Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the EIA Directive (Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC)
Date: 2009-07-23
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

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.7.2009 
COM(2009) 378 final 

REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN 
PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND 
THE COMMITTEE OF THE REGIONS 

On the application and effectiveness of the EIA Directive  
(Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC) 

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REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN 
PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND 
THE COMMITTEE OF THE REGIONS 

On the application and effectiveness of the EIA Directive  
(Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC) 

1. 

POLICY AND LEGAL CONTEXT 

The aim of this Communication report is to review the application and effectiveness 
of Council Directive 85/337/EEC1 on the assessment of the effects of certain public 
and  private  projects  on  the  environment,  as  amended  by  Directives  97/11/EC2  and 
2003/35/EC3 (hereinafter the Environmental Impact Assessment – EIA Directive), in 
the European Union (EU).  

The EIA Directive has been subject to similar regular reports in the past, which were 
based on Article 11 of the Directive. On the basis of such reports, this EIA Directive 
was  amended  in  1997.  Directive  97/11/EC  widened  the  scope,  strengthened  the 
procedural  stages  and  integrated  the  changes  provided  by  the  UN/ECE  Espoo 
Convention  on  EIA  in  a  transboundary  context.  Following  the  signature  by  the 
Community (June 1998) of the Aarhus Convention on Access to Information, Public 
Participation  in  Decision-Making  and  Access  to  Justice  in  Environmental  Matters, 
the Community law had to be properly aligned with that Convention. Thus, the EIA 
Directive  was  amended  by  Directive  2003/35/EC,  which  sought  to  align  the 
provisions on public participation with the Aarhus Convention.  

The Directive aims to protect the environment and the quality of life, while ensuring 
approximation  of  national  laws  with  regard  to  the  assessment  of  the  environmental 
effects  of  public  and  private  projects.  It  is  a  key  instrument  of  environmental 
integration,  covering  a  wide  range  of  projects  and  making  them  environmentally 
sustainable.  The  means  of  achieving  this  objective  are  laid  down  in  Article  2(1)  of 
the Directive, which states that, before development consent is given, certain public 
and private projects likely to have significant environmental effects by virtue, inter 
alia,  of  their  nature,  size  or  location  are  made  subject  to  a  requirement  for 
development consent and an EIA. The Directive harmonises the principles of the EIA 
by  introducing  minimum  requirements,  in  particular  with  regard  to  the  type  of 
projects that should be subject to assessment, the main obligations of the developers, 
the content of the assessment and the participation of the competent authorities and 
the public.  

At  present,  all  Member  States  (hereinafter  MS)  have  established  comprehensive 
regulatory  frameworks.  However,  the  challenge  of  ensuring  that  the  Directive  is 
implemented  effectively  and  consistently  across  all  MS  is  a  continuous  one.  This 

1 
2 
3 

OJ L 175, 5.7. 85, p. 40. 
OJ L 73, 14.3. 97, p. 5. 
OJ L 156, 25.6.03, p.17. 

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report assesses the 20 years of implementation in an effort to address this challenge. 
The main sources of this report are mentioned in Annex 1.  

The report is well-timed for several reasons: 
–  after EU enlargement in 2004 and 2007, the Directive began to apply in 12 new 

MS;  

–  there  are  growing  environmental  challenges  in  the  areas  of  climate  change  and 

biodiversity;  

–  the  European  Court  of  Justice  (ECJ)  has  delivered  important  rulings  clarifying 

some of the EIA provisions;  

–  there  is  a  need  to  generate  synergy  between  the  Directive  and  the  Espoo 
Convention, including the Protocol on Strategic Environmental Assessment4;  
–  the  EIA  Directive  has  been  identified  as  a  potential  instrument  for  a  future 
simplification exercise,5 the aim being to identify overlaps, gaps and potential for 
reducing 
regarding 
in  particular 
transboundary projects (e.g. pipelines or power cables on the sea bed).  

regulatory  and  administrative  burdens, 

The  report  outlines  the  strengths  of  the  EIA  Directive,  highlights  the  main  areas 
where  improvements  are  needed  and  provides  recommendations,  where  relevant.  It 
concludes with consideration of approaches to improving the Directive.  

2. 

STRENGTHS OF THE EIA DIRECTIVE 

2.1. 

