COUNCIL DIRECTIVE 97/11/EC of 3 March 1997

amending Directive 85/337/EEC on the assessment of the
effects of certain public and private projects on the environment

 

 

 

THE COUNCIL OF THE EUROPEAN UNION,

 

Having regard to the Treaty establishing the European
Community, and

in particular Article 130s (1) thereof,

 

Having regard to the proposal from the Commission (1),

 

Having regard to the opinion of the Economic and Social
Committee

(2),

 

Having regard to the opinion of the Committee of the
Regions (3),

 

Acting in accordance with the procedure laid down in
Article 189c of

the Treaty (4),

 

(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 (5) 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) 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 preventive action should be taken, that

    environmental
damage should as a priority be rectified at source and

    that the
polluter should pay;

 

(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) 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) 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) 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) Whereas projects of other types may not have
significant effects

    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) 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 not be required to examine

    projects below
those thresholds or outside those criteria on a

    case-by-case
basis;

 

(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;

 

(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
(6) and 92/43/EEC of 21 May 1992 on the conservation of

     natural
habitats and of wild fauna and flora (7) does not imply

     necessarily
that projects in those areas are to be automatically

     subject to an
assessment under this Directive;

 

(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;

 

(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;

 

(13) Whereas the Community signed the Convention on
Environmental

     Impact
Assessment in a Transboundary Context on 25 February 1991,

 

HAS ADOPTED THIS DIRECTIVE:

 

                              Article 1

 

Directive 85/337/EEC is hereby amended as follows:

 

1. Article 2 (1) shall be replaced by the following:

 

'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 effects. These projects are defined

    in Article
4.`;

 

2. The following paragraph shall be inserted in Article
2:

 

'2a. Member States may provide for a single procedure in
order to

fulfil the requirements of this Directive and the
requirements of

Council Directive 96/61/EC of 24 September 1996 on
integrated

pollution prevention and control (1).

 

(1) OJ No L 257, 10. 10. 1996, p. 26.`;

 

3. The first subparagraph of Article 2 (3) shall read as
follows:

 

'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.`;

 

4. In Article 2 (3) (c) the words'where appropriate` shall
be

   replaced by the
words'where applicable`;

 

5. Article 3 shall be replaced by the following:

 

                              'Article 3

 

The environmental impact assessment shall identify,
describe and

assess in an appropriate manner, in the light of each
individual case

and in accordance with Articles 4 to 11, the direct and
indirect

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.`;

 

6. Article 4 shall be replaced by the following:

 

                              'Article 4

 

1. Subject to Article 2 (3), projects listed in Annex I
shall be

   made subject to
an assessment in accordance with Articles 5 to 10.

 

2. Subject to Article 2 (3), for projects listed in Annex
II, the

   Member States
shall determine through:

 

(a) a case-by-case examination,

 

or

 

(b) thresholds or criteria set by the Member State

 

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).

 

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.

 

4. Member States shall ensure that the determination made
by the

   competent
authorities under paragraph 2 is made available to the

   public.`;

 

7. Article 5 shall be replaced by the following:

 

                              'Article 5

 

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:

 

(a) the Member States 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;

 

(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. 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. 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. 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.`;

 

8. Article 6 (1) shall be replaced by the following:

 

'1. Member States shall take the measures necessary to
ensure that

    the
authorities likely to be concerned by the project by reason of

    their 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.`;

 

          Article
6 (2) shall be replaced by the following:

 

'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.`;

 

9. Article 7 shall be replaced by the following:

 

                              'Article 7

 

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 requests,

   the Member
State in whose territory the project is intended to be

   carried