Report from the Commission to the European Parliament and the Council on the Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC) - How successful are the Member States in implementing the EIA Directive
Date: 2003-06-23
Institutions: European Commission
Subjects: EC Directive, application of EU law, environmental impact, environmental protection, impact study, national implementing measure, private sector, project evaluation, public sector, report

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 23.06.2003
COM(2003) 334 final

REPORT FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

On the Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as
amended by Directive 97/11/EC)

How successful are the Member States in implementing the EIA Directive

INTRODUCTION

The  European  Commission,  has  prepared  the  following  5  Years  Report  fulfilling  the
obligation  found  in  Article  2  of  Directive  97/11/EC  and  Article  11  paragraph  1  and  2  of
Directive 85/337/EEC on the assessment of the effects of certain public and private projects
on the environment (EIA Directive), which requires that "five  years after the notification of
the Directive, the Commission shall send the European Parliament and the Council a report on
its  application  and  effectiveness.  The  report  shall  be  based  on  exchange  of  information  on
experience gained in applying this Directive".

The report contains two parts, i.e., a summary of findings and actions to be taken and annexed
the 5 Years review with detailed information on issues regarding the application of the EIA
Directive prepared on the basis of answers by information provided by the Member States.

SUMMARY OF FINDINGS

This report by the Commission reviews the operation of Directive 85/337/EEC as amended by
Directive 97/11/EC (the EIA Directive). It is the third review of the EIA Directive and builds
on those carried out in 1993 and 1997. This review comes five years after the entry into force
of Directive 97/11/EC and examines the effectiveness of both the changes made by 97/11/EC
and  the  EIA  Directive  as  a  whole.  The  bulk  of  the  report  is  based  on  material  collected
following  a  questionnaire  survey  of  Member  States  by  DG  Environment.  The  Impacts
Assessment  Unit  of  Oxford  Brookes  complemented  missing  elements  and  assembled  the
information. Special thanks are expressed to all the staff from the Member States  who have
co-operated and helped in providing information for this report.

Apart  from  the  changes  introduced  as  a  consequence  of  the  Commission's  first  report
evaluating  the  effectiveness  of  Directive  85/337/EEC,  the  amendments  made  by  97/11/EC
also reflect  the  considerable  strengthening  and  clarification  given  to  certain  elements  of  the
EIA Directive as advanced by the European Court of Justice (ECJ). The report highlights the
changes made by 97/11/EC and the ECJ rulings that underpinned them, and reflects upon the
related policy context. The report also addresses the issue of complaints on the EIA Directive
received by the Commission. Directive 97/11/EC widened the scope of EIA by increasing the
number  of  types  of  project  covered,  and  the  number  of  projects  requiring  mandatory  EIA
(Annex I). It also strengthened the procedural base of the EIA Directive by providing for new
screening arrangements, including new screening criteria (at Annex III) for Annex II projects,
and  providing  minimum  information  requirements.  The  review  of  the  implementation  and
application  of  Directive  97/11/EC  has  shown  that  the  new  measures  introduced  by  the
Directive have yet to be implemented in full in all Member States. The Commission's findings
on the slow embrace of the amendments made by 97/11/EC by some Member States do not
detract  from  the  general  importance  that  most  of  the  Member  States  and  the  European
Commission place on EIA as a tool for implementing wider environmental policies.

The Commission's report examines key areas of the operation of the EIA Directive including
screening (the determination whether an EIA is required for a specific project), scoping (, i.e.,
the identification of the issues to be covered by the environmental impact statement), review
(the  examination  of  environmental  impact  statements  and  other  information  submitted  by
developers  to  ensure  it  complies  with  the  minimum  information  requirements  of  the
Directive),  and  decision  making.  The  report  also  examines  the  arrangements  made  by
Member  States  for  dealing  with  key  EIA  issues  such  as  the  consideration  of  alternatives,

2

public participation and quality control. Based on the  information reviewed here there is  no
real  evidence  to  suggest  that  further  amendments  to  the  EIA  Directive  are  required  at  this
stage.

1)

2)

3)

The survey, on which this report is based, revealed few significant concerns among
Member  States  regarding  the  current  split  between  Annex  I  and  Annex  II  projects;
and Member States appear to have embraced the flexibility permitted by Article 4(2)
to  employ  either  a  threshold  or  a  case-by-case  approach  to  screening  Annex  II
projects. A variety of approaches to screening exists across the Member States. Many
Member States appear to be making use of the ‘traffic light’  approach to screening
and  have  developed  inclusion  thresholds  (EIA  always  required  –  Red),  exclusion
thresholds (EIA never required - Green) and indicative or guidance thresholds (EIA
may  be  required  -  Amber).  However,  in  some  cases  Member  States  appear  to  be
employing a variety of different approaches, using different screening procedures for
different  project  types.  In  some  cases  only  mandatory  or  inclusive  thresholds  are
used  and  it  is  not  always  clear  from  the  responses  received  that  sub-mandatory
threshold screening takes place in all cases. Very few Member States employ a case-
by-case approach for all project types.

In  the  survey  a  wide  variation  was  found  in  approach  to  the  setting  of  thresholds
exists  across  the  European  Union.  While  many  Member  States  have  set  thresholds
for  the  same  project  types,  there  are  very  large  differences  in  the  levels  at  which
thresholds have been set. Some Member States have made EIA mandatory for some
project types regardless of size. This means that a project will be subject to EIA on a
mandatory basis in one Member State while the same project type, of the same size
will  require  EIA  only  after  case-by-case  screening  in  another  Member  State.  The
report  did  not  investigate  the  justification  for  the  levels  at  which  individual
thresholds have been set. The information reviewed for this report is not based upon
the operation of screening in practice by competent authorities and therefore it is not
clear how the various thresholds and other screening criteria developed by Member
States are applied by competent authorities. Few Member States involve the public in
the screening process and many see it as a purely technical decision.

The annual number of EIAs that take place appears to vary considerably between the
countries of the European Union.  It was not an easy  task to gather this information
and in some cases a reporting system exists only at national level but not at regional
one. While the report provides estimates of the number of EIAs that have taken place
both before the transposition of 97/11/EC and since, it has not been possible to break
these  figures  down  into  project  types  or  even  provide  a  split  between  Annex  I  and
Annex II projects. In the Commission's view many Member States do not appear to
keep  accurate  annual  figures  on  EIA  activity  and  where  Member  States  do  not  in
their  national  legislation  distinguish  between  Annex  I  and  Annex  II  projects  it  is
difficult  to  disaggregate  them  for  data  collection  purposes.  The  lack  of  national
monitoring of EIA activity and the application of the EIA Directive in practice makes
it  difficult  to  speculate  on  the  reasons  why  there  are  such  wide  variations  between
Member States on the number of EIAs that have been completed. The variation may
be  explained  by  the  relative  economic  conditions  within  countries,  or  it  may  also
relate to the levels at which thresholds have been set.

4)

Scoping provisions are of a discretionary nature. The review revealed that there are a
wide  variety of  approaches  to the  scoping  stage of EIA.  It would appear that  some
Member  States  appreciate  the  value  of  an  early  scoping  stage  more  than  others.

3

5)

6)

7)

There appears to be little real commitment to scoping in those countries that have not
made  it  mandatory  and  have  not  provided  for  public  consultation  within  their
voluntary  scoping  stage.  However,  some  of  the  Member  States  show  the  opposite
tendency  and  require  the  publication  of  draft  scoping  reports  or  even  draft  EISs.
There  is  also  a  recognition  in  some  Member  States  that  public  involvement  at  the
scoping stage identifies the issues that are ‘significant’ to the people who will have to
live with the project and not just the ‘experts’ who will not.

Directive 97/11/EC introduced new minimum requirements for the information to be
supplied  by  the  developer.  Failure  to  provide  adequate  information  constitutes
grounds  for  refusal  of  development  consent  in  the  majority  of  countries,  under  a
variety of arrangements. Some Member States have formalised a review procedure to
ensure that the environmental information  supplied to  the  competent  authority is in
compliance  with  the  Directive.  In  some  cases  an  independent  specialist  review
commission  or  panel  of  experts  carries  out  the  review  of  the  EIS.  However,  since
there is no explicit obligation in the Directive to provide for such a review, there is
no harmonised approach to the matter. The review of the information provided is, in
all  but  a  few  Member  States,  left  to  the  competent  authority  and  in  many  Member
States  they  are  asked  to  do  this  without  the  aid  of  specific  review  check-lists  or
review  criteria.  Whilst  the  elements  listed  in  Annex  IV  underlie  requirements  for
adequate  assessments,  this  rather  basic  information  has  been  built  upon  (e.g.  with
checklists) in only some Member States. Some research has been conducted in about
half of all Member States on the quality of information contained in environmental
statements  and  on  the  overall  quality  of  the  assessments.  Where  such  studies  have
taken place, it has shown that up to 50% of EIS do not fully meet the requirements of
the Directive.

Without  formal  monitoring  of  the  outcomes  of  the  EIA  process  and  more  detailed
research,  it  is  difficult  to  assess  how  the  process  of  environmental  assessment  has
influenced applications for, and decisions on, development consent. One aim of the
EIA  Directive  is  to  strengthen  the  consideration  of  likely  significant  effects  in  the
decision-making, but many of the responses pointed out that other social or economic
benefits  also  need  to  be  considered  when  decisions  are  taken  on  applications  for
development.  The  responses  to  the  questions  relating  to  delays  between  the
production  of  the  required  EIA  information  and  the  decision,  and  between  the
decision  on  development  consent  and  the  commencement  of  development  have
shown that these are tackled very differently in the Member States and constitute an
area of potential concern. This is because when there are long delays, changes to the
state  of  the  environment  can  occur,  or  new  mitigation  measures  might  become
available. There is no indication from the Member States as to the scale or frequency
of  delays  occurring,  there  appears  to  be  little  recognition  of  the  environmental
implications of these problems, and there is little consistency of approach in dealing
with them.

In some Member States the consideration of alternatives is a central focus of the EIA
process, elsewhere the consideration of alternatives appears to be less complete than
it  might  be.  The  majority  of  Members  States  require  assessment  of  the  zero
alternative  and  other  project  alternatives,  which  may  include  options  for  location,
process,  design,  etc.  A  variety  of  institutions  and  sometimes  the  public  may
contribute to the  selection of  alternatives  for  assessment  and  these  may  include  the
most “environmentally friendly” alternative. Many of the  Member States  see  a link
between  the  issues  of  ‘salami-slicing’,  considering  ‘changes  and  extensions’  to

4

projects and ‘cumulative impacts’. The issue of possible salami-slicing is recognised
by  the  Member  States  and  some  States  have  established  measures  to  reveal  and
prevent  such  practice,  including  setting  low  thresholds  or  calling  for  assessment  of
“the  whole  programme”  where  this  is  appropriate.  Very  few  Member  States  have
concrete  evidence  on  how  widespread  the  practice  of  salami-slicing  may  be1.  A
variety of approaches to dealing with changes and extensions are used across the EU,
in line with existing requirements for other permits, the nature of the project and the
nature of the change or extension. Both specific thresholds (often set as a proportion
of  the  original  project’s  size)  and  case-by  case  screening  are  applied  in  different
Member States, or a combination of both. Some Member States ask for an EIA when
a  change  of  capacity  is  proposed  which  does  not  necessarily  involve  construction
works.  According  to  the  responses  provided  to  the  Commission  there  seems  to  be
growing awareness of the issues raised by the requirement to assess the cumulation
of impacts, and measures have been put in place in many Member States to address
this. Clear and comprehensive guidance for developers and others would appear to be
lacking  in  most  Member  States,  e.g.  on  boundaries  for  the  assessment  area,  on  the
need  for  co-operation  between  developers  or  other  arrangements  for  making
information available.

Throughout  the  EU  the  public  is  given  an  opportunity  to  comment  on  the  projects
that are subject to EIA. The extent of public involvement varies considerably and the
interpretation  of  “the  public  concerned”  varies  from  quite  narrow  to  wide.  The
responses provided to the Commission revealed that certain projects are more likely
to  generate  high  levels  of  participation.  Given  the  large  variety  of  project  types
covered  by  the  Directive,  the  different  consent  systems  used  for  different  types  of
project and the different levels of interest they generate, it is not surprising that there
is no standard practice of public participation across the EU. The transposition of the
Aarhus  Convention 
legislation  may  provide  an  opportunity  for
improvements in  public  participation  in  EIA.  There  is  a  need,  in  the  Commission's
view, for better formal and informal arrangements for consultation on transboundary
impacts  with  neighbouring  countries,  and  a  need  to  ensure  that  those  arrangements
are practical. A need has also been identified for an improvement in the current intra-
regional  procedures  of  some  countries.  More  precise  auditing  arrangements  are
needed,  to  provide  reliable  information  on  the  number,  type  and  outcome  of
transboundary projects.

into  EIA 

The  impacts  of  developments  upon  flora  and  fauna  are  assessed  within  EIA  in  the
Member States and the information requirements of Directive 97/11/EC seem to be
met  in  this  respect.  The  questionnaire  responses  are  less  explicit  concerning  the
extent  to  which  the  various  levels  of  biodiversity  are  addressed  in  practice.
Guidelines  on  incorporating  biodiversity  issues  into  impact  assessments  have
recently been adopted under the Convention on Biological Diversity.

Risk  is  dealt  with  in  a  wide  variety  of  ways  and  at  very  different  levels  across  the
EU, partly  in  response  to  the  variety  of  geographical,  geological,  climate and other
conditions. Risk is a screening criterion in Annex III and risk assessments appear in

Salami  slicing  refers  to  the  practice  of  splitting  an  initial  project  into  a  number  of  separate  projects,
which individually do not exceed the threshold set or do not have significant effects on a case by case
examination  and  therefore  do  not  require  an  impact  assessment  but  may,  taken  together,  have
significant environmental effects.

5

8)

9)

10)

1

                                                
many  EIS,  and  yet  for  most  Member  States  risk  is  seen  as  separate  from  the  EIA
process as it is often handled by control  regimes to  which the EIA  Directive  is not
applied. Relationships between EIA and national environmental control regimes are
complex  and  there  appear  to  be  little  real  co-ordination  between  the  EIA  Directive
and  other  Directives  such  as  IPPC  and  the  Habitats  Directive.  Few  Member  States
have taken the opportunity offered by Directive 97/11/EC to provide for the greater
consistency  and  reductions  in  repetitious  documentation  and  assessments,  provided
by  closer  co-ordination  of  EIA  and  IPPC.  In  some  Member  States  a  link  is  said  to
exist  but  this  link  may  simply  consist  of  a  recommendation  that  EIA  and  other
relevant procedure should be dealt with simultaneously.

The  assessment  of  health  impacts  is  not  a  particularly  strong  feature  of  current
practice.  There  is  considerable  variation  in  coverage  from  a  narrow  to  a  broad
interpretation of health effects. There is evidence to suggest that health impacts are
considered  to  be  less  relevant  to  EIA,  and/or  to  a  certain  extent  covered  by  other
legislation.  There  is  some  evidence  to  suggest  that  health  impacts  are  considered
under other headings such as pollution or risk.

Although the current EIA Directive does not contain provisions on access to justice,
the majority of Member States provide for such in their national systems. Access to
justice for EIA is largely confined to members of the public having legislative rights
to challenge decisions through the courts. In most cases such challenges can only be
made  once  project  authorisation  is  granted,  few  Member  State  provided  for
challenges at the earlier stages of EIA.

There are few formal measures in place for the overall control of the quality of the
EIA procedures. The Directive itself is rather weak on this point and focuses more on
the  EIA  procedural  aspects.  Ensuring  quality  control  in  EIA  is  largely  left  to  the
competent authorities and the checks provided by judicial review processes. The lack
of central monitoring of the key stages of EIA make it difficult for Member States to
ensure that their EIA systems are consistently and correctly applied. There are some
examples  of  innovative  practice,  with  some  Member  States  making  use  of  post-
decision  monitoring  of  projects  to  ensure  the  quality  of  the  outcome  of  the  EIA
process.

11)

12)

13)

RECOMMENDATIONS - ACTION TO BE TAKEN

The information provided in this report has revealed several shortcomings and weaknesses. In
the Commission's view in some Member States there are examples of very good practice, e.g.
in  relation  to  encouraging  public  participation  or  providing  for  clear  quality  control
procedures. In others (and sometime in the  very same  Member States  that have  elements of
good  practice),  there  are  still  weaknesses.  These  findings  need  to  be  carefully  assessed
alongside  other  factors  in  order  for  the  Commission  to  decide  whether  the  EIA  Directive
should  be  further  amended  at  this  stage.  It  appears  that  the  main  problem  lies  with  the
application  and  implementation  of  the  Directive  and  not,  for  the  most  part,  with  the
transposition  of  the  legal  requirements  of  the  Directive.  It  is  clear,  however,  from  the
weaknesses  identified  that  there  is  a  need  to  improve  and  strengthen  the  application  of  the
Directive in several aspects and the Commission will continue to promote this. The Directive
provides the framework and the existing infringement mechanisms provide legal support for
better transposition and application of the Directive. In order to improve the effectiveness of
the  Directive,  The  Commission  believes  that  it  is  important  that  the  Member  States  act

6

responsibly  and  use  the  information  provided  in  this  report  positively  to  enhance  their
individual and collective performance.

Based  upon  the  material  gathered  for  this  review  and  an  assessment  of  the  strengths  and
weaknesses  and  effectiveness  of  the  EIA  Directive,  the  Commission  makes  the  following
recommendations that will help in better implementing the EIA Directive:

– 

– 

– 

– 

– 

– 

– 

Member  States  should  check  their  national  and  regional  EIA  legislation  and
subsequently  remedy  shortcomings  (e.g.  with  regard  to  thresholds,  quality  control,
salami-slicing,  cumulation  etc).  The  Commission  urges  Member  States  to  use  the
coming amendment of the EIA Directive in the context of the Aarhus transposition to
do so.

A  precise  form  of  annual  recording  and  monitoring  is  indispensable  to  provide
reliable annual information on the number and type of EIA projects and the outcome
of  key  decisions.  Member  States  should  introduce  such  systems  where  they  do  not
already  exist.  This  will  assist  them,  in  the  Commission's  view,  in  evaluating  the
number of EIAs carried out, and the types of projects involved, and in assessing the
performance and quality of work done. In turn, this will help them to improve their
systems.

In  relation  to  screening,  those  Member  States  that  employ  a  system  with  fixed
mandatory thresholds should make certain it ensures that all projects that might have
significant  effects  are  subject  to  an  appropriate  screening  process.  In  this  exercise,
the  Commission  expects  that  they  will  particularly  consider  projects  planned  in  or
near sensitive areas, and the possible cumulation of projects.

The Commission urges Member States to make more widespread use of its existing
guidance  on  screening,  scoping,  review  and  cumulative  impacts.  There  should  also
be  more  training  at  national  levels  in  the  use  of  these  quality  control  documents.
of  DG  ENV:
These 
http://europa.eu.int/comm/environment/eia/home.htm.

documents 

the  web 

found 

page 

are 

in 

The quality of the EIA process, and especially the EIS, are the key  for an  effective
EIA. The Commission urges those Member States that have yet to do so to introduce
formal  provisions  for  the  review  of  the  environmental  information  supplied  by  the
developer  to  ensure  strict  compliance  with  the  terms  of  the  EIA  Directive.  Such
measures  could  comprise  the  establishment  of  expert  pools,  guidelines  on  the  co-
ordination of experts, clear instructions about responsibilities, the use of independent
external expert review etc. Another tool of quality control could be the introduction
of an efficient post-decision monitoring system.

The  Commission  believes  that  particular  training  needs  to  be  introduced  in  certain
Member  States  for  authorities  at  local  and  regional  level  in  order  to  improve  their
understanding of the EIA Directive and its application within the respective national
system. Mechanisms for efficient administrative management should help to enhance
capacity building.

In  the  transboundary  context  Member  States  should  make  more  use  of  guidance
provided by the UNECE on bi- and multilateral agreements and the practicalities of
transboundary  EIA  (see  UNECE  web  page:  http://www.unece.org/env/eia).  The
Commission considers that this will help ensure that adequate provisions are in place,

7

– 

– 

– 

– 

– 

– 

for instance for direct  contact between  the  relevant  competent  authorities  and other
agencies for consultation on transboundary effects.

The  quality  of  the  EIA  has  consequences  in  the  decision  making  process  and  is  of
key importance for the effectiveness of the Directive. How the outcome of the EIA
influences decision-making  is central  to  the  purpose  of EIA  and  the  Directive.  The
quality of the decision depends on the quality of the information provided in the EIA
process and the strength of an effective EIA should be shown in a decision that has
properly taken on board and reflects the environmental dimension highlighted in the
EIA process. In some Member States, refusal of development consent is provided for
in  cases  where  serious  environmental  harm  is  forecast.  In  this  respect  the
Commission  believes  that  Member  States  should,  where  necessary,  consider
strengthening  their  national  procedures  by  ensuring  that  the  conditions  attached  to
the  (subsequent)  decision(s)  are  adequate  to  prevent  or  mitigate  any  environmental
harm that has been predicted.

The Commission will consider the need for further research into the use of thresholds
and  the  various  systems  applied  in  screening  in  order  to  get  more  clarity  and
comparable  data  which  would  enable  robust  conclusions  to  be  drawn  on  how  to
achieve improvement and  greater consistency of approach in the screening  process.
(Initiative 1).

These  recommendations,  if  put  into  effect,  would  go  some  way  to  improving  the
effectiveness of the Directive and the Commission will consider, in conjunction with
the Member States, ways of improving and extending the guidance which is already
available. The Commission envisages preparing interpretative and practical oriented
guidance with the  involvement  of  experts  from the Member States  as well as other
stakeholders like NGOs, local and regional authorities and industry. This could help
to overcome some of the disparities reported in the definition of the projects which
are  subject to  the  Directive, the setting  and application  of  thresholds  and  screening
criteria,  the  way  scoping  is  carried  out,  the  relationship  between  the  effects  of
different  projects  (cumulation,  salami-slicing),  the  way  that  risk  is  dealt  with  in
assessments, and the type of data which should be gathered in monitoring systems. It
would also be designed to improve considerations of health effects which  are often
inconsistently or partly addressed in the EIA process in the Member States. There is
clearly  a  need  for  a  more  systematic  approach.  The  forth-coming  Community
Strategy  on  Health  and  the  Environment  will  form  a  sound  basis  for  such  an
approach by establishing a consensus regarding the scope of environmental health, as
well as strategies to increase awareness about the linkages between human health and
the environment. (Initiative 2).

The Commission will also consider with the Member States what might be done to
improve  the  training  of  officials  responsible  for  EIA  in  order  to  improve  the
situation. (Initiative 3).

Capacity  building  and  voluntary  action  have  their  limitations,  however,  and  the
Commission  will  continue  to  take  enforcement  action  in  cases  of  incomplete  or
inadequate transposition, and/or poor application of the Directive. (Initiative 4).

In  due  time,  more  consistent  application  may  require  further  amendments  to  the
Directive.  Based  on  the  results  of  the  actions  outlined  above,  the  Commission  will
consider what further amendments should be introduced. For example, this might be

8

the  most  efficient  way  of  providing  for  proper  quality  control  and  consistent  data
collection and might also be necessary to improve the way thresholds and cumulative
effects are handled. Other clarifications and improvements could be introduced at the
same  time  (for  instance  to  the  procedure  for  exempting  exceptional  cases  (Article
2(3)).  All  these  actions,  combined  with  the  implementation  of  the  SEA  Directive,
will  produce  a  robust  set  of  procedures  to  improve  decision-making  and  help  to
achieve the objectives set out in the 6 EAP. (Initiative 5).

9

ANNEX

5 Year Review on the Application and Effectiveness of the EIA Directive
(Directive 85/337/EEC as amended by Directive 97/11/EC)

1.

Introduction

1.1.

Aims and Objectives

1.1.1. Council  Directive  85/337/EEC  (as  amended  by  Directive  97/11/EC)  on  the
assessment  of  the  effects  of  certain  public  and  private  projects  on  the  environment
(hereafter the EIA Directive) is seen as one of the European Union’s (EU) ‘principal
pieces  of  environmental  legislation’2.  The  prime  purpose  of  EIA  is  to  identify  any
significant environmental effects of a major development project, and where possible
to  design  mitigation  measures  to  reduce  or  remedy  those  effects,  in  advance  of  any
decision to authorise the construction of the project. As a tool to aid decision making,
EIA is widely seen as a proactive environmental safeguard that, together with public
participation  and  consultation,  can  help  to  meet  the  EU’s  wider  environmental
concerns  and  policy  principles.  However,  to  achieve  these  objectives,  the  EIA
Directive  must  be  applied  as  consistently  as  possible  across  the  EU  as  a  whole.
Evidence  from  the  European  Commission’s  (EC)  1993  and  1997  reviews  of  the
operation  of  Directive  85/337/EEC3,  and  other  evidence4,  indicates  that  there  was
little  consistency  in  the  application  of  key  EIA  procedures  such  as  screening  and
scoping. Furthermore, some important European Court of Justice (ECJ) cases5 found a
number of Member States to be  failing to fully implement the  Directive.  Due to the
different  project  authorisation  procedures  in  place  within  Member  States  there  have
been difficulties in achieving consistency in implementation across the Community as
a whole. Indeed, a major objective of the amending Directive 97/11/EC was, in part,
to minimise the differences of application between Member States and to harmonise
implementation.

1.1.2 The challenge of ensuring that the EIA Directive is adopted and implemented
in  an  effective  and  consistent  manner  across  all  Member  States  of  the  EU  is
considerable.  To  monitor  the  effectiveness  of  the  EIA  Directive,  the  EC  carried  out
two reviews, which reported in 1993 and in 1997. There are three main objectives of
this current review:

– 

Provide a detailed overview of the arrangements made by Member States for
implementing the amendments made by 97/11/EC;

2

3

4

5

See CEC (2001) Environmental Impact Assessment Guidance on Screening, Brussels, CEC.
CEC (1993) Report from the Commission of the Implementation of Directive 85/337/EEC on
the Assessment of the Effects of Certain Public and Private Projects on the Environment and
Annexes for Member States. Com (93) 28 Final – Vol.12, Brussels, April
See  Dresner,  S.  and  N.  Gilbert  (1999)  Decision-making  Processes  for  Projects  Requiring
Environmental  Impact  Assessment:  Case  Studies  in  Six  European  Counturies  in  Journal  of
Environmental  Assessment  Policy  and  Management,  Vol.  1,  No.  1,  pp.  105-130.,  also
Ladeur,K-H  and  Prelle,  R.  (2001)  Environmental  Assessment  and  Judicial  Approaches  to
Procedural  Errors  –  A  European  and  Comparative  Law  Analysis,  Journal  of  Environmental
Law, Vol. 3, no. 2, pp. 185-198.
See Cases C-392/96, C-150/97 and C-287/98

10

                                                
– 

– 

Provide  a  detailed  overview  and  evaluation  of  the  application  of  the  EIA
Directive as a whole;

Provide suggestions and recommendations for the further enhancement of the
application and effectiveness of the EIA Directive as a whole.

In  particular  the  review  examines  the  implementation  of  the  key  stages  and  key
elements of the EIA Directive. Namely:

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

the  increase  in  the  number  and  type  of  projects  subject  to  EIA  and  the
movement of some project types (for example large intensive livestock units)
into Annex I;

the  means  by  which  Member  States  exempt  specific  projects  from  the
provisions of the Directive (Article 2, para. 3);

the  range  and  type  of  projects  exempted  from  the  Directive  by  means  of
Article  1,  para  5,  the  means  by  which  they  are  authorised,  and  the  way  in
which  the  environmental  information  is  considered  in  the  decision  making
process;

the screening and scoping provisions in place in Member States and the way
in which case by case screening criteria or thresholds are employed;

information  provided  by  the  developer  and  the  completeness  of  the
information provided, as  well  as  the  means  by  which  competent  authorities
check that it is complete;

health aspects and their relationship to matters such as air quality etc;

evidence of “salami-slicing” or the potential for project proponents to avoid
completing an  EIA by designing  developments  in  such  a  way  that  they  fall
below thresholds or triggers for EIA;

cumulation  of  projects,  and  how  spatial  and  temporal  boundaries  are
established;

risk assessment and the methods employed to assess and communicate risk;

relationship  with  other  Directives,  in  particular  the  IPPC  and  Habitats
Directives;

the provisions in place for dealing with transboundary consultations;

the  means  by  which  Member  States  deal  with  changes  or  extensions  to
projects once authorised;

the  way  that  alternatives  are  assessed  and  reported,  including  how
alternatives are identified and defined; and

11

– 

the  mechanisms  in  place  for  public  participation  in  light  of  the  adoption  of
draft Directive COM(2000)839 amending the EIA Directive to conform with
the provisions of the Aarhus Convention.

1.2.

Research Team

1.2.1 This review has been carried out by the Impacts Assessment Unit (IAU) of the
School of Planning (SoP), Oxford Brookes University6 in conjunction with a steering
committee of staff from DG Environment and a representative of the Member States.

1.3. Methodology

1.3.1 The primary source of information for this study was the responses of Member
States  to  a  questionnaire  designed  and  issued  by  the  EC’s  DG  Environment  (the
questionnaire  appears  as  Appendix  1  of  this  report).  To  ensure  the  clearest
understanding of the responses from Member States, DG Environment sought further
clarification from most Member States on key aspects of their implementation of the
Directive. The initial review of the responses identified a number of additional issues
that  needed  further  responses  from  individual  Member  States  and  the  IAU  team
sought this on an individual level. A further set of questions was also circulated to all
the  national  EIA  experts  of  the  Member  States  a  further  set  of  questions  to  aid  the
IAU’s  understanding  and  interpretation  of  the  operation  of  the  amending  Directive
(these  additional  questions  are  provided  as  Appendix  1  to  this  report).  The  DG
Environment  steering  group  along  with  the  Impacts  Assessment  Unit  would  like  to
thank  all  the  staff  from  the  Member  States  who  have  co-operated  and  helped  in
providing information for  this report. The  responses  to  the  questionnaire  and  follow
up questions for clarification and amplification were analysed by the project team on
the basis of each member of the team having responsibility for a group of questions.

1.3.2 To  further  the  understanding  of  the  issues  relating  to  the  implementation  of
Directive  97/11/EC,  a  literature  search  of  existing  research  on  the  operation  of  the
amended  EIA  Directive,  including  relevant  court  cases,  was  completed.  In  addition,
Web sites of European academic institutions and EIA related sites were examined for
further evidence of the practice of EIA within the EU.

1.4.

Structure of the Report

1.4.1 This report has been structured around the transposition and implementation of
Directive 97/11/EC and the operation of the EIA Directive as a whole, rather than on
the basis of the individual questions posed by DG Environment’s questionnaire. This

6

The  SoP  is  the  largest  School  of  its  kind  in  the  UK,  and  one  of  the  largest  in  Europe.  The
School hosts over 700 students on a wide range of undergraduate, postgraduate and research
degree  programmes,  with  a  complement  of  over  60  teaching,  administrative,  technical  and
research  staff.  The  School  recently  received  a  high  ranking  in  the  2001  Higher  Education
Funding Council for England Research Assessment Exercise. This puts the School at the top
amongst  the  UK’s  new  university  planning  schools  and  endorses  other  recent  reviews  of
planning  schools  which  placed  Oxford  Brookes  as  the  top  planning  school  in  the  UK.  The
IAU is a  well established, and EU recognised, centre for  research,  training  and  education  in
Environmental Impact Assessment (EIA), Environmental Policy and Environmental Decision-
Making.  The  IAU  is  led  by  Professor  John  Glasson,  who  is  also  the  Head  of  the  School  of
Planning.

12

                                                
facilitated  a  more  comprehensive  overview  of  progress  on  transposition  and
implementation  and  highlighted  key  issues  that  warrant  further  attention.  Following
this introduction, Section 2 of the report provides an overview of the background on
the  adoption  of  97/11/EC  and  the  factors  that  shaped  the  amendments  that  were
introduced  by  the  Directive  and  then  examines  the  progress  that  has  been  made  on
transposing  the  Directive  by  the  Member  States  and  the  issues  raised  by  the
implementation process. The main body of the report is contained within Sections 3
and 4 and focuses on the details of the Directive’s implementation by examining the
key  changes  introduced  by  the  Directive  in  terms  of  screening,  scoping  and  review,
and  the  key  issues  that  the  amending  Directive  sought  to  address.  Section  5  of  the
report provides an overview of the effectiveness of the EIA Directive as a whole and
makes some recommendations for the future development of the EIA Directive.

1.5.

Terminology

1.5.1 For purposes of clarity and understanding the following  defines  glossary key
terms used in this report.

– 

– 

– 

EIA  –  Environmental  Impact  Assessment  –  the  continuous  assessment
procedure that contains several individual stages such  as  screening,  scoping
and public participation.

EIA  Directive  –  the  Directive  as  a  whole  -  i.e.  Directive  85/337/EEC  as
amended  by  97/11/EC  –  where  in  the  report  reference  is  made  to  Directive
85/337/EEC  or  Directive  97/11/EC  the  discussion  will  only  relate  to  the
individual Directives referred to in the text;

Environmental  Information,  including  the  Environmental  Impact  Statement
(EIS) – the report, document or set of documents produced or paid for by the
developer to provide the environmental information required by Article 5 of
the EIA Directive and which forms the basis for public participation and the
consultation  of  environmental  authorities and is  submitted to the  competent
authority for consideration.

13

2.

BACKGROUND TO THE AMENDMENT OF THE EIA DIRECTIVE (85/337/EEC)

2.1

Reviews of EIA Directive 85/337/EEC

2.1.1 The  1993  and  1997  reviews  of  the  implementation  of  the  Directive7  found
wide  variation  between  the  Member  States  on  the  application  of  some  of  the  key
stages  required  by  the  Directive.  While  the  reviews  concluded  that  the  formal
requirements of the Directive were, at the time, ‘mostly in place’ across the EU as a
whole,  there  remained  areas  where  it  was  unclear  as  to  whether  or  not  all  Member
States  were  strictly  complying  with  key  stages,  such  as  screening.  The  1993  review
found  that  there  was  a  danger  that  the  discretion  given  by  the  Directive  to  Member
States  on  establishing  screening  thresholds  for  Annex  II  projects  could  lead  to  a
general  devaluation  of  the  provisions  of  Article  2  (1).  It  was  largely  for  this  reason
that  97/11/EC  introduced  a  new  Annex  III  that  established  screening  criteria  to  be
used for the establishment of thresholds and for the case-by-case screening of Annex
II projects. The 1993 review also identified  concerns  on the level and quality  of  the
information  provided  to  competent  authorities  within  the  EIA  process.  It  was  this
concern  that  led  to  the  introduction  of  the  new  minimum  information  requirements
introduced by 97/11/EC (Article 3, paragraph 3) and the optional scoping procedures
provided by Article 5(2).

2.1.2 The  1997  review  highlighted  the  many  different  EIA  systems  that  operate
across  the  EU.  On  the  basis  of  the  principle  of  subsidiarity,  Member  States  had
transposed  the  Directive  into  domestic  law,  often  within  the  framework  of  existing
systems  that  had  developed  on  the  basis  of  Member  States’  own  historical  legal
traditions  and  culture.  The  report  also  identified  a  number  of  issues  relating  to  the
language  of  the  Directive  and  complaints  from  Member  States  over  the  clarity  of
some terms used in the Directive and sought clearer definitions or interpretations  of
key terms such as ‘projects’.

2.1.3 The reviews also identified the wide variety of authorisation procedures used
for  different  types  of  projects  in  different  Member  States.  In  some  cases,  Member
States make use of a single licensing procedure for all project types, some make use
of  two  or  more  (many  more  in  some  cases),  while  others  have  a  two  stage  system
whereby  some  aspects  of  a  project  are  authorised  under  one  set  of  legislation  (e.g.
land use planning), and other aspects are dealt with under another (e.g. environmental
licensing). These differences make a  straightforward comparison  of  the  operation  of
the Directive between Member States and across the EU as  a whole a very  complex
task. This remains the case in 2002.

