COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) and Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste
Date: 2022-04-05
Institutions: Directorate-General for Environment, European Commission
Subjects: EU environmental policy, air quality, carbon neutrality, environmental protection, industrial pollution, pollution control measures, pollution from agricultural sources, soil pollution, waste management, water pollution

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  EN 

   EUROPEAN COMMISSION  Strasbourg, 5.4.2022  SWD(2022) 110 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a  DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  amending      Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) and Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste {COM(2022) 156 final} - {SEC(2022) 169 final} - {SWD(2022) 111 final} - {SWD(2022) 112 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended 

action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy 
initiative? 

The legal basis for this proposal is Article 192 TFEU. In accordance with Article 191 and 
192(1) TFEU, the European Union shall contribute to the pursuit, inter alia, of the following 
objectives: preserving, protecting and improving the quality of the environment; promoting 
measures at international level to deal with regional or worldwide environmental problems, 
and combating climate change. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or 
supporting in nature? 

In the case of environment, the Union’s competence is shared. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 21: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative 
indicators allowing an appraisal of whether the action can best be achieved at Union 
level? 

-  The impact assessment accompanying the combined revision of Directive 2010/75/EU 
of  the  European  Parliament  and  the  Council  on  industrial  emissions  (the  Industrial 
Emissions  Directive  or  IED)  and  E-PRTR  Regulation  was  subject  to  a  thorough 
consultation process. This included a variety of different consultation activities aimed 
at  gathering  the  views  of  all  relevant  stakeholders  and  ensuring  that  the  views  of 
different organisations and stakeholder types were presented and considered.  

-  Firstly,  an  initial  feedback  was  provided  on  the  published  Inception  Impact 
Assessment  via  the  Commission’s  ‘Have  Your  Say’  interactive  portal.  This  was 
followed  by  a  joint  IED  and  E-PRTR  Public  Consultation.  The  survey  contained  24 
questions, four of which concerned specifically the E-PRTR.  

-  Then, a targeted stakeholder survey (TSS) took place from 8 February to 9 April 2021, 
which consisted of an online survey of a more detailed nature  to enhance further the 
evidence  base  through  the  collection  of  more  specialised  feedback  from  targeted 
stakeholder groups on six problem areas, grouped by the options under consideration 
for  the  impact  assessment  study.  These  problem  areas  were  as  follows:  i)  the 
environment  is  polluted;  ii)  a  climate  crisis  is  happening;  iii)  natural  resources  are 
being depleted; iv) state of the art techniques cannot respond satisfactorily to problem 
areas i) to iii); v) private individuals have limited opportunities to get informed about, 
and take action regarding impacts caused by agro-industrial plants; and vi) excessive 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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burdens may affect the efficiency of the policy instrument.  

-  These feedbacks were also complemented with consultation of so-called focus groups, 
held  in  June-August  2021,  to  engage  stakeholders  in  deeper  discussions  on  key 
themes. Stakeholders were selected based on their sectoral representation; and a good 
geographical and stakeholder type distribution between environmental NGOs, industry 
representatives  and  Member  States’  Ministries  and  Competent  Authorities  was 
ensured to enable balanced discussions. Finally, two stakeholder workshops were held 
remotely on 15 December 2020 and 7-8 July 2021. 

-  Civil society and environmental NGOs considered all above-mentioned problem areas 

to be of high relevance, in particular regarding: 

- 

- 

- 

the  environmental  impacts  being  insufficiently  addressed  by  the  IED,  as  well  as 
decarbonisation; 

the need to have the E-PRTR pollutant list updated more quickly to take account of 
new threats; and  

limited access to information on installations’ performance levels.  

-  This  limited  access  to  information  was  perceived  by  all  stakeholder  groups  as  an 

important element to address.   

