Resource Manual to Support Application of the Protocol on SEA
Draft Final
Implementation
of Directive 2001/42 on the Assessment of the Effects
of Certain Plans and Programmes on the Environment
(the 'EC Guide')
2. OBJECTIVES OF THE DIRECTIVE |
Table of Contents |
4. GENERAL OBLIGATIONS |
3. SCOPE OF THE DIRECTIVE [6]
3.1. The provisions determining the scope of application
of the Directive are mainly expressed in two related
articles. Article 2 sets out certain characteristics
which plans and programmes must possess for the
Directive to apply to them. Article 3 then sets
out rules for determining which of those plans and
programmes are likely to have significant effects
on the environment and must therefore be subject
to environmental assessment. Article 13(3) defines
the temporal scope of application (see paragraphs
3.64-66 below).
Article 2
(a) 'plans and programmes' shall mean plans
and programmes, including those co-financed by the
European Community, as well as any modifications
to them:
- which are subject to preparation and/or
adoption by an authority at national, regional
or local level or which are prepared by an authority
for adoption, through a legislative procedure
by Parliament or Government, and
- which are required by legislative, regulatory
or administrative provisions.
3.2. The first requirement, in order for plans
and programmes to be subject to the Directive,
is that they must meet the conditions of both
indents in Article 2(a). In other words, they must
be both 'subject to preparation and/or adoption
by the prescribed authorities' and 'required by
legislative, regulatory or administrative provisions'.
3.3. Plans and programmes are
not further defined. The words are not synonymous
but they are both capable of a broad range of meanings
which at some points overlap. So far as the Directive's
requirements are concerned, they are treated in
an identical way. It is therefore neither necessary
nor possible to provide a rigorous distinction between
the two. In identifying whether a document is a
plan or programme for the purposes of the Directive,
it is necessary to decide whether it has the main
characteristics of such a plan or programme. The
name alone ('plan', 'programme', 'strategy', 'guidelines',
etc) will not be a sufficiently reliable guide:
documents having all the characteristics of a plan
or programme as defined in the Directive may be
found under a variety of names.
3.4. In considering the concept of 'project' under
the EIA Directive in case C-72/95 Kraaijeveld,
the ECJ noted that that Directive had a wide scope
and a broad purpose. In view of the language used
in Directive 2001/42/EC, the related purposes of
that Directive and the EIA Directive, and the conceptual
similarities between them, Member States are advised
to adopt a similar approach in considering whether
an act is to be considered a plan or a programme
falling within the scope of Directive 2001/42/EC.
The extent to which an act is likely to have significant
environmental effects may be used as one yardstick.
It may be that the terms should be taken to cover
any formal statement which goes beyond aspiration
and sets out an intended course of future action.
3.5. The kind of document which in some Member
States is thought of as a plan
is one which sets out how it is proposed to carry
out or implement a scheme or a policy. This could
include, for example, land use plans setting out
how land is to be developed, or laying down rules
or guidance as to the kind of development which
might be appropriate or permissible in particular
areas, or giving criteria which should be taken
into account in designing new development. Waste
management plans, water resources plans, etc, would
also count as plans for the purposes of the Directive
if they fall within the definition in Article 2(a)
and meet the criteria in Article 3. [7]
3.6. In some Member States, programme
is usually thought of as the plan covering a set
of projects in a given area, for example a scheme
for regeneration of an urban area, comprising a
number of separate construction projects, might
be classed as a programme. In this sense, 'programme'
would be quite detailed and concrete. One good example
of such a programme could be the Icelandic Integrated
Transportation Programme which is planned to take
the place of independent programmes for road, airport,
harbour and coastal defence projects. The transport
infrastructure is defined and policy on transport
infrastructure is laid out for a period of 12 years
(identifying projects by name, location and cost).
But these distinctions are not clear cut and need
to be considered case by case. Other Member States
use the word 'programme' to mean 'the way it is
proposed to carry out a policy' - the sense in which
'plan' was used in the previous paragraph. In town
and country planning in Sweden, for instance, the
programme is thought of as preceding a plan and
as being an inquiry into the need for, and appropriateness
and feasibility of, a plan.
3.7. Plans and programmes include those co-financed
by the European Community. The Directive
is of course addressed only to the Member States
and not to the institutions of the Community. [8]
Regardless of the decision-making process within
the Community institutions regarding funding (and
whether or not there is SEA - or an analogous form
of assessment - by those institutions) there will
need to be an assessment by the Member State if
the plan or programme is subject to the Directive.
