CELEX: 52012PC0628
Language: en
Date: 2012-10-26
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment

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		52012PC0628
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment /* COM/2012/0628 final - 2012/0297 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
General context – Grounds for and objectives of the proposal
Directive 2011/92/EU[1] contains a legal requirement to
carry out an environmental impact assessment (EIA) of public or private projects
likely to have significant effects on the environment, prior to their
authorisation. There is consensus that the main objective of the Directive has
been achieved; the principles of environmental assessment have been harmonised throughout
the EU by the introduction of minimum requirements concerning the type of
projects subject to assessment, the main developer’s obligations, the content
of the assessment and the participation of the competent authorities and the
public. In parallel, as part of the development consent process, the EIA is a
tool to assess the environmental costs and benefits of specific projects with
the aim of ensuring their sustainability. Hence, the Directive has become a key
instrument of environmental integration and has also brought environmental and
socio-economic benefits.
After 25 years of application, the EIA
Directive has not significantly changed, while the policy, legal and technical
context has evolved considerably. The experience with implementation, as
reflected in the Commission reports on the application and effectiveness of the
EIA Directive, including the latest one published in
July 2009[2],
has identified a number of shortcomings. In its mid-term review of the 6th
Environment Action Programme[3],
the Commission stressed the need for improving the assessment of environmental
impacts at national level and announced a review of the EIA Directive. In the
context of Better Regulation, the Directive has also been identified as a
potential instrument for simplification[4].
The general objective of the proposal is to adjust the provisions of the
codified EIA Directive, so as to correct shortcomings, reflect ongoing
environmental and socio-economic changes and challenges, and align with the
principles of smart regulation.
Consistency with other policies and
objectives of the Union
As the revised EIA Directive can play a crucial
role in achieving resource efficiency (e.g. by introducing new requirements for
assessing issues such as biodiversity and climate change which are related to
the use of natural resources), the proposal is part of the initiatives aiming
to implement the Roadmap to a Resource-Efficient Europe[5]. Furthermore, the revision of the EIA Directive subscribes
to the Europe 2020 strategy[6],
in particular the priority of sustainable growth. The revised Directive can also contribute significantly to the
duty of the Union to take cultural aspects into account in all its policies and
actions.
2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
Consultation of interested parties
The consultation took place in 2010, in line
with the Commission’s standards. From June to September 2010, a wide public
consultation on the review of the EIA Directive was launched, using a web
questionnaire available in all EU official languages. 1365 replies were
received (684 from citizens, 479 from organisations, companies and NGOs, 202
from public authorities and administrations). In addition, the Institute of
Environmental Management & Assessment (IEMA)[7]
sent a contribution (1815 responses) in the form of a survey incorporating a
number of the Commission’s questions. The consultation phase was concluded with
a Conference (on 18-19/11/2010, at Leuven, Belgium), which complemented the
wide public consultation as it looked for input from specialised stakeholders.
200 representatives from the EU and international institutions, public
authorities – at national, regional and local levels – industry, environmental
organisations, and the academic community were present at the conference. The results of the public consultation[8] and the
conclusions of the Conference[9] have provided useful input for the development of the Commission’s proposal.
Result of the impact assessment
The Impact Assessment (IA), which is submitted with this proposal, identified shortcomings
in the current EIA legislation that lead to unsatisfactory implementation (no
provisions that ensure quality of information and quality standards for the EIA
process and implementation gaps) and socio-economic costs in the implementation
of the Directive. If these problems are not adequately addressed, the Directive
would become less effective and efficient and would not be able to ensure the
integration of environmental considerations in decision-making. In addition,
the socio-economic costs are likely to negatively affect internal market
harmonisation. The shortcomings of the Directive can be grouped into three specific
problem areas: (1) the screening procedure, (2) the quality and analysis of the
EIA and (3) the risks of inconsistencies within the EIA process itself and in
relation to other legislation.
The IA assessed a number of policy options with
the aim of identifying cost-effective measures to address these problems. The outcome
has led the Commission to propose a number of amendments, of which the main
ones are as follows:
It is proposed to clarify the screening
procedure, by modifying the criteria of Annex III and specifying the content
and justification of screening decisions. These amendments would ensure that
EIAs are carried out only for projects that would have significant
environmental effects, avoiding unnecessary administrative burden for
small-scale projects.
As regards the quality and
analysis of the EIA, it is proposed to introduce amendments to reinforce
the quality of the process (i.e. mandatory scoping and quality control of EIA
information), specify the content of the EIA report (mandatory assessment of
reasonable alternatives, justification of final decisions, mandatory post-EIA
monitoring of significant adverse effects) and adapt the EIA to challenges (i.e.
biodiversity, climate change, disaster risks, availability of natural resources).
As regards the risks of inconsistencies,
it is proposed to specify the time-frames for the main
stages required by the Directive (public consultation, screening decision,
final EIA decision) and introduce a mechanism, a kind of EIA one-stop
shop to ensure coordination or joint operation of the EIA with the
environmental assessments required under other relevant EU legislation, e.g.
Directives 2010/75/EU, 92/43/EEC, 2001/42/EC.
Nine of the twelve amendments analysed are
expected to provide significant environmental and socio-economic benefits
without additional administrative costs; moderate savings are also expected.
Two amendments (assessment of alternatives and monitoring) are expected to
provide high environmental and socio-economic benefits at moderate costs for
developers and with limited or negligible costs for public authorities; one
amendment (adaptation of the EIA to new challenges) is expected to provide high benefits at moderate to high costs for
developers and public authorities. In the long term, the significant
environmental and socio-economic benefits and the moderate savings associated
with the proposed amendments are likely to exceed the administrative costs.
3.           LEGAL ELEMENTS OF THE
PROPOSAL
Summary of the proposed action
The proposal will strengthen the provisions concerning
the quality of the EIA with the aim of achieving a high level of environmental
protection. Indeed, the ability to make valid decisions
on the environmental impact of a project depends – to a large extent – on the
quality of the information used in the EIA documentation and the quality of the
EIA process. Furthermore, the proposal will enhance
policy coherence and synergies with other EU law instruments and simplify
procedures, with a view to reducing unnecessary
administrative burdens.