Establishment of comprehensive EIA regimes in all MS 

In general, MS have transposed and implement the EIA Directive largely in line with 
the  Directive’s  objectives  and  requirements.  In  several  cases,  MS  have  introduced 
obligations which go beyond the Directive's minimum requirements. This is the case 
regarding the key stages of the EIA, such as "screening" and "scoping":  

–  "Screening"  is  the  part  of  the  EIA  process  that  determines  whether  an  EIA  is 
required.  In  some  MS,  an  EIA  is  mandatory  for  some  types  of  projects  listed  in 
Annex  II  or  for  other  project  categories  in  addition  to  those  listed  in  Annexes  I 
and II.  

–  "Scoping" is the stage of the EIA process that determines the content and extent of 
the  matters  to  be  covered  in  the  environmental  information  to  be  submitted  to  a 
competent authority. It is an important feature of an adequate EIA regime, mainly 
because it improves the quality of the EIA. Many MS have gone further than the 
minimum  requirements  of  the  Directive,  making  scoping  mandatory  and 
providing for public consultation during scoping. 

2.2. 

Increasing public participation in the decision-making process  

Directive  2003/35/EC  was  to  be  implemented  in  national  law  by  25  June  2005.  At 
the  time  of  writing,  only  Ireland  has  not  completely  transposed  the  Directive;  the 
case is pending before the ECJ (C-427/07). The general impression is that experience 
in the application of the new provisions introduced by Directive 2003/35/EC is still 

4 
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It was approved by Decision 2008/871/EC, OJ L 308, 19.11.08, p.33. 
COM(09)15. 

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limited. Working on the basis of the information available, preliminary observations 
on  the  implementation  of  these  provisions  are  made  in  Annex  2.  Significant 
conclusions  will  be  drawn  by  the  ongoing  assessment  of  the  conformity  of  the 
national transposition measures. 

Most of the MS reported that the amendments introduced by Directive 2003/35/EC 
increase public participation in the decision-making process. In addition, the MS that 
joined  the  EU  in  2004  and  2007  reported  that  the  EIA  Directive  had  contributed 
directly to consolidating democratic development, by improving public participation 
and transparency in decision-making. 

2.3. 

Clarification of the provisions of the EIA Directive by the ECJ 

The  ECJ  has  emphasised  that  the  Directive  is  broad  in  scope  and  purpose  and 
confines the MS' degree of discretion. Most of the ECJ rulings focus on "screening" 
and the decision as to whether or not to carry out an EIA. The ECJ has also provided 
interpretations  of  some  of  the  project  categories  and  the  concept  of  "development 
consent", and has dealt with the issue of retention permissions. The main findings of 
recent rulings are summarised in Annex 3.  

2.4. 

Overall benefits of the EIA Directive 

Two major benefits have been identified. Firstly, the EIA ensures that environmental 
considerations  are  taken  into  account  as  early  as  possible  in  the  decision-making 
process.  Secondly,  by  involving  the  public,  the  EIA  procedure  ensures  more 
transparency 
social 
acceptance. Even if most benefits of the EIA cannot be expressed in monetary terms, 
there is widespread agreement, confirmed by the studies available, that the benefits 
of carrying out an EIA outweigh the costs of preparing an EIA6.  

in  environmental  decision-making  and,  consequently, 

In addition, the Commission's experience from the assessment of projects co-funded 
under  the  EU  Regional  Policy,  in  particular  major  projects,  shows  that  EIAs  have 
improved the project design and the decision-making process (including the participation 
of  environmental  authorities  and  the  public)  and  have  helped  to  improve  the 
incorporation of environmental considerations. 

Finally, implementation of the Directive has created specific national dynamics. MS 
have  often  built  on  the  minimum  requirements  of  the  Directive  and  have  gone 
beyond them, by introducing more stringent provisions (on the basis of Article 176 
of  the  EC  Treaty),  which  aim  to  ensure  better  environmental  protection  and  more 
transparency.  Many  MS  have  also  developed  their  own  guidance  on  good  practice 
and  on  specific  project  categories  and  issues.  These  national  experiences  can  be 
shared across the EU. 

It  can  therefore  be  concluded  that  the  principal  objective  of  the  EIA  Directive  has 
been  achieved  and  that  the  momentum  is  there  to  step  up  the  Directive's  minimum 
requirements and improve the Directive. 

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The costs of preparing an EIA as a share of project costs typically range from 0.1% for large projects to 
1.0%  for  small  projects.  These  costs  provide  an  initial  perspective  but  obviously  do  not  take  into 
consideration other costs (e.g. subsequent amendments, reporting, delays).  