3.8. If the criteria in Articles 2 and 3 are met,
the Directive would apply in principle to co-financed
plans in several sectors, including transport and
regional, economic and social development (Structural
Funds). [9]
Article 11(3) prescribes expressly that for plans
and programmes co-financed by the European Community,
the environmental assessment under Directive 2001/42/EC
must be carried out in conformity with the specific
provisions of the relevant Community legislation.
Hence the assessment must comply with each requirement
of the applicable legislation; an assessment adequate
for one Directive may not be adequate for any other
which applies. Plans and programmes co-financed
under the current respective programming periods
of Regulations 1260/1999/EC and 1257/1999/EC are
exempted from the scope of the SEA Directive. This
is because plans and programmes under those Regulations
will almost certainly have been agreed before the
Directive is due to be transposed in the Member
States (i.e. 21st July 2004) and will have undergone
prior environmental assessment. The exemption does
not apply to future programming periods under those
Regulations and Article 12(4) requires the Commission
to report on the relationship between the Directive
and the Regulations before the expiry of the current
programming periods.
3.9. The definition of plans and programmes
includes modifications to them. Many plans,
especially land use plans, are modified when they
eventually become outdated rather than being prepared
afresh. Such modifications are treated in the same
way as plans and programmes themselves and require
environmental assessment provided the criteria laid
down in the Directive are met. If such modifications
were not given the same importance as the plans
and programmes themselves, the field of application
of the Directive would be more restricted. [10]
The adoption of such modifications will be subject
to an appropriate procedure. It is important to
distinguish between modifications to plans and programmes,
and modifications to individual projects, envisaged
under the plan or programme. In the second case,
(where individual projects are modified after the
adoption of the plan or programme), it is not Directive
2001/42/EC but other appropriate legislation which
would apply. An example could be a plan for road
and rail development, including a long list of projects,
adopted after SEA. If, in implementing the plan
or programme, a modification were proposed to one
of its constituent projects and the modification
was likely to have significant environmental effects,
an environmental assessment should be made in accordance
with the appropriate legal provisions (for example,
the Habitats Directive, and/or EIA Directive).
3.10. Under Article 5 of Directive 2001/42/EC,
the likely significant effects on the environment
of implementing the plan or programme must be identified,
described and evaluated. Thus it is logical to consider
that a modification of a plan or a programme during
its preparation must be subject to assessment under
Article 5 if the modification in itself involves
significant environmental effects not yet assessed.
This might arise if a modification was made as a
result of consultation, or of reconsideration of
elements of the plan or programme, or if the state
of the environment had changed so as to make assessment
necessary. Even minor modifications can generate
significant environmental effects, as foreseen in
Article 3(3) of the Directive. Delays might ensue
in the adoption of the plan or programme but these
should be kept to a minimum, subject to the over-riding
requirement to assess the likely significant environmental
effects.
3.11. The element subject to preparation
and/or adoption by an authority stresses
that plans and programmes need to fulfil certain
formal conditions in order to be covered by the
Directive. The main idea of this element is that
in the end a plan or programme would always be formally
adopted by an authority. However, the phrase would
also include the situation where a plan is prepared
by one authority (or natural or legal person who
works on behalf of the authority) and is adopted
by another authority.
3.12. The concept of an 'authority' has been given
a large scope in the case law of the ECJ. It can
be defined as a body, whatever its legal form and
regardless of the extent (national, regional or
local) of its powers, which has been made responsible,
pursuant to a measure adopted by the State, for
providing a public service under the control of
the State, and it has for that purpose special powers
beyond those which result from the normal rules
applicable in relations between individuals (case
C-188/89 Foster and others v British Gas). For example,
privatised utility companies may be required to
carry out some tasks or duties (such as preparing
long-term plans for ensuring water resources) which
in non-privatised regimes would be carried out by
public authorities. In respect of those functions
they would be treated as authorities for the purposes
of the Directive. In other respects (such as providing
consultancy services overseas) they would not be
considered to be authorities in the sense of the
Directive.
3.13. Plans and programmes which private bodies
draw up for their own purposes (i.e. when not acting
as authorities as described above, nor as agents
of authorities, and when not preparing them for
adoption by authorities) are not subject to the
Directive.
3.14. Preparation of a plan or programme covers
a process which lasts right through to its adoption.
Adoption through a legislative procedure
by Parliament or Government is one procedure
for adopting plans and programmes in some Member
States. For example, in Italy regional and local
Territorial and Urban plans are adopted and approved
in a two-stage procedure by the relevant regional
or local authorities. The final approval is often
by means of a regional law. 'Government' is not
restricted to the level of the State. In some countries,
plans and programmes may be adopted by primary or
secondary legislation of any State, regional or
local legislature. These cases, too, are subject
to environmental assessment when the other requirements
of the Directive are met. One example at national
level is the French Schémas de services collectives
which are prepared at national level, with consultation
at regional level, and approval by the Government
after consultation with Parliament.
