Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council 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 amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2002-10-22
Institutions: European Commission
Subjects: EU environmental policy, EU programme, access to information, access to the courts, decision-making, environmental impact, environmental protection, public awareness campaign

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 22.10.2002
COM(2002) 586 final

2000/0331 (COD)

OPINION OF THE COMMISSION

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

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

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

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

2000/0331 (COD)

OPINION OF THE COMMISSION

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

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

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

1.

INTRODUCTION

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is
to deliver an opinion on the amendments proposed by the European Parliament at second
reading. The Commission sets out its opinion below on the 19 amendments proposed by
Parliament.

2.

BACKGROUND

– Date of

transmission of

the proposal

to the European Parliament and Council

(COM(2000) 839 final – 2000/0331 (COD)): 18 January 2001

– Date on which the European Parliament gave its opinion at First Reading: 23 October 2001

– Date on which the Economic and Social Committee adopted its opinion: 30 May 2001

– Date on which the Committee of the Regions adopted its opinion: 14 June 2001

– Date on which the Commission adopted its amended proposal (COM(2001) 779 final –

2000/0331 (COD)): 12 December 2001

– Date on which the Council adopted the Common Position: 25 April 2002

– Date on which the Common Position was received by the European Parliament: 30 May

2002

– Date on which the Commission communicated its view on the Common Position: 27 May

2002

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On 5 September 2002 the European Parliament at
its Second Reading adopted
19 amendments. The majority of the amendments aim at extending the scope and content of
public participation and, in part, related access to justice, as compared to the Common
Position. In some parts, the amendments aim to reinforce the Commission proposal, and to
better reflect the Aarhus Convention. Other parts go beyond the Aarhus Convention, or would
duplicate existing provisions in other legislation.

3.

PURPOSE OF THE PROPOSAL

The Directive, once adopted, will contribute to implementing the Aarhus Convention1, as far
as its ‘second pillar’ on public participation in environmental decision-making is concerned.
In addition, other recent Community legislation already incorporates the principles of the
Aarhus Convention regarding public participation and the proposal on access
to
environmental information is presently under conciliation. The remaining proposals, to fully
implement the third pillar and concerning the application of the Aarhus Convention to
Community institutions, are under preparation within the Commission services.

The proposed directive completes, or amends, a number of existing Directives, introducing
the public participation requirements of the Aarhus Convention. It aims to ensure that the
basic procedures are consistent in all Member States, and in cases with a transboundary
dimension. In line with the subsidiarity principle, the proposal leaves procedural details and
the implementation of ‘soft law’ provisions of the Aarhus Convention to the Member States.

In more detail, the proposal:

– formulates requirements for public participation in the preparation of certain plans and
programmes to be adopted by Member States under Directives in the environmental field,
notably related to waste, air quality management and water pollution from nitrates
(Article 2 and Annex I). This contributes to giving effect to Article 7 of the Aarhus
Convention, regarding public participation in the preparation of plans and programmes
relating to the environment. For the future, relevant new legislative proposals will take up
the Aarhus requirements from the outset. Other recently adopted legal instruments already
provide for public participation in the establishment of respective plans or programmes,
(the ‘SEA
such as Directive 2001/42/EC on Strategic Environmental Assessment
Directive’)2 and the Water Framework Directive 2000/60/EC3. The text of the common
position clarifies that, to the extent public participation is foreseen by those Directives,
their provisions will apply.

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2

3

UN/ECE Convention on Access to Information, Public Participation and Access to Justice in
Environmental Matters, signed by the Community and the Member States in June 1998, and entered
into force in October 2001
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
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

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– amends Council Directive 85/337/EEC on environmental impact assessment (the ‘EIA
Directive’)4 and Council Directive 96/61/EC on integrated pollution prevention and control
(the ‘IPPC Directive’)5, to fully integrate the public participation requirements of Article 6
of the Aarhus Convention (‘public participation in decisions on specific activities which
may have a significant impact on the environment’). Both Directives cover activities listed
in Annex I to the Aarhus Convention, which may have a significant effect on the
environment. The draft Directive also includes provisions on access to justice with respect
to decisions, acts and omissions subject to the public participation provisions in relation to
those projects, to implement Article 9 (2) of the Convention.

4.

OPINION OF THE COMMISSION ON THE AMENDMENTS BY THE EUROPEAN
PARLIAMENT

On 5 September 2002, the European Parliament adopted 19 amendments. 2 amendments can
be accepted by the Commission in full [amendments 15 and 19]. 4 amendments can be
accepted in principle [amendments 3, 4, 11 and 12], subject to rewording. The remaining
amendments cannot be accepted by the Commission [amendments 1, 2, 5, 6, 7, 8, 9, 10, 13,
14, 16, 17, 18].