-  However,  differences  occurred 

in 

the  feedback  from 

industry  and  business 
associations,  who  were  rather  neutral  (but  not  negative)  in  acknowledging  resource 
efficiency  and  less  toxic  production  issues  to  address.  Industry  and  business 
associations  were  also  rather  neutral 
to  foster 
decarbonisation, pointing to potential additional reporting costs and risks of overlaps 
with  the  ETS.  Regarding  the  limited  scope  of  the  Directive,  industry  and  business 
associations  brought  into  play  costs  arguments,  and  claimed  that  existing  national 
regimes  and  existing  EU  legislation  were  allowing  to  sufficiently  tackle  most  of  the 
difficulties encountered.  

in  acknowledging 

the  need 

-  All  stakeholders  agreed  that  the  IED  contribution  to  facilitate,  harness  and  promote 

innovation was too limited. 

-  The  explanatory  memorandum  and  the  impact  assessment  contain  a  section  on  the 

principle of subsidiarity. See also the replies to question 2.2 below.  

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 
Commission’s proposal contain an adequate justification regarding the conformity 
with the principle of subsidiarity? 

Since the objectives of this Directive, namely to ensure a high level of environmental 
protection  and  the  improvement  of  environmental  quality,  cannot  be  sufficiently 
achieved by Member States and can, therefore, by reason of the transboundary nature 
of  pollution  from  industrial  activities,  be  better  achieved  at  Union  level,  the  Union 
may  adopt  measures  in  accordance  with  the  principle  of  subsidiarity  as  set  out  in 
Article 5 of the Treaty on European Union.  

Pollution  from  agro-industrial  installations  travels  across  national  borders  and 
pollution  control  cannot  be  sufficiently  achieved  by  one  Member  State  alone.  In 
addition,  the operation of industrial  plants is closely linked to  the functioning of the 
internal market.  In the absence of a common EU approach for setting environmental 

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performance  standards,  the  same  industries  would  face  different  pollution  control 
regulations  in  each  Member  State,  with  the  risk  of  creating  an  uneven  playing  field, 
fragmenting the single market and impeding the Union’s efforts in pursuing the Treaty 
objective of achieving a high level of environmental and human health protection. 

2.3 Based on the answers to the questions below, can the objectives of the proposed 

action be achieved sufficiently by the Member States acting alone (necessity for EU 
action)? 

The objectives of the proposed action cannot be achieved sufficiently by the Member 
States acting alone. 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems 

being tackled? Have these been quantified? 

Pollution  from  agro-industrial  installations  travels  across  national  borders  and 
pollution control cannot be sufficiently achieved by one Member State alone.   

(b) Would national action or the absence of the EU level action conflict with core 

objectives of the Treaty2 or significantly damage the interests of other Member States? 

In  the  absence  of  a  common  EU  approach  for  setting  environmental  rules  and 
performance standards, industrial sectors within the scope of this Directive would face 
different pollution control regulations in each Member State, with the risk of impeding 
the  Union’s  efforts  in  pursuing  the  Treaty  objective  of  achieving  a  high  level  of 
environmental  and  human  health  protection,  and  of  creating  an  uneven  playing  field 
and fragmenting the Union’s internal market.  

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Through a directive, Member States have the ability or possibility to enact appropriate 
national  measures  when  implementing  an  EU  provision;  which  they  do  not  have  in 
case  of  a  Regulation.  Member  States  can  choose  the  most  appropriate  means  of 
implementing  the  Directive’s  provisions,  in  particular  as  regards  permits  for 
installations as well as compliance and enforcement measures. 

(d) How does the problem and its causes (e.g. negative externalities, spill-over effects) 

vary across the national, regional and local levels of the EU? 

The evaluations of the IED showed that, whilst providing sound frameworks, it is not 
being  implemented  sufficiently  and  homogeneously  across  Member  States.  Various 
levels  of  ambition  are  exhibited  and  the  frameworks  do  not  yet  fully  deliver  on  its 
existing objectives. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

Industrial pollution is a problem widespread across the EU.  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

2 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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Directive 2010/75/EU is the main EU instrument regulating pollutant emissions from 
industrial installations. The IED was adopted on 24 November 2010 and is based on a 
Commission  proposal  recasting  7  previously  existing  directives  (including  in 
particular the IPPC Directive) following an extensive review of the policy (see here). 
The IED entered into force on 6 January 2011 and had to be transposed by Member 
States by 7 January 2013. 
This means that the EU legislative framework on industrial emissions is already well 
embedded in the national legislative frameworks of Member States, and that they have 
had the time to develop the appropriate structure contributing towards the fulfilment of 
the  IED  objectives.  The  current  revision  proposal  can  rely  on  this  structure,  while 
containing several elements aimed at its strengthening. 

