CELEX: 51995PC0720
Language: en
Date: 1996-01-18
Title: Amended proposal for a Council Directive amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment

COMMISSION OF THE EUROPEAN COMMUNITIES
                                          Brussels, 18.01.1996
                                          COM(95)720 final
                                          94/0078 (SYN)
                        Amended proposal for a
                       COUNCIL DIRECTIVE
                           AMENDING
 DIRECTIVE 85/337/EEC ON THE ASSESSMENT OF THE EFFECTS OF
CERTAIN PUBLIC AND PRIVATE PROJECTS ON THE ENVIRONMENT
      (presented by the Commission pursuant to Article 189 a (2)
                          of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                                  Explanatory memorandum
In accordance with Article 130s, paragraph 1, of the EC Treaty, the Council consulted
the European Parliament on the proposal for a Directive amending Directive 85/337/EEC
on the assessment of the effects of certain public and private projects on the environment
(COM(93) 575 final, 94/0078 (SYN)). At its Sitting of 11 October 1995 the European
Parliament approved 58 amendments, 16 of which are accepted by the Commission, either
in whole or in part1. These amendments are discussed below and included in the present
modified proposal.
Amendments accepted by the Commission
Amendments of the recitals: Relevant background matters like the Fifth Action
Programme on the Environment and Conclusions of the Dublin European Council are
now included in the recitals as well as an indication of the Commission's intention to
incorporate the main principles of the Espoo Convention into the Directive (amendments
2, 5, 11 and 15). An amendment on a "high" level of protection and "similar" criteria is
in line with the purpose of the Commission's proposal (amendment 3). As amended by
amendment 8, recital 3 will better reflect the proposal, which will alter to some extent
the scope of Member States' obligations.
Amendment of articles of Directive 85/337/EEC: As amended in line with the first part
of amendment 32 it is made clear in the directive that projects which require an assess-
ment have to be made subject to a requirement for development consent. The Commis-
sion considers, however, that the amendment would fit better with the body of the Direc-
tive if the change is made to Article 2(1) instead of Article 6, as proposed by the Par-
liament.
In Article 3 the definition of the environmental factors covered by an assessment will be
clarified (amendment 25). In Article 5 the minimum list of information to be gathered for
an environmental impact assessment will be reintroduced. This will aid harmonisation
within the Member States (amendment 28). Article 7 will be improved by inserting a
new opening paragraph concerning the timetable for consultations in a transboundary
context (the first part of the amendment 33).
In Article 9 a new final paragraph will be inserted indicating that the detailed arrange-
ments for publishing a development consent decision are to be determined by Member
 States (the last part of amendment 34).
Amendment of Annex I of Directive 85/337/EEC: The scope of Annex I will be improved
by adding a reference to projects relating to certain activities, for example the production
and enrichment of nuclear fuel, installations for the incineration of waste, ground water
abstraction, and certain intensive lifestock installations (amendments 44 and 46 and
points 9a, 9d, 9e, 9f, 9i, 9n and 9s of amendment 47).
Amendment of Annex II of Directive 85/337/EEC: The scope of Annex II will be
improved by inserting a reference to extraction of minerals by marine dredging, to
  Minutes of the Sitting of 11 October 1995, provisional edition, PE 194.336.
 ---pagebreak---  windfarms, to permanent racing and test tracks, the storage of scrap iron and scrap
 vehicles and to cable cars (certain parts of amendments 50 and 51).
 Amendments not accepted bv the Commission
Amendments of the recitals: The amendments not accepted to the recitals generally do
not fit in with the proposal, are linked with other amendments which are being rejected
or overlap with other amendments. They concern the Fifth Action Programme on the
Environment (amendment 1), "second expert opinions" (amendment 6), carrying out a
cost benefit analysis before carrying out a project (amendment 9), avoiding distortions of
competition (amendment 71), the definition of the environment (amendment 12), the need
to pay particular attention to islands (amendment 13), mechanism for determining which
projects are to be assessed (amendment 14) and the need to harmonise community law
(amendment 17).
Amendment of articles of Directive 85/337/EEC: In general the proposed amendments not
accepted to the Articles overlap with other Community proposals or legislation or do not
fit in with the approach taken in the proposal. In the case of some amendments it is
considered that the Directive is not an appropriate instrument for implementing the
amendments proposed.
