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Please Note: Extracts from the original document. Numbering and highlights are ours. To view the original document: www.friendsoftheirishenvironment.net
COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels, 21/01/2003
2000/4078
C(2003) 352
REASONED OPINION
1. Article 2(1) of the Impact Assessment Directive defines a basic duty to ensure the prior environmental impact assessment of environmentally significant projects.
2. Articles 5 to 10 of the Environmental Impact Assessment Directive set out requirements to be respected with regard the conduct of environmental impact assessments.
3. These requirements inter alia include an obligation to consult the public concerned (Article 6) and to take information, including information derived from public consultation, into account in the decision-making process (Article 8)
4. Article 3 of Directive 97/11/EC requires Member States to bring into force
the laws, regulations and administrative provisions necessary to comply with
it by 14 March 1999 at the latest, and to forthwith inform the Commission thereof.
5. In 2000, the Commission registered two complaints against Ireland under numbers P2000/4078 and P2000/4188 concerning then proposed Irish legislation which inter alia provided for payment of fees by members of the public as a pre-condition for considering their opinions in development consent procedures. The principal legislation - which has since been adopted - is the Planning and Development Act, 2000. This provides for payment of participation fees at local authority level. Earlier legislation provides for the payment of participation fees at other tiers of decision-making. The complainants inter alia argued that the requirement of payment of a fee was contrary to the provisions of the Impact Assessment Directive.
6. By letter dated 29 August 2000 (ref D(0)432590), the Commission requested the Irish authorities to comment on the complaints referred to in the previous paragraph.
7. The Commission considers that it is contrary to the Impact Assessment Directive to make the right to express an opinion, or to have that opinion taken into consideration, subject to payment of a participation fee.
8. The Commission would contend that that Member States are not entitled to constrain the right to express an opinion or have that opinion taken into account by reference to payment of such fees.
9. The Commission considers that participation fees run contrary to the scheme and purpose of the Impact Assessment Directive.
10. It is indicated by Directive 85/337/EEC that a fundamental purpose of an EIA is to ensure that decisions on environmentally significant projects are adequately informed in terms of information emanating from relevant information sources. Information from the public concerned represents one of these information sources, as is expressly recognised by Article 6(2) of the Impact Assessment Directive. Consequently, to see the role given to the public concerned under Article 6(2) only in terms of an entitlement to have a service rendered to them by the authorities is, in the Commission's view, misplaced.
11. On the contrary, that role can be considered in terms of the public providing a service to the decision-making authorities, i.e. providing supplementary information that can help these authorities make a fully informed decision. In an Irish context, such supplementary information can be particularly important, especially when it comes from expert non-governmental organisations, given that many Irish decision-making bodies lack specific expertise to judge environmental impacts.
12. In this regard, it may be noted that the role of the public under Article 6(2) is intended to be exercised with reference to specific projects. The general interest of having environmentally informed decision-making with regard to specific projects is paramount. In the context of this general interest, the Commission would submit that the imposition of participation fees on the public concerned is inappropriate, since it cannot be justified by reference to this interest. On the contrary, it works against this interest by making it less likely that one specified information-source, i.e. the public, will contribute to decision-making on such projects as intended.
13. The Commission understands that the role of the public in helping decision-makers to make informed decisions was highlighted in many submissions to the Irish government opposing participation fees prior to their introduction at local authority level. Fourteen local authorities, including the General Council of County Councils, passed motions to request that the fee would not be implemented, inter alia highlighting the poorer decisions that would result as members of the public had consistently supplied these authorities with information that was useful and relevant.
14. The relevant professional bodies, the Irish Planning Institute and the Royal Town Planning Institute (which represent professional town and country planners), together with a number of statutory consultees, the Heritage Council and An Taisce, advanced similar arguments against participation fees. The Heritage Council noted: "The introduction of a fee which would be payable by third parties to make submissions or observations on applications for planning permissions is not in line with one of the key principles of sustainable development, that of public participation.
15. Given the current lack of specialised expertise amongst planning authorities in relation to a number of areas of sustainable development, the submission of observations from third parties provides an invaluable service to planning authorities in their attempts to assess applications in a comprehensive manner."
16. Key non-governmental organisations concerned with the protection of Ireland's environment also voiced concern that the participation fees will make it more difficult for them to inform decision-makers of environmental impacts.