3.15. Another important qualification for a plan
or programme to be subject to the Directive is that
it must be required by legislative,
regulatory or administrative provisions.
If these conditions are not met, the Directive does
not apply. Such voluntary plans and programmes usually
arise because legislation is expressed in permissive
terms, [11]
or because an authority decides to prepare a plan
on an activity which is unregulated. On the other
hand, if an authority is not required to draw up
a plan unless certain preconditions are met, it
would probably be subject to the Directive once
those preconditions had been met (and the other
requirements of Articles 2 and 3 had been fulfilled).
It is of course open to Member States, in respect
of their own national systems, to go further than
the minimum requirements of the Directive should
they so desire.
3.16. Administrative provisions
are formal requirements for ensuring that action
is taken which are not normally made using the same
procedures as would be needed for new laws and which
do not necessarily have the full force of law. Some
provisions of 'soft law' might count under this
heading. Extent of formalities in its preparation
and capacity to be enforced may be used as indications
to determine whether a particular provision is an
'administrative provision' in the sense of the Directive.
Administrative provisions are by definition not
necessarily binding, but for the Directive to apply,
plans and programmes prepared or adopted under them
must be required by them, as is the case with legislative
or regulatory provisions.
Article 3
3.17. Article 3 sets out the scope of application
of the Directive and is fundamental to its operation.
It begins by expressing the requirement for an environmental
assessment of certain plans and programmes which
are likely to have significant environmental effects
(paragraph 1). It then defines classes of plans
and programmes which require assessment, either
automatically (paragraph 2) or on the basis of a
determination by Member States (paragraphs 3 and
4). Paragraph 5 specifies how that determination
(so-called 'screening') should be made.
3.18. Paragraphs 6 and 7 deal with transparency
aspects of the determination under paragraph 5,
and paragraphs 8 and 9 list certain plans and programmes
exempted from the scope of the Directive.
3.19. The point in time from which these provisions
apply is defined in Article 13(3) of the Directive.
Article 3(1)
An environmental assessment, in accordance
with Articles 4 to 9, shall be carried out for plans
and programmes referred to in paragraphs 2 to 4
which are likely to have significant environmental
effects.
3.20. Article 3(1) is the starting point for the
more detailed provisions which follow in the remainder
of the Article. The assessment to be carried out
must be in accordance with Articles 4 to 9, and
the plans and programmes to be assessed are specified
in paragraphs 2 to 4.
3.21. The relationship between paragraph 1 and
paragraphs 2 to 4 is clarified by Recital 10. It
is important to note that the plans and programmes
defined in paragraph 2 should as a rule be made
subject to systematic environmental assessment.
Except in the cases provided for in paragraph 3,
there is no discretion for Member States to determine
whether the plans and programmes covered by paragraph
2 are in fact likely to have significant environmental
effects: the Directive deems them to have such effects.
By contrast, Member States must determine whether
plans and programmes not referred to in paragraph
2, which set the framework for future development
consent of projects, are likely to have significant
environmental effects and therefore, in accordance
with paragraph 1, require environmental assessment.
Article 3(2)
Subject to paragraph 3, an environmental assessment
shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry,
fisheries, energy, industry, transport, waste management,
water management, telecommunications, tourism, town
and country planning or land use and which set the
framework for future development consent of projects
listed in Annexes I and II to Directive 85/337/EEC,
or
(b) which, in view of the likely effect on
sites, have been determined to require an assessment
pursuant to Article 6 or 7 of Directive 92/43/EEC.
3.22. Paragraph 2 defines two classes of plans
and programmes which are deemed likely to have significant
environmental effects. For a plan or programme to
fall within the scope of paragraph 2(a), both conditions
described there must have been fulfilled; the plan
or programme must have been prepared for one or
more of the sectors (agriculture, forestry, fisheries,
etc) and it must set the framework for future development
consent of projects listed in the EIA Directive.
It is not necessary to decide whether projects in
Annex II to that Directive would require EIA. All
that is necessary is that they fall under the categories
listed in either Annex I or II to the EIA Directive.
3.23. The meaning of 'set the framework
for future development consent' is crucial
to the interpretation of the Directive, although
there is no definition in the text. The words would
normally mean that the plan or programme contains
criteria or conditions which guide the way the consenting
authority decides an application for development
consent. Such criteria could place limits on the
type of activity or development which is to be permitted
in a given area; or they could contain conditions
which must be met by the applicant if permission
is to be granted; or they could be designed to preserve
certain characteristics of the area concerned (such
as the mixture of land uses which promotes the economic
vitality of the area).
