COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on reporting of environmental data from industrial installations and establishing an Industrial Emissions Portal
Date: 2022-04-05
Institutions: Directorate-General for Environment, European Commission
Subjects: EU environmental policy, access to information, disclosure of information, environmental monitoring, environmental protection, pollutant, pollution, pollution control measures, waste management

EN 

  EN 

   EUROPEAN COMMISSION  Strasbourg, 5.4.2022  SWD(2022) 113 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a  REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL   on reporting of environmental data from industrial installations and establishing an Industrial Emissions Portal    {COM(2022) 157 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. 
The Proposal for a Regulation on reporting of environmental data from industrial installations 
and  establishing  an  Industrial  Emissions  Portal  (‘IEPR’)  will  replace  and  repeal  Regulation 
No 166/2006 of the European Parliament and of the Council of 18 January 2006 concerning 
the establishment of a European Pollutant Release and Transfer Register (‘E-PRTR’). 

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  assessments  accompanying  the  combined  revision  of  the  E-PRTR  and 
Directive  2010/75/EU  of  the  European  Parliament  and  the  Council  on  industrial 
emissions  (‘IED’)  was  subject  to  thorough  consultation  processes.  These  included  a 
variety  of  different  consultation  activities  that  aimed  at  gathering  the  views  of  all 
relevant stakeholders and ensuring that these views 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  March  to  14  May 
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 activities covered by the E-PRTR and accompanying activity thresholds vis-à-vis 

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

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IED  activity  coverage;  ii)  the  pollutants  covered  by  the  E-PRTR  and  accompanying 
thresholds for reporting pollutant releases; iii) the reporting of additional information 
on resource use (energy, water, raw materials) as useful information to track progress 
towards the circular economy and the decarbonisation of industry;  iv) improvements 
to  reporting  modalities  e.g.  flexibility  for  top-down  E-PRTR  reporting  for  certain 
industrial  sectors;  v)  access  to  E-PRTR  information  e.g.  the  shift  of  reporting  at 
individual installation level to further increase alignment with the IED; vi) options for 
reporting releases from diffuse sources and products.  

-  This  feedback  was  complemented  by  consultation  with  two  focus  groups,  held  in 
August  2021,  to  engage  stakeholders  in  deeper  discussions  on  a  few  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.  

-  Targeted telephone interviews, to complement the online TSS survey, took place with 
representatives  of  regional  and  national  competent  authorities,  European  institutions, 
representatives  of  non-EU  PRTRs,  representatives  of  the  Kyiv  Protocol  Bureau, 
industry associations, civil society and other key stakeholders. Stand-alone interviews 
commenced  in  March  2021  while  the  targeted  survey  was  still  open.  Follow-up 
interviews  mainly  took  place  after  the  closure  of  the  targeted  stakeholder  survey 
between May and August 2021. In total, 36 interviews were conducted.  

-  Finally, two stakeholder workshops were held remotely on 15 December 2020 and 7-8 

July 2021. 

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

to be of high relevance, in particular regarding: 

- 

- 

the  need  to  have  the  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 

industry  and  business 
associations,  who  were  rather  neutral  (but  not  negative)  in  acknowledging  resource 
efficiency and less toxic production issues to address.   

the  feedback  from 

in 

-  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? 

The objective of the IEPR consists in implementing the UNECE Protocol on Pollutant 
Release  and  Transfer  Registers  to  which  both  the  EU  and  individual  Member  States 
are  Parties  and,  in  doing  so,  in  informing  and  facilitating  public  participation  in 
environmental  decision-making  and  contributing  to  the  prevention  and  reduction  of 
environmental pollution.  

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Those objectives cannot be sufficiently achieved by Member States as there is a need 
to  ensure,  across  the  EU,  consistent  application  of  and  compliance  with  the  above-
cited international  Protocol and  to  guarantee that  all legal  and natural  persons in  the 
EU benefit from a similar level of access to concerned environmental information and, 
concomitantly, of public participation in relevant decision-making and considering the 
transboundary  nature  of  pollution  from  IEPR  activities.  In  this  respect,  the  IEPR 
allows  data  consistency,  and  hence  comparability,  between  Member  States  and 
provides  cumulative  release  data  for  the  whole  of  Europe,  which  would  be  much 
harder to derive from 27 separate national databases. 

Accordingly,  those  objectives  can  be  better  achieved  at  Union  level  and  the  Union 
may  therefore  adopt measures in accordance with the principle of subsidiarity  as  set 
out in Article 5 of the Treaty on European Union.  

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? 

As pollution from  IEPR  installations can travel across national borders and therefore 
affect the environment and the health and well-being of residents located in a Member 
State  other  than  the  one  hosting  the  polluting  activity,  the  IPDR  enables  access  to 
relevant environmental information, including on pollutant releases, which would not 
be sufficiently assured with no EU action.   