2.1.4 The 1997 review found that all Member States had made provision for the EIA
of the projects listed in Annex  I; however, the position as regards Annex  II projects
was  far  less  clear.  There  were  differences  in  approach  to  dealing  with  Annex  II

7  CEC  (1993)  Report  from  the  Commission  of  the  Implementation  of  Directive  85/337/EEC  on  the
Assessment  of  the  Effects  of  Certain  Public  and  Private  Projects  on  the  Environment  and
Annexes for Member States. Com (93) 28 Final – Vol.12, Brussels, April CEC. CEC (1997)
Report  from  the  Commission  of  the  Implementation  of  Directive  85/337/EEC  on  the
Assessment of the Effects of Certain Public and Private Projects on the Environment, CEC

14

                                                
projects,  both  in  terms  of  interpretation  and  perceived  relevance  to  particular
countries.  Most  Member  States  were  found  to  make  use  of  some  form  of  screening
criteria or thresholds for determining when an Annex II project should be subject  to
EIA.  In  some  cases  these  were  indicative,  for  use  in  a  case-by-case  screening
procedure,  while  in  others  the  thresholds  were  mandatory  whereby  a  project  that
exceeded  the  thresholds  would  always  automatically  require  an  EIA.  In  some  cases
thresholds were set that had the practical effect of excluding whole project types from
EIA. These cases formed the basis for legal challenges that established firm case law
on the application of the  EIA Directive  within the  EU.  The  1997  review  also  found
that  there  was  a  great  deal  of  variation  in  the  level  at  which  thresholds  (e.g.  area,
capacity) had been set for the same project types in the different Member States.

2.1.5 The  key  findings  of  the  1997  review  of  the  Directive  can  be  summarised  as
follows:

– 

– 

– 

– 

– 

– 

EIA is a regular feature of project licensing/authorisation systems,  yet  wide
variation  exists  in  relation  to  those  procedures  (e.g.  different  procedural
steps; relationships with other relevant procedures);

different interpretations and procedures for Annex II projects;

quality control over the EIA process is deficient;

Member  States  did  not  give  enough  attention  to  the  consideration  of
alternatives;

improvements had been made over public participation and consultation; and

Member  States  complained  about  the  ambiguity  and  lack  of  definitions  of
key terms in the Directive.

2.2.

Policy and Legal Context

2.2.1 The  development  of  EIA  within  the  European  Union  can  be  seen  as  an
evolving process that is shaped by the development of policy and law. The five yearly
reviews  of  the  EIA  Directive  have  been  part  of  that  evolution  and  the  process  of
identifying the strengths, weaknesses, costs and benefits of the operation of the EIA
procedures. This process identified areas where improvements could be made and/or
where the general provisions of the Directive could be clarified or strengthened. These
reviews  have  not  been  the  only  influence  on  the  development  of  the  EIA  Directive.
Since its adoption in 1985 and the passing of the deadline for transposition in 1988,
there have been a number of cases brought before the European Court of Justice that
have  provided  some  clarification  of  key  issues  and  helped  to  develop  the
interpretation and hence implementation of the Directive. There have also been some
key  policy  decisions  made  by  the  EU  since  1985  that  have  needed  to  be  integrated
into the EIA Directive.

2.2.2 The EIA Directive pre-dates very many important changes within the EU. The
first of these is the Single European Act of 1986, which, together with the Maastricht
Treaty  of  1992,  consolidated  the  main  principles  of  European  environmental  policy
and made them a central concern of all EU policy areas. These were followed by the

15

adoption  of  the  5th  Environmental  Action  Programme  with  its  emphasis  on  an
integrated  approach  to  environmental  protection  and  management.  There  have  also
been a number of key Directives that have had implications for EIA. These include:

– 

– 

– 

Directive  79/409/EEC  on  the  Conservation  of  Wild  Birds  and  Directive
92/43/EEC  on  the  conservation  of  natural  habitats  and  of  wild  fauna  and
flora, which establish their own assessment procedures affecting Natura 2000
sites;

Directive  90/313/EEC  on  the  freedom  of  access  to  information  on  the
environment, which has implications for public participation and consultation
within the EIA process;

Directive  96/61/EC  on  integrated  pollution,  prevention  and  control,  which
introduced  a  new  licensing  authorisation  scheme  for  many  of  the  projects
types  lists  in  the  Annexes  to  the  EIA  Directive  and  97/11/EC  introduced
Article  2(a)  to  allow  Member  States  to  make  use  of  a  single  procedure  to
fulfil the requirements of 85/337/EEC and 96/61/EC.

2.2.3 The Espoo Convention on EIA in a Transboundary Context was signed by 29
countries  and  the  EU  in  1991  and  widened  and  strengthened  the  requirements  for
consultation on transboundary impacts provided for in 85/337/EEC. The requirements
of the Convention meant that Articles 7 and 9 of 85/337/EEC had to be amended by
97/11/EC to provide for a greater level of information to be made available to affected
Member  States  where  a  significant  transboundary  impact  is  identified.  The
Convention  defines  transboundary  impacts  as:  “any  impact,  not  exclusively  of  a
global  nature,  within  an  area  under  the  jurisdiction  of  a  Party  (to  the  Convention)
caused by a proposed activity the physical origin of which is situated wholly or in part
within  the  area  under  the  jurisdiction  of  another  Party”.  This  definition  deals  with
both projects and impacts that cross boundaries and therefore does not limit in scope
the effect of the Convention to a consideration of projects that are in close proximity
to  a  boundary.  Furthermore,  in  C-133/94  Commission  v  Belgium  the  ECJ  ruled  that
the consultation obligations contained in Article 7 of 85/337/EEC were not confined
to  projects  located  in  regions  with  frontiers  with  other  countries.  The  Espoo
Convention provides a list of project types to which the Convention applies and these
included a number of projects not in the Annexes to 85/337/EEC:

– 

– 

– 

Nuclear fuel production and reprocessing installations;

Groundwater abstraction (10 million cubic metres or more per year); and

Large scale deforestation.

The  amending  Directive  97/11/EC  added  two  of  these  project  types  to  Annex  I  and
one  (deforestation)  to  Annex  II;  it  also  moved  a  further  eight  Espoo  Convention
project types from Annex  II to Annex  I to  make the  EIA  Directive  compatible  with
the Convention.

2.2.4 The EIA Directive has generated a considerable number of complaints to the
Commission  to  which  they  have  had  to  respond.  The  tables  and  figures  on  the
following  pages  provide  details  of  these  complaints  and  other  procedures.  These

16

tables  set  out  statistical  information  for  the  five-year  period  1997-2001  on
infringement procedures relating to the application of Community law on EIA. As an
aid to their correct interpretation, Box 1 provides definitions of the key terms used.

Box 1

LETTER OF FORMAL NOTICE

The letter of formal notice is the first stage of an infringement procedure. When the
Commission envisages that a Member State has failed to fulfil an obligation under the
Treaty  establishing  the  European  Community,  it  delivers  a  letter  of  formal  notice
giving the State concerned the opportunity to comment.

REASONED OPINION

The reasoned opinion is issued when the Commission is confident it has identified an
infringement.  Article  226,  paragraph  1  of  the  Treaty  establishing  the  European
Community: If the Commission considers that a Member State has failed to fulfil an
obligation  under  this  Treaty,  it  shall  deliver  a  reasoned  opinion  on  the  matter  after
giving the State concerned the opportunity to comment.

SAISINE

Saisine  is  the  stage  of  application  to  the  European  Court  of  Justice,  when  the
infringement procedure becomes a judicial procedure. Under Article 226, paragraph 2
of  the  Treaty:  If  the  State  concerned  does  not  comply  with  the  opinion  within  the
period laid down by the Commission, the latter may bring the matter before the Court
of Justice.

OWN INITIATIVE CASE

"Own initiative" cases are cases opened directly by the Commission. They are mainly
commenced  on  the  basis  of  Written  Questions  and  Petitions  of  the  European
Parliament.  Note  that  the  reasons  why  there  are  more  in  one  Member  State  than  in
another are the same  as  for  complaints (see below).  Thus,  the  fact  that  Commission
opened many "own initiative cases" for certain Member States does not mean that it
considers the situation in these States to be worse than in other Member States.

2.2.5
In  order  to  check  the  correct  implementation  of  Community  law  in  the
Member  States  the  Commission  acts  at  different  stages:  first  it  checks  that  Member
States transpose the Directives in their legal systems within the deadlines set. Then it
checks,  on  one  hand,  the  conformity  of  the  Member  States’  legislation  with  the
Directives which this legislation is intended to transpose and then on the other hand,
the correct application of this legislation on the ground, as well as the correctness of
administrative  practices  in  each  Member  States.  To  assess  the  correct  application  in
Member  States,  the  Commission  bases  its  deliberations  on  reports  from  Member
States  on:  the  application  of  the  Directives,  any  complaints  revealing  specific

17

situations of potential  breach of  EC  Law; and facts raised through written  questions
and petitions brought to the Commission's attention by the European Parliament. Thus
the Commission's actions in checking the correct application of the  EIA Directive is
mainly  based  on  complaints,  petitions  and  written  questions.  While  this  source  of
information  is  very  useful  to  identify  shortcomings  within  the  different  Member
States,  is  not  always  able  to  produce  objective  data  which  compares  the
"performance" of the different Member States. Only those problems which are made
the subject of a complaint, petition or written question are visible to the Commission
and  it  can  happen  that  serious  problems  never  come  to  light.  The  number  of
complaints  vary  from  State  to  State  depending  on  factors  such  as  environmental
awareness, sense of participation in public decisions and the level of confidence in the
European institutions.

18

Table 1. 2001 Non-Conformity with Directive 1985/337 & 1997/11 by Stage, 1997-2001

a
i
r
t
s
u
A

.

m
u
i
g
l
e
B

k
r
a
m
n
e
D

d
n
a
l
n
i
F

e
c
n
a
r
F

y
n
a
m
r
e
G

e
c
e
e
r
G

d
n
a
l
e
r
I

y
l
a
t
I

g
r
u
o
b
m
e
x
u
L

s
d
n
a
l
r
e
h
t
e
N

l
a
g
u
t
r
o
P

n
i
a
p
S

n
e
d
e
w
S

K
U

l
a
t
o
T
-
b
u
S

l
a
t
o
T
r
a
e
Y

1997

Reasoned
opinions

Saisines
Letter of formal
notice art 228
Reasoned
opinions art 228
Saisines art 228
1998
Reasoned
opinions

Saisines
Letter of formal
notice art 228
Reasoned
opinions art 228
Saisines art 228
1999
Reasoned
opinions
Saisines
Letter of formal
notice art 228
Reasoned
opinions art 228
Saisines art 228
2000
Reasoned
opinions
Saisines
Letter of formal
notice art 228
Reasoned
opinions art 228
Saisines art 228
2001
Reasoned
opinions
Saisines
Letter of formal
notice art 228
Reasoned
opinions art 228
Saisines art 228

Country Total
(1997-2001)
EU TOTAL

1

1

1

1

0

4

0

0

0

1

1
1

0

0

5

0
0

0

0

0

2
2

0

0

3

1
1

0

0

2

1
0

1

1

3

5

4

5

5

22

1

1
1

1

4

1

1

1

1

1

1

1

1

1

1

1

3

0

1

2

2

0

2

1

1

2

1

2

19

 
Table 2. Bad Application of Directive 1985/337 & 1997/11 by Stage, 1997-2001

a
i
r
t
s
u
A

m
u

i
g
l
e
B

k
r
a
m
n
e
D

d
n
a
l

i

n
F

e
c
n
a
r
F

y
n
a
m
r
e
G

e
c
e
e
r
G

d
n
a
l
e
r
I

y
l
a
t
I

g
r
u
o
b
m
e
x
u
L

s
d
n
a
l
r
e
h
t
e
N

l
a
g
u
t
r
o
P

n
i
a
p
S

n
e
d
e
w
S

K
U

l
a
t
o
T

-
b
u
S

l
a
t
o
T
r
a
e
u Y

1997
Reasoned opinions
Saisines
Letter of formal
notice art 228
Reasoned opinions
art 228
Saisines art 228
1998
Reasoned opinions
Saisines
Letter of formal
notice art 228
Reasoned opinions
art 228
Saisines art 228
1999
Reasoned opinions
Saisines
Letter of formal
notice art 228
Reasoned opinions
art 228
Saisines art 228
2000
Reasoned opinions
Saisines
Letter of formal
notice art 228
Reasoned opinions
art 228
Saisines art 228
2001
Reasoned opinions
Saisines
Letter of formal
notice art 228
Reasoned opinions
art 228
Saisines art 228
Country Total
(1997-2001)
EU TOTAL

1

1

1

1

1

1

3

1

1

1

3

2

4

3

1

2

1

6
1

1

1

0

0

0

2

0

2

9

4

1

1

4

11

0

1

0
0
0

0

0

2
0
0

0

0

4
0
0

0

0

9
0
0

0

0

19
2
0

0

0

0

2

4

9

21

36

20

 
Table 3.

Impact Assessment New Own initiative Cases Opened by Year

1997

1998

1999

2000

2001

TOTAL

Austria

Belgium

Denmark

Finland

France

Germany

Greece

Ireland

Italy

Luxembourg

Netherlands

Portugal

Spain

Sweden

UK

TOTAL

0

3

0

0

0

0

0

0

1

0

0

0

1

0

0

5

0

0

0

0

0

0

2

0

2

1

0

0

9

0

0

1

1

0

1

3

1

1

1

0

2

0

0

0

0

5

0

2

0

0

1

2

5

2

0

10

14

11

1

1

1

8

1

1

0

4

0

12

0

1

38

0

0

0

13

0

0

36

3

6

0

2

5

6

10

1

38

2

5

1

43

1

2

125

14

32

21

Figure 1.

Total New Own Initiative Cases (1997-2001)

50
40
30
20
10
0

tria
s
u
A

m

elgiu

B

k
r
a
m
n
e
D

d
n

Finla

e
c
n
a
r
F

y
n
a
m
r
e
G

e
c
e
e
r
G

d
n
ela
Ir

Italy

g
r
u
o
b
m
e
x
u
L

s
d
n
rla
e
eth
N

al
g
tu
r
o
P

ain
p
S

n
e
d
e
w
S

K
U

Table 4. Impact Assessment New Complaints Opened by Year

1997

1998

1999

2000

2001

TOTAL

Austria
Belgium
Denmark
Finland
France
Germany
Greece
Ireland
Italy
Luxembourg
Netherlands
Portugal
Spain
Sweden
UK
TOTAL

5
2
1
1
13
5
5
14
5
1
0
6
17
3
3
81

1
6
4
0
8
18
15
23
13
0
2
9
34
4
7
144

4
1
2
1
10
31
20
67
25
0
2
15
49
5
13
245

4
5
3
2
13
39
16
31
32
1
0
5
77
3
6
237

15
17
17
5
48
110
66
155
98
2
4
42
215
18
40
852

1
3
7
1
4
17
10
20
23
0
0
7
38
3
11
145

22

Figure 2.

Total New Complaints Opened (1997-2001)

250

200

150

100

50

0

ria
t
s
u
A

m

elgiu

B

k
r
a
m
n
e
D

d
n

Finla

e
c
n
a
r
F

y
n
a
m
r
e
G

e
c
e
e
r
G

d
n
ela

r
I

taly

I

g
r
u
o
b
m
e
x
u
L

s
d
n
rla
e
h
et
N

al
g
u
t
r
o
P

K
U

ain
p
S

n
e
d
e
w
S

Figure 3.

Impact Assessment Open Cases (Situation: 25/09/2002)

180

160

140

120

100

80

60

40

20

0

stria

u
A

m

elgiu

B

k
r
a
m
n
e
D

d
n

Finla

e
c
n
a
r
F

y
n
a
m
r
e
G

e
c
e
e
r
G

d
n
ela
Ir

Italy

g
r
u
o
b
m
e
x
u
L

s
d
n
rla
e
eth
N

al
g
rtu
o
P

K
U

ain
p
S

n
e
d
e
w
S

Complaints (P) Own initiative (B)

Infringments (A)

23

In addition, as can be deduced from these figures, only a very small proportion
2.2.6
of  complaints  and  “own  initiative”  cases  develop  into  infringement  procedures.
Between 1997 and 2001 the Commission has opened 977 complaints (including “own
initiative” cases) on conformity and the wrong application of the EIA directive. In the
same years the Commission has sent only 36 reasoned opinions to Member States, 22
for  non-conformity  and  36  wrong  application  of  the  EIA  directive.  This  can  be
explained by two main reasons:

a) Complaints may not be well-founded (however, the Commission is obliged to open
complaint files, under its own rules, even when there is only a very weak possibility
of  breach)8.  In  many  cases  it  is  clear  that  the  general  public  misunderstands  the
Directive and the role of the Commission: in some cases people comment a long time
before  any  administrative  procedure  is  started  and  claim  that  no  EIA  procedure  has
been  carried  out,  when  in  fact  in  these  cases  no  breach  can  be  identified  since  the
situation is at too early a stage and the Directive requires only that an EIA be carried
out before consent is given. In some other cases it may be claimed that a project will
have a significant impact but the Commission is not informed that a screening or an
EIA  procedure  is  in  progress  (and  therefore  that  the  competent  authorities  are
the
applying 
environmental  impact  of  individual  projects,  it  is  only  competent  to  assess  whether
and  how  the  Directive  is  applied.  In  some  further  cases  information  on  the  basis  of
which  the  complaint  was  opened  needs  to  be  more  specific  in  order  to  assess  the
relevance under the Directive (for instance: the nature of a project or the stages of the
procedures) and the complainants are not able to clarify this. Many complainants are
convinced  that  a  negative  assessment  can  prevent  the  authorities  from  granting
development  consents  or  that  the  lack  of  EIA  on  an  Annex  II  project  is  in  itself  a
breach  of  the  directive.  In  addition,  some  cases  reveal  what  are  simply  problems  of
application of internal law, in particular national or regional procedures.

the  Directive).  The  Commission 

is  not  competent 

to  assess 

b) The second reason is that in some cases where there is real breach of the Directive,
raised  by  complaints,  written  questions  or  petitions,  the  Member  States  apply  or
comply with the Directive once a simple request for information has been sent by the
Commission services or once a letter  of  formal  notice  is  issued by  the  Commission.
Consequently, situations of breach are often solved before the Commission is obliged
to issue a reasoned opinion.

2.2.7 The provision which is more frequently concerned in infringement procedures
on EIA Directive is Article 4(2) in particular as regards 1) the "screening" in itself, 2)
the application of the thresholds, and 3) the listing of the projects of Annex  II. Both
under  the  old  and  the  new  version  of  the  Directive,  the  assessment  of  the
characteristics  of  Annex  II  projects  (in  order  to  determine,  in  individual  cases,
whether the project is to be made the subject of an EIA) is often not correctly carried
out (this is a case of wrong application). It is also true that in some cases thresholds
are set so high that decision-makers often reject the need for EIA for smaller projects
which  probably  require  it,  e.g.  because  they  are  in  sensitive  areas  (this  is  a  case  of
wrong application). Finally some Member States are not in conformity with the EIA

8

In many casesa complaints are not progressed beyond a consideration by the Commission and
Member States may not even be notified that a complaint has been received.

24

                                                
Directive because not all Annex II  projects are  covered by  EIA domestic legislation
(the non conformity case) (see e.g. Case C-474/99 Commission v. Spain).

2.2.8
Infringements  procedures  for  non  conformity  and  wrong  application  also
concern Article 6 (public participation) in that a too short public consultation period is
given) and Article 8 (Information gathered pursuant to Articles 5, 6 and 7 to be taken
into  consideration  in  the  development  consent  procedure)  of  Directive  85/337/EEC.
These  procedures  also  concern  Article  3(2)  of  Directive  97/11/EC  (transitional
provision).

2.2.9 The  operation  of  the  EIA  Directive  has  been  the  focus  of  a  great  deal  of
attention in the European Court of Justice (ECJ). Many of the EIA cases  considered
by  the  Court  have  related  to  the  implementation  of  Directive  85/337/EEC  by
individual  Member  States,  while  others  have  related  to  the  operation  of  the  EIA
Directive in specific cases. It is not the purpose of this report to deal exhaustively with
all the EIA cases that have been before the ECJ. However it is useful, in the context of
the amending Directive 97/11/EC, to refer to some key court rulings and judgements
that have helped to shape the changes introduced. The key cases that lay behind many
of the amendments provided for in 97/11/EC are:

– 

– 

– 

– 

C-431/92 Commission of the European Communities v Federal Republic
of Germany (hereafter C-431/92 the Grosskrotzenburg case);

C-133/94  Commission  of  the  European  Communities  v  Kingdom  of
Belgium.
(hereafter C-133/94 Commission v Belgium);

C-72/95  Aannemersbedrijf  P.K.  Kraaijeveld  BV  e.a.  v  Gedeputeerde
Staten van Zuid-Holland. (hereafter C-72/95 the Dutch Dykes case);

C-392/96  Commission  of  the  European  Communities  v  Ireland.
(hereafter C-392/96 Commission v Ireland) (while the ECJ judgement in this
case post-dates the adoption of 97/11/EEC, the Commission were mindful of
the issues raised by the case when drafting the amendments to the Directive).

2.2.10 The  ECJ  has  consistently  ruled  that  the  Directive  should  be  interpreted  as
having  a  wide  scope  and  very  broad  purpose  (see  for  example  C-72/95  the  Dutch
Dykes  case)  and  that  individual  Member  States  or  competent  authorities  should  not
seek  to  narrow  that  purpose  in  its  operation.  While  much  of  the  EIA  Directive
provides  for  discretion  in  the  application  of  the  procedures  under  the  principle  of
subsidiary, the ECJ has limited the discretion available to Member States in a number
of ways. The Dutch Dykes case made clear that the discretionary powers provided by
the Directive should not be used to devalue the general requirements of the Directive
provided  by  Article  2(1)  that  all  projects  in  Annex  II  be  the  subject  of  EIA  should
they  give  rise  to  significant  environmental  effects.  This  means  in  practice  that  all
Annex II projects must be passed through a screening procedure (i.e. Based upon the
establishment  of  thresholds  and/or  the  use  of  a  case-by-case  examination).  In  C-
133/94 Commission v Belgium the ECJ ruled that Member States were at liberty to use
either  a  case-by-case  or  a  threshold  approach  to  screening  Annex  II  projects.  The
rulings  in  C-133/94  Commission  v  Belgium,  C-72/95  the  Dutch  Dykes  case  and  C-
431/92 the Grosskrotzenburg cases also made clear that while Member States had the

25

discretion to define thresholds for screening Annex II projects, these thresholds could
not  be  fixed  at  such  a  level  as  to  exclude  whole  project  types  from  assessment.
Furthermore, in Commission v Ireland (C-392/96), the ECJ held that screening criteria
or thresholds could not be limited to a consideration of the size of projects and that the
nature  and  location  of  the  project  also  needed  to  be  taken  into  consideration.  In  C-
392/96  Commission  v  Ireland  the  ECJ  also  ruled  that  the  setting  of  thresholds  or
criteria for Annex II projects could not be set at such a high level that the objectives of
the Directive would be circumvented by the splitting of projects into smaller units and
that  the  cumulative  effects  of  such  an  approach  would  need  to  be  assessed.  It  was
because  of  the  issues  raised  on  the  screening  of  Annex  II  projects  by  these  cases,
together with the findings of the 1993 review of the operation of  the EIA  Directive,
that Article 4(3), and Annex III was inserted into the Directive by 97/11/EC. This new
Annex provides the criteria on which thresholds and other screening criteria must be
based. In C-431/92 the Grosskrotzenburg and C-72/95 the Dutch Dykes case the ECJ
also dealt with the issues of changes or extensions to projects and ruled that additions
or extensions to existing projects should be subject to EIA should their size or scale or
other  factors  meet  the  EIA  requirements  for  a  new  project  of  that  type.  Aspects  of
these  rulings  were  transferred  into  the  EIA  Directive  by  97/11/EC  through  the
addition  to  Annex  II  of  point  13,  dealing  with  changes  or  extensions  to  Annex  I  or
Annex II projects

2.3

Transposition of Directive 97/11/EC

Main Features of Directive 97/11/EC

2.3.1
In  response  to  the  issues  discussed  in  2.2  above,  the  European  Commission
proposed  an  amending  Directive  (97/11/EC)  that  would  strengthen  the  Directive  in
line  with  the  wider  development  of  the  environmental  policies  of  the  European
Community and the results of the five year reviews of the operation of the Directive
and consolidate the changes and clarifications provided by the Espoo Convention and
the rulings of the ECJ. The sources for the changes made by 97/11/EC are set out in
Table  5.  The  amending  Directive  (97/11/EC)  was  adopted  in  1997  and  required
Member States to transpose the  changes into their domestic legislation by  14 March
1999.

Table 5.

The Sources for the Amendments Made by 97/11/EC

Source

Issue

Amendment in 97/11/EC

1993 Review

Project authorisation

1993 Review

1993 Review

Screening

Information

Espoo Convention

Project Types

Article  2  amended  requiring  all
projects  subject 
to
to  EIA 
require development consent

Article 4(2), Annex III

Article 3, Article 5(2).

to
Additional  projects  added 
Annex  I  and  other  projects
moved from Annex II to Annex

26

I

Espoo Convention

Consultation  on  transboundary
impacts

Articles 7 and 9 Amended

Directives 
90/313/EEC

79/409/EEC 

and

Special protection areas

Impact  on  areas  designated
under the Directives included in
Annex III

Directive 96/61/EC

Overlap  of  Directive  project
types

Article 2(a), Annex II

Limitation  on  Member  State
discretion to set thresholds

Article 4(3), Annex III

C-431/92 
Grosskrotzenburg
C-133/94
case, 
Commission  v  Belgium  &  C-
72/95 Dutch Dykes case

C-133/94, 

Grosskrotzenburg
C-431/92 
case  &  C-72/95  Dutch  Dykes
case

Changes and Extensions

to
Changes  and  extensions 
Annex  I  and  Annex  II  projects
inserted into Annex II

other
Accumulation 
projects  included  in  Annex  III
screening criteria

with 

C-392/96 
Ireland9

Commission 

v

Salami slicing

2.3.2 The main changes introduced by 97/11/EC include:

– 

Changes in Article 2

–  Member States have to ensure that all projects that are subject to EIA

must also be the subject of a development consent;

– 

Changes to the Annexes

– 

– 

– 

the  number  of  Annex  1  projects  was  increased,  with  14  new  project
types and the extension of 4 others;

the number of Annex II projects was increased by 8 and 8 others were
extended, 1 project type was deleted ( production of particle and fibre
board);

changes or extensions to Annex I and II projects were added to Annex
II;

– 

Screening

–  Member  States  may  either  specify  Annex  II  project  criteria  and
thresholds,  consider  projects  on  a  case  by  case  basis  or  use  a
combination of both approaches;

9

While the ECJ judgement in this case post-dates the adoption of 97/11/EEC, the Commission
were mindful of the issues raised by the case when drafting the amendments to the Directive

27

                                                
– 

– 

– 

– 

– 

– 

– 

there  is  a  new  Annex  III  which  is  devoted  to  screening  criteria  that
must  be  taken  into  consideration  by  Member  States  (in  drawing  up
their legislation) and by competent authorities when making screening
decisions  for  Annex  II  projects  and  the  development  of  screening
thresholds  and  criteria.  Annex  III  includes  matters  such  as  the
characteristics  of  projects, 
the
characteristics  of  the  potential  impact  such  as  cumulation  with  other
projects and risk.

location  of  projects  and 

the 

competent  authorities  must  make  public 
determination as to why an EIA s required in each case;

the  reasons  for 

their

Scoping

on  a  developer’s  request,  the  competent  authorities  must  give  their
opinion  about  what  should  be  contained  in  the  environmental
information to be supplied by the developer;

–  Member  States  may  require  authorities  to  provide  scoping  guidance

irrespective of any such request;

Environmental Report

– 

– 

– 

– 

– 

– 

the provision of an outline of the main alternatives studied was  added
as  an  element  in  the  minimum  requirements  for  the  information  that
must be supplied by the developer in all cases;

Alternatives

developers must include an outline of the main alternatives studied and
an  indication  of  the  main  reasons  for  the  choice  made,  taking  into
account  environmental  effects;  this  also  became  an  element  of  the
minimum information to be supplied (see above);

Consultation and public participation

consultations  must  be  undertaken  with  the  public  and  environmental
authorities  in  other  affected  Member  States  likely  to  be  affected  by  a
project,  in  addition  to  the  existing  Member  State  consultation
requirements;

the  results  of  these  consultations  must  be  taken  into  account  in  the
decision;

the reasons for the decision must be made public in all cases; and

the main mitigation measures adopted must be made public.

Member States’ Arrangements for Transposition

2.3.3 Based upon the responses to the Commission’s questionnaire for this review,
follow  up  questions  of  clarification  and  further  research,  it  can  be  stated  that  most

28

Member  States  have  made  arrangements  for  the  transposition  of  the  amending
Directive  (see  Table  6).  However  it  should  be  noted  that  the  transposition  of  the
Directive into the legal system of a Member State does not necessarily mean that the
transposition  is  in  complete  compliance  with  the  Directive.  The  federal/regional
structure of some of the Member States,  and the fact that the questionnaires for this
review  were  largely  only  distributed  at  national  level,  makes  it  impossible  to  state,
with any real confidence, whether the amending Directive has been fully transposed at
sub-national  level.  Other  research  into  the  transposition  of  the  EIA  Directive  in  the
federally  organised  Member  States  has  highlighted  the  complexity  of  the  different
administrative arrangements and procedures as affecting the operation of the Directive
at  a  local  level  in  practice10.  In  some  cases  Member  States  report  that  their  original
arrangements  already  incorporated  many  of  the  amendments  provided  by  97/11/EC.
Some of the Member States point out that, as their original arrangements were in the
process of being amended, because they were either incomplete or required changes to
be in accord with ECJ case law, they were in a position to include the requirements of
some of the amending Directive when it was still in draft form.

Table 6

Status of Transposition of Directive 97/11/EC by Member States as of 1st November 2002
Member State
Austria

Transposition Status
Deficits in transposition still exist as regards Annex II (1a) projects in 3 Länder
(Burgenland, Carinthia, and Salzburg)
The transposition is not complete for Walloon and Flanders regions
Directive 97/11/EC transposed
Directive 97/11/EC transposed
Deficits  in  transposition  still  exist  as  regards  the  provisions  concerning  the
scoping  procedure  under  Article  1  (7)  of  Directive  97/11/EC  with  reference  to
certain projects. Case C-348/01 Commission v. Republic of France.
Directive 97/11/EC transposed
Directive 97/11/EC transposed
Directive 97/11/EC transposed
Directive 97/11/EC transposed
Lack of transposition. Judgement of the ECJ of 19/2/2002 (in case C2000/366)
has  declared  the  failure  of  Luxembourg  to  transpose  Directive  97/11/EC.
Luxembourg is preparing draft regulations to transpose the Directive.
Directive 97/11/EC transposed
Directive 97/11/EC transposed
Directive 97/11/EC transposed
Directive 97/11/EC transposed
Directive 97/11/EC transposed

Belgium
Denmark
Finland
France

Germany
Greece
Ireland
Italy
Luxembourg

Netherlands
Portugal
Spain
Sweden
UK

2.3.4 Many Member States missed the deadline for transposition of all or part of the
Directive.  Germany,  for  example,  only  transposed  Directive  97/11/EC  into  German
law,  in  July  2001.  In  other  cases  the  transposition  appears  to  have  been  rather
piecemeal,  with  parts  of  the  Directive  transposed  and  other  parts  not.  With  federal
states,  as  stated  earlier,  the  position  is  less  clear.  Only  Belgium  provided  separate
responses  for  each  region  and  transposition  here  is  also  rather  patchy.  The  Flanders
region,  for  example,  included  many  of  the  changes  in  the  amending  Directive  in  its
original  arrangements,  but  is  still  in  the  process  of  drafting  new  legislation  to

10

see Prelle, R. (2001) Environmental Assessment and Judicial Approaches to Procedural Errors
– A European and Comparative Law Analysis, Journal of Environmental Law, Vol. 3, no. 2,
pp. 185-198.

29

                                                
complete  the  transposition.  Greece  also  included  many  of  the  requirements  of  the
amending Directive in its original national legislation, but it has  yet  fully to comply
with  all  of  the  requirements  of  the  Directive.  Luxembourg  has  yet  to  transpose  the
amending Directive and at the time of this research was the subject of investigation by
the Commission. Action by the Commission was also pending on many other Member
States for failure fully to comply with 97/11/EC.

2.3.5 There  appears  to  be  a  fairly  even  split  between  those  Member  States  that
introduced  wholly  new  legislation  to  transpose  Directive  97/11/EC  and  those  that
simply  amended  existing  arrangements.  Many  Member  States  took  the  opportunity
offered  by  transposition  to  make  other  changes  to  their  EIA  systems.  As  with  the
original  EIA  Directive,  in  some  countries  EIA  is  dealt  with  by  a  single  piece  of
legislation,  while  in  others  separate  legislation  exists  for  different  project  types.  In
some  Member  States  separate  EIA  legislation  was  required  to  reflect  the  different
authorisation  procedures  used  for  different  types  of  project  –  e.g.  land  use  planning
consents  and  environmental  licences.  The  amendment  to  Article  2(1)  made  by
97/11/EC requiring all projects defined by Article 4 to be the subject of development
consent  brought  under  control  projects  that  had  previously  not  been  the  subject  of
authorisation  procedures.  This  required  new  consent  procedures  to  be  developed  in
some countries so that EIA could be applied. For example, the UK’s regulations  for
the EIA of ‘uncultivated land or semi-natural areas for intensive agricultural purposes’
only came into force in January 2002.

Overview of 97/11/EC

In  addition to the changes introduced as  a consequence of the first  report  evaluating
the  effectiveness  of  Directive  85/337/EEC,  the  amendments  made  by  97/11/EC  also
reflect the considerable strengthening and clarification given to certain elements of the
EIA  Directive  as  advanced  by  the  ECJ.  The  Directive  also  widened  the  procedural
base by providing, at Annex III, screening criteria for Annex  II projects as the basis
on which screening thresholds and decisions must be based.

The  review  of  the  transposition  of  97/11/EC  has  shown  that  the  new  measures
introduced by the Directive have yet to be implemented in full in all Member States.
The  slow  embrace  of  the  amendments  made  by  97/11/EC  by  some  Member  States
does  not  reflect  the  general  importance  that  the  Member  States  and  the  European
Commission, places on EIA as a tool for implementing wider environmental policies.

30

3.

ARRANGEMENTS FOR KEY STAGES

3.1

Introduction

3.1.1 This  section  of  the  report  examines  the  operation  of  the  amended  Directive
within  the  Member  States,  with  particular  focus  on  the  amendments  made  by
97/11/EC. Member States, either originally or in subsequent amendments to their own
EIA  systems,  included  many  of  the  new  requirements  of  97/11/EC.  It  has  not,
therefore always been possible here to disentangle the operation of an original system
from any changes that have taken place subsequent to the adoption of 97/11/EC. The
section  reviews  the  key  stages  of  the  EIA  process,  and  Section  4  will  deal  with
specific topic areas that are central to the operation of the Directive as a whole. Both
Section  3  and  4  are  based  upon  an  analysis  of  the  questionnaire  sent  to  the  EIA
experts in the government offices of each Member States. In some cases this analysis
has  been  supported  by  further  contact  with  the  EIA  experts  for  clarification  and
amplification  of  their  responses.  Nevertheless,  the  quality  and  detail  of  responses  is
very variable, ranging from full answers with references to legislation, regulations and
cases, to much briefer responses where insufficient time was available to answer more
fully. As a consequence the analysis cannot be as detailed as we might wish and direct
comparison between Member States on all points has not been possible.

