Focus on Strategic Environmental Assessment (SEA)

The ECJ has assessed the concept of screening under the SEA Directive in a number of cases, including the question of discretion of the Member States in that process. To that end, the ECJ has come to the conclusion that the margin of discretion enjoyed by Member States pursuant to Article 3(5) is limited by the requirement under Article 3(3) in conjunction with Article 3(2), to subject the plans likely to have significant effects on the environment to environmental assessment, in particular on account of their characteristics, their effects and the areas likely to be affected. Consequently, a Member State which establishes a criterion which leads, in practice, to an entire class of plans being exempted in advance from the requirement of environmental assessment would exceed the limits of its discretion under Article 3(5) unless all plans exempted could be regarded as not being likely to have significant effects on the environment.

In relation to the provisions on public participation of the SEA Directive, the ECJ concluded that Article 6(2) of the SEA Directive must be interpreted as not requiring that the national transposing legislation lay down precisely the periods within which the authorities designated and the public affected or likely to be affected should be able to express their opinions on a particular draft plan or programme and on the environmental report upon it. Consequently, Article 6(2) does not preclude such periods from being laid down on a case-by-case basis by the authority which prepares the plan or programme. However, in that situation, Article 6(2) requires that, for the purposes of consultation of those authorities and the public on a given draft plan or programme, the period actually laid down must be sufficient to allow them an effective opportunity to express their opinions on that draft plan or programme and on the environmental report upon it in good time.