if any, studied by the applicant in

outline.’;

3. Article 15 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

the public
‘1. Member States
concerned are given early and effective opportunities
to participate in the procedure for:

ensure

shall

that

— issuing a permit for new installations,

— issuing a permit for any substantial change in the

operation of an installation,

— updating of a permit or permit conditions for an
its
impact is of such significance that
the permit

installation in accordance with Article 13,
environmental
the existing emission limit values of
need to be significantly changed.

if

The procedure set out in Annex V shall apply for the
purposes of such participation.’;

(b) the following paragraph shall be added:

‘5. When a decision has been taken, the competent
authority shall inform the public in accordance with the
appropriate procedures and shall make available to the
public the following information:

(a) the content of the decision, including a copy of the
permit and of any conditions and any subsequent
updates; and

‘For the purposes of this definition, any change to or
extension of an operation shall be deemed to be

(b) the

reasons and considerations on which the

decision is based.’;

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4. the following Article shall be inserted:

‘Article 15a

Access to justice

Member States shall ensure that,
relevant national
concerned:

legal

system, members of

in accordance with the
the public

(a) having a sufficient interest, or alternatively,

(b) maintaining the impairment of a right, where adminis-
trative procedural law of a Member State requires this as
a precondition,

have access to a review procedure before a court of law or
another independent and impartial body established by law
to challenge the substantive or procedural
legality of
decisions, acts or omissions subject to the public partici-
pation provisions of this Directive.

Member States shall determine at what stage the decisions,
acts or omissions may be challenged.

to justice. To this

What constitutes a sufficient interest and impairment of a
right shall be determined by the Member States, consistently
with the objective of giving the public concerned wide
access
any
non-governmental organisation meeting the requirements
referred to in Article 2(14) shall be deemed sufficient for
the purpose of subparagraph (a) of this Article. Such organi-
sations shall also be deemed to have rights capable of being
impaired for the purpose of subparagraph (b) of this Article.

interest of

end,

the

The provisions of this Article shall not exclude the possi-
bility of a preliminary review procedure before an adminis-
trative authority and shall not affect the requirement of
exhaustion of administrative review procedures prior to
recourse to judicial
review procedures, where such a
requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not
prohibitively expensive.

In order to further the effectiveness 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.’;

5. Article 17 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

‘1. Where a Member State is aware that the operation
of an installation is likely to have significant negative
effects on the environment of another Member State, or
where a Member State likely to be significantly affected
so requests, the Member State in whose territory the
application for a permit pursuant
to Article 4 or
Article 12(2) was submitted shall forward to the other
Member State any information required to be given or
made available pursuant to Annex V at the same time as

it available to its own nationals. Such
it makes
information shall serve as a basis for any consultations
necessary in the framework of the bilateral relations
between the two Member States on a reciprocal and
equivalent basis.’;

(b) the following paragraphs shall be added:

‘3.
to
The results of any consultations pursuant
paragraphs 1 and 2 must be taken into consideration
when the competent authority reaches a decision on the
application.

4.
The competent authority shall inform any Member
State, which has been consulted pursuant to paragraph
1, of the decision reached on the application and shall
the information referred to in Article
forward to it
take the measures
15(5). That Member State shall
information is made
necessary to ensure that
to the public
available in an appropriate manner
concerned in its own territory.’;

that

6. an Annex V shall be added, as set out in Annex II to this

Directive.

Article 5

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by . . . (**) at the latest. They shall forthwith inform
the Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such a
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

Article 6

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 7

Addressees

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(**) Two years after the date of entry into force of this Directive.

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PROVISIONS FOR PLANS AND PROGRAMMES REFERRED TO IN ARTICLE 2

ANNEX I

(a) Article 7(1) of Council Directive 75/442/EEC of 15 July 1975 on waste (1).

(b) Article 6 of Council Directive 91/157/EEC of 18 March 1991on batteries and accumulators containing certain

dangerous substances (2).

(c) Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against

pollution caused by nitrates from agricultural sources (3).

(d) Article 6(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (4).

(e) Article 14 of Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on

packaging and packaging waste (5).

