The role of european community environmental law

The environmental law of the European Community may strongly influence or even determine the content and the course of the negotiations between Slovakia and Hungary (collectively: “the parties”). The questions set out below are deemed to correspond to the envisaged content and structure of the negotiations. They are intended to touch upon all potentially relevant legal questions that may arise in future discussions, ranging from possible restrictions on interventions to the parties’ obligations to intervene in order to achieve certain environmental objectives.

(a) Objectives: what are the main environmental objectives laid down by Community law that have to be taken into consideration in the choice of technical alternatives or solutions (installations) in the Gabcikovo case? What procedures have to be followed in determining the relevant environmental objectives?

(b) Obligations to act: what are the parties’ positive obligations with a view to fulfilling the relevant environmental objectives? Under what administrative structures do these obligations have to be fulfilled?

(c) Restrictions on interventions by the parties: can any of the technical alternatives proposed in the context of the legal dispute be considered contradictory to the above environmental objectives and, as a result, to Community law, therefore the parties should discard such alternatives in the future negotiations?

(d) Assessment of the environmental effects of the possible technical solutions or alternatives: what are the applicable rules of the assessment of the effects on the environment of the interventions suggested by any of the parties, in particular how and when are environmental impact assessment and strategic impact assessment to be conducted?

(e) Public participation: what are the applicable rules of public participation?

II.2 Conflict among the various competing Community policies: the relative precedence of environmental law

The below summary provides a brief description of the particular field of Community law that plays the most important role in the context of the legal dispute: environmental law.

II.1.1 Protection of the environment as one of the fundamental objectives of the Community. Protection of the environment is one of the fundamental objectives of the Community. Article 2 of the EC Treaty provides that “[t]he Community shall have as its task […] to promote throughout the Community […] a high level of protection and improvement of the quality of the environment”. The importance of environmental protection is also demonstrated by the so-called “integration principle” enshrined in Article 6 of the EC Treaty under which environmental protection requirements must be integrated into all Community policies.

The Community, together with Member States, pursues an autonomous environmental policy. The principal legal basis of environmental decision-making is Articles 174-176 of the EC Treaty (Title XIX, Environment). These provisions set out the objectives and principles of Community environmental policy as well as the applicable decision-making procedures. Given however that the functioning of the internal market has wide-ranging environmental implications (e.g. chemicals) several Community legal acts are based on Article 95 (internal market legal approximation).

II.1.2 Environmental protection versus water management. Despite the fact that in theory all elements of the environment – and their interaction – are covered by Community environmental policy, certain specific areas are only regulated exceptionally and subject to more stringent procedural requirements (example: quantitative management of water resources,[1] see Article 175 (2) of the EC Treaty). This applies in particular to water management where the Community holds no sui generis legislative powers: water management only appears as an integral part of environmental policy. It follows from the primacy of Community law that all national measures adopted or implemented in the field of water management have to be in conformity of Community environmental law.

II.2 Conflict among the various competing Community policies: the relative precedence of environmental law

II.2.1 The relevant Community policies. The construction and operation of the Gabcikovo-Nagymaros system of installations falls under the scope of a number of Community policies. In addition to environment those relating to transport policy and energy can be mentioned. Evidently, some of these policies are driven by competing objectives. Thus, the question of hierarchy in a potential conflict among these policies is of outstanding importance. Or in other words: can any of such policy be considered to constitute an autonomous derogation from the rules required by another policy?

II.2.2 Conflict among competing Community policies: the relative precedence of environmental law. The conflict at issue is addressed by Article 6 of the EC Treaty. This Article affords a privileged position to environmental policy vis-à-vis other Community policies by providing that: “[e]nvironmental protection requirements must be integrated into the definition and implementation of [other] Community policies and activities”. The integration principle features in other – secondary – Community legislation as well (see recital (16) in the Water Framework Directive) establishing a clear precedence for the benefit of environmental policy.

This hierarchy is also confirmed by the jurisprudence of the European Court of Justice (“ECJ”). The ECJ has consistently held that potential inconsistencies among the various Community policies do not give rise to an autonomous derogation from Community environmental legislation.[2]

The main fields of Community environmental law, based on the practical nomenclature employed by the European Commission (“Commission”), is as follows:

For the Gabcikovo-Nagymaros project it is horizontal legislation, water quality protection and nature conservation that are the most relevant areas. In addition, with regard to the environmental evaluation of hydro power generation as a potential source of renewable energy the climate change acquis may provide indirect guidance. Below is a brief summary of the legislation belonging to the categories referred to in (a), (d), (e) and (j) above.

(a) Horizontal legislation: horizontal legislation are those which cover a potentially very wide range of activities affecting the environment. These can be divided into three relevant categories for the purposes of this analysis:

(i) rules concerning prior assessment of the effects of certain human activities, such as Directive 85/337/EEC on environmental impact assessment and Directive 2001/42/EC on strategic environmental impact assessment;

(ii) rules concerning public access to decision-making in environmental matters, such as Directive 2003/4/EC on access to environmental information and Directive 2003/35/EC on the public participation in the drawing up of certain plans and programmes;

(b) Water quality protection: the pieces of Community water legislation relevant to the legal dispute are as follows:

(i) Directive 2000/60/EC establishing a framework for Community action in the field of water policy (“Water Framework Directive” or “WFD”);

(iii) Directive 91/676/EEC on the protection of pollution by nitrates from agricultural sources;

It must be pointed out that presumably in the first half of 2006 two additional Community water legislation will be adopted that may influence the resolution of the legal dispute: the new bathing water directive (replacing 76/160/EEC) and a new directive on groundwater quality assessment.

(e) Nature conservation: the two directives relevant in the context of the Gabcikovo-Nagymaros project are those establishing the Natura 2000 network of protected areas:

(i) Directive 79/409/EEC on the protection of wild birds (“Birds Directive”), and

(ii) Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora („Habitats Directive”).

(j) Climate change: Directive 2004/101/EC amending Directive 2003/87/EC on the European emission trading scheme provides guidance for the environmental evaluation of hydro power generation as a potential source of renewable energy.

The aim of this chapter is to explore whether under Community law there are any mandatory environmental objectives that have to be fulfilled by the parties with regard to the Gabcikovo-Nagymaros project. Further, it also has to be investigated what margin of appreciation of Member States have in setting the relevant environmental objectives. This chapter’s focus is only the question of environmental objectives: it does not dwell on the issues of how Member States have to act (see Chapter IV) or to refrain from certain activities (see Chapter V) in light of these objectives.

The principal environmental obligations relevant to the legal dispute are set out by the WFD. In addition, as the project affects vast areas of nature conservation sites it is also necessary to analyse the relevant requirements of the Birds and Habitats Directive. The description of the applicable environmental objectives is followed by the rules of procedure for the establishment of these objectives and the exemption from these objectives.

III.2.1 Primacy of environmental objectives under the Community water protection regime

The main purpose of the WFD is to base all activities relating to water on environmental foundations. Consequently, the principal objectives of the Community’s water policy are environmental objectives. These requirements have to be integrated into other policy areas such as energy, transport, agriculture, fisheries, regional policy and tourism (recital (16)).

The abstract environmental objectives of the WFD are to be individually specified at the level water bodies in each river basin district. The environmental objectives are subject to an elaborate system of exemptions that allow their appropriate adaptation to the ecologically degraded European waters.

The WFD sets out environmental objectives for surface waters and groundwater and for so-called “protected areas” – among which particular focus is on water bodies used for drinking water abstraction. Reduced environmental objectives apply to heavily modified and artificial water bodies.

(a) Basic environmental objectives. The main aim of Community water policy is to maintain and improve the status of the aquatic environment (recital (19). To this end Article 1 of the WFD sets out the following basic objectives:

- prevention of further deterioration of aquatic ecosystems and terrestrial ecosystems directly dependent thereon;

- promotion of sustainable water use based on a long-term protection of available water resources;

- enhanced protection and improvement of the aquatic environment, inter alia, through the progressive reduction of discharges of dangerous substances;

(b) Environmental objectives regarding the status of waters. At least “good” water status should be achieved or maintained with regard to all water bodies (recital 26). “Good water status” is not an abstract objective, it is a status to be measures in the light of the ecological, hydrological and chemical parameters defined in Annex V to the WFD. Surface waters are in good status when both its ecological status and chemical status is at least “good”. Groundwater is in good status when both is quantitative and chemical is at least “good”. With respect to certain – heavily modified or artificial – water bodies reduced environmental objectives can be set (“good ecological potential”).

- prevention of the deterioration of the status of all bodies of surface waters;

- protection, enhancement and restoration of all bodies of surface waters to achieve good water status by the end of 2015;

- protection, enhancement and restoration of all heavily modified and artificial water bodies to achieve good surface water ecological potential and good chemical status by the end of 2015.

- prevention or limiting the input of pollutants into groundwater and prevention of the deterioration of the status of all bodies of groundwater;

- protection, enhancement and restoration of all bodies of groundwater bodies – while ensuring a balance between abstraction and recharge – to achieve good groundwater status by the end of 2015.

The requirements to ensure adequate surface water quantity form an integral part of the environmental objectives. The WFD covers water quantity in so far as it is necessary for the achievement of good water status (recital (19)). Consequently, quantitative elements for surface water appear in the definition of ecological status or ecological potential, while qualitative status for groundwater features as an independent category in Annex V to the WFD.

