Directive 2014/52/EU: Big step forward or merely minimum consensus? - An attempt to evaluate the new euregulations on the assessment of the effects of certain public and private projects on the environment

Author:Christoph Mayer
Position:Research Assistant at the Chair for Public Law (Prof. Dr. iur. Willy Spannowsky), Department of Spatial and Environmental Planning, Kaiserslautern Technical University, Germany and lecturer at the Academy of Administration and Business Rhineland-Palatinate, Division Kaiserslautern, Germany
Pages:91-102
SUMMARY

The Directive 2014/52/EU, which the EU Member States will have to implement by 16 May 2017 at the latest, amends the existing Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the so-called Environmental Impact Assessment Directive, in short: EIA Directive) to a considerable extent. Taking into account the amendments suggested by the Commission in its underlying proposal, this paper presents the main legal innovations caused by the EIA amending directive and on this basis attempts to evaluate the new provisions from an EU environmental law perspective. By this means, it will be shown that the Directive 2014/52/EU on the one hand does not represent the desired big step forward in creating a viable Union law regime of EIA, but on the other hand has to be seen as more than a mere minimum consensus of the Member States in this field, so that in the end the willingness of the Member States to ambitiously implement the EIA amending directive will be the critical factor for success for this EU legislative act.

 
CONTENT
Directive 2014/52/Eu… 91
DIRECTIVE 2014/52/EU: BIG STEP FORWARD OR MERELY
MINIMUM CONSENSUS? – AN ATTEMPT TO EVALUATE
THE NEW EU-REGULATIONS ON THE ASSESSMENT
OF THE EFFECTS OF CERTAIN PUBLIC AND PRIVATE
PROJECTS ON THE ENVIRONMENT
Ass. jur. Christoph MAYER, LL.M.1
Abstract
The Directive 2014/52/EU, which the EU Member States will have to implement by 16
May 2017 at the latest, amends the existing Directive 2011/92/EU on the assessment of the
effects of certain public and private projects on the environment (the so-called
Environmental Impact Assessment Directive, in short: EIA Directive) to a considerable
extent. Taking into account the amendments suggested by the Commission in its
underlying proposal, this paper presents the main legal innovations caused by the EIA
amending directive and on this basis attempts to evaluate the new provisions from an EU
environmental law perspective. By this means, it will be shown that the Directive
2014/52/EU on the one hand does not represent the desired big step forward in creating a
viable Union law regime of EIA, but on the other hand has to be seen as more than a mere
minimum consensus of the Member States in this field, so that in the end the willingness of
the Member States to ambitiously implement the EIA amending directive will be the critical
factor for success for this EU legislative act.
Keywords: Public Law, European Union Law, Environmental Impact Assessment Law.
1 . EU Environmental Law background2
On 15 May 2014, the Directive 2014/52/EU3 came into force. This first
amending directive to the existing Directive 2011/92/EU on the assessment of the
1 Research Assistant at the Chair for Public Law (Prof. Dr. iur. Willy Spannowsky), Department
of Spatial and Environmental Planning, Kaiserslautern Technical University, Germany and lecturer
at the Academy of Administration and Business Rhineland-Palatinate, Division Kaiserslautern,
Germany; christoph.mayer@ru.uni-kl.de.
2 The author thanks Mr Carlo Hahn, student assistant at the Chair for Public Law,
Kaiserslautern Technical University, for the diligent elaboration of the synopsis of the EIA
directives underlying this paper.
3 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014
amending Directive 2011/92/EU on the assessment of the effects of certain public and private
projects on the environment, OJ L 124, p. 1 (from now on: Directive 2014/52/EU).
