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Environmental AssessmentThe Regulation of Decision Making$

Jane Holder

Print publication date: 2006

Print ISBN-13: 9780199207589

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199207589.001.0001

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(p.318) Appendix II Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC of 27 June 1985 on the Assessment of the Effects of Certain Public and Private Projects on the Environment (Consolidated Version)

(p.318) Appendix II Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC of 27 June 1985 on the Assessment of the Effects of Certain Public and Private Projects on the Environment (Consolidated Version)

Source:
Environmental Assessment
Publisher:
Oxford University Press

(p.318) Appendix II

Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC of 27 June 1985 on the Assessment of the Effects of Certain Public and Private Projects on the Environment (Consolidated Version)

  1. 1. Whereas Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment aims at providing the competent authorities with relevant information to enable them to take a decision on a specific project in full knowledge of the project's likely significant impact on the environment; whereas the assessment procedure is a fundamental instrument of environmental policy as defined in Article 130r of the Treaty and of the Fifth Community Programme of Policy and action in relation to the environment and sustainable development;

  2. 2. Whereas, pursuant to Article 130r(2) of the Treaty, Community policy on the environment is based on the precautionary principle and on the principle that the preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay;

  3. 3. Whereas the main principles of the assessment of environmental effects should be harmonized and whereas the Member States may lay down stricter rules to protect the environment;

  4. 4. Whereas experience acquired in environmental impact assessment, as recorded in the report on the implementation of Directive 85/337/EEC, adopted by the Commission on 2 April 1993, shows that it is necessary to introduce provisions designed to clarify, supplement and improve the rules on the assessment procedure, in order to ensure that the Directive is applied in an increasingly harmonized and efficient manner;

  5. 5. Whereas projects for which an assessment is required should be subject to a requirement for development consent; whereas the assessment should be carried out before such consent is granted;

  6. 6. Whereas it is appropriate to make additions to the list of projects which have significant effects on the environment and which must on that account as a rule be made subject to systematic assessment;

  7. 7. Whereas projects of other types may not have significant effect on the environment in every case; whereas these projects should be assessed where Member States consider they are likely to have significant effects on the environment;

  8. 8. Whereas Member States may set thresholds or criteria for the purpose of determining which such projects should be subject to assessment on the basis of the significance of their environmental effects; whereas Member States should be required to examine projects below those thresholds or outside those criteria on a case-by-case basis;

  9. (p.319)
  10. 9. Whereas when setting such thresholds or criteria or examining projects on a case-by-case basis for the purpose of determining which projects should be subject to assessment on the basis of their significant environmental effects, Member States should take account of the relevant selection criteria set out in this Directive; whereas, in accordance with the Subsidiarity principle, the Member States are in the best position to apply these criteria in specific instances;

  11. 10. Whereas the existence of a location criterion referring to special protection areas designated by Member States pursuant to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora does not imply necessarily that projects in those areas are to be automatically subject to an assessment under this Directive;

  12. 11. Whereas it is appropriate to introduce a procedure in order to enable the developer to obtain an opinion from the competent authorities on the content and extent of the information to be elaborated and supplied for the assessment; whereas Member States, in the framework of this procedure, may require the developer to provide, inter alia, alternatives for the projects for which it intends to submit an application;

  13. 12. Whereas it is desirable to strengthen the provisions concerning environmental impact assessment in a transboundary context to take account of developments at international level;

  14. 13. Whereas the Community signed the Convention on Environmental Impact Assessment in a Transboundary Context on 25 February 1991,

HAS ADOPTED THIS DIRECTIVE:

ARTICLE 2

  1. 1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment 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 effect. These projects are defined in Article 4.

  2. 2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.

  3. 2a. Member States may provide for a single procedure in order to fulfil the requirements of Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control.1

  4. 3. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.

In this event, the Member State shall:

  1. (a) consider whether another form of assessment would be appropriate and whether the information thus collected should be made available to the public;

  2. (b) make available to the public concerned the information relating to the exemption and the reasons for granting it;

  3. (p.320)
  4. (c) inform the Commission, prior to granting consent, of the reasons justifying the exemption granted, and provide it with the information made available, where applicable to their own nationals.