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3. 

INDICATIVE AREAS OF THE EIA DIRECTIVE WHERE IMPROVEMENTS ARE NEEDED 

The EIA Directive has evolved after 20 years of implementation. At the same time, 
EU legislation has grown and new policies have developed. While ensuring that the 
EIA  Directive  is  effectively  implemented  across  the  EU,  it  is  also  necessary  to 
identify  areas  where  improvements  are  needed,  such  as  implementation  gaps, 
overlaps with other pieces of legislation and inconsistencies with other EU policies, 
and to provide recommendations, where relevant. 

3.1. 

Concerns regarding the "screening" procedure 

The  EIA  Directive  gives  MS  broad  scope  to  determine,  through  a  case-by-case 
examination  and/or  through  national  thresholds  or  criteria,  whether  an  EIA  is 
required  for  projects  listed  in  Annex  II.  When  establishing  those  thresholds  or 
criteria, MS must take into account the relevant selection criteria set out in Annex III. 
This  provision,  which  is  based  on  the  principle  of  subsidiarity,  resulted  in  a  wide 
variation in the types and levels of thresholds or criteria set by MS.  

Implementation  and  case-law  show  that,  when  establishing  thresholds,  MS  often 
exceed  their  margin  of  discretion,  either  by  taking  account  only  of  some  selection 
criteria in Annex III or by exempting some projects in advance. In addition, although 
the  trend  is  on  the  increase,  EIAs  carried  out  in  the  various  MS  vary  considerably 
(from  fewer  than  100  to  5 000),  even  when  comparing  MS  of  a  similar  size.  The 
levels at which thresholds have been set has clear implications for the amount of EIA 
activity. Furthermore, there are still several cases in which cumulative effects are not 
taken  into  account,  while  problems  remain  when  it  comes  to  eliminating  "salami-
slicing"7  practices,  especially  for  big  investment  plans.  These  features  could 
jeopardise the legitimacy of the Directive and undermine efforts to establish common 
screening  standards.  Thus,  the  screening  mechanism  should  be  simplified  and 
clarified,  for  example,  by  detailing  the  selection  criteria  listed  in  Annex  III  and  by 
establishing  Community  thresholds,  criteria  or  triggers  (e.g.  by  comitology).  The 
possibility  of  granting  consent  on  the  basis  of  a  simplified  prior  assessment 
procedure should be considered. 

3.2. 

Concerns regarding the quality of the EIA  

The  EIA  Directive  lays  down  essentially  procedural  requirements;  it  does  not 
establish obligatory environmental standards. The competent authorities are obliged 
to  take  into  consideration  the  results  of  consultations  and  the  information  gathered 
and to provide specific information at the end of the development consent procedure 
(Articles  8  and  9),  but  they  are  not  obliged  to  draw  specific  conclusions  from  the 
findings of the EIA. Ensuring quality control in an EIA is largely left to the national 
competent authorities. However, the ability to make valid decisions depends on the 
quality of the information used in the EIA documentation and the quality of the EIA 
process. Quality is therefore a crucial element for the effectiveness of the Directive.  

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The practice of dividing projects up into 2 or more separate entities so that each individual element does 
not  require  an  EIA  and  thus  the  project  as  a  whole  is  not  assessed;  or  the  practice  of  obtaining 
permission  for  a  project  that  is  below  a  threshold  (and  thus  not  subject  to  EIA)  and  at  a  later  date 
extending that project or its capacity above the threshold limits. 

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3.2.1.  Quality of the information used in the EIA documentation 

Many MS have pointed out that the lack of sufficient quality in the information used 
in the EIA documentation is a problem. There are major differences in the quality of 
EIA documentation, not only between different MS but also within MS themselves.  

There  are  several  ways  of  ensuring  proper  quality  control  of  EIA  documentation, 
(often presented as a report): proper accreditation of consultants that undertake EIA 
work; preparation of reports by independent consultants; use of independent external 
review  or  expert  assistance;  use  of  guidelines  on  specific  issues  to  be  taken  into 
account  for  certain  types  of  projects;  keep  the  data  used  up  to  date;  mandatory 
"scoping";  introduction  of  comitology  to  update  Annex  IV  (information  to  be 
supplied by the developer). 