It must be pointed out that where more than one environmental objectives apply to a given water body the more stringent should apply (Art. 4.2).

(c) Environmental objectives for protected areas. Under the WFD protection of terrestrial ecosystems directly dependent on aquatic ecosystems forms part of the overall environmental objectives of Community water policy (collectively, protected areas). With respect to protected areas the WFD provides additional or auxiliary requirements. The range of protected areas is defined by Annex IV as follows:

(ii) areas designated for the protection of economically significant aquatic species;

(iii) bodies of waters designated as recreational waters, including bathing waters under Directive 76/160/EEC;

(iv) nutrient-sensitive areas, including areas designated as vulnerable zones under Directive 91/676/EEC and areas designated as sensitive areas under Directive 91/271/EEC; and

(v) areas designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection, including relevant Natura 2000 sites designated under Directive 92/43/EEC and Directive 79/409/EEC.

- prevention of further deterioration, protection and improvement of protected areas (Art. 1. a);

- compliance with any standards and objectives by the end of 2015, unless otherwise specified in the Community legislation under which the individual protected areas have been established (Art. 4.1 (c)).

(d) Requirements for drinking water resources. Water bodies for drinking water abstraction are considered as protected areas. The WFD introduces specific requirements solely for this category among all protected areas (Art. 7). These requirements are as follows:

- identification of all bodies of water used for the abstraction of water intended for human consumption providing more than 10 m³ a day as an average or serving more than 50 persons, and those bodies of water intended for such future use;

- ensuring that the water abstracted meets the requirements of Directive 98/83/EC;

- protection of the water bodies identified with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water.

(a) The possibility to derogate from the environmental objectives. Timely compliance with the environmental objectives listed in III.2.2 above may be considerably hindered by natural, financial or other constraints. In view of these constraints Article 4.3-7 of the WFD allows for a range of derogations from the environmental objectives or the timely implementation thereof. The subject of the derogation can be:

(i) designation of water bodies as heavily modified or artificial water bodies (Art. 4.3);

(v) long-term derogation from the environmental objectives in the case of new modifications (Art. 4.7).

Derogation (i)-(iii) provide exemption from the compliance with the environmental objectives and are not applicable to the non-deterioration clause. They can be invoked in view of already existing modifications due to human intervention or prevailing environmental conditions. Derogation (iv) provides for temporary exemption from all environmental objectives under Art. 4.1 in the case of force majeure or exceptional natural circumstances. New modifications leading to the deterioration of water status can only carried out if the conditions in derogation (v) are complied with.

The above derogations can be applied cumulatively. E.g. when the achievement of the reduced environmental objectives in the case of a heavily modified water body is not feasible, derogation (ii)-(iii) can be invoked if the underlying conditions are met.

(b) General conditions. Article 4.8-9 of the WFD attach the below general conditions to the application of the above derogations:

- it does not permanently exclude or compromise the achievement of the objectives of the WFD in other bodies of water within the same river basin district;

- it is consistent with the implementation of other Community environmental legislation;

- the least the same level of protection is guaranteed as provided for under existing Community legislation.

(c) Heavily modified and artificial water bodies (Art. 4.3). As mentioned earlier the WFD allows Member States to classify certain bodies of water as heavily modified or artificial and to set environmental objectives less stringent than those applicable to natural water bodies. Both categories are designed to allow the maintenance of already existing human activities requiring major infrastructure developments in such a way as to ensure a continuous improvement water quality. It is not mandatory to designate water bodies of heavily modified and artificial water, Member States can always declassify such bodies of water and undertake the more stringent requirements.

Heavily modified or artificial water bodies: those bodies surface waters can be designated as heavily modified which as a result of a physical alteration by human activity are substantially changed in character (Art. 2. 9). Artificial are surface water bodies created by human activity (Art. 2. 8).[3]

Conditions of designation:[4] the conditions of designation of a water body as heavily modified or artificial set forth in the WFD can be grouped as follows:

- the physical parameters of the water body have been modified by human activity;

- activities for which water is stored, such as drinking-water supply, power generation or irrigation;

(iii) the achievement of good ecological status would require changes to the hydromorphological characteristics of the water body, which would have adverse effects on:

(iv) no alternative solution is available for the above uses, for reasons of technical feasibility or disproportionate costs, which is a significantly better environmental option.

The designation procedure: designation of heavily modified and artificial water bodies is linked to the general planning cycle of the WFD.[5] Even though this chapter is not intended to provide a detailed description of this implementation procedure some relevant factors have to be highlighted.

The provisional designation of heavily modified and artificial water bodies has already been completed by Member States in the framework of the initial analysis of the characteristics of river basins. Such provisional designation is however solely based on the initial analysis of the characteristics ((i) above). That means that the fact whether or not the achievement of good ecological status requires further hydromorphological changes ((iii) above) and whether there exist environmentally better alternatives ((iv) above) have not yet had to be evaluated.

Environmental objectives for heavily modified and artificial water bodies are as follows:

- protection, enhancement and restoration of all heavily modified and artificial water bodies to achieve good surface water ecological potential and good chemical status by end 2015. No derogation is allowed with regard to protected areas.

(d) Extension of the implementation deadline (Art. 4.4). The WFD permits, subject to conditions, Member States to extend to 2015 deadline for the achievement of good water status or good ecological potential.

Conditions of the extension of the deadline: the purpose of the extension is to allow for a phased implementation rather than a prolongation of the tasks. Precondition of the extension is that it may not lead to a deterioration of water status. Member States may extend the deadline for either of the following reasons:

(i) technical infeasibility: the scale of improvements required can only be achieved in phases exceeding the timescale for reasons of technical feasibility;

(ii) disproportionate costs: completing the improvements within the timescale would be disproportionately expensive;

(iii) natural conditions: the prevailing natural conditions do not allow timely improvements in the status of the water body.

Timeframe for extension: extension of the deadline is limited to two consecutive updates of the river basin management plan (2 x 6 years), except in cases where the natural conditions are such that the objectives cannot be achieved within this period.

Environmental objectives: the applicable environmental conditions remain unchanged.

(e) Setting less stringent environmental objectives (Art. 4.5). In addition to derogation (c) and (d) above the WFD permits, subject to conditions, Member States to aim for less stringent environmental objectives with regard to certain water bodies.

(i) human activity or natural condition: the water body must be so affected by human activity or the natural conditions must be such that the achievement of the generally applicable environmental objectives would be infeasible or disproportionately expensive;

(ii) environmental or socioeconomic needs: the human activity affecting water status serves environmental or socioeconomic needs;

(iii) lack of alternative: the environmental or socioeconomic needs cannot be achieved by other means which are a significantly better option not entailing disproportionate costs.

Environmental objectives: the environmental objectives have to set with the least possible deviation from the general objectives as follows:

- for surface water, the highest ecological and chemical status possible is achieved, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;

- for groundwater, the least possible changes to good groundwater status, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;

(f) Temporary derogation from the environmental objectives (Art. 4.4). Article 4.6 is an auxiliary provision. It allows a temporary derogation from the environmental objectives if it is caused by circumstances beyond the control of Member States.

(i) relevant causes: circumstances of natural cause or force majeure which are exceptional or could not reasonably have been foreseen (such as extreme floods and prolonged droughts) or accidents which could not reasonably have been foreseen;

- all practicable steps are taken to prevent further deterioration in status and in order to not to compromise the achievement of the objectives of the WFD in other water bodies;

- the measures taken will not compromise the recovery of water quality once the circumstances are over;

- all practicable measures are taken in order to restore the water body to its prior status as soon as reasonably practicable.

Environmental objectives: the underlying environmental objectives remain unchanged. Once the exceptional circumstances are over Member States have to return the programme of achieving or maintaining good water status or good ecological potential.

(g) Long-term derogation from the environmental objectives in the case of new modifications (Art. 4.7). The above (c)-(e) points – that is Article 4.3-7 of the WFD – permit derogation from the environmental objectives with respect to already existing human modifications or natural conditions.

Conversely, Article 4.7 establishes conditions for derogations with respect to new physical interventions that affect water status. The special features of the derogation under Article 4.7 are as follows:

- it applies to all new modifications even if the water body affected is already designated as heavily modified or artificial;

- it is the only derogation that permits the long-term deterioration of water status (consequently, it is subject to strict conditions);

- contrary to derogations (d)-(f) above it does not exempt from the fulfilment of the requirements concerning protected areas. These requirements limit the application of Article 4.7.

The relevant modifications: Article 4.7 distinguishes between a specific and a general case of derogation: (i) deterioration from high status to good status as a result of new sustainable human development activities and (ii) failure to achieve good water status (or good ecological potential) or to prevent the deterioration of the status of the water body as a result of new modifications to the physical characteristics of the surface water body or alterations to the level of groundwater. Given the very narrow scope of (i) the below analysis will focus solely on the conditions of the general derogation provided in (ii).

- benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of new modifications to human health, to the maintenance of human safety or to sustainable development;

(ii) lack of alternative: the beneficial objectives served by the new modification cannot for reasons of

be achieved by other means which are a significantly better environmental option.

Environmental objectives: Member States must ensure that the least possible change occurs vis-à-vis the otherwise applicable environmental objectives.