Regarding Article 1 it was suggested that a requirement for an assessment of programmes
be inserted (amendment 19, as well as amendments 4 and 7 of the recitals), but this
should be dealt with in a separate proposal. It was also proposed to amend the definitions
(amendments 20 and 21). These proposals are already covered by the Directive or overlap
with other amendments. Furthermore, it is not considered appropriate to include projects
for national defence purposes (amendment 22). The exemption of projects adopted by
specific acts of national legislation (amendment 23) is not in line with the objective of
avoiding duplication which objective already is indicated in the Directive.
Concerning Article 2, it was suggested that new arrangements be inserted for applying
the power to exempt specific projects in exceptional cases (amendment 24 and
amendment 18 of the recitals); this is not considered necessary since this power is rarely
used. As regards Article 4, the goal of the Commission proposal is to establish a clear
and effective mechanism for determining which Annex II projects have to be assessed.
In this context it is not considered that amendment 26 would improve the text of the
proposal.
With regard to Article 5(1), a new scoping process is foreseen with consultations between
the developer and the authorities. It was suggested that this be amended by inserting
public involvement in the scoping phase (amendment 27). This provision is considered
too far reaching. The rest of the suggested amendments to this Article are not considered
to improve the Commissions proposal i.e. information to be available to the developer
(amendment 29), a register of environmental impact assessment consultants (amendment
 30) and civil liability (amendment 31).
 Regarding Article 6, a proposal was made concerning the details of public consultations
 (the second part of the amendment 32) and on Article 7 on transbouisdary conauNations
 a proposal was made to set out detailed procedural requirements (the inaj«rity of
 ---pagebreak--- amendment 33 and amendment 18 of the recitals). However the Commission considers
that such details are best worked out by Member States themselves.
Regarding Article 9, the Commission proposed that the development decision sliould be
notified to an affected Member State in a transboundary case. This should not be deleted
as suggested in the first part of the amendment 34. Amendment 34 also suggested that
environmental compensation would be dealt with here, but the Directive is not considered
to be an appropriate instrument for dealing with this matter. Furthermore it was suggested
that post-consent monitoring be included, (amendments 36, 37 and amendment 16 of the
recitals), but this would overlap with other Commission proposals such as the draft Direc-
tive on Integrated Pollution Control. Regarding setting up an ad hoc committee to assist
the Commission when reviewing the effectiveness of the Directive (amendment 38), the
Commission already has regular contacts with Member States to discuss the Directive.
Requirements on environmental impact assessment are also proposed in respect of
projects outside of the EU which receive financing from the EU (amendments 39 and 84).
This kind of assessment requirement is more appropriate to the relevant Community
funding instrument.
Amendment of commencement provision. There are two suggestions regarding com-
mencement provisions (amendments 40 and 41). However, the provisions of the Directive
as adopted in 1985 should apply to all applications received before the date on which
Member States have to comply with the provisions of the proposal.
Amendment of Annex I of Directive 85/337/EEC: Certain amendments have not been
accepted because the definitions therein are too imprecise to be useful (amendments 42,
43, 45 and points 9b, 9c, 9g, 9h, 9j, 9k, 91, 9m, 9o, 9p, 9q, 9r and 9t to 9w of amend-
ment 47).
Amendment of Annex II of Directive 85/337/EEC: It was suggested that new types of
 projects be introduced to Annex II. However a large number of projects will not usually
 have significant environmental effects or are already adequately dealt with in the
Directive (this applies to amendments 49 and the rest of the amendments 50 and 51 men-
 tioned above, 52, 53, 54 and 65).
 Amendment of the New Annex Ha of Directive 85/337/EEC: To the new Annex Ha two
 amendments have been proposed. However the "rational use of energy" proposal can be
 dealt with under the existing "use of natural resources" heading (amendment 55). In the
 other amendment the aim was to impose a requirement on the contents of land use plans,
 which are not covered by the Directive (amendment 56).
 Amendment of Annex III of Directive 85/337/EEC: Two proposals have been made to
 amend Annex III concerning the information collected under Article 5. It is considered
 unnecessary to spell out in the Directive the definition of "alternatives" (amendment 57).
 It is not considered appropriate to refer to "insurance cover" in Annex III (amendment
 67).