Specific information on the amended Articles
and Annexes of the EIA Directive is provided below.
The changes to Articles 1(2), 1(3) and 1(4)
aim to clarify the terms of the Directive, based on the implementation
experience and the Court case-law. The definition of ‘project’ is amended to make
it clear that demolition works are included, in accordance with the Court
ruling in case C-50/09; relevant definitions are also inserted. The possibility
of not applying the Directive is limited to projects with national defence as
their sole purpose and is extended to cover civil emergencies, as it is already
the case under Directive 2001/42/EC.
Article 2(3) is
amended to introduce an EIA ‘one-stop shop’, allowing the coordination or integration
of assessment procedures under the EIA Directive and other EU legislation.
The modifications to Article 3 aim to
ensure consistency with Article 2(1), i.e. by referring to ‘significant’
effects, and adapt the EIA to environmental issues (biodiversity,
climate change, disaster risks, use of natural resources).
The changes introduced in Article 4 streamline the screening procedure and enhance the consistency of
Member States' approaches to ensure that EIAs are required only when it is
clear that there are significant environmental impacts. As regards projects
listed in Annex II, a new paragraph is inserted concerning the obligation of
the developer to provide specific information to the competent authority
(detailed in Annex II.A). This Article also allows for specification of the
selection criteria listed in Annex III via delegated acts. The content of the
screening decision is specified to acknowledge the successful practice of
adapting projects under certain preconditions (on the basis of a consideration
of the most relevant impacts and information generated under other Union
environmental legislation), which can avoid having to conduct a full assessment,
as the most relevant environment impacts are satisfactorily addressed by the
adapted project. The likelihood of significant effects and the subsequent need
for an EIA would take into account the account the nature,
complexity, location and size of the proposed project and would be based on objective factors, such as the scale of the
project, the use of valuable resources, the environmental
sensitivity of the location, and the magnitude or irreversibility of the
potential impact. Furthermore, the lessons drawn from
the case-law, where the Court stressed the need for "sufficiently
reasoned" (C-75/08) screening decisions, which contain or are accompanied
by all the information that makes it possible to check that the decision is
based on adequate screening (C-87/02), are taken on board. Finally, a
time-frame is set for adoption of the screening decision.
Article 5 is
comprehensively modified, with a view to reinforcing the quality of information
and streamlining the EIA process. The core requirement for the developer to
submit environmental information is maintained, but its form and content is streamlined
and specified in Annex IV. The scoping process becomes
obligatory and the content of the opinion delivered by the competent authority is
specified. Mechanisms are introduced to guarantee the completeness and
sufficient quality of the environmental reports.
Article 6(6),
which refers to the time-frames for public consultation, is modified with a
view to reinforcing the role of environmental authorities and defining concrete
time-frames for the consultation phase on the environmental report.
Article 7(5) is
amended in order to include the establishment of time-frames for consultations
among the issues to be determined by Member States when defining the arrangements
for the implementation of projects likely to have significant transboundary environmental
effects.
Article 8 is substantially
amended and includes several new provisions. Firstly, a
time-frame is set for the conclusion of the environmental impact assessment
procedure. Secondly, the competent authority is required to include in the
development consent decision itself some items substantiating the decision;
this reflects the case-law (e.g. C-50/09). Thirdly, mandatory ex-post
monitoring is introduced only for projects that will have significant adverse
environmental effects, according to the consultations carried out and the
information gathered (including the environmental report), with the purpose of assessing the
implementation and effectiveness of
mitigation and compensation measures. Some Member States already require such
monitoring, which should not duplicate that which may be required by other
Union legislation (e.g. on industrial emissions or water quality), and it is
appropriate therefore to establish common minimum requirements. This new
obligation is cost-effective, as it may help to avoid
adverse impacts on the environment and public health and costs of reparation,
and is relevant for addressing impacts related to new challenges such as climate
change and disaster risks. Fourthly, the competent authority is required to verify
that the information of the environmental report is up to date, before deciding
to grant or refuse development consent.
The main modification to Article 9 is the inclusion of a description of the monitoring arrangements in the
information provided to the public when development consent is granted.
Article 12 is
amended in order to specify the information required to monitor the
implementation of the Directive.
Two new Articles (12a and 12b) are
inserted concerning the adaptation of Annexes II.A, III and IV to scientific
and technical progress through delegated acts.
Annex II.A,
which is a new Annex, sets out the information to be
submitted by the developer as regards projects listed
in Annex II, for which screening is carried out to determine whether an EIA is
required. This amendment is intended to harmonise the screening process.
Annex III, which
lays down the criteria used for screening Annex II projects, is amended to clarify
the existing criteria (e.g. cumulative effects or links with other EU
legislation) and to include additional ones (mainly those related to new environmental issues).
Annex IV contains the items to be considered in the environmental report
required by Article 5. The main changes are additional information requirements
concerning the assessment of reasonable alternatives, the description of
monitoring measures and the description of aspects related to new environmental
issues (e.g. climate change, biodiversity, disaster risks, use of natural
resources).
The amended Directive contains transitional
provisions, which draw on the case-law (e.g. case C-81/96). The EIA should
apply to projects for which the request for development consent was introduced
before the time-limit for transposition and for which the environmental impact
assessment has not been concluded before that date.
Explanatory documents
The Commission considers that explanatory
documents are necessary in order to improve the quality of information on the
transposition of the Directive for the following reasons.
The complete and correct transposition of the
Directive is essential to guarantee that its objectives (i.e. protecting human health
and the environment and ensuring a level play field) are achieved. The EIA is
part of the process for assessing and granting development consent to a wide
range of private and public projects in the Member States, as either a separate
or integrated part of assessment procedures. In addition, the implementation of
the Directive is often highly decentralised, as the regional and local
authorities are responsible for its application and, in some Member States, even
for its transposition. Finally, the codification of the EIA Directive is likely
to result in changes to the national measures that transposing progressively
the initial directive and its three subsequent amendments. In order to
implement the provisions of the revised Directive, which amends the codified version,
Member States may have to act in different policy fields and amend a wide
variety of legislative acts at national, regional and local levels.
