Is the Proposed Action an Appropriate Way to Achieve the Intended Objective(S)?
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The EU's Assembly of Regional and Local Representatives /
Subsidiarity
Monitoring Network
.../...
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Institution: / LandeshauptleutekonferenzTitle of the EU initiative: / Richtlinie des Europäischen Parlaments und des Rates zur Änderung der Richtlinie 2011/92/EU über die Umweltverträglichkeitsprüfung bei bestimmten öffentlichen und privaten Projekten
Reference: (e.g. COM(2005)112) / COM(2012) 628 final
The principle of subsidiarity is designed to ensure that decisions are taken as closely as possible to the citizen by the most appropriate level where the intended objective(s) can be most effectively achieved. It thus requires that constant checks be made as to whether EU action is justified in the light of the possibilities available at central, regional or local level. The Lisbon Treaty completed the definition of the EU principle of subsidiarity by referring explicitly to its local and regional dimension.
The present grid is designed as a tool for the Subsidiarity Monitoring Network,'s partners, with a view to facilitating their assessment of the compliance of EU initiatives with the subsidiarity and proportionality principles while also addressing the concept of better lawmaking. It includes an appendix which provides relevant sources of information.
1. TYPE OF COMPETENCE/LEGAL BASIS
The principle of subsidiarity applies only in areas which do not fall within the exclusive competence of the Union (Art. 5 TEU), i.e.shared and supporting competences.
At the outset of a subsidiarity analysis, the type of competence involved in the EU initiative must be defined.
In order to do so, it is necessary to begin by identifying the underlying legal basis.
The legal basis of an EU initiative is an article of the Treaty empowering the EU institutions to act in a given policy area. It is particularly important to identify the specific legal basis for legislative acts, but it is also relevant in the case of non-legislative acts, like communications, White and Green Papers. In this case however, it would suffice to identify only the policy area(s) appearing in the pertinent titles or chapters of the Treaty.
The legal basis and type of competence can be identified by answering the following questions:
1.1 Which article(s), title(s) or chapter(s) of the Treaty form(s) the basis for the EU's competence to act in the area in question? (for articles, see appended table, pt. 1)
1.2 Is the competence exclusive, shared or supporting? (see appended table)
In the case of exclusive competences of the EU, only compliance with the principle of proportionality needs to be appraised (go to point 3).
2. SUBSIDIARITY PRINCIPLE - "Should the EU act?"
In areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level (Art.5 TEU).
The EU should act only if its action is deemed to be necessaryand to provide a clear benefit. You can assess whether these two cumulative conditions are fulfilled by looking into the following questions. Useful sources of information for this analysis are impact assessments (see appendix, point 2) and/or explanatory memoranda and recitals of legislative proposals.
2.1 Is the proposed action necessary
- because the issue being addressed has trans-national aspects that cannot be satisfactorily regulated by Member States and/or local and regional authorities acting alone?
and/or
- because action taken by Member States alone or lack of action at EU level would conflict with the requirements of the Treaties or otherwise significantly damage the other Member States' interests?
and/or
- because existing EU measures and/or targeted assistance provided in this framework are not sufficient to achieve the intended objective(s)?
EU legislation is certainly necessary when a particular project or measure is expected to have a transboundary environmental impact. The EU EIA (environmental impact assessment) directive and EIA procedure should therefore be limited to those projects which are clearly transboundary in nature. Unfortunately, there are no details in the Commission documents (particularly the impact assessment) about the number of EIA procedures of a transboundary nature carried out by Member States, and therefore requiring transboundary consultation procedures.
For projects and measures which have a purely national impact on the environment, or which at the outside could damage human health directly or indirectly, Member States should remain substantially responsible for assessing the impact thereof in relation to the multiple environmental aspects. In this connection, for environmental protection and human health protection reasons, there are at best minimum requirements for implementing assessment procedures. More important is the interest in establishing a level playing field, in terms of both substance and procedure, in a competition-neutral internal market for entrepreneurial activities which can have a significant environmental impact. In this connection, there is already a series of substantive environmental protection provisions at EU level.
In procedural terms, the 2011 codified version of the existing EIA directive goes the furthest in providing an adequate basis for (internal market law) harmonisation of national assessment procedures. Supplements and corrections are only necessary where they can bring about greater standardisation of procedures affecting projects with a transboundary impact and take account of current ECJ case law. For the inclusion of other aspects under national procedures: civil protection, climate change, biodiversity, and assessment and consideration of efficient use of natural resources, there are likewise already enough EU rules and regulations to take adequate account of their specific aims (based on other legal bases set out in the EU treaties). In this connection and in relation to its organisational concept, whereby every authority is obliged on its own initiative to introduce procedural steps at each stage as defined by the EIA procedure, Austria is cited positively in the impact assessment (Pt. 10.12.13.).
Many of the new points being proposed now by the Commission for the EIA directive are therefore unnecessary on subsidiarity grounds.
