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Toolkit

How to use EU and international environmental law
to protect rivers from hydropower development

2. EU environmental law related to hydropower development

The EU has put in place clear and ambitious policies with respect to protecting the natural environment, backed by environmental legislation. It is important to note that the six Directives presented in this chapter have been (or should have been) transposed into national legislation in EU Member States. Besides looking at the text of the EU Directives, it is therefore important to also assess the applicable national legislation, as national governments have a certain level of freedom to deviate from the EU Directives, as long as their main objectives are not violated.

Although these six Directives provide a basis for the protection of the environment and aim to prevent any deterioration of the current situation, they provide for several derogations and are sometimes not properly implemented or enforced. For example, it should not be taken for granted that when an Environmental Impact Assessment (EIA) is available or when the Appropriate Assessment (AA) in accordance with the Habitats Directive is carried out, that this has been done in a manner that meets the required standards.

Often the EIA or the AA is drawn up by the developer who has an interest in the approval of the project. It is up to the competent authority (the body designated by Member State as responsible for the implementation of the Directive) to assess whether the EIA or AA meets the requirements. Yet, this assessment is not always thoroughly done. In-depth screening of the procedure and content by environmental NGOs can pay off and can lead to successful court cases, putting initiatives to build new hydropower plants on hold or amending plans to the benefit of the environment.

The toolkit provides information about the following six EU Directives.

The full text of each Directive can be found when clicking on the footnote:

  • Environmental Impact Assessment Directive (Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment as amended by Directive 2014/52/EU) 3 ;
  • Strategic Environmental Impact Assessment Directive (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) 4 ;
  • Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) 5 ;
  • Birds Directive (Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds) 6 ;
  • Water Framework Directive (2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy) 7 ;
  • Environmental Liability Directive (ELD) (Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, as amended by Directive 2006/21/EC, Directive 2009/31/EC and Directive 2013/30/EU). 8

2.1 The Environmental Impact Assessment Directive

Before any project or investment likely to have significant effects on the environment can start, an Environmental Impact Assessment (EIA) has to be carried out in order to identify, describe and assess the direct and indirect significant effects on the environment. No clear definition of ‘significance’ is provided by the EIA Directive, and it has to be assessed in light of the project’s specific circumstances.

All projects listed in Annex I of the EIA Directive are considered as having significant effects on the environment and require an EIA (e.g. dams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic metres.)

For projects listed in Annex II (e.g. installations for hydroelectric energy production), the national authorities have to decide whether an EIA is needed. This is done by the “screening procedure”, which determines the significance of effects of projects on the basis of thresholds/criteria or a case by case examination. However, the national authorities must take into account the criteria laid down in Annex III.

In the following we will clarify when an EIA is mandatory, what procedure has to be followed and when there are opportunities to become involved in the procedure. EIA’s are meant to clearly assess and explain the possible impact on the environment to support decision making about the issuing of permits. The EIA also helps to re-design a project to limit or mitigate environmental damage.

When the outcome of the EIA shows that there is significant environmental impact, this does not mean that the hydropower project (HPP) cannot be built. It is up to the competent authority to assess whether all procedural steps for drawing up the EIA have been followed. It is also up to the competent authority to decide whether a permit will be issued for the construction of the HPP after the EIA procedure has been completed.

Before the competent authority concludes on issuing a permit, the draft EIA has to be open for the public to comment and present their views. Once a permit is issued it include information on environmental conditions; a description of features of the project and/or measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment; and, where appropriate, monitoring measures.

The EIA may be integrated into existing procedures for project development consent (e.g. construction permit), or, failing this, into other procedures established to comply with the aims of the EIA Directive.

According to the EIA Directive, a coordinated or joint procedure should be undertaken if an assessment of a project is required under both the EIA Directive and the Nature Directives (Habitats and Bird Directives).

The screening procedure

The process of determining whether an environmental impact assessment is required for a project listed in Annex II (e.g. installations for hydroelectric energy production) is called screening. Member States may conduct screening through: a) a case-by-case examination; b) thresholds or criteria set by the Member State; or a combination of the two approaches.

Where a case-by-case examination is carried out or thresholds and/or criteria are set to determine whether the projects listed in Annex II should be subject to an EIA, the relevant selection criteria set out in Annex III shall be taken into consideration. It is required, however, that all the relevant selection criteria listed in Annex III be taken into account. 9 Accordingly, a Member State, which has applied case-by-case examination or established thresholds and/or criteria taking only some of these
criteria (i.e. size of project) into consideration, exceeds the limits of discretion granted under the EIA Directive. 10

Annex III

CRITERIA TO DETERMINE WHETHER THE PROJECTS LISTED IN Annex II SHOULD BE SUBJECT TO AN ENVIRONMENTAL IMPACT ASSESSMENT

1. Characteristics of projects

The characteristics of projects must be considered, with particular regard to:the size and design of the whole project;

  • cumulation with other existing and/or approved projects;
  • the use of natural resources, in particular land, soil, water and bio-diversity;
  • the production of waste;
  • pollution and nuisances;
  • the risk of major accidents and/or disasters which are relevant to the project concerned, including those caused by climate change, in accordance with scientific knowledge;
  • the risks to human health (for example due to water contamination or air pollution).

2. Location of projects

The environmental sensitivity of geographical areas likely to be affected by projects must be considered, with particular regard to:

  • the existing and approved land use;
  • the relative abundance, availability, quality and regenerative capacity of natural resources (including soil, land, water and biodiversity) in the area and its underground;
  • the absorption capacity of the natural environment, paying particular attention to the following areas:
  • wetlands, riparian areas, river mouths;
  • coastal zones and the marine environment;
  • mountain and forest areas;
  • nature reserves and parks;
  • areas classified or protected under national legislation; Natura 2000 areas designated by Member States pursuant to Directive 92/43/EEC and Directive 2009/147/EC;
  • areas in which there has already been a failure to meet the environmental quality standards, laid down in Union legislation and relevant to the project, or in which it is considered that there is such a failure;
  • densely populated areas;
  • landscapes and sites of historical, cultural or archaeological significance.

3. Type and characteristics of the potential impact

The likely significant effects of projects on the environment must be considered in relation to criteria set out in points 1 and 2 of this Annex, with regard to the impact of the project on the factors specified in Article 3(1), taking into account:

  • the magnitude and spatial extent of the impact (for example geographical area and size of the population likely to be affected);
  • the nature of the impact;
  • the transboundary nature of the impact;
  • the intensity and complexity of the impact;
  • the probability of the impact;
  • the expected onset, duration, frequency and reversibility of the impact;
  • the cumulation of the impact with the impact of other existing and/or approved projects;
  • the possibility of effectively reducing the impact.

For each HPP not subject to an EIA, a decision of the relevant competent authority must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening, carried out in accordance with the requirements of the EIA Directive. 11 The determination must be such that it can enable interested parties to decide whether or not to appeal against said determination, taking into account any factors, which might subsequently be brought to their attention. 12 This implies that interested parties can bring in new information, which was not available or not used during the screening.

The EIA report

When the screening stage ascertains that the project can be expected to have significant effects on the environment, an EIA is necessary. In the first step of the EIA procedure, the developer must prepare and submit an environmental impact assessment report.

According to Article 3, the environmental impact assessment shall identify,
describe and assess in an appropriate manner, in the light of each individual
case, the significant, direct and indirect effects of a project on the following
parameters:

  • population and human health;
  • biodiversity, with particular attention to species and habitats protected under the Habitats and Birds Directives;
  • land, soil, water, air and climate;
  • material assets, cultural heritage and the landscape;
  • the interaction between the above factors.