Law Review vol. I, issue 1, January-June 2016, p. 91-102
92 CHRISTOPH MAYER
effects of certain public and private projects on the environment (the so-called
Environmental Impact Assessment Directive, in short: EIA Directive)4 has
reshaped a large part of the provisions of the latter requiring national transposition
partly to a considerable extent. It has its origins in the Proposal for a Directive of
the European Parliament and of the Council amending Directive 2011/92/EU on
the assessment of the effects of certain public and private projects on the
environment, issued by the Commission on 26 October 2012.5 By this means, the
Commission aimed to “adjust the provisions of the codified EIA Directive, so as to
correct shortcomings, reflect ongoing environmental and socio-economic changes
and challenges, and align with the principles of smart regulation”6. However, the
proposal did not find favour with either the Council or the European Parliament
during the further legislative process: While the Member States represented in the
Council especially criticized the ambiguity of numerous provisions, the excessive
demands on the part of the authorities concerned as well as on the part of the
developers by new examination and procedural requirements and the lacking
adaptability to different legal systems and established practices in the Member
States, the Members of the European Parliament in contrast primarily intended to
reshape the proposal by additional examination and procedural requirements in
an environmentally even more demanding way.7 In spite of these hardened fronts,
the impression of the imminent end of the legislative period of the European
Parliament in spring 2014 made the Commission, the Council and the European
Parliament reach a breakthrough in the form of the present directive by an
informal trialogue as of the late 2013. The Member States will have to transpose the
legal changes caused by the Directive 2014/52/EU according to its Article 2(1) by
16 May 2017.
1.1 . The legal innovations caused by the Directive 2014/52/EU in
detail
Though the amending Directive 2014/52/EU has left the subject of the EIA
Directive 2011 (see Art. 1(1) EIA Directive 2011/2014) as well as the previous
system of EIA (see especially Art. 4(1) and (2) EIA Directive 2011/2014 in
conjunction with their Annexes I and II) basically unchanged, it has apart from that
caused partly far-reaching transformation in almost all provisions requiring
4 OJ 2012 L 26, p. 1 (from now on: EIA Directive 2011 respectively, if it is referred to this
directive as amended by the directive 2014/52/EU, EIA Directive 2014).
5 COM(2012) 628 final.
6 See COM(2012) 628 final, p. 2.
7 See on this issue and on the further legislative process Sangenstedt, Die Reform der UVP-
Richtlinie 2014: Herausforderungen für das deutsche Recht, Zeitschrift für Umweltrecht (ZUR)
2014, pp. 526-535 (pp. 527, 528).
Directive 2014/52/Eu… 93
implementation by the Member States.8 The subsequent presentation of the
significant new provisions follows the structure of the (unwritten) outline of the
EIA Directive 2014, which distinguishes between introducing provisions (Articles 1
and 2 EIA Directive 2014), EIA-related provisions (Articles 3-7 EIA Directive 2014),
provisions related to the development consent (Articles 8-9 EIA Directive 2014)
and other provisions (Articles 9a-16 EIA Directive 2014).9
1.2 Introducing provisions (Articles 1 und 2 EIA Directive 2014)
Significant changes of the introducing provisions mainly consist in the new
creation of a definition of the term EIA, in the transformation of the exceptions to
the scope of the EIA Directive as well as in an increased bundling of EIA and other
environmental assessment procedures.
1.2.1 Definition of the term EIA
Article 1 point (1) lit. a) Directive 2014/52/EU has complemented the
definitions of Article 1(2) EIA Directive 2011 with a definition of the term EIA
(Article 1(2) lit. g) EIA Directive 2014). According to this definition even specifying
the respective Commission’s proposal10 an EIA means a process consisting of: the
preparation of an EIA report by the developer, as referred to in Article 5(1) and (2)
(point (i)); the carrying out of consultations as referred to in Article 6 and, where
relevant, Article 7 (point (ii)); the examination by the competent authority of the
information presented in the EIA report and any supplementary information
provided, where necessary, by the developer in accordance with Article 5(3), and
any relevant information received through the consultations under Articles 6 and 7
(point (iii)); the reasoned conclusion by the competent authority on the significant
effects of the project on the environment, taking into account the results of the
examination referred to in point (iii) and, where appropriate, its own
supplementary examination (point (iv)); the integration of the competent
authority’s reasoned conclusion into any of the decisions referred to in Article 8a
(point (v)).
