Environmental Impact Assessment

The SEA Directive applies to public plans and programmes, i.e. the ones which are subject to preparation and/or adoption by an authority and which are required by national legislative, regulatory or administrative provisions. Similarly to the EIA Directive, the SEA Directive excludes from its scope plans and programmes the sole purpose of which is to serve national defence or civil emergency, and financial or budget plans and programmes.

To decide whether a plan and programme falls under the scope of Article 3(2)(a) of the SEA Directive, the following four criteria should all be met: (i) the plan and programme should be subject to preparation and/or adoption by an authority at national, regional or local level; (ii) it is required by legislative, regulatory or administrative provisions; (iii) it is prepared by any of the sectors listed in Article 3(2)(a) of the Directive; (iv) it sets the framework for future development consent of projects listed in Annex I and II to the EIA Directive.

Plans and programmes which fulfil the above requirements but which determine the use of small areas at local level and represent minor modifications to plans and programmes fulfilling the above requirements, are not automatically assessed. For these the Member States have to determine, through case-by-case examination or by specifying types of plans and programmes or by combining both approaches, which plans and programmes have to be subject to an environmental assessment as they are likely to have significant environmental effects. In this respect, the CJEU noted for the term ‘plans and programmes’ that whilst it is true that it must cover a specific area, it is not apparent from the wording of either Article 2(a) or Article 3(2)(a) that those plans or programmes must concern planning for a given area. It follows from the wording of those provisions that they cover, in the wider sense, regional and district planning in general (Case C-290/15, D'Oultremont and Others, paras 45 and 52).

As regards the difference between the plan and the programme, there does not seem to be any. It is generally understood that the SEA Directive does not distinguish between these two terms and stipulates identical requirements for both. The terminology used can be however confusing given that the Habitats Directive only uses the term plan.

The CJEU case-law deals with the fact that the SEA Directive does not contain a more precise definition of plans and programmes subject to impact assessment. The CJEU generally follows the basic objective of the Directive, which is that plans and programmes likely to have significant effects on the environment should be subject to impact assessment. This principle was first defined by the CJEU in relation to the EIA Directive, to be subsequently reaffirmed for assessing plans and programmes. See Joined Cases C 105/09 and C-110/09, Terre wallonne and Inter-Environnement Wallonie, para. 32: “…as is apparent from Article 1 of Directive 2001/42, the fundamental objective of that directive is, where plans and programmes are likely to have significant effects on the environment, to require an environmental assessment to be carried out at the time they are prepared and before they are adopted.” It serves as an interpretative guide in general terms when interpreting the provisions defining the measures intended by the SEA Directive, or more specifically, when interpreting the interpreting requirements on the legal form of the plan or programme (see below) or when determining the scope of Art. 3(3) of the SEA Directive.

As regards the interpretation of the characteristics of the plans and programmes to set the framework, it is only in recent years that significant CJEU decisions in this respect can be traced. According to the CJEU, “it is necessary to examine the content and purpose of those programmes, taking into account the scope of the environmental assessment of projects” (Joined Cases C 105/09 and C-110/09, Terre wallonne and Inter-Environnement Wallonie, para. 45). According to Case C-290/15, D’Oultremont and Others, term plan and programme “relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment…” (para. 49).