3.2

Screening

Introduction

3.2.1 The  European  Commission’s  guidance11  defines  screening  as  “that  part  of
the EIA process which determines whether an EIA  is  required  for  a  particular
project”  (http://europa.eu.int/comm/environment/eia/eia-guidelines/g-screening-full-
text.pdf).In  common  with  most  EIA  systems  around  the  world,  the  EIA  Directive
requires an EIA to be carried out for projects “likely to have significant effects on the
environment”  (Article  2).  The  Directive  provides  two  lists  of  projects  covered  by
Article 2 and these are listed as Annex I and Annex II projects. Article 4 (1) requires
that all projects listed in Annex I are made subject to EIA on a mandatory basis. Due
to the amendments required by 97/11/EC and resulting from relevant ECJ rulings, all
projects  listed  in  Annex  II  must  be  made  subject  to  screening.  This  means  that  for
Annex II projects Member States must first determine whether there are ‘likely’ to be
significant  environmental  effects.  In  the  affirmative  case  the  full  EIA  procedures  of
the Directive apply. The screening decision requires an examination of a project and
its  receiving  environment  to  determine  the  likelihood  of  ‘significant  environmental
effects’.  To  facilitate  this  screening  decision  the  Directive  provides  Member  States
with  a  certain  amount  of  discretion  to  determine  the  basis  on  which  significant
environmental  effects  should  be  identified.  However,  in  the  Grosskrotzenburg  case,
Commission v Belgium and the  Dutch Dykes cases the ECJ ruled  that the  discretion
given  to  Member  States  was  considerably  limited  by  clarifying  the  margin  within
which the Member States may operate. Directive 97/11/EC inserted a new Article 4(2)
that requires that Member States make the screening determination through:

11

See CEC (2001) Environmental Impact Assessment Guidance on Screening, Brussels, CEC.

31

                                                
(a) a case-by-case examination of projects; or

(b) thresholds and criteria set by any of the Member States; or

(c) a combination of (a) and (b) above.

3.2.2 Following the Grosskrotzenburg, Commission v Belgium and the Dutch Dykes
cases, Member  States could not  use thresholds to  exclude whole  classes  of  projects,
but  thresholds  could  be  used  to  exclude  very  small  or  minor  projects.  In  C-392/96
Commission v Ireland the ECJ ruled that thresholds could not be based on the size or
other  physical  characteristics  of  a  project  alone  and  that  they  had  to  be  based  upon
locational  and  other  environmental  factors.  Directive  97/11/EC  implemented  this
principle  by  inserting  Article  4(3),  and  states  “When  a  case-by-case  examination  is
carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant
screening  criteria  set  out  in  Annex  III  shall  be  taken  into  account”.  That  screening
criteria is based upon:

– 

– 

– 

characteristics of the project - e.g. size, use of natural resources etc;

project  locational  factors  –  e.g.  in  or  near  sensitive  areas  such  as  wetlands,
protected wildlife sites and densely populated areas etc; and

characteristics  of  potential  impacts  –  e.g.  extent  and  magnitude  of  impact,
transfrontier nature of impact etc.

3.2.3 Following the adoption of 97/11/EC, and the application of the rulings in the
above cases, Member States developed the following types of screening thresholds for
Annex II projects:

– 

– 

– 

inclusion or mandatory thresholds or criteria – projects of a certain size or of
particular locational or other characteristics which require mandatory EIA;

indicative  or  guidance  thresholds  or  criteria  –  thresholds  are  provided  as  a
guide  only  -projects  above  a  given  size  or  other  threshold/criteria  levels  are
considered  more  likely  to  require  EIA,  while  projects  below  these  thresholds
are considered less likely to require EIA, but will still need to be screened on a
case-by-case basis for the likelihood of significant environmental effects; and

exclusion thresholds or criteria  – projects below a given size or of particular
locational or other characteristics which do not require EIA.

All of the above thresholds and criteria must be based upon the screening criteria set
out in Annex III. For those countries not adopting a wholly case-by-case assessment
approach to screening Annex II projects, the combined use of thresholds and a case-
by-case approach can be characterised as the ‘traffic light’ approach to screening (see
Fig. 4 below). Where no exclusion thresholds exist a modified ‘traffic light’ approach
is created (se Fig. 5 below).

32

Figure 4: ‘Traffic Light’ Approach to Screening

Exclusion Thresholds
Criteri

Indicative or Guidance Thresholds and
Criteria

Inclusion  or Mandatory
Thresholds and Criteria

No EIA is Required

EIA Must Be Considered

EIA is Required

Figure 5: Modified ‘Traffic Light’ Approach to Screening

Indicative or Guidance Thresholds and Criteria

Inclusion  or Mandatory
Thresholds and Criteria

EIA Must Be Considered

EIA is Required

Changes made by 97/11/EC to Annex I and Annex II

3.2.4 Directive 97/11/EC amended the two project lists provided in  Annexes  I and
II. The number of Annex I projects was increased, with 14 new project types and the
extension of 4 others. In some cases, projects previously in Annex II were moved into
Annex I if they exceed a given threshold – for example, installations for the intensive
rearing  of  poultry  and  pigs  were  previously  all  Annex  II  projects  now,  under
97/11/EC, projects that exceed a threshold of 85,000 places for broilers, 60,000 places
for hens, 3,000 places for the production of pigs over 30 kg and 900 places for sows
are Annex I projects where EIA would is mandatory. The number of Annex II projects
was increased by 8 with the extension 8 others. The Commission’s survey of Member
States sought  opinions on the  operation  and  effectiveness of the  division of  projects
between  the  two  Annexes.  The  survey  also  sought  views  on  whether  the  Annex  I
thresholds  were  set  at  the  right  level  or  the  criteria  provided  the  right  trigger  for
requiring a mandatory EIA.

3.2.5 The logic behind the movement of some projects – e.g. intensive pig rearing –
to Annex I is questioned by some Member States on the basis of their size and likely
impacts. Concern was  expressed at the vagueness of some project descriptions – for
example  open  cast  mining  (Annex  I  (19))  could  include  land  reclamation  schemes
where it was felt the need for EIA may be better considered on a case-by-case basis.
There was also some support for the view that there should be far more flexibility in
the  operation  of  Annex  I,  so  that  thresholds  could  be  adapted  to  suit  national
circumstances  and  the  socio-economic  conditions  of  individual  countries.  Some
Member States (Austria, Belgium-Brussels, France, Greece, Ireland, Netherlands, and
Portugal) have set some thresholds at lower levels than those of Annex I. The point is
made by some Member States that in small countries the Directive’s thresholds may
be seen as high.

33

3.2.6 There  was  a  degree  of  consensus  among  Member  States  at  the  usefulness  of
the threshold approach used in  Annex  I. However, some Member States queried  the
justification  for  the  thresholds  used  and  there  was  some  concern  that  not  all  of  the
thresholds are clear – for example, for Annex I (16) (pipelines for the transport of gas,
oil  or  chemicals),  it  is  not  clear  whether  the  800mm  threshold  refers  to  an  outer  or
inner  diameter.  A  number  of  Member  States  suggested  that  more  appropriate
thresholds should be used for certain projects. These include:

– 

– 

– 

production of organic nitrogen for intensive livestock units (Annex I (17));

size  of  the  development  rather  than  weight  of  the  vessel  for  trading  ports
(Annex l (8b);

resource input or production outputs for projects such as integrated works for
the  initial  smelting  of  cast-iron  and  steel,  and  integrated  chemical
installations (Annex I (4) and (6)).

3.2.7 The Member States were asked whether they believed that there was a case for
moving some projects from Annex II to Annex I. Some Member States have already
done  this  by  placing  some  projects  in  their  own  version  of  Annex  I  or  by  having
mandatory  thresholds  for  certain  Annex  II  projects.  However,  the  largest  single
proportion of respondents felt that there is no case for moving projects from Annex II
to Annex I (i.e. Austria, Denmark, Greece, Netherlands, Spain, Sweden, UK). There
was some consensus on the view that it was far too early to judge whether the Annex I
and II lists needed further revision and that there needs to be far more research on the
relationship between the Annexes and how the system operates in practice across the
EU as a whole. There was also a suggestion that there is a need for more reliable data
on  differences  [between  Member  States]  and  to  explore  whether  or  not  these
differences  result,  perhaps  from  some  geographical,  socio-economic  or  other  basis.
However,  some  Member  States  (Belgium-Flanders,  Belgium-Walloon  and  Italy),  do
see  possibilities  for  further  adjustment  and  one  suggestion  is  that  the  two  Annexes
should be merged with the introduction of mandatory EIA thresholds for each project
category. Austria, France and Greece  already use this approach and do not currently
differentiate between Annex I and II projects in their domestic EIA legislation.

3.2.8 Over half of the respondents indicated their domestic legislation required EIA
for  other  project  categories  than  those  mentioned  in  Annexes  I  and  II.  The  most
frequently  mentioned  category  was  golf  courses.  Other  suggested  additions  to  the
Annexes included the following  (in  some  cases  the  Member  States  suggesting  these
additions already include them in their own domestic arrangements):

– 

– 

– 

– 

– 

installations for working with high risk biological substances;

Genetically  Modified  Organism  installations  such  as  laboratories,  test
facilities and trial areas;

shooting ranges;

mobile phones masts;

manufacture of fibreboard;

34

– 

– 

– 

– 

particle accelerators (of 50 MeV and over);

intensive rearing of cattle and calves;

military practise grounds; and

manufacture of lime.

However the respondents did not make clear whether their proposed changes should
be in Annex I or II; it is assumed most would be Annex II.

3.2.9 The suggestion for the inclusion of intensive rearing of cattle and calves may
be  worth  further  examination  as  some  evidence  would  suggests  that  this  form  of
livestock farming is the cause of high levels of ammonia pollution in some countries
and that control may be necessary to meet the requirements of the UN ECE Protocol
on  Combating  Acidification,  Eutrophication  and  Ground  Level  Ozone  (the  multi-
component  protocol).  The  suggestion  for  including  the  construction,  or  change  or
extension of a military practice ground (for actual development of 100 ha. or more) is
interesting in that it covers defence/security issues which are often EIA exempt. The
main reason for its suggested inclusion is that such training areas are often located in
the vicinity of nature conservation areas. These suggestions should not be seen as an
overall demand for a widening of the scope of Annex I and II. Several respondents to
the questionnaire saw no case for adding new project types to Annexes I and II at this
stage,  seeing  it  as  premature  as  the  amendments  are  themselves  only  recent.  Some
Member States have already extended the list of Annex II projects to cover some of
the  above  project  types  and  recognise  that  the  EIA  Directive,  and  their  national
procedures, provides the necessary flexibility for them to add new projects to Annex
II  if  deemed  necessary.  That  others  have  not,  and  yet  suggest  that  certain  projects
should  be  included  in  the  Annexes,  may  mean  that  clarification  is  required  on  the
discretion that Member States have on the widening of Annex II.

Summary of Main Findings: Changes made by 97/11/EC to Annex I and II

There  do  appear  to  be  few  significant  concerns  regarding  the  current  split  between
Annex  I  and  Annex  II  projects  and  the  flexibility  provided  by  the  Directive  that
allows Member States  to increase the projects  covered by  Annex  I.  There  is  a  good
deal of support among Member States for the threshold approach employed in Annex
I.

Action: See recommendation 5.4.2.(i)

Screening Annex II Projects following 97/11/EC

3.2.10 Most  of  the  Member  States  appear  to  make  use  of  a  combination  of  both
7).
thresholds 

case-by-case 

approach 

Table 

(See 

and 

the 

35

Table 7 Annex II Screening Mechanisms Across the Member States

AUSTRIA

Screening  is  based  on  a  combination  of  thresholds  and  case-by-case  examination.  Some
thresholds  trigger  mandatory  EIA.  Indicative  thresholds  are  used  with  case-by-case
examination,  and  in  sensitive  areas  the  threshold  values  are  usually  halved.  Exclusion
thresholds are also used; new projects or modifications of existing projects that are less than
25% of the relevant threshold do not require EIA.

Belgium

(Brussels)

Thresholds  for  mandatory  EIA  are  set  for  some  project  types  (category  A  thresholds).
Indicative  thresholds  (category  B  thresholds)  with  a  case-by-case  examination.  The
indicative  thresholds  (category  B  thresholds)  also  act  as  exclusion  thresholds  for  smaller
installations.

(Flanders)

In principle, under the intended legislation, a list of project types / activities (including some
thresholds)  for  which  EIA  will  be  mandatory  is  proposed.  A  second  list  will  identify
activities for which case-by-case examination will be necessary.

(Walloon)

A  system  of  mandatory,  fixed  thresholds  is  employed.  Below  these  thresholds  no  EIA  is
required.

Denmark

Annex  II  projects  are  screened  primarily  on  a  case-by-case  basis,  using  criteria  based  on
Annex  III.  A  limited  number  of  mandatory  thresholds  and/or  locational  criteria  exist,  and
below these thresholds a case-by-case approach is taken. There are no exclusion thresholds.

Finland

France

Some Annex II projects have been included in the mandatory list with thresholds. For other
Annex II projects screening is principally carried out using case-by-case examination based
on Annex II, with no indicative or exclusion thresholds.

Exclusion thresholds and criteria (both technical, monetary and also in relation to the nature
of  the  proposal)  are  used.  In  principle,  all  projects  that  are  not  excluded  in  this  way  will
require  EIA.  A  simplified  EIA  procedure  is  used  in  some  cases  where  a  full  EIA  is  not
considered necessary.

Germany

A system of mandatory thresholds is used. Below these levels, additional thresholds are set
that distinguish between general and site related screening. For “general screening” criteria
based on Annex III must be examined in full. For “site-related screening” the thresholds are
lower and concentrate on the criteria that relate only to the proposed project site.

Greece

Ireland

For  Annex  II  projects  a  mandatory  list  is  used  which  defines  the  thresholds  and  criteria
above which EIA is always required. For projects that fall below these limits a “simplified
EIA” procedure applies.

Mandatory thresholds have been set for each of the project classes in Annex II. A statutory
basis  exists  to  enable  a  requirement  for  EIA  in  cases  where  a  project  falls  below  these
thresholds and the Competent Authority considers that significant environmental effects are
likely (through reference to Annex III criteria). Exclusion thresholds are not used.

36

Italy

A  list  is  used  to  identify  Annex  II  projects  for  which  EIA  is  mandatory.  Other  Annex  II
projects  are  screened  using  a  combination  of  thresholds  and  case-by-case  examination.
Exclusion thresholds have been set for almost every Annex II project.

Luxemb'g

No information

Netherlands

For  Annex  II  projects,  thresholds  are  set  above  which  a  case-by-case  examination  takes
place (using Annex III criteria). Below the thresholds no EIA is required.

Portugal

Mandatory thresholds are used for screening Annex II projects. Different thresholds apply in
sensitive areas. There is no case-by-case screening.

Spain

Sweden

UK

Mandatory thresholds are used to identify projects for which EIA is obligatory. Other Annex
II  projects  are  screened  using  case-by-case  examination  combined  with  indicative
thresholds. Exclusion thresholds are not used.

Certain  project  types  have  a  general  requirement  for  EIA  e.g.  railways,  roads,  cement
manufacture.  For  other  projects,  a  combination  of  mandatory  thresholds  and  case-by-case
examination is used. There are no exclusion thresholds.

Screening  is  conducted  using  a  combination  of  indicative  thresholds  and  case-by-case
examination.  Exclusive  thresholds  are  set  below  which  EIA  is  not  required  (except  in
exceptional  circumstances  when  the  Secretary  of  State  can  use  reserve  powers  to  require
EIA).

Thresholds are established to exclude projects that are below certain sizes or criteria
from  EIA  in  Austria,  Belgium-Brussels,  France,  Germany,  Italy,  Netherlands,
Portugal,  Spain,  and  the  UK.  However,  it  is  important  to  qualify  this  statement  as
different  approaches  are  used  for  different  project  types  within  individual  Member
States. Exclusion thresholds are not necessarily in place for all project types in all of
the  above  countries.  In  some  cases  mandatory  or  inclusion  thresholds  also  act  as
exclusion  thresholds  so  that  if  a  project  is  above  a  given  threshold  EIA  is  always
required and below the threshold, EIA is not required. Sub-threshold screening takes
place in some of the Member States for some projects, but not all. In still other cases
projects below mandatory thresholds are made subject to a simplified EIA procedure.
Austria,  France,  Germany  and  Greece  make  no  distinction  between  Annex  I  and  II
projects and base their screening decisions on inclusion or mandatory thresholds and a
case-by-case examination of the project and its receiving environment for both groups
of projects. In some cases only mandatory thresholds exist for Annex II projects and
screening  takes  place  on  a  case-by-case  basis  of  projects  below  those  thresholds.
Where  this  practice  occurs  the  respondents  are  generally  of  the  view  that  there  is
limited need for sub-threshold screening as the mandatory thresholds have been set (in
their  view)  at  a  very  low  level  (Belgium–Flanders  and  Walloon  regions,  Ireland,
Portugal and Spain). In some of these cases the competent authority may require the
developer  to  carry  out  an  EIA  even  if  the  project  is  below  a  threshold  or,  in  some
cases, a simplified EIA procedure is completed. A tiered system of EIA is in place in

37

a  number  of  Member  States.  This  approach  is  largely  based  upon  the  use  of
mandatory  thresholds:  above  the  threshold  EIA  is  always  required,  below  the
threshold  only  a  simplified  EIA  or  report  is  required.  In  Greece  this  comprises
responses  to  a  questionnaire.  In  Belgium-Brussels  the  developer  is  required  to
produce  an  environmental  report  for  most  Annex  II  projects  unless  the  Government
deems  a  full  EIA  is  necessary.  The  use  of  a  tiered  approach  to  EIA  does  have  the
benefit of ensuring that all Annex II projects are subject to some form of assessment
and report, however the requirements of the Directive will only be met, in such cases,
if under the simplified EIA no significant environmental effects are identified.

3.2.11 Some Member States have moved some Annex II project types into their own
Annex  I  (for  example,  Denmark  and  Finland).  In  a  number  of  Member  States
mandatory thresholds have been set for some Annex II projects and where that is the
case it is essential that a case-by-case screening procedure is in place for projects that
fall below the mandatory thresholds (the ‘modified traffic lights’ approach – see para.
3.2.3  above).  Denmark,  Sweden  and  Finland  appear  to  make  use  of  a  case-by-case
assessment for the majority of Annex II projects that have not been moved into their
own mandatory (Annex I) list. It is not clear what approaches to screening are being
used in some of the federal states where the EIA function has been devolved down to
regional  level  and  no  evidence  has  been  presented  on  the  way  the  EIA  systems  are
operated in practice. There is also no information of how competent authorities within
the Member  States  apply  the  thresholds  or  the  case-by-case  screening  procedures  in
practice.

3.2.12 Most  Member  States  have  established  either  their  own  screening  criteria  or
indicative  thresholds  or  make  use  of  the  screening  criteria  in  Annex  III.  Where
Member  States  have  established  their  own  criteria  these  are  largely  based  upon  the
Annex  III  list  but  expand  on  the  Annex  III  list  to  include  specific  nationally
designated  areas  or  other  factors  such  as  cultural  and  historic  landscapes  or
archaeological features. The general view of the Member States is positive about the
efficiency  of  the  screening  criteria  of  Annex  III.  On  the  advice  of  the  Commission
most  countries  (including  Austria,  Denmark,  Finland,  Ireland,  Netherlands,  Spain,
Sweden  and  the  UK)  have  now  transposed  Annex  III  directly  into  their  own
legislation.  The  Annex  III  criteria  are  seen  by  some  respondents  as  making  the
screening process clearer and more transparent. On the other hand, some respondents
found them unclear, quite technical, and subjective.

3.2.13 The  screening  process  is  complicated  in  a  number  of  Member  States  by  the
fact that for some Annex II projects a land use planning or construction authorisation
is  required,  for  other  projects  only  an  environmental  permit  (similar  to  IPPC)  is
required, while in still others both consents  are necessary.  The screening  decision  is
then  often  based  upon  the  relevant  thresholds  and  criteria  for  the  particular  consent
regime  and  it  is  not  at  all  clear  from  the  responses  that  these  are  or  can  be  applied
consistently.  For  example,  similar  project  types  can  be  screened  using  different
criteria, the use of project size in terms of land area  for some  projects  and emission
rates or energy output for similar projects in the same project category.

3.2.14 In some Member States domestic EIA legislation only  requires an EIA of an
Annex  II  project  where  there  are  likely  to  be  significant  adverse  or  negative
environmental  effects.  However,  Article  2  paragraph  1  of  the  Directive  does  not
distinguish  between  positive  or  negative  effects.  It  is  important  that  where  only

38

significant ‘adverse’ or ‘negative’ effects are used as the trigger for EIA, such effects
are  not  first  measured  against  any  positive  effects.  In  Austria  any  single  significant
adverse  effect  triggers  the  need  for  an  EIA,  regardless  of  there  being  significant
positive effects. Where only significant adverse effects are used to trigger EIA, there
need  to  be  very  careful  checks  in  place  to  ensure  that  competent  authorities  do  not
misuse this approach to override environmental concerns with economic benefits.

Summary of Main Findings: Screening Annex II Projects

Member States have embraced the flexibility permitted by Article 4(2) and a range of
approaches  to  screening  exists  across  the  European  Union.  Many  Member  States
appear  to  be  making  use  of  the  ‘traffic  light’  approach  to  screening  and  have
developed  inclusion,  exclusion  and  indicative  or  guidance  thresholds.  However,  in
some cases Member States appear to be employing a variety of different approaches,
using different screening procedures for different project types and in some cases only
mandatory or inclusive thresholds are used. Very few Member States employ a case-
by-case approach for all project types. The following key issues arise from the review
of screening procedures:

It  is  not  clear  from  the  evidence  reviewed  here  that  all  Annex  II  projects  are  being
subjected  to  a systematic  screening  procedure.  In some  cases  there  is  little  evidence
that  screening  takes  place  below  nationally  established  mandatory  thresholds  or
criteria;

There is little evidence of how the screening systems put in place have been operating
in practice at competent authority level;

There are few examples of how the screening process operates at regional level in the
federal states;

Action: See recommendation 5.4.2.(a), (c), (d), (i) and (j).

39

Examples of thresholds/criteria for certain projects

3.2.16 Previous  reviews  and  other  research  have  identified  particular  screening
problems,  including  inconsistency  of  approach  and  concerns  over  definition  and  or
interpretation  for  certain  types  of  project.  The  Commission’s  questionnaire  sought
from Member States information on the screening thresholds and criteria used for the
following projects:

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

Annex II, 1(d) Forestation and Deforestation

Annex II, 1(e) Intensive Livestock Installations

Annex II, 3(h) Hydroelectric Plant

Annex II, 3(i) Wind farms

Annex II, 4(c) Ferrous Metal Foundries

Annex II, 5(b) Cement Manufacture

Annex II, 10(b) Urban Development

Annex II, 10(c) Railways and Intermodal Transhipment Facilities

Annex II, 10(d) Airfields

Annex II, 10 (e)Roads

3.2.17 The results show a wide variety of approaches. In most of the Member States
some  of  the  project  types  have  been  sub-divided,  for  example  Annex  II,  1(d)
(Forestation and Deforestation) is split into two, as is Annex  II 10(c) (Railways and
Intermodal  Transhipment  Facilities).  In  the  case  of  intensive  livestock  installations
(Annex II 1(e) a variety of different types of livestock are made subject to EIA.  For
example: in Austria, poultry unit thresholds are based on different types of production
with thresholds of 48,000 places for laying hens or young hens or turkeys, and 65,000
places  for  broilers;  in  Belgium  (Walloon)  there  are  mandatory  thresholds  for  ducks,
geese and turkeys (over 25,000 animals); in Denmark there are mandatory thresholds
of  2,400  places  for  pigs  between  30-100  kg  and  750  places  for  sows.  Appendix  3
provides an overview of the thresholds used for the projects listed at 3.2.16 above. In
some  cases  Member  States  are  applying  the  ‘traffic  light’  approach  to  screening,
having  exclusion  (GREEN),  indicative  thresholds  and  criteria  for  case-by-case
assessments (AMBER)  and  inclusion (mandatory)  thresholds (RED)  (See  Figs.  6-11
below).  However,  it  should  be  noted  that  in  many  cases  the  thresholds  are  used  in
combination with other screening  criteria, such as those provided  by  Annex  III,  and
therefore  a  strict  comparison  of  thresholds  between  Member  States  may  be
misleading.

3.2.18 There is a great deal of variation in the levels at which some of the thresholds
are  set.  For  example,  with  afforestation  projects  the  area  of  planting  that  triggers
mandatory EIA is 30 ha in Denmark, 50 ha in Spain and Germany, 200 ha in Finland
and 350 ha in Portugal. Little justification has been provided  for the levels at which

40

thresholds have been set and it is not clear how Annex III has been used to establish
project size mandatory thresholds. In some of the Member States many of the projects
are  deemed  to  always  require  EIA,  regardless  of  size  or  other  project  or  locational
factors – deforestation and hydroelectric plant in Sweden,  ferrous metal foundries in
Denmark  and  Greece,  cement  manufacturing  in  Denmark,  Finland,  Greece,  Ireland
and  Sweden,  railways  in  Germany,  Greece  and  Ireland,  intermodal  transhipment
facilities, airfields and roads in Greece.

Fig. 6

1000
900
800
700
600
500
400
300
200
100
0

Intensive Livestock Thresholds: No of Sows

Threshold

Mandatory

Indic ative

Exclusion

a
stri
u
A

els
s
s
ru
B

n
o
lo
al
W

k
ar
m
n
e
D

y
n
a
m
r
e
G

e
c
e
e
Gr

d
n
ela
Ir

s
d
n
a
rl
e
eth
N

al
g
rtu
o
P

n
ai
p
S

n
e
d
e
w
S

K
U

41

Fig. 7

55
50
45
40
35
30
25
20
15
10
5
0

Fig 8

35

30

25

20

15

10

5

0

Windfarm Thresholds: No of Turbines

Mandator y

Indic ative

Exclusion

a
stri
u
A

k
r
a
m
n
e
D

y
n
a
m
r
e
G

e
c
e
e
r
G

d
n
ela
Ir

s
d
n
a
rl
e
h
et
N

al
g
rtu
o
P
*

K
U

n
ai
p
S

n
e
d
e
w
S

*10 on sensitive areas, but even subject to a
case by case analysis
** All UK exclusion thresholds do not apply
where projects are within special areas

Hydroelectric Thresholds: Generating Capacity (MW)

Threshold

tria
s
u
A

)

Fla
(
m
elgiu

B

Mandator y

Indic ative

Exclusion

al)
W
 (
m
elgiu

B

e
c
n
a
r
F

e
c
e
e
r
G

d
n
ela
Ir

Italy

K
U

al
g
tu
r
o
P

s
d
n
rla
e
h
t
e
N

42

 
Fig. 912

100

80

60

40

20

0

Industrial Estate Development T hresholds (ha)

Threshold

Man dator y

Indic ative

Ex clusio n

a
tri
s
u
A

)
a
Fl
 (
m
u
elgi
B

y
n
a
m
r
e
G

d
n
ela
Ir

aly
It

s
d
n
a
rl
e
h
et
N

al
g
rtu
o
P

12

The  Member  States  have  not  identified  explicit  types  of  projects  covered  by  the  category
Annex II 10 (a) “industrial estate development projects”. However, thresholds have been used
to identify the requirement for EIA in this category. In France, a monetary threshold is used,
and  EIA  is  also  mandatory  where  an  urban  development  plan  is  in  operation.  For  other
Member  States  the  threshold  is  based  on  the  area  of  the  proposed  industrial  estate
development

43

                                                
Fig. 10

400

350

300

250

200

150

100

50

0

Fig. 11

1600

1400

1200

1000

800

600

400

200

0

Afforestation T hresholds: Area (H a)

rk
a
m
n
e
D

d
n

inla
F

y
n
a
m
r
e
G

d
n
ela

r
I

K
U

n
ai
p
S

Italy

al
g
rtu
o
P

s
d
n
a
rl
e
eth
N

a
ri
st
u
A

al)
W
m (
elgiu

B

Airfield Thresholds: Runway Length (m)

y
n
a
m
er
G

d
n
ela
Ir

aly 

It

s
d
n
rla
e
h
et
N

al
g
rtu
o
P

n
e
d
e
w
S

Threshold

Mandatory

Indicative

Exclusion

Threshold

Mandatory
Mandatory

Indicative
Indicative

Exclusion

3.2.19 Where  Member  States  use  a  case-by-case  approach  to  screening  Annex  II
projects using  Annex III and other screening criteria, these  are usually  supported  by
indicative or guidance thresholds. Here too there is considerable variation of approach
across  the  EU.  The  screening  criteria  developed  and  used  by  some  Member  States

44

extremely  complex  and  are  often  combined  a  number  of  factors.  For  example,  the
mandatory threshold for deforestation in Denmark is:

“if  area  affected  is  older  than  20  years  and  over  30ha,  in  an  afforestation  area
designated in a regional plan and where a comparable area of at least the same size is
not afforested, unless the relevant state authority declares that the forest to be cleared
is without significant forestry, biological, landscape or recreational value”.

Project Specification

3.2.20 The  two  earlier  Commission's  reviews  into  the  operation  of  85/337/EEC
discovered a number of issues relating to the interpretation of the definitions of some
project types. There were particular concerns over the definitions of industrial estate
development  projects  (Annex  II  10[a])  and  urban  development  projects  (Annex  II
10[b])  The  Commission’s  questionnaire  for  this  current  review  specifically  asked
Member  States  for  information  on  the  operation  of  these  two  categories.  The
responses  are  varied  but  it  would  appear  that  those  concerns  over  interpretation
remain. For example, there appeared to be a degree of concern as to whether projects
outside towns and villages can be categorised as “urban development projects”. Based
upon  the  broad  interpretation  of  the  Directive  required  by  the  ECJ,  an  urban
development project should be seen as a project that is urban in nature regardless of
its  location.  While  many  Member  States  still  have  problems  with  the  definition  of
these project categories, only three consider that any further specification is necessary.
Most of the Member States prefer the discretion to produce their own definitions. One
of the respondents who felt that further specification was necessary argued that it was
needed  in  order  to  achieve  greater  harmonisation  and  consistency.  One  respondent
argued that the components of an urban development – roads, car parks, buildings etc
-  are  more  suitably  assessed  at  the  SEA  level  of  a  development  plan.  Few  of  the
Member  States  appear  to  have  provided  further  clarification  of  the  description  of
10(a) industrial estates. Austria has defined industrial or business parks as

”areas that are developed by a builder and operator and are provided with the required
infrastructure for the joint industrial or business utilisation by several companies, that
are characterised by spatial proximity and form an operational or functional unit”

Table 8, below, provides examples of the type of projects that Member States include
under 10(b).

Summary of Main Findings: Project Specification

While  most  Member  States  have  experienced  difficulties  with  the  interpretation  of
Annex  10  (a)  (industrial  estate  development  projects)  and  Annex  II  10  (b)  (urban
development projects), the approach taken by the Member States on how to tackle this
issue varies. It seems that most prefer that such definition is left to the Member States
in accordance  with their own economic and social aspects to take into consideration
when considering a project type as well as its threshold.

Action: See recommendation 5.4.2.(j).

45

Table 8. Annex II 10b Projects Identified by Selected Member States

a
i
r
t
s
u
A

m
u
i
g
l
e
B

k
r
a
m
n
e
D

d
n
a
l
n
i

F

e
c
n
a
r
F

y
n
a
m
r
e
G

e
c
e
e
r
G

d
n
a
l
e
r
I

d
n
a
l
r
e
h
t
e
N

l
a
g
u
t
r
o
P

n
i
a
p
S

K
U

(cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1)

(cid:1) (cid:1) (cid:1)

(cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1) (cid:1)

Shopping Centres

Car Parks

Housing Developments

(cid:1) (cid:1)

(cid:1) (cid:1) (cid:1) (cid:1) (cid:1)

Sports Stadia / Arenas

(cid:1)

(cid:1) (cid:1)

Business Parks/Offices

Industrial Estates

(cid:1) (cid:1)

(cid:1)

Universities

Hospitals

Theatres / Cinemas

Holiday Village /

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

Leisure Centres

Greenhouses

Sensitive Area

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1) (cid:1)

(cid:1)

(cid:1) (cid:1) (cid:1)

(cid:1)

3.2.21 Annex  III,  as  introduced  by  97/11/EC,  includes,  as  a  mandatory  screening
criterion, ‘the environmental sensitivity of geographical areas likely to be affected by
projects’  and  goes  on  to  list  the  matters  that  need  to  be  considered  in  the  screening
process  including  special  protection  areas  designated  under  the  Birds  and  Habitats
Directives.  Several  of  the  Member  States  (including  Austria,  Germany,  Ireland,
Netherlands,  UK)  have  expanded  on  the  concept  of  ‘sensitive  area’  referred  to  in
Annex  III  and  incorporated  it  into  their  own  legislation.  The  Netherlands  has
transposed the requirements of the Annex into an exhaustive list of sensitive areas laid
down in ‘Structuurschema  Groene Ruimte’, which is translated into policy papers at
the  provincial  level  (provincial  ecological  structure).  In  the  UK,  the  implementing
Regulations include a definition of sensitive areas which has nine headings (including
Natura  2000  sites,  other  Sites  of  Special  Scientific  Interest,  Areas  of  Outstanding
Natural Beauty etc.). The purpose is to require all proposed development in or partly
in a sensitive area to be screened, even if it is below the exclusion threshold.

46

Summary of Main Findings: Sensitive Area

Most  Member  States  have  incorporated  the  ‘sensitive  area’  concept  into  their  own
EIA legislation, and in many cases they have expanded on the concept to cover their
own nationally designated environmentally sensitive areas. Where countries make use
of  exclusion  (Green)  thresholds,  they  provide  a  clause  whereby  projects  that  fall
below  the  thresholds  still  have  to  be  screened  for  EIA  if  they  fall  within  or  near  a
sensitive area.

Consultation

3.2.22 Directive 97/11/EC introduced a number of new areas where consultation can
take  place  within  the  EIA  process.  While  there  is  no  mandatory  requirement  in  the
Directive for consultation at the screening stage, the fact that the competent authority
may need to  consider, on the  basis  of  Annex  III,  areas  outside  of  its  own  expertise,
would  suggest  that  some  consultation  with  expert  bodies  may  be  necessary.  Only
three Member States (Italy, Spain and Sweden) consult the public before arriving at a
screening  decision  on  Annex  II  projects.  One  reason  given  for  including  public
participation  during  screening  is  that  the  measure  of  what  constitutes  a  significant
effect  is  largely  subjective  and  its  determination  should  include  those  that  will  be
affected by the project. Some of the Member States publicise the fact that a screening
decision  is  to  be  made  and  the  public  have  an  opportunity  to  comment.  In  other
Member States the screening decision is seen as a wholly technical process where the
public are either ‘represented’ by public bodies or are given the opportunity to appeal
against  a  decision  through  the  courts.  As  noted  above  at  3.2.10,  in  some  cases  the
domestic legislation makes EIA for most Annex II projects mandatory and so there is
no screening decision on which the public can be consulted.

Summary of Main Findings: Consultation

Few  member  States  involve  the  public  concerned  with  the  screening  process  and
many see it as a purely technical decision.

Number of projects

3.2.23 Directive 97/11/EC extended both Annex I and Annex II project types and the
Commission  was  interested  to  know  whether  or  not  the  amended  Directive  has  had
any  effect  on  the  number  of  EIAs  being  carried  out  in  Member  States.  There  was
considerable  variation  in  the  nature  of  the  responses.  Around  half  of  the  Member
States  either  reported  or  anticipated  a  substantial  increase  in  the  number  of  EIAs
following the implementation of the amended Directive. There has been a significant
increase in some Member States (Austria, Denmark, Spain and the UK). Not all of the
Member  States  could  provide  any  evidence  of  either  an  increase  or  decrease  in
numbers  as,  in  some  cases,  there  are  no  nationally  collected  data  on  EIA  activity.
Several Member States found quantification difficult, for various reasons including:

– 

– 

amended Directive not yet implemented;

lack of adequate data-base;

47

– 

– 

diversity  and  number  of  project  consent  procedures  under  which  EIA  takes
place; and

complications of regional dimension.