The assessment of effects shall include the expected effects deriving from the vulnerability of the project to risks of major accidents or disasters relevant to the project concerned.
Article 5 of the EIA Directive sets out what must be included in the EIA report,
and how to ensure that it is both complete and of sufficiently high quality. The EIA report should be prepared by competent experts and provide all required information, including:

  • Project description;
  • Baseline scenario;
  • Environmental factors (including impacts on climate);
  • Assessment of effects on the environment (including cumulative effects);
  • Assessment of alternatives (e.g. its locations, technologies, different scales or designs of development, different methods of construction, configuration of hydropower plants at this location, or other ways of fulfilling the objectives of the project);
  • Mitigation and compensation measures;
  • Monitoring measures;
  • Non-technical summary.

The Report should match the scope and level of detail requested by the competent authority in the scoping decision, where one exists.

ARTICLE 5 (1)

Where an environmental impact assessment is required, the developer shall prepare and submit an environmental impact assessment report. The information to be provided by the developer shall include at least:

  • a description of the project comprising information on the site, design, size and other relevant features of the project;
  • a description of the likely significant effects of the project on the environment;
  • 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;
  • 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;
  • a non-technical summary of the information referred to in points (a) to (d); and
  • any additional information specified in Annex IV relevant to the specific characteristics of a particular project or type of project and to the environmental features likely to be affected.
    […] the environmental impact assessment report […] include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment. The developer shall, with a view to avoiding duplication of assessments, take into account the available results of other relevant assessments under Union or national legislation, in preparing the environmental impact assessment report.

ARTICLE 5 (3)

In order to ensure the completeness and quality of the environmental impact assessment report:

  • the developer shall ensure that the environmental impact assessment report is prepared by competent experts;
  • the competent authority shall ensure that it has, or has access as
    necessary to, sufficient expertise to examine the environmental
    impact assessment report; and
  • where necessary, the competent authority shall seek supplementary information from the developer, in accordance with Annex IV, which is directly relevant to reaching the reasoned conclusion on the project’s significant effects on the environment.

Consultations and decision-making

Once the developer has prepared the EIA report, it has to be scrutinised by the public and various concerned authorities. Consultations on different information should take place with:

  • public authorities likely to be concerned;
  • the public concerned;
  • relevant parties in other affected Member States (i.e. if a project is likely to cause significant environmental effects in another Member State, or if another Member State so requests, then transboundary consultations must be carried out).

In order to ensure the effective participation of the public concerned in the decision-making procedures, the public shall be informed electronically and by public notices or by other appropriate means. The public concerned shall be informed early in the environmental decision-making procedures and, at the latest, as soon as information can reasonably be provided of the following matters:

  • the request for development consent;
  • the fact that the project is subject to an environmental impact assessment procedure;
  • details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;
  • the nature of possible decisions or, where there is one, the draft decision;
  • an indication of the availability of the information gathered during the preparation of the EIA report;
  • an indication of the times and places at which, and the means by which, the relevant information will be made available;
  • details of the arrangements for public participation.

The public and the public concerned must have access to any information gathered during the preparation of the EIA report, the reactions of the competent authority at the time the information is made available, and any other relevant information, which may arise later. The public concerned must be given early and effective opportunities to participate, and be able to provide their comments and opinions. An explicit timeframe is provided by the Directive whereby a minimum of thirty days is required for public consultation.

In order to decide on issuing the permit , the competent authority must take the results of consultations duly into account, i.e. the competent authority must examine the information provided in the EIA report, as well as the results of the consultations and, where appropriate, must request any supplementary information.

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 out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:

  • a description of the project, together with any available information on its
    possible transboundary impact;
  • information on the nature of the decision which may be taken.

In other words: a Member State should start the transboundary procedure in two cases: 1) when it is aware of a transboundary impact or 2) when it is not aware but another country, likely to be significantly affected, requests such a procedure.

The Member States shall also make the relevant information available within a reasonable time, to the authorities and the public concerned in the territory of the Member State likely to be significantly affected.

The Member State shall ensure that the authorities and the public concerned in the affected country are given an opportunity, before development consent for the project is granted, to forward within a reasonable time their opinion on the information supplied to the competent authority in the Member State in whose territory the project is intended to be carried out.

FLOW CHART of the different stages of the EIA 13

Rights of the public concerned

Organisations or individuals affected or likely to be affected or having an interest in the EIA procedure should be given the right to express their comments and opinions on the EIA before a decision on the project is made.

A summary of the results of the consultations and the information gathered, and how those results have been incorporated or otherwise addressed, shall be made available as well. Organisations and individuals with a direct interest in the case have the right to challenge the procedure or the content of the EIA before a court of law or another independent body indicated by national law. Member States shall ensure that practical information is made available to the public regarding access to administrative and judicial review procedures.

Step-by-step examination and actions

Individuals and organisations who wish to assess whether an EIA has been conducted in accordance with applicable legislation are advised to follow the steps described below:

  1. Check and if necessary request the screening decision about whether an EIA is required for the HPP in question. The screening decision must be issued and made public.
  2. Check if the screening decision was made based on all relevant criteria listed in Annex III of the EIA Directive. If not challenge the decision.
  3. If the screening decision requires an EIA to be carried out, check and if necessary request the EIA report.
  4. Check if the EIA report is prepared by competent experts and if it contains all required information, including: information on the project, the baseline scenario, a description of reasonable alternative options, a description of any likely significant effects of the project on the environment resulting from the cumulation of effects with other existing and/or approved projects, the features and measures to mitigate negative impacts, a non-technical summary.
  5. Check, preferably with a relevant expert, whether the HPP would have a significant effect on the environment.
  6. Take part in public consultations.
  7. Check whether a) the public was electronically and by public notices informed about the EIA procedure; b) relevant information was accessible electronically; c) the timeframe for pubic consultations on the EIA report was at least 30 days; d) the content and main reasons of the final EIA decision were made available to the public.
  8. Check and if necessary request the content and main reasons of the final EIA decision.
  9. Appeal against any illegal decisions (for failure to follow the legal procedures or not using the right information), acts or failure to act of the competent authority before a court or another independent and impartial public body in your Member State.
  10. File an infringement complaint to the European Commission.

CASE LAW EXAMPLE

Case C-244/12, Salzburger Flughafen GmbH vs. Umweltsenat 14 15

Judgement of the Court of Justice about setting a threshold. In this specific case, the Court of Justice was asked to give its opinion about exempting in advance an entire class of projects from an environmental impact assessment. The Court ruled that this was exceeding the discretion of the Member States.

The case concerned the permit and environmental assessment for infrastructural extension works at Salzburg Airport. The procedure started in 2002, when Salzburg Airport had obtained a permit to construct an additional terminal. In 2004, Salzburg Airport made further applications for an expansion of the airport through the construction of buildings, in particular warehouses, parking areas and aircraft parking positions.

According to Article 2(3) and Annex II of the EIA Directive (85/337/EEC), Member States have a certain discretion in determining whether the construction of airfields and the extension of airports shall be subject to an environmental assessment. Member States shall determine whether an environmental assessment is required for projects listed in Annex II through a case-by-case examination, or by setting thresholds or criteria.

The national legislation had (a) set a threshold – an increase of flight movements of at least 20.000 – which excluded small and medium-sized airport projects from the scope of mandatory environmental assessment; and (b) it did not provide a list of sites requiring special protection. The Court of Justice ruled that the EIA Directive (85/337/EEC) precludes such a threshold. However, the Court recalled that Member States have discretion in determining through a case-by-case examination whether a project listed in Annex II, which has already been authorised or executed, should be made subject to an environmental impact assessment. Nevertheless, this discretion can only deliberate that projects, which are likely to have a significant effect on the environment by virtue of their nature, size or location should be made subject to an environmental impact assessment. Setting a threshold, which in advance exempts an entire class of projects from an environmental impact assessment, exceeds this discretion.