(f) Article 8(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and

management (6).

(1) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Commission Decision 96/350/EC (OJ L 135, 6.6.1996, p. 32).
(2) OJ L 78, 26.3.1991, p. 38. Directive as last amended by Commission Directive 98/101/EC (OJ L 1, 5.1.1999, p. 1).
(3) OJ L 375, 31.12.1991, p. 1.
(4) OJ L 377, 31.12.1991, p. 20. Directive as last amended by Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28).
(5) OJ L 365, 31.12.1994, p. 10.
(6) OJ L 296, 21.11.1996, p. 55.

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ANNEX II

In Directive 96/61/EC, the following Annex shall be added:

‘ANNEX V

PUBLIC PARTICIPATION IN DECISION-MAKING

1. The public shall be informed (by public notices or other appropriate means such as electronic media where available)
of the following matters early in the procedure for the taking of a decision or, at the latest, as soon as the
information can reasonably be provided:

(a) the application for a permit or, as the case may be, the proposal for the updating of a permit or of permit
conditions in accordance with Article 15(1), including the description of the elements listed in Article 6(1);

(b) where applicable, the fact that a decision is subject to a national or transboundary environmental

impact

assessment or to consultations between Member States in accordance with Article 17;

(c) details of the competent authorities responsible for taking the decision, those from which relevant information
can be obtained, those to which comments or questions can be submitted, and details of the time schedule for
transmitting comments or questions;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) where applicable, the details relating to a proposal for the updating of a permit or of permit conditions;

(f) an indication of the times and places where, or means by which, the relevant information will be made available;

(g) details of the arrangements for public participation and consultation made pursuant to point 5.

2. Member States shall ensure that, within appropriate time-frames, the following is made available to the public

concerned:

(a)

in accordance with national
authorities at the time when the public concerned were informed in accordance with point 1;

legislation, the main reports and advice issued to the competent authority or

(b) in accordance with the provisions of Directive 2002/. . ./EC of the European Parliament and of the Council of . . .
concerning public access to environmental information (1), information other than that referred to in point 1
which is relevant for the decision in accordance with Article 8 and which only becomes available after the time
the public concerned was informed in accordance with point 1.

3. The public concerned shall be entitled to express comments and opinions to the competent authority before a

decision is taken.

4. The results of the consultations held pursuant to this Annex must be taken into due account in the taking of a

decision.

5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication
in local newspapers) and consulting the public concerned (for example by written submissions or by way of a public
inquiry) shall be determined by the Member States. Reasonable time-frames shall be provided allowing sufficient time
for each of the different stages provided for in this Annex.

(1) OJ . . .’.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 19 January 2001, the Commission sent the Council a proposal for a European Parliament and
Council 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 (1), based on Article 175(1) of the EC Treaty (co-decision procedure).

2. The European Parliament delivered its opinion at first reading on 23 October 2001 (2). The
Economic and Social Committee issued its opinion on 30 May 2001 (3). The Committee of the
Regions gave its opinion on 14 June 2001 (4).

3. Following these opinions, the Commission forwarded its amended proposal to the Council on

13 December 2001 (5).

4. On 25 April 2002, the Council adopted its Common Position in accordance with Article 251(2)

of the Treaty.

II. OBJECTIVE

5. The proposal aims to contribute to the implementation of the obligations arising from the second
pillar, on public participation, of the UN/ECE Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters (‘the Århus
Convention’). This Convention was signed by all Member States and by the Community,
entered into force on 30 October 2001 and has already been ratified by Denmark and Italy.

According to the Århus Convention, the public must be enabled to participate in the taking of
decisions regarding certain activities having a significant effect on the environment and in the
establishment of plans, programmes and projects relating to the environment. Such participation
contains the following stages:

— the public is informed of the intended plans, programmes and projects at an early stage,

— the public concerned is given an opportunity to express comments and opinions,

— the authorities take due account of the results of the public consultation in their decisions,

— the public concerned is informed of the decisions,

— concerning projects that are subject to public participation provisions, the public concerned is

also granted a right to challenge the legality of the decisions, acts and omissions.