The above factors are likely to increase the
risks of incorrect transposition and implementation of the Directive, and
complicate the Commission’s task of monitoring the
application of EU law. Clear information with respect to the transposition of
the revised EIA Directive is instrumental in ensuring the conformity of
national legislation with its provisions.
The requirement to provide explanatory
documents may create an additional administrative burden on those Member States
which do not work on this basis in any case. However, explanatory documents are
necessary to allow effective verification of complete and correct
transposition, which is essential for the reasons mentioned above, and there
are no less burdensome measures to allow efficient verification. Moreover, the
explanatory documents can contribute significantly to reducing the
administrative burden of compliance monitoring by the Commission; without them,
considerable resources and numerous contacts with national authorities would be
required to track the methods of transposition in all Member States. Hence, the
possible additional administrative burden of providing explanatory documents is
proportionate to the aim pursued, namely to ensure effective transposition and
fully achieve the objectives of the Directive.
In view of the above it is appropriate to ask
Member States to accompany the notification of their transposition measures
with one or more documents explaining the relationship between the provisions
of the Directive and the corresponding parts of national transposition
instruments.
Legal basis
As the primary objective of the Directive is
the protection of the environment, in accordance with Article 191 TFEU, the proposal
is based on Article 192(1) TFEU.
Subsidiarity and proportionality principles
and choice of instrument
The subsidiarity principle applies insofar as
the proposal does not fall under the exclusive competence of the European Union.
The objectives of the proposal cannot be
sufficiently achieved by the Member States. The existing legislation sets
minimum requirements for the environmental assessment
of projects throughout the EU and aims to comply with international conventions (e.g. Espoo, Aarhus, Convention
on Biological Diversity). This principle is maintained
in the proposal which further harmonises the principles of environmental assessment and addresses inconsistencies. All Member States must take measures to comply with the minimum requirements; individual national actions could impair the
functioning of the internal market, as varying national regulation might hamper
transboundary economic activities.
EU action will better
achieve the objectives of the proposal. Since the adoption
of the Directive in 1985, the EU has enlarged, while the scope and seriousness
of environmental issues to be tackled and the number of major EU-scale infrastructure
projects have also increased (e.g. transboundary projects in the field of
energy or transport). Because of the transboundary nature of environmental
issues (e.g. climate change, disaster risks) and of some projects, action at EU
level is necessary and brings added value compared to individual national actions.
The EU’s action will also address issues that are important to the EU as a
whole, such as adaptation to climate change and disaster prevention, and has a
role to play in the achievement of Europe’s 2020 objectives for sustainable
growth.
The proposal therefore respects the subsidiarity
principle.
The chosen legal instrument is a directive, as
the proposal aims to modify an existing directive. The proposal lays down
general objectives and obligations, while leaving sufficient flexibility to the
Member States as regards the choice of measures for compliance and their detailed
implementation. The proposal therefore complies with the proportionality
principle.
4.           BUDGETARY IMPLICATIONS 
The proposal has no implications for the EU
budget.
5.           OPTIONAL ELEMENTS 
The proposal concerns a matter relevant to the European
Economic Area and should therefore be applicable to it.
2012/0297 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
amending Directive 2011/92/EU on the
assessment of the effects of certain public and private projects on the
environment
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 192(1)
thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[10],
Having regard to the opinion of the
Committee of the Regions[11],
Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)       Directive 2011/92/EU has harmonised
the principles for the environmental assessment of
projects by introducing minimum
requirements (with regard to the type of projects subject to assessment, the
main obligations of developers, the content of the assessment and the
participation of the competent authorities and the public), and contributes to
a high level of protection of the environment and human health.
(2)       The mid-term review of the
sixth Environment Action Programme[12]
and the latest 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)[13],
the predecessor to Directive 2011/92/EU, stressed the need to improve the
principles of environmental assessment of projects and
adapting the Directive to the policy, legal and
technical context, which has evolved considerably.
(3)       It
is necessary to amend Directive 2011/92/EU in order to strengthen the quality
of the environmental assessment procedure, streamline
the various steps of the procedure and enhance coherence
and synergies with other Union legislation and policies, as well as strategies
and policies developed by Member States in areas of national competence.
(4)       Over the last decade, environmental
issues, such as resource efficiency, biodiversity, climate change, and disaster
risks, have become more important in policy making and should therefore also constitute
critical elements in assessment and decision-making processes, especially for infrastructure
projects.
(5)       In its Communication entitled
‘Roadmap to a Resource Efficient Europe’[14],
the Commission committed itself to including broader resource efficiency
considerations in the context of the revision of Directive 2011/92/EU.
(6)       The Soil Thematic Strategy[15] and the Roadmap to a Resource-Efficient
Europe underline the importance of the sustainable use of soil and the need to
address the unsustainable increase of settlement areas over time (land take).
Furthermore, the final document of the United Nations Conference on Sustainable
Development held in Rio de Janeiro on 20-22 June 2012 recognises the economic
and social significance of good land management, including soil, and the need
for urgent action to reverse land degradation. Public and private projects should
therefore consider and limit their impact on land, particularly land take, and
soil, including on organic matter, erosion, compaction and
sealing, including through appropriate land use plans
and policies at national, regional and local levels.
(7)       The United Nations Convention
on Biological Diversity ("the Convention"), to which the European
Union is party, requires assessment, as far as possible and as appropriate, of the
significant adverse effects of projects on biological
diversity, which is defined in Article 2 of the Convention, with a view to
avoiding or minimising such effects. This prior
assessment of impacts should contribute to attaining the Union headline target
adopted on 2010[16]
of halting biodiversity loss and the degradation of ecosystem services by 2020
and restoring them where feasible.
(8)       The measures taken to
avoid, reduce and, if possible, offset significant adverse effects on the
environment should contribute to avoiding any deterioration in the quality of
the environment and any net loss of biodiversity, in accordance with the Union’s
commitments in the context of the Convention and the objectives and actions of
the Union Biodiversity Strategy up to 2020[17].