Several  Member  States  indicated  little/no  change  because  they  already  included  the
new  project  types  inserted  by  97/11/EC  in  their  original  legislation.  Many  Member
States had difficulty in differentiating between Annex I and Annex II projects in their
numbers. The average number of EIAs each  year post implementation varies greatly
between  Member  States,  from  over  7000  to  fewer  than  10.  There  are  very  many
reasons  why  such  variation  in  EIA  activity  exists  between  the  Member  States
including the relative economic conditions between Member States and the propensity
for certain projects to be more active in some countries than others. Several Member
States noted that comparisons over time could be distorted by trends in the economic
cycle, which could vary between countries. However, the wide variation in the levels
at  which  thresholds  have  been  set  has  clear  implications  for  the  amount  of  EIA
activity.

3.2.24 Some  countries  have  good  databases  on  EIA  activity,  which  allows  them  to
clearly list output both by Annex and by Project Type on an annual basis. This is very
useful for monitoring implementation, trends and for EIA research activities. In other
cases the collection of information in this field is less accurate and in many cases only
estimates  of  EIA  activity  have  been  provided.  Given  the  restrictions  above  and  the
lack  of  detail  provided  by  respondents,  the  best  estimate  of  the  average  annual
numbers before and after the amendment, are provided in Table 9.

Summary of Main Findings: Number of Projects

The annual number of EIAs appears to vary considerably between the countries of the
European Union. The lack of national monitoring of EIA activity and the application
of  the  EIA  Directive  in  practice  makes  it  difficult  to  speculate  on  the  reasons  why
there  are  such  wide  variations  between  Member  States  on  the  number  of  EIAs  that
have  been  completed.  The  variation  may  be  explained  by  the  relative  economic
conditions within countries, or it may also relate to the levels at which thresholds have
been set.

Action: See recommendation 5.4.2. (b) and, (k).

48

Table 9: Change in the amount of EIA activity (Estimated Numbers Provided by
Member States)*

Country

Austria

Belgium-Brussels

Pre-1999

Per year

Post-1999

Per year

4

20

10-20

20

Belgium-Flanders

no data

20% increase

Belgium-Walloon

Denmark

Finland

France

Germany

Greece

Ireland

Italy

Luxembourg

Netherlands

Portugal

Spain **

Sweden

UK

63

28

22

20% Estimated increase

100

25

6-7000

6-7000+

Estimated more
than 1000

Estimated increase

1600

140

37

20

70

87

120

1600

178

No data

20

70

92

290

3000-4000

3000-4000

300

500

*This table should be  treated  with  caution.  The  figures  provided  show  a  lack  of  systematic  reporting
and transparency across the 15 MSs and in some cases are only estimates of activity or represent the
national level and not the regional one.

**Spain: No precise information available. For Regional level could be 20-30.000

49

3.3

Scoping

Procedures

3.3.1 The EU’s guidance document13 defines scoping as “the process of determining
the content and  extent of  the matters which should  be  covered  in  the  environmental
information to be submitted to a competent authority for projects which are subject to
EIA”  (http://www.europa.eu.int/comm/environment/eia/eia-guidelines/g-scoping-full-
text.pdf).  The  purpose  of  scoping  is  to  focus  the  environmental  assessment  on  the
main  or  significant  impacts.  The  scoping  process,  therefore,  requires  a  detailed
characterisation  of  a  project  and  its  receiving  environment  in  order  to  identify  all
potential  impacts  and  from  that  to  ascertain  which  of  those  impacts  are  likely  to  be
significant. Due to the complexity of impact identification and scoping it will often be
necessary for the developer to consult with the competent authority and other agencies
with  environmental  responsibilities  on  the  scope  of  the  assessment.  Most  of  the
literature  on  EIA  good  practice  also  advocates  consultation  with  the  public  on  the
scope  of  the  EIA14.  Article  5  paragraph  2  of  the  EIA  Directive  was  introduced  by
97/11/EC and provides for a formalised scoping procedure. Directive 85/337/EEC did
not have such a requirement although most Member States applied forms of scoping
in their national systems. The main purpose of introducing a scoping requirement into
the Directive was to establish an early contact and a certain co-operation between the
developer and the competent authority on key issues of importance in relation to the
information  to  be  provided  by  the  developer  and  examined  by  the  authority.  This
should happen before the developer submits the application for development consent.
This  process  is  intended  to  avoid  delays  later  on  in  the  procedure  and  to  ensure  a
certain  quality  and  the  completeness  of  the  information  to  be  provided.  The  EIA
Directive provides for two cases. On the one hand it requires competent authorities to
provide,  if  the  developer  so  requests,  an  opinion  on  a  list  of  the  information  to  be
submitted  later  on  as  an  “environmental  impact  statement”.  On  the  other  hand,  the
Directive  also  allows Member  States to  make  this  a  mandatory  procedure,  requiring
competent  authorities  to  provide  a  scoping  opinion  irrespective  of  whether  the
developer so requests. In the scoping process the Directive also requires that relevant
public  agencies  with  environmental  responsibilities  are  consulted  and  that  they  may
provide any information they have in their possession that may aid the EIA process.

3.3.2 Seven of the Member States have a mandatory scoping procedure in place. In
France there is a mandatory scoping procedure for certain types of projects (industry,
quarrying  and  certain  agricultural  projects).  Some  regions  in  Italy  have  mandatory
scoping, though it is not a national requirement. It should, however, be noted that in
many of the countries where mandatory scoping is in place, these provisions existed
in  the  original  EIA  legislation  and  have  not  been  affected  by  97/11/EC.  There  are
mixed opinions between Member States as to whether the introduction of the scoping
procedures  has  brought  improvements.  Many  respondents  believe  that  it  is  far  too
early to judge the  effectiveness  of  the process while others simply  state that as they
have always included a mandatory scoping stage in their EIA legislation they cannot

13

14

See CEC (2001) Environmental Impact Assessment Guidance on Scoping, Brussels, CEC.
See  Glasson,  J.  R.  Therivel  and  A.  Chadwick  (1999)  Introduction  to  Environmental  Impact
Assessment 2nd Edition, London, UCL Press, p.91.

50

                                                
make  a  worthwhile  comparison.  Some  of  the  respondents  were  of  the  view  that  the
introduction  of  the  scoping  phase  has  improved  the  quality  of  the  information
provided to the competent authority; however, they accept that they do not have any
hard  evidence  to  support  that  view.  The  introduction  of  scoping  procedures  has  the
potential for increasing the length of time taken up by the EIA process, however, there
is little evidence to suggest that in practice the introduction of the scoping stage has
affected the length of the EIA process.

Consultation

3.3.3 Consultation with the public during the scoping process takes place in half of
the  Member  States.  In  some  cases  this  is  a  legally  required  part  of  the  process
(Belgium – Brussels and Walloon regions, Denmark, Finland, Netherlands, Spain, and
Sweden). In Austria, Germany, Ireland and the UK relevant environmental authorities
or agencies are consulted but it is up to the competent authority to decide whether or
not  the  public  should  be  consulted  on  the  scope.  In  Finland  consultation  with  the
public  is  based  upon  the  publication  of  a  draft  scoping  document.  The  scoping
document is a work programme of how the assessment will be carried out and what
issues  it  will  deal  with.  The  public  have  an  opportunity  to  comment  on  the  scoping
document  and  make  suggestions  on  the  inclusion  or  exclusion  of  the  matters  to  be
covered by the EIA.

Methods

3.3.4 A  range  of  methods  appear  to  be  used  in  scoping  exercises  including
checklists,  matrices,  impact  chains  and  modelling,  with  expert  judgement  most
frequently relied upon. In many cases, no specific methodology is prescribed, partly in
recognition  that  various  techniques  may  be  appropriate  in  different  circumstances
(e.g. France, Denmark, UK, Belgium-Walloon). Approximately 50% of  the Member
States explicitly state that the guidelines of the Commission are used. Some Member
States have produced guidelines of their own – either independently (e.g. Netherlands)
or through adapting the Commission’s guidelines (e.g. Austria). Greece has produced
guidelines that set out the required information for different project categories, but for
each individual case these guidelines are expanded to suit the specific requirements of
the  case.  The  challenges  associated  with  addressing  impact  interactions  in  EIA  are
recognised by the Member States, including the issue of methodological uncertainties
and  the  need  for  effective  co-ordination  and  communication  between  the  different
impact assessors that are typically involved in an EIA (see Table 10) .

51

Table 10: Scoping Methodologies for Interaction of Impacts

Country

Guidanc
e

Austria

Yes

Methodologies

Comments

Checklists, matrices or
lists of questions to the
experts.

Most authorities as well as the applicants use the
Austrian  adaptation  of  the  EC-guidelines.  Some
Länder  have  developed  the  guidelines  further  to
include  practical  experience  and  specific  local
requirements.

Belgium

Expert judgement

Brussels

In  drawing  up  specifications  for  the  EIA,  the
competent  authority  will  require  that  impact
interactions  (both  positive  and  negative)  be
analysed.

Flanders

Each EIA-team includes an EIA-coordinator who
should  pay  particular  attention  to  the  interaction
of the different impacts. Use EC-guidelines

Walloon

Methodology  is  the  responsibility  of  the  EIA
author.

No  specific  methodology  is  prescribed. The  EIA
authorities  are  free  to  use  the  Commission
guidelines.  The  scope  of  the  EIA  is  required  to
include  the  elements  of  Annex  IV  and  the
proposals from the public.

No  specific  methodology  is  prescribed  -  the
strengths  of  different  approaches  in  differing
circumstances are recognised.

Federal agency for water science has issued brief
guidelines, specific to waterways.

Denmark

Annex 
participation

IV, 

public

Finland

France

Impact  chains.  Also
tables / descriptions of
secondary 
and
cumulative impacts.

Germany

Part

Greece

Ireland

Italy

Yes

Yes

Expert 
matrices, 
modelling

judgement,
and

Generally,  the  Commission  guidelines  for  the
assessment of indirect and cumulative impacts as
well as impact interactions are followed.

Guidance provided at national level in the form of
general guidance on information to be included in
EIS and Advice Notes on Current Practice

guidelines 

Codified 
developments.  General 
preparation.

exist 

for 
guidelines 

specific
in
are 

Luxembourg

No details available.

52

Netherlands

Portugal

Spain

Sweden

UK

Yes

Yes

Various, depending on
consultants 
/
developer.

Competent  authority  provides  guidance  for  each
case  on  the  advice  of  the  independent  EIA
Commission

Commission guidelines are used in general terms.

No details available

Use EC-guidelines

suggests 

Guidance 
authorship 
interrelationships between effects.

alternative 
to 

approaches 

editorial 

/
clarifying

Summary of Main Findings: Scoping

There  is  a  wide  variety  of  approaches  to  the  scoping  stage  of  EIA.  It  would  appear
that  some  Member  States  appreciate  the  value  of  an  early  scoping  stage  more  than
others. There appears to be  little  real  commitment  to scoping in those countries  that
have not made it mandatory and have not provided for public consultation within their
voluntary  scoping  stage.  However,  some  of  the  Member  States  show  the  opposite
tendency and require the publication of draft scoping reports or even draft EISs. There
is also a  recognition  in  some  Member  States  that  public  involvement  at  the  scoping
stage identifies the issues that are ‘significant’ to the people who will have to live with
the project and not just the ‘experts’ who will not.

Action: See recommendation 5.4.2. (d), (f) and (j).

53

3.4

Review of Environmental Information

Introduction

3.4.1 There is no requirement under the EIA Directive for Member States to make
provision  for  the  formal  review  of  the  adequacy  of  the  environmental  information
supplied to the competent authority by the developer. However, 97/11/EC introduced
new mandatory minimum information requirements that establish an implicit need for
review as a project may not be authorised if the information set out at Article 5(3) is
not  complete.  Among  these  minimum  information  requirements  is  the  introduction
into  the  EIA  Directive  by  97/11/EC  for  a  consideration  of  information  on  the
alternatives  that  have  been  studied  by  the  developer  (discussed  below  at  paragraph
5.1). The EU’s guidance document15 defines environmental information review as:

“the  process  of  establishing  whether  the  environmental  information  submitted  by  a
developer to a competent authority, as part of an EIA procedure, is adequate to inform
the decision on development consent.

(http://www.europa.eu.int/comm/environment/eia/eia-guidelines/g-review-full-
text.pdf).

The  EIA  Directive  does  not  prescribe  the  manner  in  which  the  environmental
information  is  supplied  by  the  developer  but  in  common  with  international  best
practice, most Member States expect this information to be supplied in the form of a
single report as an Environmental Impact Statement.

Arrangements for Review

3.4.2
In  the  majority  of  Member  States  the  competent  authority  is  ultimately
responsible for considering the adequacy of the information provided, including legal
compliance.  The  majority  of  Member  States  have  no  systematic  EIA  review
procedure  and  there  is  great  diversity  of  practice  for  ensuring  compliance  with  the
Directive.  All  the  Member  States  referred  to  existing  general  provisions  for
compliance  and  quality  assurance  through  consultation  with  relevant  governmental
authorities,  Non  Governmental  Agencies  (NGOs)  and  members  of  the  public.  Most
had not implemented or were not planning to implement a systematic and mandatory
EIA  review  procedure  and  several  Member  States  stated  that  they  had  not
implemented an obligatory EIA review, as it was not a requirement of the Directive.

3.4.3 The review system used by the Member States is provided at Table 11. Some
Member States have strict control points within a formal review process incorporating
an independent evaluation of the EIS. However a number of Member States leave the
decision on the adequacy  and  completeness  of  the  environmental  information  to  the
competent  authority,  with  no  other  control  points.  Most  Member  States  clearly
indicate  that  where  the  information  is  not  considered  satisfactory  the  competent
authority can request additional information, and should this subsequently prove to be
inadequate,  then  the  application  can  be  refused.  In  many  cases,  EIA  approval  is  a
stage in the consent process, without which consent cannot be pursued.

15

See CEC(2001) Environmental Impact Assessment Guidance on Review, Brussels, CEC.

54

                                                
Table 11 Review of Environmental Information

Member State

Austria

Belgium-

Denmark

Finland

France

Germany

Greece

Annex  IV  has  been  transposed  into  national  law  (Art.  6  of  the  EIA  Act)  and  every
Environmental Impact Statement (EIS) is checked against these requirements by a team
of internal and/or external experts of the EIA authority and co-operating authorities who
have to produce a summary assessment of the likely significant environmental effects.
Brussels
A  College  of  experts  from  the  different  regional  and  local  Administrations  concerned
(constituted  as  a  "Comité  d'Accompagnement  de  l'étude  EIA")  writes  a  specifications
brief for the EIA, and this is submitted to a public inquiry and for the official advice of
the Administration(s) concerned. It is only when this College considers the EIA complete
(i.e. with sufficient information and of sufficient quality) that it declares this part of the
procedure  complete.  A  second  public  inquiry  takes  place  before  the  Administration
delivers the licence.
Flanders
The current EIA-regulations contain the transposition of the EIS-content-requirements of
the  EIA-Directive.  The  drafting  of  an  EIS  is  guided  by  an  informal  process  which
includes a refining of the legal scoping requirements and a check of the draft-EIS before
it is submitted for formal approval by the EIA-Unit of the Environment Administration.
Walloon
The quality and sufficiency of information is checked by an independent body of experts
in the different disciplines of the environment

The  impact  statement  has  to  fulfil  the  content  of  Annex  IV  to  the  Danish  Ministerial
Order No. 428 of 2 June 1999, which is almost similar to Annex IV of the Directive.

The co-ordinating authority (Regional Environmental Centre) judges the adequacy of the
environmental  information,  but  ultimately  it  is  for  the  competent  authority  to  judge  the
adequacy  of  the  information  –  often  developers  submit  a  draft  EIS  to  the  competent
authority for comment.

Control  on  the  quality  of  environmental  information  operates  at  different  levels
depending on which is the authorising authority. It will be their responsibility to ensure
the adequacy of the information.

The licensing procedure will only begin when all legal requirements, including providing
of  all  relevant  information  according  to  Annex  IV  of  the  Directive,  have  been  fulfilled
and the competent authority has stated that the proposal is complete.

The competent authority reviews the adequacy and quality of each EIS in regards to:

(cid:1) 

(cid:1) 
(cid:1) 
(cid:1) 

the  environmental  information  requirements  set  out  in  Annex  IV  of  Dir.
97/11/EC,
any existing guidelines for EIS for specific project types,
all legal requirements,
the sufficiency of scientific and technical information.

Ireland

Guidelines (and accompanying  Advice Notes) are  designed  to  assist  consent  authorities
in considering the adequacy of EISs submitted to them.

Italy

No formal review but EIS must meet the requirements of the Regulations

Luxembourg

No information

Netherlands

Project  specific  guidelines  are  produced  for  the  EIS  as  a  requirement  of  the  Dutch  EIA
legislation.  The  competent  authority  has  to  formally  accept  the  EIS.  This  is  done  by
checking the contents of the EIS with the specific guidelines and the review carried out by
the independent EIA Commission.

55

Portugal

Spain

Sweden

UK

The Ministry of the Environment has 20 days working days to declare if the EIA meets
the requirements of the laws or if it needs further information.

The  Impact  Study  is  checked  against  the  terms  established  in  the  Scoping  stage,  which
includes public participation.

The ‘Environmental Examination Delegation’  within the County  Administrative  Boards
and the Environmental Courts decide whether an EIA fulfils the requirements of the EIA
legislation.

Ultimately it is for the competent authority to decide the best means of ensuring that the
environmental information is adequate and fit for purpose

In  the  UK,  for  example,  determination  of  the  development  application  is  suspended
pending that further information. In Italy, development consent is temporarily refused,
pending the supply of adequate information; in Spain a project cannot be  authorised
until the information  is  complete.  In  the  Netherlands  the  competent  authority  has  to
formally  accept  the  EIA.  The  EIS  is  first  checked  against  the  project  specific
guidance.  If  the  EIS  is  not  satisfactory,  the  EIS  is  not  accepted  and  must  be
supplemented. After  acceptance,  the  competent authority  has  to  ask  the  independent
EIA Commission for advice on the quality and adequacy of the information. In recent
years the independent EIA Commission has found that between 30% and 40% of EISs
are inadequate and has advised the competent authority to seek further information. In
France,  conditions  for  permission  refusal  have  developed  from  the  work  of
administrative  tribunals  and  these  procedures  have  defined  matters  concerning
presentation  and  content;  more  precise  arrangements  are  available  for  classified
installations.  Note,  however,  that  in  Belgium-Brussels  it  is  not  the  developer  who
supplies  the  information  but  an  independent  and  appropriately  qualified  consultant,
working to a brief drawn up by the College of Experts from relevant Administrations.
The  College  evaluates  the  quality  and  adequacy  of  the  information  provided.  In
Finland development  consent could not  be refused on  grounds of  inadequate quality
or  sufficiency  of  information.  The  Spanish  procedure  for  judging  quality  and
sufficiency of information is to review the contents of the  Impacts Study against the
terms  established  in  the  scoping  phase,  plus  the  results  of  public  participation  and
review.

3.4.4 Under half of the Member States have carried out any research into the quality
and sufficiency of the environmental information or EISs submitted to date (see Table
12).

56

Table 12: Research on the Quality of Environmental Information

Member
State

Publicn.
date

Status of research

Austria

2000 
(for
statements
1995-99)

Quality assessed “positively”. Information supplied considered to be of
higher quality than that for conventional licensing procedures

Valuable co-operation/co-ordination, but very time consuming

The design of EIA projects is considered to be more “environmentally
aware” than those without EIA, and the documentation is better.

A  second  triennial  report  was  submitted  to  Parliament  in  September
2002

Denmark

Oct. 2002

Research currently on-going

Finland

2001/

2002

1993

Ireland

Italy

Nether-
lands

UK

1995

Research  had  shown  regional  variation  in  quality,  resulting  from
varying  qualification  at  Regional  Environment  Centres.  Staff  training
has led to an improvement in quality

Research  commissioned  by  predecessor  body  of  Environmental
Protection  Agency  in  early  1990s.  There  is  a  general  view  that  the
quality  of  environmental  statements  has 
improved  substantially
subsequent to this.

No  government-sponsored  research,  but  some  by  professional
associations, e.g. Association of Environmental Analysts

Each EIA is reviewed by the independent EIA Commission. Where an
environmental  statement  is  inadequate,  the  corresponding  “negative
advice” is publicly available including on the Internet. Annual reports
of 
the  EIA  Commission  have  reviewed  overall  adequacy  of
environmental statement: for 1999-2001, about 40% of environmental
statement were judged to be inadequate. Independent committees have
reviewed the effectiveness of the Dutch EIA process on two occasions.

Research  commissioned  by  D  of  Environment  had  shown  that  at  that
time  environmental  information  was  sometimes  inadequate  for  the
purposes  of  the  planning  authorities  –  best  practice  guides  were  then
published.

57

Summary of Main Findings: Review of Environmental Information

Directive 97/11/EC introduced new minimum requirements for the information to be
supplied  by  the  developer.  Failure  to  provide  adequate  information  constitutes
grounds  for  refusal  of  development  consent  in  the  majority  of  countries,  under  a
variety of arrangements. Some Member States have formalised a review procedure to
ensure  that  the  environmental  information  supplied  to  the  competent  authority  is  in
compliance  with  the  Directive.  However,  since  there  is  no  explicit  obligation  in  the
Directive to provide for such a review, there is no harmonized approach to the matter.
Whilst  Annex  IV  guidance  underlies  requirements  for  adequate  assessments,  this
rather  basic  information  has  been  built  upon  (e.g.  with  checklists)  in  only  some
Member States. The review of the information provided is, in all but a few Member
States, left to the competent authority and in many Member States they are asked to
do this without the aid of specific review check lists or review criteria. Some research
has been conducted in about half of all Member States on the quality of information
contained in environmental statements and on the overall quality of the assessments.
Where such studies have taken place, it has shown that up to 50% of EIS do not fully
comply with the requirements of the Directive.

Action: See recommendation 5.4.2. (e).

3.5

Decision Making

3.5.1 The  purpose  of  EIA  is  to  provide  information  about  the  environmental
consequences of an action to decision-makers in advance of the decision so that that
information  can  influence  the  decision  making  process.  Article  8  requires  that  the
environmental  information  supplied  by  the  developer  (the  Environmental  Impact
Statement) and the consultation procedure required by Articles 6 and 7 are taken into
consideration  in  the  consent  procedures.  Although  the  Directive  focuses  on
environmental  matters,  it  does  not  make  the  consideration  of  the  environmental
dimension more important than other considerations that a competent authority has to
take account of when making a decision. Many of the respondents pointed out that in
decision making over development projects, other societal or economic benefits also
need to be considered. What makes the difference, however, is the fact that a separate
Directive focuses on and highlights the consideration of likely environmental effects
in decision-making. The vast majority of Member States do have legislation in place
that provides for refusal of development consent in cases where serious environmental
harm is unavoidable.

3.5.2 The  Commission’s  survey  invited  Member  States  to  explain  how  delays
between environmental assessment and the consent for the project are dealt with and
how delays between consent and construction  or operation  are handled. Such delays
have important implications for the outcome of the EIA process and the authorisation
of  major  projects.  During  long  periods  of  delay  the  receiving  environment  may
change and the environmental information on the baseline conditions may no longer
be  relevant.  This  will  have  implications  for  the  accuracy  of  any  predictions  of
environmental effects and on the relevance and effectiveness of mitigation measures.

58

On the basis of the questionnaire responses, there appear to be four broad approaches
to dealing with delays between environmental assessment and development consent:

(i)

in some systems, theoretically, there should be no delay;

(ii)

(iii)

a time limit is imposed upon the consent procedure ranging from 140 to
450 days;

the  competent  authority  reviews  and  assesses  the  information  to
determine  whether  it  is  up  to  date,  requesting  additional  information
where  necessary.  This  is  the  most  common  approach  adopted  in  the
Member States and when there are significant changes to the proposal,
then typically a new EIS is required;

(iv) no special provisions are made for dealing with delays.

3.5.3 Once  a  consent  is  issued  for  a  project  the  decision  is  normally  binding  and,
unless  specific  measures  are  in  place,  any  additional  or  different  environmental
impacts are therefore not capable of being assessed and considered (unless there  are
changes  or  extensions  to  the  project  during  that  time  that  are  likely  to  give  rise  to
significant environmental effects and thus a new EIA). In circumstances, where delays
between development consent and the construction or operation of a project are very
long, they may be more serious than delays before authorisation. There is a diversity
of  practice  in  dealing  with  such  delays  and  the  questionnaire  responses  reveal  the
following main approaches:

(i)

a common approach in the Member States is to attach a time limit on
the  validity  of  a  consent.  In  some  instances  the  time  limit  is
discretionary, whilst in other systems it is fixed, and can vary between
2  and  5  years.  In  most  cases,  after  a  fixed  time  period  additional
environmental assessment work will be required;

(ii)

additional conditions can be made if circumstances change by the time
of construction;

(iii) no  special  provisions  are  made  for  delays  and  the  EIA  cannot  be

‘reopened’ after consent is given;

(iv)

separate legislation exists for EIA and for permitting, and a significant
delay between permitting and project construction is beyond the scope
of the EIA legislation.

3.5.4 France has issued guidelines for road developments where there is likely to be
a long time span between initial project conception and final construction / operation.
The guidelines advise on how to ensure continuity in the EIA over this period, and to
fill the gaps when the project passes between different teams involved in the project.
The approach has been piloted in four known cases. Table 13 provides information on
how each Member State deals with delays.

59

Table 13: Dealing With Delays

Country

Comment

Austria

Belgium -

Denmark

Finland

France

Germany

A maximum time limit of 6 months (for the simplified procedure) or 9 months exists in law
covering the consent procedure. If environmental conditions change between the assessment
and  consent,  new  environmental  information  must  be  produced  and  considered  before  a
consent  decision  is  made.  The  competent  authority  can  attach  time  limits  to  a  consent  (or
parts  of  the  consent)  to  prevent  any  unnecessary  delay  between  development  consent  and
construction / operation.

Brussels
Legally  there is a  maximum period of  450 days  between  the  application  (when  the  EIA  is
declared  complete)  and  the  development  consent.  This  period  includes  the  period  for  the
reassessment of the EIA specifications, the two public inquiries and the EIA itself (about six
to eight months for the EIA).

EIA  legislation  indicates  that  there  cannot  be  more  than  2  years  between  the  development
consent  and  the  commencement  of  construction.  If  significant  changes  are  made  to  a
proposal  so  that  environmental  impacts  are  different  from  the  original  project  then  a  new
EIA is required. The competent authority can modify conditions attached to a development
if circumstances have changed by the time of construction (rarely used in practice)

Flanders
Where  there  is  a  delay  between  the  final  approved  EIS  and  development  consent,  an
updating note is added to the EIS. In cases where there are significant changes to the original
project outline or design, stakeholders are consulted in order to decide  whether  a  new  EIS
will be necessary. Once development consent is gained, the project must commence within
three years.

Walloon
Following submission of the final EIS, the competent authority has a maximum of 140 days
to make its decision. Where the development becomes operational  more  than  5  years  after
consent  is  given,  or  if  it  subsequently  becomes  apparent  that  a  substantial  impact  has  not
been considered in the EIA, then an addendum to the original EIS report must be made.

An  EIS  remains  valid  until  the  first  revision  of  the  regional  plan,  unless  the  competent
authority decides to keep it valid for another 4 years (the regional plan must be revised every
4  years).  Development  consent  following  an  EIA  is  valid  for  3  years,  after  which  a  new
permission must be sought.

If  there  is  a  considerably  delay  between  the  EIA  and  development  consent,  the  competent
authority should check whether environmental conditions and the project itself have changed
since the impacts  were assessed. Where there is a  major change to the  project, a  new  EIA
may  be  required.  Separate  legislation  exists  for  EIA  and  for  permitting,  and  a  significant
delay  between  permitting  and  project  construction  is  beyond  the  scope  of  the  EIA
legislation.

There should be no delay between the EIA and development consent (the EIS is a part of the
dossier  presented  by  the  developer  for  consideration  for  development  consent,  and  the
information provided must be accurate and up to date). Development consent remains valid
for  3  years,  after  which  additional  environmental  assessment  work  is  required.  For  roads,
guidelines  have  been  published  to  advise  on  how  to  ensure  continuity  in  EIA  from  draft
design through to the operational stage.

Generally no delay between EIA and development consent. The competent authority should
check  whether  environmental  conditions  and  the  project  itself  have  changed,  and  any
changes should be taken into consideration. After project consent, significant changes to the
project or environmental conditions occur prior to construction / operation may necessitate a
consent procedure that  may include  an  EIA.  A  planning  consent  ceases  to  be  valid  after  5

60

Greece

Ireland

Italy

years.

The  competent  authority  reviews  the  EIS  and  consults  with  relevant  authorities  to  assess
whether the information is up-to-date. Where necessary, the competent authority may ask for
the EIS to be updated. The EIA leads to an environmental permit  with conditions attached
imposing environmental terms which are given an expiry date, hence necessitating a review
if  there  should  be  a  considerable  delay  between  the  outcome  of  the  EIA  and  the  final
development consent.

Following  development  consent,  if  it  is  ascertained  that  due  to  changes  in  environmental
conditions  the  environment  is  not  sufficiently  protected  by  the  imposed  provisions  of  the
environmental  permit,  additional  terms  may  be  set  to  take  into  account  the  altered
conditions. The expiration of the environmental permit may also lead to a new EIA process
if substantial changes have occurred to the project or to the receiving environment.

The  EIA  is  carried  out  during  consideration  of  the  development  consent  application  and
there  is,  in  effect,  no  delay  between  the  environmental  assessment  and  the  development
consent. No more than 5 years between the development consent and the commencement of
construction.

No  provision  is  made  in  the  EIA  legislation  for  either  delays  between  the  environmental
assessment  and  development  consent,  or  for  delays  between  consent  and  construction  /
operation of the project.

Luxembourg

No details available

Netherlands

Portugal

Spain

Sweden

UK

If there is a considerable delay between the environmental assessment and the development
consent,  the  competent  authority  may  ask  for  additional  information  or  an  additional  EIS.
Where  there  is  a  significant  change  in  the  activity  proposed  a  completely  new  procedure
may be started. A delay between development consent and construction / operation cannot
lead to changes in the EIS.

The  Minister  of  the  Environment  must  issue  an  Environmental  Impact  Declaration  to  the
developer, and this remains valid for 2 years. If the competent authority subsequently has not
granted  development  consent  within  the  2  year  period  covered  by  the  Declaration,  then  a
new EIA is required in the case of private  sector proposals. For  public  sector projects,  the
EIS  is  re-examined  and  if  conditions  have  not  changed  the  Environmental  Impact
Declaration remains valid (n.b. this has not yet occurred in practice as the law is only now
around 2 years old).

Case by case consideration

No  special  provisions  are  made  for  delays  between  the  environmental  assessment  and
development consent. competent authority can place conditions on the implementation of the
project.

The  competent  authority  can  request  further  information  at  any  point  until  such  time  as  a
consent  decision  is  taken.  The  onus  is  therefore  on  the  competent  authority  to  ensure  that
prior to consent all likely significant effects are considered subject to current knowledge and
methods of assessment.

Once  development  consent  has  been  granted  the  developer  is  able  to  go  ahead  with  the
construction  phase.  At  that  stage  the  EIA  procedure  could  not  be  re-opened  (the  Directive
requires  assessment  prior  to  the  decision  being  taken  on  development  consent).  If  the
previously  unknown  effects  were  so  significant,  e.g.  that  they  would  have  major  and
irreversible  damage  on  a  protected  site  or  species,  then  arguably  it  would  be  open  to  the
competent  authority  to  consider  whether  the  consent  would  have  to  be  revoked,  subject  to
the provisions of national legislation.

The Regulations implementing the Directive for projects on uncultivated land set time limits
for starting and completing work following development consent, and provide for a review
of the consent if the site subsequently becomes a European Site (for nature conservation).

61

Summary of Main Findings: Decision Making

Without  formal  monitoring  of  the  outcomes  of  the  EIA  process  and  more  detailed
research,  it  is  difficult  to  assess  the  effectiveness  of  the  EIA  Directive  on  decision
making.  Nevertheless,  it  is  apparent  from  the  respondents  that  the  environmental
considerations  raised  by  the  EIA  process  are  balanced  against  other  societal  and
economic considerations in decision making. The responses to the questions relating
to  delays  between  the  production  of  the  required  EIA  information  and  the  decision,
and  between  the  decision  and  the  commencement  of  development  have  shown  that
these  are  tackled  very  differently  in  the  Member  States  and  constitute  an  area  of
potential  concern.  There  is  no  indication  from  the  Member  States  as  to  the  scale  or
frequency  of  delays  occurring,  there  appears  to  be  little  recognition  of  the
environmental  implications  of  these  problems,  and  there  is  little  consistency  of
approach in dealing with them.

Action: See recommendation 5.4.2. (h).

3.6

Summary of findings of arrangements for key stages

3.6.1 The evidence from this review is that there is very wide disparity in both the
approach and the application of EIA in the Member States of the EU. The  approach
used for  the screening  of  Annex  II  projects varies  considerably  in  terms  of  both  the
use and level of thresholds. A variety of approaches also exist for scoping, with very
few Member States requiring any public involvement in this important stage of  EIA
(the  Directive  does  not  require  such  participation  at  this  stage).  Very  few  Member
States  have  any  real  mechanisms  in  place  for  national  or  centralised  reviews  of  the
operation of their EIA system. Few Member States could provide accurate figures on
the number of EIAs that had been dealt with in their country over time or what type of
projects  have  been  subject  to  the  procedures.  The  review  of  the  adequacy  of  the
environmental information submitted by the developer is operationalised in a formal
way  in  very  few  Member  States.  The  influence  of  EIA  on  decision  making  and  the
outcome  of  decisions  requires  far  more  monitoring  and  research  by  Member  States
into the operation of EIA in practice.

62

4.0

OPERATION OF THE DIRECTIVE AS A WHOLE

In  this  section  of  the  report  the  arrangements  made  by  Member  States  for
4.0.1
dealing  with  key  aspects  of  the  EIA  Directive  are  discussed.  These  issues  relate
broadly to the efficiency of the operation of the Directive as a whole, although some
of the issues discussed here were introduced by 97/11/EC.

4.1.0 Alternatives

4.1.1 One of the main criticisms levelled at 85/337/EEC was that it did not require
developers  or  competent  authorities  to  examine  alternatives,  where  they  exist,  from
the outset of the development of EIA. In its original version, Article 5 paragraph 1 in
relation with Annex III required the developer, “where appropriate”, to give an outline
of the main alternatives studied and an indication of the main reasons for this choice,
taking  into  account  the  environmental  effects.  The  term  “where  appropriate”  for
studying alternatives was dropped by Directive 97/11/EC. In addition, the information
relating  to  alternatives  was  included  in  Article  5  paragraph  3  of  the  amended
Directive, which requires that the minimum environmental information to be supplied
to the competent authority as part of the EIA process must also contain this outline of
the main alternatives ‘studied by the developer’. Thus, Directive 97/11/EC has raised
the importance of a consideration of alternatives within the EIA Directive as a whole.
This  is  in  line  with  the  development  of  Community  environmental  legislation.  For
example  Article  6(4)  of  the  Habitats  Directive  requires  there  to  be  ‘an  absence  of
alternative  solutions’  before  a  project  adversely  affecting  a  Natura  2000  site  can  be
considered for authorisation16. Under Directive 76/464/EEC on Dangerous Substances
in Water, the ECJ has ruled in C-232/97 Nederhoff v Dijkgraaf en Hoogheemrader va
het  Hooghemraadschap  Rijnmland17  that  Member  States  may  legitimately  make  the
grant of authorisation of a discharge conditional on compliance with an obligation to
investigate  and  choose  the  alternative  solutions  which  are  less  harmful  to  the
environment.  A  consideration  of  alternative  solutions  is  therefore  of  growing
importance  within  EU  environmental  policy  and  law.  The  requirement  of  the
Directive 97/11/EC ‘to  give an outline of the main  alternatives  studied’  implies  that
the developer has examined the possible alternatives in so far as such information can
be  regarded  as  relevant  information  subject  to  the  criteria  in  Article  5(1).  These
criteria  include  inter  alia  specific  characteristics  of  a  particular  project  or  type  of
project  and  of  the  environmental  features  likely  to  be  affected.  The  requirement  ‘to
give  an  indication  of  the  main  reasons  for  the  choice,  taking  into  account  the
environmental  effects’  indicates  that  the  developer  has  to  give  reasons  for  why  a
certain alternative  that  exists  has  not  been  studied  and  why  a  certain  alternative  has
been chosen in the particular situation. In any case the developer cannot choose freely
whether or not he examines possible alternatives. The study of alternatives within EIA
is very wide ranging and the literature suggests that the following range of alternatives
should normally be studied:

– 

16

17

locations or alignments;

See  CEC  (200)  Managing  Natura  2000  sites:  the  provision  of  Article  6  of  the  "Habitats
Directive", Brussels, CEC
Case C-232/97, ECR 1999, I-6385, paragraphs 55-56

63

                                                
– 

– 

– 

– 

– 

site lay out and project design;

size and scale;

working or management arrangements;

timescale for construction and operation; and

‘do nothing’.

