Study: large degree of divergence in national rules and application practice inevitably leads to unequal treatment of EU citizens
28 June 2018
The Justice and Environment (J&E) comparative legal study “Assessing environmental impacts of plans and programs. Implementation of key requirements of the SEA Directive in selected EU Member States.“, published today, reveals remarkable degree of divergence in national rules and application practice of the Directive in countries involved. According to the study this would inevitably lead to unequal treatment of EU citizens and harm the level playing field the EU aims to create for economic operators, and therefore the current approach may in all cases not be justified.
The study gives an overview of some of the key mechanisms of the Strategic Environmental Assessment (SEA) Directive and the way they have been established in the national legislation transposing the Directive. Core findings:
- Scope of application of the SEA directive. In some countries, eg Austria, there are scattered regulations in different laws while in other countries, eg Bulgaria, Croatia, Estonia, the procedures and content of SEAs are regulated by a framework environmental act and by-laws to this act. That entails the danger that environmental interests are diluted in the specific interests served by sectoral laws and administrations.
- Public participation. In the reviewed countries there are no legal restrictions to public participation in SEA procedures. Member States have the discretion to decide on the detailed arrangements of participation. In most countries covered by the study, public participation starts at the scoping stage of the SEA procedures. Still, eg in Austria, most of the public participation takes place at the very end of the procedure, rendering its effect on the outcome small.
- Written consultations and public hearings are among the most used methods at different stages of the SEA process.
- The deadlines for consulting the public in the SEA procedures set in the national laws should give the people and organizations an opportunity to provide substantive and timely inputs. Periods for input differ from country to country, being for example “at least 30 days”, “up to 14 days” or six weeks. Deadlines are mostly too short to provide best possible participation in SEAs. Short deadlines that deter or hinder public participation undermine the deliberative processes where opinions collide, are measured and weighed, compromises are forged and expression is found for different social values and interests. Such processes are at the heart of the SEA Directive’s regulation and therefore the lack thereof should be considered a gross violation of the initial ideas enshrined in the Directive.
- There are obstacles to effective and meaningful public participation in SEA, ranging from the normative framework to the practice of involvement the public in the SEAs. A reoccurring reason for difficulties the public is facing in these procedures is the vague and abstract nature of the planning documents. This could lead to lack of understanding in the public of their content and hence to lack of interest in public participation, especially when results and opinions of the public are not taken into account.
- Qualification and objectivity of SEA experts. The criteria for selection of SEA experts and rules ensuring their independence are different in the countries covered by this study. While there are established requirements in most countries covered by the study, there are no requirements regarding the experts in Slovenia. In some other countries, eg Bulgaria, the requirements are minimal, giving way to questions over objectivity of the whole process.
- Follow-up of the SEA and monitoring. In only a few countries covered in the study specific provisions about measures to be taken in case unintended impacts occur or in case impacts exceed the level predicted in the SEA are provided by the law. Where such measures are in place, they could lead to remedial actions, to revision of the plan or program or even to suspension of the operation of the installations covered by the strategic document for a certain period. Such rules, however, are not commonplace. For example, in Croatia, the Regulation on SEA determines that the Environmental Monitoring Program must include a procedure to be used in case of unexpected adverse effects but without providing detailed provisions for such a procedure.
- Access to justice. Countries presented in this study have a very wide spectrum of regulation and practice regarding access to justice to challenge SEAs. In some countries like Austria, Croatia, Slovenia the legal system and case law do not provide a right to challenge an SEA decision or the plan or program into which it is integrated in the court of law. In Slovakia the only strategic documents that could be challenged are land use plans. In countries like Bulgaria and Estonia, there is at least a theoretical possibility to challenge (some) SEAs and/or plans and programs.
The study contributes to the regulatory fitness evaluation of the Strategic Environmental Assessment (SEA) Directive (REFIT) initiated by the European Commission in 2017. The SEA Directive is a relatively new piece of EU environmental acquis with a transposition date of July 21, 2004. It covers the application of the Directive in 8 Member States (Austria, Bulgaria, Croatia, Estonia, France, Hungary, Slovakia, Slovenia) with emphasis on some key aspects, including scope of application, public participation, rules governing SEA experts, follow-up and monitoring, and access to justice.
For more information, please contact:
Siim Vahtrus, Chairman, J&E, chairman(at)justiceandenvironment.org, phone +372 5568 3880
 The study covers eight EU member states – Austria, Estonia, Croatia, Bulgaria, France, Hungary, Slovakia and Slovenia, focusing on application of five key elements of the directive in these countries - the scope of application, public participation, rules governing SEA experts, follow-up and monitoring, access to justice.