(9)       Climate change will
continue to cause damage to the environment and compromise economic
development. Accordingly, the environmental, social and economic resilience of
the Union should be promoted so as to deal with climate change throughout the
Union’s territory in an efficient manner. Climate change adaptation and
mitigation responses need to be addressed across many of the sectors of Union
legislation.
(10)     Following the Communication
from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions on a Community
approach on the prevention of natural and man-made disasters[18], in its conclusions of 30
November 2009, the Council of the EU invited the Commission to ensure that the
implementation review and further development of EU initiatives take into
consideration disaster risk prevention and management concerns and the United
Nations Hyogo Framework for Action Programme (2005-2015), which stresses the
need to put in place procedures for assessment of the disaster risk
implications of major infrastructure projects.
(11)     Protection and promotion of
cultural heritage and landscapes, which are an integral part of the cultural
diversity that the Union is committed to respect and promote in accordance with
Article 167(4) of the Treaty on the Functioning of the European Union, can
usefully build on definitions and principles developed in relevant Council of
Europe Conventions, in particular the Convention for the Protection of the
Architectural Heritage of Europe, the European Landscape Convention and the
Framework Convention on the Value of Cultural Heritage for Society.
(12)     When applying Directive
2011/92/EU, it is necessary to ensure a competitive
business environment, especially for small and medium enterprises, in order to
generate smart, sustainable and inclusive growth, in line with the objectives
set out in the Commission's Communication entitled ‘Europe
2020 – A strategy for smart, sustainable and inclusive growth’[19].
(13)     Experience has shown that
in cases of civil emergency compliance with the provisions of Directive 2011/92/EU
may have adverse effects, and provision should therefore be made to authorise
Member States not to apply that Directive in appropriate cases.
(14)     The information which the
developer is required to supply in order to enable the competent authority to
determine whether projects listed in Annex II of Directive 2011/92/EU should be
subject to an environmental assessment (screening procedure), should be
specified.
(15)     The selection criteria laid
down in Annex III of Directive 2011/92/EU, which are taken into account by the
Member States in order to determine which projects should be subject to
assessment on the basis of their significant environmental effects, should be
adapted and clarified in order to ensure that an
environmental assessment is only required for projects likely to have
significant environmental effects, such as projects using or affecting valuable
resources, projects proposed for environmentally sensitive locations, or
projects with potentially hazardous or irreversible effects.
(16)     When determining whether significant
environmental effects are likely to be caused, the competent authorities should
identify the most relevant criteria to be considered and use the additional
information that may be available following other assessments required by Union
legislation in order to apply the screening procedure effectively.
In this regard, it is appropriate to specify the content of the screening
decision, in particular where no environmental assessment is required.
(17)     The competent authorities
should be required to determine the scope and level of detail of the
environmental information to be submitted in the form of an environmental
report (scoping). In order to improve the quality of the assessment and
streamline the decision-making process, it is important to specify at Union
level the categories of information on which the competent authorities should
make that determination.
(18)     The environmental report of
a project to be provided by the developer should include an assessment of reasonable
alternatives relevant to the proposed project, including the likely evolution
of the existing state of the environment without implementation of the project
(baseline scenario), as a means to improve quality of the assessment process
and to allow integrating environmental considerations at an early stage in the project’s
design.
(19)     Measures should be taken to
ensure that the data and information included in the environmental reports, in
accordance with Annex IV of Directive 2011/92/EU are complete and of sufficiently
high quality. With a view to avoiding duplication of the assessment, Member
States should take account of the fact that environmental assessments may be
carried out at different levels or by different instruments.
(20)     With a view to ensuring
transparency and accountability, the competent authority should be required to
substantiate its decision to grant development consent in respect of a project,
indicating that it has taken into consideration the results of the
consultations carried out and the relevant information gathered.
(21)     It is appropriate to
establish common minimum requirements for the monitoring of the significant
adverse effects of the construction and operation of projects to ensure a
common approach in all Member States and to ensure that, after the
implementation of mitigation and compensation measures, no impacts exceed those
initially predicted. Such monitoring should not duplicate or add to monitoring
required pursuant to other Union legislation.
(22)     Time-frames for the various
steps of the environmental assessment of projects should be introduced, in
order to stimulate more efficient decision-making and increase legal certainty,
also taking into account the nature, complexity, location
and size of the proposed project. Such time-frames should
under no circumstances compromise the high standards for the protection of the
environment, particularly those resulting from other Union environmental
legislation, and effective public participation and access to justice.
(23)     In order to avoid
duplication of the assessment, reduce administrative complexity and increase economic
efficiency, where the obligation to carry out environmental impact assessments
arises simultaneously from this Directive and other Union legislation, such as Directives
2001/42/EC on the assessment of the effects of certain plans and programmes on
the environment[20],
2009/147/EC on the conservation of wild birds[21],
2000/60/EC establishing a framework for Community action in the field of water
policy[22],
2010/75/EU on industrial emissions[23]
and Council Directive 92/43/EEC on the conservation of natural habitats and of
wild fauna and flora[24],
Member States should provide for coordinated or joint procedures fulfilling the
requirements of the relevant Union legislation.
(24)     The new provisions should also
apply to projects for which the request for development consent is introduced
before the time-limit for transposition but for which the environmental impact
assessment has not been concluded before that date.
(25)     In accordance with the
Joint Political Declaration of Member States and the Commission of 28 September
2011 on explanatory documents, Member States have undertaken to accompany, in
justified cases, the notification of their transposition measures with one or
more documents explaining the relationship between the components of a
directive and the corresponding parts of national transposition instruments.
With regard to this Directive, the legislator considers the transmission of
such documents to be justified.
(26)     In order to adjust the
selection criteria and the information to be provided in the environmental
report to the latest developments in technology and relevant practices, the
power to adopt acts, in accordance with Article 290 of the Treaty on the Functioning
of the European Union, should be delegated to the Commission in respect of
Annexes II.A, III and IV of Directive 2011/92/EU. It is of particular
importance that the Commission carry out appropriate consultations during its
preparatory work, including at expert level.
(27)     The Commission, when
preparing and drawing up delegated acts, should ensure the simultaneous, timely
and appropriate transmission of relevant documents to the European Parliament
and Council.