(h) Heavily modified water body versus new modifications. In the context of possible derogations it is of outstanding importance to make a clear distinction between the two categories that are most relevant in the affected sections of the Danube: (c) heavily modified water bodies and (g) new modifications. The importance of the question is twofold: the Csallóköz, the Szigeköz and the sections between Szap and the Danube-Ipoly confluence have been provisionally designated as heavily modified water bodies, while two sections under the Danube-Ipoly confluence retain natural status. Moreover, Article 4.3, point (a)(ii) specifically refer to navigation and power generation as a legitimate reason for lower environmental standards while these are not mentioned in Article 4.7. If under Article 4.3 Member States were empowered to designate in advance certain water bodies as “heavily modified” for future navigation or power generation, then such uses would be given an additional leverage, given that the conditions for new modifications under Article 4.7 are more stringent.

The initial characterisation of water bodies under Annex II to the WFD had to be carried out by December 2004 in the light of existing circumstances. The literal interpretation of the WFD, as well as the relevant Commission guidance shows that only those water bodies can be regarded as “heavily modified” where hydromorphological changes have already been effected rather than water bodies where such changes may occur in the future.[6]

(a) Timetable. Environmental objectives for each water body have to be set in accordance with the timetable contained in the WFD. Thus, by 22 December 2004 Member States had to carry out an initial characterisation of all water bodies, from 22 December 2006 a monitoring programme have to be implemented. By 22 December 2008 draft copies of the river basin management plans have to be published the containing environmental objectives at issue, while the river basing management plans with the final environmental objectives have to be adopted by 22 December 2009. The first review of the environmental objectives takes place under the update of the river basin management plan in 2015.

(b) Public participation. Setting the environmental objectives should take place with the broad involvement of the public. This requirement has a particular importance in the case of those derogations from “good water status” where socioeconomic considerations are of relevance. Public consultations, under the above timetable, on the river basin management plans setting the relevant environmental objectives have to take place as follows:

- by 22 December 2006: publication of the timetable and work programme for the production of the plan (Art. 14.1 (a));

- by 22 December 2007: presentation of the interim overview of the significant water management issues identified in the river basin (Art. 14.1 (b));

- by 22 December 2008: publication of the draft copies of river basin management plan (Art. 14.1 (c)).

Member States must allow at least for six months to comment in writing. Access to background documents and information used for the development of the plans has to be provided (also see section VII.2.4 below).

(c) International cooperation. The WFD provides for a close cooperation between Member States sharing river basins. Cooperation is not considered a bilateral issue, the common fulfilment of the environmental objectives is Community matter (recital (14)). To this end the Commission, upon request by Member States, provides guidance for the development of the relevant programme of measures. Should Slovakia and Hungary be unable to reach an agreement on the relevant environmental objectives either of the parties may report the issue to the Commission. The Commission has six months to respond to the substance (Art. 12).

(a) Under the Water Framework Directive the principal objectives of Community water policy are environmental objectives. These environmental objectives have to integrated into other policies that may affect waters, such as energy, transport, agriculture, fisheries, regional policy and tourism.

(b) The basic environmental objective with regard to every individual water body is the achievement or maintenance of good water status. Good water status is not an abstract objective, it is a status to be measures in the light of the ecological, hydrological and chemical parameters defined in Annex V to the WFD. The deadline for the achievement of good water status, as a general rule, is end 2015.

(c) The Water Framework Directive allows a series of derogations from the timely achievement of good water status. All such derogations are subject to conditions, the application of the derogations, their reason and the connected programme of measures have to be laid down in the river basin management plans.

(d) In setting the environmental objectives for the individual water bodies Member States must pay special attention to the water demand of protected areas, such as Natura 2000 sites and existing and future drinking water resources.

(e) Setting the environmental objectives have to be completed by the deadline specified in the Water Framework Directive. The relevant public has to be involved into this process. Where an issue relating to setting the environmental objectives cannot be resolved by the parties either of them may seek the intervention of the Commission.

III.3 Environmental objectives under the Community nature conservation regime

(a) The superiority of conservation objectives. Community legislation relating to water often aims to reconcile various competing – sometimes conflicting – interests linked to the use of water. On the contrary, the relevant Community nature conservation legislation – such as the Birds and the Habitats Directive – single out one particular goal: the favourable nature conservation status of these sites, and afford it absolute priority over other possible interests. The conservation status of a site – that is whether designation is necessary and what level of protection is needed – can be assessed exclusively in view of the objective ornithological and ecological criteria established by the directives. Consequently, the margin of appreciation by Member States in setting the nature objectives is rather limited.

(b) The system of nature conservation objectives. Conservation objectives under Community legislation appear in two parallel levels:

(i) protection of a common European heritage: under the two directives mentioned protection of the relevant sites is not exclusively the responsibility of the Member States concerned. As the Natura 2000 network is defined as “common European heritage”, Community law affords certain rights to the Community concerning the protection of the relevant sites at the expense of Member State autonomy in this respect.

(ii) Member States’ obligation to designate and protect Natura 2000 sites: the main conservation objective that Member States have to fulfil in relation to the Natura 2000 network is the designation and appropriate protection of sites.

(c) The limits to Member States’ appreciation. A particular focus of the below analysis is to explore the limits to Member States’ appreciation with regard to the designation of sites and the level of protection afforded thereto. In other words, does Slovakia or Hungary have the right to take into consideration any planned modification, extension of the hydro power plant in the designation and protection of Natura 2000 sites? The limits to Member States’ appreciation with regard to declassification of sites is discussed in Chapter V below.

(a) The purpose of designation: the purpose of designation of Natura 2000 sites is to establish a uniform, coherent European ecological network that enables the natural habitat types and the species’ habitats concerned to be maintained and restored at a favourable conservation statues at their natural range (Art. 3.1, Habitats Directive).

(b) The relevant consideration in the designation of sites: it follows that the considerations that can be taken into account in the designation are the conservation requirements. This constraints the margin of appreciation of Member States as follows:

(i) the criteria of designation are exclusively the ornithological criteria in Art. 4.1-3 of the Birds Directive and the ecological criteria in Annex III to the Habitats Directive.[7] In the designation procedure special attention has to be paid to priority habitat types or habitats hosting priority species, as defined in the relevant Annexes;

(ii) it follows that Member States have a margin of appreciation only within the framework of conservation objectives, that is how to best ensure a sufficient diversity and areas of habitats etc.[8] Consequently, all sites have to be designated that appear to be the most suitable for the conservation of the relevant habitat types and species;[9]

(iii) Member States are not authorised to take account of economic, social, recreational, etc. requirements in the designation despite the fact that these considerations appear in both the Birds Directive (Art. 2) and the Habitats Directive (Art. 2.3). The ECJ has consistently held that reference to these other requirements do not constitute an autonomous derogation from general system of protection established by the directives; they can play no role whatsoever in the designation;[10]

(iv) It follows that economic and social requirements cannot enter into consideration at the stage of designation even if these reasons would justify, at a later stage, the declassification of the site.[11]

(d) Consequences of non-designation: the obligation to designate the appropriate sites is an imperative requirement. Non-designation does not waive Member States from the obligation to take all measures necessary to protect the sites as if they had been designated.[12]

It must be pointed out that designation of sites can also be effected by a decision of the Council regardless of the lack of willingness of the Member State concerned. The decision is taken by unanimity upon a proposal by the Commission (Art. 5, Habitats Directive).

The objective of the measures to be taken in relation to Natura 2000 sites is to ensure the maintenance or restoration at a favourable conservation status of the habitat types or species concerned. To this end Member States must implement legal and substantive protective measures (Art. 6.1-6.2 of the Habitat Directive).

(a) Legal protection: appropriate legal protection entails designation of the sites as special protection areas or special areas of conservation. Designation leading to any other status – such as protected land under national law, state ownership of the site – is insufficient even if it ensures adequate protection on the ground as it is prejudices the establishment of a coherent European ecological network.[13]

(b) Substantive protection: the purpose of the substantive protective measures to be taken is twofold. On the one hand they have to prevent the deterioration or significant disturbance of the habitats and the species. On the other hand they have to ensure that the favourable conservation status is restored, if such restoration is indeed necessary. If need be, appropriate management plans have to be adopted for the sites. Even though the protection measures have to primarily correspond to the ecological requirements of the habitat types and of the species, relevant economic, social and cultural requirements, as well as regional and local characteristics have to be taken into consideration.

The protective measures have to be applied not only within the boundaries of the site but to the wider geographical extent as may be required by the protection requirements. In view of Member States’ duty to jointly protect the Natura 2000 network, the obligation to refrain from activities that may damage or significantly disturb the relevant sites apply to other Member States, in particular in the case protected aquatic ecosystems to upstream countries.

In the framework of the protective measures special attention has to be paid to priority habitat types, priority species and habitats hosting such species.

(a) With respect to the sites that form part of the Community’s nature conservation network “Natura 2000” the conservation objective is superior to any other objective or interest that may be relevant to the sites concerned.

(b) The Natura 2000 network is the Community’ common heritage, the protection of each site and of the integrity of the network is the joint responsibility of Member States.

(c) It follows from the superiority of conservation objectives that the margin of appreciation by Member States in the designation of sites and in selecting the management measures is rather limited.

(d) Thus, all sites have to be designated that appear to be the most suitable for the conservation of the relevant habitat types and species. Economic, social or recreational requirements – including navigation or power generation – cannot enter into consideration in the designation. That is to say that where the conservation needs with regard to a particular site can be identified Member States are not authorised not to designate such a site even if certain imperative socioeconomic reasons may justify the subsequent declassification of the site.

