Public Participation
The SEA Directive defines the public the same way as in the Aarhus Directive as “one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups” [Art. 2(d)]. The Aarhus Convention requirements, however, do not venture to be as detailed for the SEA process as for an EIA. The only provisions the Convention makes regarding SEA are that reasonable time frames for the different phases are to be established, that sufficient time should be allowed for informing the public so that it can prepare and participate effectively, that early participation should occur when options are still open, and that the decision must take into account the outcome of the public participation. Unlike the EIA Directive the SEA Directive does not provide for a review procedure before a court or another independent impartial body to challenge the substantive or procedural legality of decisions, acts or omissions subject to public participation provisions of the SEA Directive. However, based on the case-law, procedural rights serve the purpose of ensuring the effective implementation of EU environmental law.
The Member States are obliged to identify the public “including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned” [Art. 6(4)]. They must also determine detailed arrangements for the information and consultation of the authorities and the public. Still, unlike the Aarhus Directive, the SEA does not add the purpose of these arrangements that they must enable the public to prepare and participate effectively. Public participation is not required for the follow-up stages.
According to Art. 3(7) of the SEA Directive, conclusions to require the SEA or not for the smaller plans and programmes and modifications of plans and programmes, including the reasons for not requiring the SEA, must be made available to the public. If the SEA is carried out, Art. 6(1) of the SEA Directive requires that the environmental reports produced for draft plans, and both reports and the draft plans be made available to the public for consultation procedure. The opinion of the public shall be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.