(28)     Since the objective of this
Directive, namely to ensure a high level of protection of the environment and
of human health, through the establishment of minimum requirements for the environmental assessment of projects, cannot be
sufficiently achieved by the Member States and can therefore, by reason of the
scope, seriousness and transboundary nature of the environmental issues to be addressed,
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 the
European Union. In accordance with the principle of proportionality, as set out
in that Article, this Directive does not go beyond what is necessary in order
to achieve that objective.
(29)     Directive 2011/92/EU should
therefore be amended accordingly,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Directive 2011/92/EU is amended as follows:
(1)                   
Article 1 is amended as follows:
(a)         
in point (a) of paragraph 2, the first indent is
replaced by the following:
"— the execution of construction or
demolition works, or of other installations or schemes,"
(b)         
in paragraph 2, the
following definition is added:
"(g) "environmental impact
assessment" shall mean the process of preparing an environmental report,
carrying out consultations (including with the public concerned and the
environmental authorities), the assessment by the competent authority, taking
into account the environmental report and the results of the consultations in
the development consent procedure as well as the provision of information on
the decision in accordance with Articles 5 to 10."
(c)         
paragraphs 3 and 4 are
replaced by the following:
"3. Member States may decide, on a
case-by-case basis and if so provided under national law, not to apply this
Directive to projects having as their sole purpose national defence or the
response to civil emergencies, if they deem that such application would have an
adverse effect on those purposes."
4. This Directive shall not apply to projects
the details of which are adopted by a specific act of national legislation,
provided that the objectives of this Directive, including that of supplying
information, are achieved through the legislative process. Every two years from
the date specified in Article 2(1) of Directive XXX
[OPOCE please introduce the n° of this Directive], Member States shall
inform the Commission of any application which they have made of this provision."
(2)                   
In Article 2, paragraph 3 is
replaced by the following:
"3. Projects for which the obligation to
carry out assessments of the effects on the environment arises simultaneously
from this Directive and other Union legislation shall be subject to coordinated
or joint procedures fulfilling the requirements of the relevant Union
legislation.
Under the coordinated procedure, the competent
authority shall coordinate the various individual assessments required by the
Union legislation concerned and issued by several authorities, without
prejudice to any provisions to the contrary contained in other relevant Union legislation.
Under the joint procedure, the competent authority
shall issue one environmental impact assessment, integrating the assessments of
one or more authorities, without prejudice to any provisions to the contrary
contained in other relevant Union legislation.
Member States shall appoint one authority, which
shall be responsible for facilitating the development consent procedure for
each project."
(3)                   
Article 3 is replaced by the following:
"Article
3
The environmental impact assessment shall
identify, describe and assess in an appropriate manner, in the light of each
individual case and in accordance with Articles 4 to 11, the direct and
indirect significant effects of a project on the following factors:
(a) population, human health, and biodiversity,
with particular attention to species and habitats protected under Council Directive
92/43/EEC(*) and Directive 2009/147/EC of the European Parliament and of the
Council(**);
(b) land, soil, water, air and climate change;
(c) material assets, cultural heritage and the
landscape;
(d) the interaction between the factors
referred to in points (a), (b) and (c);
(e) exposure, vulnerability and resilience of
the factors referred to in points (a), (b) and (c), to natural and man-made
disaster risks."
_________________
(*)        OJ L 206,
22.7.1992, p.7.
(**)      OJ L 20, 26.1.2010, p.7."
(4)                   
Article 4 is amended as follows:
(a)         
paragraphs 3 and 4 are
replaced by the following:
"3. For projects listed in Annex II, the
developer shall provide information on the characteristics of the project, its
potential impact on the environment and the measures envisaged in order to
avoid and reduce significant effects. The detailed list of information to be
provided is specified in Annex II.A."
4. When a case-by-case examination is carried out
or thresholds or criteria are set for the purpose of paragraph 2, the competent authority shall take account of
selection criteria related to the characteristics and location of the project
and its potential impact on the environment. The detailed list of selection
criteria to be used is specified in Annex III."
(b)         
The following paragraphs 5 and 6 are added:
"5. The competent
authority shall make its decision pursuant
to paragraph 2, on the basis of the information provided by the developer and taking
into account, where relevant, the results of studies, preliminary verifications
or assessments of the effects on the environment arising from other Union
legislation. The decision pursuant to paragraph 2 shall:
(a) state how the criteria in Annex III have
been taken into account;
(b) include the reasons for requiring or not requiring
an environmental impact assessment pursuant to Articles 5 to 10;
(c) include a description of the measures
envisaged to avoid, prevent and reduce any significant effects on the
environment, where it is decided that no environmental impact assessment needs
to be carried out pursuant to Articles 5 to 10;
(d) be made available to the public.
6. The competent authority shall make its decision
pursuant to paragraph 2 within three months from the request for development
consent and provided that the developer has submitted all the requisite
information. Depending on the nature, complexity, location and size of the
proposed project, the competent authority may extend that deadline by a further
3 months; in that case, the competent authority shall inform the developer of
the reasons justifying the extension and of the date when its determination is
expected.
Where the project is made
subject to an environmental impact assessment in accordance with Articles 5 to
10, the decision pursuant to paragraph 2 of this Article shall include the
information set out in Article 5(2)."
(5)                   
In Article 5, paragraphs 1, 2 and 3 are replaced by
the following:
"1. Where an environmental impact assessment must
be carried out in accordance with Articles 5 to 10, the developer shall prepare
an environmental report. The environmental report shall be based on the
determination pursuant to paragraph 2 of this Article and include the
information that may reasonably be required for making informed decisions on
the environmental impacts of the proposed project, taking into account current
knowledge and methods of assessment, the characteristics, technical capacity and
location of the project, the characteristics of the potential impact,
alternatives to the proposed project and the extent to which certain matters
(including the evaluation of alternatives) are more appropriately assessed at
different levels including the planning level, or on the basis of other
assessment requirements. The detailed list of information to be provided in the
environmental report is specified in Annex IV.