According  to  Wood  (1997)  the  consideration  of  alternatives  is  the  first  phase  of
project  design  and  management18  and  if  that  is  the  case  one  can  hardly  envisage
situations when developers could state that they have not ‘studied’ any alternatives at
all.

4.1.2 Responses  to  the  Commission’s  questionnaire  indicate  that  in  most  of  the
Member  States  there  is  now  a  legal  obligation  to  consider  alternatives,  taking  into
account  the  envisaged objectives  of the project,  subject to  the  development  consent.
Moreover, where it is not obligatory but has been carried out (France, Germany, UK)
the  assessment  must  be  documented.  Which  alternatives  are  assessed  depends
generally on the nature of the project – no location alternatives may exist for projects
such as roads or pipelines, in such cases alignment and design alternatives are studied,
including  processing  alternatives  and  layout  alternatives.  Alternatives  considered  in
some countries, (e.g. France) will include not only variations in the project, but also
different project types to achieve the same ends.

In countries where there is flexibility on timing  (e.g.  Finland),  it is generally
4.1.3
the case that where EIA is conducted earlier, more alternatives exist. In Spain and the
Netherlands,  the  alternative  which  does  least  environmental  harm  is  to  be  assessed.
The  competent  authority,  the  public  and  (in  the  Netherlands  -  the  independent
Commission  on  EIA)  may  contribute  to  determining  which  alternatives  are  to  be
assessed.  Also  in  the  Netherlands,  additional  information  may  be  required  from
developers  if  it  is  considered  that  the  information  supplied  on  alternatives  is
inadequate.  This  approach  to  the  identification  and  assessment  of  alternatives  –
similar  to  the  Best  Practicable  Environmental  Option  assessment  –  has  also  been
adopted by some UK project developers.

4.1.4 Assessment of the zero alternative is not obligatory in all countries. In Italy, in
order to ensure that it is considered, the zero alternative is assessed by the authority, if
this has not been done by the developer. A “do minimum” alternative is assessed in
Finland  together  with  up  to  perhaps  three  other  alternatives,  thus  helping  to  make
explicit the developer’s feasibility criteria.

4.1.5
In Greece, where no alternative has been identified for assessment, the lack of
feasible  alternatives  is  explained  –  this  accords  with  the  position  following  the
Nederhoff  case  (see  above)  that  where  a  developer  does  not  assess  alternatives  he
shall report the reasons for not  doing so,  including why such solutions do not  exist.
German planning law requires alternatives to be considered and particularly so where

18

Wood  C.  (1997)  Environmental  Imapct  Assessment:  A  Comparative  Review,  London,
Longman Scientific and Technical.

64

                                                
the decision is made under the planning approval procedure. In transport projects for
instance,  alternatives  are  assessed  during  preceding  planning  levels,  based  on  the
relevant  law.  In  future,  a  strategic  environmental  assessment  pursuant  to  Directive
2001/42/EC will be carried out for these preceding planning levels.

4.1.6 Several  Member  States  (e.g.  Sweden,  France)  see  some  potential  for  quality
improvement  in  the  assessment  of  alternatives.  In  other  States  (e.g.  in  Italy)  the
information  is  generally  adequate,  whereas  elsewhere  it  has  been  observed  that
information submitted on alternatives tends to be better for larger projects and where
government agencies act as the developer.

Summary of Main Findings: Assessment of alternatives

In some Member States the consideration of alternatives is a central focus of the EIA
process, elsewhere the consideration of alternatives appears to be less complete than it
might be. The majority of Members States require assessment of the zero alternative
and  other  project  alternatives,  which  may  include  options  for  location,  process,
design, etc. A variety of institutions and sometimes the public may contribute to the
the  most
selection  of  alternatives  for  assessment  and 
“environmentally friendly” alternative.

these  may 

include 

Application  of  Article  1  para.  5  and  exemptions  according  to  Article  2

4.2
para. 3

4.2.1 Article  1  paragraph  5  of  97/11/EC  provides  exemptions  for  projects  given
specific authorisation by the legislative process of a Member State, as that legislative
process  should  provide  the  environmental  information  sought  by  the  Directive.
Exemptions  from  the  EIA  Directive  are  also  provided  by  Article  2  paragraph  3  for
specific projects where the Member State has provided justification for exemption to
the Commission prior to making a decision. In general there appear to have been very
few cases in which  projects  have  been  excluded  from  EIA  on  the  grounds  that  they
have  been  approved  by  national  legislation  or  exemptions  from  EIA  made  under
Article  2  para.  3.  Only  Denmark,  Luxemburg,  the  Netherlands,  Spain  and  the  UK
have used Article 1 para. 5, but in a very limited number of cases. Spain has also used
Article  2  para.  3  for  an  emergency  situation  regarding  water  supply.  In  C-435/97
World Wildlife Fund and Others v Autonome Sektion Provinz Bozen and Others (the
Bozen Case) the issue at stake was whether an EIA has to be carried out in cases of a
mixed airport (military and commercial) and the ECJ concluded that the exemption in
Article 1 (4) only applies to projects, which serve mainly national defence purposes;
as  the  issue  of  a  mixed  use  was  in  question  the  ECJ  ruled  that  the  EIA  Directive
applied.

Changes  and  extensions,  Cumulation  with  other  projects  and  Salami-

4.3
Slicing

Introduction

4.3.1 There  are  clear  links  between  the  issues  of  ‘cumulation  with  other  projects’,
‘changes and extensions’ and ‘salami-slicing’ and the requirement under Article 3 to
assess both the direct and indirect effects of a project. There is now some useful case
law dealing with these issues – notably C-72/95 the Dutch Dykes case, C-431/92 the

65

Grosskrotzenburg case, C-392/96 Commission v Ireland and C-435/97 World Wildlife
Fund  and  Others  v  Autonome  Sektion  Provinz  Bozen  and  Others  (the  Bozen  case).
From these cases it is clear that any interpretation of ‘cumulation with other projects’,
‘changes  and  extensions’  and  ‘direct  and  indirect  effects’  should  be  made  on  the
consideration of the broad and wide purpose of the EIA Directive as a whole. In the
Bozen  case  it  was  ruled  that  the  measures  adopted  by  Member  States  must  not
undermine  the  objective  of  the  Directive,  which  is  that  “no  project  likely  to  have
significant effects on the environment, within the meaning of the Directive, should be
exempt from assessment..” (paragraph 45). In terms of the issues discussed here, the
‘meaning of the  Directive’ would  refer  to the requirement that all Annex  II  projects
that  are  likely  to  give  rise  to  significant  environmental  effects,  based  on  a
consideration of the criteria set out in Annex III, should be made subject to the EIA
procedures.

4.3.2 The ECJ rulings also suggest that in providing the EIA Directive with a wide
and broad purpose, Member States should apply that wide and broad interpretation to
what  constitutes  a  ‘change  or  extension’,  the  ‘cumulation  with  other  projects’  and
‘direct  and  indirect  effects’.  This  will  also  be  true  when  a  large  development  is
composed of many individual projects that, while individually falling below screening
thresholds,  when  considered  together  will  give  rise  to  significant  environmental
effects.  Following  C-392/96  Commission  v  Ireland,  this  line  should  be  followed  to
prevent  the  practice  of  salami-slicing  (i.e.  avoiding  the  measures  required  under  the
EIA Directive by considering individual elements of a project rather than a project as
a  whole  or  by  introducing  project  thresholds  slightly  below  those  in  the  EIA
Directive).  Therefore,  where  an  initial  phase,  or  subsequent  individual  phases,  of  a
project  are  beneath  national  screening  thresholds,  but  where  the  project  taken  as  a
whole is above these thresholds, or, on the basis of the criteria in Annex III, is likely
to  give  rise  to  significant  environmental  effects,  an  EIA  should  be  required.  The
Bozen  case  also  illustrated  the  point  that  a  change  of  use  of  an  existing  project  can
also be considered a ‘change or extension’ when that change is likely to give rise to
significant  environmental  effects  –  in  that  case  a  change  from  a  primarily  military
airfield to one for commercial passenger and cargo use.

Changes and extensions

4.3.4 Following  the  Grosskrotzenburg  case,  Directive  97/11/EC  introduced,  under
Annex II (13), a requirement to screen any changes or extensions of projects listed in
Annex  I  and  II  that  have  already  been  authorised,  executed  or  are  in  the  process  of
being executed and which may have significant adverse effects on the environment, to
consider  whether  or  not  an  EIA  is  required  for  those  changes  or  extensions.  The
change  introduced  clarified  that  in  addition,  changes  and  extensions  to  Annex  II
projects  follow  the  same  approach  as  those  to  Annex  I  projects.  Annex  II  (13)
provides  a  screening  qualification  that  is  not  present  in  the  remainder  of  the  EIA
Directive,  in  that  only  changes  or  extensions  that  may  have  significant  ‘adverse’
environmental effects will be subject to EIA. The general approach is that all projects
listed in Annex II require a screening by applying the Annex III selection criteria. The
additional element points in the direction of creating a two stage screening process. In
carrying out the screening one would first identify whether the change or extension is
likely to have  adverse environmental  effects and,  in the  affirmative,  continue with  a
determination  as  to  whether  those  effects  are  likely  to  be  significant.  As  with  the

66

to  determine 

introduced  under  97/11/EC, 

the
general  screening  provisions 
significance  of  any  adverse  environmental  effects  a  competent  authority  must  take
into  account  the  screening  criteria  set  out  in  Annex  III.  The  future  Directive
COM/2000/0839  on  public  participation  in  drawing  up  plans  and  programmes19,
amends inter alia the EIA and IPPC Directives to conform with the provisions of the
Aarhus  Convention.  This  Directive  will  introduce  a  new  paragraph  22  to  Annex  I
which requires an EIA where a change or extension meets the appropriate criteria or
thresholds set out in Annex I. For those changes and extensions not covered by Annex
I, the previous Annex II point 13 would continue to apply. In this way the spirit of the
Grosskrotzenburg case would be properly reflected in the EIA Directive.

4.3.5 Generally,  Member  States  employ  either  a  case-by-case  or  a  threshold
approach  to  considering  whether  to  require  EIA  where  there  are  changes  or
extensions.  However  a  few  Member  States  apply  a  combined  approach,  with  both
individual review of cases and threshold criteria for particular activities. It should be
noted  that  there  is  little  evidence  to  suggest  that  Member  States  have  specific
measures in  place to deal with the identification  of  ‘adverse’  effects  test  rather  than
normal tests used for identifying significant effects. Where thresholds are used, this is
set  as  a  proportion  (often  25%)  of  the  threshold  criterion.  Ireland  has  introduced
mandatory  thresholds  in  respect  of  Annex  II  (13),  but  it  also  has  a  “catch-all”
provision that EIA would be required in all those cases where the competent authority
considers that a sub-threshold development would be likely to give rise to significant
environmental  effects.  Where  EIA  is  a  regional  responsibility  (Belgium,  Germany,
Italy),  approaches  may  vary  between  regions.  In  Germany,  in  the  case  of  change  or
extension  of  a  project  subject  to  EIA,  the  change  or  extension  must  necessarily
undergo an EIA, if the change or extension itself reaches the thresholds of, e.g. Annex
1 to the German EIA Act for an obligatory EIA. Any other change or extension of a
project  subject  to  EIA  automatically  triggers  a  general  screening  procedure
concerning  the  question  of  whether  the  change  or  extension  must  undergo  an  EIA,
using the criteria in Annex II of the EIA Act, which corresponds to Annex III of the
EIA Directive.

4.3.6
In France, where is no consequent modification of capacity or characteristics,
EIA  is  not  required  but  it  is  required  where  modernisation  work  means  enhanced
capacity for an existing project (e.g. in terms of road traffic or industrial production).
For specific installations a new development consent and a new impact statement are
needed  when  there  is  an  important  change  in  production  level  or  in  the  industrial
process  used  - this decision is made  on  a case-by-case basis.  In  the  UK,  changes  or
amendments  to  Annex  II  projects,  that  may  have  significant  effects,  are  screened  to
determine whether significant effects are likely and if so, EIA is required. Exclusive
and indicative thresholds and criteria apply. Examples of thresholds for ‘changes and
extensions’ are provided in Box 2.

19

Common Position (EC) no. 41/2002 of 25 April 2002 adopted by the Council […] 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 Council Directives 85/337/EEC and 96/61/EC/* COM/2000/0839
final - COD 2000/0331 */ Official Journal C 170 E , 16/07/2002 P. 0022-0036.

67

                                                
Box 2: Examples of thresholds for changes and extensions of projects

Austria

A change or extension has to undergo an EIA, if it reaches 50% or more of the threshold laid down in
the  annex  for  new  projects  and  the  authority  determines  by  way  of  a  case-by-case  examination  that
significant harmful, disturbing or adverse effects on the environment are to be expected

Belgium

(Brussels and Walloon)

When a change or extension increase entails of at least 25% the threshold taken in consideration for the
EIA or if the change or extension mean that the project reaches the threshold, an new EIA is required.
Note that when an EIA has been conducted after an change or extension of 25%, the new limit of the
permit  is  the  threshold  for  change  or  extension.  That  means  that  if  for  example  a  first  threshold  is  a
production  of  100  T/day,  a  change  or  extension  that  leads  to  a  production  of  125  T/day  (or  more)
requires an EIA. The threshold for a further EIA will be 125 (or more) using the rule of 25%.

Ireland

These thresholds are:

(a) Any change or extension of development which would:-

(i)
and

(ii)

result in the development being of a class listed in Annex I or paragraphs 1 to 12 of Annex II,

result in an increase in size greater than 25 per cent, or

(iii)

an amount equal to 50 per cent of the appropriate threshold, whichever is the greater.

(b)  Projects  in  Annex  I  undertaken  exclusively  or  mainly  for  the  development  and  testing  of  new
methods or products and not used for more than 2 years.

(an increase in size is calculated in terms of the unit of measurement of the appropriate threshold.)

4.3.7 The  Directive  applies  to  “projects”,  and  these  are  defined  in  Article  I  as
“construction  works  or  of  other  installations  or  schemes”,  or  “other  interventions  in
the natural  surroundings  […]”.  Although  a  change  in  capacity  might  not  directly  be
the  result  of  construction  works,  it  may  be  that  other  complementary  woks  are
required to support the capacity change, e.g. additional  roads  and car parking  where
airport flight capacity is increased. Changes and extensions of projects usually imply
some  construction  works.  In  some  Member  States  changes  to  existing  infrastructure
projects  such  as  airports,  motorways,  railways,  waste-water  treatment  plants  or
industrial  projects  may  considerably  increase  their  capacity  without  any  significant
construction  works  (e.g.  increase  of  air  traffic,  introduction  of  an  additional  shift).
Whether or not this is considered a change or extension by Member States sometimes
depends upon the nature of the consent/permit given for the original project. In some
cases  it  is  the  capacity  of  the  new  project  that  is  authorised,  in  others  it  is  the
construction works – and any individual country may apply both systems to different
project types (e.g. France: roads are authorised in terms of number of lanes whereas
industrial  developments  are  authorised  in  terms  of  production  capacity.)  Where  it  is

68

capacity that has been authorised, an increase in output/use up to that capacity will not
require  an  EIA,  although  increase  beyond  that  capacity  (perhaps  involving  new
construction)  will  require  an  EIA.  There  may  be  a  threshold  set  for  increase  in
capacity demanding an EIA, for instance, in Austria an increase in 20,000 flights per
year  for  airports.  Case-by-case  examination  of  extensions  to  projects  will  take  into
account whether the site is in or near a protected area. On the specific question as to
whether  an  extension  involving  an  increase  in  capacity  that  did  not  involve
construction works would require an EIA, this would depend on the circumstances of
the case in Italy, Spain and Denmark. Elsewhere if there is no link to another consent
procedure, then an EIA would not be triggered (Netherlands, Belgium-Flanders, UK).
Note  that  the  Directive  applies  to  “projects”,  and  these  are  defined  in  Article  1  as
“construction  works  or  of  other  installations  or  schemes”,  or  “other  interventions  in
the natural surroundings [..].” Although a change in capacity might not directly be the
result of construction works, it may be that other complementary works are required
to  support  the  capacity  change,  e.g.  additional  roads  and  car  parking  where  airport
flight capacity is increased.

4.3.8
In Germany, changes to the operation of a project subject to an EIA, which do
not entail any significant construction works, can themselves be subject to an EIA as a
change  to  a  technical  facility.  This  applies  for  example  to  waste-water  treatment
plants and  industrial  plants.  In  Ireland,  where  use  intensifies  to  such  an  extent  as  to
constitute  a  material  change  of  use,  planning  permission  will  be  required  and  the
mandatory  threshold  provisions  in  relation  to  Annex  II  (13)  will  apply.  However,
infrastructure  projects  such  as  motorways  and  waste-water  treatment  plants  are
designed  within  certain  capacity  constraints  which  assume  some  growth.  Once
additional capacity is needed, Irish EIA legislative provisions apply.

Cumulation with other projects

4.3.9 The  screening  criteria  provided  by  Annex  II  of  the  EIA  Directive  must  be
taken  into  consideration  when  Member  States  set  screening  thresholds  or  base
screening of  Annex  II projects on a case-by-case  assessment. The  Annex  III  criteria
cover the characteristics of projects, the location of projects and the characteristics of
the  potential  impacts.  “The  cumulation  with  other  projects”  is  included  under
‘characteristics of projects’ and under ‘location of projects’, “the existing land use” is
included.  The  cumulation  with  other  projects  is,  however,  not  only  relevant  when
applying  screening  but  is  of  general  importance  for  any  project  subject  to  the  EIA
Directive  (see  for  example  Annex  IV,  which  asks  for  a  description  of  the  physical
characteristics of the whole project and the land-use requirements).

4.3.10 It  would  seem  that  different  Member  States  are  grappling  with  different
aspects  of  cumulative  effects,  as  they  become  apparent.  In  some  cases  the
consideration  of  cumulation  of  effects  only  takes  place  where  different  projects  are
being proposed and considered at the same time, while in others they are considered
when a new project is to be located near to an existing development. In some Member
States, where adjacent projects are similar then cumulation of impacts is considered,
but where adjacent projects are different, they are not assessed together. However in
Portugal there has been assessment of cumulative effects of wind farms and quarries
together.  Elsewhere,  “functional  links  “  between  projects  in  a  programme  are  a
deciding issue and the SEA Directive may provide relevant guidance in the future.

69

4.3.11 In  France  and  Portugal,  a  functional  link  between  projects  carried  out  at  the
same time will make necessary an assessment of the whole programme of projects –
suggesting  that  projects  not  functionally  linked  but  occurring  simultaneously  might
not be treated in the same way. Greece considers the possible accumulation of effects
from different types of project, but uses a boundary threshold for effect consideration,
e.g.  there  is  a  boundary  of  5  km  for  wind  farm  projects.  Nevertheless,  if  a  single
developer  proposes  similar  projects  at  a  distance  greater  than  5  km,  they  may  be
assessed  as  a  single  project  (unless  the  project  is  considered  as  an  extension,  when
proposed  by  the  existing  developer).  In  Italy  environmental  assimilation  capacity  is
used in connection with synergistic and cumulative effects. However, in Italy as in the
Netherlands  below-threshold  EIA  cannot  be  required.  In  the  Netherlands  competent
authorities take the cumulation of projects and of environmental effects into account,
especially in their case-by-case examination of whether an EIA should be carried out.
Analysis  of  the  mobility  around  the  project  may  be  helpful  to  evaluate  the
approximate number of people who will use new projects such as offices, shops and
housing.

4.3.12 In  Finland,  where  the  effects  of  a  series  of  simultaneous  projects  taken
together would exceed the stipulated Annex I thresholds, there may be a need to apply
EIA  (even  if  the  thresholds  for  one  project  would  not  exceed  these  thresholds).
Alternative approaches may be needed when projects are carried out separately and at
different  times,  particularly  when  the  individual  projects  do  not  in  themselves  give
rise  to  significant  environmental  effects.  Germany  distinguishes  various  cases  of
cumulation:

– 

– 

– 

cumulation  with  other  projects  at  one  location  (which  is  a  criterion  for
screening under no. 2 of Annex II to the German EIA Act). Cumulation with
another project at one location requires joint consideration of projects for the
respective  thresholds.  This  cumulation  must  be  described  in  the  EIA
documents to be supplied by the developer;

where  an  existing  and  a  cumulating  (additional)  project  have  the  same
developer  –  in  which  case  this  may  be  classified  as  a  single  project  or  a
change or extension;

a  combined  project  (e.g.  intensive  livestock  installations)  which  does  not
necessarily  have  a  single  developer.  The  project  now  under  application
usually represents a new independent project and  cumulation must be taken
into account in the EIA.

4.3.13 Austria has evolved an approach to cumulation of effects in  which there is a
requirement  for  the competent authority to carry out a  case-by-case  examination  for
cumulative  effects  where  (despite  non-fulfilment  by  an  individual  project  of  the
criteria in Annex I of the national EIA legislation), projects are in the vicinity of other
projects of the  same type (e.g.  two open-cast mines  or several car  parks), and  when
together these projects reach the relevant threshold value or fulfil the criteria of Annex
I  of  the  legislation.  Such  a  case-by-case  examination  shall  not  be  carried  out,
however,  if  the  capacity  of  the  project  submitted  is  less  than  25%  of  the  threshold
value in Annex I. Where a project is proposed adjacent to existing projects, then the
EIA  deals  only  with  the  additional  project,  not  with  the  existing  plant,  however,
taking into account the effects on the latter.

70

4.3.14 In  Sweden  and  Denmark,  the  screening  phase  includes  an  assessment  of
potential for cumulative effects,  whilst  in  Ireland  sub-threshold screening  provisions
may  have  the  effect  of  ensuring  that  the  cumulative  effects  of  projects  can  be
addressed as appropriate. On the other hand, in Spain, minor (small) projects within a
(short) distance to other projects which are either planned or already in existence, are
treated  as  new projects for  assessment.  It  is  recognised  in  some  Member  States  that
there may be conflict arising between the need for efficient treatment of projects using
a threshold-based system, and the need for case-by-case assessment where there is a
number  of  small  and  unrelated  projects.  Moreover,  the  inability  to  require  below-
threshold EIA might lead to cumulative effects being overlooked.

‘Salami-slicing’

4.3.15 Salami-slicing  includes the practice of dividing projects up into  two  or  more
separate entities so that each individual element does not require an EIA and therefore
the  project  as  a  whole  is  not  assessed.  It  also  refers  to  the  perceived  practice  of  a
developer obtaining permission for a project that is below a threshold, and therefore
not subject to EIA, and at a later date extending that project or its capacity above the
threshold limits. It would appear that there is  general  awareness of the possibility of
“salami-slicing” and of a need to put measures in place to prevent it, though several
countries are not confident that what has been done so far will be sufficient. Many of
the Member States appear to treat salami-slicing within the context of either a ‘change
or  extension’  or  as  cumulative  projects.  In  several  countries  the  domestic  EIA
regulations call for “the whole programme” to be assessed where there is a phased or
simultaneous series of projects which are inter-connected.  In Germany, for example,
where  an  infrastructure  project  is  prepared  in  different  stages,  the  individual  project
sections  are  only  to  be  defined  as  independent  partial  projects  if  each  of  the  partial
projects ‘forms a meaningful unit in its own right’. This follows rulings in the German
administrative  court.  In  the  Netherlands,  when  associated  developments  can  be
foreseen,  they are considered to  be,  and assessed  as,  part  of  the  project.  In  Sweden,
the screening phase assesses the scope of the project and its cumulative nature. Where
there  are  connections  between  projects  (e.g.  windpower)  they  may  be  treated  as  a
single  application.  This  has  included  treating  different  developers  as  a  single
developer. Similarly in the UK, legal precedent provides that, in determining the need
for EIA, an application should not be considered in isolation if it is “an integral part of
an inevitably more substantial development”.

4.3.16 In Portugal it is recognised that salami-slicing does happen, and that although
EIA cannot normally be required below the thresholds, if any authority considers that
a  project  is  being  split  to  avoid  EIA,  then  a  letter  is  sent  to  the  Ministry  for  the
Environment. The Ministers can,  and  do,  ask  to  apply  EIA  below  the  thresholds.  In
Austria  the  occurrence  of  salami-slicing  is  addressed  through  a  requirement  to  take
into consideration any changes or extensions to projects that have taken place during
the previous five  years.  In  Denmark  and  Finland  there is  the  view  that  case-by-case
screening  may  be  helpful  in  preventing  salami  slicing  while  in  Ireland  it  is  felt  that
setting  low  mandatory  thresholds  should  prevent  the  practice.  Whilst  there  is  no
specific  provision  against  “salami-slicing”  in  Spain,  as  all  parts  of  a  construction
programme  are  examined  on  a  case-by-case  basis  to  identify  this  problem,  it  is
believed that salami-slicing can be prevented.

71

Summary of Main Findings:

Changes and extensions

A variety  of  approaches  to  dealing  with  changes  and  extensions  are  used  across  the
EU, in line with existing requirements for other permits, the nature of the project and
the  nature  of  the  change  or  extension.  Both  specific  thresholds  (often  set  as  a
proportion  of  the  original  project’s  size)  and  case-by-case  screening  are  required  in
different Member States, or  a  combination of both.  Some Member  States  ask for  an
EIA  when  a  change  of  capacity  is  proposed  which  does  not  necessarily  involve
construction  works.  Where  capacity  changes  without  significant  construction  works,
whether  or  not  an  EIA  is  required  is  sometimes  determined  by  what  was  initially
authorised,  the  production  capacity  (perhaps  including  an  element  of  expected
increase in uptake) or project size (e.g. number of motorway lanes) or footprint.

Cumulation with other projects

There seems to be growing awareness of the issues raised by the requirement to assess
the  cumulation  of  impacts,  and  measures  have  been  put  in  place  in  many  Member
States  to  address  this.  Clear  and  comprehensive  guidance  for  developers  and  others
would  appear  to  be  lacking  in  most  Member  States,  e.g.  on  boundaries  for  the
assessment  area,  on  the  need  for  co-operation  between  developers  or  other
arrangements for making information available.

Salami-slicing

The  issue  of  possible  salami-slicing  is  recognised  by  the  Member  States  and  some
States have established measures to reveal and prevent such practice, including setting
low  thresholds  or  calling  for  assessment  of  “the  whole  programme”  where  this  is
appropriate.  There  may  be  a  close  relationship  with  the  assessment  of  cumulative
effects  and  changes  or  extensions.  Nevertheless,  very  few  States  have  concrete
evidence on how widespread the practice of salami-slicing may be.

Action: See recommendations 5.4.2. (a), (c), (d), (f), and (j).

4.4

Public participation

4.4.1 As  noted  in  Section  4  of  this  report,  consultation  with  the  public  may  take
place at various stages of the EIA process, with some Member States holding public
participation exercises during both the screening and scoping stages, while in others
the  public  are  consulted  during  scoping.  In  all  cases  Member  States  are  required  to
ensure that the public are consulted on the information gathered pursuant to Article 5
(EIS)  of  the  EIA  Directive.  Amendments  in  the  EIA  Directive  relating  to  public
participation are mainly designed to harmonise this Directive with the transboundary
provisions  of  the  Espoo  Convention.  Article  6  of  the  EIA  Directive  states  that
Member  States  shall  ensure  that  any  request  for  development  consent  and  any
information  gathered  in  accordance  with  Article  5  shall  be  made  available  to  the
public  within  a  “reasonable  time”  in  order  to  give  the  public  concerned  the
opportunity to express an opinion before the development consent is granted. The EIA

72

Directive does not provide a definition of either the ‘public’ or the ‘public concerned’.
Under  existing  arrangements  it  is  for  the  Member  States  to  determine  the  detailed
arrangements on: the nature of the “public concerned”; where the information can be
consulted; methods for informing and consulting the public and time limits for stages
of the procedure. Article 9 goes on to set out arrangements for informing the public of
decisions to grant or refuse development consent. Currently the EIA Directive is being
further  amended  by  the  proposed  Directive20  transposing  the  second  pillar  of  the
Aarhus convention concerning public participation in environmental decision-making
into EU legislation (COM (2000) 839 final). The definitions provided  in the  Aarhus
Convention are to be inserted into the EIA Directive. Those definitions areas follows:

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

“the public concerned” means the public affected or likely to be affected by, or having
an  interest  in,  the  environmental  decision-making  procedures  referred  to  in  Article
2(2)21; 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.

4.4.2
In many Member States there is no  geographical  limit to  the location  of ‘the
public concerned’ (e.g. Austria, Belgium-Walloon, Ireland, Italy, Spain); elsewhere it
is  restricted  to  affected  communities,  see  Table  14.  In  those  Member  States  where
there is some geographical limitation upon consultation, there is sometimes flexibility
for the views of people from outside the area to be taken into account.

4.4.3 The EIA Directive requires that “the public” shall be notified, and “the public
concerned”  shall  be  consulted  (i.e.  their  comments  will  be  actively  sought),  before
development  consent  is  granted.  How  widely  information  about  a  project  consent
application or an environmental statement is broadcast usually determines those who
have  access  to  it  and  may  comment.  The  methods  commonly  used  include  bill-
posting, notices around the site, postal notification of adjoining owners and notices in
newspapers.  The  newspapers  selected  may  be  local,  regional  and  national  or  a
combination  of  these.  For  example,  in  Germany,  depending  on  possible  impacts,  an
announcement may be made in a cross-regional newspaper; in Ireland a newspaper is
chosen which has a sufficiently large circulation in the functional area of the planning
authority,  whilst  in  Italy  two  newspapers  will  be  chosen:  one  regional  and  one  a
national daily newspaper with wide circulation.

20

21

COM (2000) 839 final – 2000/0331 (COD): Directive of the EP and 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
Directives 85/337/EEC and 96/61/EC
Text of the Common Position adopted by the Council on 25 April 2002, OJ C 170 of 16 July
2002, page 22

73

                                                
Table 14: The ‘public concerned’

Austria

Belgium -

GEOGRAPHICAL LIMIT
Unlimited

Brussels

Can be restricted to a single Commune but can be made much wider to include
several Communes, depending on the project and its location. Public inquiry is
initiated by a Commune/Municipality or communes together.

Flanders

Public Inquiry is organised by local municipal body

Walloon

Unlimited

In  the  public  hearing  ‘the  public  concerned’  is  everyone,  without  any  limits.
But  in  ‘the  right  of  appeal’  it  is  limited  to  ‘everyone  with  a  legal  interest’,
which includes NGOs. There is no geographical limitation.
The Finnish EIA Act refers to “those quarters whose circumstances or interests
may be affected by the project or plan” The ‘public concerned’ is not defined
directly by the Act but the right of appeal is restricted to the ‘public concerned’
under different development consent acts.
Public  living  in  or  having  an  interest  in  the  communes  affected;  industrial
projects 2-5 km. case by case definition where related to a river
Project  type  helps  determine  the  public  concerned.  Geographical  area  is
generally that of local area of responsibility of the competent authority.
Publication of EIS at prefecture level (2nd level of local-government); but any
interested party beyond that can be informed and express their opinions to the
Prefectural Council or competent authority or in person at hearings
Any member of public or interest group may make a submission on a planning
application
No  geographical  limit:  any  person  who  [..]  may  present  written  petitions  or
comments within 30 days of ES report publication.
No Information
No  geographical  limit.  No  need  to  meet  property  requirement.  “The  public
concerned” is made up of those who demonstrate their interest.
Yes  –  citizens  living  within  neighbourhood  of  a  project,  as  defined  by
administrative  boundaries  local  and  regional  BUT  comments  from  people
outside this area are also taken into account.
No geographical limit – public is the general public
Public concerned defined as those living nearby other others that in particular
will be concerned , with early consultation to include private individuals who
are likely to be affected.
Public concerned not defined – notice is given locally

Denmark

Finland

France

Germany

Greece

Ireland

Italy

Luxembourg
Netherlands

Portugal

Spain
Sweden

UK

4.4.4 Any lack of clear definition as to who constitute “the public concerned” may
affect willingness to comment and make submissions. In France, there are regulations
defining  “the  affected  area”  and  this  may  be,  for  example,  two  to  five  km  from  an
industrial project or, where a river is affected, a wider area defined on a case-by-case

74

basis.  Willingness/opportunity  to  express  written  comments  in  a  book  available  at
specific sites (for example, in the town hall) also determines who comments.

4.4.5 The  level  of  participation  is  influenced  by  a  variety  of  factors,  including  the
nature, size and location of a project, as well as by the level of controversy generated
– often sparked by the media and NGOs. The types of projects most commonly found
to induce high levels of public participation across the EC include: motorways, roads
and  pipelines,  waste  facilities,  airports,  power  stations,  high  profile  urban  projects,
quarries and big dams, as well as projects which affect specially protected sites, e.g.
Natura 2000 sites. Certain project types are mentioned exclusively by single Member
States  (wind  turbines  –  Sweden;  office  buildings  –  Belgium-Brussels)  but  projects
with potential health impacts are widely considered likely to generate public debate.
Research  has  been  carried  out  in  the  Netherlands  to  ascertain  which  are  the  most
controversial projects at both the scoping and the review stage. Those generating most
letters/submissions were airports, motorways, military training areas, railways, waste
disposal  and  minerals  extraction,  followed  by  industry  parks,  radioactive  waste
processing, recreational areas, etc.

4.4.6 Several  Member  States  have  provided  details  of  the  special  provisions  made
available to deal with high levels of public participation, including: open hearings and
public  meetings,  special  exhibitions,  provision  of  information  to  the  media  for
dissemination,  a  change 
to  public
announcements.  Measures  used  across  the  EU  to  facilitate  and  promote  public
participation  where  extensive  controversy  is  considered  likely  include:  early  start  to
debate  to  promote  public  involvement,  the  extension  of  public  inquiry  period,  the
setting  up  of  a  local  commission  and  the  designation  of  more  than  one  inquiry
commissioner and the calling of more than a single public meeting.

in  requirements  from  personal  contacts 

Summary of Main Findings: Public participation

Throughout the EU the public is given an opportunity to comment on the projects that
are  subject  to  EIA.  The  extent  of  public  involvement  varies  considerably  and  the
interpretation of “the public concerned” varies from quite narrow to wide. The survey
revealed that certain projects are more likely to generate high levels of participation.
Given the large variety of project types covered by the Directive, the different consent
systems  used  for  different  types  of  project  and  the  different  levels  of  interest  they
generate, it is not surprising that there is no standard practice of public participation
across the EU.