(g) How do the views/preferred courses of action of national, regional and local 

authorities differ across the EU? 

Considering the harmful impacts of industrial pollution, there is a widespread view at 
national, regional and local levels that a robust EU legislative framework is necessary 
to  eliminate  or  reduce  those  negative  impacts;  and  that  further  improvements  are 
required to make it fully consistent with the European Green Deal, the zero pollution 
ambition, and climate, energy and circular economy policies. 

2.4 Based on the answer to the questions below, can the objectives of the proposed action 
be better achieved at Union level by reason of scale or effects of that action (EU 
added value)? 

The objectives of the proposed action be better achieved at Union level by reason of 
scale and effects of that action. 

(a)  Are there clear benefits from EU level action?  

EU level action through a harmonised set of rules and principles to regulate industrial 
emissions provides for more efficient and more consistent tools to eliminate or reduce 
the negative impacts of such emissions, including transboundary emissions.  

The IED BAT-based system and the E-PRTR provide information used by all Member 
States, through a single EU level information exchange process, replacing the need for 
each Member State to establish national processes. Operators of industrial plants in all 
Member  States  benefit  from  an  EU  level  playing  field,  and  achieve  economic 
efficiencies by having to adhere only to one EU-wide regulatory approach. 

The EU system is increasingly being used by third countries, thereby  also promoting 
an international level-playing field. 

(b) Are there economies of scale? Can the objectives be met more efficiently at EU level 

(larger benefits per unit cost)? Will the functioning of the internal market be 
improved? 

Overall benefits  of the initiative  considerably  outweigh  costs. Whilst  it has  not  been 
possible to quantify all impacts,  

(i)  monetised  health  benefits  for  the  main  measure  contained  in  the  effectiveness 
option  (see  full  impact  assessment  for  details  of  all  options)  are  €860–2  800 

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million p.a., with business CAPEX/ OPEX costs at c. €210 million p.a.;  

(ii)  wider  coverage  of  livestock  farms  results  in  methane  and  ammonia  emission 
reductions with health benefits of over €5 500 million p.a. and related compliance 
costs of c. €265 million p.a.  

The administrative burden increase is c. €250 million p.a. for industrial operators and 
c. €196 million p.a. for public authorities; this increase is substantially moderated by a 
lighter permitting system for livestock farms. 

Overall, the proposal establishes a legislative framework that equips the EU to address 
the  significant  environmental  challenges  expected  in  coming  decades  from  agro-
industrial activities. 

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The  current  EU  legislative  framework  now  needs  to  be  modernised  and  adapted  to 
play its part in the transition set out in the European Green Deal and the EU Industrial 
Strategy.  The  Commission’s  proposal  to  revise  the  IED  aims  to  make  this  legal 
instruments fit to foster and accompany the transformation of EU industry. 

A  more  homogenous  policy  and  legislative  approach  will  contribute  to  overall 
pollution reductions and decarbonisation between today and 2050, delivering healthier 
ecosystems and improved human health. In parallel, these measures will contribute to 
securing an EU level playing field and ensuring the future competitiveness of the EU’s 
industry  sectors.  This  will  also  support  EU  operators  in  becoming  first  movers  and 
developing innovative world-beating technologies for resource-efficient processes and 
pollution control. 

(d) Do the benefits of EU-level action outweigh the loss of competence of the Member 

States and the local and regional authorities (beyond the costs and benefits of acting at 
national, regional and local levels)? 