2. The competent authority, after having
consulted the authorities referred to in Article 6(1) and the developer, shall determine
the scope and level of detail of the information to be included by the
developer in the environmental report, in accordance with paragraph 1 of this
Article. In particular, it shall determine:
(a) the decisions and opinions to be obtained;
(b) the authorities and the public likely to be
concerned;
(c) the individual stages of the procedure and
their duration;
(d) reasonable alternatives relevant to the
proposed project and its specific characteristics;
(e) the environmental features referred to in
Article 3 likely to be significantly affected;
(f) the information to be submitted relevant to
the specific characteristics of a particular project or type of project;
(g) the information and knowledge available and
obtained at other levels of decision-making or through other Union legislation,
and the methods of assessment to be used.
The competent authority may also seek
assistance from accredited and technically competent experts referred to in
paragraph 3 of this Article. Subsequent requests to the developer for
additional information may only be made if these are justified by new
circumstances and duly explained by the competent authority.
3. To guarantee the completeness and sufficient
quality of the environmental reports referred to in Article 5(1):
(a) the developer shall ensure that the
environmental report is prepared by accredited and technically competent
experts or
(b) the competent authority shall ensure that the
environmental report is verified by accredited and technically competent
experts and/or committees of national experts.
Where accredited and
technically competent experts assisted the competent
authority to prepare the determination
referred to in Article 5(2), the same experts shall not be used by the
developer for the preparation of the environmental report.
The detailed arrangements for the use and
selection of accredited and technically competent experts (for example
qualifications required, assignment of evaluation, licensing, and disqualification),
shall be determined by the Member States."
(6)                   
Article 6 is amended as follows:
(a)         
paragraph 6 is replaced by
the following:
"6. Reasonable time-frames for the
different phases shall be provided, allowing sufficient time:
(a) for informing the authorities referred to
in Article 6(1) and the public and 
(b) for the authorities referred to in Article
6(1) and the public concerned to prepare and participate effectively in the
environmental decision-making subject to the provisions of this Article."
(b)         
the following paragraph 7 is added:
"7. The time-frames for consulting the public
concerned on the environmental report referred to in Article 5(1) shall not be shorter
than 30 days or longer than 60 days. In exceptional cases, where the nature,
complexity, location or size of the proposed project so require, the competent
authority may extend this time-frame by a further 30 days; in that case, the
competent authority shall inform the developer of the reasons justifying the
extension."
(7)                   
In Article 7, paragraph 5 is replaced by the following:
"5. The detailed arrangements for
implementing paragraphs 1 to 4 of this Article, including the establishment of
time-frames for consultations, shall be determined by the Member States concerned,
on the basis of the arrangements and time-frames referred to in Article 6(5)
and (6), and shall be such as to enable the public concerned in the territory
of the affected Member State to participate effectively in the environmental
decision-making procedures referred to in Article 2(2) for the project."
(8)                   
Article 8 is replaced by the following:
"Article
8
1. The results of consultations and the
information gathered pursuant to Articles 5, 6 and 7 shall be taken into
consideration in the development consent procedure. To this end, the decision
to grant development consent shall contain the following information:
(a) the environmental assessment of the
competent authority referred to in Article 3 and the environmental conditions
attached to the decision, including a description of the main measures to
avoid, reduce and, if possible, offset significant adverse effects;
(b) the main reasons for choosing the project
as adopted, in the light of the other alternatives considered, including the
likely evolution of the existing state of the environment without
implementation of the project (baseline scenario);
(c) a summary of the comments received pursuant
to Articles 6 and 7;
(d) a statement summarising how environmental
considerations have been integrated into the development consent and how the
results of the consultations and the information gathered pursuant to Articles
5, 6 and 7 have been incorporated or otherwise addressed.
For projects likely to have significant adverse
transboundary effects, the competent authority shall provide information for
not having taken into account comments received by the affected Member State during
the consultations carried out pursuant to Article 7.
2. If the consultations and the information
gathered pursuant to Articles 5, 6 and 7 conclude that a project will have
significant adverse environmental effects, the competent authority, as early as
possible and in close cooperation with the authorities referred to in Article
6(1) and the developer, shall consider whether the environmental report
referred to in Article 5(1) should be revised and the
project modified to avoid or reduce these adverse effects and whether additional mitigation or
compensation measures are needed.
If the competent authority
decides to grant development consent, it shall ensure that the development
consent includes measures to
monitor the significant adverse environmental effects, in order to assess the implementation and the expected effectiveness of mitigation and compensation measures,
and to identify any unforeseeable adverse effects.
The type of parameters to be monitored and the
duration of the monitoring shall be proportionate to the nature, location and
size of the proposed project and the significance of its environmental effects.
Existing monitoring arrangements resulting from
other Union legislation may be used if appropriate.
3. When all necessary information gathered
pursuant to Articles 5, 6 and 7 has been provided to the competent authority,
including, where relevant, specific assessments required under other Union
legislation, and the consultations referred to in Articles 6 and 7 have been
completed, the competent authority shall conclude its environmental impact
assessment of the project within three months.
Depending on the nature, complexity, location and
size of the proposed project, the competent authority may extend that deadline
by a further 3 months; in that case, the competent
authority shall inform the developer of the reasons justifying the extension
and of the date when its decision is expected.
4. Before a decision to grant or refuse
development consent is taken, the competent authority shall verify whether the
information in the environmental report referred to in Article 5(1) is up to
date, in particular concerning the measures envisaged to
prevent, reduce and, where possible, offset any significant adverse effects."
(9)                   
Article 9 is amended as follows:
(a)         
paragraph 1 is replaced by
the following:
"1. When a decision to grant or refuse
development consent has been taken, the competent authority or authorities
shall inform the public and the authorities referred to in Article 6(1) thereof,
in accordance with the appropriate procedures, and shall make available to the
public the following information:
(a) the content of the decision and any conditions
attached thereto;
(b) having examined the environmental report and
the concerns and opinions expressed by the public concerned, the main reasons
and considerations on which the decision is based, including information about
the public participation process;
(c) a description of the main measures to avoid,
reduce and, if possible, offset the significant adverse effects;
(d) a description, where appropriate, of the
monitoring measures referred to in Article 8(2)."