Action: See recommendations 5.4.2. (a)

75

4.5

Transboundary impacts

4.5.1 The  Espoo  Convention  on  EIA  in  a  Transboundary  Context  was  signed  in
1991.  The  Convention  defines  transboundary  impacts  as:  “any  impact,  not
exclusively of a global nature, within an area under the jurisdiction of a Party (to
the  Convention)  caused  by  a  proposed  activity  the  physical  origin  of  which  is
situated  wholly  or  in  part  within  the  area  under  the  jurisdiction  of  another
Party”. This definition deals with both projects and impacts that cross boundaries and
therefore  does  not  limit  the  application  of  the  Convention’s  principles  to  the
consideration  of  projects  that  are  in  close  proximity  to  a  boundary.  Furthermore,  in
Commission  v  Belgium  (C-186/91)  the  ECJ  ruled  that  the  consultation  obligations
contained in Article 7 of 85/337/EEC were not confined to projects located in regions
with frontiers with other countries. As with the Directive as a whole, the interpretation
of what constitutes a project with transboundary impacts should be given a wide and
broad  meaning.  Directive  97/11/EC  made  substantial  amendments  to  Article  7  to
ensure compliance with the Espoo Convention. The key changes introduced include:

– 

– 

– 

Member States affected by transboundary impacts must be sent the required
information no later than the public are informed in the Member State where
the project is located;

The Directive now requires much more detailed information to be sent to the
affected Member State;

where the affected Member State wishes to participate in the EIA process the
Directive  places  duties  on  the  Member  State  concerned  to  make  the
information on the project available to the relevant public authorities and the
public.

Article  8  of  the  EIA  Directive  requires  the  competent  authority  to  take  into
consideration the results of consultation with affected Member States in the decision
making  process  and  Article  9  requires  the  notifying  Member  State  to  inform  the
affected Member State of that decision.

Article  7  of  Directive  97/11/EC  introduced  the  main  requirements  of  the  Espoo
Convention.  It  leaves  the  detailed  arrangements  for  implementing  the  Article  to  the
Member States. Given the broad variety of issues that may arise between the countries
concerned  by  likely  transboundary  impact  of  a  project  most  Member  States  started
elaborating bi- or multilateral agreements. The guidance material elaborated under the
Espoo Convention22 in relation to bi-and multilateral agreements and to the practical
application of the Convention is a useful source of information in that respect.

4.5.2 A variety of issues have arisen in applying Article 7 across the EU. Procedural
issues  were  mentioned  by  several  Member  States  (Belgium-Flanders,  Belgium-
Walloon,  France,  Netherlands,  Sweden);  these  include  co-ordinating  notification
across two or more Member States, slow responses, and documents not accompanied
by sufficient information to permit  rapid transfer to the  intended  recipient.  Issues  in

22

UNECE  EIA  homepage:  http://www.unece.org  see  under  ‘documents  prepared  under  the
Convention’

76

                                                
establishing  points  of  contact,  and  obtaining  translation  (including  costs),  were
mentioned  by  the  UK,  Sweden  and  the  Netherlands.  Cultural  and  legal  differences
were  also  mentioned  by  the  Netherlands.  Some  Member  States  have  referred  to
specific  issues  in  particular  transboundary  cases  –  see  Box  7  below.  Nevertheless
Belgium–Brussels,  Denmark,  Finland,  Germany,  Greece,  Italy  and  Portugal  state
there have been no difficulties.

In Belgium-Walloon, for instance, differences in legislation between Member
4.5.3
States may delay the  transmission of  information  (The  information  route is  Minister
of Environment – Minister of Foreign Affairs – Ambassador, rather than directly to or
between  the  competent  authorities).  To  overcome  the  delays  required  by  the  legal
route for transmission of information, one respondent advocates informal agreements
between  the  authorities  of  the  different  Member  States.  In  Belgium-Walloon  an
unofficial procedure  of  direct  communication  is  used  between  competent  authorities
in  neighbouring  states,  which  speeds  reaction  times.  Belgium-Flanders  also  has
experience  of  informal  contacts  (letters,  e-mail,  telephone  calls)  to  overcome
difficulties. Other Member States consider that procedural problems can be overcome
by  establishing  good  contacts  and  working  relations  with  authorities  in  the  affected
Member States. In Denmark, every case is handled individually. There are meetings,
approximately once or twice a year, between the EIA competent authorities. Portugal
states  that  at  present  public  participation  is  ensured  by  bilateral  formal  relationship
through the Ministry of  Foreign Affairs.  In Sweden the EIA Ordinance  refers to the
articles  and  procedures  of  the  Espoo  Convention.  The  Swedish  Environmental
Protection Agency is designated by the Swedish Government as point of contact to the
Espoo Convention.

4.5.4 Very  few  formal  treaties  or  agreements  on  transboundary  effects  have  been
finalized  by EU  Member  States  amongst  themselves  or  between  EU  Member  States
and neighbouring non-EU countries. Only one has been mentioned in the responses to
the  questionnaire  (Finland-Estonia),  although  some  are  currently  under  negotiation
(for  instance,  by  Germany,  and  the  UK).  Non-binding  agreements,  “practical
arrangements” and environmental protection “Recommendations” do exist, however,
between a number of countries (such as Germany’s Tripartite Recommendations with
various  countries,  and  the  non-formal  links  between  the  Netherlands  and  Belgium
Walloon and the Netherlands  and Belgium  Flanders).  Belgium  Walloon  sees  a  need
for better, more “useable” formal arrangements with neighbouring countries. A need
is  also  seen  in  Belgium  for  an  improvement  of  the  current  procedures  between  the
regions  as  well  as  between  the  regional  level  and  the  relevant  federal  authorities.
Existing treaties and agreements are set out in Table 15.

77

Table 15: Treaties and Agreements

Country

Austria

Belgium –

Finland

France

Germany

Ireland

Treaties or Agreements

Trilateral non binding agreement with Switzerland and Liechtenstein .
Agreements with Slovakia and Czech Republic are in preparation.
Flanders
Flanders-Netherlands  -  formal  agreement  on  transboundary  EIA,  including
procedural steps.
Walloon
Informal practical arrangements with Netherlands.
Bilateral agreement with Estonia, entered into force 6th June 2002.
Bilateral agreement with the Russian Federation is under negotiation.

Bilateral treaties on important public projects, including those with Italy, Spain,
Switzerland, Baden-Würtemburg (Germany). No general treaties or agreements.

Agreements on transboundary EIA currently under preparation:
(cid:1)  Germany-Poland
(cid:1)  Germany-the Netherlands
(cid:1)  Germany-Czech Republic
(cid:1)  Germany-Switzerland, Austria, Liechtenstein (planned)
Agreements  meeting  in  part  provisions  of  Directive  97/11/EC  and  ESPOO
Convention, but without reference to those documents:
(cid:1)  Tripartite  Recommendations  of  German-French-Swiss  Governmental
commission for Co-operation on  Activities  with Environmental Relevance
along the Upper Rhine (1996);

(cid:1)  Saar-Lor-Lux 

Recommendation 

(German-French-Luxembourg)
governmental Commission on the Bilateral Notification of Newly Planned
and  amendments  to  Existing  Activity  Needing  Development  Consent
(1986)

Agreements  referring  to  ESPOO  Convention  (not  EIA  Directive)  but  without
detailed determinations on transboundary EIA:
(cid:1)  Germany-Poland  on  Co-operation  in  Environmental  Protection  (1994,  in

force 1998)

(cid:1)  Germany-Czech  Republic  on  Co-operation  in  Environmental  Protection

(1996, in force 1999)

Currently  negotiating  to  formalize  existing  consultation  procedures  with
Northern  Ireland  (with  UK  authorities).  The  text  of  a  Memorandum  of
Understanding is largely agreed.

Netherlands

Belgium, Flanders: non-binding agreement (since 1995)

Belgium, Walloon Region: practical arrangements

Germany, North Rhine-Westphalia and Lower Saxony: non binding agreement
(under negotiation)

UK

Long-standing  non-formal  agreement  between 
the
Environment  (Northern  Ireland)  and  the  Republic  of  Ireland  relating  to
transboundary co-operation.

the  Department  of 

4.5.5 The range of projects subject to transboundary consultation reflects the range
of  projects  covered  in  the  EIA  Directive.  Member  States  have  consulted  on  a
significant  number  of  transport  infrastructure  (motorways;  railways;  airports;
container terminals or ports; tunnels and bridges) and energy schemes (power plants);
wind  farms;  nuclear  plants,  nuclear  storage  or  re-processing  facilities;  and  gas  and
electricity  pipelines.  In  southern  Europe,  water  resources  schemes  feature  more

78

prominently. Schemes where the proponent is a private body include marine dredging
and  other  mineral  extraction;  agricultural  intensification;  and  industrial  plants  and
complexes. The level of detail provided by Member States on infrastructure projects
appears  more  comprehensive  than  on  private  developments  and,  for  example,  on
urban development and leisure projects. Table 16 provides further information on the
types and numbers of projects reported by the Member States.

Table 16: Number and Types of Transboundary Projects

Note: The information in this Table has been taken from the questionnaire responses
and  from  the  Enimpas  database  on  EIA  in  a  transboundary  context23.  However  the
numbers do not match the types of projects either reported by the respondents or on
the database and the list of project types does not necessarily indicate that the project
originates in that country.

Member state

Country
of  origin
projects
(no.)

Affected
country
projects
(no.)

Type of project

Austria

Belgium:

Denmark

Finland

France

Germany

Greece

Ireland

Italy

Luxemb'rg

3

7

4

0

2

0

3

1

9

5

1

3

0

0

Netherlands

c.25

c.12

Portugal

Spain

Sweden

UK

2

2

12

2

12

7

Waste-water treatment, harbour, nuclear storage

Marine 
agricultural; waste

dredging, 

transport 

infrastructure, 

industrial;

Windfarms; gas pipelines; airport; marine dredging

Power  plants,  nuclear  plants  and  storage;  gas  pipelines  and
power lines; flood prevention, industrial

High-speed 
intensive livestock, mining, industrial, waste treatment

railways,  bridge, 

tunnels;  marine  dredging,

Nuclear plant and  radioactive  waste;  gas  pipelines;  windfarms;
airport; rail line; marine dredging

Windfarms; marina/ferry terminals; nuclear re-processing

Gas pipeline; power station

lines;  wind 

Airport; container terminal, harbour developments; motorways;
railway 
incinerator;  uranium
farms;  waste 
enrichment;  industrial  zone;  agricultural  intensification;  land
development;  mineral  extraction;  marine  dredging;  flood
control; groundwater abstraction

Dams; waste - water treatment plant

Dams

Wind farms, power plants, nuclear plants and nuclear waste; gas
pipelines  and  power  lines;  reservoir;  flood  scheme;  military
shooting range; dredging;

Airport;  power  plants;  windfarms;  harbour  works;  industrial;
incinerator;  MRF;  intensive  agriculture;  hotel  and  leisure;
nuclear re-processing, retail and leisure; marine dredging.

23

https://www.mos.gov.pl/enimpas/

79

                                                
4.5.6 There  appear  to  be  significant  problems  in  auditing  the  number  of
transboundary EIA cases, with inconsistencies between adjacent Member States, and
lack  of  information  at  the  national  government  level,  especially  where  there  are
federal systems in place. It is not possible to tell from the responses how many of the
projects  are  Annex  I  or  Annex  II  projects.  As  the  thresholds  for  adjudging  which
schemes need an EIA vary significantly between Member States (see Section 4.2), it
is  likely  that  the  application  of  Article  7  is  inconsistent  across  the  EU.  Differing
criteria  of  distance  or  spatial  extent  of  possible  effects  appear  to  be  applied.  For
instance, the  Netherlands  has  taken a  broad interpretation of the possible  impacts  of
Schipol airport, notifying a number of potentially affected countries, including France.

4.5.7 Some  countries  in  their  responses  distinguish  between  notification  and
consultation on transboundary impacts. Information is also provided by some Member
States  on  transboundary  consultation  with  non-EU  states  (such  as  Switzerland,
Slovenia, the Czech Republic, Poland, Estonia, and Norway). Questionnaire responses
do  not  often  mention  problems  of  disagreement  over  the  final  decision,  although
Ireland  sees  a  need  for  a  more  formal  arrangement  to  be  developed  in  due  course,
particularly in the context of nuclear energy-related developments - informal contacts
do occur from time to time.

4.5.8 A more accurate form of auditing is needed to provide reliable information on
the  number,  type  and  outcome  of  Article  7  transboundary  projects.  Sweden  does
appear to have a comprehensive recording system in place, but such systems are rare.
Other databases are not yet able to provide this information. The UNECE database on
Transboundary EIA (www.mos.gov.pl/enimpas) is incomplete: there are entries listing
national  institutions  (Points  of  Contact  for  Notification,  and  Focal  Points  for  the
Implementation of the UNECE Convention), but little detail on any projects subject to
the  Convention.  The  information  should  be  provided  by  the  focal  points  in  the
respective countries. It is hoped that this will improve in the future.

Summary of Main Findings: Transboundary Impacts

There  is  a  need  for  better  formal  and  informal  arrangements  for  consultation  on
transboundary  impacts  with  neighbouring  countries  and  a  need  to  ensure  that  those
arrangements are practical. A need has also been identified for an improvement of the
current 
intra-regional  procedures  of  some  countries.  More  precise  auditing
arrangements  are  needed,  to  provide  reliable  information  on  the  number,  type  and
outcome of Article 7 transboundary projects.

Action: see recommendation 5.4.2. (g).

4.6

Biodiversity, Risk and Human Health

Biodiversity

4.6.1 Whilst the EIA Directive states that the direct and indirect effects of a project
upon fauna and flora should be identified, described and assessed in an EIA, it does
not make explicit reference to the concept of biodiversity. However, Article 14 of the
Convention  on  Biological  Diversity  (CBD)  requires  that  EIA  be  applied  to
development  projects  that  have  the  potential  to  result  in  adverse  impacts  upon
biodiversity.  The  CBD  defines  biodiversity  in  Article  2  as  “the  variability  among

80

living  organisms  from  all  sources  including,  inter  alia,  terrestrial,  marine  and  other
aquatic ecosystems and the ecological complexes of which they are part; this includes
diversity  within 
(See
http://www.biodiv.org/convention/articles.asp).  The  concept  of  biodiversity  is
clearly very broad, and under the CBD definition three levels can be identified:

ecosystems" 

between 

species, 

species 

and 

of 

(i)

Ecosystem  level  –  diversity,  variety  and  frequency  of  different
ecosystems;

(ii)

Species level – the frequency and diversity of different species; and

(iii) Genetic  level  –  the  frequency  and  diversity  of  different  genes  and/or

genomes, i.e. genetic diversity within each species.

4.6.2 From the questionnaire responses it is clear that the EIA systems in the Member
States  give  consideration  to  impacts  upon  flora  and  fauna,  and  hence  meet  this
requirement of the Directive. Particular emphasis is given to ecological impacts where
specially protected locations such as Natura 2000 sites may be threatened. However,
from the questionnaire responses, there is less clear evidence that biodiversity is given
explicit  consideration  as  an  assessment  parameter  (with  a  limited  number  of
exceptions).  The  definition  of  environmental  impact  in  Finnish  legislation  includes
biological diversity and the Advice Notes produced by the Environmental Protection
Agency  in  Ireland  indicate  the  importance  of  investigating  and  predicting  impacts
upon species diversity. The Dutch are co-ordinating the implementation of the Action
programme: Integration of Biodiversity in Impact Assessment (IAIA July 2001). The
Netherlands Commission for Impact Assessment has produced a report (funded by the
IAIA)  “Proposed  conceptual  and  procedural  framework  for  the  integration  of
biological diversity considerations with national systems for impact assessment”, July
2000.

In  the  clear  majority  of  cases  the  Member  States  have  not  envisaged  further
4.6.3
measures to enhance the consideration of biodiversity. However, some Member States
do recognise that there is a potential issue that needs to be resolved and in Finland, the
consideration of biodiversity is currently being studied through the review of 50 EIA
documents.  Furthermore,  Finnish  guidelines  for  biodiversity  impact  assessment  in
EIA  and  in  land-use  planning  are  currently  being  prepared.  The  Flanders  region  in
Belgium  is  also  considering  draft  EIA  legislation,  which  includes  an  improved  EIA
approach for considering the issue of biodiversity. Spain uses a strategic plan for the
preservation  and  sustainable  use  of  biodiversity.  The  Netherlands  appear  to  have
made  good  progress  in  embracing  biodiversity  issues  in  EIA.  Biodiversity  is  an
integral  part  of  the  Dutch  EIS  review  framework,  which  is  conducted  by  the
independent Netherlands Commission for EIA. Guidelines on addressing biodiversity
issues  at  different  stages  of  the  EIA  process  have  recently  been  adopted  under  the
Convention  on  Biological  Diversity:  http://www.biodiv.org/decisions/default.asp.
These may  give  guidance on how to address biodiversity within EIA and on how to
further develop national supporting material on this issue.

81

Summary: Biodiversity

Impacts of developments upon flora and fauna are being assessed within EIA in the
Member States and the minimum requirements of Directive 97/11/EC seem to be met
in this respect. However, the questionnaire responses are less explicit concerning the
extent  to  which  the  various  levels  of  biodiversity  are  addressed  in  practice.  The
treatment of biodiversity in impact assessment has been the focus of ongoing research
in Finland and the Netherlands.

Risk

4.6.4 Annex  III  to  the  Directive  lists  screening  criteria,  in  accordance  with  the
provisions  of  the  screening  Article  4  (3).  These  criteria  cover  the  characteristics  of
projects,  the  location  of  projects  and  the  characteristics  of  the  potential  impacts.
Under these criteria “the risk of accidents, having regard in particular to substances or
technologies used” is included under ‘characteristics of projects’. Risk of accidents is
ever  present  and  a  situation  of  no  risk  can  never  be  obtained.  As  an  EIA  screening
criterion, therefore, it is not the ‘fact’ of risk that needs to be considered but whether
there  is  a  significant  risk  and  whether  the  consequences  of  a  risk  event  happening
would be likely to cause significant environmental effects. The presence of an explicit
obligation  to  consider  the  likely  significant  effects  of  an  accident  or  exceptional
circumstances appears to vary across the EU in line with perceptions of likely natural
hazards and also with respect to the type of project involved: major projects, projects
covered by the Seveso Directive of 24 June 1982 concerning risks of major accidents
of  certain  industrial  activities,  and  ‘other  projects’.  The  range  of  incident  types
covered  in  Member  States  includes  natural  hazards  such  as  avalanches,  floods  and
earthquakes, and technological and human failure (e.g. poor installation management)
and sabotage.

4.6.5 Risk  and  hazard  are  covered  in  a  number  of  different  ways  in  different
Member States, and it is not in general the EIA Directive that is the controlling force
in  risk  assessment  (e.g.  France,  this  is  done  via  controlling  legislation  on  classified
installations;  in  Sweden,  for  example,  via  Acts  concerning  nuclear  installations).
There  is  thus  a  possibility  of  duplication  of  work.  In  Sweden,  in  line  with  the
Environmental Code, where an activity is covered by the Act on Measures to Prevent
and Limit the Consequences of Serious Chemical Accidents, the purpose of EIA is to
identify  and  assess  safety-related  factors  associated  with  the  activity.  In  Italy  the
developer  must  provide  a  “system  process  malfunction  analysis” 
to
environmental effects resulting from  emissions to air  and  water, plus explosion;  fire
etc. In some Member States the requirement for risk assessment is not obligatory but
it is normally done. Risk assessment thus sometimes appears patchy – for example in
Sweden, whilst impacts resulting from chemicals related activities are covered under
the Environmental Code, but activities  not related to  chemicals  are  not.  Similarly  in
the  UK,  the  implementing  regulations  make  no  reference  to  assessment  of  risk  of
accident or  effects under exceptional circumstances (such  as  heavy  rain,  earthquake,
landslide or other unforeseen natural disaster) because these possibilities are not seen
as  “likely”.  Nevertheless,  flooding  and  landslide  assessment  would  be  part  of  early
stage  of  project  development.  Installations  sensitive  to  seismic  activity  (e.g.  nuclear

linked 

82

installations)  are  covered  under  provisions  controlled  by  the  Health  and  Safety
Executive.

4.6.6 Risk is covered in a number of ways in French practice. The French Ministry
for the Environment includes a Department for the Prevention of Major Risks. Project
reports  always  include  a  risk  section.  Risk  Exposure  Plans  consider  technological
risks whilst Risk Prevention Plans consider natural risks – these are not always related
to specific projects. Their purpose is to prevent unsuitable projects or to define precise
requirements where some  works are to be  authorised.  Classified installations (which
include  Seveso  installations  and  amount  to  half  of  the  projects  for  which  an  impact
statement is  prepared)  require  a  hazard  assessment  study  (“étude  de  danger”)  which
identifies  sources  of  danger  and  foreseeable  accident  scenarios.  This  study  must
evaluate  consequences  and  justify  measures  proposed  for  the  prevention  and
mitigation of effects.

on 

EIA 

federal  Administrative  Order 

(UVP-
4.6.7 The  German 
Verwaltungsvorschrift) contains guidance on the application of the German EIA Act,
and  states  that  impacts  on  the  environment  include  effects  of  failure  of  operation.
Where an installation needs to be designed so as to prevent accident,  the  competent
authority will have to require from the proponent a description of the likely significant
effects  in  case  of  an  accident  or  exceptional  circumstances.  Subject  specific  laws
provide the overall framework in Germany; risk assessment work is evaluated by the
decision-maker.  In  Belgium-Brussels  the  Fire  Protection  Services  or  the  Civil
Protection  Services  collaborate 
realistic
risk/accident scenarios.

in  decision-making  by  considering 

In  several  Member  States  Seveso  and  IPPC  requirements  are  the  minimum
4.6.8
requirements  for  risk  assessment,  and  these  standards  have  been  incorporated  into
national  procedures  (e.g.  Belgium-Walloon,  Denmark).  In  Portugal  requirements
under Seveso and the IPPC Directives are dealt with in specific legislation, whilst in
Spain EIA procedures have been included in both the IPPC and the Seveso procedure.
Generally questionnaire respondents did not quote specific risk assessment techniques
used, saying that the method depended on the type of project. Some methods referred
to are as follows:

– 

– 

– 

– 

Austria: Check lists, fault-tree analysis

Finland: Statistical analysis, calculations, evaluation of previous experience

Italy: Case by case examination by means of mathematical models and/or by
a statistical frequency analysis, as well as evaluation of previous incidents.

Netherlands: Group risk standards for airports.

4.6.9 The  intensity  and  detail  of  risk  assessment  may  depend  in  some  Member
States on the type of project as well as on the location; in certain circumstances this
could  mean  that standards vary  and  procedures  vary  both  within  similar  sectors  and
across sectors. In Finland some fields have well-established techniques of assessment
and  others  do  not.  In  general,  with  regards  to  the  linking  of  EIA  with  IPPC  and
Seveso  requirements,  the  more  detailed  information  on  risk  assessment  is  provided
under  the  consent  procedure  in  Finland,  though  for  nuclear  plants  risk  analysis  is

83

discussed  at  an  early  stage.  In  Belgium-Flanders,  while  risk  assessment  is  not  well
developed  within  EIA,  a  separate  safety  report  is  to  be  referred  to  in  the  EIS  for
Seveso-type installations; for non-Seveso installations, major aspects are dealt with in
the EIA procedure.

4.6.10 The  UK  adopts  a  risk  management  approach  rather  than  a  strictly  risk
assessment procedure designing into the project risk management procedures to cope
with inherent risk. Security, and the adoption of measures for accident prevention are
provided  for  in  the  UK  under  the  Health  and  Safety  at  Work  Act,  1974,  and  its
regulations that implement the Seveso II Directive, and other licensing regimes which
apply to all businesses. These regulations demand strict compliance with on- and off-
site  health  and  safety  regulations.  On-site,  the  standard  to  be  met  is  As  Low  As
Reasonably  Practicable  (ALARP).  The  ALARP  standard  is  used  in  Ireland  with
respect to risk in connection with railway projects.

Summary of Main Findings: Risk

Risk is dealt with in a wide variety of ways and at very different levels across the EU,
partly  in  response  to  the  variety  of  geographical,  geological,  climate  and  other
conditions.  Risk  is  a  screening  criteria  in  Annex  III  and  risk  assessments  appear  in
many  EIS  and  yet  for  most  Member  States  risk  is  seen  as  separate  from  the  EIA
process  as  it  is  often  handled  by  control  regimes  to  which  the  EIA  Directive  is  not
applied.  Relationships  between  EIA  and  national  environmental  control  regimes  are
complex  and  there  appears  to  be  little  real  co-ordination  between  the  EIA  Directive
and other Directives such as IPPC and the Habitats Directive.

Action: See recommendation 5.4.2. (j)

84

Human health

4.6.11 While  the  EIA  Directive  does  not  specifically  require  human  health  to  be
examined  as  part  of  the  assessment  process,  at  Article  3  it  does  say  that  the
assessment  should  identify,  describe  and  assess  the  direct  and  indirect  effects  on,
amongst other matters, human beings. A number of respondents indicated that whilst
health  effects  should  in  theory  be  given  consideration  in  an  EIA  as  part  of  the
assessment of impacts upon human beings, in practice the level of detail is limited and
often it is not as detailed as that provided for biophysical impacts.

4.6.12 Consultation  with  relevant  public  health  authorities  during  scoping  is
identified  by  a  number  of  respondents  as  a  means  of  ensuring  health  effects  are
adequately considered. By far the most common health considerations relate to noise
and  air  quality  (including  dust)  where  quantitative  standards  and  thresholds  are
typically used to assess the significance of the impacts. Health  impacts  appear to be
given  particular  consideration  in  relation  to  transport  infrastructure  projects  (roads,
rail, airports, parking lots), waste treatment, and power generation facilities. There is
considerable variation in coverage from:

– 

– 

narrow interpretation, e.g. health effects of environmental effects (especially.
noise,  air  pollution)  of  projects,  with  general  reference  to  ‘human  beings’
effects under Article 3; to

wider  interpretation,  e.g.  well  being,  socio-economic  (but  latter  is  often
regarded as beyond the remit of EIA, and is covered by other legislation – eg.
town and country planning).

Approximately one-third of the Member States adopt a wider approach while the rest
adopt various forms of the narrow approach.

4.6.13 Few respondents could provide examples of good practice, although a number
of countries refer to WHO specifications as guidance and others have issued their own
guidance  to  assist  in  the  consideration  of  health  issues  e.g.  in  Belgium-Flanders,
guidelines have been developed in a partnership with the Health  Administration  and
the EIA unit. The Irish guidelines indicate that a risk assessment approach should be
taken, and the Netherlands also recognises the close link between risk assessment and
health impact assessment. The Dutch categorisation of health impacts is interesting:

– 

– 

– 

health  (physical)  –  normally  quantitative  (eg.  what  pollutants  health-based
standards are being exceeded);

well being – annoyance (e.g. smell, vision, noise); mixture of qualitative and
quantitative; and

health  related  socio-economic  –  employment,  and  severance,  but  only
discussed in general terms.

The Dutch practice also refers to impacts on groups rather than individuals.

85

Summary of Main Findings: Human Health

The  assessment  of  health  impacts  is  not  a  particularly  strong  feature  of  current
practice.  There  is  considerable  variation  in  coverage  from  a  narrow  to  a  broad
interpretation  of  health  effects.  There  is  evidence  to  suggest  that  health  impacts  are
considered  to  be  less  relevant  to  EIA,  and/or  to  a  certain  extent  covered  by  other
legislation.  However,  there  is  some  evidence  to  suggest  that  health  impacts  are
considered under other headings such as pollution and risk.

Action: See recommendation 5.4.2. (j).

4.7

Relationship with Other EU Directives

4.7.1 The  EIA  Directive  is  a  key  tool  in  the  implementation  of  EU  environmental
policy  and  is  one  of  a  raft  of  Directives  that  have  as  their  prime  concern  the
management  and  protection  of  the  environment.  In  many  cases  projects  that  are
covered by the EIA Directive are also subject to the provisions of other environmental
Directives. The IMPEL network has examined the relationship between EIA and other
Directives  in  the  past  and  has  emphasised  the  importance  for  co-ordination  in  key
stages  such  as  public  participation  and  the  need  to  avoid,  where  possible,  over
duplication  of  documentation  and  assessment  activity24.  For  this  current  review
Member  States  were  asked  about  the  relationship  between  EIA  and  some  other  key
environmental Directives.

Directive 96/61/EC Integrated Pollution Prevention and Control

4.7.2 Article  2  (2a)  of  the  EIA  Directive  (inserted  by  97/11/EC)  permits  Member
States to provide for a single procedure to fulfil the requirements of the both the EIA
and  IPPC  Directives.  Only  four  of  the  respondents  (Austria,  Belgium-Brussels,
Germany and Italy) have indicated that a single procedure exists for the authorisation
of  projects  that  fall  under  both  the  EIA  and  IPPC  Directives.  Austria  has  a  single
consolidated consent procedure whereby the relevant authority (federal or länder) will
consider both EIA and IPPC while in Italy it only applies to changes and extensions to
existing  projects.  In  some  Member  States  the  application  of  the  EIA  Directive  is
divided  between  land  use  authorisations  and  environmental  permits  (for  processes)
and in such cases there will be an overlap between EIA and IPPC. In the Netherlands,
where both land use and process authorisations are required, the land use consent is
withheld  until  the  IPPC  or  other  environmental  permit  has  been  gained.  In  all  other
Member  States  the  procedures  are  separate,  although  in  France,  the  Netherlands,
Sweden and the UK, proponents are either advised or required to submit applications
simultaneously.  In  Ireland  the  general  practice  is  that  the  land-use  planning
application  is  submitted  prior  to  the  IPPC  application.  Spain  has  not  as  yet  (fully)
transposed Directive 96/61/EC into national legislation.

24

European Union Network for the Implementation and Enfiorcfdement of European law (1998)
Interrelationship  between  IPPC,  EIA,  DEVESO  Directives  and  EMAS  Regualtions:  Final
Report, Brussels, CEC.

86

                                                
In most Member States (Belgium-Brussels, France, Germany, Greece, Ireland,
4.7.3
Portugal,  Spain  and  Sweden)  the  IPPC  Annex  I  thresholds  and  the  thresholds
developed for EIA Annex II are generally the same. Although in some countries the
EIA mandatory Annex II thresholds are lower (France and Greece) and in France the
Annex II thresholds are 2 to 10 times lower than those in the IPPC Directive. While
having the same thresholds/criteria facilitates consistency and good integration of EIA
requirements and the IPPC licensing regime, many respondents reported problems of
such integration because of national legislative factors.

92/43/EEC Habitats Directive

4.7.4 Article  6  of  the  Habitats  Directive  requires  an  assessment  procedure  to  be
completed  where  a  project  or  plan,  not  directly  connected  to  the  management  of  a
Natura 2000 site, is likely to have a significant effect on such a site. That procedure,
as with EIA, is a stage-by-stage assessment of the project or plan, its impacts on the
Natura 2000 site, the  alternatives to the project or plan that would  avoid an  adverse
impact on the site and any mitigation or compensatory measures that would maintain
the overall integrity of the natura 2000 network. The Commission Services document
Managing  Natura  2000  sites:  the  Provisions  of  Article  6  of  the  Habitats  Directive
92/43/EEC25  identifies  the  linkages  between  the  EIA  Directive  and  Article  6  of
92/43/EEC and indicates that a project that is likely to have a significant effect on a
Natura 2000 site is likely to require an Article 6 assessment and an EIA in accordance
with the EIA Directive. Furthermore, the EU’s non-mandatory guidance on the Article
6  assessment  process  states  that  where  a  project  is  one  to  which  the  EIA  Directive
applies,  the  Article  6  assessments  may  form  part  of  the  EIA  but  should  be  clearly
identified and distinguishable within the EIS26. All Member States, save for Germany
and  the  UK,  claim  to  have  co-ordinated  the  EIA  assessment  with  those  required  by
under  the  Habitats  Directive.  Portugal  explained  that  in  sensitive  areas  all  projects
require an EIA, regardless of size. In Finland the Habitats Directive assessment can be
done as part of the EIA procedure or later in the development process after the EIA
when a more detailed phase of design has been reached.

Summary of Main Findings: Relationship with Other EU Directives

There  is  little  evidence  of  widespread  co-ordination  between  the  EIA  Directive  and
other  Directives  such  as  IPPC  and  the  Habitats  Directive.  Few  Member  States  have
taken  the  opportunity  to  provide  for  the  greater  consistency  and  reductions  in
repetitious  documentation  and  assessments  provided  by  closer  co-ordination  of  EIA
and IPPC. Where Member States claim that links do exist it is usually in the form of
guidance  that  states  little  more  than  that  the  two  procedures  should  be  dealt  with
simultaneously.

4.8

Access to justice

4.8.1 Article 9 of the Aarhus Convention requires each party to ensure that members
of the public have access to administrative or judicial procedures to challenge acts and
admissions by private persons and public authorities which contravene provisions of

25

26

See http://europa.eu.int/comm/environment/nature/home.htm
See http://europa.eu.int/comm/environment/nature/natura.htm

87

                                                
its  national  law  relating  to  the  environment.  The  proposed  Directive,  which  will
amend,  inter  alia,  the  EIA  Directive  so  as  to  transpose  the  Aarhus  Convention  into
EU  legislation,  will  require  Member  States  to  ensure  that  the  public  concerned
(subject to certain conditions) has 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 that are subject to the
public participation provisions of the EIA Directive (Article 10a). The new Article 10
(a) will also require Member States  to  ensure  that  such  procedures  shall  be  fair  and
not  be  prohibitively  expensive.  While  the  current  EIA  Directive  does  not  require
access to justice provisions and the amendments to the EIA Directive stemming from
the Aarhus Convention are not yet in place, this review sought information on existing
arrangements for access to justice with EIA.

4.8.2 From  the  evidence  of  the  survey  it  would  appear  access  to  justice  for  EIA
appears  to  be  largely  confined  to  reliance  on  the  judicial  systems  of  the  individual
Member States. The use of judicial review systems to provide access to justice is often
costly  and  slow  and  often  limited  to  those  who  are  directly  affected  by  a  decision
rather  than  the  wider  concept  of  the  ‘the  public  concerned’  as  provided  for  by  the
Aarhus Convention. Several countries have made EIA an integral part of pre-existing
licensing procedures and access to justice is therefore part of the licensing procedure
and not directly related to the process of EIA. In Germany, the result of the screening
decision  could  be  appealed,  however,  only  after  the  final  decision  had  been  made.
This is also the case in the UK. Denmark was one of the few Member States in which
access  to  justice  was  granted  at  the  intermediate  stages  of  screening  and  scoping.
Ireland’s  legislation  also  provides  for  judicial  review  at  all  stages  of  the  planning
process into which EIA is integrated. It further allows for a third-party appeal system
– where the planning decision to authorise a project can be re-examined at appeal by
An Bord Pleanála, the national appeal planning board.

Summary of Main Findings: Access to Justice.

Although the current EIA Directive does not contain provisions on access to justice,
the majority of Member States provide  for such in their  national systems.  Access  to
justice for EIA is largely confined to members of the public having legislative rights
to challenge decisions through the courts. In most cases such challenges can only be
made once project authorisation is granted, few Member State provided for challenges
at the earlier stages of EIA.

Action: An amendment to the EIA Directive has been adopted in order to be in line
with the Aarhus Convention. It introduces access to justice obligations and rights.

