Focus on Environmental Impact Assessment (EIA)

Most provisions on public participation were brought in the EIA Directive by the amendments of Directive 2003/35/EC, which aligned the provisions on public participation with the Aarhus Convention. The 2014 amendments of the EIA Directive further reinforced the public participation dimension and made it fit for the realities of the 21st century, by Enabling the public to express and the decision-maker to take account of opinions and concerns which may be relevant to those decisions increases the accountability and transparency of the decision-making process and contributes to public awareness of environmental issues and support for the decisions taken.

• broadening the scope of consultations (local and regional authorities clearly spelled out as bodies to be consulted);
• ensuring that apart from former methods (bill posting, newspapers), the public is to be informed also electronically and by public notices (Article 6(5) as amended);
• making relevant information electronically accessible to the public (same paragraph);
• creating reasonable time-frames for the different phases of the decision-making (Article 6(6) as amended);
• stipulating that the time-frame for consulting the public concerned on the EIA report shall be at least 30 days (Article 6(7) as amended).

Article 6 of the EIA Directive was also subject to a number of cases at the ECJ. Prior to the EU’s accession to the Aarhus Convention, the ECJ, when considering setting conditions on public participation, concluded that the levying of an administrative fee is not in itself incompatible with the purpose of the EIA Directive.

The EIA Directive also requires that transboundary consultations take place for projects in the case of which significant effects on the environment in another Member State are foreseen, or where a Member State likely to be significantly affected so requests. In line with the 2014 amendments, such consultations may be conducted through an appropriate joint body (Article 7(4) as amended) and time-frames for such public consultation are to be set by the Member States concerned (Article 7(5) as amended).

Finally, the EIA Directive requires that members of the public concerned having a sufficient interest, or (where administrative procedural law of a Member State requires this as a precondition) maintaining the impairment of a right, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the EIA Directive (Article 11). The Directive also specifies that such procedures must be fair, equitable, timely and not prohibitively expensive.

The ECJ, when interpreting the “prohibitively expensive” condition of this provision, has come to a conclusion that judicial proceedings should not be prohibitively expensive means that the persons covered by those provisions should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result. In assessing whether this is indeed the case, the national court may also take into account the situation of the parties concerned.