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2.2 The Strategic Environmental Assessment Directive

In addition to the Environmental Impact Assessment through which the impacts of projects on the environment are assessed, the Strategic Environmental Assessment (SEA) assesses the environmental impacts of plans and programmes to be adopted by an authority at local, regional or national level, and which are required by legislative, regulatory or administrative provisions. To simplify the difference between an EIA and an SEA: when draglines and bulldozers are to be released, an EIA is needed. When a plan or program is required by law and is prepared or adopted by an authority at local, regional or national level, an SEA is required.

Specifically, an SEA shall be carried out for plans and programmes pertaining to:

  • agriculture;
  • forestry;
  • fisheries;
  • energy;
  • industry;
  • transport;
  • waste management;
  • water management;
  • telecommunications;
  • tourism;
  • town and country planning or land use;
  • which set the framework for future development consent of projects listed in Annexes I and II of the EIA Directive;
  • which, because of their likely significant effect on Natura 2000 sites, require an assessment pursuant to the Habitats Directive.

For plans and programmes, which determine the use of small areas at local level, and for minor modifications to plans and programmes Member States are required to make determination whether they are likely to have significant environmental effects and thus require a strategic environmental assessment.

Member States are also required to determine whether other plans and programmes, which set the framework for future development consent of projects other than those listed in Annexes I and II of the EIA Directive, are likely to have significant environmental effects. This includes all those plans and programmes that set the framework for future development consent of projects in sectors not listed above, as well as projects in those sectors, but which are not listed in the Annexes of the EIA Directive.

To conclude; for plans and programmes not listed above but which:

  1. determine the use of small areas at local level, and for minor modifications to plans and programmes; or
  2. set the framework for future development consent of projects other than those listed in Annexes I and II of the EIA Directive

Member States need to determine whether an SEA is required.

It is important to underline that the projects based on the plans or programmes, for which an SEA was conducted, still need to be assessed through an EIA if they meet the criteria of the EIA Directive.

The screening procedure

Annex II of the SEA Directive sets out criteria, which Member States shall take into account when determining whether plans or programmes are likely to have significant effects on the environment. The conclusions, including any reasons for not requiring an environmental assessment must be made available to the public.

All plans and programmes likely to have a significant effect on the environment are required to be the subject of an SEA. The competent authorities do not have the discretion to exempt an entire class of plans or programmes purely on quantitative criteria. 16 The only valid reason for exempting plans or programmes is when, based upon screening, no significant impact on the environment is foreseen.

Annex II

1. Characteristics of projects

The characteristics of plans and programmes, having regard, in particular, to:

  • 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;
  • the degree to which the plan or programme influences other plans and programmes including those in a hierarchy;
  • the relevance of the plan or programme for the integration of
    environmental considerations in particular with a view to promoting sustainable development;
  • 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).

2. Location of projects

  • Characteristics of the effects and of the area likely to be affected, having regard, in particular, to:
  • 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.

The strategic environmental assessment report

The strategic environmental assessment shall be carried out during the preparation of a plan or programme and before the plan is submitted for adoption to the legislative procedure. Under the strategic environmental assessment process, Member States are required to prepare an environmental report, which assesses the likely significant environmental effects of plans and programmes, as well as the effects of any reasonable alternatives. The SEA should contain the following information:

  • an outline of the contents and main objectives of the plan or programme and its relationship with other relevant plans and programmes;
  • the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme;
  • the environmental characteristics of areas likely to be significantly affected;
  • any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of particular environmental importance, such as areas designated pursuant to the Birds and Habitats Directives;
  • the environmental protection objectives, established at international, EU or Member State level, which are relevant to the plan or programme, and the way those objectives and any other environmental considerations have been taken into account during its preparation;
  • the likely significant effects on the environment, including on issues such as 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 the above factors (these effects should include secondary, cumulative, synergistic, short, medium and long-term permanent and temporary, positive and negative effects);
  • the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment, which implementation of the plan or programme may have;
  • an outline of the reasons for selecting the alternatives dealt with and a description of how the assessment was undertaken, including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;
  • a description of the measures envisaged concerning monitoring;
  • a non-technical summary of the information provided.

Consultations, decision-making and rights of the public

Before the adoption of the plan or programme or its submission to the legislative procedure, the draft plan or programme and the environmental report shall be evaluated by environmental authorities.

Likewise, the public, including the public affected or likely to be affected by, or having an interest in the decision-making subject to the SEA Directive (including relevant non-governmental organisations) shall be given early and effective opportunities to express their opinion on the draft plan or programme and the accompanying environmental report.

The SEA Directive does not provide a set time frame for the consultation on a given draft plan or programme. However, the period laid down for consultation must be sufficient to allow the public and the authorities the opportunity to express their opinions effectively. 17 The process of developing the SEA is intended to be coordinated with the plan’s development, so that environmental considerations can be included into the final version of this plan.

Moreover, Member States shall ensure that when a plan or programme is adopted, the public is informed and the following items are made available:

  • the plan or programme as adopted;
  • a statement summarising how environmental considerations have been integrated into the plan or programme and how the environmental report, the opinions expressed and the results of consultations have been taken into account, as well as the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with;
  • the measures decided concerning monitoring.

Unlike the EIA Directive, the text of the SEA Directive does not explicitly provide for a review procedure before a court or other independent impartial body to challenge the substantive or procedural legality of decisions, acts or omissions, which are subject to its public participation provisions. However, a Commission Notice suggests that Member States must ensure that individuals can rely on procedural provisions before national courts. 18

Step-by-step examination and actions

  1. Check whether for plans and programmes, for which an SEA is required, the SEA procedure is conducted. If necessary, request for the SEA to be conducted (see above criteria for conducting an SEA).
  2. Take part in the consultations on the draft plan or programme and the environmental report.
  3. Check and request if needed: the plan or programme as adopted;
    a statement summarising how environmental considerations have been integrated into the plan or programme and the reasons for deciding for it to be adopted in the light of the other reasonable alternatives dealt with decisions on monitoring measures.
  4. Appeal to a court any illegal procedural decisions, acts or failure to act of the competent authority. You cannot appeal decisions about the content.
  5. File an infringement complaint to the European Commission.

CASE LAW EXAMPLE

Case C-463/11, L v M 19

Decision of the European Court of Justice about a plan adopted without having been subject to a mandatory strategic environmental impact assessment. The Court of Justice ruled that the EU Directive was not correctly transposed in German law and ruled that the German law was not legally valid and had to be amended.

A German municipality adopted a building plan (11.800 m²) without an environmental assessment as required under the SEA Directive. The Court of Justice was asked whether one of the derogations of the Directive applied to the plan. The Court found that the answer to that question depended on the application of a provision in German law, according to which a derogation could apply to plans “within an urban area”; it was up to the national court to decide whether the plan in question was indeed within an urban area.

However, German law contained another provision, which makes this judgment relevant. German law provided that even when a strategic environmental impact assessment should have been made, but was not made, the building plan remained valid. The Court found that such a provision “effectively deprives of its effectiveness Article 3(1) of the directive”. Consequently, the national judge had to give “full effect” to the provisions of European Union law, refusing to apply the German legislative provision, which provided for the validity of the building plan and which would lead, if applied, the national court “to deliver a decision contrary to the directive”.

The judgment thus confirms the supremacy of EU law over national law and practically requires Germany to amend its building legislation and to align it to EU law.

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2.3 The Birds and Habitats Directives (Nature Directives)

Whereas the EIA deals with the environmental impacts on water, air, soil and biodiversity (environment in a in a broad sense), the Birds and Habitats Directives are specifically designed at protecting biodiversity. In the case of the EIA and SEA assessments, the authorities have to take the impacts on the environment into account, but can still issue a permit, even if the plan or project has significant adverse impacts on the environment (see relevant text under EIA).

When a project is likely to have a negative impact on a Natura 2000 site or on a species protected by the Birds and/or Habitats Directive, a so-called Appropriate Assessment (AA) has to be carried out. An Appropriate Assessment is an impact assessment specially designed to assess the impact of a plan or project on Natura 2000 sites or on the species to be protected by the Birds and Habitats Directives.