1.2.2 Exceptions to the scope of the EIA Directive
On the one hand, according to the Commission’s proposal11, the optional
sectoral exception to the scope of the EIA Directive laid down in Article 1(3) EIA
8 The only provisions left completely unchanged are: Article 11 (legal remedies), Article 13
(reporting obligation regarding national implementing provisions), Article 14 (transitional
provisions), Article 15 (entry into force), Article 16 (addressing the Member States) EIA Directive
2011 as well as its Annexes I, II, V and VI.
9 Amendments to the Annexes of the EIA Directive 2014 are dealt with in the context of the
provision the respective Annex refers to.
10 Article 1(1) lit. b) COM(2012) 628 final.
11 Article 1(1) lit. c) COM(2012) 628 final.
94 CHRISTOPH MAYER
Directive 2011 is extended to projects having as their sole purpose the response to
cases of civil emergency (Article 1(3) EIA Directive 2014).12 This change takes into
account the experience gained from the implementation of the EIA Directive 2011
that compliance with the EIA Directive regarding such projects could have adverse
effects, inter alia, on the environment.13 On the other hand, contrary to the
Commission’s proposal14, the mandatory sectoral exemption to the scope of the
EIA Directive regarding legislative development consents is removed from Article
1(4) EIA Directive 2011 by the means of its systematically inconsistent separation
from the optional sectoral exemption contained in Article 1(3) EIA Directive 2014
and now forms Article 2(5) EIA Directive 2014 complemented with a reporting
obligation of the Member States to the Commission concerning the application of
this exemption.15 Finally, Article 1 point (2) lit. b) Directive 2014/52/EU adds a
double limitation to the possibility of individual exceptions to the scope of the EIA
Directive as still set out in Article 2(4) EIA Directive 2014: In future a project will
only qualify for an individual exception if the application of the provisions of the
EIA Directive 2014 result in adversely affecting the purpose of the project and if the
objectives of this Directive are met in spite of the dispensation.
1.2.3 Bundling of EIA and other environmental assessment procedures
Article 2(3) EIA Directive 2011 already provided for the opportunity to
concentrate the environmental assessment procedures of the EIA Directive 2011
and the Directive 2008/1/EC16 (nowadays Directive 2010/75/EU17) by the means
of a single procedure. By its proposal for the EIA amending Directive the
Commission aimed to fully extend this approach of procedural simplification so
that projects for which the obligation to carry out assessments of the effects on the
environment arises simultaneously from the EIA Directive to be amended and
other Union legislation should be subject to coordinated or joint procedures
fulfilling the requirements of the relevant Union legislation.18 In spite of its benefits
with respect to the economy of procedure and thus ultimately to cost and
acceptance considerations, such a far-reaching harmonization of procedures,
however, met with resistance from quite a number of Member States in the Council
12 Article 1 point (1) lit. b) Directive 2014/52/EU.
13 See recital (20) of the Directive 2014/52/EU.
14 Article 1(1) lit. c) COM(2012) 628 final.
15 Article 1 point (1) lit. c), Article 1 point (2) lit. c) Directive 2014/52/EU.
16 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008
concerning integrated pollution prevention and control, OJ L 24, p. 8 (the so-called IP[P]C
Directive).
17 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010
on industrial emissions (integrated pollution prevention and control), OJ L 334, p. 17 (the so-called
IE Directive).
18 Article 1(2) COM(2012) 628 final.
Directive 2014/52/Eu… 95
that considered the introduction of such an "EIA one-stop shop" to be incompatible
with the organizational and procedural structures of their national legal system.19
As a compromise Article 2(3) subparagraph 1 EIA Directive 2014 now lays down a
mandatory bundling of procedures by the means of introducing coordinated
and/or joint procedures20 only for environmental assessment requirements of the
EIA Directive 2014 and the Directives 92/43/EEC21 and 2009/147/EU22; for all
other forms of environmental impact assessment of projects required by Union law
Article 2(3) subparagraph 2 EIA Directive 2014 provides an optional procedural
harmonization by the means of coordinated and/or joint procedures.23
1.3 EIA-related provisions (Articles 3-7 EIA Directive 2014)
Important innovations in the field of the EIA-related provisions can first of all
be found in the provisions on the list of EIA-protected assets, the screening, the
scoping, the EIA report and the participation.