(e) Member States must ensure the adequate legal and substantive protection of Natura 2000 sites. The protective measures have to be defined in the light of the ecological demands of habitats and species. These protective measures have to be applied not only to the particular site but also to the wider geographical extent as may be necessary.

(f) Substantive protective measures must, on the one hand, ensure that no deterioration or substantial disturbance of the site occurs. Only those human activities can be allowed that do not jeopardise the ecological functions of the area. On the other hand, action must be taken in to achieve the favourable conservation status of the habitats and species by way restorative measures, if need be.

The previous chapter dealt with the environmental objectives that the parties have to fulfil in relation to the Gabcikovo-Nagymaros project.

The aim of this chapter is to explore that in order to fulfil those environmental objectives what action parties have to take, subject to the restrictions enumerated in Chapter V.

The type of measure to be taken varies significantly with the applicable Community legislation. While the Water Framework Directive provides for a broad range of planning, monitoring and intervention measures, the Community’s nature conservation regime, in light of more “passive” approach, requires action of a more limited scope.

(a) The principal goal of action: fulfilment of the environmental objectives. The principal obligation for action imposed on Member States under the WFD is the achievement of the environmental objectives (Art. 4.1). The actions Member States must take has no closed catalogue but must at least include the following:

- all measures necessary to prevent the deterioration of the status of water bodies;

- protection, enhancement and restoration of all bodies of surface waters with the aim of achieving of the applicable environmental objective;

(b) Application of derogations versus obligation to act. It is important to stress that application of the derogations listed in Section III.2.3 does not amount to a general exemption from the obligation to act. On the contrary: for each derogation concomitant environmental objectives have to set, that is good ecological potential and good chemical status for heavily modified and artificial water bodies (Art 4.3, Annex V), less stringent environmental objective than those otherwise applicable (Art. 4.5) or, for new modifications the least possible change to otherwise applicable objectives (Art. 4.7). Appropriate measures for the achievement of these environmental objectives have to be specified and undertaken by Member States.

Environmental objectives have to set for each water body in the relevant river basin management plan and programme of measures on the basis of the results of the initial characterisation, monitoring and consultations referred to earlier. Adoption of the river basin management plan and of the programme of measures is linked to the programming cycle of the WFD. Thus both documents have to be adopted by 22 December 2012 while the programme of measures have to be made operational by 22 December 2012 (see in detail Section III.2.4 above).

The type and scope of the necessary interventions can only be defined following the setting of environmental objectives. Without prejudice to such objectives it can be established that the parties have to take measures to ensure the environmental compatibility of

- all uses linked to the existing and operating installations, such as power generation, navigation, flood protection;

This in any case should imply the comprehensive revision of the operation of the Gabcikovo-complex and its adequate modification.

(a) The principal obligation for action imposed on Member States under the WFD is the achievement of the environmental objectives.

(b) Application of the derogations listed in Article 4.3-7 does not amount to a general exemption from the obligation to act. On the contrary: each derogation goes together with individual environmental objectives.

(c) The steps of meeting the environmental objectives – to be jointly set by the parties – have to be defined in the relevant river basin management plan and programme of measures on the basis of the results of the initial characterisation, monitoring and prior consultations, by 22 December 2009.

(d) All legislative and substantive measures providing for action in relation to the relevant sections of the Danube have to be in force by 22 December 2012.

(e) Under the programme of measures parties have to ensure the environmental compatibility of

- all uses linked to the existing and operating installations, such as power generation, navigation, flood protection;

As mentioned above with regard to Natura 2000 sites conservation objectives enjoy a status of superiority over all other considerations. In order to meet the conservation objectives legal and substantive protective measures have to be taken (see Section III..3.3 above). These measures must, on the one hand, guarantee the avoidance of damage to or significant disturbance of the site (passive protection) and, on the other hand, lead to a favourable conservation status (active management). The requirements concerning the avoidance of damage or disturbance are analysed in Chapter V below, this section provides a brief description of the obligations of Member States relating to the active management of Natura 2000 sites.

(a) The aim of active management measures: the aim of active management measures is to maintain or restore, at a favourable conservation status, of the relevant habitat types and species (Art. 2.2, Habitats Directive), and to maintain bird populations at a level which corresponds in particular to their ecological, scientific and cultural requirements (Art. 2, Birds Directive).

(b) The types of management measures: management measure are defined broadly in the Habitats Directive, the Birds Directive makes reference to the creation of protected areas and biotopes (Art. 3.2).

The principal types of management measures are summarised in Article 6.1 of the Habitats Directive as follows:

- management plans, if need be. Management plans can be stand alone instruments or be integrated into other development plans.

The content of the management measures has to be established in the light of the particular ecological needs of the actual Natura 2000 site on the basis of available scientific information.[14] In the definition of the management measures relevant economic, social and cultural requirements, as well as regional and local characteristics have to be taken into consideration.

IV.3.3 Active management of Natura 2000 sites in the region affected by the Gabcikovo-Nagymaros project

The Gabicikovo-Nagymaros project potentially affects a large number of Natura 2000 sites. Where protection of the site was already in place prior to the Natura 2000 designation, it is unlikely that new management measures will have to be introduced. As regards the newly established, sui generis Natura 2000 sites appropriate management measures have to defined.

The obligations of the parties with regard to the active management of Natura 2000 sites are not prima facie affected by the Gabcikovo-Nagymaros dispute. However, future changes to the operation of the installations in order to comply with applicable environmental objectives may necessitate the revision of existing management measures with regard to a number of sites.

(a) Even though the main focus of Community nature conservation regime is on the prevention of damage to or disturbance of habitats and species, it also provides for the adoption of active management, i.e. interventions by Member States.

(b) The aim of active management measures is to maintain or restore, at a favourable conservation status, of the relevant habitat types and species and to maintain bird populations at a level which corresponds in particular to their ecological, scientific and cultural requirements.

(c) The type of management measure can be chosen by Member States as they see appropriate, subject to the requirements of the Habitats Directive. The content of the management measures has to be established in the light of the particular ecological needs of the actual Natura 2000 site on the basis of available scientific information, taking account of the relevant economic, social and cultural requirements, as well as regional and local characteristics.

(d) The obligations of the parties with regard to the active management of Natura 2000 sites are not prima facie affected by the Gabcikovo-Nagymaros dispute. However, future changes to the operation of the installations in order to comply with applicable environmental objectives may necessitate the revision of existing management measures with regard to a number of sites.

V.3 Restrictions on new projects and plans under the Community’s nature conservation regime

The purpose of this chapter is to explore whether the environmental objectives described in Chapter III above – that is good water status or good ecological potential and the favourable conservation status of Natura 2000 sites – impose such restrictions on Member States’ freedom to carry out physical interventions in the environmental media concerned that prevent the construction or operation of certain new installations on the relevant sections of the Danube.

Restrictions on new investments (modifications) are laid down by Article 4.7 of the WFD and Article 4.8-9, and by Article 6.3 of the Habitats Directive.

(a) The derogation: as mentioned earlier the WFD provides for the achievement of the following environmental objectives by end 2015: (i) good surface water status, or good chemical status and good ecological potential for heavily modified or artificial water bodies, (ii) good quantitative status and good chemical status and (iii) those objectives that are required by the underlying Community legislation.

The WFD allows for derogation from these objectives subject to the general requirements of Article 4.8-9, on the one hand, and the specific conditions laid down in Article 4.3-7 on the other hand. Possible subjects of the derogation are as follows:

With regard to new modifications it is Article 4.7 that sets out the conditions for derogation. It must be noted that Article 4.7 does not provide an exemption from the requirements for protected areas.

In light of the foregoing the final agreement between the parties can provide for the construction and operation of such new installations (modifications) which:

- do not result in the deterioration of water status[15] and do not jeopardise the timely achievement of the environmental objectives; or

- if deterioration of water status is unavoidable, the new modifications meet the general requirements of Article 4.8-9 and the specific conditions of Article 4.7; moreover they do not jeopardize the timely fulfilment of the requirements applicable to protected areas.

(b) General conditions for new modifications resulting in the deterioration of water status (Art. 4.8-9): as mentioned above, derogations – in our case: new modifications to the physical characteristics of the water – can only be applied if

(a) it does not permanently exclude or compromise the achievement of the objectives of the WFD in other bodies of water within the same river basin district;

(b) it is consistent with the implementation of other Community environmental legislation;

(c) Specific conditions for new modifications resulting in the deterioration of water status (Art. 4.7): the specific conditions for new modifications to the physical characteristics of water bodies that result in the deterioration of water status are as follows:

(ii) lack of alternative: the beneficial objectives served by the new modification cannot for reasons of

be achieved by other means which are a significantly better environmental option.

(i) As regards the relevant reasons it must pointed out that no finite catalogue of the “imperative reasons of overriding public interest” exist. Given that in the context of the WFD no specific guidance has been issued analogy can be drawn from the Commission guidance document prepared on the same subject in relation to the Habitats Directive (92/43/EEC).[16] Under this document imperative reasons of overriding public interest are those which are indispensable:

- to protect fundamental values for citizens’ lives (health, safety environment);

- to fulfil specific obligations of public service within the framework of carrying out activities of an economic and social nature.