6. The purpose of the draft directive is to introduce or to improve this type of public participation in

relation to:

— certain plans and programmes in the environmental field referred to in Annex I to the draft

Directive,

(1) OJ C 154 E, 29.5.2001, p. 123.
(2) OJ C 112 E, 9.5.2002, p. 125.
(3) OJ C 221, 7.8.2001, p. 65.
(4) OJ C 357, 14.12.2001, p. 58.
(5) OJ C . . .

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— the projects referred to in Council Directive 85/337/EEC on the assessment of the effects of

certain public and private projects on the environment (the ‘EIA Directive’) (1).

— the permits for large industrial activities regulated by Council Directive 96/61/EC on integrated

pollution prevention and control (the ‘IPPC Directive’) (2).

The latter two Directives are also the subject of provisions on access to justice.

7. It is expected that such public participation will contribute to the protection of the right to live in
an environment which is adequate for personal health and well-being by increasing the account-
ability and transparency of the decision-making process.

8. The Commission proposal is a further step in addition to the draft Directive on public access to
information and repealing Council Directive 90/313/EEC, which concerns the
received the Council's Common

the Århus Convention. Parliament

environmental
‘information’ pillar of
Position on 6 February 2002 (3).

III. ANALYSIS OF THE COMMON POSITION

9. The Council's Common Position maintains the approach proposed by the Commission, while
clarifying its provisions or making them more practicable. Many modifications aim at reinstating
the original text of the Århus Convention.

10. Article 1 was inserted by the Council and describes the overall objectives of the Directive.

field required to be drawn up under

11. Article 2 provides for public participation in the establishment of the plans and programmes in
the environmental
the Directives concerning waste
management, batteries and accumulators, protection of waters against nitrate pollution and air
quality management enumerated in Annex I. The Council
inserted a new paragraph 5 which
grants exemption from applying the Directive when a public participation procedure is carried out
under Directive 2001/42/EEC on the assessment of plans and programmes or under Directive
2000/60/EC on Community action in the field of the water policy, as these directives already
contain procedures meeting the requirements of the Århus Convention.

12. Article 3 aims at complementing Directive 85/337/EEC on the assessment of the environmental
impact of certain public and private projects on the environment (EIA), which already contains
some provisions on public participation in relation to the issuing of a consent for the devel-
opment of large construction works and interventions in the landscape. In particular, the draft
‘public concerned’ which includes non-governmental organisations
inserts a definition of
promoting environmental protection. The new Article 6 on informing and consulting the auth-
orities and the public specifies certain matters which were left to the discretion of the national
authorities under the old Directive, such as the type of information to be given and basic
procedural arrangements for informing and consulting the public. The amended Article 7
adapts the procedures for transborder consultations to the requirements of the Århus Convention
so that affected Member States may participate not only in the environment impact assessment
procedures but also in the environmental decision-making procedures referred to in Article 2(2).
Article 8 on taking into account the results of the consultations needed no amendment. Article 9
on informing the public of the decisions taken was modified in order to inform the public in a
Member State affected by a project having transboundary implications. A new Article 10a opens a
judicial review against decisions, acts or omissions subject to public participation. Regarding
Annex I to Directive 85/337/EEC, which enumerates the activities covered by the Directive, a
new paragraph 22 broadens the scope of the Directive to cover changes or extensions to existing
installations that in themselves meet the thresholds fixed by the other parts of that Annex.

(1) OJ L 175, 5.7.1985, p. 40. Directive as amended by Directive 97/11/EC (OJ L 73, 14.3.1997, p. 5).
(2) OJ L 257, 10.10.1996, p. 26.
(3) 11878/1/01 ENV 441 INF 114 Codec 882 REV. 2 + ADD 1 REV. 1.