In case the outcome of the AA reveals that the adverse effects on the integrity of the site concerned cannot be excluded, a permit cannot be issued – except if it can be demonstrated that there is an absence of less damaging alternatives, and because of imperative reasons of overriding public interest, including those of a social or economic nature. In such case, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. Moreover, where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised when issuing a permit are those relating to human health or public safety.

Although the EIA and the AA serve different purposes, the procedures are often combined. However, the AA under EU nature legislation should nevertheless remain a clearly distinguishable and identifiable part of the overall environmental report.

The Birds and Habitats Directives (Nature Directives), aim to ensure that the species and habitat types occurring in a particular area are protected or, in case their situation is in danger of extinction, restored to a level that secures their survival (“favourable conservation status”). The Birds and Habitats Directives do not require that each and every species or habitat is protected everywhere; rather, certain habitats and species are protected by the designation of Natura 2000 sites. In addition certain species are protected wherever they occur within their natural distribution area (natural range).

It is important to know that the legal implications laid down in the Habitats Directive, and especially in article 6 of the Habitats Directive, are similar for areas designated under the Birds Directive and for species listed in the Birds Directive.

To achieve the objectives, the EU Nature Directives require Member States to implement two main types of measures in particular:

  • The designation and conservation of core sites for the protection of species and habitat types – the Natura 2000 sites (formally Special Areas of Conservation and Special Protection Areas), which together form the Natura 2000 network. These areas can be designated because of the occurrence of specific habitat types and/or because specific species are occurring in an area.
  • The establishment of a species protection regime for all wild European bird species and other species listed in the Habitats Directive. These measures apply across the entire natural range of those species within the EU, i.e. both within and outside the Natura 2000 sites.

For areas designated as Natura 2000 sites, Member States shall do their utmost to protect the species and habitats in these areas and make plans to improve the situation of the habitats and species in case the situation is “not favourable”. This can be done through the elaboration of management plans for the Natura 2000 sites, although Member States can also decide to use other legal measures (i.e. measures integrated into other development plans, and appropriate statutory, administrative or contractual measures).

Not only are Member States required to protect and if needed restore the habitats and species but they are also obliged to avoid that the situation of the habitats and species in a designated Natura 2000 deteriorates. This counts for the habitat types for which the site has been designated, as well as for the habitat in which species occur and for which the site has been designated.

Each country maintains a data base indicating which habitat types and species occur in a certain Natura 2000 site, and for which the area was designated as a Natura 2000 site.

There are also some gaps in the Natura 2000 network (i.e. habitats or species for which not enough sites have been designated, but which still require protection). In cases where there is clear evidence that a site should have been designated as a Natura 2000 site, the same protections may apply. In the case of species covered by Annex IV of the Habitats Directive, and of all naturally occurring wild birds, these species require full protection and disturbance
of their habitat (e.g. nest, den. etc) is usually a violation of the Habitats Directive and the Birds Directive.

The question of “significance” comes into play at a separate stage of the article 6(3) process and goes in 2 stages:

  1. Examining if there is a likely significant effect. The bar for “significance” is quite low. The Waddenzee case (C-127/02) basically says that in case of doubt as to the absence of significant effects such an assessment must be carried out and that such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will
    have significant effects on the site concerned.
  2. If there is a likely significant effect, carrying out an Appropriate Assessment of the impact of the plan or project on the site in the light of its conservation objectives and assessing whether there will be an adverse effect on integrity of the site concerned.

Natura 2000 sites: Appropriate Assessment (AA) of plans and projects

Article 6(3) and 6(4) of the Habitats Directive require that any plan or project not
directly connected with, or necessary to the management of a Natura 2000 site, but which is likely to have a significant effect on the site (either individually or in combination with other plans or projects) shall be subject to an Appropriate Assessment of its implications. The obligation of such an assessment is not restricted to plans and projects inside a Natura 2000 site – it also covers developments anywhere outside a Natura 2000 site as long as they are likely to have a significant effect on the site.

The competent authority can only agree to the plan or project if, based on the findings of the AA, it has ascertained that it will not have an adverse effect on the integrity of the site concerned (i.e. it will demonstrate the absence, rather than the presence, of significant negative effects), and if appropriate, after having obtained the opinion of the general public.

Note: the Habitats Directive does not contain an explicit obligation to obtain the opinion of the general public when authorising plans or projects. However, consultation with the public is an essential feature of the EIA and SEA Directives and therefore, where the AA is coordinated with the assessment under these directives, public consultation is necessary in line with their requirements.

Moreover, the Court of Justice held that Article 6(3) of the Habitats Directive, read in conjunction with Article 6(1)(b) of the Aarhus Convention, provides the public with a right to participate in the procedure for authorisation of a project likely to have a significant effect on the environment. 20 This means that the right of participation exists even for proposed activities not listed in Annex I of the Aarhus Convention.

Also according to a Court of Justice of the European Union (CJEU) ruling, individuals must be able to challenge before national courts decisions to permit plans or programmes likely to have a significant effect on Natura 2000 sites. 21

To authorise a plan or project, which may adversely affect a Natura 2000 site, the competent authorities shall ensure that the following conditions are met:

  • The alternative put forward for approval is the least damaging for habitats, for species and for the integrity of a Natura 2000 site, and no feasible other alternative exists, which would not affect the integrity of the site.
  • There are imperative reasons of overriding public interest, including those of a social or economic nature, to authorise the plan or project.
  • All compensatory measures required to ensure protection of the overall coherence of the Natura 2000 network have been taken.

When based on the AA, it turns out that the plan or project will have an adverse effect on the integrity of the site, but the three conditions listed above are met, the competent authority may authorise the development. However, when the site holds priority habitat types and species, which require a higher degree of protection, authorisation of the plans can only be given when the imperative reasons of overriding public interest are related to human health, public safety, to consequences of primary importance for the environment, or other imperative reasons as accepted by the Commission.

Full text of Article 6 of the Habitats Directive

Art 6(1)
For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

Art 6(2)
Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

Art 6(3)
Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

Art 6(4)
If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.

FLOW CHART of Article 6(3) and 6(4) procedure (based on European Commission methodological guidelines) 22

The flowchart above describes the procedural steps required to assess whether an AA is needed in accordance with Articles 6(3) and 6(4) of the Habitats Directive. 23 The AA is needed where a plan or project not directly connected with, or necessary to the management of the site, is likely to have a significant effect, either individually or in combination with other plans or projects. Such plans or projects shall be subject to an appropriate assessment of their implications for the site, in view of the site’s conservation objectives.

The assessment report should in particular:

  • describe the project or plan in detail to understand its size, scale and objectives;
  • describe the baseline conditions and conservation objectives of the Natura 2000 site;
  • describe all possible effects that might occur;
  • analyse the interaction between those characteristics of the project and the ecological requirements of the species and habitat types for which the site has been designated, in order to identify the potential effects of the project or plan on the Natura 2000 site, and their level of significance;
  • explain how such effects will be avoided or mitigated to the extent possible;
  • set out a timescale and the mechanisms through which any mitigation measures will be secured, implemented and monitored;
  • contain a reference list of all sources of information. 24

Natura 2000 species protection

The species protection measures apply to species listed in Annex IV of the Habitats Directive and all wild bird species in the EU regardless of whether they are inside or outside Natura 2000 sites. Member States shall take the requisite measures to establish a system of strict protection prohibiting for instance:

  • deliberate disturbance during the period of breeding, rearing, hibernation and migration;
  • deliberate destruction of nests or eggs, or the uprooting or destruction of protected plants;
  • deterioration or destruction of breeding sites or resting places.