4.1.

Amendments accepted by the Commission

The Commission accepts amendment 15. This amendment relates to Article 4, point 3 of the
common position, which modifies Article 15 of the IPPC Directive. The amendment provides
for wider public participation in the updating of IPPC permits than the common position. The
Commission did not agree on this item in the common position, given that its wording on
permit updates creates legal uncertainty. It leaves a wide discretion to the Member States and,
lastly, the competent authorities in charge of updating permits. This will lead to widely
diverging practice and potentially result in public participation to take place in only few cases
of permit updates rather than being the rule. Amendment 15 makes public participation an
obligation for at least the most relevant cases of permit updates, which are the ones covered
by Article 13 of the IPPC Directive. While the Commission proposal included permit updates
as such, the amendment is still in line with Article 6(10) of the Aarhus Convention.

The Commission accepts amendment 19 on Annex II. The amendment adds wording to the
new Annex V to the IPPC Directive, making explicit the stages of public participation.

4.2.

Amendments accepted in principle by the Commission

The Commission accepts in principle amendment 3 to Recital 3, mentioning that effective
public participation contributes to “public support for the decisions taken”. The Commission
accepts that this reference be added to the wording. It should read:

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Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and
private projects on the environment
Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control

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Recital 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 to those
decisions, thereby increasing the accountability and transparency of the decision-making
process and contributing to public awareness of environmental issues and support for
the decisions taken.

The Commission accepts in principle amendment 4 on Recital 6. Among the objectives of the
the amendment refers to “the desire to guarantee rights of public
Aarhus Convention,
participation in decision-making which affects the environment ”. It would replace “… to
guarantee rights of public participation in certain kinds of environmental decision-making”, in
the common position. The Commission accepts re-wording in line with text on ‘objectives’ of
Article 1 of the Convention. This would then read:

Recital 6

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

Amendment 11 can be accepted in principle, subject to rewording. It alters the exception, in
the EIA Directive 85/337/EEC, for projects serving national defence purposes from a general
one to one to be decided by Member States on a case-by-case basis. The amendment intends
to reflect Article 6(1)(c) of the Aarhus Convention, which is relevant as the activities covered
by the EIA Directive are activities referred to in Article 6(1)(a) and Annex I of the Aarhus
Convention. For the Commission to accept the amendment, it needs to be partially reworded
to correctly refer to the EIA Directive and to better reflect the Convention wording in the
context of this Directive. The appropriate wording suggested would be:

Article 3, paragraph 1a (new)

(Article 1, paragraph 4 (Directive 85/337/EEC))

In article 1, paragraph 4 shall be replaced by the following: “Member States may decide,
on a case-by-case basis [ … ], not to apply this Directive to projects serving national defence
purposes if they deem that such application would have an adverse effect on these
purposes.”

The Commission accepts in principle amendment 12 adding a new paragraph 1b) to Article 3.
This amendment requires information to be provided also where another form of assessment
has been undertaken when exempting a specific project from the EIA Directive. However, the
amendment would need to be reworded. The following wording would be more appropriate:

Article 3, paragraph 1b (new)

(Article 2, paragraph 3 (Directive 85/337/EEC))

1b) In Article 2(3), points (a) and (b) are replaced by the following:

“(a) consider whether another form of assessment would be appropriate;

(b) make available to the public concerned the information obtained under other forms of
assessment referred to in point (a), the information relating to the exemption decision [ … ]
and the reasons for granting it.”

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4.3.

Amendments rejected by the Commission

The Commission cannot accept amendment 1 introducing new text in Recital 2. The Recital
as reworded does not correspond to the articles of the Directive.

For the same reason, amendment 2 cannot be accepted. It introduces a new Recital, which,
while being of general relevance, is not required to justify the text of the Directive.

Amendment 5, to Recital 9 on access to justice, refers not only to Article 6 of the Aarhus
Convention, but also to “other relevant articles”. The Commission cannot accept
this
amendment, given that the articles on access to justice only relate to decision-making on
projects covered by Article 6 of the Aarhus Convention.

The Commission cannot accept amendment 6, modifying Recital 10 on public participation in
the preparation of plans and programmes in the environmental field. The amendment does not
reflect the articles of the proposed Directive, which relate to plans and programmes to be
drawn up under certain directives in the environmental field.