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13. Article 4 aims at complementing Directive 96/61/EC (IPPC) concerning integrated pollution
prevention and control of large industrial activities. An amendment to Article 2(10) clarifies
that changes or extensions of existing installations that in themselves meet the thresholds,
if
any, are deemed to be ‘substantial’. A definition of ‘public concerned’ has been introduced.
is amended and
Article 15, which provided for a summary information of
completed by an Annex V providing for a detailed information and consultation of the public.
A new Article 15a opens a judicial review against decisions, acts or omissions subject to public
participation. Article 17 on activities having transboundary effects is replaced by a new text that
requires the Member State where the activities take place to provide the information in Annex V
to the affected Member State so that the latter's public concerned may be in a position to express
its comments.

the public,

14. The Directive only concerns existing Directives. The Commission intends to include provisions on
public participation to environmental decision-making in all its future proposals on environmental
plans and programmes.

15. In a public statement for the minutes, the Council and the Commission agree to undertake steps
in order to apply the second pillar of the Århus Convention within the Community institutions as
well.

IV. AMENDMENTS BY THE EUROPEAN PARLIAMENT ACCEPTED BY THE COUNCIL

16. The Council accepted, in a slightly different form (‘such as electronic media where available’), the
proposal of Parliament that the public should be informed ‘using electronic media’, contained in
Amendment 9/10/33 relating to Article 1(2)(a)
in
Amendments 34/15/16 relating to new Article 6(3) of Directive 85/337/EEC (Article 6(2) in the
to Directive
Common Position) and in Amendment 27/28/29 relating to new Annex V(1)
96/61/EC. The Commission had also accepted these amendments in a different form.

(Article 2(2)(a) of the Common Position),

17. The Council integrated in Article 2(a) in fine, the part of Amendment 9/10/33 specifying that the
public must receive, inter alia, information about the right to participate in decision-making and
the competent authority, and which was also accepted by the Commission.

18. Following a suggestion by the Commission, the Council accepted, though in a formulation taken
from the Århus Convention (‘when all options are open’), the idea that the public must be entitled to
express comments ‘without prejudice to any options’ contained in Amendment 9/10/33 concerning
Article 1(2)(b) (Article 2(2)(b) of the Common Position) and in Amendment 34/15/16 relating
to new Article 6(4) of Directive 85/337/EEC.

19. Like the Commission, the Council accepted in principle Amendment 9/10/33, adding a new Article
1(3a) according to which the competent authority shall make reasonable efforts to reply to the
public individually or collectively. This idea led the Council to insert a new Article 2(2)(d)
according to which the competent authority makes reasonable efforts to inform the public about
the decisions taken and the reasons and considerations therefore.

Amendment 34/15/16 proposes inserting a similar provision in a new Article 6(5a) of Directive
85/337 and Amendment 35 proposes the same for a new Article 15(4a) of Directive 96/61/EC.
The Commission and the Council felt these amendments not to be necessary because their ideas
are already contained in Article 9(1) of Directive 85/337/EEC and in Article 15(5)(b) of Directive
96/61/EC.

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20. A part of Amendment 14 relating to a new Article 2(3)(b) in fine of Directive 85/337/EEC, as well
as Amendment 20/21 for a new Article 9(a) of Directive 85/337/EEC proposed that Member States
must issue practical directions for judicial review pursuant to the new Articles 10a and 15a. These
amendments inspired the Council to introduce, at the end of Article 10a of Directive 85/337/EEC
and at the end of Article 15a of Directive 96/61/EC, a sentence taken from the Århus Convention
Article 9(5) obliging Member States to provide the public with information on administrative and
judicial review procedures.

21. The Council accepted Amendments 31 and 32/23 relating to judicial review in the new Article 10a
of Directive 85/337/EEC and in the new Article 15a of Directive 96/61/EC. At the same time, the
Council inserted into subparagraphs 3, 4 and 6 of the new Articles 10a and 15a other parts of
Article 9 of the Århus Convention in order, in particular, to clarify the position of NGOs.

V. AMENDMENTS BY PARLIAMENT NOT ACCEPTED BY THE COUNCIL

22. The Council and the Commission did not agree to Amendment 1, the second part of Amendment 2
and the last part of Amendment 5 aiming at clarifying, in recitals 1, 2 and 6, that the Community
aims at protecting ‘individual and public health’ instead of ‘human health’ or ‘personal health’: the
suggested expression is unknown in EC-terminology and the Council text conforms to Article 174
of the Treaty and the sixth environmental action programme, which refer to ‘human health’.