Whether or not the interest invoked is “overriding” in the context of a particular water body has to be examined in the light of the applicable environmental objectives.

“Benefits to human health, to the maintenance of human safety or to sustainable development” can be considered as an explanatory addendum to “imperative reasons of overriding public interest”. These unspecified benefits can only be taken into consideration in so far as it can be demonstrated they outweigh the general interest of maintaining good water status with respect to a specific water body.

(ii) Even if the presence of imperative reasons of overriding public interest or other benefits can be demonstrated, the new modification can only be carried out if for reasons of technical feasibility or disproportionate costs no such alternative means are available which are a significantly better environmental option.

(d) Protected areas, protection of drinking water resources: as repeatedly mentioned earlier Article 4.7 does not allow a derogation from the requirements applicable to protected areas. The Gabcikovo-Nagymaros project affects two different sets of protected areas: (i) Natura 2000 sites and (ii) areas designated under Article 7 of the WFD for existing or future abstraction of drinking water. As regards (i) Natura 2000 sites the WDF does not introduce new obligations, so suffice it to refer to Section IV.3.3 above. On the other hand with respect to (ii) drinking water resources Article 7.3 provides for the protection of these water resources with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required.

V.3 Restrictions on new projects and plans under the Community’s nature conservation regime

(a) Superiority of the conservation objective, declassification: as described above with regard to Natura 2000 sites conservation objectives enjoy a status of superiority over all other relevant interests under the Birds and Habitats Directive. To this end, regardless of socioeconomic interests, special areas of conservation and special protections areas have to be designated where ornithological and ecological conditions so require. Member States must ensure appropriate legal and substantive protection of the sites. The latter implies as a minimum the avoidance of damage to or serious disturbance of the site.

This strict protection can however be lifted in a procedure for the declassification of the sites under Article 6.3-4 of the Habitats Directive. Declassification is an exceptional measure: it can be effected only to the smallest necessary extent for the benefits of certain projects and plans serving public interest, following prior assessment. Declassification is designed to cater for small scale human interventions into nature rather than to large scale investments leading to the loss of extensive and complex network of protected areas.

It follows from the foregoing that the final agreement between the parties can provide for the construction and operation of such new installations (projects) which:

- do not result in damage to or the significant disturbance of designated Natura 2000 sites;

- if damage to or significant disturbance of Natura 2000 sites is unavoidable, the new installation is completed only following declassification of the sites concerned. Consequently, no such project can be considered for which the conditions of declassification cannot be met.

(b) The obligation to avoid damage or disturbance in relation to sites hosted by other Member States: it follows from the common responsibility of Member States to protect the Natura 2000 network (see Section III.3.1 (b) above) that the obligation to refrain from activities leading to damage to or significant disturbance of the sites applies not only to domestic sites but also to sites hosted by other Member States. Consequently, regardless of the outcome of the negotiations, both parties must refrain from any unilateral activity or intervention that may lead to damage to or the significant disturbance of Natura 2000 sites situated in the territory of the other state.

V.3.2 Assessment of the necessity of declassification (Art. 6.3). As mentioned earlier, declassification is an exceptional measures subject to a series of conditions laid down by the Habitats Directive. In the interpretation of the conditions attention must be paid to the jurisprudence of the ECJ and the relevant guidance documents issued by the Commission.[17]

(a) Relevant plans and projects: an assessment of the necessity of declassification has to be carried out with regard to (i) plans and projects (ii) which are not directly connected with or necessary to the management of the site and (iii) which either individually or in combination with other plans and projects are likely to have a significant effect thereon in view of the site’s conservation objectives.

(i) Definition of “plan” or “project”: plans and projects are not defined by the Habitats Directive. Plans and projects should include those defined by the two directives on the subject, that is the Environmental Impact Assessment Directive (85/337/EEC) and the Strategic Impact Assessment Directive (2001/42/EC), but may encompass other plans and projects as the case may be (see Section VII.5.1 (c) below);[18]

(ii) link with the Natura 2000 site: only those plans and projects, or their relevant parts, must be made subject to an assessment which are not directly connected with or necessary to the management of the site. It must be pointed out that a project or plan serving conservation purposes may have elements that are not directly connected to or necessary for site management. These project elements must undergo prior assessment as well.

It is important to note that plans and projects for which no declassification is required remain subject to the protection requirements of Article 6.3-4 of the Habitats Directive.

(iii) assessment of the significance of the likely effects: the significance of the likely environmental effects has to be assessed in view of the site’s natural characteristics and its conservation objectives. In the ECJ’s view those effects can be seen as significant which are likely to undermine the site’s conservation objectives. Evidently, all plans and projects must be seen to be of significance for which an assessment is already required by the Environmental Impact Assessment Directive or the Strategic Impact Assessment Directive.

In line with the precautionary principle, all effects must be assessed whose manifestation cannot be excluded. In the interpretation of the ECJ this means that the competent authorities have to make sure that on the basis of objective information “there remains no scientific doubt as to the absence of such effects”.[19]

In the above assessment not only the effects of the individual plan or project must be considered but also its possible cumulative effects with other plans and projects.

(b) The assessment procedure: the options for the prior assessment of the environmental effects are as follows. Where a project is subject to the Environmental Impact Assessment Directive an environmental impact assessment, where a plan is subject to the Strategic Impact Assessment Directive a strategic impact assessment has to be carried out with a special emphasis on nature conservation aspects. Where either of these directives apply a special sui generis assessment has to be conducted (see Section VII.5.1 above).

If the assessment reveals that no negative effects may arise as to the integrity of the site – that is the coherence of the ecological structure and functions of the site – the plan or project may be approved. In all other cases the site must undergo declassification as set forth in Section V.3.3.

(a) Declassification of Natura 2000 sites: where the assessment reveals that a plan or project is likely to have negative effects on the integrity of a Natura 2000 site, the plan or project can be approved only if all of the following conditions are met:

(i) the plan or project is required by imperative reasons of overriding public interest, including those of social and economic nature;

(ii) no alternative solutions exist which would better correspond to the conservation objectives;

(iii) compensatory measures can be implemented that ensure the overall coherence of the Natura 2000 network. Member States have to inform the Commission of the compensatory measures adopted.

(b) Declassification of Natura 2000 sites hosting priority habitat types and/or habitats of priority species: where the site concerned hosts priority habitat types and/or habitats of priority species declassification can be effected only if:

(iv) the reason for the plan or project relates to human health or public safety or to “beneficial consequences of primary importance for the environment”, or

(v) further to an opinion from the Commission, other imperative reasons of overriding public interest.

Ad (i), (iv) and (v) imperative reasons of overriding public interest: a reduction in the level of protection of any designated site can be justified only by reasons of outstanding public interest. These interests have no finite catalogue. The Habitats Directive refers to the protection of human health and public safety. The ECJ’s case law also recognises as such flood protection and the protection of the environment.[20] According to the relevant guidance document of the Commission imperative reasons of overriding public interest are those which are indispensable:

- to protect fundamental values for citizens’ lives (health, safety environment);

- to fulfil specific obligations of public service within the framework of carrying out activities of an economic and social nature.

Whether or not the interest invoked is “overriding” in the context of a particular site has to be examined in view of the conservation objectives of the individual site and the general interest in the maintenance of the Natura 2000 network as a common European heritage. As regards social and economic considerations it is only those interests can be taken into account that yield long-term benefits to society. Short terms economic interests, or the interest of companies do not enter into consideration.[21]

Where the plan or project is likely to affect Natura 2000 sites hosting priority habitat types and/or habitats of priority species the range of relevant considerations is restricted to those relating to human health or public safety or to beneficial consequences of primary importance for the environment. In exceptional cases Member States may refer to “other” imperative reasons of overriding public interest, but the presence of those interests have to be confirmed by the Commission in a prior opinion. Even though an opinion by the Commission has no binding force as such disregard for a negative opinion is likely to lead to the initiation of an infringement procedure.

In the context of declassification arises the question whether a Member State may justify any intervention to the integrity of a Natura 2000 site with the necessity to implement another Community policy. The conclusions of the ECJ in Commission v. France (C-96/98) are of relevance in this respect. The ECJ held that even if a certain lack of consistency between the various Community policies existed that still does not authorise a Member State extend to fulfil its obligations under the Birds Directive.[22] This all the more the case in the light of Article 6 of the EC Treaty which calls for the integration of environmental considerations into the definition and implementation of other Community policies.

Ad (ii) alternatives: all possible alternatives – including the zero option – have to be evaluated in the assessment procedure (Section V.3.2 above) in view of the relevant environmental parameters, such as the integrity of the sites concerned. In the evaluation of the alternatives special attention must be paid to the least damaging solution.

Ad (iii) compensatory measures: intervention into the site has to be confined to a strict minimum.[23] Furthermore, all compensatory measures have to be taken in order to ensure the overall coherence of the Natura 2000 network that have to be notified to the Commission.

According to the relevant Commission guidelines the aim of the compensatory measures is to offset the negative impact of the plan or project by way of, inter alia:

- recreating a habitat on a new or enlarged site, to be incorporated into Natura 2000;

- improving a habitat on part of the site or on another Natura 2000 site, proportional to the loss due to the project;

In order to ensure the overall coherence of Natura 2000, the compensatory measures proposed should:

- address in comparable proportions the habitats and species negatively affected;

- provide functions comparable to those which had justified the selection criteria of the original site.[24]

VI. COMMUNITY REQUIREMENTS CONCERNING THE PRIOR ASSESSMENT OF ENVIRONMENTAL EFFECTS

As a general principle Community law provides for the prior assessment of those human interventions into the environment that are likely to have significant effects thereon. The purpose of this chapter is to investigate how and to what extent Community provisions on the prior assessment of environmental effects are applicable to the resolution of the legal dispute.