1.3.1 List of EIA-protected assets
The two paragraphs of Article 3 EIA Directive 2014 contain the list of EIA-
protected assets redrafted by Article 1 point (3) Directive 2014/52/EU.
Paragraph 1, which has emerged from Article 3 EIA Directive 2011, provides
besides a purely formal factual regrouping of the single protected assets three
substantive changes. Firstly, the protected asset “human beings” is replaced by the
protected assets “population and human health”. This clarifies that the object of an
EIA is constituted not only by health-related, but also by other – especially social –
consequences of the project for the hereby affected people.24 Secondly, the
protected assets “fauna and flora” are novated by the protected asset “biodiversity,
with particular attention to species and habitats protected under Directive
92/43/EEC and Directive 2009/147/EC”. As the mention of "fauna and flora" as
an example of the protected asset “biodiversity” in Annex IV point (4) shows, this
modification does not mean any substantive change, but rather only aims at
adjusting the EIA Directive 2014 to the terminology of the United Nations
19 See Sangenstedt (above, footnote 6), p. 528.
20 The legal definition of the coordinated procedure can be found in Article 2(3) subparagraph
3 EIA Directive 2014, the legal definition of the joint procedure in Article 2(3) subparagraph 4 EIA
Directive 2014. Additionally, Article 2(3) subparagraph 5 lays down the Commission’s obligation to
provide guidance regarding the setting up of any coordinated or joint procedure for projects that
are simultaneously subject to assessment under certain EU Directives.
21 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habits and of
wild fauna and flora, OJ L 206, p. 7 (the so-called Habitats Directive).
22 Directive 2009/147/EU of the European Parliament and of the Council of 30 November 2009
on the conservation of wild birds, OJ L 20, p. 7 (the so-called Birds Directive).
23 Article 1 point (2) lit. a) Directive 2014/52/EU.
24 See Bunge, Neue Anforderungen an die Umweltverträglichkeitsprüfung: die UVP-
Änderungsrichtlinie 2014, Neue Zeitschrift für Verwaltungsrecht (NVwZ), pp. 1257-1263 (p. 1258).
96 CHRISTOPH MAYER
Convention on Biological Diversity.25 Finally, Article 3(1) lit. c) EIA Directive 2014
now also quotes “land” as a protected asset. Consequently, an EIA from now on
gives focus to increasing land use and landscape fragmentation in connection with
the implementation of projects.26 Insofar as the previous EIA-practice has already
considered land-related impacts of projects in connection with the protected asset
"soil", there will be, however, no additional testing requirements in future. By
contrast and contrary to the Commission’s proposal27, the protected asset "climate
change" has not been included in the list of EIA-protected assets in Article 3(1) EIA
Directive 2014 so that insofar it remains with the protected asset “climate” already
provided for to date.
According to Article 3(2) EIA Directive 2014 – similar to the Commission’s
proposal for the EIA amending Directive28 – the effects referred to in Article 3(1)
EIA Directive 2014 on the factors set out therein shall include the expected effects
deriving from the vulnerability of the project to risks of major accidents and/or
disasters that are relevant to the project concerned.29 By this means, the EIA
Directive 2014 is adopted, inter alia, to the requirements of the United Nations
Hyogo Framework for Action Programme.30
1.3.2 Screening
Under the EIA Directive 2014 the term “screening” still means that the
competent authority or authorities31 determine(s) whether or not the project has to
be made subject to an EIA by the means of a case-by-case examination32 (Article
4(2) subparagraph 1 lit. a) EIA Directive 2014). While this procedural step has so
far been limited to the regulatory review taking into account the relevant selection
criteria set out in Annex III and the public disclosure of the decision taken by the
competent authority or authorities (Article 4(3) and (4) EIA Directive 2011), Article
1 point (4) Directive 2014/52/EU has transformed the case-by-case examination –
in substantial conformity with the Commission’s proposal33 – into a "small EIA".34