A possible limited loss of competence of Member States in certain areas which may be 
induced by this proposal is residual, since the latter i) keeps the form of a Directive as 
the most appropriate tool (see section 2.3(c)); and strengthens and improves an already 
existing  legislative  framework.    Overall  benefits  of  the  initiative  outweigh  any  such 
possible loss of competence of Member States and local and regional authorities. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes, as the proposal contains several improvements and clarifications of current legal 
provisions  where  further  clarity  or  details  appeared  necessary,  as  evidenced  by  the 
Directive’s evaluation (such as provisions on compliance assessment, on public access 
to information and participation, or on enforcement).   

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the 
proportionality of the proposal and a statement allowing appraisal of the compliance 
of the proposal with the principle of proportionality? 

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The IED design ensures proportionality of outcomes by (i) defining BAT as the most 
environmentally effective as well as economically viable range of proven techniques 
used in a sector, and (ii) allowing derogations in individual cases if application of the 
EU-wide  BAT  requirements  would  lead  to  costs  disproportionately  higher  than  the 
expected environmental/health benefits. 

The supporting impact assessment assesses the impacts of all proposed revisions of the 
IED. Both qualitative and quantitative assessment has been undertaken that shows that 
the proposals are proportionate, i.e. that societal benefits are significantly higher than 
the incurred costs. 

The  measures  having  the  most  impacts  were  identified  as  the  extension  of  scope  to 
cattle farms and to  a larger number of pigs  and poultry  farms. The monetised health 
and environmental benefits from reducing methane and ammonia are valued at over €5 
500 million/year, while the compliance costs are €265 million and administrative costs 
for both operators and public administrations, are €223 million, i.e. a very beneficial 
cost-benefit factor of 11 for the whole livestock sector.  

3.2 Based on the answers to the questions below and information available from any 

impact assessment, the explanatory memorandum or other sources, is the proposed 
action an appropriate way to achieve the intended objectives? 

The proposed action constitutes an appropriate way to achieve the intended objectives. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve 

satisfactorily on their own, and where the Union can do better? 

The initiative is limited to those aspects that Member States cannot achieve 
satisfactorily on their own, and where the Union can do better. 

(b) Is the form of Union action (choice of instrument) justified, as simple as possible, and 
coherent with the satisfactory achievement of, and ensuring compliance with the 
objectives pursued (e.g. choice between regulation, (framework) directive, 
recommendation, or alternative regulatory methods such as co-legislation, etc.)? 

The objectives of this proposal can be best pursued through a Directive, which is the 
most appropriate instrument to amend an existing directive. It is  as simple as possible, 
and coherent with the satisfactory achievement of, and ensuring compliance with the 
objectives pursued legal instrument to make amendments to the existing Directive on 
Industrial Emissions (Directive 2010/75/EU - IED).  

A  Directive  requires  Member  States  to  achieve  the  objectives  and  implement  the 
measures  into  their  national  substantive  and  procedural  law  systems.  This  approach 
gives the Member States more freedom when implementing an EU measure than does 
a Regulation, in that Member States are left the choice of the most appropriate means 
of implementing the measures in the Directive. This allows Member States to ensure 
that  the  amended  rules  are  embedded  in  their  substantive  and  procedural  legal 
framework implementing the EU IED, in particular regulating permits for installations 
as well as enforcement measures and penalties.  

(c)  Does the Union action leave as much scope for national decision as possible while 
achieving satisfactorily the objectives set? (e.g. is it possible to limit the European 

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action to minimum standards or use a less stringent policy instrument or approach?) 

The legal basis for this proposal is Article 192 TFEU, which allows Member States to 
take  stricter  measures.  The  Directive  leave  as  much  scope  for  national  decision  as 
possible while achieving satisfactorily the objectives set. 

(d) Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these 
costs commensurate with the objective to be achieved? 

The initiative creates costs that are provided in the answer to question 3.1 above, 
which also shows that these costs are proportionate. 

(e)  While respecting the Union law, have special circumstances applying in individual 

Member States been taken into account? 

The Directive contains provisions on derogations, enabling under certain conditions 
the taking into account of special circumstances applying in individual Member States, 
while respecting the Union law.  

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