The new Industrial Emissions Directive

Article 3 (2) SEA Directive defines two classes of plans and programmes which are deemed likely to have significant environmental effects. For a plan or programme to fall within the scope of paragraph 2(a), both conditions described there must have been fulfilled; the plan or programme must have been prepared for one or more of the sectors (agriculture, forestry, fisheries, etc) and it must set the framework for the future development consent for projects listed in the EIA Directive. It is not necessary to decide whether projects in Annex II to that directive would require EIA. All that is necessary is that they fall under the categories listed in either Annex I or II of the EIA Directive.

Article 3 (2) expressly refers to ‘projects’ listed in the EIA Directive. There 'project' is defined as:

• the execution of construction work or of other installations or schemes,
• other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.

The word ‘project’ should be interpreted in a way which is consistent with its use in the EIA Directive.

There is one exception to this general rule. If the plans and programmes involve only minor modifications or small areas at local level and the Member States determine that they are not likely to have significant environmental effects, such a mandatory assessment is not required, so called de minimis exception under Article 3 (3) of the SEA Directive.

According to Article 3 (4) of the SEA Directive, environmental assessment is voluntary for all other plans and programmes setting the framework for future development consent projects, insofar as they are likely to have significant environmental effects. Unlike Article 3 (2), it does not automatically deem certain plans and programmes to have significant environmental effects. Instead it requires Member States to make a specific determination. The plans and programmes to which it applies are all those which set the framework for future development consent for projects but which are not covered by Article 3 (2). This includes projects in sectors not included under Article 3 (2) as well as projects which are in those sectors but are not listed in the annexes to the EIA Directive. The definition of 'project' in the EIA Directive would apply in this paragraph as it does in paragraph 2.

According to Article 3 (5) of the SEA Directive, the Member States are required to establish a screening process in order to determine the risk of environmental effects caused by the projects under the de minimis exception (Article 3 (3)) and the optional environmental assessment projects (Article 3 (4)) (cf. C-295/10). Thereby the Member States have to take into consideration the criteria listed in Annex II of the SEA Directive. However, those criteria are not exhaustive. This situation resembles Annex II projects under the EIA Directive and is therefore likely to lead to comparable case law.