4.9

Quality Control in EIA

4.9.1 Quality control in EIA can be assessed at all stages of the process. There can
be quality control measures to ensure that screening decisions are made in accordance
with  the  Directive,  there  can  be  measures  to  check  that  all  significant  impacts  have
been  properly  identified  at  the  scoping  stage,  that  the  consent  decision  has  properly
considered  the  environmental  information  and,  although  not  covered  by  the  EIA
Directive,  there  can  be  post-decision  quality  control  through  monitoring.  Quality
control  can  also  comprise  the  quality  of  public  participation  at  each  stage  of  the
process.  However  the  Directive  does  not  prescribe  the  manner  in  which  competent

88

authorities  carry  out  their screening  duties, how the scoping  process  should  operate,
how  the  assessments  should  be  completed,  at  what  level  of  detail  or  how  their
outcome  should  be  reported.  Following  Case  431/99  Commission  v  Germany
(Grosskrotzenburg)  the  requirements  of  the  Directive  are  met  so  long  as  the
environmental information is provided or the competent authority has that information
in its possession and the public are given an opportunity to examine and comment on
that information in advance of any decision. The Directive establishes the procedural
rules under which EIA takes place, it does not establish any basis on which the quality
control of the stages within the EIA procedure can be tested, that is left for Member
States.  Box  3  provides  details  of  some  of  the  quality  control  measures  in  place
(covering the scoping phase and the EIS) in some of the Member States.

89

Box 3: EIA Quality Control

Austria
Generally  there is considerable contact between the applicant and the competent  authority  during  the
EIA  process,  including  informal  /  formal  scoping  procedures.  The  competent  authority  comments  on
the technical and legal aspects of the project, and can propose appropriate impact assessment experts.
The competent authority assesses the quality of the information supplied by the applicant using either
internal  or  external  experts.  Selected  government  environmental  agencies  receive  copies  of  the
completed  EIS  for  commentary,  and  all  application  documentation  is  open  to  public  inspection  and
comment for a period of six weeks.

Belgium - Brussels
Scoping is mandatory, with the competent authority drawing up specifications for the EIA. Developers
must  use  an  accredited  consultant  to  undertake  the  EIA.  Upon  completion  of  the  study,  a  steering
committee (composed of representatives of the main Administrations concerned) reviews the EIA and
can  approve  or  rectify  the  work  until  it  satisfactorily  addresses  the  issues  raised  in  the  original  EIA
specifications.

Belgium - Flanders
Developers  may  only  use  certified  experts  to  conduct  the  EIA  and  must  submit  a  proposed  team  of
EIA-experts  and  an  outline  of  the  EIS  for  approval  to  the  EIA-unit  of  the  Environmental
Administration.  Whilst  scoping  is  not  mandatory,  it  exists  as  an  informal  requirement  and  a  scoping
meeting  including  all  relevant  governmental  services,  the  developer  and  the  EIA-experts  is  part  of
standard EIA practice. A draft-EIS is considered at a second meeting of this group and the final EIS has
to be approved by the EIA-unit of the Environment Administration. EIA guidelines (printed)

Belgium - Walloon
A  body  that  has  been  accredited  by  the  Minister  of  the  Environment  must  undertake  the  EIA.  The
competent  authority  and  an  independent  environmental  council  (comprised  of  representatives  from
industry,  universities, government environmental bodies, unions, the general public, etc.) review EIA
quality. If it is not considered satisfactory the competent authority can request additional information. If
the subsequent additional information is unsatisfactory the application can be refused.

Denmark
It  is  an  obligation  of  the  competent  authority  to  include  public  consultation  as  part  of  scoping.  The
competent authority is responsible for EIA quality. A national environmental authority also checks the
EIS.
Finland. The developer prepares a scoping document that is assessed by the competent authority, and
any necessary revisions to the proposed assessment programme are identified. The competent authority
reviews  the  adequacy  of  final  EIS  report,  although  prior  to  this  a  draft  EIS  is  often  submitted  to  the
competent  authority  for  unofficial  comment.  The  general  public  and  government  agencies  can
comment on the scoping document and the EIS, and the competent authority takes these comments into
account when assessing quality. The Ministry of the Environment is preparing guidelines on reviewing
scoping documents, EISs, and the administrative management of the EIA procedure.

France
The  competent  authority  is  responsible  for  quality.  Some  authorities  have  prepared  guidance
documents. Regional environmental authorities can also advise the competent authority. At the national
level,  the  Environment  Minister  can  call  in  the  proposal  and  give  an  opinion  on  the  EIS.  For  major
projects (defined by their nature and cost) national and regional authorities are consulted to give advice
on the EIA.

Germany
The  competent  authority  considers  the  quality  and  completeness  of  the  information.  Licensing
procedures can only begin once the competent authority is satisfied with the quality and completeness
of  the  information  provided.  If  necessary  external  experts  can  be  appointed  to  assist  the  competent
authority in assessing the information

Netherlands
The Netherlands has an independent EIA Commission that oversees much of the EIA process as part of
its quality control procedures

Portugal
The  competent  authority  verifies  the  quality  and  completeness  of  the  information  and  additional
information can be requested. If the information is not complete project authorisation is withheld and a
new EIA must be undertaken.

90

4.9.2 As  was  noted  under  the  discussion  of  screening  in  Section  3  of  this  report,
there  is  very  little  monitoring  by  Member  States  of  the  operation  of  the  screening
process. Evidence from the UK suggests that there is a great deal of inconsistency of
approach, with much depending upon the commitment of the competent authority to
EIA  and  the  resources  available  to  it  in  dealing  with  complex  EISs,  with  some
competent authorities never requiring an EIA ‘if it can be avoided’27. The only quality
control  measure  in  place  for  screening  in  most  Member  States  appears  to  be  the
availability of a judicial challenge of a decision on an Annex II project where an EIA
was  not  required  and  yet,  based  upon  Annex  II  there  were  likely  to  be  significant
environmental effects.  The  reliance  on  the  judicial  route  to  ensure  quality  control  is
highly  inefficient  and  without  some  form  of  centralised  monitoring  of  screening
decisions Member States cannot be in a position to check the quality of the screening
decision making process. The position on scoping is different in that there are only a
few countries in the EU that have mandatory scoping stages for EIA. Where scoping
is  a  discretionary  stage  the  only  quality  control  measure  available  is  the  use  of
guidance.  Three  approaches  to  providing  quality  control  during  scoping  can  be
identified:

– 

– 

– 

the competent  authority  draws  up  the  specification  for  the  EIA  as  part  of  a
mandatory scoping process (e.g. Belgium-Brussels)

the applicant produces a draft outline of the EIA which is subject to review
by the relevant  authority and amendment by the developer where necessary
(e.g. Finland, Sweden)

project  specific  EIS  guidelines  are  produced  as  result  of  consultation,
involving the public, advisors and an independent body (e.g. the Netherlands)

4.9.3 Some aspects of quality control over the submitted environmental information
were discussed in Section 3 and as with screening and scoping it is noted that there is
very  little  centralised  quality  control  over  the  content,  depth  and  adequacy  of  the
environmental information submitted by developers. As was seen in Section 3, fewer
than  half  of  the  Member  States  have  carried  out  any  research  into  the  quality  and
sufficiency  of  the  environmental  information  or  EISs  submitted  to  date  and  where
research  has  been  carried  out  it  has  found  that  EISs  are  of  generally  poor  quality.
Some  Member  States  have  produced  guidance 
the  quality  of
environmental information and environmental statements (see Table 17).

to  enhance 

4.9.4 Member  States  were  asked  what  factors  are  used  as  a  basis  for  judging  the
quality  and  sufficiency  of  information  supplied  by  the  developer,  and  whether  tools
such  as  review  checklists  were  used.  Austria  sees  Annex  IV  listing  the  elements  of
information that need to be provided in the EIS, now transposed into national law, as a
checklist.  A  team  of  experts  at  the  EIA  authority  and  co-operating  authorities
confirms  compliance.  Other  official  bodies  (e.g.  the  environment  ombudsman,  host
municipality,  Federal  Ministry  of  Agriculture,  Forestry,  Environment  and  Water
Management) can comment on the quality of the environmental statement, as can the
public.  Belgium-Flanders,  Denmark  and  Germany  also  quote  the  transposed

27

See  Weston,  J.  (2000)  EIA,  Decision  Making  Theory  and  Screening  and  Scoping  in  UK
Practice, in Journal of Environmental Planning and mangement, Vol. 43, No. 2, pp. 185-203.

91

                                                
requirements of the EIA Directive Annex IV as fulfilling the role of checklist. Ireland
points to the Guidelines on the information to be contained in Environmental Impact
Statements, as indicating the information required. Similarly in the UK, the Guide to
Procedures published by the Dept. for Transport, Local Government and the Regions
contains  a  checklist,  as  does  guidance  published  by  the  EC  and  other  sources.  An
Italian  decree  (DPCM  of  27.12.88)  sets  out  “technical  rules”  indicating  what  the
contents  of  an  environmental  statement  should  include.  A  general  guide  on  the
contents  of  environmental  impact  studies  is  available  in  France,  together  with
technical guides for the main project types.

4.9.5 To  promote  quality  in  Finland,  an  “EIS  of  the  year”  award  is  made  by  the
Finnish  Association  for  Impact  Assessment  at  its  annual  conference.  In  the
Netherlands, project-specific guidelines are prepared for each individual project based
on  wide  consultation  (with  the  public,  advisors  and  the  EIA  Commission).  These
project-specific guidelines are developed from the Dutch EIA legislation. At the stage
of  formal  acceptance  (not  necessarily  approval)  of  the  environmental  statement,  the
competent  authority  will  check  the  contents  of  the  environmental  statement  against
the  specific  guidelines.  Where  the  information  is  not  satisfactory,  supplementary
information  is  required.  Subsequently  the  EIA  Commission  reviews  the  information
available in terms of: “the state of the art”, whether relevant alternatives are described
and in particular, the most environmentally-friendly alternative, as well as the quality
of information on environmental impacts. In almost all those cases where information
was  initially  judged  to  be  inadequate  and  further  information  was  required,  that
information  has  subsequently  been  provided.  Other  participants  in  the  Netherlands
quality  control  process  are:  the  public,  the  regional  environmental  authorities  and
nature conservation authorities.

4.9.6 To  judge  the  quality  of  the  outcome  of  the  EIA  process  requires  post-
authorisation monitoring and the EIA Directive does not provide for this stage, even
though  it  is  a  familiar  part  of  the  procedure  in  very  many  countries.  Some  Member
States do have in place mechanisms for reviewing the outcome of the EIA. The Dutch
EIA legislation includes an evaluation provision that requires the competent authority
to  draw  up  an  evaluation  programme.  This  programme  reviews  the  outcome  of  the
prediction  in  the  Environmental  Statement  (ES)  and  compares  it  with  existing
conditions.  If  the  evaluation  shows  that  the  environmental  effect  is  worse  than
predicted,  the  competent  authority  may  order  extra  environmental  measures.  The
report of the evaluation programme is public and is usually conducted five years after
the  implementation  of  the  project.  Greek  national  legislation  also  provides  for  a
review  of  the  EIA  outcome,  as  part  of  the  renewal  procedure  for  the  environmental
permit. The environment permit for a project is granted for a specific time period and
has  effect  throughout  the  operation  of  the  project.  If  by  the  end  of  this  prescribed
period  no  substantial  changes  occur  in  respect  to  the  environmental  impacts  of  the
project, then the environmental permit is renewed.

92

Table 17 EIS Guidelines

Member State

Guidelines on preparation of environmental statements

Austria

Belgium-

General guidelines on environmental statements – Federal Environment Ministry
Guidelines for environmental statement of waste incineration and thermal power
plants
www.ubavie.gv.at/umweltregister/uvp/intro/htm
Fed Min for Agriculture, Forestry, Environment and Water Management::
Guidelines with regard to skiing areas, shopping centres, etc.
www.lebensministerium.at/Umwelt/Umweltverträglichkeitsprüfung/Materialien
zur UVP
Some Lander also have own guidelines
Brussels
There  are  no  generic  EIA  guidelines,  but  the  competent  authority  prepares
specific  guidelines  for  individual  projects  on  the  basis  of  the  results  of  public
participation  and  also  advice  from  the  College  of  Members  from  the  different
concerned Administrations.
Flanders
General  procedural  and  methodological  guidelines;  also  methodological
guidelines and activity-related guidelines
Walloon
Guideline  preparation  is  in  progress  and  will  be  published  on  a  web  site  in  due
course

Denmark

National guidelines on EIA: www.mim.dk/lpa

Finland

France

Germany

Ireland

Developers  and  sectoral  authorities  (e.g.  energy  production,  mining,  transport
sectors) have written guidelines.
Guidelines on Arctic EIA at http://finnbarents.urova.fi/aria/index.asp (in English).

Some 
recommendations; proportionality is stressed.

non-mandatory 

preliminary, 

general 

guidance, 

consisting 

of

A federal Administrative Order contains guidance on EIA; some Lander have also
produced guidelines

Guidelines  on  the  information  to  be  contained  in  Environmental  Impact
Statements published  by  EPA  in  1995,  updated  in  2002.  Accompanying  Advice
Notes are being reviewed in 2002. See www.epa.ie

Italy

Not yet available

Netherlands

There  are  no  generic  EIA  guidelines,  but  the  competent  authority  prepares
specific  guidelines  for  individual  projects  on  the  basis  of  the  results  of  public
participation and also advice from the Independent EIA Commission.

UK

Good  practice  guide  on  environmental  statement  preparation  was  published  in
1995

Otherwise,  a  new  EIA  process  will  be  initiated  leading  to  the  imposition  of  new
environmental  terms  for  the  project  or  even  the  refusal  to  grant  the  environmental
permit.  The  relocation  of  the  installation  may  also  be  a  possible  condition  in  the
revised environmental  permit.  The  Brussels  region  of  Belgium  also  has  a  time  limit
for the life of an environmental permit (15 years) after which it must be renewed, and
after 30  years there must be a new EIA. In Austria, a post-project analysis has to be
undertaken  for  specific  project  types  (including  waste  treatment  plants,  airports,
hydropower  plants,  processes  for  handling  radioactive  material  and  some  road  and
railway projects) three to five years after the installation has come into operation. The

93

analysis  has  the  aim  of  confirming  compliance  with  the  issued  permit  and  verifies
whether the predictions of the EIA correspond with the actual impacts of the project.
Furthermore,  monitoring  obligations  are  determined  for  other  projects  through
different  administrative  acts  but  may  not  specifically  focus  on  the  information
relevant  to  the  EIA.  The  Walloon  region  in  Belgium  is  currently  developing  a
methodology  for  review.  Spain  applies  a  ‘Vigilance  Measure’  to  ensure  that
mitigation measures (‘corrective measures’) have been applied.

Summary of Main Findings: Quality Control

There  are  few  formal  measures  in  place  for  the  control  of  the  quality  of  the  EIA
procedures. The Directive itself is rather weak on this point and focuses more on the
EIA  procedural  aspects.  Ensuring  quality  control  in  EIA  is  largely  left  to  the
competent authorities and the checks provided by judicial review processes. The lack
of central monitoring of the key stages of EIA make it difficult for Member States to
ensure that their EIA systems are being consistently and correctly applied. There are,
however,  some  examples  of  innovative  practice,  with  some  Member  States  making
use of post-decision monitoring of projects to ensure the quality of the outcome of the
EIA process.

Action: see recommendation 5.4.2. (a), (d), (e),and (k).

94

5.

THE EFFECTIVENESS OF THE EIA DIRECTIVE AS A WHOLE

5.1.0

Introduction

5.1.1 The preamble to the EIA Directive states that the "best environmental  policy
consists  in  preventing  the  creation  of  pollution  at  source,  rather  than  subsequently
trying to counteract there effects". In the Commission's view, the EIA is an important
aid  to  decision  making  that  seeks  to  ensure  that  the  pro-active  approach  to
environmental  policy  is  implemented  for  major  projects  likely  to  have  significant
effects  on  the  environment.  The  preamble  goes  on  to  say  that  the  "principles  of  the
assessment  of  environmental  effects  should  be  harmonised,  in  particular  with
reference to the projects which should be subject to assessment, the main obligations
of  the  developers  and  the  content  of  the  assessment."  The  degree  to  which  the  EIA
Directive  helps  to  achieve  the  preventative  aspect  of  environmental  policy  and  the
degree to which harmonisation of assessment for projects, developer obligations and
the  content  of  assessment  has  been  achieved,  can  both  be  seen  as  measures  of  the
effectiveness of the Directive as a whole.

5.1.2 The  amendments  made  by  97/11/EC  provided  a  significant  strengthening  of
the procedural base of EIA. Directive 97/11/EC also strengthened the harmonisation
of  the  projects  made  subject  to  EIA  by  increasing  the  number  of  projects  listed  in
Annex I. In providing the Annex III screening criteria for Annex II projects, 97/11/EC
also  provided  a  firm  basis  for  ensuring  that  screening  decisions  are  based  on  clear
environmental  considerations.  Yet,  as  this  review  has  revealed,  there  remains  wide
disparity in both the approach and the application of EIA in the Member States of the
EU. So while there are clear strengths, there are also some important weaknesses that
need to be addressed. This final section of the report will examine the strengths and
weaknesses  of  the  EIA  Directive  as  a  whole  as  an  additional  assessment  of  its
effectiveness.  From  that  analysis  recommendations  will  be  made  for  further
strengthening of the application of the EIA Directive.

5.1.3 This review has produced a great deal of information on the operation of EIA in
the Member States of the EU. It has reviewed ‘best practice’ and practice that is less
good. A Member State may have arrangements in place that are at the ‘cutting edge’
of best practice in one respect and in others display only  a weak commitment to the
EIA process as a whole. From the review of the information assessed here it is very
difficult  to  draw  any  firm  conclusions  on  the  role  EIA  plays  in  project  decision-
making.  It  is  apparent  from  the  respondents  that  the  environmental  considerations
raised  by  the  EIA  process  are  balanced  against  other  societal  and  economic
considerations  in  the  decision-making  process.  However,  the  wider  literature  on  the
impact of the EIA Directive suggests that one of its most significant effects has been
at the design stage of projects where mitigation measures are built into projects at the
start. The public nature of the decision making process and the public examination of
the  environmental  information  forces  developers  to  put  their  projects  in  the  best
possible light at the start of the consent procedures. This should result in better, less
environmentally damaging projects and  yet without monitoring either the process  or
the outcome of EIA,  Member  States  are  not  in  a  position  to  confirm  that  this  is  the
case.

95

5.2

Strengths

5.2.1 This  review  has  identified  many  strengths  in  the  operation  of  the  EIA
Directive. These strengths reflect both the application of the procedures laid down by
the Directive  and  the application  of  good  practice  by  individual  Member  States  that
often  go  beyond  the  requirements  of  the  Directive.  Many  countries  have  developed
their own guidance on best practice that sits  alongside  the  guidance  prepared by  the
European  Commission  on  screening,  scoping,  review  and  cumulative  impact
assessment.  There  is  also  project  specific  and  issues  specific  guidance,  such  as  on
health  impacts,  available  in  some  countries.  Member  States  have  embraced  the
subsidiarity principle in their transposition and operation of the EIA Directive with a
range of approaches to screening, scoping and review operating across the European
Union. Some countries do have good data bases on EIA activity, which allows them
to clearly list output by Annex and by Project Type on an annual basis. This is very
useful for monitoring implementation, trends and for EIA research activities.

5.2.2 There  are  very  few  calls  for  further  amendments  to  the  Directive  and  few
concerns  regarding  issues  such  as  the  current  split  between  Annex  I  and  Annex  II
projects  or  for  further  clarification  from  the  Commission  on  definitions  of  project
types. Many Member States appear to be making use of the 'traffic light' approach to
screening  and  have  developed  inclusion,  exclusion  and  indicative  or  guidance
thresholds based on the screening criteria set out in Annex  III. Most Member  States
clearly  welcome  the  introduction  of  Annex  III  as  an  aid  to  making  more  consistent
screening decisions and have transposed it directly into their own EIA legislation. The
Annex III screening criteria of sensitive geographical areas (sensitive area) has been
incorporated into the domestic EIA legislation of Member States, and in many cases
they  have  expanded  on  the  concept  to  cover  their  own  nationally  designated
environmentally sensitive areas. Many Member States clearly appreciate the value of
an early scoping stage and in a few cases this has been made mandatory and includes
public  consultation.  Some  Member  States  have  formalised  a  review  procedure  to
ensure  that  the  environmental  information  supplied  to  the  competent  authority  is  in
compliance with the Directive. There is clear evidence that Member States are aware
of the importance of tackling the problem of 'salami slicing' and the need to assess the
impacts  of  changes  and  extensions  to  projects  and  some  Member  States  ask  for  an
EIA  when  a  change  of  capacity  is  proposed,  which  does  not  necessarily  involve
construction works. Indeed, many Member States have in place  clear  procedures  for
dealing  with  these  key  issues  such  as  reviewing  the  environmental  information
supplied  by  the  developer  ,  ‘salami-slicing’  ,  cumulation  with  other  projects,  risk
transboundary impacts, post decision monitoring and linking EIA and IPPC .

5.2.3 The consideration of alternatives is a central focus of the EIA process in some
Member  States  and  in  the  majority  of  Members  States  an  assessment  of  the  zero
alternative is a mandatory requirement. There seems to be growing awareness of the
issues  raised  by  the  requirement  to  assess  the  cumulation  of  impacts,  and  measures
have been established in many Member States to address this. Many Member States
have  innovative  systems  in  place  for  ensuring  the  public  have  an  opportunity  to
participate in the very early stages of EIA and throughout the EU the public are given
an  opportunity  to  comment  on  the  projects  that  are  subject  to  EIA.  Furthermore,
public  participation  and  access  to  justice  will  be  considerably  strengthened  by  the
transposition  of  the  Aarhus  Convention  into  the  EIA  Directive.  The  draft  Directive

96

COM(2000)839, ‘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’  widens  the  scope  of  public  participation  in
EIA by specifying certain details and practicalities. In some Member States there is a
requirement  for  post-decision  monitoring  of  projects  to  ensure  the  quality  of  the
outcome of the EIA process.

5.3 Weaknesses

5.3.1 On  the  other  side  of  the  coin,  this  review  has  identified  many  weaknesses
where  the  operation  of  the  EIA  Directive  could  be  strengthened.  The  review  of  the
transposition  of  97/11/EC  has  shown  that  the  new  measures  introduced  by  the
Directive  have  yet  to  be  implemented  in  full  in  all  Member  States.  The  delay  in
implementing the amendments made by 97/11/EC by some Member States is at odds
with  the  general  importance  that  the  EU,  as  a  whole,  places  on  EIA  as  a  tool  for
implementing wider environmental policies. It is not clear from the evidence reviewed
here  that  all  Annex  II  projects  are  being  subjected  to  a  systematic  screening
procedure.  There  is  wide  variation  in  the  levels  at  which  Member  States  have  set
project  thresholds  with  variations  in  scale  from  10  to  1  for  some  project  types.  In
some  cases  there  is  little  evidence  that  screening  takes  place  below  nationally-
established mandatory thresholds or criteria and there may still be incidences of whole
project types being effectively excluded from EIA. Little evidence has been provided
on  how  the  screening  systems  put  in  place  have  been  operating  in  practice  at
competent  authority  level.  The  level  of  EIA  activity  appears  to  vary  considerably
between  the  countries  of  the  European  Union  and  there  are  large  gaps  in  the
knowledge  of  EIA  activity  and  in  some  cases  there  is  little  of  any  monitoring  at
national level. The part the public concerned  can  play  in the screening  stage is  only
recognised by a few Member States.

5.3.2 There  appears  to be little real commitment to scoping in those  countries  that
have not made scoping a mandatory requirement or have not provided for voluntary
public  consultation  within  their  scoping  stage.  In  many  Member  States  competent
authorities  review  the  adequacy  and  completeness  of  the  environmental  information
without the aid of specific nationally-produced review check lists or review criteria. In
around  half  of  all  Member  States  there  has  been  no  research  on  the  quality  of
information contained in environmental statements, and many Member States appear
to  have  little  or  no  information  on  the  quality  or  completeness  of  the  EISs  being
produced.

5.3.3 The extent of public involvement varies considerably and the interpretation of
"the public concerned" varies from quite narrow to wide. No standard practice exists
across  the  EU  and  at  present  it  is  not  possible  to  judge  how  effective  public
participation may be. Improved formal and informal arrangements for consultation on
transboundary impacts with neighbouring countries are needed and there is a need to
ensure that those arrangements are practical.  There  appears to be  little co-ordination
between  the  EIA  Directive  and  other  Directives  such  as  IPPC  and  the  Habitats
Directive. Few formal measures are in place for the overall control of the quality of
the EIA procedures and there appears to be very little monitoring of EIA in practice
by the Member States. There were key information  gaps on significant areas of EIA
including: the number of EIAs that have taken place, screening decisions, quality  of
environmental  information,  public  participation,  salami-slicing,  cumulative  impacts,

97

health  impacts,  biodiversity,  and  decision  making  -  including  delays  between  the
consideration  of  the  environmental  information  and  the  decision  and  between  the
decision and implementation.

5.4

Recommendations

5.4.1 The  information  provided  in  the  Commission's  report  has  revealed  several
shortcomings  and  weaknesses.  These  need  to  be  carefully  assessed  alongside  other
factors in order to decide whether the EIA Directive should be further amended at this
stage. It appears that the main problem lies with the application and implementation
of  the  Directive  and  not,  for  the  most  part,  with  the  transposition  of  the  legal
requirements of the Directive. It is clear, however, from the weaknesses identified that
there is a  need to improve  and strengthen the  application  of  the  Directive  in  several
aspects.  The  Directive  provides  the  framework  and  the  existing  infringement
mechanisms  provide  legal  support  for  better  transposition  or  application  of  the
Directive. In order to  improve  the effectiveness of the Directive,  it  is  important that
the  Member  States  act  responsibly  and  use  the  information  provided  in  this  report
positively to enhance their individual and collective performance.

5.4.2 There are several ways to achieve this such as:

– 

– 

– 

– 

– 

(a) Member States should check their national and regional EIA legislation
and  subsequently  remedy  shortcomings  (e.g.  with  regard  to  thresholds,
quality  control,  salami-slicing,  cumulation  etc).  The  Commission  urges
Member  States  to  use  the  coming  amendment  of  the  EIA  Directive  in  the
context of the Aarhus transposition to do so.

(b) A precise form of annual recording and monitoring is indispensable to
provide reliable annual information on the number and type of EIA projects
and  the  outcome  of  key  decisions.  Member  States  should  introduce  such
systems  where  they  do  not  already  exist.  This  will  assist  them,  in  the
Commission's  view,  in  evaluating  the  number  of  EIAs  carried  out,  and  the
types  of  projects  involved,  and  in  assessing  the  performance  and  quality  of
work done. In turn, this will help them to improve their systems.

(c)
In  relation  to  screening,  those  Member  States  that  employ  a  system
with  fixed  mandatory  thresholds  should  make  certain  it  ensures  that  all
projects  that  might  have  significant  effects  are  subject  to  an  appropriate
screening  process.  In  this  exercise,  the  Commission  expects  that  they  will
particularly  consider  projects  planned  in  or  near  sensitive  areas,  and  the
possible cumulation of projects.

(d)
The  Commission urges Member  States  to  make  more  widespread  use
of  its  existing  guidance  on  screening,  scoping,  review  and  cumulative
impacts. There should also  be more training at national levels in  the  use  of
these quality control documents. These documents are found in the web page
of DG ENV: http://europa.eu.int/comm/environment/eia/home.htm.

The quality of the EIA process, and especially the EIS, are the key for
(e)
an effective EIA. The Commission urges those Member States that have yet
to do so to introduce formal provisions for the review  of the environmental

98

– 

– 

– 

– 

– 

information  supplied  by  the  developer  to  ensure  strict  compliance  with  the
terms of the EIA Directive. Such measures could comprise the establishment
of expert pools, guidelines on the co-ordination of experts, clear instructions
about  responsibilities,  the  use  of  independent  external  expert  review  etc.
Another tool of quality control could be the introduction of an efficient post-
decision monitoring system.

The  Commission  believes  that  particular  training  needs  to  be
(f)
introduced in certain Member States for authorities at local and regional level
in  order  to  improve  their  understanding  of  the  EIA  Directive  and  its
application  within  the  respective  national  system.  Mechanisms  for  efficient
administrative management should help to enhance capacity building.

of 

(g)
In the transboundary context Member States should make more use of
guidance provided by the UNECE on bi- and multilateral agreements and the
page:
practicalities 
http://www.unece.org/env/eia). The Commission considers that this will help
ensure  that  adequate  provisions  are  in  place,  for  instance  for  direct  contact
the  relevant  competent  authorities  and  other  agencies  for
between 
consultation on transboundary effects.

(see  UNECE  web 

transboundary  EIA 

(h)
The  quality  of  the  EIA  has  consequences  in  the  decision  making
process and is of key importance for the effectiveness of the Directive. How
the outcome of the EIA influences decision-making is central to the purpose
of EIA and the Directive. The quality of the decision depends on the quality
of  the  information  provided  in  the  EIA  process  and  the  strength  of  an
effective EIA should be shown in a decision that has properly taken on board
and reflects the environmental dimension highlighted in the EIA process. In
some Member States, refusal of development consent is provided for in cases
where serious environmental harm is forecast. In this respect the Commission
believes that Member States should, where necessary, consider strengthening
their  national  procedures  by  ensuring  that  the  conditions  attached  to  the
(subsequent)  decision(s)  are  adequate 
to  prevent  or  mitigate  any
environmental harm that has been predicted.

(i)
The  Commission  will  consider  the  need  for  further  research  into  the
use of thresholds and the various systems applied in screening in order to get
more clarity and comparable data which would enable robust conclusions to
be  drawn  on  how  to  achieve  improvement  and  greater  consistency  of
approach in the screening process. (Initiative 1).

(j)
These  recommendations,  if  put  into  effect,  would  go  some  way  to
improving  the  effectiveness  of  the  Directive  and  the  Commission  will
consider,  in  conjunction  with  the  Member  States,  ways  of  improving  and
extending  the  guidance  which  is  already  available.  The  Commission
envisages  preparing  interpretative  and  practical  oriented  guidance  with  the
involvement of experts from the Member States as well as other stakeholders
like  NGOs,  local  and  regional  authorities  and  industry.  This  could  help  to
overcome  some  of  the  disparities  reported  in  the  definition  of  the  projects
which  are  subject to the  Directive,  the  setting  and  application  of  thresholds
and  screening  criteria,  the  way  scoping  is  carried  out,  the  relationship

99

– 

– 

– 

between the effects of different projects (cumulation, salami-slicing), the way
that risk is  dealt  with in assessments, and the type of data  which  should  be
gathered  in  monitoring  systems.  It  would  also  be  designed  to  improve
considerations  of  health  effects  which  are  often  inconsistently  or  partly
addressed in the EIA process in the Member States. There is clearly a need
for  a  more  systematic  approach.  The  forth-coming  Community  Strategy  on
Health and the Environment will form a sound basis for such an approach by
establishing a consensus regarding the scope of environmental health, as well
as strategies to increase awareness about the linkages between human health
and the environment. (Initiative 2).

The  Commission  will  also  consider  with  the  Member  States  what
(k)
might  be  done  to  improve  the  training  of  officials  responsible  for  EIA  in
order to improve the situation. (Initiative 3).

Capacity building and voluntary action have their limitations, however,
(l)
and  the  Commission  will  continue  to  take  enforcement  action  in  cases  of
incomplete  or  inadequate  transposition,  and/or  poor  application  of  the
Directive. (Initiative 4).

In  due 

(m)
time,  more  consistent  application  may  require  further
amendments  to  the  Directive.  Based  on  the  results  of  the  actions  outlined
above,  the  Commission  will  consider  what  further  amendments  should  be
introduced. For  example,  this  might  be  the  most  efficient  way  of  providing
for  proper  quality  control  and  consistent  data  collection  and  might  also  be
necessary to improve the way thresholds and cumulative effects are handled.
Other clarifications and improvements could be introduced at the same time
(for instance to the procedure for exempting exceptional cases (Article 2(3)).
All these  actions,  combined with  the  implementation  of  the  SEA  Directive,
will produce a robust set of procedures to improve decision-making and help
to achieve the objectives set out in the 6 EAP. (Initiative 5).

100

Appendix One Questionnaires

QUESTIONNAIRE

This  questionnaire  is  addressed  to  EIA  experts  in  Member  States  with  a  view  to
producing  a  report  on  the  application  and  effectiveness  of  the  EIA  Directive
(85/337/EEC amended by Directive 97/11/EC) according  to Art. 11 of the  Directive
(consolidated  version).  It  will  ask  for  specific  information  on  the  current  state  of
legislation and current practice by referring to

– 

– 

– 

questions relating to the amendments of the Directive 97/11/EC,

questions relating to the Directive as a whole and

other  questions with a view to enhance  the  application  and  effectiveness  of
the Directive.

The  responses  to  this  questionnaire  do  not  require  formal  approval  on  behalf  of  the
Member States provided the information submitted is reliable.

I. QUESTIONS IN RELATION TO THE AMENDMENTS OF DIRECTIVE 97/11/EC

Annex II/Screening

1.

2.

– 

– 

– 

– 

– 

– 

– 

– 

– 

How  has  the  treatment  of  Annex  II  projects  improved  due  to  the  screening
mechanisms introduced in Art. 4 para 2 and the relevant ECJ judgements in
relation to Annex II? Please describe the main screening mechanisms.

Which  thresholds/criteria  (please  specify  which  purpose  they  serve,  eg.
indicative  or  mandatory)  for  an  obligatory  EIA  or  for  a  case-by-case
examination  have  been  laid  down  in  your  Member  State  for  the  following
project categories:

Initial afforestation and deforestation (Annex II, Nr. 1d)

Intensive livestock installations (Annex II, Nr. 1e)

Installations for hydroelectric energy production (Annex II, Nr. 3h)

Wind farms (Annex II, Nr. 3i)

Ferrous metal foundries (Annex II, Nr. 4c)

Installations for the manufacture of cement (Annex II, Nr. 5b)

Urban development projects (Annex II, Nr. 10b)

Construction  of  railways  and  intermodal  transshipment  facilities  (Annex  II,
Nr. 10c)

Construction of airfields (Annex II, Nr. 10d)

101

– 

Construction of roads (Annex II, Nr. 10e)

The  above  project  categories  serve  as  examples  allowing  for  a  comparison  of
thresholds and criteria.

3.

4.

Does  your  national  legislation  provide  for  public  participation  during
screening  according  to  Art.  4  para  2?  If  yes,  please  summarise  your
experience  and  indicate  the  reasons  for  including  or  non-including  public
participation during screening.

How have the project categories “industrial estate development projects” and
“urban  development  projects”  (Annex  II,  10  a  and  b)  been  transposed  into
your national legislation? Which types of projects are covered (e.g. shopping
centres,  housing  developments,  fair  grounds,  stadiums,  business  parks)?  Is
there a need for specifying further this project category?

Increase of EIAs

5.

Has  the  amendment  of  Directive  85/337/EEC  by  Directive  97/11/EC  led  to
an increase of  EIAs in  your  Member State?  Please  indicate  an  approximate
figure  of  EIAs  carried  out  each  year  before  and  after  the  application  of
Directive  97/11/EC  (starting  with  1995)  and  specify  according  to  Annex  I
and Annex II project categories.

Scoping and assessment/evaluation

6.

7.

8.

Is “scoping” according to Art. 5 para 2 implemented in a mandatory way in
your Member State?

Has  the  introduction  of  “scoping”  led  to  an  improvement  of  the  quality  of
information  provided  by  the  developer  (according  to  Art.  5  para  1)  in  your
Member State? Has the introduction of “scoping” influenced the length of the
procedure?

Does  your  national  legislation  provide  that  members  of  the  public  (which
ones)  are  consulted  before  the  competent  authority  gives  its  opinion  on  the
information to be supplied by the developer (please indicate the reasons for
including  or  non-including  public  participation  during  “scoping”)  or  is  this
done on a voluntary basis? Has such involvement improved the quality of the
information given?

Transboundary consultations

9.

10.

11.

In  how  many  EIA  cases  according  to  Art.  7  has  your  Member  State  been
involved since 1995 (either as Member State of origin or as affected Member
State)? Please indicate name, type and timeframe of the project.

Which  difficulties  were  encountered  in  applying  Art.  7  and  how  has  your
Member State overcome these?

Does your Member State have any arrangements under Art. 7 para 5 and on
which basis (treaty, non binding agreement etc.)?