(b)         
the following paragraph 3 is added:
"3. Member States may also decide to make
available to the public the information referred to in paragraph 1, when the
competent authority concludes its environmental impact assessment of the
project."
(10)               
In Article 12, paragraph 2 is replaced by the following:
"2. In particular, every six years from the
date specified in Article 2(1) of Directive XXX [OPOCE
please introduce the n° of this Directive] Member States shall inform
the Commission of:
(a) the number of projects referred to in Annexes
I and II made subject to an assessment in accordance with Articles 5 to 10;
(b) the breakdown of assessments according to
the project categories set out in Annexes I and II;
(c) the breakdown of assessments undertaken by
type of developer;
(d) the number of projects referred to in Annex
II made subject to a determination in accordance with Article 4(2);
(e) the average duration of the environmental
impact assessment process;
(f) the average cost of the environmental
impact assessments."
(11)               
The following Articles 12a
and12b are inserted:
"Article
12a
The Commission shall be empowered to adopt
delegated acts, in accordance with Article 12b, concerning the selection
criteria listed in Annex III and the information referred to in Annexes II.A
and IV, in order to adapt them to scientific and technical progress.
Article 12b
1. The power to adopt delegated acts is conferred
on the Commission subject to the condition laid down in this Article.
2. The delegation of power referred to in Article 12a
shall be conferred on the Commission for an indeterminate period of time from
the [OPOCE please
introduce date of the entry into force of this Directive].
3. The delegation of power referred to in Article 12a
may be revoked at any time by the European Parliament or by the Council. A revocation
decision shall put an end to the delegation of the power specified in that
decision. It shall take effect the day following the publication of the
decision in the Official Journal of the European Union or at a date specified
therein. It shall not affect the validity of any delegated acts already in
force.
4. As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to the European Parliament and to the
Council.
5. A delegated act adopted pursuant to Article 12a
shall enter into force only if no objection has been expressed either by the
European Parliament or by the Council within a period of two months of the notification
of that act to the European Parliament and the Council or if, before the expiry
of that period, the European Parliament and the Council have both informed the
Commission that they will not object. That period shall be extended by two
months at the initiative of the European Parliament or the Council."
(12)               
The Annexes to Directive 2011/92/EU are amended as
provided in the Annex to this Directive.
Article 2
1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with this Directive by [DATE]
at the latest. They shall forthwith communicate to the Commission the text of those
provisions and a document explaining the relationship between them and this
Directive.
When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.
2.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.
Article 3
Projects for which the request for development
consent was introduced before the date referred to in the first subparagraph of
Article 2(1) and for which the environmental impact assessment has not been
concluded before that date shall be subject to the obligations referred to in
Articles 3 to 11 of Directive 2011/92/EU as amended by this Directive.
Article 4
This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.
Article 5
This
Directive is addressed to the Member States.
Done at Brussels, 
For the European Parliament                       For
the Council
The President                                                 The
President
ANNEX 
(1)                   
The following Annex II.A is inserted:
"ANNEX II.A – INFORMATION REFERRED TO IN
ARTICLE 4(3)
1. A description of the project, including in
particular:
(a) a description of the physical characteristics
of the whole project, including, where relevant, its subsurface, during the
construction and operational phases;
(b) a description of the location of the project, with
particular regard to the environmental sensitivity of geographical areas likely
to be affected.
2. A description of the aspects of the environment
likely to be significantly affected by the proposed project.
3. A description of the likely significant effects
of the proposed project on the environment resulting from:
(a) the expected residues and emissions and the
production of waste;
(b) the use of natural resources, in particular
soil, land, water, and biodiversity, including hydromorphological changes.
4. A description of the measures envisaged to
avoid, prevent or reduce any significant adverse effects on the environment."
(2)                   
Annexes III and IV are replaced by the following:
"ANNEX III – SELECTION CRITERIA REFERRED TO
IN ARTICLE 4(4) 
1. CHARACTERISTICS OF PROJECTS
The characteristics of projects must be considered
with particular regard to:
(a) the size of the project, including, where
relevant, its subsurface;
(b) cumulation with other projects and activities;
(c) the use of natural resources, in particular land,
soil, water, and biodiversity, including hydromorphological changes;
(d) the production of waste;
(e) pollution and nuisances;
(f) the natural and man-made disaster risks and
risk of accidents, with particular regard to hydromorphological changes,
substances, or technologies or living organisms used, to specific surface and
subsurface conditions or alternative use, and to the probability of accidents
or disasters and the vulnerability of the project to these risks;
(g) impacts of the project on climate change (in
terms of greenhouse gas emissions including from land use, land-use change and
forestry), contribution of the project to an improved resilience, and the
impacts of climate change on the project (e.g. if the project is coherent with
a changing climate);
(h) impacts of the project on the environment, in
particular on land (increase of
settlement areas over time – land take), soil (organic matter, erosion, compaction, sealing), water
(quantity and quality), air and biodiversity (population quality and quantity
and ecosystem degradation and fragmentation);
(i) the risks to human health (e.g. due to water contamination
or air pollution);
(j) impact of the project on cultural heritage and
landscape.
2. LOCATION OF PROJECTS
The environmental sensitivity of geographical
areas likely to be affected by projects must be considered, with particular regard
to:
(a) the existing and planned land use, including
land take and fragmentation;
(b) the relative abundance, availability, quality
and regenerative capacity of natural resources (including soil, land, water,
and biodiversity) in the area;
(c) the absorption capacity of the natural
environment, paying particular attention to the following areas:
(i) wetlands, riparian areas, river mouths;
(ii) coastal zones;
(iii) mountain and forest areas;
(iv) nature reserves and parks, permanent
pastures, agriculture areas with a high nature value;
(v) areas classified or protected under Member
States' legislation; Natura 2000 areas designated by Member States pursuant to
Directive 2009/147/EEC of the European Parliament or of the Council and Council
Directive 92/43/EEC; areas protected by international conventions;
(vi) areas in which there has already been a
failure to meet the environmental quality standards, laid down in Union
legislation and relevant to the project, or is likely to be such a failure;
(vii) densely populated areas;
(viii) landscapes and sites of historical,
cultural or archaeological significance.