3.24. The words 'sets a framework for projects
and other activities' are used in Annex II with
illustrations of how such a framework may be set
(location, nature, size or operating conditions
of projects and the allocation of resources). These
illustrations are indicative and not exhaustive.
3.25. As Annex II states, one way of 'setting the
framework' may be through the way resources are
allocated but the exemptions in Article 3(8) should
be borne in mind. The Directive does not define
the meaning of 'resources' and in principle they
may be financial or natural (or possibly even human).
A generalised allocation of financial resources
would not appear to be sufficient to 'set the framework',
for example a broad allocation across an entire
activity (such as the whole resource allocation
for a country's housing programme). It would be
necessary for the resource allocation to condition
in a specific, identifiable way how consent was
to be granted (e.g. by setting out a future course
of action (as above) or by limiting the types of
solution which might be available).
3.26. Land use plans generally contain criteria
determining what kind of development can take place
in particular areas and are a typical example of
plans which set the framework for future development
consent. An example of the latter is the Netherlands'
Municipal Land Use Plans which in some cases set
conditions for the granting of building permits
by municipalities. Whether particular criteria or
conditions set the framework in individual cases
will be a matter of fact and degree in each case:
a single constraining factor may be so significant
that it has a dominant influence on future consents.
On the other hand, several rather trivial or imprecise
factors may have no influence on the granting of
consents.
3.27. The phrase could include plans and programmes
which, when adopted, themselves give consent for
projects, provided these comply with the conditions
set out in the plan or programme. Such provisions
exist in several Member States. It could include
the plans and programmes which, in some countries,
set legally binding conditions with which future
development consents must conform.
3.28. The phrase could also include sectoral plans
and programmes which in broad terms identify the
location of subsequent development within that sector.
It would be necessary in each case to consider the
extent to which future decisions on projects were
conditioned by the plan or programme.
3.29. Article 3(2) expressly refers to 'projects'
listed in the EIA Directive. There 'project' is
defined as:
- the execution of construction works or of other
installations or schemes,
- other interventions in the natural surroundings
and landscape including those involving the extraction
of mineral resources.
3.30. The word 'project' should be interpreted
in a way which is consistent with its use in the
EIA Directive. The same should hold good for the
use of the word in Article 3(4), given the conceptual
and linguistic similarities between the two provisions.
3.31. Town and country planning plans
and land use plans deal with the
way land is to be developed or redeveloped. The
terms may be used in different ways by different
Member States, but generally both deal with the
way territory is to be used, even if one may comprise
a broader concept than the other.
3.32. Article 3(2)(b) refers to Articles 6 and
7 of Directive 92/43/EEC (the Habitats Directive).
Those Articles require an 'appropriate assessment'
of 'any plan or project not directly connected with
or necessary to the management of a site but likely
to have a significant effect thereon'. Hence, if
a plan [12]
has been found to have significant environmental
effects under Article 6(3) of Directive 92/43 on
a certain site or sites, this finding triggers the
application of the SEA Directive under this paragraph.
The sites at issue are those designated as special
protection areas (SPA) under Article 4 of Directive
79/409 on the conservation of wild birds and those
proposed to be classified as sites of Community
importance (pSCI) under Article 4 of Directive 92/43
on the conservation of natural habitats and of wild
fauna and flora.[13]
In accordance with Article 11(2), integrated assessments
are possible meeting the requirements of several
items of Community legislation at the same time,
in order to avoid duplication of assessment procedures.
On the question of avoiding duplication of assessment
see paragraphs 9.13 and 9.19-9.27 below.
Article 3(3)
Plans and programmes referred to in paragraph
2 which determine the use of small areas at local
level and minor modifications to plans and programmes
referred to in paragraph 2 shall require an environmental
assessment only where the Member States determine
that they are likely to have significant environmental
effects.
3.33. The meaning of 'small' in
the phrase 'small areas at local level' must be
defined so as to take account of the differences
between Member States and it will probably be necessary
to decide it case by case. Interpretation will call
for the careful exercise of judgement. The kind
of plan or programme envisaged might be a building
plan which, for a particular, limited area, outlines
details of how buildings must be constructed, determining,
for example, their height, width or design.
3.34. There is a similar difficulty in deciding
the meaning of 'local'. The language
of the Directive does not establish a clear link
with local authorities but the word 'level' does
imply a contrast with, for example, national or
regional levels. The complete phrase ('small areas
at local level') makes it clear that the whole of
a local authority area could not be excluded (unless
it were itself small). In some Member States local
authority areas can be very large indeed and an
exemption for the whole of such an area would be
a major loophole in the scope of application.
3.35. The key criterion for the application of
the Directive, however, is not the size of area
covered but whether the plan or programme would
be likely to have significant environmental effects.
