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Guide to the Approximation of European Union Environmental Legislation



Part 2

Overview of EU environmental legislation

Introduction and Horizontal Legislation


Introduction

Part 2 includes brief summaries of the directives and regulations in each sector, diagrams showing the relationship between the legislation in each sector, and some actions which need to be taken to fully and effectively implement them beyond the general steps set out in Part 1.

Some proposals for directives which are currently in the legislation process also have been included because they will be very important elements in the future structure of EU environmental law.

The full texts of legislation are available free of charge on the EUR-LEX database.


A. Horizontal Legislation

Legislation may be classified as 'horizontal' when it relates to general environmental management issues rather than to specific sectors, products or types of emissions. The three directives in this category concern the collection and assessment of information on the environment and on the wide range of human activities which impact the environment. The information may be in the form of an environmental impact assessment of proposed developments, public access to information about the environment, or the requirements and procedures for reporting on the implementation of environmental directives.

Accurate information about the environment and the effects of human activities is of the utmost importance since it is the basis for the development, implementation, monitoring and enforcement of environmental protection regulations and policies. It is also the basis for public participation in environmental decision making and hence for stronger democratic institutions.

The Directive on Access to Environmental Information seeks to grant the public access to information on the environment which is held by public authorities or government controlled bodies with public responsibility for the environment. It is based on a broad definition of environmental 'information' which must be made available to individuals without justification. It calls for periodic 'state of the environment' reports by Member States.

Prior to the passage of this directive few Member States had regimes which were specifically designed to address environmental information though a number did have legislation relating to administrative information. Some states had no specific legislation on access to administrative information.

The Environmental Impact Assessment Directive requires that, before governmental approval can be granted, certain development projects must be subject to a process in which potential environmental effects are assessed.

The Directive Concerning Reporting on Implementation of Environmental Directives harmonises and seeks to improve upon the Member States' reporting to the Commission.


A.1 Environmental Impact Assessment

Directive 85/337/EEC on the assessment of the effect of certain public and private projects on the environment has recently been amended by Directive 97/11/EC whose provisions must be transposed and put into force by 14 March, 1999. The changes are less an amendment and more a transformation which aim to overcome the weaknesses of the original, especially concerning the types of project to be assessed and the information to be included in the assessments. The directive embodies the preventive approach to environmental protection by requiring that before consent is given by a governmental body, development projects likely to have significant effects on the environment, are subjected to an assessment of possible environmental impacts.

Some categories of projects listed in Annex I to the directive are always subject to the environmental impact assessment requirement. Others, listed in Annex II, which may have significant effects on the environment are subject to assessment when certain criteria determined by the Member State are met.

The promoter must supply the competent authority with detailed relevant information about the project in the impact statement. Environmental authorities must be given an opportunity to comment before a decision on the project is taken. The public must be informed of the request for development and the impact statement and allowed to express its opinion. Decisions by the competent authority have to take the assessment results into account.

Information must be provided to other Member States likely to be affected by a project, and these may participate in the assessment procedure. This follows the main provisions of the United Nations Economic Commission for Europe Convention on the assessment of projects with transboundary impacts (Espoo Convention). Further information is available on the EIA homepage.

Implementation considerations
  1. Determine the competent authorities and the administrative structure that are needed at the national and sub-national levels. Existing Member States have relied heavily on the integration of EIA requirements into land use planning legislation with much responsibility for implementation given to local governments. The EIA procedure might also be integrated into the IPPC for installations and activities covered by that directive.
  2. Guidelines must be established at the national level on information to be included in an environmental impact document and for the assessment and decision-making processes. This will support the standardisation of procedures and outcomes. They should be specific to particular types of activity, e.g. roads, railways, airports, urban development.
  3. A key dimension of the guidelines is the development of procedures for public participation models in order to arrive at transparent decision-making processes.
  4. It will be important to provide training in conducting the assessment processes, measuring, mitigating or preventing the environmental effects of projects.
  5. Reasonable fees can be charged the promoters for the administrative costs of processing the environmental impact assessments.
  6. Avoid conflicts of interest in which administrative 'competent authorities' are asked to approve projects for which they are also promoters.
  7. The competent authority will need to have the necessary technical and scientific knowledge in order to assess the environmental impacts of the project based on the information gathered and provided by the developer.