As the question of public participation is discussed in detail in Chapter VII, the participatory rights under the relevant Community legislation are not addressed below.

Two pieces of horizontal environmental legislation address the prior assessment of environmental effects (see Section II.3 (a) above): the Environmental Impact Assessment Directive (85/337/EEC) and the Strategic Impact Assessment Directive (2001/42/EC). Strategic impact assessment (“SEA”) is concerned with the environmental screening of large scale plans and programmes setting out long-term development goals and conditions while the focus of environmental impact assessment (“EIA”) is the environmental effects of individual development projects.

Furthermore, Article 6.3 of the Habitats Directive provides for the appropriate assessment plans and projects which are likely to have significant effects on designated Natura 2000 sites (see Section V.3.2 above).

(a) Procedural nature: both the SEA and the EIA are of procedural nature. Their purpose is to provide sufficient information for the adequate environmental evaluation of the plans, programmes or projects at issue rather than introducing material limits to certain developments. Consequently, non-compliance with the directives trigger procedural sanctions: plans and projects approved in contravention of Community law will be void and unenforceable.

(b) The main elements of assessment: both the SEA and the EIA comprise two main elements as follows (i) the assessment itself (the scope, the subject, the methods and documentation of the assessment) and (ii) procedural guarantees of the decision-making (public participation, consultation with other authorities or Member States, decision on the environmental effects). The procedural guarantees are designed to ensure that all relevant factors and views be taken into consideration by competent authorities before a decision is made on the approval of the plan, programme or the project.

(a) Future interventions agreed upon in the final agreement by the parties: the final agreement between the parties leading to the resolution of the legal dispute is likely to contain a series of long-term interventions that are a typical subject of SEA. In addition, the final agreement may also provide for the completion of actual projects that are subject to EIA. Accordingly, the application of the two directives concerned is highly relevant in the context of the legal dispute.

(b) Priority of the national dimension: the primary subject of both the SEA and EIA procedures are plans, programmes or projects to be implemented at national or sub-national level. An exception to the national dimension is the international assessment procedure required once a plan, programme or project is likely to have transboundary effects between Member States. On the other hand however, neither of the directives provide for a procedure for cases where two Member States jointly undertake the implementation of plans, programmes or projects with significant environmental effects.

(c) The principal dilemma of application: in light of the foregoing the following principal dilemma of application can be identified. How can Member States reconcile the fact that the final agreement on the plans, programmes or projects is to be adopted at international level while most parts of the relevant assessment procedures are to be carried out at national level? The dilemma can be resolved along the following questions:

(ii) if it is so, how can Member States avoid the duplication of the procedure at international and national level?

(iii) if not, how can the parties nonetheless ensure that the findings of the impact assessments are indeed taken into consideration before the conclusion of the final agreement?

(d) The basic principle of analysis: in view of the “broad scope and wide purpose” of the two directives their provisions must be interpreted extensively. As the ECJ pointed out in relation to the EIA Directive (and adapted by the Commission to the SEA Directive)[25] the “broad scope and wide purpose” of the directives requires that no plan or project with likely significant environmental effects can go ahead without a prior assessment of thereof.

Below is a detailed analysis of the above questions in the context of the two directives.

The purpose of SEA is the prior environmental assessment of macro level development plans and programmes of the Member States. Directive 2001/42/EC determines:

- the rules of involvement of the public and other competent authorities (Art. 6);

Given that for the purposes of the present analysis the most relevant question is whether SEA is indeed required in the context of the final agreement between the parties, the remainder of the provisions is addressed only to the extent necessitated by the underlying question.

In view of the questions in Section VI.2.2 (c) application of the SEA Directive is discussed as follows:

(a) is the SEA Directive applicable to the relevant elements of the final agreement?

(b) regardless of question (a) what (other) aspects of the SEA Directive have to be considered at national level?

(a) The strategic impact assessment of the final agreement of the parties: the parties must carry out a prior SEA in relation to the final agreement leading to the resolution of the legal dispute if certain elements thereof are to be considered “plans” or “projects” under Article 2. (a) of the SEA Directive.

For any instrument to qualify as “plan” or “programme” certain conditions concerning content and formality have to be met.

(i) Content: under the relevant Commission guidance document plans and programmes are documents, act, measures that provide for the implementation of certain development goals or sets conditions for development purposes. The final agreement between the parties is likely to contain certain elements that meet these requirements.

(ii) Formal condition: only those instruments are considered as “plans” or “programmes” which are

- subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

The formal basis for the obligation for negotiation – and subsequently to conclude an agreement – by the parties is the 1997 judgement of the International Court of Justice. If this judgement can be regarded as a “legislative, regulatory or administrative provision”, the final agreement should consequently be regarded as a plan or programme. It follows from the “broad scope and wide purpose” of the SEA Directive that the obligation to undertake a prior assessment should be extended to the final agreement even if it is not strictly required by legislation or the relevant Commission guidelines.[26] It is suggested that should the parties remain unable to agree on the prior SEA of the final agreement they should refer the matter to the Commission for guidance.

(b) The strategic impact assessment of national plans and programmes to be amended as a result of the final agreement: the final agreement between the parties leading to the resolution of the legal dispute may trigger the amendment of plans and programmes already in place at national, regional or local level (development and spatial plans, etc.). The findings of the SEA of these plans and programmes will however be predetermined by the final agreement, undermining some of the fundamental goal of the Directive, notably that the assessment should be carried out sufficiently early to be able to influence the outcome of the planning process.[27]

Consequently, it is suggested that the future SEA of the final agreement should also cover the major relevant aspects of the lower level national and regional plans the amendment of which is necessitated by the conclusion of the final agreement.

(c) International strategic impact assessment under Article 7 of the SEA Directive: if any of the plans and programmes referred to in (b) above are likely to result in transboundary environmental effects international consultations have to be undertaken in accordance with Article 7 of the Directive. Given that the final agreement is par excellence about transboundary environmental effects, under a strict construction of the Directive an international consultation procedure should be carried out for the relevant Hungarian plans and programmes in Slovakia and for the Slovakian plans and programmes is Hungary. Such a manifestly superfluous procedure can be avoided by a prior SEA of the final agreement with the appropriate involvement of the public in both countries (also see (d) below).

(d) Coordination between the various levels of assessment: as appears from the above analysis the necessity of conducting a SEA arises in relation to a series of different plans and programmes. The SEA Directive aims to encourage the elimination of such overlaps as follows. Article 4.3 and 5.2-3 allow to delegate certain elements of the assessment to different levels of the hierarchy of plans and programmes or to use data obtained at other levels of decision-making if this helps avoiding duplications.

Consequently, the various overlapping assessments could be fully or partly omitted by way of an overall strategic impact assessment conducted, in accordance with the SEA Directive, in relation to the final agreement between the parties.

EIA plays a central role in the Community’s environmental policy. Its main goal is to subject all projects that are likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location, to an assessment with regard to their effects before development consent is given (Art. 2.1, EIA Directive). The results of the assessment and the related consultations have to be taken into consideration in the decision-making procedure (Art. 8).

- the range of projects subject to EIA and the procedure for screening of projects (Art. 1.1-2, 2.1, 4.1-3, Annex I-II);

- the obligation to carry out an EIA (Art. 2.1-2), the scope of assessment (Art. 3), the main elements of the environmental impact study (Art. 5, Annex V);

- the rules for consultations with other authorities (Art. 6.1), with the public (Art. 6.2-6, 9-10a) with other affected Member States (Art. 7);

Contrary to the SEA procedure, no uncertainties may arise as to the applicability of the EIA Directive to projects that may come under the ambit of the final agreement between the parties (see Section VI.4.2 (a) (iii) below). The below analysis addresses the following key issues of the Directive:

(a) the range of projects subject to EIA, the margin of appreciation by Member States to include or exclude certain projects;

(i) The relevant projects in general. As a starting point, all projects have to be made subject to an EIA which are “likely to have significant effects on the environment”. These include all projects listed in Annex I to the Directive and those listed in Annex II provided in the judgement of Member States they are likely to cause significant environmental effects. Under Article 4.2 such evaluation may take place by way of general criteria (typically specified in legislation) or case-by-case examination (screening). In the evaluation of the likely environmental effects the selection criteria in Annex III to the Directive have to be taken into consideration.

(ii) Change to or extension of existing projects. Modifications of existing Annex I projects where such a modification in itself meets the thresholds, if any, are subject to EIA (Annex I, point 22). Modifications of existing Annex I projects not meeting the thresholds contain therein on the one hand, and modification of Annex II projects on the other hand are subject to EIA only if they may have significant adverse effects on the environment (Annex II, point 13). The ECJ has repeatedly held that “splitting up” projects into elements below the threshold in order to avoid assessment amounts to a breach of Article 2.1 of the EIA Directive.[28]

(iii) Project relevant to the resolution of the legal dispute. Annex I and II contain a number of projects which, either as new developments or as modifications of existing projects, may form the subject matter of the final agreement between the parties. These project are, inter alia, as follows:

- 8. (a) inland waterways and ports for inland-waterway traffic which permit the passage of vessels of over 1 350 tonnes;

- 15. dams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic meters.