17. The Commission considers that the precise wording of Article 6(2) and (3) of the Impact Assessment Directive does not allow for the latitude in interpretation that the Irish authorities seek to give it.
18. Article 6(2) itself sets no qualification on the duty of authorities to provide information to the public "in order to give the public concerned the opportunity to express an opinion before the development consent is granted."
19. In contrast, the imposition of participation fees by way of "detailed arrangements" cannot be considered as coming within the ambit of what is reasonably necessary to give effect to Article 6(2), a point reinforced by the fact that Ireland is the sole Member State to resort to such fees.
20. Furthermore, the Commission would submit that the imposition of participation fees by way of "detailed arrangements" runs contrary to the polluter pays principle, one of the principles on which Community environmental law is founded, and a principle which should not be overlooked in any interpretation of Article 6(3). In particular, the Commission considers that the principle is not adhered to if costs properly attributable to those proposing to create environmental impacts are instead allocated to those who may be affected by them.
21. Council Recommendation 75/436/Euratom, ECSC, EC regarding cost allocation and action by public authorities on environmental matters states "the costs to be borne by the polluter (under the "polluters pays principle") should include all the expenditure necessary to achieve an environmental quality objective, including the administrative costs directly linked to the implementation of anti-pollution measures." In contrast, although any administrative costs arising from public participation are a consequence of initiatives taken by developers, the charges that Ireland imposes by way of participation fees fall on the public.
22. In this regard, and with reference to the equity of participation fees, the Irish General Council of County Councils has pointed out that it is developers who seek to change the status quo.
23. Furthermore, it appears from the submissions of local authorities and the General Council of County Councils that, as a matter of general policy in Ireland, developers are not expected to properly defray the administrative costs that result from their development proposals, and that inter alia, as a consequence, local authorities are discouraged from engaging the professional expertise that is needed to properly consider such proposals. This further underscores the potential contribution that the public, including expert individuals and organisations, can make to decision-making, by supplying a deficit in the expertise available to local authorities.
24. Leaving aside questions of principle, the Commission takes the view that the existing legislation gives the Minister a very broad latitude to set participation fees at a level which is prohibitive or dissuasive in cost terms, and cannot be considered compatible with the scope given to the Member States to determine detailed arrangements under Article 6(2).
25. The Commission considers that, in the charges it has actually provided for to date, Ireland has proceeded in a manner that impedes or potentially impedes the rights given to the public concerned under Article 6(2) of the Impact Assessment Directive. The Commission considers that the level of participation fees which currently obtain in Ireland are such as to inhibit the public participation foreseen by Article 6(2) of the Impact Assessment Directive, especially with regard to a number of categories of persons.
26. In the first place, the participation fees are especially prohibitive in relation to persons dependent on social welfare payments (including recipients of unemployment benefit and disability allowance).
27. In the second place, the participation fees are prohibitive in relation to persons or organisations which, because of a concern for the environment and/or a particular area of environmental expertise, wish to participate in a multiplicity of different development consent procedures. It should be noted that participation fees are not limited to procedures involving EIA, but apply to all planning
28. In the third place, the participation fees are especially prohibitive in relation to the public concerned by developments involving a multiplicity of separate development consent procedures. Citizens wishing to express an opinion on any separate EIAs that result will incur separate participation fees.
29. A consequence of the imposition of participation fees contrary to Article
6 is that Ireland also fails to comply with Article 8 of the Impact Assessment
Directive. This is because Ireland fails to ensure that opinions expressed
by members of the public who do not pay participation fees are taken into account
in the development consent procedure.
30. FOR THESE REASONS THE COMMISSION OF THE EUROPEAN COMMUNITIES HEREBY DELIVERS THE FOLLOWING REASONED OPINION
under the first paragraph of Article 226 of the Treaty establishing the European Community that Ireland, by making the full and effective participation of the public in certain environmental impact assessments subject to prior payment of participation fees, has failed to comply with its obligations under Article 6 and 8 of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended by Directive 97/11/EEC.
Pursuant to the first paragraph of Article 226 of the Treaty establishing the
European Community, the Commission invites Ireland to take the necessary
measures to comply with this Reasoned Opinion within two months of receipt of
this Opinion.
Done at Brussels, 21/01/2003
For the Commission
Margot WALLSTRÖM
Member of the Commission
IN CONFORMITY WITH COMMISSION
DECISION
For the Secretary-General
Sylvain BISARRE
Director for the Registry