EIA Directive – Implementation considerations

National Legislative Framework
  • Compare Directive requirements to existing national laws
  • Identify Legislative Gaps
  • Options:
  • One main legislative tool (EIA Act)
  • Integration into a Land Use Planning Act
  • Amendments to existing legislation (e.g. Environment Framework Act)
Competent Authorities (CAs)
  • Determine CAs
  • National level CA must report to Commission on implementation, ensure consistency of EIA processes, public consultation, appeals procedures
  • Local level CAs may be established to implement projects with narrower impacts
Legal Checkpoints
  • Pay attention to definitions for 'project',
  • Ensure that multiple small projects ('pipeline') which are exempt from EIA do not add up to one large project which is subject to EIA. In this case EIA should be required for all.
  • Treat exemptions from the Directive narrowly.
The EIA Procedure
  • Develop national guideline for EIA procedure and for common EIA project classes.
  • Develop national guideline for EIA documents.
  • Establish strict time limits to avoid financial and administrative problems of delay.
  • Consider need to integrate EIA and land use procedures.
Stakeholders
  • Ensure that, all parties including local government, affected government departments, industry representatives, land developers and the public are given the opportunity to comment on draft EIA laws and administrative regulations.
  • Ensure public participation in EIA processes and decisions, and appeals procedures.
Financial Considerations
  • Project promoters to pay administrative costs of individual EIA processes, documents and experts.
  • Public to pay experts testimony and commentary; reasonable copying costs under some circumstances.


A.2 Access to Information

Directive 90/313/EEC on the freedom of access to information on the environment imposes a duty to ensure that information which is normally held by publicly accountable bodies is available to the public on request. Answers have to be provided within a specified time and there is a right of appeal where information is denied. Member States also must make periodic state of the environment reports.

Implementation considerations
  1. The key to successful implementation of this directive is in striking a balance between confidentiality and access to environmental information, but the presumption should be in favour of unrestricted access.
  2. This directive is often seen as a critical tool to guarantee transparency of government decision-making and to ensure government accountability. Governments should develop clear procedures for the provision of information to the public.
  3. A guide on access to information should be published to ensure the public understands and benefits from it. One means of implementation is through a system of public registers which identify decisions or documents related to the environment to which the public has access.
  4. Affected institutions and persons should be informed about their obligations. This training should include awareness raising and capacity building in authorities that are likely to receive the public's requests for information.
  5. In order to prepare and publish periodic reports on the state of the environment, a system should be set up to regularly collect, analyse and process the necessary environmental data.
  6. Where monitoring of compliance are carried out by different authorities or bodies, it will be necessary to set in place harmonised internal information systems in order to ensure that the relevant data in a comparable format are available to national authority responsible for reporting to the Commission.

A.3 Reporting on Implementation of Environmental Directives

Directive 91/692/EEC standardising and rationalising reports on the implementation of certain Directives relating to the environment aims to rationalise, on a sectoral basis, the requirements for Member States to transmit to the Commission the information required under certain environmental protection directives. Reports are to be transmitted every three years and each sector has its three-year cycle. An exception is made for Directive 76/180/EEC, bathing waters, for which an annual report continues to be required. This directive, which has been integrated into different other directives, must be implemented by Member States, but does not have to be transposed into national legislation in Member States.

Implementation considerations
  1. Review environmental monitoring and information systems to ensure that the required information is generated in an appropriate form for evaluation and transmittal to the European Commission.
  2. Where monitoring of compliance is carried out by different bodies, establish harmonised information system to ensure that the relevant data are available in a comparable format to the national authority responsible for reporting to the Commission.
  3. Assign responsibility for the preparation of the report and provide planning and reporting timetables.


Duty to inform


A.4 European Environment Agency

Regulation EEC/1210/90 established the European Environment Agency (EEA) whose purpose is to provide the European Union and the Member States with information on environment at European level. The regulation is currently under revision, see proposal for an amending regulation in COM(97) 282 final of 13.06. 1997.

Implementation considerations
  1. Regulations cannot be transposed into national law.
  2. The EEA and the Member States co-operate in environmental monitoring and assessment programmes, as well as in the preparation of reports on the state of the environment. Appropriate monitoring practices will have to be put into place. Institutions will have to be authorised and equipped to participate in EEA activities. This can be launched in advance of accession, as the EEA is already building its programme of co-operation with third countries.

A.5 LIFE

Regulation EEC/1973/92 established the financial instrument for the environment known as LIFE for actions which support the "polluter pays" and subsidiarity principles of Community policy. LIFE only funds a proportion of the cost of a project. Further information is available on the LIFE homepage.

Implementation considerations

1. Regulations cannot be transposed into national law. LIFE is a grant programme managed by the European Commission.