102

II. QUESTIONS IN RELATION TO THE DIRECTIVE AS A WHOLE

Information provided by the developer and completeness of information

12.

13.

14.

How  does  your  Member  State  ensure  that  the  quality  of  the  environmental
information  provided  in  accordance  with  Art.  5  and  Annex  IV  is  sufficient
and the relevant information is submitted by the developer?

How  are  effects  on  biodiversity  dealt  with  (on  which  components  and  on
which  project  categories  or  locations  is  particular  focus  put  on)?  In  the
recitals to Directive 85/337/EEC it is explicitly stated that effects have to be
assessed  to  inter  alia  ensure  maintenance  of  the  diversity  of  species.  Art.  3
obliges  to  assess  the  direct  and  indirect  effects  on  fauna  and  flora.  In  this
assessment biodiversity can be regarded as one assessment parameter.

What methodology (ies) is (are) used for evaluating the interaction between
the factors mentioned in Art. 3? Are the guidelines of the Commission used
in your Member State or has your Member State established own guidelines?

15.

How is it dealt with if there is a considerable delay

– 

– 

between the environmental assessment and the development consent,

between the development consent and the construction or operational phase?

After carrying out the environmental assessment it may occur that – in particular due
to lengthy procedures and delays - the conditions for the assessment may change (e.g.
due to changes  regarding  the  state  of  the  environment  or  new  scientific  evidence  or
developments).

16.

Does  your  national  legislation  provide  for  the  possibility  to  refuse  the
granting of development consent if the EIA shows that serious environmental
effects are to be expected and cannot be mitigated to a tolerable level?

Assessment of effects on human health

17.

What  is  the  existing  practice  in  your  Member  State  concerning  the
assessment  of  health  impacts  within  EIA?  In  which  types  of  projects
particular  focus  is  put  on  the  assessments  of  health  impacts?  Which  issues
are  addressed  in  these  assessments  (health,  well-being,  socio-economic
impacts etc.) and to which extent? According to Art. 3 an EIA has - inter alia
- to identify, describe and assess the direct and indirect effects of a project on
human beings.

Change and extension of projects

18.

19.

How has your Member State implemented the provision of Annex II Nr. 13
(changes and extensions)? Please indicate whether case-by-case examination
and/or criteria/thresholds are used and specify them.

Existing infrastructure projects such as airports, motorways, railways, waste-
water treatment plants or industrial projects may  considerably increase their

103

capacity  without  any  significant  construction  works  (e.g.  increase  of  air
traffic, introduction  of an additional  shift).  Is  this  kind  of  change  treated  in
your Member State as a change or extension of a project listed in Annex I or
II according to Annex II Nr. 13? If yes, please give examples.

“Salami-slicing”

20.

Which  provisions  are  foreseen  in  your  national  legislation  to  prevent
developers from circumventing an EIA and have they proven to be efficient
in practice?

Cumulation of projects

21.

How  does  your  Member  State  take  into  account  the  cumulation  of  projects
and of environmental effects: For example, how are (smaller) projects within
a (short) distance to other projects (either  planned or already  realised)  dealt
with? Are they treated as changes according to Annex II Nr. 13 or as a new
project? Do you have other examples?

Alternatives

22.

23.

Are alternatives being assessed on an obligatory basis in your Member State
(which  ones)?  With  respect  to  the  current  practice,  which  kinds  of
alternatives are assessed? Is the related information on alternatives submitted
from the developer considered satisfactory?

How  is  the  current  practice  in  your  Member  State  with  regard  to  the
assessment of alternatives in relation to the different project categories in the
annexes?  (e.g.  are  alternatives  always  assessed  in  case  of  road  or  railway
projects  but  to  a  lower  degree  or  not  at  all  with  respect  to  other  project
types)?

Risk assessment

According  to  Art.  5  para  1  and  Annex  IV  point  4  the  developer  has  to  submit  a
description  of  the  likely  significant  effects  (direct,  indirect,  secondary,  cumulative,
short, medium and  long-term,  permanent  and temporary,  positive  and negative) of  a
project  in  an  appropriate  manner.  This  should  include  effects  which  occur  due  to
accidents  or  other  exceptional  incidents  (i.e.  natural  disasters  like  heavy  rain,
earthquakes, landslides) when relevant.

24.

25.

With  regard  to  the  information  referred  to  in  Art.  5  is  there  an  explicit
obligation in your Member State to assess and describe the likely significant
effects in case of an accident or under exceptional conditions?

How  is  the  current  practice  in  EIA  procedures  (taking  into  account  the
application  of  the  risk  related  national  law)?  Which  project  categories  are
subject  to  a  risk  assessment  and  which  elements  does  this  risk  assessment
comprise  (risks  for  health,  material  assets,  nature,  water,  air  etc.)  and  to
which extent? Please address in particular

– 

Nuclear power stations and other nuclear installations

104

– 

– 

– 

– 

Dikes and dams

Pipelines

Refineries, chemical industry

Roads and railways (in particular tunnels), airports.

Which  special  locations  for  projects  (e.g.  earthquake  zones)  are  subject  to  a  risk
assessment?

26.

Which risk assessment techniques are used within EIA in your Member State
and  how  is  the  relation  to  risk  assessments  in  other  contexts  (e.g.  Seveso,
IPPC)?  Which  factors/potential  sources  of  incidents  (natural  disasters,
technological or human failure, sabotage etc.) are taken into account?

Public participation

27.

28.

How  is  the  “public  concerned”  determined  in  your  Member  State  (e.g.  in
terms of geographical limitation)?

Which projects entail a high  amount of public participation and how is  this
dealt with?

Relationship to other directives

29.

30.

31.

Has your Member State established a single procedure as mentioned in Art. 2
para  2a  for  projects  falling  under  the  EIA  and  IPPC  Directive  (Directive
96/61/EC)? If yes, please describe its main elements.

Industrial  projects:  Are  the  thresholds/criteria  laid  down  for  an  obligatory
EIA or for a case-by-case examination the same as in Annex I of the IPPC-
Directive in  your  Member  State?  Please  answer  with:  mainly,  partly,  rarely
and give the main reasoning.

Is  there  a  coordination  of  the  assessment  under  Art.  6  or  7  of  the  Habitats
Directive 92/43/EEC with the EIA procedure? If yes, please explain how it is
carried out.

Application of Art. 1 para 5 and exemptions according to Art. 2 para 3

32.

In which cases have Art. 1 para 5 and Art. 2 para 3 been applied? Please give
a short reasoning.

III.  OTHER  QUESTIONS  WITH  A  VIEW  TO  ENHANCING  THE  APPLICATION  AND
EFFECTIVENESS OF THE DIRECTIVE

33.

Have  the  selection  criteria  of  Annex  III  proved  being  efficient?  Have  the
types of sensitive areas referred to in Annex III been further specified in your
national  legislation?  If  yes,  please  give  examples.  Should  there  be  more  or
other screening criteria and if yes, which ones?

105

34.

35.

36.

37.

38.

39.

40.

Is  an  EIA  required  in  your  Member  State  for  other  project  categories  than
those mentioned in Annexes I and II? If yes, please give the reasoning.

Are there new types of projects that should be included in the Annexes I and
II (e.g. installations for the manufacture of particle or fibre board, masts for
mobile  phones  and  radio  or  telecommunication  stations,  golf  courses,
installations  working  with  GMOs  or  pathogenic  microorganisms,
manufacture of lime, shooting ranges or others)? Are there types of projects
that should be dropped from Annexes I and II? If yes, please justify.

Are  the  thresholds/criteria  used  in  Annex  I  the  right  trigger  for  obligatory
EIAs  or  would  there  be  a  need  to  adapt  certain  thresholds/criteria?  If  yes,
please  name  the  project  types  and  the  criteria/thresholds  and  give  the
reasoning.

Should  projects  of  Annex  II  be  moved  to  Annex  I  to  ensure  a  sufficiently
harmonised  application  of  the  Directive  with  respect  to  certain  project
categories? If yes, please give the reasoning.

In  relation  to  biodiversity  issues,  are  there  any  measures  envisaged  to
enhance the proper consideration of biodiversity in an EIA?

Are there measures foreseen in your Member State to review the outcome of
the EIA (after granting the development consent)?

Is access to justice in relation to EIA granted in your national legislation and
in which way (e.g. in which stages of the procedure and to which members of
the public including in transboundary cases)?

DG ENV B.3 (17 Dec 2001)

Additional questions asked by the Impacts Assessment Unit of Oxford Brookes
University.

1) In practice, what factors are used as a basis for judging the quality and sufficiency
of information  supplied  by  the  developer  – for  example  are there  recognised  review
checklists in operation or is each impact statement checked against the items listed in
Annex IV of the Directive ?

2)  Does  your  EIA  legislation  allow  for  a  refusal  of  development  consent  on  the
grounds of insufficient / inadequate information as supplied by the developer? Please
explain how cases of incomplete information are dealt with in your Member State.

3) Has your Member State prepared national or regional guidelines for

– 

a) the preparation of Environmental Impact Statements by developers?

and/or

– 

the  evaluation  of  environmental 

b) 
authorities?

information  by  competent

106

If so, please indicate briefly the scope of these guidelines, who has produced them and
in  what  format  they  are  available  (e.g.  web  page  etc  –  please  supply  the  relevant
internet address)?

4)  In  your  Member  State  has  there  been  any  research  into  the  quality  of  the
environmental  information  or  the  Environmental  Impact  Statement  provided  by  the
developer? If so could you please supply details of the main findings of the study and
details of where the report can be viewed.

5) In practice in your Member State, what has been the largest beneficial change that
Directive  97/11/EC  (the  Amending  EIA  Directive)  has  brought  to  the  EIA  process?
Why is that change beneficial?

6)  In  your  view,  what  is  the  single  most  significant  omission/problem  remaining  [if
any] with the Amending EIA Directive? Please explain why it is a problem and what
remedy you would suggest.

7)  Has  your  Member  state  set  exclusion  thresholds  for  any  Annex  II  projects  -that
means  thresholds  below  which  an  EIA  is  completely  ruled  out.  For  example,  in  the
UK the regulations states that a new intensive livestock installation that is below 500
square meters of floor space and is not in  a  special  area  (e.g.  Natura  2000  site)  will
never require an EIA?

8) If your MS sets mandatory thresholds for Annex II projects, or have transferred any
of  the  Directive's  Annex  II  projects  into  your  own  equivalent  to  Annex  I,  are  there
sub- mandatory thresholds – indicative guidance criteria for screening?

107

Appendix Two: Threshold Tables

INCLUSION or MANDATORY THRESHOLDS

Afforestation

Austria

Deforestation

20 ha or more

Windfarms

Hydroelectric Plant

20MW  or  more  capacity  or
20+ turbines

>15MW  or  chains  of  power
plants  over  2MW;  or  where
the  new  or  additional  water
storage  capacity 
is  >  10
million m3

Belgium

(Brussels)

Zero ha

(Flanders)

(Brussels)

Zero ha

(Flanders)

(Walloon)

7MW or more

New afforestation which may
cause ecological changes

> 3ha

(Walloon)

100 ha or more

(Walloon)

100 ha or more

(Flanders)

>5MW

(Walloon)

10 MW or more

>80 m height or 3+ turbines

No provision for EIA

Denmark

>  30ha 
in  areas  where
afforestation  is  unwanted  in
the adopted regional plan

Forest  >  20  years  old  and
over  30ha  in  an  afforestation
area  designated  in  a  regional
plan and where a comparable
area  of  at  least  the  same  size
is not afforested*

108

Finland

>  200ha  with  non-native
species

> 200ha

France

N/A

Germany

50ha or more

25ha or more

10 ha or more

Greece

Ireland

50ha  or  more  or  replacement
of  broadleaf  high  forest  by
conifer species where the area
involved is over 10ha

10ha 

Over 
natural
woodlands  or  over  70ha  of
conifer forest

of 

Italy

> 20ha

> 5ha

Luxembourg

Netherlands

>1.9 million ECU

>500KW

>35m height or > 10MW and
with 20+ turbines

>2MW or 5+ turbines or less
with 
road
associated 
construction

>1MW or less than 1MW but
with 
road
associated 
construction

>5MW or 5+ turbines

>20MW or where the new or
extended 
of  water
area 
impounded  is  30ha  or  more,
or  where  there  would  be  a
30% change in the maximum,
minimum  &  mean  flows  in
the main river channel

>  30MW  capacity,  or  dam
height  >  10m,  or  storage  >
100,000 m3

Portugal

350 ha or more

50ha or more

20+  turbines  or  located  <
2Km 
similar
from  other 
installations.

> 20MW

109

Spain

Sweden

UK

>  50  ha,  when  there  is  a  risk
of 
ecological
changes

negative 

> 20ha

50+  turbines  and  at  <  2Km
from existing windfarms

storage capacity  >  10  million
m3

10MW  or  more  and  3+
turbines

*  unless  the  relevant  state  authority  declares  that  the  forest  to  be  cleared  is  without  significant  forestry,  biological,  landscape  or  recreational  value

110

Austria

Belgium

Denmark

Finland

France

Germany

Greece

INDICATIVE or GUIDANCE THRESHOLDS

Afforestation

Deforestation

Windfarms

Hydroelectric Plant

or 

expansion 

15ha  or  more  of 
initial
planting  with  species  not
ecologically  suitable  for  the
site in a Category A protected
area, 
of
afforestation  with  species  not
ecologically  suitable  for  the
site in a Category A protected
area if the area was approved
within  the  last  10  years  and
the expansion is 15ha or more
and if the additional new area
is 3.5ha or more

15  ha  or  more  in  a  Category
A  protected  area.  Extension
of  deforestation  if  the  area
was  approved  within  the  last
10  years  and 
total
requested  expansion  is  20ha
or more and if  the  additional
new area is 5ha or more

the 

10MW  or  more  capacity  or
10+ turbines in a Category  A
protected area

Dams  or  other  installations
designed for the holding back
or permanent storage of water
in  Category  A  protected
areas,  where 
the  new  or
additional  storage  capacity  is
over 2 million m3

No provision for EIA

No provision for EIA

Set by Laender

35m height or 10 MW with 6-
19  turbines  (3-5  in  sensitive
areas)

Set by Laender

111

Ireland

Italy

Luxembourg

Netherlands Where afforestation relates to
for
designated 
land 
agricultural  use  and  is  100ha
or more, or where the land is
designated 
non-
agricultural  use  and  is  10ha
or more

for 

Where deforestation relates to
for
designated 
land 
agricultural  use  and  is  100ha
or more, or where the land is
designated 
non-
agricultural  use  and  is  10ha
or more

for 

10MW  or  more  capacity  or
10+ turbines

> 2.5MW capacity

Portugal

Spain

Sweden

UK

Exclusive threshold: 5ha (2ha
in sensitive areas)

Exclusive  threshold:  1ha  (0.5
in sensitive areas)

Indicative 
threshold:  5  or
more  turbines  or  >  5MW
capacity

threshold: 

Exclusive 
2
turbines; hub height or height
of any other structure < 15m

Indicative  threshold:  >  5MW
capacity

Exclusive 
0.5MW capacity

threshold: 

<

112

INCLUSION or MANDATORY THRESHOLDS

Ferrous Metal Foundries

Cement Manufacture

Urban Development

Railways

Austria

Annual production capacity >
100,000 tonnes

Annual production capacity >
300,000 tonnes

Shopping  centres  covering  10ha  or
more  or  with  a  car  park  for  1,000
or  more  vehicles;  car  parks  for
1,500 or more vehicles

New  railway  lines  of  10km
or more in length

Belgium (Bru) No provision for EIA

N/A – all projects assessed on
case by case basis

Projects  with  >  200  parking  places
or > 20,000 sq.m. office floorspace

Belgium (Fla) Annual  production  capacity  -

150,000 tonnes or more

Annual production capacity –
500,000 tonnes or more

Belgium
(Wal)

Annual  production  capacity
of 100,000 tonnes or more

Production  capacity  of  500
tonnes or more per day

2,000 or more dwellings or area of
10ha  or  more;  office  floorspace  of
100,000 sq.m. or more; recreational
facilities  which  attract  a  daily
average of 1,000 or more cars

construction 

Housing  estates  of  2ha  or  more;
commercial  &/or  office  buildings
with a floor area of 10,000sq.m. or
more; 
or
transformation  of  buildings  of  6  or
more  storeys  in  urban  areas  (3  or
more  storeys  outside  urban  areas);
shopping  centres  with  total  area  >
2,500  sq.m.;  entertainment  venues
with  a  capacity  of  >  2,000  people;

Long distance railway lines;
or  modification  of  existing
railway  lines  to  three  or
more tracks

No information

Area > 2ha

113

parking places for > 250 vehicles

Denmark

N/A – all projects assessed on
case by case basis

N/A  –  EIA  always  required
for this type of project

N/A – all projects assessed on case
by case basis

N/A  –  all  projects  assessed
on case by case basis

Finland

France

N/A – all projects assessed on
case by case basis

N/A  –  EIA  always  required
for this type of project

N/A – all projects assessed on case
by case basis

N/A  –  all  projects  assessed
on case by case basis

information  provided,
No 
other  than  that  the  thresholds
are “very low”

Production  capacity  >  5
tonnes per day

No information

Project  financial  cost  >  1.9
million euros

114

INCLUSION or MANDATORY THRESHOLDS

Ferrous 
Foundries

Metal

Cement Manufacture

Urban Development

Railways

Germany

production
Annual 
capacity  –  200,000
tonnes  or  more  cast
iron

capacity 

–
Production 
1,000  tonnes  or  more  per
day

Car  parks  covering  1ha  or
more;  shopping  centres  with
floorspace  of  5,000  sq.m.  or
more; 
urban
other 
development  projects  with
surface area of 100,000 sq.m.
or more

N/A – EIA always  required  for  this  type  of
project

Greece

Ireland

N/A  –  EIA  always
required  for  this  type
of project

always
–  EIA 
N/A 
required  for  this  type  of
project

Batch  capacity  of  5
tonnes  or  more  or
where  the  production
area is > 500 sq.m.

N/A 
always
–  EIA 
required  for  this  type  of
project

N/A – no thresholds specified N/A – EIA always  required  for  this  type  of

project

N/A – EIA always  required  for  this  type  of
project

Housing  development  of  >
500  dwelling  units;  car  parks
with  >  400  spaces;  shopping
centres  with  gross  floorspace
>  10,000  sq.m.;  other  urban
development 
projects
covering  >  2ha  in  a  business
district  or  >  10ha  in  other
parts  of  a  built-up  area  or  >
20ha elsewhere

115

Italy

Production  capacity  >
20 tonnes per day

Production  capacity  >  500
tonnes  per  day  for  cement
(or > 50 tonnes per day for
lime)

urban 
(or 

development
New 
projects 
extensions)
covering  >  40ha,  or  >  10ha
within existing urban areas

No information

Luxembourg

No data

No data

No data

No data

Netherlands

N/A  –  no  mandatory
thresholds

N/A  –  no  mandatory
thresholds

development 

of
Housing 
2,000  or  more  dwellings
outside the built environment,
or 4,000 or more dwellings in
environment;
the 
industrial  estates  covering
100ha or more

built 

Addition  of  2  or  more  tracks,  which  for  a
length of 5km or more lies in a buffer zone
or  a  sensitive  area  delineated  in  a  land  use
plan or regional plan; or an entirely new rail
track  which  for  a  length  of  500m  or  more
lies  a  distance  of  25m  or  more  from  the
boundary  of  land  designated  for  railway
railway
purposes;  or  construction  of 
structures & ancillary equipment on land not
designated for railway purposes, where these
are situated  entirely within a buffer zone  or
sensitive  area;  or  resumption  of  use  of  an
existing  railway  line  which  for  a  length  of
5km  or  more  lies  in  a  buffer  zone  or
sensitive area

116

INCLUSION or MANDATORY THRESHOLDS

Ferrous Metal Foundries

Cement Manufacture

Urban Development

Railways

Portugal

Production  capacity  –  20
tonnes or more per day

Spain

Sweden

Production  capacity  >  20
tonnes per day

this 

N/A  –  EIA  always  required
type  of  project
for 
(except for casting, for which
the 
annual
threshold 
production > 100 tonnes

is 

N/A  –  all  installations  for
are
cement  manufacture 
(The
subject 
to 
EIA. 
for 
threshold 
lime
manufacture 
is  production
capacity > 50 tonnes per day)

Production  capacity  >  500
tonnes per day for cement (or
> 50 tonnes per day for lime)

N/A  –  EIA  always  required
for this type of project

Area  >  10ha  or  >  500
dwellings

5km or more in length

N/A – no thresholds specified Construction  of  all  long  distance

railway lines

N/A – no thresholds specified Construction  of  all  long  distance
railway  lines,  or  5km  or  more  of
new 
long
tracks 
distance railway lines

for  existing 

UK

N/A 
– 
thresholds

no  mandatory

N/A 
– 
thresholds

no  mandatory

N/A 
– 
thresholds

no  mandatory

N/A – no mandatory thresholds

117

INDICATIVE or GUIDANCE THRESHOLDS

Ferrous Metal Foundries

Cement Manufacture

Urban Development

Railways

Austria

Annual production capacity >
50,000  tonnes  in  a  Category
D  protected  area  (i.e.  an  area
where 
limits
the  exposure 
specified  by  the  Ambient  Air
Quality  Act  are  exceeded
repeatedly  or  for  a  prolonged
period of time)

Annual production capacity >
150,000 tonnes in a Category
D protected area

Car  parks  with  between  750
& 1,500 vehicles in Category
A protected areas

Belgium (Bru) N/A – no provision for EIA

N/A – all projects assessed on
case by case basis

Projects  with  >  25  covered
parking  places  or  >  50  open
air parking places

100m; 

Modification  of  railway  lines
over  a  length  of  10km  or
more, if the distance between
the existing & modified route
exceeds 
or
construction  of  new  railway
lines  of  5km  or  more  if  they
lead  through  a  Category  A
(protected areas) or  B (alpine
region)  ;  or  modification  of
existing  railway  lines  over  a
length of 5km or more, if the
distance  between  the  existing
&  modified  route  exceeds
100m and they lead through a
Category  A  or  B  protected
area

N/A  –  all  public  works  in
relation  to  transport  which
significant
entail 
modification of the conditions
of  circulation  are  subject  to
case by case screening

a 

Belgium (Fla) N/A

N/A

N/A

No information

118

Belgium
(Wal)

Denmark

Finland

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

N/A – all projects assessed on
case by case basis

N/A  –  EIA  always  required
for this type of project

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

N/A  –  EIA  always  required
for this type of project

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

France

No information

N/A

No information

N/A

Germany

General 
screening  –  20
tonnes  or  more  castings  per
day;

screening 

General 
–
production  capacity  <  1,000
tonnes per day

screening 

Site-related 
between  2  and  20 
castings per day

–
tonnes

N/A  –  EIA  always  required
for this type of project

General screening – car parks
covering  0.5-1.0ha;  shopping
centres  with  floorspace  of
other
1,200-5,000 
urban  development  projects
of 20,000-100,000 sq.m.

sq.m.; 

119

INDICATIVE or GUIDANCE THRESHOLDS

Ferrous Metal Foundries

Cement Manufacture

Urban Development

Railways

N/A  –  EIA  always  required
for this type of project

N/A  –  EIA  always  required
for this type of project

N/A – no thresholds specified N/A  –  EIA  always  required

Greece

Ireland

Italy

N/A

N/A

Luxembourg

No data

N/A  –  EIA  always  required
for this type of project

N/A

N/A

No data

N/A

No data

for this type of project

N/A  –  EIA  always  required
for this type of project

No Information

No data

N/A

Netherlands

Annual  smelting  capacity  of
15,000 tonnes or more

Annual  production  capacity
of 100,000 tonnes or more

development 

Housing 
of
2,000-4,000  dwellings  in  the
built  environment;  industrial
estates  covering  75-100ha;
other 
development
projects  covering  100ha  or
more  or  with  a  commercial
floorspace  of  200,000  sq.m.
or more

urban 

Portugal

N/A

N/A

N/A

N/A

120

Spain

for
N/A  –  no  provision 
screening  of  projects  below
the mandatory threshold

for
N/A  –  no  provision 
screening  of  projects  below
the mandatory threshold

N/A – no thresholds specified All  other  construction  of
railways  (i.e.  other  than  long
distance 
lines),
including  tramways,  elevated
&  underground  railways  and
suspended lines

railway 

Sweden

UK

N/A  –  EIA  always  required
for 
type  of  project
(except for casting)

this 

N/A  –  EIA  always  required
for this type of project

N/A – no thresholds specified N/A

Exclusive  threshold  –  area  of
new floorspace > 1,000 sq.m.

Exclusive  threshold  –  area  of
new floorspace > 1,000 sq.m.

Exclusive  threshold  –  area  of
development of 0.5ha or more

Exclusive  threshold  –  area  of
works > 1ha

or 

10ha, 

threshold 

Indicative 
–
operational  development  area
smaller
> 
are
developments 
to
to  give 
expected 
significant  waste  discharges,
emission  of  pollutants  or
operational noise

that 

rise 

Indicative threshold -

Indicative  threshold  -  >  2km
in length

or 

10ha, 

threshold 

Indicative 
–
operational  development  area
smaller
> 
are
developments 
to
to  give 
expected 
significant  waste  discharges,
emission  of  pollutants  or
operational noise

that 

rise 

121

INCLUSION or MANDATORY THRESHOLDS

Intermodal 
Facilities

Transhipment

Airfields

Roads

Austria

Marshalling  yards  with  an
area  of  75ha  or  more;  or
stations,
railway 
freight 
terminals 
distribution
or 
centres  with  an  area  of  50ha
or more

Construction  of  new  airports;
construction  of  new  runways
with  a  length  of  2,100m  or
more 
for
military, emergency or public
security purposes)

(except 

those 

Belgium (Bru) No information

Runway  length  of  2,100m  or
more

10km  or  more  in  length,  or
second  carriageway  10km  or
more  in  length;  or  5km  or
more  in  length  if  the  new
road  is  expected  to  reach  an
average  daily  traffic  volume
(ADTV)  of  15,000  vehicles
within  5  years;  or  additional
interchanges  if  the  existing
federal road has an ADTV in
this section of at least 35,000
vehicles  (or  is  expected  to
reach  35,000  vehicles  within
5 years)

EIA  mandatory  for  type  of
roads  listed  in  Annex  I,  but
also  for  bridges,  tunnels  &
modification  of  roads  to  4  or
more lanes

Intensive 
Installations

Livestock

>  48,000  places  for  laying
hens,  young  hens  or  turkeys;
>  65,000  places  for  broilers;
> 2,500 places for production
pigs; > 700 places for sows

Annex I thresholds

Belgium (Fla) No information

Runway  length  of  2,100m  or
more

No information

No data

Belgium

Area > 2ha

Runway  length  of  2,100m  or Construction  of  new  public Pigs  over  30kg  -  >  2,000

122

(Wal)

more

urban  road  systems  of  >  2
lanes

Denmark

N/A – all projects assessed on
case by case basis

Airports with a runway length
>  2,100m,  or  airfields  which
result  in  a  significant  noise
nuisance  in  areas  that  are
designated 
residential
for 
purposes  or  other  noise-
sensitive uses

4  or  more  lanes  and  2km  or
more in length; or main roads
through  areas  designated  as
nature reserves

animals;  pigs  under  30kg  -  >
3,000  animals;  sows  -  >  750
animals; fowls & chickens - >
40,000 animals; ducks, geese,
turkeys  -  >  25,000  animals.
EIA is also required if any of
the  above 
involve  annual
production  of  20  tonnes  or
more of organic nitrogen

>  2,500  places  for  pigs  (30-
100kg);  >  750  places  for
sows;  >  37,500  places  for
hens;  >  80,000  places  for
broilers

123

INCLUSION or MANDATORY THRESHOLDS

Finland

France

Intermodal  Transhipment
Facilities

Airfields

Roads

Intensive 
Installations

Livestock

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
a case by case basis

Project  financial  cost  >  1.9
million euros

Project  financial  cost  >  1.9
million euros

Project  financial  cost  >  1.9
million euros

No information

Germany

N/A 
– 
thresholds

no  mandatory

Runway  length  of  1,500m  or
more

Greece

N/A  –  EIA  always  required
for this type of project

N/A  –  EIA  always  required
for this type of project

Ireland

> 15ha in area

Runway length > 800m

124

New  express  roads;  or  new
Federal  roads  of  4  or  more
lanes  and  5km  or  more  in
length;  or  new  Federal  roads
of  4  or  more  lanes  through
realignment &/or widening of
an  existing  road,  where  the
changed  section  is  10km  or
more in length

Hens & turkey hens – 42,000
or  more  places;  pullets  &
fattening  poultry  –  84,000  or
more  places;  pigs  (30kg  or
more) – 2,000 or more places;
sows  –  750  or  more  places;
piglets  (up  to  30kg)  –  6,000
or more places

N/A  –  EIA  always  required
for  new  roads  (improvement
of existing roads is subject to
case by case screening)

Poultry - > 5,000 places; pigs
-  >  20  sows  with  all  their
offspring 
[check  numbers
here]

4  or  more  lanes  and  8km  or
more in length in a rural area,
or 500m or more in length in
an urban area; or construction
of  a  new  bridge  or  tunnel  of

Poultry  -  >  40,000  places;
pigs  (over  30kg)  -  >  2,000
places  in  a  finishing  unit;  >
400  places  for  sows  in  a
breeding unit; or > 200 places

Italy

N/A  –  no 
specified

thresholds  are

Runway length > 1,500m

100m or more in length

for sows in an integrated unit

Poultry  -  >  40,000  places;
pigs  -  >  2,000  places;  sows  -
> 750 places

Construction  of  freeways  in
urban  areas;  or  improvement
of existing roads to 4 or more
lanes with a length, within an
urban  area,  of  >  1.5km;  or
secondary 
outside
towns

roads 

Luxembourg

No data

No data

No data

No data

125

INCLUSION or MANDATORY THRESHOLDS

Intermodal  Transhipment
Facilities

Airfields

Roads

Netherlands

– 
N/A 
thresholds

no  mandatory

– 
N/A 
thresholds

no  mandatory

– 
N/A 
thresholds

no  mandatory

Portugal

5ha or more in area

Runway  length  of  1,500m  or
more

All trunk roads &  link  roads;
or  national  &  regional  roads
10km or more in length

Spain

– 
N/A 
thresholds

no  mandatory

Runway  length  of  2,100m  or
more

of 

new
Construction 
motorways, 
highways,
express roads & conventional
roads, or modifications of the
above  with  a  length  >  10km,
road  widening  which
or 
results 
motorways,
highways  or  roads  of  double
lanes  with  a  length  of  10km
or more

in 

Intensive 
Installations

– 
N/A 
thresholds

Livestock

no  mandatory

Poultry  –  40,000  or  more
places;  pigs  (over  45kg)  –
3,000 or more places; sows –
400 or more places

>  40,000  places  for  hens  &
other  birds;  >  55,000  places
for  broilers;  >  2,000  places
for  production  pigs;  >  750
places for sows

Sweden

N/A  –  EIA  always  required
for this type of project

Runway  length  of  1,200m  or
more  (different  arrangements
for military airfields)

At least 4 lanes and 10km or
more in length

> 200 animal units (= 20,000
places for poultry; 600 places
for sows)

UK

N/A 
– 
thresholds

no  mandatory

N/A 
– 
thresholds

no  mandatory

N/A 
– 
thresholds

no  mandatory

N/A 
– 
thresholds

no  mandatory

126

INDICATIVE or GUIDANCE THRESHOLDS

Intermodal  Transhipment
Facilities

Airfields

Roads

Austria

N/A

total 

runway 

New  or  extended  runways,  if
length
the 
increases  by  at  least  25%;  or
airport  modifications,  if  this
is  expected  to  increase  the
annual  number  of 
flight
movements  by  20,000  or
more. 
designed
(Projects 
exclusively  to  improve  air
traffic safety are exempt from
EIA)

roads 

federal 

New 
or
extension  measures  if  they
lead  through  Category  A,  B
or  D  protected  areas;  or  any
other  extension  measures  for
express  roads  or  construction
of  new  roads  if  they  lead
through a Category A, B or D
protected  area  and  an  ADTV
of  at  least  2,000  vehicles  is
expected within 5 years

Intensive 
Installations

Livestock

In  a  Category  C  protected
(water  protection  &
area 
conservation  area)  or  in  or
near  settlement  areas,  with  >
40,000 places for laying hens,
young  hens  or  turkeys;  >
42,500  places  for  broilers;  >
1,400  places  for  production
pigs; > 450 places for sows

Belgium (Bru) No information

N/A

N/A  –  all  public  works  in
relation  to  transport  which
entail 
significant
modification of the conditions
of  circulation  are  subject  to
case by case screening

a 

Installations  with  300  small
animals  or  30  large  animals,
but  <  3,000  production  pigs
and < 900 sows

Belgium (Fla) No Information

N/A

No data

No data

Belgium
(Wal)

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

N/A  –  EIA  not  required
below 
mandatory
thresholds

the 

Denmark

N/A – all projects assessed on N/A  –  all  schemes  below  the N/A  –  all  schemes  below  the N/A  –  all  schemes  below  the

127

case by case basis

thresholds 

are
mandatory 
screened  on  a  case  by  case
basis

thresholds 

are
mandatory 
screened  on  a  case  by  case
basis

thresholds 

are
mandatory 
screened  on  a  case  by  case
basis

Finland

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

N/A – all projects assessed on
case by case basis

France

N/A

N/A

N/A

No data

General  screening  –  all  other
Federal 
the
mandatory thresholds)

(below 

roads 

Site-related  screening  applies
to  the  following  :  Hens  &
turkey  hens  –  15,000-42,000
places;  pullets  &  fattening
poultry 
30,000-84,000
places; pigs (30kg or more) –
1,500-2,000  places;  sows  –
560-750 places; piglets (up to
30kg) – 4,500-6,000 places

– 

Germany

General 
projects

screening  – 

all

General  screening  –  runway
length < 1,500m

128

INDICATIVE or GUIDANCE THRESHOLDS

Intermodal  Transhipment
Facilities

Airfields

Roads

Intensive 
Installations

Livestock

Greece

N/A  –  EIA  always  required
for this type of project

N/A  –  EIA  always  required
for this type of project

- 

improvement 

of
N/A 
existing  roads  is  subject  to
case by case screening

– 

all 

installations
N/A 
requiring  a  permit  for  their
establishment & operation but
mandatory
below 
to
subject 
thresholds  are 
simplified EIA

the 

Ireland

N/A

N/A

Italy

N/A  –  no 
specified

thresholds  are

N/A

N/A

N/A

N/A

N/A

Luxembourg

No data

No data

No data

No data

Netherlands

Area of 25ha or more

Runway  length  of  1,000m  or
more

Portugal

N/A

N/A

Spain

- 

all  projects 

N/A 
are
screened  on  a  case  by  case
basis

N/A  –  all  schemes  below  the
mandatory 
are
screened  on  a  case  by  case
basis

threshold 

129

4  or  more  lanes  (not  a  trunk
road,  motorway  or  express
road),  where  the  road  is  5km
or more in length

>  60,000  places  for  broilers;
>  45,000  places  for  hens;  >
2,200  places  for  production
pigs; > 350 places for sows

N/A

No data

N/A

N/A

Sweden

UK

N/A  –  EIA  always  required
for this type of project

N/A

N/A

N/A

Exclusive  threshold  –  area  of
works > 0.5ha

Indicative threshold –  area of
works > 5ha

threshold 

Exclusive 
–
extension  to  a  runway,  or
area of works > 1ha

Indicative  threshold  –  EIA  is
generally  required  for  new
airports;  also  major  works  at
existing  airports  with  a  site
area > 10ha

Exclusive  threshold  –  area  of
works > 1ha

Exclusive  threshold  –  area  of
new floorspace > 500 sq.m.

Indicative  threshold  -  >  2km
in length

Indicative  threshold  –  >  750
sows;  >  2,000  fattening  pigs;
> 60,000 broilers or > 50,000
layers, 
turkeys  or  other
poultry

130