3.2.2.  Quality of the EIA process  

Experience  with  implementation  shows  that  some  issues  are  often  raised  in  EIA 
procedures.  

With  regard  to  alternatives,  the  Directive  includes  among  the  information  to  be 
provided  in  the  EIA  documentation  "an  outline  of  the  main  alternatives  studied  by 
the developer and an indication of the main reasons for his choice". Some MS have 
introduced a legal obligation to consider specific alternatives, while others have not. 
The  competent  authorities  and  the  public  may  also  contribute  to  the  selection  of 
alternatives  for  assessment.  The  assessment  of  alternatives  in  EIA  procedures  is 
usually  a  difficult  issue.  It  may  be  necessary  to  specify  what  should  be  required 
under the provisions of the Directive, e.g. by introducing the obligatory assessment 
of  alternatives  or  by  specifying  a  range  of  alternatives  (such  as  the  "do-nothing" 
alternative) to be studied.  

The  lack  of  provisions  in  the  Directive  relating  to  reasonable  timeframe  and 
preferably fixed timeframe for granting development consent, to the duration of the 
validity  of  the  EIA  and  to  monitoring  the  significant  environmental  effects  of  the 
implementation  of  projects  is  also  a  cause  for  concern.  Those  gaps  could  be 
addressed by introducing specific provisions in the Directive. 

3.3. 

Lack of harmonised practices for public participation 

Despite  increasing  public  participation  in  the  decision-making  process  there  is  still 
no standard practice across the EU. This is confirmed by the following: 

–  The  public  must  be  given  early  and  effective  opportunities  to  participate  in  the 
environmental decision-making process. There is no common reference point for 
the beginning of the consultation. In several MS, the public is already consulted at 
an early stage (at the screening stage or at the scoping stage). However, in most 
cases,  the  public  is  consulted  for  the  first  time  on  the  information  gathered 
pursuant to Article 5, which corresponds to the minimum requirement laid down 
by the Directive. 

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–  Under  the  EIA  Directive,  the  timeframe  for  effective  public  consultation  should 
be  reasonable,  since  short  timeframes  are  an  obstacle  in  this  respect.  However, 
timeframes vary considerably8.  

–  The detailed arrangements for informing and consulting the public are determined 
by  the  MS.  However,  public  participation  is  not  effective  when  national 
arrangements are constricted (e.g. when the EIA documentation is only available 
for consultation at the offices of the competent authority).  

–  As  for  access  of  the  public  concerned  to  a  review  procedure,  the  criteria  for 
standing differ considerably from one MS to another, and the cost of procedures is 
considered to be an obstacle to access to justice in some MS. 

These  gaps  could  be  addressed  by  providing  for  early  public  consultation  at  the 
scoping  or  screening  stages  (including  involvement  of  stakeholders)  and  by 
establishing  minimum  timeframes.  Guidelines  could  also  be  developed  on  best 
practices for making the EIA documentation available to the public concerned.  

3.4. 

Difficulties regarding EIA transboundary procedures  

The EIA Directive gives MS broad scope to decide when and how other MS should 
be involved in EIA procedures for projects with transboundary impacts. 

Many  MS  pointed  out  that  transboundary  EIA  procedures  give  rise  to  difficulties 
which are mainly due to differences in national EIA procedures, such as the different 
stages of the project proposal process, different timeframes and language barriers.  

The risks of duplications, inconsistencies, burdens (e.g. administrative) and potential 
conflicts are high for projects which are carried out in areas under the jurisdiction of 
more than one MS (e.g. in sea basins). In addition, there is a risk that the impacts of a 
multi-country project are not assessed as a whole. 

Improved  formal  and  informal  arrangements  are  needed  for  consultation  on 
transboundary  impacts  with  neighbouring  countries.  This  could  be  achieved  by 
developing guidance or by strengthening the Directive's provisions (e.g. definition of 
minimum  timeframes  for  transboundary  consultation,  coordinated  or  possibly  joint 
EIA procedures for multi-country projects; explore the possibility for having a single 
EIA procedure).  

Furthermore,  following  approval  by  the  Council  of  the  SEA  Protocol  to  the  Espoo 
Convention, the EIA Directive could be reviewed to ensure better implementation of 
the requirements of the Protocol.  

3.5. 