3. CHARACTERISTICS OF THE POTENTIAL IMPACT
The potential significant effects of projects must
be considered in relation to criteria set out under 1 and 2 above, with
particular regard to:
(a) the magnitude and spatial extent of the impact
(geographical area and size of the population likely to be affected);
(b) the nature of the impact;
(c) the transboundary nature of the impact;
(d) the intensity and complexity of the impact;
(e) the probability of the impact;
(f) the duration, frequency and reversibility of
the impact;
(g) the speed of onset of the impact;
(h) the cumulation of impacts with the impacts of
other projects (in particular existing and/or approved) by the same or
different developers;
(i) the aspects of the environment likely to be
significantly affected;
(k) the information and findings on environmental
effects obtained from assessments required under other EU legislation.
(l) the possibility of reducing impacts
effectively.
ANNEX IV – INFORMATION REFERRED TO IN ARTICLE 5(1)
1. Description of the project, including in
particular:
(a) a description of the physical characteristics
of the whole project, including, where relevant, its subsurface, and the water
use and land-use requirements during the construction and operational phases;
(b) a description of the main characteristics of
the production processes, for instance, nature and quantity of the materials,
energy and natural resources (including water, land, soil and biodiversity)
used;
(c) an estimate, by type and quantity, of expected
residues and emissions (water, air, soil and subsoil pollution, noise,
vibration, light, heat, radiation, etc.) resulting from the operation of the
proposed project.
2. A description, of the technical, locational or
other aspects (e.g. in terms of project design, technical capacity, size and
scale) of the alternatives considered, including the identification of the least
environmentally impacting one, and an indication of the main reasons for the
choice made, taking into account the environmental effects.
3. A description of the relevant aspects of the existing
state of the environment and the likely evolution thereof without
implementation of the project (baseline scenario). This description should
cover any existing environmental problems relevant to the project, including,
in particular, those relating to any areas of a particular environmental importance
and the use of natural resources.
4. A description of the aspects of the environment
likely to be significantly affected by the proposed project, including, in
particular, population, human health, fauna, flora, biodiversity and the
ecosystem services it provides, land (land take), soil (organic matter,
erosion, compaction, sealing), water (quantity and quality), air, climatic
factors, climate change (greenhouse gas emissions, including from land use,
land use change and forestry, mitigation potential, impacts relevant to
adaptation, if the project takes into account risks associated with climate
change), material assets, cultural heritage, including architectural and
archaeological ones, landscape; such a description should include the
inter-relationship between the above factors, as well as the exposure,
vulnerability and resilience of
the above factors to natural and man-made disaster risks.
5. A description of the likely significant effects
of the proposed project on the environment resulting from, inter alia:
(a) the existence of the project;
(b) the use of natural resources, in particular
land, soil, water, biodiversity and the ecosystem services it provides,
considering as far possible the availability of these resources also in the light
of changing climatic conditions;
(c) the emission of pollutants, noise, vibration,
light, heat and radiation, the creation of nuisances, and the elimination of
waste;
(d) the risks to human health, cultural heritage
or the environment (e.g. due to accidents or disasters);
(e) the cumulation of effects with other projects and
activities;
(f) the greenhouse gas emissions, including from
land use, land use change and forestry;
(g) the technologies and the substances used;
(h) hydromorphological changes.
The description of the likely significant effects should
cover the direct effects and any indirect, secondary, cumulative, transboundary,
short-, medium- and long-term, permanent and temporary, positive and negative
effects of the project. This description should take into account the
environmental protection objectives established at EU or Member State level
which are relevant to the project.
6. The description of the forecasting methods used
to assess the effects on the environment referred to in point 5, as well as an
account of the main uncertainties involved and their influence on the effect
estimates and selection of the preferred alternative.
7. A description of the measures envisaged to
prevent, reduce and, where possible, offset any significant adverse effects on
the environment referred to in point 5 and, where appropriate, of any proposed
monitoring arrangements, including the preparation of a post-project analysis
of the adverse effects on the environment. This description should explain the
extent to which significant adverse effects are reduced or offset and should
cover both the construction and operational phases.
8. An assessment of the natural and man-made
disaster risks and risk of accidents to which the project could be vulnerable
and, where appropriate, a description of the measures envisaged to prevent such
risks, as well as measures regarding preparedness for and response to
emergencies (e.g. measures required under Directive 96/82/EC as amended).
9. A non-technical summary of the information
provided under the above headings.
10. An indication of any difficulties (technical
deficiencies or lack of knowhow) encountered by the developer in compiling the
required information and of the sources used for the descriptions and
assessments made, as well as an account of the main uncertainties involved and
their influence on the effect estimates and selection of the preferred
alternative."
[1]               Directive 2011/92/EU (OJ L 26, 28.1.2012, p.1)
codifies Directive 85/337/EEC and its three subsequent amendments (Directives
97/11/EC, 2003/35/EC and 2009/31/EC).
[2]               COM(2009) 378. All reports are available on http://ec.europa.eu/environment/eia/eia-support.htm.
[3]               COM(2007) 225.
[4]               COM(2009) 15.
[5]               COM(2011) 571.
[6]               COM(2010) 2020.
[7]               The largest professional membership body for the
environment with over 15,000 members working across all industry sectors.
[8]               http://ec.europa.eu/environment/consultations/eia.htm
[9]               http://ec.europa.eu/environment/eia/conference.htm
[10]             OJ C , , p. .
[11]             OJ C , , p. .
[12]             COM(2007) 225.
[13]             COM(2009) 378.
[14]             COM(2011) 571.
[15]             COM(2006) 231.
[16]             European Council conclusions, March 2010.
[17]             COM(2011) 244.
[18]             COM(2009) 82.
[19]             COM(2010) 2020.
[20]             OJ L 197, 21.7.2001, p.30.
[21]             OJ L 20, 26.1.2010, p.7.
[22]             OJ L 327, 22.12.2000, p.1.
[23]             OJ L 334, 17.12.2010, p.17.
[24]             OJ L 206, 22.7.1992, p.7.