 In accordance with Article 189 A paragraph 2 of the EC Treaty, the Commission
 modifies as follows the text of its proposal concerning environmental impact assessment
 in order to include the accepted amendments into its proposal.
 ---pagebreak---       AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING
     DIRECTIVE 85/337/EEC ON THE ASSESSMENT OF THE EFFECTS OF
    CERTAIN PUBUC AND PRIVATE PROJECTS ON THE ENVIRONMENT
                            COM(93) 575 final, SYN 94/0078
  (Submitted by the Commission pursuant to Article 189a (2) of the EC Treaty on***)
            ORIGINAL TEXT                                    AMENDED TEXT
                                        Recital 1
Whereas the main purpose of the envi-            Whereas the main purpose of the envi-
ronmental assessment procedure under             ronmental assessment procedure under
Council Directive 85/337/EEC4 is to              Council Directive 85/337/EEC4 is to
provide the competent authorities with           provide the competent authorities with
relevant information to enable them to           relevant information to enable them to
make a decision on a specific project in         make a decision on a specific project in
full knowledge of the facts regarding the       full knowledge of the facts regarding the
project's probable impact on the environ-        project's probable impact on the environ-
ment; whereas the assessment procedure          ment; whereas the assessment procedure
is therefore a fundamental instrument of         is therefore a fundamental instrument of
environmental policy as defined in              environmental policy as defined in
Article 130r of the Treaty;                     Article 130r of the Treaty and of the
                                                Fifth Community programme of policy
                                                and action in relation to the environment
                                                and sustainable development:
                                        Recital 2
Whereas a sufficient degree of environ-         Whereas a high degree of environmental
mental protection must be ensured at            protection must be ensured at Commun-
Community level by laying down a                ity level by laying down a general
general assessment framework and cri-           assessment framework and similar cri-
teria for defining those projects which         teria for defining those projects which
must be submitted for an environmental          must be submitted for an environmental
assessment;                                      assessment;
 ---pagebreak---                                      Recital 2b (new)
                                                 Whereas the conclusions of the Dublin
                                                 European Council stipulate that the pur-
                                                 pose of action by the Community and its
                                                 Member States must be to guarantee
                                                 their citizens the right to a clean and
                                                 healthy environment:
                                         Recital 3
Whereas the report on the implementa-            Whereas the report on the implementa-
tion of Directive 85/337/EEC, as adopted         tion of Directive 85/337/EEC, as adopted
by the Commission on 2 April 1993,               by the Commission on 2 April 1993,
shows that there are problems in apply-          shows that there are problems in apply-
ing the Directive; whereas certain provi-        ing the Directive; whereas certain provi-
sions of the Directive should therefore be       sions of the Directive should therefore be
clarified so that the assessment                 clarified so that the assessment
procedure may produce greater benefits,          procedure may produce greater benefits,
but without altering the actual scope of
the Member States' obligations under the
Directive:
                                         Recital 4
Whereas it would, nevertheless, appear.          Whereas experience acquired in environ-
necessary to introduce provisions                mental impact assessment makes it
designed to improve the rules on the             necessary to introduce provisions
assessment procedure;                            designed to improve the rules on the
                                                 assessment procedure;
 ---pagebreak---                                                               p/v»p/impact/KIA/<lirectiv/amen-en
                                                                                            /em
                                        Recital 7
Whereas some of these measures bring            Whereas it is necessary to incorporate in
the provisions of the Directive into line       this Directive the main principles of the
with the Convention on environmental            Convention on environmental impact
impact assessment in a transboundary            assessment in a transboundary context
context (Espoo Convention), which the           (Espoo Convention), which the Com-
Community signed at the same time as            munity signed at the same time as the
the Member States on 25 February 1991,          Member States on 25 February 1991,
                                  Article 1 (la) (new)
                                                Article 2 (1) is replaced by the follow-
                                                ing:
                                                Member States shall adopt all measures
                                                necessary to ensure that projects likely to
                                                have significant effects on the environ-
                                                ment by virtue inter alia of their nature,
                                                size or location are made subject to a
                                                requirement for development consent and
                                                an assessment with regard to their
                                                effects.
                                                These projects are defined m Article 4.'