Furthermore, the Commission is strongly suggesting taking various individual Member States' national law obligations under international agreements into account in the amendment to the EIA directive. This involves: the Rio 2012+ Climate Conference, with regard to land degradation, soil protection and land use; the UN Convention on Biological Diversity, with its obligation for prior assessment; the UN Hyogo Framework for Action 2005-2015 on the assessment of disaster risk for infrastructure projects; and the Council of Europe Convention on the protection of cultural heritage and cultural landscape. It makes entire sense from the point of view of minimising administration costs to anticipate and deal with implementation responsibilities from the outset. There are, of course, reservations to be raised from a legal point of view concerning: the transposition of provisions into national law, the just limited powers which the EU has to regulate this and, as a consequence, the thus engendered harmonisation of national regulations at EU level.
2.2 Would the proposed action provide a clear benefit, by reason of its scale and/or effectiveness, compared with action at national, regional or local levels (e.g. economies of scale, legal clarity, homogeneity in legal approaches, etc.)?
To date, the minimum requirements of an EU directive regulating the EIA procedure also constitute an advantage for environmental protection as a whole, because throughout the EU, the requirements stipulate that harmonised assessment procedures are to apply for projects and measures to be authorised, even if they are not transboundary in nature. This could also ensure the equal treatment of entrepreneurial activity which might jeopardise environmental interests or, indirectly, human health, in order to prevent unfair competition conditions in the internal market.
No clear added value or additional benefit is to be expected from the changes, additions and new points being proposed now by the Commission for projects which do not have a transboundary dimension. Rigorous implementation of the existing rules at national level, which keeps the leeway for Member States unchanged, along the lines of a directive, would be enough or even just as effective as the tighter legal provisions being planned by the Commission.
Comments in detail:
Article 1 (3): To be welcomed is the extension of optional exemptions regarding application of the projects to cover civil emergencies, for which adequate EU standards already exist with Directive 2001/42/EC, which governs the assessment of the general environmental impact of specific plans and programmes, inter alia disaster provision plans.
Article 2 (3): No EIA ‘one-stop shop’ is needed, nor is any overseeing body required to coordinate the multiple aspects of the comprehensive EIA procedures. This can already follow on from the current provisions: express mention is made of the positive example of Austria in the impact assessment (see Pt. 10.12.13.) for its development consent procedures (!). Member States already have the possibility of including evaluation procedures and assessments on the basis of further EU provisions in EIA procedures or even to address these matters separately. It must remain up to Member States to decide themselves on the most efficient form of organising the various assessment procedures, and they should have the right to do so. If federal states were to be obliged to set up a "coordinating overseeing body" which processed, and took the final decision on, any individual evaluation drawn up by state and federal authorities, a constitutional problem could arise because a transfer of powers might be involved. Under any mandatory one-stop shop system for the EIA, the impact assessment makes reference to the habitats directive in particular (because nature protection comes under the Länder's legislative responsibility, a constitutional provision would be necessary in Austria, requiring a two thirds majority in order to be able to set up "common competent authorities"). No added value for environmental protection can be derived from this. Any legal or technical conflicts arising when weighing up the interests of various environmental goods requiring protection are not resolved, but rather shifted to even more complex procedures. Conflicts arise mainly due to substantive-law requirements of EU and national transposition legislation in the different areas of law, which cannot be remedied by means of a "procedural law" (such as the EIA directive) alone.
Article 3: With the extension of the already very extensive subject of climate change, in respect of disaster risks and efficient resource use, to include the assessment of aspects of biodiversity, the EIA procedure is being expanded significantly. Technical input in the form of expert opinions will increase enormously without there being significant advantages for environmental protection. Since the "environmental protection label" is anyway an approach to be interpreted in a broad sense and includes most of the aspects which the Commission is now expressly recommending and, depending on the project or measure concerned, is dealt with at the same time in any serious assessment under the existing provisions, it is not clear how European rules could bring any added value. The exchange of best practice between Member States is enough to remedy any shortcomings in individual Member States.
Article 4: Standardisation of the screening procedure, including the relevant Annexes: II (Projects), new IIA (Information to be submitted) and III (Selection criteria), by means of EU legislation only brings minor additional benefits, but restricts Member States' and project promoters' room for manoeuvre disproportionately. The provision is thus partly endowed with the nature of a provision in a regulation (its content is so clearly determined that it is immediately applicable), such that it is no longer appropriate for a directive. Likewise there is no clear additional benefit from setting a given period of time (decision basically has to be made within 3 months + 3 months extension) for implementing the screening procedures for environmental protection quality.
It is, moreover, doubtful whether the annexes contain "non-essential elements" in the meaning of Article 290 of the TFEU and therefore whether they could be the subject of "delegated acts". This would allow the Commission, in a very simple procedure (under the comitology procedure, EU legislators are in the first instance only to be notified of planned changes) to further restrict the leeway of Member States through additional requirements.
Article 5: The same holds true for the main EIA procedure itself, during which the scoping process is henceforth mandatory and the content of the opinion to be submitted is to be laid down for the authorities to the greatest extent possible through the EIA directive requirements. With an information exchange and the exchange of good practice, at least the same amount of benefit could be secured between Member States.