The species protection provisions are relevant to hydropower facilities also operating outside Natura 2000 sites, especially in cases where the HPP is situated on a river harbouring migratory species, such as migratory birds or fish. The aim is to ensure that any new developments do not destroy the breeding and resting sites of any wild bird or any species listed under Annex IV of the Habitats Directive, unless they have sought from the competent authorities a derogation in accordance with the terms of the Directives.

In case of the protection of species listed in Annex IV of the Habitats Directive and of all wild bird species, for which site designation is not required and which live outside Natura 2000 sites, there is no obligation for an AA. The only requirement is that these species and their habitat may not be disturbed or destroyed, and nesting sites, hiber-nation hides, spawning areas, etc. are protected.

Step-by-step examination and actions

Individuals and organisations who wish to assess whether an AA has been conducted in accordance with applicable legislation are advised to follow the steps described below:

  1. Check if the HPP (individually or in combination with other plans or projects) may have a significant effect on a Natura 2000 site or protected species, regardless of whether the project is situated in or outside a Natura 2000 site.
  2. Check whether an appropriate assessment of the implications of the HPP for the Natura 2000 site has been conducted.
  3. If the HPP has been authorised despite adversely affecting a Natura 2000 site, check if the competent authorities have ensured: there are no alternative solutions, there are imperative reasons of overriding public interest, all compensatory measures required to ensure protection of the overall coherence of the Natura 2000 network have been taken.
  4. Appeal any procedural and substantive illegal decisions, acts or failure to act of the competent authority to a court in your Member State (According to a Court of Justice of the European Union (CJEU) ruling, individuals must be able to challenge before national courts decisions to permit plans or programmes likely to have a significant effect on Natura 2000 sites. 24 )
  5. File an infringement complaint to the European Commission against the procedural or substantive illegal decisions, acts or failure to act of the competent authority.

CASE LAW EXAMPLE

Case C-258/11, Peter Sweetman and Others v An Bord Pleanála 25 26

Below the ruling of the European Court of Justice with respect to building a road through a Natura 2000 site in Ireland is presented. The ruling shows that even the destruction of a small part of a habitat (less than 1%) may adversely affect the integrity of the habitat and should therefore be forbidden.

Irish authorities planned the construction of a new road, part of which would cross a Natura 2000 area, which included 14 habitats listed in Annex I to the Directive, six of these being priority habitats. The planned road would have led to the permanent loss of about 1.47 hectares of limestone pavement, a protected priority habitat type. The whole Natura 2000 site covered some 20.000 hectares, 270 hectares of which consisted of limestone pavement.

The Irish authorities considered that the construction of the road would not have an adverse effect on the integrity of the site, given the small size of the section of the site to be affected. The Court of Justice, however, held that authorisation for the road project could only be given, when the authorities were “certain” (meaning no reasonable doubts remained) that the project would not have had lasting adverse effects on the integrity of the site. Moreover, the conservation status of a habitat, which Member States must ensure under the Habitats Directive, is favourable when its natural range and areas “are stable or increasing”. In this case, part of the limestone pavement would be destroyed, could not be replaced and would lead to the “lasting and irreparable loss” of part of a priority habitat type. Therefore, the road construction would adversely affect the integrity of the site. For these reasons, an authorisation under Article 6(3) of the Habitats Directive could not be granted.

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2.4 The Water Framework Directive

The purpose of the Water Framework Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:

  • prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems;
  • promotes sustainable water use based on a long-term protection of available water resources;
  • aims at enhanced protection and improvement of the aquatic environment, inter alia, through specific measures for the progressive reduction of discharges, emissions and losses of priority hazardous substances and the cessation or phasing-out of discharges, emissions and losses of priority substances;
  • ensures the progressive reduction of groundwater pollution and prevents its further pollution; and
  • contributes to mitigating the effects of floods and droughts.

The main objectives of the WFD for surface waters are:

  • to prevent the deterioration of any status;
  • to reach good ecological status and good chemical status (good ecological potential and good chemical status in artificial and heavily modified water bodies) as a rule by 2015 and 2027 by the latest, provided that no further deterioration occurs in the status of the affected body of water;
  • to implement all necessary measures to progressively reduce pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances.

Additional objectives may complement the WFD objective of good status in order to ensure that conservation objectives for protected areas are achieved. In such cases, where more than one of the objectives relates to a given body of water, the most stringent shall apply.

River Basin Management Plans

The Water Framework Directive obliges Member States to draw up river basin management plans (RBMPs) to safeguard each river basin district. RBMPs shall be reviewed and updated every six years.

Member States shall ensure that the public has the opportunity to be involved in the production, review and updating of the RBMPs. Member States will also make the following available to the public:

  • a timetable and work programme for the production of the plan, including a statement of the consultation measures to be taken, at least three years before the beginning of the period to which the plan refers;
  • an interim overview of the significant water management issues identified in the river basin, at least two years before the beginning of the period to which the plan refers;
  • draft copies of the RBMP, at least one year before the beginning of the period to which the plan refers.

On request, access shall be given to background documents and information used for the development of the draft RBMP. Member States shall allow at least six months for the public to comment in writing on those documents.

Authorisation of projects (exemptions under Article 4(7))

Any new developments 27 in a river or river basin have to be assessed, to conclude whether they:

  • cause deterioration of the status (or potential) of a surface or groundwater body; or
  • prevent the achievement of good groundwater status or good ecological status/potential for water bodies currently failing to achieve this status/potential.

If one of the above is the case, Member States are required — unless an exemption under Article 4(7) is granted — to refuse authorisation for an individual project. 28

According to Article 4(7) of the WFD, exemptions can be approved by the authorities for new modifications and sustainable human development activities that result in the deterioration of the status of the water body or that prevent the achievement of good ecological status or potential, or good groundwater status if all the following conditions are met:

  • all practicable steps are taken to mitigate the adverse impact;
  • the reasons for those modifications or alterations are set out and explained in the RBMP;
  • the reasons for those modifications or alterations are of overriding public interest;
  • the beneficial objectives served by those modifications or alterations cannot for reasons of technical feasibility or disproportionate cost be achieved by other means.

An assessment to conclude whether all conditions described above are met needs to be carried out before any permit is issued. Only if the plan complies with the conditions laid down in article 4(7), a permit can be issued. If there is no RBMP, the conditions for applying article 4(7) are not met because the reasons for the modifications or alterations must be set out and explained in the RBMP.

Full text of Article 4(7)

Member States will not be in breach of this Directive when:

  • failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater; or
  • failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities and all the following conditions are met:
  • All practicable steps are taken to mitigate the adverse impact on the status of the body of water;
  • The reasons for those modifications or alterations are specifically set out and explained in the RBMP required under Article 13 and the objectives are reviewed every six years;
  • The reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development; and
  • The beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option.

The competent authority may authorise a project in absence of an article 4(7) test only if there is sufficient certainty that it will not cause deterioration or compromise the achievement of good status/potential. The evidence on which this decision is based should be documented.

The potential effect of the new modification/alteration or new sustainable development activity on the water body status should be examined, irrespective of whether it is:

  • an entirely new activity;
  • an amendment to already existing activities or infrastructure;
  • the renewal of an existing authorisation or licensed activity, if the conditions of the permit are changed and could cause deterioration.

The size of the project is not a relevant criteria to trigger Article 4(7). The permit for any project, small or big, which will have negatively affect achieving good ecological status or potential of a water body will have to be refused, unless the conditions of article 4(7) are met. Thus, projects of any size may fall under article 4(7). 29

FLOW CHART on the application of Article 4(7) 30

Rights of the public

Article 14 requires Member States to encourage the active involvement of all interested parties in the implementation of this Directive. The Court of Justice of the European Union ruled that “a duly constituted environmental organisation operating in accordance with the requirements of national law” 31 (in short any legally established environmental NGO) must be able to legally contest a decision granting a permit for a project, which does not comply with the obligation to prevent the deterioration of the status of bodies of water, as set out in Article 4 of the WFD.