23. The Council and the Commission did not accept the first part of Amendment 2 on recital 2,
Amendment 3 for a new recital 2a, the first part of Amendment 5 to recital 6, Amendment 8 to
recital 10 and Amendment 26 for a new Annex I, point (ga) that aim at extending public
participation to Community legislation and plans and programmes that do not directly concern the
environment, but which have a significant effect on the environment, health and well-being:
Community legislation is not subject to the Directive; the extension to plans and programmes
would give a huge scope to the Directive; and ‘significant effect’ is not well defined.

24. Amendment 4 to recital 3, on replacing the terms ‘public awareness of environmental issues’ by
public support for the decisions taken was accepted as an addition by the Commission, but was
rejected by the Council, as ‘awareness’ appears in recital 9 of the Århus Convention and as public
participation does not necessarily guarantee public support.

25. The Council and the Commission rejected:

— Amendments 6 and 7 which motivate the Directive by a reference to Article 8 of the Århus
Convention, which encourages public participation for the preparation of executive regulations
implicitly, to the last sentence of Article 7 of the Århus
and general binding rules and,
Convention, which encourage parties to promote public participation for the preparation of
policies relating to the environment,

— Amendment 9/10/39 to the title and to paragraph 2, subparagraph 2(a) and (b) of Article 2,
(Article 1 of the Commission proposal), and Amendment 25 to the title of Annex I which
propose that the Directive also cover policies set up under Community legislation:

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Under the last sentence of Article 7 and the opening sentence of Article 8 of the Århus
Convention, public participation in the preparation of legislation and policies is only subject to
a ‘best endeavours’ clause which only applies to the extent appropriate. Policies are in any case
subject
to the democratic control of representative bodies such as parliaments, communal
councils, etc. For that same reason, the Council deleted the word ‘policies’ from recital 8 in the
Commission proposal.

26. Parliament proposed, in Amendment 9/10/33 relating to Article 1(2) (Article 2(2) of the Common
Position), in Amendment 34/15/16 to the new Article 6(4) of Directive 85/337/EEC (Article 6(6) of
the Common Position) and in Amendment 35 relating to the new Article 15(1) of Directive
96/61/EC, to provide for public participation in ‘the different stages’ of decision-making.

The Council and the Commission did not accept this amendment as Article 2(2) of the Common
Position, the new Article 6(4) (introductory sentence) of Directive 85/337/EEC, the new Article
15(1) of Directive 96/61/EC and Article 6(4) of the Århus Convention already provide for an
‘early and effective’ public participation. Adding public participation at all stages of decision-
making is not
foreseen in the Århus Convention and would make decision-making very
lengthy and burdensome.

27. The Council and the Commission did not accept the penultimate part of Amendment 9/10/33
aiming at inserting into Article 1(3) (Article 2(3) of the Common Position) a new subparagraph
inspired by the Århus Convention Article 3(3) and stating that arrangements for public partici-
pation may include educating the public about such decision-making. The Council believes that this
Directive on public participation is not the right place for educational actions. In addition, the
suggested wording is rather vague and does not explain what exactly the Member States are
supposed to do.

28. In Amendment 30 for a new Article 1(3b), it is proposed that a judicial review similar to that of new
Article 10a of Directive 85/337/EEC and Article 15a of Directive 96/61/EC be given for the plans
and programmes covered by Article 1 (Article 2 of the Common Position) and Annex I.

The Council and the Commission did not accept this amendment, as Article 9(2) of the Århus
Convention only imposes access to justice in relation to the concrete projects in Article 6 and
Annex I to that Convention and not in relation to the plans, programmes and policies in Articles
7 and 8.

29. The Council did not accept Amendment 13 which aims at modifying Article 1(4) of Directive
85/337/EEC ‘Projects serving national defence purposes are not covered by this Directive’ with a
view to making that provision optional (amendment accepted by the Commission).