A plan or programme which Member States determine
likely to have significant environmental effects
should undergo environmental assessment even if
it determines only the use of a small area at local
level. A similar point was made in Case C-392/96,
Commission v Ireland, where the ECJ ruled that by
setting thresholds on the basis of the size of projects
alone, 'to the exclusion of their nature and location',
the Member State exceeded the limits of its discretion.
Projects could have significant effects on the environment
by reason of their nature or location.
3.36. Similarly, minor modifications
should be considered in the context of the plan
or programme which is being modified and of the
likelihood of their having significant environmental
effects. A general definition of 'minor modifications'
would be unlikely to serve any useful purpose. Under
the definition of 'plans and programmes' in Article
2 'any modifications' to those plans or programmes
are potentially within the scope of the Directive.
Article 3(3) clarifies the position by recognising
that a modification may be of such small order that
it is unlikely to have significant environmental
effects, but requiring that where the modification
of a plan or programme is likely to have significant
environmental effects then an assessment should
be carried out regardless of the scale of the modification.
It is important to note that not all modifications
would require new impact assessment under the Directive
since it does not require such new procedures to
be triggered if the modifications are not likely
to have significant environmental effects.
Article 3(4)
Member States shall determine whether plans
and programmes, other than those referred to in
paragraph 2, which set the framework for future
development consent of projects, are likely to have
significant environmental effects.
3.37. Article 3(4) broadens the scope of the Directive.
Unlike Article 3(2), it does not automatically deem
certain plans and programmes to have significant
environmental effects. Instead it requires Member
States to make a specific determination. The plans
and programmes to which it applies are all those
which set the framework for future development consent
of projects but are not covered by Article 3(2).
This includes projects in sectors not included in
Article 3(2) as well as projects which are in those
sectors but are not listed in the annexes to the
EIA Directive. The definition of 'project' in the
EIA Directive would apply in this paragraph as it
does in paragraph 2. The meaning of set
the framework for future development consent of
projects was discussed under Article 3(2)
above.
Article 3(5)
Member States shall determine whether plans
or programmes referred to in paragraphs 3 and 4
are likely to have significant environmental effects
either through case-by-case examination or by specifying
types of plans and programmes or by combining both
approaches. For this purpose Member States shall
in all cases take into account relevant criteria
set out in Annex II, in order to ensure that plans
and programmes with likely significant effects on
the environment are covered by this Directive.
3.38. As described above, Article 3(3) and (4)
sets out the circumstances in which Member States
have to determine whether a plan or programme is
likely to have significant environmental effects.
Article 3(5) prescribes how they are to discharge
this general requirement, while Annex II identifies
criteria to guide the determination (the so-called
'significance criteria').
3.39. Plans and programmes referred to in paragraphs
3 and 4 are of two kinds: (i) special cases of plans
and programmes falling under paragraph 2; and (ii)
plans and programmes other than those in paragraph
2 which set the framework for the future development
consent of projects.
3.40. Following the model provided by the EIA Directive,
Directive 2001/42/EC provides for three approaches
(or 'screening mechanisms') to making this determination:
case-by-case examination, specifying types of plans
and programmes, or combining both approaches.
3.41. A case-by-case examination
would require each plan or programme to be examined
on an individual basis to see whether it is likely
to have significant effects on the environment.
This approach has the advantage of being best able
to take individual situations and the characteristics
of each plan or programme into account but at the
cost of some added administrative burden.
3.42. By 'specifying types of plans and
programmes' the Directive envisages that
plans and programmes of the same kind will be the
subject of a general determination that they are
likely to have significant environmental effects.
This approach has the advantage of legal and administrative
certainty since it is made clear from the start
that an environmental assessment is necessary.
3.43. It is clear that the power in Article 3(5)
to specify types of plans and programmes is not
intended as a broad power to exempt whole classes
of plans and programmes unless all those plans and
programmes could, when viewed as a whole, be regarded
as not being likely to have significant effects
on the environment (see Case C-72/95 Kraaijeveld).
Insofar as it could represent a derogation from
the Directive, it should be interpreted narrowly
(see the comment at paragraph 65 of Case C-435/97
Autonome Provinz Bozen). In practice, exclusion
from environmental assessment may not be justified
in many cases. It might well be that at the outset
not enough information is available at the plan
or programme level to be sure that none of the plans
or programmes in the proposed class will have significant
environmental effects. Furthermore, care would be
needed to avoid pre-empting decisions on the application
of the Directive to future plans and programmes
which might not share all the characteristics of
the class in question. For example, changes in the
law might create new plans and programmes which
would need consideration in order to determine whether
the Directive applied to them.