Moreover, national procedural rules cannot deprive environmental organisations of the right to participate, as a party to the procedure, in a permit procedure intended to implement the WFD, nor can they limit the right to bring proceedings contesting decisions resulting from such procedure solely to persons who do have the status of a party. 32 In other words, environmental organisations have the right to participate in both administrative and judicial procedures related to the implementation
of the WFD.

Step-by-step examination and actions

  1. Check whether public consultations for RBMPs are properly conducted, as described above.
  2. Take part in public consultations for RBMPs.
  3. Check if for HPP project the Article 4(7) test was conducted. If not, whether the reasoning for this was documented.
  4. If the HPP project was authorised under the Article 4(7) check if all following conditions were met:
    • all practicable steps are taken to mitigate the adverse impact;
    • the reasons for those modifications or alterations are set out and explained in the RBMP;
    • the reasons for those modifications or alterations are of overriding public interest;
    • the beneficial objectives served by those modifications or alterations cannot for reasons of technical feasibility or disproportionate cost be achieved by other means.
  5. Note: If there is no RBMP, the conditions are not met, i.e. Members States cannot use article 4(7) derogations, as the reasons for the modifications or alterations must be set out and explained in the RBMP.
  6. Appeal against the procedural and substantive illegal decisions, acts or failure to act of the competent authority before a court in your Member State.
  7. File an infringement complaint to the European Commission against the procedural or substantive illegal decisions, acts or failure to act of the competent authority.

CASE LAW EXAMPLE

Case C-461/13, BUND v. Germany 33 34

The following presents the ruling of the Court of Law with respect to issuing a permit that would cause deterioration of the status of a water body. It says that Member States are obliged to refuse authorization of a project that may cause a deterioration of the status of a body of surface water.

The German authorities granted consent for three independent projects concerning the deepening of the river Weser (North Germany), a navigable waterway classified as a heavily modified water body within the meaning of the WFD. All three projects would cause direct effects through initial and regular dredging of the riverbed and in addition, hydrological and morphological consequences for the sections of river concerned.

The Court found that Article 4 of the WFD requires Member States to prevent the deterioration of waters and to enhance water quality. The Court then considered what constituted a “deterioration” of waters. It rejected the argument of the German government that only a “serious impairment” of the water quality constituted a deterioration. The Annex V to the WFD fixed, for “high”, “good” and “moderate” water quality a number of biological, hydro-morphological and physico-chemical elements, which determined each of these classes of quality. The Court found that the Directive contained two other classes, namely “poor” and “bad”. It determined that there existed “deterioration” in the sense of the Directive, “as soon as the status of at least one of the quality elements falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole”. If the water was already in the lowest class, any deterioration was not allowed. However, Article 4(7) of the Directive allows derogations to be granted under certain conditions (see above under “exemptions under Article 4(7)).

CASE LAW EXAMPLE

Case C-346/14, Commission v. Austria 35 36 37

Judgement of the Court of Justice about the scope of overriding public interest. In this case, the Court of Justice ruled that as part of that margin of discretion, the Republic of Austria was entitled to consider that the HPP, the aim of which is to promote the production of renewable energy through hydroelectricity, is an overriding public interest.

The Commission acted against Austria regarding its authorisation of a hydropower plant in the Schwarze Sulm River in the Steiermark Region. The Commission considered that this construction led to a deterioration of the water quality of the river and could not be justified by the derogation, which Article 4(7) of the Water Framework Directive permitted under certain circumstances. The Court found that indeed the construction of the plant would lead to a deterioration of the water quality of the Schwarze Sulm over a stretch of eight kilometres, and that the construction of a hydropower plant may be of such an overriding public interest referred to in Article 4(7). Nevertheless, it concluded that Member States had a margin of discretion as to the question of whether a specific project was of overriding public interest, and that Austria could not be blamed for declaring the construction of being in the public interest.

One of the core conclusions of the judgement was that a small-scale renewable energy project with mainly regional effects can fulfil the requirement of ‘overriding public interest. The Court of Justice referred to the Union’s energy policy objectives in accordance with Treaty on the Functioning of the EU, concluding that renewable energy is one of the top priorities in the Union’s actions, and that the Member State fulfil their obligation under the Kyoto Protocol by initiating new renewable energy projects.

The Commission argued in particular that hydroelectricity was only one source of renewable energy, among others, and that the energy produced by the envisaged hydropower plant would have only a minor impact on the regional and national energy supply.
The Court reproached the Commission for not putting forward any specific complaints showing, for example, how the study whose conclusions were incorporated into the decision was incomplete or incorrect – either due to inadequate analysis of the ecological impact of the project on the status of the body of surface water of the Schwarze Sulm, or due to a reliability issue impairing the hydroelectricity production forecasts. Or comparative factors permitting a classification of the forecasted electricity production as low in comparison to the scale of the project.

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2.5 The Environmental Liability Directive

The purpose of the Environmental Liability Directive (ELD) is to establish a framework of environmental liability based on the ‘polluter-pays’ principle, to prevent and remedy environmental damage. The ELD imposes liability on an economic operator (for instance an industry or public body) for preventing and remediating an imminent threat of, or actual environmental damage. The ELD is based on the powers and duties of public authorities and is limited to pure ecological damage (it does not cover damage to property, economic loss or personal injury, for example).

There are three categories of environmental damage under the ELD:

  • Damage to protected species and natural habitats, which basically is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species. The habitats and species concerned are defined in the relevant parts of the Birds Directive and the Habitats Directive. Damage to protected species and natural habitats does not include previously identified adverse effects authorised under the nature protection legislation, as described in the previous chapter.
  • Water damage, which is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in the Water Framework Directive (WFD), of the waters concerned, with the exception of adverse effects where article 4(7) of that Directive applies.
  • Land damage, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms.

The ELD provides for two liability regimes:

  • A strict liability regime applies to operators of certain activities listed in Annex III to the ELD – among others water abstraction and impoundment of water subject to prior authorisation in pursuance of the WFD – who can be held liable in the event of damage to protected species and natural habitats, water damage and land damage.
  • A fault-based liability regime applies only to damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III of the ELD whenever the operator has been at fault or negligent.

The ELD does not apply in the following cases:

  • If the damage was caused by an emission, event or incident that took place before 30 April 2007, or when the activity causing the damage was finished before that date.
  • If more than 30 years have passed since the emission, event or incident causing the damage occurred.
  • Where environmental damage or an imminent threat of such damage is caused, among others by an act of armed conflict, hostilities, civil war or insurrection, a natural phenomenon of exceptional, inevitable and irresistible character, pollution of a diffuse character, where it is not possible to establish a causal link between the damage and the activities of individual operators.

Moreover, an operator is not required to bear the cost of preventive or remedial actions when he can prove that the environmental damage or imminent threat of such damage:

  • was caused by a third party and occurred despite the fact that appropriate safety measures were in place; or
  • resulted from compliance with a compulsory order.

In addition, Member States may allow the operator not to bear the cost of remedial actions where he demonstrates that he was not at fault or negligent and that the environmental damage was caused by:

  • an emission or event expressly authorised by, and fully in accordance with the conditions of an authorisation; or
  • an emission or activity or any manner of using a product in the course of an activity, which the operator demonstrates was not considered likely to cause environmental damage, according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place.

Where environmental damage has not yet occurred but there is an imminent threat of such damage occurring, the operator shall, without delay, take the necessary preventive measures. Where environmental damage has occurred, the operator shall, without delay, inform the competent authority of all relevant aspects of the situation and take:

  • all practicable steps to immediately limit or prevent further environmental damage and adverse effects on human health or further impairment of services; and
  • the necessary remedial measures, in accordance with the relevant provisions of the ELD.

The obligations of the competent authorities are to identify liable polluters and determine which remedial measures they have to take. Operators can be required to disclose to the competent authority the relevant data and information to help establish the facts of a case. At the end of this process, the competent authority should be in a position to reasonably assess whether an operator is liable.