Better coordination between the EIA and other EU directives and policies  

In  many  cases,  projects  covered  by  the  EIA  Directive  are  also  subject  to  the 
provisions  of  other  EU  environmental  Directives  and  policies.  Despite  the  risk  of 
overlaps in assessment requirements, no major problems are reported with regard to 

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At the screening stage, the range goes up to 45 days; at the stages of scoping and of the consultation on 
the EIA documentation, the timeframe is between 10 and 60 days. 

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coordination between the EIA Directive and other Directives and policies; in general, 
coordination  is  smooth.  However,  there  is  a  need  to  reflect  on  how  to  improve 
synergy  between  the  EIA  Directive  and  legislation  and  policy  in  specific 
environmental  sectors  such  as  air  quality,  noise  exposure,  waste  and  water 
management,  protection  of  the  marine  environment,  soil  protection,  disaster  risk 
prevention  (including  control  of  major-accident  hazards),  climate  change,  and 
biodiversity.  There  are  specific  issues,  for  example,  which  require  a  thorough 
assessment to ensure better coordination.  

3.5.1.  EIA and SEA 

Directive  2001/42/EC9  (Strategic  Environmental  Assessment  –  SEA)  applies 
"upstream"  to  certain  public  plans  and  programmes,  while  the  EIA  Directive 
applies  "downstream"  to  certain  public  and  private  projects.  The  2  Directives 
address different subjects and are distinct in nature. The following main differences 
have been identified: the objectives of the SEA are expressed in terms of sustainable 
development,  whereas  the  aims  of  the  EIA  are  purely  environmental;  the  SEA 
requires  the  competent  authorities  to  be  consulted  at  the  screening  stage;  the  SEA 
requires  an  assessment  of  reasonable  alternatives  and  has  an  explicit  provision 
concerning the use of information from other sources; the SEA includes requirements 
on monitoring and quality control. 

In  theory,  overlap  should  not  be  expected.  However,  different  areas  of  potential 
overlaps10 in the application of the two Directives have been identified. In particular, 
the  boundaries  between  the  definition  of  a  plan,  a  programme  or  a  project  are  not 
always clear, and therefore there may be some doubt as to whether the subject of the 
assessment  meets  the  criteria  for  requiring  the  application  of  either  or  both  of  the 
EIA  and  SEA  Directives.  In  this  regard,  the  definitions  of  some  project  categories, 
which often relate to land use, are not clear and this might create confusion with the 
SEA. 

Different  approaches  have  been  chosen  by  MS  to  solve  potential  ineffectiveness 
resulting from overlapping procedures. However, many MS often consider that they 
do  not  have  sufficient  experience  to  identify  and  assess  any  overlapping  issues 
properly. This is why very few MS recommended consolidating the two Directives. 
Many  MS  underlined  that  each  process  should  be  preserved  and  distinguished,  as 
these  are  complementary  procedures  addressing  different  stages  and  processes;  MS 
have also asked for guidance documents to be produced. 

Given  the  specificities  of  the  two  processes  and  the  limited  experience  in  applying 
the SEA, there is currently no case for merging these Directives. At this stage, better 
coordination can be achieved by addressing the differences between the provisions of 
the  two  Directives  and  by  clarifying  the  definitions  of  project  categories  for  which 
overlaps can occur. This can be done in the context of the EIA review. 

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10 

OJ L 197, 21.7.01, p.30. 
For instance, where large projects are made up of sub-projects; projects that require changes to land use 
plans;  plans  and  programmes  which  set  binding  criteria  for  the  subsequent  development  consent  of 
projects; and hierarchical linking between SEA and EIA ('tiering'). 

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3.5.2.  EIA and IPPC 

Very  few  MS  have  used  the  option  of  establishing  a  single  procedure  for  projects 
falling  under  the  EIA  Directive  and  Directive  2008/1/EC11  (concerning  integrated 
pollution  prevention  and  control  -  IPPC);  in  some  MS,  a  single  procedure  may  be 
used  at  the  request  of  the  developer.  MS  have  provided  for  solid  forms  of 
coordination  (e.g.  the  EIA  documentation  part  of  the  documentation  for  IPPC 
applications; IPPC permit conditioned by a positive EIA decision; use of same data; 
common public participation procedure).  