3.44. A combination of both approaches (case by
case examination and specifying types of plans or
programmes) might be possible in some cases. The
general approach would be to define a class of plans
or programmes which would not, in specified circumstances,
be likely to have significant environmental effects
and to provide that in other circumstances the determination
would have to be made case by case.
3.45. Article 3(5) of the Directive specifically
requires Member States to take account of relevant
criteria in Annex II when determining whether plans
or programmes are likely to have significant effects
on the environment. The wording of the Directive
implies that the whole set of Annex II criteria
first needs to be considered so that the relevant
ones can then be applied. Expert judgement can help
to apply relevant criteria to the plan or programme
in order to reach a decision about the likely significance
of its effects.
3.46. Different issues have to be taken into account
when screening mechanisms are developed. The criteria
in Annex II are divided into two categories: the
characteristics of plans or programmes, and the
environmental effects and the area likely to be
affected. Cases of doubt about whether environmental
assessment is needed are often likely to reflect
uncertainty about the effects of the plan or programme.
Further consideration by appropriate experts may
resolve the doubt, if not it is recommended that
environmental assessment should be carried out.
Although Article 3(5) does not explicitly refer
to Annex I, it may also be useful to consider the
environmental factors identified there.
3.47. Careful consideration is needed of how the
criteria in Annex II ('significance criteria') should
be applied when specifying types of plans and programmes.
In principle, the determination could be made by
prescribing qualitative criteria or thresholds based
on the relevant significance criteria. It is advisable
to avoid screening systems which are based only
on the size or financial thresholds of projects,
or on the physical area covered by the plan or programme,
as these may not comply with the Directive.
Annex II: Criteria for determining the
likely significant effects
3.48. The list in Annex II contains criteria relating
to the characteristics of the plan or programme
(paragraph 1), and the effects and area likely to
be affected (paragraph 2). They are not listed in
order of importance. Their individual importance
will be different as between cases. In general,
it can be assumed that the greater the degree to
which the criteria are met the more likely it is
that the effects on the environment will be significant.
It may be, however, that in some cases the effects
related to a single criterion are so important as
to trigger the need for SEA. In such cases, the
screening procedure can be abbreviated accordingly
but usually a more comprehensive consideration will
be needed.
3.49. The criteria listed in Annex II are not exhaustive
and the Directive does not prevent Member States
from requiring additional criteria to be taken into
consideration.
3.50. Throughout the text of the Directive environmental
assessment is connected with the likelihood of significant
environmental effects. The prediction of likely
environmental effects is complex, especially in
the context of relatively broad-brush, or high level
plans or programmes, where it may be difficult to
anticipate the outcomes of implementation at the
time a plan or programme is adopted. The use of
the word 'likely' suggests that the environmental
effects to be considered are those which can be
expected with a reasonable degree of probability.
The degree to which the plan or programme sets
a framework for projects and other activities, either
with regard to the location, nature, size and operating
conditions or by allocating resources
3.51. The more precisely the framework is set by
a plan or programme, the more likely it is that
an assessment under the Directive will be required.
Hence plans or programmes which define, for example,
not only the area for building houses or commercial
activities but also their nature, size and (as appropriate)
operating conditions, might establish a more detailed
framework for projects than plans or programmes
which define objectives without specifying details
of the framework within which they must be achieved.
Plans or programmes which are legally binding might
set the framework more strictly than nonbinding
plans or programmes. Plans or programmes whose only
or main purpose is to set a framework for projects
might also set a stronger framework than plans or
programmes which have several different purposes
and issues.
The degree to which the plan or programme influences
other plans and programmes including those in a
hierarchy
3.52. If a plan or programme strongly influences
another, any environmental effects it might have
may be spread more widely (or deeply) than if this
were not the case. Schematically, plans and programmes
can be divided into two categories, 'horizontal'
(plans and programmes belonging to the same level,
or having an equal or similar status) and 'vertical'
(plans and programmes belonging to a hierarchy).
In a hierarchy, plans and programmes at the higher,
general level might influence those at a lower,
detailed level. For example, those at the lower
level might have to take account explicitly of the
contents or objectives of the plan or programme
at the higher level or might have to demonstrate
how they contribute to the objectives expressed
in the higher level plan. It is of course clear
that in practice things may be less straightforward;
in particular, in some systems the lower level plan
or programme might sometimes (e.g. if it were more
recent) influence the one at a higher level. Binding
plans or programmes, which will be explicitly implemented
by means of other plans or programmes will probably
have a strong influence. The legal aspect of a plan
or programme - is it binding or not - may play a
determining role in some systems. Plans or programmes
which are the only ones in a sector and do not belong
to a hierarchy might have less possibility of influencing
other plans or programmes. This is not a foregone
conclusion and the relationships between different
plans and programmes will have to be carefully considered
in each case.