- 10. (f) inland-waterway construction not included in Annex I, canalization and flood-relief works;

- 10. (g) dams and other installations designed to hold water or to store it on a long-term basis (projects not included in Annex I);

As mentioned earlier an EIA has to be carried out with respect to all projects listed in Annex I while with respect to projects in Annex II the emergence of significant environmental effects has to be investigated individually. If it is likely that such effects emerge then EIA is mandatory.

(b) Exemption of certain projects from EIA: the Directive authorises, subject to conditions, Member States to exempt certain projects from EIA as follows:

- project serving national defence purposes, if the Member State deems that the application of the EIA Directive would have an adverse effect on these purposes. The reasons for exemption have to be examined for each individual case (Art. 1.4);

- projects adopted by national legislation, if the objectives of the Directive – including that of supplying information – are achieved through the legislative process (Art. 1.5);

- exceptional exemption of specific projects. In exceptional cases (not defined by the Directive) Member States may exempt a specific project in whole or in part from EIA, provided that the Member State

§ makes available to the public the information obtained under other forms of assessment, the information relating to the exemption decision and the reasons thereof;

§ informs the Commission, prior to granting consent, of the reasons of the exemption (Art. 2.3).

(c) The development consent: a decision by the competent authority of the final agreement between the parties: if as a result of the resolution of the legal dispute parties agree on the implementation of any of the projects in point (a) (iii) above, then a prior EIA must be conducted. It is less clear however what constitutes a “development consent”, that is, the actual decision by the competent authority on the approval of the project that should be preceded by an EIA. This dilemma is linked to the procedural guarantees of the EIA rather than the scope and content of the actual assessment (See Section VI.2.2 (b) above). Neither the case law of the ECJ, nor any Commission document provides guidance as to the appropriate incorporation of these guarantees into the present procedure.

The EIA of the projects to be implemented as a result of the resolution of the legal dispute may take place in line with the following options:

(i) Decision on the projects in the final agreement, subsequent EIA at national level. Elements of the option:

- the parties decide on the projects in the final agreement (type, size, location, capacity, etc.);

The main defect of such a solution is that the decision on the projects is taken in the final agreement which cannot be influenced by the subsequent EIA. Consequently, the parties would fail to meet some of the basic requirements of the Directive, such as the assessment must take place prior to the decision when all options are open, and that the results of the various consultations must be taken into consideration in the final decision. Accordingly, pro forma compliance with national legislation on EIA, even it is fully in line with the Directive, does not ensure full material compliance with the Directive.

(ii) EIA and national authorisation before the finalisation of the final agreement of the parties. Elements of the option:

- the parties set out the possible projects and their alternatives in a framework agreement;

- the parties conclude a final agreement in the light of the development consents issued under national law.

Even though this option complies with both the spirit and the letter of the Directive, the lengthy legal review procedures may unnecessarily prolong the finalisation of the agreement.

(iii) Subsequent amendment of the final agreement in light of the EIAs conducted at national level. Elements of the option:

- the parties decide on the projects in the final agreement (type, size, location, capacity, etc.);

- the agreement is amended in light of the development consents issued at national level.

The main shortcoming of such a solution is that subsequent amendment of the final agreement in light of the findings of the EIA may meet resistance by the parties.

(iv) Decision on the projects in the final agreement, exemption of the projects from national EIA provisions. Elements of the option:

- the parties exempt the relevant projects from the national EIA procedure and establish a sui generis assessment procedure for the projects;

- the parties decide on the projects in the final agreement following the completion of such a sui generis assessment (type, size, location, capacity, etc.).

Shortcoming of this solution may be strong public resistance, possible investigation by the Commission.

(d) The international EIA procedure: also relevant in the context of the legal dispute is the international EIA procedure provided for by the Directive. Article 7, in line with the 1991 UNECE Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention), requires Member States to cooperate in the case where a project subject to assessment in one Member State is likely to result in significant effects on the environment in the territory of another Member State.[30] The results of the international consultation procedure, to be conducted under Article 7, must be taken into consideration in the final decision.

The application of Article 7 of the EIA Directive largely depends on the decision of the parties as to the use of the various options in point (c) (ii)-(iv) above.

VI.5 Assessment of environmental effects under the Habitats Directive (92/43/EEC)

VI.5.1 Assessment of environmental effects under Article 6.3 of the Habitats Directive

(a) Introduction: as described in Section V.3.2 (b) above Article 6.3 of the Habitats Directive provides that „any plan or project not directly connected with or necessary to the management of [Natura 2000] sites but likely to have a significant effect there on, either individually or in combination with other plans or projects, [have to] be subject to appropriate assessment of its implications for the site”.

(b) The connection between the assessment under Article 6.3 of the Habitats Directive and the EIA and the SEA: the relevant Commission guidance documents provide that in the case where a plan or project is likely affecting a Natura 2000 site falls under the scope of the SEA or the EIA Directives then the SEA or EIA procedures must be followed.[31] Where, however, the proposed plan or project falls outside the scope of the two directives, a sui generis assessment (“appropriate assessment”) of the likely environmental effects has to be carried out.

(c) Main elements of the assessment under Article 6.3 of the Habitats Directive: Article 6.3 provides very little guidance as to the content and form of the assessment. The relevant Commission guidelines identify the following main elements (also see Section VI.3.2 below):

(i) The range of relevant plans and projects. The Habitats Directive does not define “plans” and “projects”. Even though the SEA and EIA Directives provide useful guidance in this respect, the two terms must be interpreted extensively in view of the conservation objectives of the Habitats Directive: all human interventions must be made subject to prior assessment that may have a significant impact on the site. This is particularly relevant in the context of the legal dispute as the broad provisions of the Habitats Directive provide an exit from the formal restrictions applicable to “plans” and “programmes” under the SEA Directive (see Section VI.3.2 (a) (ii) above).[32]

(ii) Consideration of cumulative effects. The assessment obligation applies not only to individual plans or projects but also to their cumulative effects. Thus the assessment cannot be avoided by way of splitting up the projects into pieces (cf. Section VI.4.2 (a) (ii) above).[33]

(iii) Procedural requirements of the assessment. Where assessment takes places outside the SEA or EIA procedures it must meet the following procedural requirements:

- timing of the procedure so that it precedes the decision on the approval of the plan or project.[34]

(iv) Content of the assessment. The assessment should cover all environmental effects that may arise in connection with the Natura 2000 site concerned. In the assessment attention must be paid to the effects of other plans and programmes. The effects must be evaluated in view of the conservation objectives and integrity of the site. The assessment should also extend to the examination of alternatives and possible mitigation measures.[35]

VI.5.2 Application of the the assessment under Article 6.3 of the Habitats Directive in the resolution of the legal dispute

The technical solutions or alternatives that may be considered in the resolution of the legal dispute are likely to affect a large number of Natura 2000 sites both in Slovakia and Hungary. Any such future intervention must be made subject to prior assessment either in the SEA procedure, the EIA procedure or under the Habitats Directive.

Assessment under Article 6.3 of the Habitats Directive – as a subsidiary measure – can come into play at least in following two cases:

(i) for the reasons of formal requirements neither the SEA nor the EIA procedures can be applied in relation to the final agreement between the parties;

(ii) the interventions at issues do not fall under the scope of either the SEA nor the EIA Directives.

The rights relating to public participation have started to emerge in a considerable way during the 1990s in the international and Community environmental legislation. The basic international instrument concerning public participation is the 1998 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters.[36] Even though the environmental acquis already provided for public participation before, the signature by the Community of the Aarhus Convention triggered comprehensive revision of the relevant legislation.

(a) Forms of public participation: in line with the categorisation employed by the Convention Community law distinguishes the following forms of public participation:

(i) Public participation in environmental decision-making. Community legislation provides for public participation at two different levels of environmental decision-making. On the one hand, public participation extends to the preparation and adoption of plans, programmes, concepts, etc. with an impact on the environment. On the other hand, it provides a framework to comment on or to seek judicial review of the decisions of authorities on projects with likely significant effects on the environment. In the context of public participation soft commitments on Member States also emerge that call for the “active involvement” of the public concerning the implementation of certain legislation (e.g. Art. 14.1, Water Framework Directive).

(ii) Access to environmental information. Most information relating to the environment held by or for public authorities are to be made accessible for anyone without having to state an interest. Besides providing access on request, Member States are also required Community environmental legislation to collect and disseminate environmental information to the wider public.

(iii) Access to justice. Adequate enforcement of the above forms of participation is guaranteed by the right of all legitimate participants to administrative or judicial review against the decisions of the competent authorities.

(b) Relevant legislation: the general rules of public participation are determined by specific Community legislation on the subject while certain additional requirements are laid down by legislation concerning specific areas of Community environmental policy.

- the Strategic Impact Assessment Directive (2001/42/EC) with regard to plans and programmes on the environment (decision-making);

- the Environmental Impact Assessment Directive (85/337/EEC) with regard to projects with likely significant effects (decision-making, access to justice);

- Directive 2003/35/EC with regard to certain plans and programs required under Community law (decision-making, access to justice);

- the Access to Information Directive (2003/4/EC) with regard to the access to environmental information;

- under adoption is the proposal for a directive on the access to justice in environmental matters.[37]

- additional requirements on public participation and on access to information are laid down in the Water Framework Directive (2000/60/EC).