In accordance with Article 4(4) EIA Directive 2014 the developer shall, first of
all, provide information on the characteristics of the project and its likely
25 See recitals (10) and (11) of the Directive 2014/52/EU.
26 See recital (9) of the Directive 2014/52/EU.
27 Article 1(3) COM(2012) 628 final.
28 Article 1(3) COM(2012) 628 final.
29 Article 1 point (3) Directive 2014/52EU.
30 See recitals (14) and (15) of the Directive 2014/52/EU.
31 See for the legal definition of this term Article 1(2) lit. f) EIA Directive 2014.
32 In the terminology of Article 4(3)-(5) EIA Directive 2014 latterly also only “determination”.
This is a rather misleading choice of terminology with respect to the use of this term in Article 4(2)
EIA Directive 2014, where “determination” forms a generic term for the case-by-case examination (lit.
a)) as well as for the determination through thresholds or criteria set by the Member States (lit b)).
33 Article 1(4) COM(2012) 628 final.
34 See Schink, Änderung der UVP-Richtlinie und Auswirkungen auf das nationale Recht,
Deutsches Verwaltungsblatt (DVBl) 2014, pp. 877-886 (p. 882).
Directive 2014/52/Eu… 97
significant effects on the environment according to the new Annex II.A. In doing
this the developer shall take into account, where relevant, the available results of
other relevant assessments of the effects on the environment carried out pursuant
to Union legislation other than the EIA Directive 2014 and may also provide a
description of any features of the project and/or measures envisaged to avoid or
prevent what might otherwise have been significant adverse effects on the
environment. Thereafter, the case-by-case examination of whether or not the
project has to be made subject to an EIA is carried out by the competent authority
on the basis of the mentioned information provided by the developer (Article 4(5)
EIA Directive 2014), taking into account the relevant selection criteria of Annex III35
(Article 4(3) EIA Directive 2014). Finally, according to Article 4(5) EIA Directive
2014, the result of the case-by-case examination shall be made available to the
public. This determination shall state – with reference to the relevant criteria of
Annex III – the main reasons for requiring or not an EIA.36
To increase the efficiency of the regulatory decision-making in the context of the
screening, Article 4(6) EIA Directive 2014 for the first time sets a time limit for
carrying out the case-by-case examination: It amounts to 90 days from receipt of the
complete dossier of information according to Article 4(4) EIA Directive 2014, but
may be extended by way of exception by the competent authority by the means of a
written statement of reasons giving the officially targeted decision date.37
1.3.3 Scoping
Under the EIA Directive 2014 scoping, the procedural step following the
findings that the project requires an EIA38, consists of the issuing of an opinion on
the scope and level of detail of the information to be included by the developer in
the EIA report in accordance with Article 5(1) EIA Directive 201439 by the
competent authority after consulting the authorities mentioned in Article 6(1) EIA
Directive 2014 (Article 5(2) subparagraph 1 EIA Directive 2014) and thus
35 Pursuant to Article 1 point (15) Directive 2014/52/EU in conjunction with point (2) of the
Annex of this Directive Annex III has – only partially in accordance with the Commission’s
proposal for the EIA amending Directive (Article 1(12) COM(2012) 628 final in conjunction with
paragraph 2 of the accompanying Annex) – also been transformed with regard to single points
which cannot be discussed in detail here. The aim of this legal innovation is to adjust the selection
criteria of Annex III due to the experience of the previous implementation of the Directive and to
define them in detail, see recital (28) of the Directive 2014/52/EU.
36 If the competent authority decides that an EIA is not required, it shall additionally state,
where proposed by the developer, any features of the project and/or measures envisaged to avoid
or prevent what might otherwise have been significant adverse effects on the environment.