In general, no specific coordination problems have been reported. However, for the 
same  type  of  activities,  the  IPPC  Directive  sometimes  sets  thresholds  which  differ 
from  those  used  in  the  EIA;  this  may  cause  some  confusion.  Harmonising  the 
thresholds  and  criteria  used  to  define  projects  subject  to  the  requirements  of  these 
Directives  (e.g.  by  comitology)  and  streamlining  the  provisions  on  information 
requirements  (also  taking  the  ongoing  revision  of  the  IPPC  Directive  into  account) 
should therefore be considered. 

3.5.3.  EIA and biodiversity 

MS have established both informal and formal links between the EIA Directive and 
the Habitats12 and Birds13 Directives (in particular Article 6(3)-(4)14 of the former). 
Although no major problems have been reported, the Commission's implementation 
experience shows that the requirements of Article 6(3)-(4) are not taken properly into 
account in the context of EIA procedures. Furthermore, EIA procedures focus on the 
impact  on  Natura  2000  sites,  while  the  species  protection  provisions  tend  to  be 
neglected.  

The EIA Directive does not make explicit reference to the concept of biodiversity (it 
only  refers  to  fauna  and  flora).  Many  MS  replied  that  the  provisions  of  the  EIA 
Directive already take sufficient account of the substance of the Biodiversity Action 
Plan15  (BAP)  and  that  their  national  EIA  systems  are  effective  in  preventing 
biodiversity loss. However, it appears highly unlikely that the EU will meet its 2010 
target  of  halting  biodiversity  decline16;  intensive  efforts  will  be  required.  In  this 
regard, the biodiversity considerations could be expressly reflected within the text of 
the  EIA  Directive.  In  addition,  a  single  assessment  procedure  for  projects  falling 
under  the  EIA  Directive  and  Article  6(3)-(4)  of  the  Habitats  Directive  could  be 
established.  

3.5.4.  EIA and climate change 

The EIA Directive does not expressly address climate change issues. Most of the MS 
recognise  that  climate  change  issues  are  not  adequately  identified  and  assessed 

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12 

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14 

15 
16 

OJ L 24, 29.1.08, p.7. 
Directive  92/43/EEC  on  the  conservation  of  natural  habitats  and  of  wild  fauna  and  flora,  OJ  L  206, 
22.7.92, p.7. 
Directive 79/409/EEC on the conservation of wild birds, OJ L 103, 25.4.79, p.1. 
This  Article  contains  procedural  and  substantive  safeguards  for  any  plan  or  project  likely  to  have  a 
significant effect on a Natura 2000 site. 
COM(06)216. 
COM(08)864. 

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within the EIA process. Any review of the impacts of climate change is often limited 
to  CO2  and  other  greenhouse  gas  emissions  from  industry  and  from  increases  in 
transport as part of air quality studies or as indirect impacts. The EIA assessment will 
often  not  go  beyond  evaluating  existing  emissions  and  ensuring  that  ambient  air 
quality standards are met. In addition, the effects on global climate, the cumulative 
effects of an additional project and adaptation to climate change are not sufficiently 
considered within the EIA. 

The  above  issues  need  to  be  tackled.  Various  specific  project  categories  where 
climate  change  considerations  should  be  expressly  reflected  within  the  EIA  have 
been  identified.  These  relate  mainly  to  projects  with  potential  significant  CO2 
emissions, such as energy and transport infrastructure projects, but they also include 
projects for which energy efficiency is a key issue. The introduction of comitology 
could be an option for updating Annexes I and II.  

In  addition,  the  MS  called  for  assessment  tools  to  be  developed  (e.g.  on  the 
integration  of  climate  change  issues  into  the  EIA  process).  The  Commission  will 
develop guidelines by 2011 to ensure that climate impacts are taken into account in 
the EIA Directive.17 

4. 

CONCLUSION 

This  report  confirms  that  the  objectives  of  the  EIA  Directive  have  generally  been 
achieved. The principles of environmental assessment have been integrated into the 
national  EIA  systems.  All  MS  have  established  comprehensive  regulatory 
frameworks  and  implement  the  EIA  in  a  manner  which  is  largely  in  line  with  the 
Directive’s  requirements;  in  many  cases,  MS  have  built  on  the  minimum 
requirements  of  the  Directive  and  have  gone  beyond  them.  As  a  result, 
environmental considerations are taken into account in the decision-making process, 
which has become more transparent.  