The Commission cannot accept amendments 7 and 13. These amendments require public
authorities “having examined the concerns and opinions expressed by the public” to make
“reasonable efforts to reply to the public individually or collectively, explaining the possible
effects of public participation in the matter concerned”, both in relation to plans and
programmes (amendment 7 on Article 2) and to environmentally significant projects under
the EIA Directive 85/337/EEC (amendment 13 on Article 3). In relation to plans and
programmes (amendment 7), the Commission accepted in principle a parallel amendment in
First Reading, and related text is incorporated in the common position. Hence, according to
the common position, the competent authority is to make “reasonable efforts to inform the
public about the decisions taken and the reasons and considerations upon which those
decisions are based”. In relation to amendment 13, this is already provided for under Article 9
of the EIA Directive. Requiring more would constitute a disproportionate administrative
burden and duplicate requirements.

The Commission cannot accept amendment 8 according to which the arrangements for public
participation to be set by the Member States under Article 2, “may include educating the
public about decision-making or the funding of such education.” Such reference does not fit
within the text of Article 2, where the ‘detailed arrangements’ are meant to be of a practical
nature. In addition, wording as “may include” has no added value in the context of a
Directive.

Amendment 9, to Article 2 paragraph 4, concerns a possible exemption from the public
participation requirement for plans and programmes “serving national defence purposes”.
While the common position is worded in terms of a generalised exemption, the amendment
leaves it to the Member States to decide, “on a case-by-case basis, not to apply this Article to
plans and programmes serving national defence purposes if such an application would have
an adverse impact on such plans and programmes or to decisions taken in case of civil
emergencies”. The Commission cannot accept this amendment. While its wording is inspired
that provision relates to environmentally
by Article 6(1)(c) of the Aarhus Convention,
significant projects. The common position provision is drafted in parallel
to Directive
2001/42/EC on the assessment of the effects of certain plans and programmes on the
environment (‘the ‘SEA Directive’). It is to be maintained for the sake of coherence between
both Directives dealing with ‘plans and programmes’. Also, as regards exempted ‘plans and
programmes’, the wording is more restrictive, aiming at those “designed for the sole purpose

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of national defence”. Furthermore, it should be noted that, given the nature of the plans and
programmes covered by the present proposal, the provision is of very limited potential
practical relevance.

The Commission cannot accept amendment 10, adding a new paragraph 5a to Article 2. This
would introduce access to justice in relation to plans and programmes subject to public
participation under the proposed Directive. The common position provides for access to
justice in relation to environmentally significant projects. For plans and programmes, access
to justice is not explicitly required under the Aarhus Convention, nor is it provided for under
the SEA Directive. Requiring access to justice for a limited number of plans and programmes
covered by the present Directive would create a legally incoherent situation. The Commission
services are preparing a legislative proposal to fully address the third pillar of the Aarhus
Convention, in the frame of which the content of the amendment could be addressed in a
horizontal way.

The Commission cannot accept amendments 14 and 16. These amendments require that the
the EIA (amendment 14) and the IPPC
information about a decision taken under
(amendment 16) Directive respectively also encompasses “practical direction about
the
procedure for seeking review …”. The amendments were also tabled in First Reading, and the
the common position already requires
Commission agreed in principle. Consequently,
Member States “to ensure that information is made available to the public on access to
administrative and judicial review procedures” (in Article 10a of the EIA and 15a of the
IPPC Directive), a wording taken from the Aarhus Convention. In the light of these changes
already made, amendments 14 and 16 are superfluous and potentially give rise to confusion.

The Commission cannot accept amendment 17, which would shorten the delay for
implementation from 2 years to 12 months from entry into force of the Directive. Integrating
the public participation requirements into administrative processes might imply amending
existing rules concerning several
levels of government and procedure. The 12 months
proposed are therefore considered too short. As a comparison, under the SEA Directive,
3 years are foreseen.

The Commission cannot accept amendment 18, which adds an additional point to Annex I, on
plans and programmes covered by the Directive. The amendment considerably extends the
scope of the Directive, by including “other Community legislation, 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
the wording refers to public participation in the preparation of
Treaty”. To the extent
Community legislation, the present Directive is not the correct legal instrument. In addition,
public participation in the preparation of legislation is worded as ‘soft law’ under the Aarhus
Convention. As far as ‘plans and programmes’ are concerned,
the amendment would
considerably deviate from the original approach to cover clearly identified plans and
programmes in the environmental field. It does not provide for sufficient legal certainty which
plans and programmes are covered. In addition, it would potentially duplicate measures in
different pieces of legislation. In particular, under the SEA Directive 2001/42/EC, public
participation in line with the Aarhus Convention is provided for in relation to the plans and
programmes covered.

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5.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out
above.

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