37 See recital (36) of the Directive 2014/52/EU.
38 As a mandatorily EIA-requiring project according to Article 4(1) EIA Directive 2014, due to a
screening pursuant to Article 4(2) subparagraph 1 lit. a) EIA Directive 2014, hereto above 2.2.2, or as
a result of the exceedance of thresholds or of the fulfillment of other criteria set by the Member
States in accordance with Article 4(2) subparagraph 1 lit. b) EIA Directive 2014.
39 To this below 2.2.4.
98 CHRISTOPH MAYER
corresponds entirely with the definition of scoping pursuant to Article 5(2)
subparagraph 1 EIA Directive 2011. In this context the Commission was not able to
prevail with its proposal of a mandatory scoping process40, instead according to
Article 1 point (5) Directive 2014/52/EU the previous regime of an optional
scoping at the request of the developer remains (Article 5(2) subparagraph 1 EIA
Directive 2014). However, pursuant to Article 5(2) subparagraph 2 EIA Directive
2014 the Member States are explicitly allowed to prescribe a mandatory scoping.
1.3.4 EIA report
In accordance with Article 5(1) subparagraph 1 EIA Directive 2014, where an
EIA is required, the developer shall prepare and submit to the competent authority
an EIA report containing at least the following information: a description of the
project comprising information on the site, design, size and other relevant features
of the project (lit. a)), a description of the likely significant effects of the project on
the environment (lit. b)), a description of the features of the project and/or
measures envisaged in order to avoid, prevent or reduce and, if possible, offset
likely significant adverse effects on the environment (lit. c)), a description of the
reasonable alternatives studied by the developer, which are relevant to the project
and its specific characteristics, and an indication of the main reasons for the option
chosen, taking into account the effects of the project on the environment (lit. d)), a
non-technical summary of the information referred to in points (a) to (d) (lit. e))
and any additional information specified in Annex IV41 relevant to the specific
characteristics of a particular project or type of project and to the environmental
features likely to be affected (lit. f)). In addition to these substantive requirements
Article 5(1) subparagraph 2 EIA Directive 2014 lays down formal requirements for
the drafting of the EIA report, after all, in Article 5(3) EIA Directive 2014 measures
are found to ensure the quality of the EIA report, especially in the form of the
participation of competent specialists at the drafting of the EIA report by the
developer as well as at its regulatory verification.
40 Article 1(5) COM(2012) 628 final.
41 Pursuant to Article 1 point (15) Directive 2014/52/EU in conjunction with point (2) of the
Annex of this Directive Annex IV has – only partially in accordance with the Commission’s
proposal for the EIA amending Directive (Article 1(12) COM(2012) 628 final in conjunction with
paragraph 2 of the accompanying Annex) – also been reshaped and extended regarding numerous
points which cannot be discussed in detail here. The most significant legal innovations in so far are,
among others: the introduction of a description of the relevant aspects of the current state of the
environment (the so-called baseline scenario) and of an outline of the likely evolution thereof
without implementation of the project (the so-called zero alternative) within the limits of
reasonable efforts (point (3)), the introduction of a description of the factors specified in Article 3(1)
EIA Directive 2014 likely to be significantly affected by the project (point (4)) and the specification
of the requirements with regard to the description of the likely significant effects of the project on
the environment (point (5)) as well as of the measures envisaged to avoid, prevent, reduce or, if
possible, offset any identified significant adverse effects on the environment (point (7)).
Directive 2014/52/Eu… 99
In the light of the above, the EIA report introduced by Article 1 point (5)
Directive 2014/52/EU does not only mean a terminological innovation compared
to the “information” the developer had to supply “in an appropriate form” already
under Article 5(1) EIA Directive 2011. As the choice of the term "EIA report" – a
harmonization with the term “environmental report” laid down by the Directive
2001/42/EC42 and also provided for by the Commission’s proposal for the EIA
amending Directive43 – namely suggests the EIA report, in contrast to the
information the developer had to supply previously, needs to be a self-contained
document that may, where appropriate, contain attachments.44 In this context, the
Commission was not able to prevail with its proposal of a mandatory examination
of alternative project solutions.45 According to Article 5(1) subparagraph 1 lit. d)
EIA Directive 2014 the alternative project solutions that have to be included in the
EIA report are limited to reasonable alternatives studied by the developer (e. g.