However,  the  development  of  EIA  is  an  evolving  process.  While  ensuring  that  the 
EIA Directive is effectively implemented across an enlarged EU, it is also necessary 
to  ensure  that  the  EIA  Directive  is  adapted  to  the  Community  and  international 
policy and legal contexts. This report indicates areas where improvements are needed 
(e.g.  screening,  public  participation,  quality  of  the  EIA,  EIA  transboundary 
procedures,  coordination  between  the  EIA  and  other  environmental  directives  and 
policies,  such  as  climate  change  and  biodiversity)  and  presents  possible 
recommendations for action.  

17 

COM(09)147. 

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These  findings  are  relevant  in  the  framework  of  a  simplification  exercise.  The 
Commission  will  consider  all  simplification  methods  (codification,  codification 
combined with the introduction of comitology, recasting, merging, use of regulation). 
Any simplification initiative will aim to improve environmental protection, increase 
the  degree  of  harmonisation  and  simplify  existing  procedures.  Regardless  of  the 
approach  chosen,  the  Commission  will  ensure  that  any  major  modification  will  be 
subjected to a consultation with all stakeholders and will undergo a legislative impact 
assessment. 

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ANNEX 1: Main sources of the report 

–  MS’  responses  to  the  Commission  questionnaire  on  the  application  and 

effectiveness of the EIA Directive (these were sent in 2007 and 2008). 

–  The study commissioned by the Commission on the application and effectiveness 

of the EIA Directive (2009) 

–  The findings of previous reports on the application and effectiveness of the EIA 

Directive. 

–  Relevant  studies  commissioned  by  the  Commission:  "The  Relationship  between 
the EIA and the SEA Directives" (2005); "Costs and benefits of the EIA Directive" 
(2006);  "Inventory  of  EU  Member  States'  measures  on  access  to  justice  in 
environmental  matters"  (2007);  "Evaluation  of  EU  legislation  -  Directive 
85/337/EEC 
Impact  Assessment,  EIA)  and  associated 
amendments" (2007).  

(Environmental 

–  The  Commission's  experience  with  the  implementation  of  the  EIA  Directive 

(including information from complaints and petitions and the case-law). 

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ANNEX  2:  Preliminary  observations  on  the  implementation  of  the  new  provisions 
introduced by Directive 2003/35/EC  

Definitions  of  the  "public"  and  "public  concerned"  (Article  1(2)):  all  MS  appear  to  apply  a 
broad  definition  of  the  "public",  allowing  all  natural  and  legal  persons  to  take  part  in  the 
decision-making process. The picture regarding the definition of "public concerned" is more 
varied. The majority of the MS have included a definition in their national legislation. Some 
MS  do  not  distinguish  between  the  "public"  and  the  "public  concerned";  it  is  not  yet  clear 
whether the lack of a specific definition may be a problem. 

Option  of  exempting  national  defence  projects  from  EIA  on  a  case-by-case  basis  (Article 
1(4)):  the  majority  of  the  MS  have  included  relevant  provisions  in  their  laws.  However,  it 
appears from the information available to the Commission that this option is used very rarely.  

Strengthened  provisions  on  public  consultation  (Article  6(2)  and  (3)):  in  general  the  public 
has acceptable access to the decision-making process. Although a more detailed investigation 
is required to assess the effective implementation of these provisions, some positive features 
emerge: several MS already provide for public consultation at the scoping stage, while some 
MS also provide for public consultation at the screening stage. 

Changes  or  extensions  of  Annex  I  and  II  projects:  all  MS  report  that  they  have  adopted 
national measures to comply with the changes introduced by Directive 2003/35/EC. 

Information on the public participation process contained in the information provided on the 
final  decision  (Article  9(1))  and  provisions  on  public  access  to  a  review  procedure  (Article 
10(a)): it is not possible to draw any conclusions at this stage on the implementation of these 
provisions. However, the Commission has already identified transposition problems in some 
MS and initiated infringement procedures, in accordance with Article 226 EC Treaty.  

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ANNEX 3: Main findings of recent ECJ rulings 

The  ECJ  has  emphasised  that  the  EIA  Directive  is  broad  in  both  scope  and  purpose18  and 
seeks to ensure that MS' discretion does 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, unless the specific  project excluded could, on 
the basis of a comprehensive screening, be regarded as not likely to have such effects. 

Screening mechanism (decision as to whether or not to carry out an EIA)  

MS are obliged to take account of all the relevant selection criteria listed in Annex III when 
establishing criteria or thresholds for Annex II projects. A MS that has established thresholds 
and/or  criteria  that  take  account  only  of  the  size  of  projects,  without  taking  all  the  criteria 
listed  in  Annex  III  into  consideration,  would  exceed  the  limits  of  its  discretion  under  the 
Directive19.  