In the event that authorities in a technical findings procedure should decide that an EIA procedure is to be carried out, a whole series of additional content will in future have to be taken on board in the authorities' decision. These are not only exceedingly comprehensive, but authorities are also required to provide technical findings which it would make more sense for project promoters to be required to provide. This includes the authorities' duty to determine "reasonable alternatives relevant to the proposed project and its specific characteristics", which, on the one hand, would lead to a situation where the authorities would also be given a project-planning function. On the other hand, such an obligation in the planned directive would have repercussions on the level of detail of the documents to submit for the assessment of alternatives, which would have to be prepared in much more detail than to date. The proportionality of the provision in question on so-called "scoping" is thus to be questioned, especially since optimisation and adjustments occur as part of an EIA procedure and, at the time in question, it is impossible for the information necessary for meeting the directive's requirements to be available.
Generally speaking, it should be noted that it is not possible to see, given the aim also set out in the explanatory memorandum for the proposed directive, how a simplification of the draft can be justified if its implementation entails a huge additional burden for the enforcement authorities, without being offset by recognised added value from the point of view of environmental protection.
Art. 6 (7): Time-frames are only set for consulting the "public concerned" (at least 30 and at most 60 days; in exceptional cases this can be extended by 30 days) There is no clear significant added value in relation to the current open rule ("allowing sufficient time"). On the contrary, time-frames for other authorities to be involved might be set differently by the EIA authorities, which would not contribute to equal treatment.
Articles 7 and 8: With the exception of consultation on projects with a clear transboundary environmental impact, there is no clear additional benefit from time-frames for consultation, procedures (completion within 3 months (!), extension for a further 3 months possible) and reporting. It should be left up to the Member States to use individual time-frames suited to their local and regional situations and in keeping with the type of project involved. An overly strict time constraint could, on the contrary, jeopardise the quality of the assessment procedure and/or the reporting.
3. PROPORTIONALITY PRINCIPLE - "How should the EU act?"
The content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties (Art. 5 TEU).
The means proposed by the EU must be suitable and appropriate to achieve the intended objective(s).
3.1 You can assess whether the nature and extent of the proposed action comply with the proportionality requirements by looking into the following questions. Useful sources of information for this analysis are impact assessments (see appendix, point 2) and/or explanatory memoranda and recitals of legislative proposals.
- Is the proposed action an appropriate way to achieve the intended objective(s)?
And
- Is the proposed form of action (choice of instrument) as simple as possible in order to achieve the intended objective(s)?
And
- Does the proposed action leave as much room for national (i.e. central, regional and local) decision as possible in order to achieve the intended objective(s)?
As already explained above, some aims of the measures currently being proposed could equally be achieved by means of less restrictive measures.
With the system it has in place, Austria has proved that it is not necessary to set up a one stop shop in order to deal with and take into consideration the various environmental protection aspects of authorisation procedures or EIA procedures in an integrated fashion. A mandatory EU requirement here clearly runs counter to the proportionality principle. Given the EU's "supporting role" for national measures in matters relating to health and sometimes to climate change, biodiversity and culture, additional legal measures at EU level are not warranted. The EU's role should consist of passing on individual Member States' good examples to other countries.
The exchange of best practice between the approx. 1 400 (Commission figures - subject to confirmation - in the impact assessment) EU-27 civil servants dealing with EIA procedures would be enough to deal with the other aspects called for by the Commission in an integrated fashion: biodiversity, climate change, protection of human health and, if necessary, civil emergencies, in all phases of the EIA procedure and moreover, in national authorisation procedures.
This also holds true for the planned simplification of the screening procedure through the addition of more criteria to be taken into consideration by expanding the annexes to the directive and adding to the planned requirements for the scoping procedure.
3.2 If you consider that the proposed action goes further than is necessary, what, in your opinion, would be a less restrictive, alternative way of achieving the intended objective(s)?
Non-mandatory Commission guidelines based on good examples from the Member States and action to promote an intensive exchange between Member States of their ideas and experience in this domain.
4. BETTER LAWMAKING
4.1 If an impact assessment accompanies the EU initiative (see appendix, point 2) do you believe that it duly takes into account local and regional aspects? Do you agree with the assessment proposed by the European Commission?
4.2 Would implementation of the proposed action entail financial and/or administrative burdens[1]for your administration, and/or economic operators and/or citizens in your region/city/municipality?
Would these costs be commensurate to the intended objective(s)?
If the impact of the EU initiative was not assessed (either separately through an impact assessment or directly in the initiative itself), please indicate whether in your opinion potential financial and/or administrative burdens should be further appraised, e.g. via a consultation through the various CoR networks.
5. ROLE OF THE EU
In your opinion, what role should the EUplay in the policy area concerned? (For instance: should the EU merely set the main framework/the main targets or rather specify more detailed provisions? Should the EU play a more supporting role, e.g. by coordinating existing national policies, or is more extensive and direct EU action necessary? Are regulatory measures necessary, or do you consider that alternatives to legislation would suffice, i.e. guidance documents from the European Commission?)
Appendix