due to requirements under specific legislation), which are relevant to the project
and its specific characteristics. Where such alternatives do not exist, Article 5(1)
subparagraph 1 lit. d) thus does not create an original obligation to examine
alternative project solutions.46
1.3.5 Participation
Regarding the EIA-related provisions the EIA amending Directive has not least
also modified the provisions on the participation. Firstly, Article 1 point (6) lit. a)
Directive 2014/52/EU expands – devoid of any basis in the Commission’s
proposal – the group of authorities entitled to give an opinion on the information
supplied by the developer and on the request for development consent beyond the
authorities likely to be concerned by the project by reasons of their specific
environmental responsibilities by also entitling authorities concerned due to their
local and regional competences (Article 6(1) EIA Directive 2014); furthermore,
according to the Commission’s proposal for the EIA amending Directive47, Article
6(6) EIA Directive 2014 now explicitly lays down for the participation of the
authorities – by analogy of the public participation – the requirement of a
reasonable time framework for information as well as effective preparation and
participation, without stating, however, a specific minimum time limit.48 Secondly
and again devoid of any basis in the Commission’s proposal, Article 1 point (6) lit.
b) and c) Directive 2014/52/EU provide for the electronical information of the
42 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the
assessment of the effects of certain plans and programmes on the environment, OJ L 197, p. 30.
43 Article 1(5) COM(2012) 628 final.
44 See Bunge (above, footnote 23), p. 1259.
45 Article 1(5) COM(2012) 628 final.
46 See Sangenstedt (above, footnote 6), p. 532.
47 Article 1(6) lit. a) COM(2012) 628 final.
48 Article 1 point (6) lit. d) Directive 2014/52/EU.
100 CHRISTOPH MAYER
public as one procedural modality of such information in a binding way in Article
6(2) and (5) EIA Directive 2014. In addition to that, Article 6(7) EIA Directive 2014
states a minimum time limit of 30 days without a maximum time limit for public
participation.49 Finally, and in accordance with the Commission’s proposal for the
EIA amending Directive50, Article 1 point (7) lit. b) Directive 2014/52/EU adjusts
the time limits for the transboundary participation in Article 7(5) EIA Directive
2014 to the respective new requirements for the national participation.
1.4 Provisions related to the development consent (Articles 8-9 EIA
Directive 2014)
With regard to the provisions related to the development consent significant
changes can be found in the provisions on the obligation of taking into account the
EIA results in the development consent procedure as well as the formal and
timeliness requirements for the development consent itself.
1.4.1 Obligation of taking into account the EIA results in the development
consent procedure
According to Article 8 EIA Directive 2014 the results of consultations and the
information gathered pursuant to Articles 5-7 EIA Directive 2014 shall no longer –
as yet stated under Article 8 EIA Directive 2011 and in the Commission’s
proposal51 – be only simply, but “duly” taken into account in the development
consent procedure.52 Neither Article 8 EIA Directive 2014 nor the recitals of this
Directive, however, provide any information on what is meant by this increased
obligation. Therefore, this question will finally have to be answered case-by-case
by the Court of Justice of the European Union.
1.4.2 Formal and timeliness requirements for the development consent
itself
Article 8a EIA Directive 2014, newly introduced by Article 1 point (9) Directive
2014/52/EU, contains numerous formal and timeliness requirements for the
development consent.53 These concern the content (paragraphs 1-4, inter alia: the
reasoned conclusion; any environmental conditions attached to the decision; a
49 Article 1 point (6) lit. e) RL 2014/52/EU; in contrast to that, the Commission’s proposal for
the EIA amending Directive states in Article 1(6) lit. b) a maximum time limit of 60 days for the
participation which can exceptionally be extended by 30 more days.