Remedying of environmental damage in relation to water or protected species or natural habitats is achieved through the restoration of the environment to its baseline condition.

Rights of the public

The following persons and entities are entitled to request the competent authority to take action under the ELD:

  • natural or legal persons affected or likely to be affected by environmental damage;
  • non-governmental organisation promoting environmental protection;
  • other natural or legal persons having a sufficient interest or whose rights have been impaired.

Together with the request for action, they have to submit the relevant information and their observations with supporting evidence.

The authorities are obliged to respond to the request for action. If the alleged environmental damage has occurred and if the polluter is liable under the Directive, the authorities must require the polluter to take action to remedy or prevent it.

The persons or NGOs concerned shall have access to a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts or failure to act of the competent authority.

Member States are allowed not to apply the above procedures for requesting the competent authority to take action in cases where there is only an imminent threat of damage, but no damage has actually occurred.

Step-by-step examination and actions

  1. Check if environmental damage occurred after 30 April 2007 38 , otherwise, the ELD does not apply.
  2. Check if HPP related to water abstraction or impoundment of water causes imminent threat; or
    a. damage to protected species and natural habitats (threshold: damage that has significant adverse effects 39 on reaching or maintaining the favourable conservation status of natural habitats or protected species 40 ) and the damage does not result from an act by an operator which was expressly authorised by the relevant authorities in accordance with provisions implementing Article 6(3) and (4) or Article 16 of Habitats Directive or Article 9 of Birds Directive. Or, in the case of habitats and species not covered by Community law, in accordance with equivalent provisions of national law on nature conservation (check the permits and whether the adverse impacts are mentioned in the permits); or
    b. water damage (threshold: any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in the WFD) and Article 4(7) of WFD does not apply for the adverse effects (check the permits and whether the adverse impacts are mentioned); or
    c. land damage (threshold: any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms).
  3. In case the HPP does not abstract or impound water, check if it causes imminent threat or actual damage to protected species and natural habitats and the operator has been at fault or negligent, otherwise, the ELD does not apply.
  4. Check if environmental damage or imminent threat of damage does not result from:
    a. an act of armed conflict, hostilities, civil war or insurrection (includes terrorism);
    b. a natural phenomenon of exceptional, irresistible and inevitable character;
    c. activities, the main purpose of which is to serve national defence or international security, or to protect against natural disasters;
    d. activities, the sole purpose of which is to protect from natural disaster;
    e. activities covered by some international conventions relating to oil pollution damage at sea, carriage of hazardous substances or dangerous goods by sea, rail or road, and nuclear damage;
    f. an activity in the case of diffuse pollution, if causality cannot be established between the activity and the damage.

    If any of the above situations occur the ELD does not apply.

  5. Check if environmental damage or imminent threat of damage:
    a. was not caused by a third party and occurred despite the fact that appropriate safety measures were in place;
    b. did not result from compliance with a compulsory order or instruction
    emanating from a public authority, other than an order or instruction in response to an emission or incident caused by the operator’s own activities;
    c. did not result from an emission or event expressly authorised by the regulatory authority (so called “permit defence”), when the operator acted fully in accordance with the conditions of the authorisation and the operator is not at fault or negligent (this defence is possible in some Member States only);
    d. did not result from an emission or event considered unlikely to cause environmental damage, according to the state of scientific and technical knowledge at the time the emission was released or the activity took place, and the operator is not at fault or negligent (this defence is possible in some Member States only).

    If any of the above situations occur, the ELD applies, but an operator shall not be required to bear the cost of preventive or remedial actions taken.

  6. Collect and submit to the competent authority any observations supporting evidences of environmental damage or an imminent threat of such damage and request the competent authority to take action.
  7. Request the decision of the competent authority containing information about the legal remedies and the action taken.
  8. Review the procedural and substantive legality of the decisions, acts or failure to act of the competent authority (e.g. the duty of the competent authority to establish which operator has caused the damage or the imminent threat of damage, to assess the significance of the damage and to determine which remedial measures should be taken).
  9. Appeal against the procedural and substantive illegal decisions, acts or failure to act of the competent authority before a court or another independent and impartial public body in your Member State.
  10. File an infringement complaint to the European Commission.

CASE LAW EXAMPLE

Case C-529/15, Gert Folk 41

The following Case law example presents a ruling of the Court of Justice indicating that national law cannot exclude the rights of persons affected by environmental damage to go to the national court and ask for a review procedure of the issuing of a permit. The Court ruled that this is incompatible with the ELD.

The case concerned an application by an individual holding fishing rights downstream from a hydroelectric power station, which allegedly caused fish to die along extended stretches of the river. National provision did not entitle persons holding fishing rights to initiate a review procedure in relation to environmental damage.

The Court of Justice addressed a situation where national authorities had granted an authorisation for the construction of a hydropower station under the WFD that was alleged to have caused damage to the environment. The Court held that in such a case, the national courts must assess if the national authorities had examined whether the conditions laid down in Article 4(7) of the Directive had been complied with.

The absence of such an assessment should lead to the conclusions that the measure was unlawful. Moreover, even if the national authorities did examine the conditions laid down in this provision, the national courts may review whether the authority which issued the authorisation complied with the conditions laid down in Article 4(7) of the WFD.

The Court of Justice held that it was not permissible under the ELD to generally exclude environmental damage because it resulted from the operation of a permitted facility. The national court was accordingly required to assess substantively whether environmental damage had arisen.

The case demonstrates that, in the context of the ELD, national judges are required to assess substantively compliance with applicable legislation, to determine whether decisions under the WFD are lawful.

The Court ruled that although the Member States have discretion to determine what constitutes a sufficient interest in environmental decision-making relating to the damage or impairment of a right, the concept laid down in the ELD, they do not have such discretion as regards the right to ask for a review procedure for those persons affected or likely to be affected by environmental damage.

An interpretation of national law, which would deprive all persons holding fishing rights of the right to initiate a review procedure following environmental damage (in this case an increase in the mortality of fish), although those persons are directly affected by that damage, does not respect the scope of the ELD and is thus incompatible with that directive.

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environmental law to protect rivers from
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footnote 67

Convention on the Conservation of European Wildlife and Natural Habitats,
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104

footnote 66

https://www.unece.org/fileadmin/DAM/env/eia/documents/ImplementationCommittee/2014_Structure_and_functions/IC_form_for_information_2018.docx

footnote 65

https://www.unece.org/?id=2805

footnote 64

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 63

Guidance on Public Participation in Environmental Impact Assessment in a Transboundary Context: https://www.unece.org/fileadmin/DAM/env/documents/2006/eia/ece.mp.eia.7.pdf

footnote 62

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 61

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-4&chapter=27&lang=en

footnote 60

https://www.unece.org/environmental-policy/conventions/environmental-assessment/about-us/protocol-on-sea/enveiasea-protocol/about-the-sea-protocol.html

footnote 59

http://www.unece.org/fileadmin//DAM/env/eia/eia.htm

footnote 58

https://www.unece.org/env/pp/cc/com.html

footnote 57

https://unece.org/sites/default/files/2021-02/M3_EU_advice_12.02.2021.pdf

footnote 56

https://www.consilium.europa.eu/en/press/press-releases/2020/12/17/council-reaches-agreement-on-improving-access-to-justice-in-environmental-matters/

footnote 55

Guide to the Aarhus Convention Compliance Committee, https://www.unece.org/fileadmin/DAM/env/pp/compliance/CC_Guidance/Guide_to_the_Aarhus_Convention_Compliance_Committee__2019.pdf#page=1&zoom=auto,-82,848

footnote 54

United Nations Economic Commission for Europe, The Aarhus Convention: An implementation guide, 2014