30. The Council also did not see any merit in Amendment 14, which aims at adding to Article 2(3)(a)
of Directive 85/337/EEC (whereby a Member State that exempts a specific project from the
environmental impact assessment divulges the information relating to the exemption and to the
reasons for granting it) that the Member State should also disseminate the information relating to the
consideration of the appropriateness of another form of assessment. The Commission had accepted that
part subject to some redrafting.

31. The part of Amendment 34/15/16 for a modification of the introductory phrase and subparagraph
(a) of Article 6(3) of Directive 85/337/EEC (Article 6(2) in the Common Position) with a view to
extending public participation to the review of the development consent procedure, was not felt to be
necessary as any change of an existing installation requiring an environmental impact assessment
does already require a development consent under the provisions of Article 2 of Directive
85/337/EEC and is therefore subject to public participation.

32. The Council and the Commission did not accept Amendment 34/15/16 aiming at inserting, at the
end of Article 6(3) of Directive 85/337/EEC (Article 6(4) in the Common Position), a sentence
indicating that account has to be taken of the results of the public participation, as this is already
contained in Article 8.

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33. The part of Amendment 34/15/16 regarding Article 6(5) in fine of Directive 85/337/EEC and the
part of Amendment 27/28/29 on Annex V(4) (paragraph 5 in the Common Position) aiming at
specifying that sufficient time should be left for the public to prepare and to participate (accepted by the
Commission) was felt to be already covered by the expression ‘allowing sufficient time for each of
the different stages’.

34. At

the end of Amendment 20/21 relating to Article 9(2) of Directive 85/337/EEC and in
Amendment 24 concerning Article 17(4) of Directive 96/61/EC, Parliament proposed that,
in
case of participation of the public in another Member State, the consulted Member State will
ensure that information is made available to the public in the consulting Member State in the latter's
language. The Council and the Commission did not want to impose such a burden taking into
account the enormous cost, effort and time it may take to translate all documentation. Translation
is also left for the Member States under the subsidiarity principle.

The Council however included in the text the terms ‘in an appropriate manner’ proposed in these
amendments.

35. The Council and the Commission did not accept the proposal in Amendment 32/23 to state at the
end of the new Article 15a of Directive 96/61/EC, that the review procedures should be ‘either free or
instead of ‘not prohibitively expensive’ as the latter expression appears in the Århus
cheap’
Convention. The Council also replaced the whole sentence proposed by the Commission by
Article 9(4) of the Århus Convention.

36. The Council and the Commission did not accept the part of Amendment 27/28/29 which aimed at
extending, through a modification in Annex V(1)(a) to Directive 96/61/EC, the information of the
public to proposals for the reconsideration of permits, as reconsideration is normally an internal
administrative act without consequences for the permit. Should there be such consequences, the
consideration would fall within the category of ‘updating’ and be eligible for public participation.

The proposal aiming at specifying, in Annex V(2), that the public will be entitled to comment in
writing or at a hearing (agreed by the Commission) was rejected by Council as it would limit the
freedom of the Member States to choose other and better ways and means for consulting the
public. The two modes of comment suggested by Parliament were however quoted in paragraph 5
of the Common Position as examples for detailed arrangements for consulting the public.

The Council also accepted Parliament's proposal on inserting ‘duly’ in paragraph 3, while using the
expression ‘due account’ to reflect Article 6(8) of the Århus Convention.

VI. OTHER AMENDMENTS INTRODUCED BY THE COUNCIL

Title and preamble

37. The Council made a few drafting changes in the title and in recital 10 and reformulated recital 12

on subsidiarity and proportionality using the standard formula.

Article 1 on the objectives

38. Article 1 was inserted by the Council and summarises the Directive.

Article 2 on plans and programmes

39. The Council added to the paragraph 2, opening sentence and (a), the words ‘modification or’
which also appears in Directive 2001/42/EC on plans and programmes (SEA). It added the words
‘meeting any requirements imposed under national law’ to paragraph 3. The end of the same
paragraph was modified in order to include the words of the Århus Convention Article 6(3)
‘enable the public to prepare and participate effectively’. Paragraph 4 exempting national defence
or civil emergencies is new and is inspired by Article 3(8) of Directive 2001/42/EC on plans and
programmes quoted in paragraph 5. Paragraph 5 is also new (see paragraph 11).