50 Article 1(7) COM(2012) 628 final.
51 Article 1(8) COM(2012) 628 final.
52 Article 1 point (8) Directive 2014/52/EU.
53 In Article 1(8) COM(2012) 628 final the Commission’s proposal for the EIA amending
Directive provides for significantly stricter formal and timeliness requirements (especially a basic
time limit of three months for the carrying out of an EIA after having gathered all necessary
information for this purpose). However, these requirements are not stated in a separate article but
following immediately the obligation of consideration in the redrafted Article 8 EIA Directive 2011.
Directive 2014/52/Eu… 101
description of any features of the project and/or measures envisaged to avoid,
prevent or reduce and, if possible, offset significant adverse effects on the
environment as well as, where appropriate, monitoring measures; in the case of the
decision to refuse the development consent the main reasons for the refusal), the
time limit for the granting (paragraph 5: reasonable period of time) and the
topicality of the development consent (paragraph 6).
1.5 Other provisions (Articles 9a-16 EIA Directive 2014)
Regarding the other provisions besides the anchoring of the regulatory
obligation of neutrality in Article 9a EIA Directive 201454 it especially has to be
mentioned the introduction of the obligation of the Member States to lay down
rules on penalties applicable to infringements of the national provisions adopted
pursuant to the EIA Directive 2014 (Article 10a EIA Directive 201455). Not included
in this context is finally the Commission's proposal to be empowered to adopt
delegated acts concerning the selection criteria listed in Annex III and the
information referred to in Annexes II.A and IV, in order to adapt them to scientific
and technical progress.56
2 . Evaluation of the new provisions from an EU environmental law
perspective
The above presentation of the several significant changes of the EIA Directive
2011 by the Directive 2014/52/EU, taking into account the amendments provided
for in the underlying Commission’s proposal, illustrates the EU’s characteristic
nature of compromise with regards to this amending Directive. On the one hand,
quite a number of important reform approaches, such as the comprehensive
bundling of the environmental assessment procedures required by EU
environmental law, the inclusion of hydraulic fracturing (in short: fracking) in the
list of Annex I-projects mandatorily requiring an EIA or the introduction of a
mandatory scoping process were not taken up. On the other hand, the Directive
2014/52/EU also manages to include numerous new aspects in the EIA Directive
2014 that develop the EU EIA legislation in a consolidating way. In this respect, it
is worth highlighting inter alia the introduction of a preliminary EIA definition, the
expansion of the list of EIA-protected assets by the protected asset “land”, the
expansion and specification of the requirements for the screening and for the
supply with information by the developer in the (for the first time so-called) EIA
report, the emphasis of the obligation of taking into account the EIA results in the
development consent procedure, the newly introduced inclusion of a description
54 Article 1 point (11) Directive 2014/52/EU; the Commission’s proposal for the EIA amending
Directive does not contain such a provision.
55 Article 1 point (13) Directive 2014/52/EU; the Commission’s proposal does not provide for
such a provision.
56 Article 1(11) COM(2012) 628 final.
102 CHRISTOPH MAYER
of monitoring measures in the development consent as well as the streamlining of
the entire EIA procedure by the means of the introduction of maximum time limits,
while ensuring sufficient participation opportunities by respective minimum time
limits. Given this conflicting outcome, it is now all the more up to the Member
States to give future-oriented impetus to the EIA by the means of a committed
implementation of the legal innovations taking inspiration from the objectives of
the Directive 2014/52/EU in order to offset the lack of enforcement in this field
initiating the Commission’s proposal for the EIA amending Directive at all.
3 . Conclusion
The Directive 2014/52/EU has reshaped a large part of the provisions of the
EIA Directive 2011 requiring national transposition partly to a considerable extent.
The evaluation of these new regulations turns out to be ambivalent: Neither a big
step forward nor a mere minimum consensus of the Member States. Therefore,
these are responsible to make the EIA – just over 30 years after its visionary
introduction in 1985 – fit for the future by ambitiously implementing the EIA
amending Directive 2014/52/EU.
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