The Commission shall immediately forward the documents received to the other Member States.

The Commission shall report annually to the Council on the application of this paragraph.

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 effects of a project on the following factors:

  • human beings, fauna and flora;

  • soil, water, air, climate and the landscape;

  • material assets and the cultural heritage;

  • the interaction between the factors mentioned in the first, second and third indents.

ARTICLE 4

  1. 1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Article 5 to 10.

  2. 2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:

    1. (a) a case-by-case examination;

      or

    2. (b) thresholds or criteria set by the Member State,

  3. whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States may decide to apply both procedures referred to in (a) and (b).

  4. 3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.

  5. 4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.

ARTICLE 5

  1. 1. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex IV inasmuch as:

    1. (a) the Member State consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected;

    2. (p.321)
    3. (b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment.

  2. 2. Member States shall take the necessary measures to ensure that, if the developer so requests before submitting an application for development consent, the competent authority shall give an opinion on the information to be supplied by the developer in accordance with paragraph 1. The competent authority shall consult the developer and authorities referred to in Article 6(1) before it gives its opinion. The fact that the authority has given an opinion under this paragraph shall not preclude it from subsequently requiring the developer to submit further information.

    Member States may require the competent authorities to give such an opinion, irrespective of whether the developer so requests.

  3. 3. The information to be provided by the developer in accordance with paragraph 1 shall include at least:

    • a description of the project comprising information on the site, design and size of the project;

    • a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;

    • the data required to identify and assess the main effects which the project is likely to have on the environment;

    • an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects;

    • a non-technical summary of the information mentioned in the previous indents.

  4. 4. Member States shall, if necessary, ensure that any authorities holding relevant information, with particular reference to Article 3, shall make this information available to the developer.

ARTICLE 6

  1. 1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of the specific environmental responsibilities are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent. To this end, Member States shall designate the authorities to be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States.

  2. 2. Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before the development consent is granted.

  3. 3. The detailed arrangements for such information and consultation shall be determined by the Member States, which may in particular, depending on the particular characteristics of the projects or sites concerned:

    • determine the public concerned;

    • specify the places where the information can be consulted;

    • (p.322)
    • specify the way in which the public may be informed, for example by bill-posting within a certain radius, publication in local newspapers, organization of exhibitions with plans, drawings, tables, graphs, models;

    • determine the manner in which the public is to be consulted, for example by written submissions, by public enquiry;

    • fix appropriate time limits for the various stages of the procedure in order to ensure that a decision is taken within a reasonable period.

ARTICLE 7

  1. 1. Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so request, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:

    1. (a) a description of the project, together with any available information on its possible transboundary impact;

    2. (b) information on the nature of the decision which may be taken, and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the Environmental Impact Assessment procedure, and may include the information referred to in paragraph 2.

  2. 2. If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the Environmental Impact Assessment procedure, the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send the affected Member State the information gathered pursuant to Article 5 and relevant information regarding the said procedure, including the request for development consent.

  3. 3. The Member State concerned, each insofar as it is concerned, shall also:

    1. (a) arrange for the information referred to in paragraphs 1 and 2 to be made available, within a reasonable time, to the authorities concerned in the territory of the Member State likely to be significantly affected; and

    2. (b) ensure that those authorities and the public concerned are given an opportunity, before development consent for the project is granted, to forward their opinion within a reasonable time on the information supplied to the competent authority in the Member State in whose territory the project is intended to be carried out.

  4. 4. The Member State concerned shall enter into consultations regarding, inter alia, the potential transboundary effects of the project and the measures envisaged to reduce or eliminate such effects and shall agree on a reasonable time frame for the duration of the consultation period.

  5. 5. The detailed arrangements for implementing the provisions of this Article may be determined by the Member States concerned.

ARTICLE 8

The results of consultations and the information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure.

(p.323) ARTICLE 9

  1. 1. When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:

    • the content of the decision and any conditions attached thereto;

    • the main reasons and considerations on which the decision is based;

    • a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects.

  2. 2. The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7, forwarding to it the information referred to in paragraph 1.

Notes:

(1) OJ No. L 257, 10.10.1996, p. 126.