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Article 3 on Directive 85/337/EEC

40. The Council replaced the expression ‘development consent procedure’ by ‘the environmental
decision-making procedures in Article 2(2)’ in order to take into account the different manners
in which the Member States can organise public participation under Directive 85/337/EEC.

41. The Council deleted the new Article 6(2) on early and effective participation of the Commission
proposal and transferred its content to paragraph 4 of the Common Position where it has a more
chronological place.

42. Regarding the new paragraph 2 (paragraph 3 of the Commission proposal) of the amended Article
to the introductory sentence and amended
in order to clarify that the public must be informed of details concerning

the Council added the word ‘reasonably’

6,
subparagraph (c)
each of the three quoted authorities.

The Council noted that paragraph 2 essentially concerns information that is available at the time
of the initial request for development consent. It created a new paragraph 3, which concerns
information that is made available to the public after the initial request, and transferred to that
paragraph to subparagraphs (e) and (f) of the Commission's paragraph 2. This reflects the
sequences in Article 6(2) and (6) of the Århus Convention.

The same was done to the new Annex V, to Directive 96/61/EC, where subparagraph (1)(f) of the
Commission proposal was moved to a new paragraph 2.

43. The last sentence of paragraph 5 of the Commission text became a new paragraph 6 in order to

generalise the requirement of reasonable timeframes.

44. Regarding Article 7(1), the Council inserted the whole of paragraph 1 of the basic Directive and

introduced in it a modified version of the amendment proposed by the Commission.

45. The end of Article 7(2), was adapted to the splitting up of Article 6(3) of the Commission

proposal (see paragraph 42).

46. Article 3(6) of the Directive concerning Annex I(22) integrates Annex II to the Commission
proposal. The words ‘the appropriate criteria’ were deleted as they did not add anything to the
expression ‘thresholds’, that covers all relevant points.

47. Article 3(7) contains a clarification of Annex II to Directive 85/337/EEC and repeats an expression

used in that Annex.

Article 4 concerning Directive 96/61/EC

48. The Council deleted from the addition to Article 2(10)(b) the words ‘appropriate criteria or’ for the

same reasons as under paragraph 46.

49. The Council modified the proposed Article 15(1) in order to clarify that the public must be
consulted where a permit is issued for a new installation or for a substantial change as defined in
Article 2(10)(b).

The third indent also provides for public participation in the updating of a permit under Article
13 of Directive 96/61/EC in the cases where the emission limit values need to be significantly
changed. The Commission disagreed with this restriction, which excludes important categories of
updates referred to in Article 13 such as updates for imposing new techniques, for improving the
operational safety and for applying new legislation, being of the opinion that Article 6(10) of the
Århus Convention requires, as a principle, a public participation in all updating of permits. The
Council however believes that there need not be public participation for minor increases in
emission limit values nor for tightening the rules on the operation of an installation and notes
that the Århus Convention only requires covering updates ‘where appropriate’.

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50. Regarding the amendment of Article 17(1), the Council added the existing unmodified second

sentence to the end of the paragraph.

51. Regarding Article 5 of the Directive, the Council modified the date for implementation.

52. On Annex I(f), the Council was confronted with the choice of quoting all ‘daughter’ directives
adopted on the basis of Directive 96/62/EC or none of them and chose the latter option.
Subparagraph (g) was deleted as Article 14 of the landfill Directive 1999/31/EC lays down
detailed requirements and procedures for operators that present a conditioning plan for an
leaving little room for public participation. The creation of a new landfill is
existing landfill,
subject
to the waste management plans and the public participation foreseen by Directive
75/442/EEC on waste referred to in point (a) of Annex I.

VII. CONCLUSION

53. The Common Position aims at giving the public the widest possible access to environmental
decisions leaving enough flexibility for practical arrangements at the level of the Member States
and for integrating smoothly the requirements of public participation into daily administrative
practice. The Common Position also reverts in many cases to the wording of the Convention of
Århus, while leaving out its non-compulsory parts.

The Commission accepted the Common Position except for the part referred to in paragraph 49.