The relevance of the plan or programme for
the integration of environmental considerations
in particular with a view to promoting sustainable
development
3.53. The question to be addressed in this context
is how far the plan or programme envisaged can contribute
to reducing harm to the environment. A plan or programme
which has great scope to affect the environment
will be a strong candidate for assessment whilst
one with few environmental implications may not
be. For example, integrating the environment in,
say, an education plan is a desired outcome. There
is unlikely to be much scope for this in a plan
about the contents of school curricula (even assuming
that it sets the framework for projects); but plans
about school accommodation may well be candidates
for environmental assessment as they have a considerable
potential to influence travel and possibly housing
patterns.
3.54. In addition, an assessment may help to find
ways of improving the environmental outcome of a
plan or programme, or its contribution to sustainable
development, at no greater cost; in reducing the
cost of environmental safeguards whilst enabling
other objectives to be met; or in choosing between
alternatives.
environmental problems relevant to the plan
or programme
3.55. The relevance of the problems to the plans
or programmes is not defined and could be interpreted
in several ways. It would include cases where plans
or programmes either cause or exacerbate environmental
problems, are constrained or otherwise affected
by them, or contribute to solving, reducing or avoiding
them. In any case it will be necessary to identify
the nature and seriousness of environmental problems
relevant to the plan or programme.
the relevance of the plan or programme for
the implementation of Community legislation on the
environment (e.g. plans and programmes linked to
waste-management or water protection)
3.56. The Directive uses a rather neutral word
('relevance') in this criterion. Both positive and
negative contributions to the implementation of
Community legislation need to be considered here.
It is important to ensure that the full range of
Community legislation on the environment is taken
into account
the probability, duration, frequency and reversibility
of the effects,
the cumulative nature of the effects,
the transboundary nature of the effects,
the risks to human health or the environment
(e.g. due to accidents),
the magnitude and spatial extent of the effects
(geographical area and size of
the population likely to be affected),
the value and vulnerability of the area likely
to be affected due to:
- special natural characteristics or cultural
heritage,
- exceeded environmental quality standards
or limit values,
- intensive land-use,
the effects on areas or landscapes which have
a recognised national, Community or international
protection status.
3.57. Many uncertainties exist, and insufficient
or missing data and inadequate knowledge may make
it difficult to decide whether significant effects
are likely. Nevertheless, it is assumed that a rough
estimation of the effects should always be possible.
3.58. The nature and characteristics of the likely
effects will influence their significance in the
context within which they are being considered.
For example, it is relevant to consider whether
the probability or frequency of effects will be
very low (accidental cause) or whether the effects
will occur continuously. Moreover, the more complex
(e.g. due to synergies and accumulation), the more
widespread, or the more serious the effects, the
more likely it is that they should be considered
'significant'.
3.59. An equally important factor to be considered
is the area likely to be affected by the plan or
programme and consequently by its effects. It should
be noted that it is not only areas that have a designated
protection status which are required by the Directive
to be given attention. The particular value or vulnerability
of the area likely to be affected may make it more
likely that effects must be considered significant
there.
3.60. This was a point considered by the ECJ in
case C-392/96 Commission v Ireland (referred to
above). There the Court said: 'Even a small-scale
project can have significant effects on the environment
if it is in a location where the environmental factors
set out in Article 3 of the [EIA] Directive, such
as fauna and flora, soil, water, climate or cultural
heritage, are sensitive to the slightest alteration.
Similarly, a project is likely to have significant
effects where by reason of its nature, there is
a risk that it will cause a substantial or irreversible
change in those environmental factors, irrespective
of its size.'
3.61. Applying the criteria for determining potential
environmental effects requires a comprehensive and
systematic approach. To enable this to be achieved,
some of the elements identified in Annex I may also
be relevant. For example, for identifying likely
significant effects the 'receptors' of these effects
should be considered (see the list of issues in
Annex I (f), i.e. biodiversity, population,
human health, fauna, flora, soil, water, air, climatic
factors, material assets, cultural heritage including
architectural and archaeological heritage, landscape
and the interrelationship between these factors).
The characteristics noted in the footnote to Annex
I(f) should also be taken into account (i.e. whether
the effects are secondary, cumulative, synergistic,
short, medium and long-term permanent and temporary,
positive and negative). The use of Annex I together
with Annex II in this way enables cross-media effects
to be considered in a multidisciplinary way.
Article 3(8)
The following plans and programmes are not
subject to this Directive:
- plans and programmes the sole purpose of
which is to serve national defence or civil emergency,
- financial or budget plans and programmes.