 ---pagebreak---                                   Article 1 (lb) (new)
                                                 Article 3 is replaced by the following:
                                                 'Article 3
                                                 The environmental impact assessment
                                                 will 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
                                                 effects of a project on the following
                                                 factors:
                                                          human beings (including their
                                                          health and safety and quality of
                                                          life), fauna and flora;
                                                          soil, water, air, climate, and land-
                                                          scape;
                                                          material assets and the cultural
                                                          heritage (including historical
                                                          monuments and buildings and
                                                          other buildings);
                                                 z        interaction between the factors
                                                          mentioned in the first, second
                                                          and third indents.'
                                       Article 1 (4)
4.      Article 5 (2) is deleted.                Deleted.
                                       Article 1 (8)
2.      The Member States concerned              2.       The Member States concerned
shall «nter into consultations, setting a        shall enter into consultations, and shall
reasonable timetable for:                        set a reasonable time limit for the length
                                                 of the consultation period for:
 ---pagebreak---                     Article 1 (10), final paragraph of Article 9 (new)
                                                  The detailed arrangements for such infor-
                                                 mation shall be determined by the Mem-
                                                 ber States '
                                        ANNEX (1)
3.(a)  Installations for the reprocessing         3.(a)   Installations for the reprocessing
       of irradiated nuclear fuel;                        of irradiated nuclear fuel;
   (b) Installations designed solely for              (b) Installations designed solely for
       the permanent storage or final                     the production or enrichment of
       disposal of radioactive waste                      nuclear fuels, the processing of
       storage installations for radioac-                 irradiated nuclear fuels or other
       tive waste or irradiated fuel.'                    radioactive waste, the permanent
                                                          or temporary storage and/or the
                                                          disposal of radioactive waste or
                                                          irradiated nuclear fuel:
                                                  -bai-   The dismantling of nuclear power
                                                          stations.'
                                    ANNEX (3a) (new)
                                                  Point 9 in Annex I is replaced by the
                                                  following::
                                                  '9.     Waste disposal installations for
                                                          the incineration, chemical treat-
                                                          ment or : landfill of toxic and
                                                          dangerous wastes, and installa-
                                                          tions for the incineration of
                                                          industrial and domestic waste
                                                          with a capacity of more than 300
                                                          tonnes per day.'
 ---pagebreak---                                ANNEX (3b) (new)
                                               The following points are added to Annex
                                               L
                                               10.     Ground-water capture schemes
                                                       where the annual volume of
                                                       water captured is equivalent to or
                                                       exceeds 10 million cubic metres.
                                               11.     Works for the transfer of water
                                                       resources between river basins.
                                               12.     Waste water treatment plants
                                                       with a capacity exceeding
                                                       300 000 population equivalents1
                                                       including the management and
                                                       treatment of the sludge.
                                               13.     Installations for the production of
                                                       hydrocarbons at sea.
                                               14.     Dams and other installations
                                                       designed for the holding back or
                                                       permanent storage of water with
                                                       a capacity of more than 100 Hm3.
                                                15.    Installations for the intensive
                                                       rearing of poultry or pigs with
                                                       more than:
                                                                40,000 places for poultry;
                                                                2,000 places for the pro-
                                                                duction of pigs (over 30
                                                                kg), or
                                                                750 places for sows.
For the purpose of this Directive, one population equivalent is an organic biodegradable load
having a five day biochemical oxygen demand of 60g of oxygen per day.
 ---pagebreak---                                  ANNEX (5a) (new)
                                            The following new pqwfe jfe aj<fed
                                            under points 2 and 3 in Annex H:
                                            2.  Extractive Industry
                                                Extraction of minerals by marine
                                                dredging.
                                            3.  Energy Industry
                                                Large-scale installations for the
                                                harnessing of wind power for energy
                                                production (wind farmsY
                                     ANNEX (7)
Other projects                              11. Other projects
(a) Permanent racing and test tracks for    (a) Permanent racing and test tracks for
    cars and motor cycles.                      motorised vehicles.
(e) Storage of scrap iron.                  (e) Storage of scrap iron and scrap
                                                vehicles.
                                            (j) Cable cars
                                         10
 ---pagebreak---  ---pagebreak---                                                                    ISSN 0254-1475
                                                             COM(95) 720 final
                                               DOCUMENTS
EN                                                                            14
                                      Catalogue number : CE-CO-95-751-EN-C
                                                              ISBN 92-77-98415-5
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