(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 on reporting on inter alia pollutant releases 
from  relevant  activities,  there  would  be  a  high  risk  of  discrepancy  between  Member 
States  in  terms  of  access  to  concerned  environmental  information.  In  turn,  this  may 
impede the Union’s efforts in pursuing the Treaty objective of achieving a high level 
of environmental and human health protection  and in  ensuring consistent application 
of the UNECE Protocol on Pollutant Release and Transfer Registers.  

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

measures? 

A Regulation is of general application and is binding upon and directly applicable in 
all  Member  States.  Nevertheless,  the  proposal  enables  Member  States  to  choose  to 
report  or  not  on  pollutant  releases  from  a  limited  number  of  well-defined  agro-
industrial activities on behalf of concerned operators.  

(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? 

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

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The  evaluation  of  the  E-PRTR  Regulation  showed  that,  whilst  providing  a  sound 
framework,  there  were  opportunities  for  refinement  with  regard  to,  inter  alia, 
harmonisation  with  closely-related  environmental  reporting  obligations  and  by 
complementing with contextual data 

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

Pollutant releases from EPRTR activities is a problem widespread across the EU.  

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

Regulation  (EC)  No  2006/166  is  currently  the  main  EU  instrument  on  reporting 
environmental impacts from industrial activities in the EU. The E-PRTR was adopted 
on  18  January  2006  and  entered  into  force  and  became  applicable  on  24  February 
2006. 
This means that the EU legislative framework on E-PRTR activity reporting is already 
well  implemented  at  national  level  as  Member  States  have  had  the  time  to  develop 
national PRTRs in compliance with the E-PRTR. The current IEPD proposal can rely 
on  those  national  registers,  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  monitor  negative  environmental  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 report on inter alia 
pollutant  releases  from  IEPD  activities  ensures  consistent  and  comparable  reporting 
across the EU. This consistency and comparability objectives would be at risk in the 
absence of EU action.  

(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? 

Whilst  it  is  notoriously  difficult  to  quantify  the  value  of  access  to  environmental 
information, the overall benefits of the initiative are considered to outweigh the costs. 
Whilst it has not been possible to quantify all impacts,  it is to be noted that: 

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  The  increase  in  administrative  burden  is  c.  €63  million  p.a.  for  industrial 
operators, due mainly to monitoring and reporting environmental data, and c. 
€4.1  million  p.a.  for  public  authorities,  due  to  data  collection,  verification, 
management, reporting and enforcement activities.  

  Costs increase for existing operators because of new pollutants, parameters and 
lower reporting thresholds are adopted. However, this increase is substantially 
moderated  by  the  adoption  of  top-down  reporting  for  the  livestock  and 
aquaculture sectors. 

(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  replace  the  E-PRTR  by  the  IEPR  aims  to 
make this instrument fit to foster and accompany the transformation of EU industry. 

(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 Regulation 
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 
Regulation’s evaluation (such as activity definitions).   

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 
the 
Commission’s  proposal  contain  an  adequate 
proportionality of the proposal and a statement allowing appraisal of the compliance 
of the proposal with the principle of proportionality? 

justification  regarding 

The  supporting  impact  assessment  assesses  the  impacts  of  all  proposed  legislative 
revisions. 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. 

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. 

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(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 
(framework)  directive, 
recommendation, or alternative regulatory methods such as co-legislation, etc.)? 

(e.g.  choice  between 

regulation, 

The objectives of this proposal can be best pursued through a Regulation, which is the 
most  appropriate  instrument  to  replace  an  existing  regulation.  The  proposal  is  as 
simple  as  possible,  and  coherent  with  the  satisfactory  achievement  of,  and  ensuring 
compliance with the objectives pursued by the legal instrument to replace the existing 
E-PRTR.  

This  choice  of  instrument  is  appropriate  to  ensure  the  uniform  and  consistent 
application of the UNECE Protocol on Pollutant Release and Transfer Registers.  

(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 
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 Regulation leaves as  much scope for national decision as 
possible (see reply to below question (e) 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  increase  in  administrative  burden  is  c.  €63  million  p.a.  for  industrial  operators, 
due  mainly  to  monitoring  and  reporting  environmental  data,  and  c.  €4.1  million  p.a. 
for public authorities, due to data collection, verification, management, reporting and 
enforcement activities.  

Costs  for  the  European  Environment  Agency,  due  primarily  to  data  collection, 
reviews, management and website activities, are c. €0.06 million p.a.  

The reply to question 3.1 above establishes that these costs are proportionate. 

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

Member States been taken into account? 

The proposal contains a provision enabling Member States to report pollutant releases 
from  certain  agro-industrial  activities  on  behalf  of  concerned  operator  to  take  into 
account the possible difficulties in assessing such releases, while respecting the Union 
law.  

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