3.62. The exemption of plans and programmes 'the
sole purpose of which' is to serve national
defence or civil emergency is a stricter test than
in the EIA Directive (which does not apply to 'projects
serving national defence purposes'). This means
that, for example, a regional land use plan which
made provision for a national defence project in
some part of the area it covered would require environmental
assessment (provided the other criteria in the Directive
were met) because to serve national defence was
not its sole purpose. In applying this exemption,
it is the purpose of the plan or programme which
must be considered, not its effects. For example,
an army base which is planned solely to serve national
defence may have the additional effect of increasing
local employment opportunities. It would still fall
within this exemption. Civil emergency
could include events having a natural or a man-made
cause (e.g. earthquakes and terrorist activities
respectively). There is no indication of when
such plans and programmes should be drawn up; but
their sole purpose must be to serve national
defence or civil emergency. In line with the jurisprudence
of the ECJ, the derogation should be construed narrowly.
Thus a plan setting out what action should be taken
if an avalanche were to occur would be exempt from
the Directive, whereas one setting out measures
to be taken to avoid avalanches occurring (perhaps
through the provision of infrastructure) would not,
because it would be intended to prevent an emergency
rather than serve it.
3.63. Budgetary plans and programmes would include
the annual budgets of authorities at national, regional
or local level. Financial plans and programmes could
include ones which describe how some project or
activity should be financed, or how grants or subsidies
should be distributed.
Article 13(3)
The obligation referred to in Article 4 (1)
shall apply to the plans and programmes of which
the first formal preparatory act is subsequent to
the date referred to in paragraph 1 . Plans and
programmes of which the first formal preparatory
act is before that date and which are adopted or
submitted to the legislative procedure more than
24 months thereafter, shall be made subject to the
obligation referred to in Article 4(1) unless Member
States decide on a case by case basis that this
is not feasible and inform the public of their decision.
3.64. The obligation referred to in article 4(1)
includes all the stages of an 'environmental assessment'
as defined in Article 2 (i.e. environmental report,
consultation, etc). It therefore implies the process
of preparing a plan or a programme in the light
of the emerging understanding of its environmental
effects.
3.65. The word 'formal' does not necessarily mean
that the act should be required by national law,
nor whether it produces legal effects in national
law. A judgement should be made in each case, taking
into account factors such as the nature of the act
in question, the nature of the steps preceding it,
and the apparent aim of the transitional provision,
namely to pursue legal certainty and good administration.
3.66. The second sentence of Article 13(3) is intended
to ensure that an environmental assessment complying
with the Directive will normally be carried out
for plans and programmes of which the first formal
preparatory act was before 21st July 2004 but which
will not be adopted until after 21st July 2006.
This implies that only minor or non- significant
work would have been done on the plan by July 2004
in order to carry out a meaningful assessment. It
would not be feasible to carry out an environmental
assessment of a plan whose first preparatory act
was before July 2004 and which was at a very advanced
stage at that date. The focus of this provision
is not so much on how long before July 2004 was
the starting date of the plan or programme, but
on whether the planning process of relevant plans
or programmes is at a stage at which a meaningful
environmental assessment can be carried out.
Notes
[6] In
the jargon of environmental assessment, 'scope'
usually refers to the coverage of the environmental
report described in Article 5. This is not to be
confused with the term 'scope' as used in the title
of Article 3 to refer to the scope of application
of the Directive.
[7] In
Case C-387/97 (Commission v Greece), the ECJ considered
what would not qualify as the plans which the Member
States are required to adopt under Article 6 of
Directive 75/442 and Article 12 of Directive 78/319.
It said that 'legislation or specific measures amounting
only to a series of ad hoc normative interventions
that are incapable of constituting an organised
and coordinated system for the disposal of waste
and toxic and dangerous waste cannot be regarded
as [such] plans' (paragraph 76).
[8] The
Commission has introduced a procedure for assessing
the impact of its own proposals (Communication on
impact assessment, of 5 June 2002 (COM(2002)276
final)).
[9] 'Structural
funds' are taken to include the European Regional
Development Fund, the European Social Fund, the
European Agricultural Guidance and Guarantee Fund,
and the Financial Instrument for Fisheries Guidance
(see Regulation 1260/1999/EC).
[10]
See also Case C-72/95 (Kraaijeveld) which dealt
with a similar point in relation to the EIA Directive
before its amendment by Directive 97/11/EC.
[11]
'The authority may prepare a plan', rather
than 'The authority shall prepare a plan'.
[12]
It is to be noted that Article 6(3) covers plans
and projects, not programmes.
[13]
See the document 'Managing Natura 2000 sites: The
provisions of Article 6 of the 'Habitats' Directive
92/43/EEC'.
2. OBJECTIVES OF THE DIRECTIVE |
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4. GENERAL OBLIGATIONS |