footnote 53

UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, http://www.unece.org/environmental-policy/conventions/public-participation/publications/public-participation/convention-on-access-to-information-public-participation-in-decision-making-and-access-to-justice-in-environmental-matters/convention-on-access-to-information-public-participation-in-decision-making-and-access-to-justice-in-environmental-matters/doc.html

footnote 52

https://www.energy-community.org/aboutus/disputeresolution.html

footnote 51

https://www.energy-community.org/legal/cases/dispute.html

footnote 50

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 (transposition by 1 January 2018 and implementation by 31 March 2018)

footnote 49

Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, as amended by Directive 2006/21/EC, Directive 2009/31/EC and Directive 2013/30/EU (implementation by 1 January 2021)

footnote 48

Directive 79/409/EEC of the Council of 2 April 1979 on the conservation of wild birds (implementation on the entry into force of the Treaty i.e. 1 July 2006)

footnote 47

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directives 97/11/EC of 3 March 1997 (implementation on the entry into force of the Treaty i.e. 1 July 2006), Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (implementation by 14 October 2016) and Directive 2014/52/EU (implementation by 1 January 2019)

footnote 46

https://energy-community.org/legal/treaty.html

footnote 45

http://curia.europa.eu/juris/liste.jsf?num=C-441/17

footnote 44

https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en#stages-of-an-infringement-procedure

footnote 43

https://ec.europa.eu/info/about-european-commission/contact/problems-and-complaints/complaints-about-breaches-eu-law/how-make-complaint-eu-level_en

footnote 42

https://ec.europa.eu/assets/sg/report-a-breach/complaints_en/

https://ec.europa.eu/info/about-european-commission/contact/problems-and-complaints/complaints-about-breaches-eu-law/how-make-complaint-eu-level_en

footnote 41

https://www.documents.clientearth.org/wp-content/uploads/library/2019-02-26-access-to-justice-in-european-union-law-a-legal-guide-on-access-to-justice-in-environmental-matters-ce-en.pdf

footnote 40

The habitats and species concerned are defined by reference to species and types of natural habitats identified in the relevant parts of the Birds Directive and the Habitats Directive. The scope of the ELD is not restricted to the Natura 2000 network. The species mentioned in ELD which occur outside the SACs and SPAs and even migratory species are also included

footnote 39

The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the baseline condition should be determined by means of measurable data such as:

  • the number of individuals, their density or the area covered;
  • the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level);
  • the species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its characteristic species or to their populations);
  • the species’ or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Damage with a proven effect on human health must be classified as significant damage. The following does not have to be classified as significant damage:

  • negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question;
  • negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators;
  • damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

footnote 38

Damage took place not earlier than 30 April 2007 or the activity causing the damage was finished not earlier than 30 April 2007, or less than 30 years have passed since the emission, event or incident, resulting in the damage, occurred

footnote 37

https://epublications.uef.fi/pub/urn_nbn_fi_uef-20190262/urn_nbn_fi_uef-20190262.pdf

footnote 36

https://www.clientearth.org/wp-content/uploads/2016-10-17-european-environmental-law-observatory-july-2016.pdf

footnote 35

http://curia.europa.eu/juris/document/document.jsf?text=hydropower&docid=181400&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1792681#ctx1

footnote 34

https://www.documents.clientearth.org/wp-content/uploads/library/2015-09-29-eelo-newsletter-september-2015-ce-en.pdf

footnote 33

http://curia.europa.eu/juris/document/document.jsf?text=&docid=165446&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=883931

footnote 32

See C-664/15, Protect, paragraph 81

footnote 31

See C-664/15, Protect, paragraph 102

footnote 30

CIS Guidance no 36 Exemptions to the Environmental Objectives according to Article 4(7):
https://circabc.europa.eu/sd/a/e0352ec3-9f3b-4d91-bdbb-939185be3e89/CIS_Guidance_Article_4_7_FINAL.PDF

footnote 29

Hydropower Development under the Water Framework Directive – Statement of the Water Directors:
https://circabc.europa.eu/sd/a/4e0cb9d2-c268-4d67-ac56-f1977c1b85fc/WD%20statement%20May%202010-%20Hydropower%20Development%20under%20the%20Water%20Framework%20Directive.pdf

footnote 28

See C-461/13, Bund für Umwelt und Naturschutz Deutschland e.V. v Bundesrepublik Deutschland

footnote 27

This includes new modifications to the physical characteristics of a surface water body, alterations to the level of groundwater, and new sustainable human development activities

footnote 26

https://www.clientearth.org/european-environmental-law-observatory-may-2013

footnote 25

http://curia.europa.eu/juris/document/document.jsf?text=&docid=136145&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=880619

footnote 24

See C-127/02, Waddenzee, paragraphs 66 – 70. In case C-243/15, the Court of Justice also confirmed that decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 (whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision-granting authorisation) are decisions, which fall within the scope of Article 9(2) of the Aarhus Convention

footnote 23

Guidance on the requirements for hydropower in relation to Natura 2000, p. 70: http://ec.europa.eu/environment/nature/natura2000/management/docs/Hydro%20final%20May%202018.final.pdf

footnote 22

Guidance on the requirements for hydropower in relation to Natura 2000: http://ec.europa.eu/environment/nature/natura2000/management/docs/Hydro%20final%20May%202018.final.pdf

footnote 21

See C-127/02, Waddenzee, paragraphs 66 – 70. In case C-243/15, the Court of Justice also confirmed that decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 (whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision-granting authorisation) are decisions, which fall within the scope of Article 9(2) of the Aarhus Convention

footnote 20

See, C-243/15, Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín (Slovak Bears II), para 46-49

footnote 19

https://www.clientearth.org/european-environmental-law-observatory-may-2013

footnote 18

See Commission Notice on Access to Justice in Environmental Matters, https://ec.europa.eu/environment/aarhus/pdf/notice_accesstojustice.pdf

footnote 17

See C-474/10 – Seaport (NI) and others, paragraphs 45 and 50

footnote 16

See C-295/10, Valčiukienė and Others, paragraphs 44-47 and 53

footnote 15

https://www.clientearth.org/european-environmental-law-observatory-may-2013

footnote 14

http://curia.europa.eu/juris/document/document.jsf?text=&docid=135401&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=881827

footnote 13

Environmental Impact Assessment of Projects Guidance on the preparation of the Environmental Impact Assessment Report: http://ec.europa.eu/environment/eia/pdf/EIA_guidance_EIA_report_final.pdf

footnote 12

See C-75/08, Mellor, paragraph 64

footnote 10

See C-66/06, Commission v Ireland, paragraph 64

footnote 11

See C-87/02, Commission v Italy, paragraph 49

footnote 09

See for example C-66/06, Commission v Ireland; C-255/08, Commission v Netherlands; C-435/09, Commission v Belgium

footnote 08

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02004L0035-20190626

footnote 07

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02000L0060-20141120

footnote 06

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02009L0147-20190626

footnote 05

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:01992L0043-20130701

footnote 04

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32001L0042

footnote 03

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02011L0092-20140515

footnote 02

The EU’s ‘acquis’ is the body of common rights and obligations that are binding for all EU Member States. It constantly evolves and comprises: the content, principles and political objectives of the Treaties; legislation adopted in application of the treaties and the case law of the Court of Justice of the EU; declarations and resolutions adopted by the EU; measures relating to the common foreign and security policy; measures relating to justice and home affairs; international agreements concluded by the EU, as well as those concluded by EU countries between themselves in fields relevant to the EU’s activities.
(https://eur-lex.europa.eu/summary/glossary/acquis.html)

footnote 01

The rule of law is one of the EU’s fundamental values. It is the idea that both the EU itself and all EU countries are governed by a body of law (legal codes and processes) adopted by established procedures, rather than discretionary or case-by-case decisions.
(https://eur-lex.europa.eu/summary/glossary/rule_of_law.html)

footnote 68

https://rm.coe.int/1680746b75