A  decision  by  which  the  national  competent  authority  takes  the  view  that  a  project’s 
characteristics  do  not  require  it  to  be  subjected  to  an  assessment  of  its  effects  on  the 
environment must contain or be accompanied by all the information that makes it possible to 
check that it is based on adequate screening, carried out in accordance with the requirements 
of Directive 85/337.20 

Interpretation of certain Annex I and II categories of projects 

The  EIA  Directive  must  be  interpreted  as  meaning  that  it  provides  for  an  EIA  of 
refurbishment and improvement projects for urban roads (projects covered by Annex I.7.b or 
c,  or  by  Annex  II.10.e  or  by  Annex  II.13)  that  are  likely,  by  virtue  of  their  nature,  size  or 
location and, if appropriate, their interaction with other projects, to have significant effects on 
the environment.21  

Annex II.12 read in conjunction with Annex I.7 of Directive 85/337, in their original versions, 
also encompasses works to modify the infrastructure of an existing airport, without extension 
of the runway, where they may be regarded, in particular because of their nature, extent and 
characteristics,  as  a  modification  of  the  airport  itself.  This  applies  in  particular  to  works 
designed to increase airport operations and air traffic significantly.22  

A national provision requiring an EIA only for urban development projects (Annex II.10.b) 
outside urban areas narrows the scope of the Directive.23 The argument that a project intended 
to be constructed on completely transformed land would not have significant environmental 
effects  was  rejected.  When  determining  whether  this  type  of  project  has  significant  effects, 
MS should take into account their nature, size or location, and all the screening criteria listed 
in Annex III. 

18 
19 
20 
21 
22 
23 

E.g.C-121/03. 
C-66/06, §§62-63. 
C-87/02, §49. 
C-142/07. 
C-2/07. 
C-332/04. 

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Development consent  

An agreement between public authorities and a private undertaking is not a project within the 
meaning of the EIA Directive; "it is for the national court to determine, on the basis of the 
applicable national legislation, whether such an agreement constitutes a development consent 
within  the  meaning  of  Article 1(2).  It  is  necessary,  in  that context,  to  consider  whether  that 
consent forms part of a procedure carried out in several stages involving a principal decision 
and  implementing  decisions  and  whether  account  is  to  be  taken  of  the  cumulative  effect  of 
several projects whose impact on the environment must be assessed globally".24 

Where  national  law  provides  for  a  consent  procedure  comprising  more  than  one  stage,  one 
involving a principal decision and the other involving an implementing decision which cannot 
extend beyond the parameters set by the principal decision, the effects which a project may 
have on the environment must be identified and assessed at the time of the procedure relating 
to  the  principal  decision.  It  is  only  if  those  effects  are  not  identifiable  until  the  time  of  the 
procedure relating to the implementing decision that the assessment should be carried out in 
the course of that procedure.25 An EIA should be carried out at a later stage where, in the case 
of grant of consent comprising more than one stage, it becomes apparent, in the course of the 
second stage, that the project is likely to have significant effects on the environment. 

Retention permissions and "after-the-event regularisations" of unlawful operations 

While EC law cannot preclude the applicable national rules from allowing, in certain cases, 
the regularisation of operations or measures which are unlawful in the light of EC law, "such 
a possibility should be subject to the conditions that it does not offer the persons concerned 
the  opportunity  to  circumvent  the  Community  rules  or  to  dispense  with  applying  them,  and 
that it should remain the exception".26  

Administrative fees 

The levying of an administrative fee for public participation in the consultation process is not 
in  itself  incompatible  with  the  purpose  of  the  EIA  Directive27.  "A  fee  cannot,  however,  be 
fixed at a level which would be such as to prevent the directive from being fully effective, in 
accordance  with  the  objective  pursued  by  it".  This  would  be  the  case  if,  because  of  the 
amount, a fee were liable to obstruct the exercise of the rights of participation conferred by 
Article 6 of the Directive.  

24 
25 
26 
27 

C-2/07. 
C-201/02, §52; C-508/03; C-290/03. 
C-215/06, §§57-61. 
C-216/05, §§37-38 and 42-44. This ruling relates to the Directive prior to the amendments introduced 
by Directive 2003/35/EC. 

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