VII.2.1 The general scheme of access to decision-making. Based on the Aarhus Convention a general scheme for participation in environmental decision-making has emerged, the elements of which appear in the relevant Community legislation. The most comprehensive manifestation of this scheme can be found in Article 2 of Directive 2003/35/EC (which is of limited relevance to the legal dispute) as follows:

- obligation to provide an early and effective opportunity for the public to participate in decision-making;

- obligation to ensure that formal comments can be made when all options are open;

- consideration in the final decision of the comments by the public and the results of the international consultation, where applicable,

The below analysis address only those elements of access to decision-making which go beyond than or differ from those enumerated above.

(a) Participation in the strategic impact assessment procedure under the SEA Directive. The rules of access to decision-making in the strategic impact assessment procedure are laid down by Articles 6-9 of the SEA Directive. In comparison with the above general scheme the Directive:

- extends the “public concerned” to environmental non-governmental organizations;

- provides for the simultaneous commencement of national and international consultations;

(b) Application of the rules concerning access to decision-making in the resolution of the legal dispute. Application of the participatory provisions in point (a) above largely depends on the application of the SEA Directive to the final agreement between the parties (see Section VI.3.2 above).

If a strategic impact assessment is carried out with respect to the final agreement, participation of the public concerned have to ensured by the parties in relation to all elements of the agreement that can be considered as “plans” or “programmes” under the SEA Directive. It is suggested that the SEA be conducted in both countries simultaneously in order to avoid a duplicate international consultation procedure under Article 7 of the Directive.

If no strategic impact assessment is carried out with respect to the final agreement only with respect to lower level national plans and programmes, the national assessment procedures have to include an international consultation element, as appropriate.

(a) Participation in the environmental impact assessment procedure under the EIA Directive. The EIA Directive contains the following additional elements vis-à-vis the general scheme in Section VII.2.1:

- extends the “public concerned” to environmental non-governmental organizations (Art. 1.2);

- defines the scope of information to be published at the initial phase of the procedure (Art. 6.2-3);

- defines the scope of information to be published on the decision taken and its reasons (Art. 9).

(b) Application of the rules concerning access to decision-making in the resolution of the legal dispute. Similarly to the SEA, application of the participatory provisions in point (a) above largely depends on the application of the EIA Directive to the final agreement between the parties (see Section VI.4.2 above). With regard to projects with likely environmental effects in the territory of both countries conducting a joint EIA would render international consultations under Article 7 superfluous. In all other cases the parties must consider the necessity of international consultations.

VII.2.4 The specific rules of public participation in decision-making under the Water Framework Directive

(a) The specific rules of public participation in decision-making under the Water Framework Directive. The grand programme of the WFD to achieve good water status in the Community is to be completed with the broad involvement of the public (recital (14) and (46). To this end it lays down specific rules for public participation in the implementation of the Directive in the widest sense. The specific rules on access to decision-making can be divided into two groups:

The public consultation measures taken, their results and the changes to the plan made as a consequence have to be summarised in the river basin management plans (Annex VII, point A 9.).

(i) Participation in the planning cycle of the WFD. As mentioned the WFD establishes a detailed planning cycle. Some phases of this planning cycle specifically require consultations with the public (work programme for the production of the river basin management plan, draft river basin management plan, etc., see Section III.2.4 (b) above). The relevant provisions of Article 14.1-2 do not specify a particular format for the involvement of the public but requires Member States to allow at least six months for the public to comment in writing. As to the actual format, content, frequency, etc. of the consultations guidance is provided by the relevant Commission document.[38]

(ii) “Active involvement” of the implementation of the WFD. Article 14.1 requires Member States “to encourage the active involvement of all interested parties in the implementation of [the] Directive”. According to the relevant Commission guidance document this implies that Member States should provide the public with opportunities to participate in all steps all implementation from the initial characterisation to the updates of river basin management plans.[39]

(b) Application of the rules concerning access to decision-making in the resolution of the legal dispute. Resolution of the legal dispute is closely linked to the implementation of the WFD, and in particular to the production and adoption of river basin management plans and the related programme of measures. Consequently, the rules of the WFD concerning public participation must be applied, as appropriate, to all steps in the process leading to the resolution of the legal dispute, with a particular focus on the establishment of the relevant environmental objectives and the adoption of the measures necessary to meet these objectives.

VII.3.1 The general rules of access to environmental information under Directive 2003/4/EC

(a) General rules of access to environmental information. Access to information is regulated by Directive 2003/4/EC along the following key issues:

(i) Environmental information (Art. 2.1): the definition of environmental information is extremely broad, it contains – regardless of form – all information that relates to the state of the elements of the environment, measures, plans, policies affecting the environment, reports on the implementation of these measures, studies and assessments used within the framework of these measures, information on the state of human health and safety, etc.

(ii) Public authorities (Art. 2.2): public authorities that are subject of the Directive include government or other public administration bodies (including public advisory bodies); natural or legal persons performing public administrative functions (including providing services) in relation to the environment; any other natural or legal persons having public responsibilities (including providing services) in relation to the environment under the control of an administrative body.

(iii) Provision of access to environmental information (Art. 3.1-3): public authorities are required to make available environmental information held by or for them to any applicant at his request and without having to state an interest. The information must be made available as soon as possible but within one month at the latest, except for environmental information whose volume or complexity requires a longer – maximum two month long – timeframe.

(iv) Refusal of request for access to environmental information (Art. 3.4, 4): the Directive specifies the grounds which justify the legitimate refusal of a request for access to information. The most relevant grounds for refusal are as follows:

- the request concerns material in the course of completion or unfinished documents or data. In such a case the applicant must be informed where and when the material sought will be available;

- the request concerns internal communications, taking into account the public interest served by the disclosure;

- the request would adversely affect the confidentiality of the proceedings of public authorities where this is provided for by law;

- the request would adversely affect international relations, public security or national defence;

- the request would adversely affect the confidentiality of commercial or industrial information.

Refusal of the request must be made in writing, specifying the reasons thereof. The grounds for refusal must be interpreted in a restrictive way, taking into account the public interest served by the disclosure. No request can be refused for information relating to emissions into the environment.

(v) Charges (Art. 5): access to public registries containing environmental information, as well as on site examination of environmental information must be provided free of charge. Supply of environmental information by other means can be made subject to a reasonable charge.

(b) Application of the rules concerning access to information in the resolution of the legal dispute. The above rules are applicable to all environmental information that may emerge in the context of the negotiations between the parties except where refusal can be justified on the grounds listed in Article 3. It must be noted that access to information must be provided not only by the competent authorities but also public service providers, such as the company operating the Gabcikvo complex. The following data are, inter alia, to be considered as publicly accessible information:

- decisions by the competent authorities on the interventions in the affected region;

- background documents of the negotiations of the parties (unless classified as confidential);

- studies, assessment, reports, measures etc. concerning or necessary for the implementation of the relevant Community legislation, in particular measure on the designation of Natura 2000 sites, implementation reports of the WFD, etc. (see Section VII.3.2 below).

VII.3.2 Specific rules concerning access to environmental information under the Water Framework Directive

(a) Specific rules concerning access to environmental information under the Water Framework Directive. The general rules of Directive 2003/4/EC are supplemented by the special provisions on access to information contained in Article 14.1 of the WFD and point 11 in its Annex VII. Under these provisions, on request, access must be provided to background documents, to information used for the development of the river basin management plans, the control measures adopted and monitoring data gathered. “Background documents” contain as a minimum the full version of the documents whose summary must be included in the river basin management plans under Annex VII to the WFD.[40]

(b) Application of the rules concerning access to information in the resolution of the legal dispute. The above referenced rules of the WFD provide useful guidance for the interpretation of the general rules of access to information in the resolution of the legal dispute. These rules clarify that the documents produced at the various states of the planning cycle of the WFD are publicly available environmental information.

(a) Access to justice in relation to EIA. Article 10 a of the EIA Directive provides that Member States must ensure access to administrative and judicial review by those whose rights or legitimate interests are concerned by the development consent. Non-governmental environmental organisations are to be provided with automatic locus standi. The basic requirement concerning such review procedures is that they have to be fair, equitable, timely and not prohibitively expensive.

(b) Application of the rules concerning access to justice in the resolution of the legal dispute. Adequate access to justice has to be provided by the parties in the EIA procedure, regardless of which of options listed in Section VI.4.2 (c) should parties eventually chose. The time requirements of these review procedures should be taken into consideration in setting the overall timeframe for negotiations and implementation.

VII.4.2 Access to justice under Directive 2003/4/EC on access to environmental information

(a) Access to justice in relation to the provision of environmental information. Where the request of any applicant for environmental information has been ignored, wrongfully refused (whether in part or full), inadequately answered or otherwise not dealt with the applicant must have access to administrative and, subsequently, to judicial review under Directive 2003/4/EC.

(b) Application of the rules concerning access to justice in the resolution of the legal dispute. In the resolution of the legal dispute access to justice for the wrongful refusal of environmental information must be provided, regardless of which body is the holder of the relevant environmental information.

- C-44/95, Regina v. Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds

- C-127/02, Landlijke Vereniging tot Behoud van de Waffenzee et Nederlandse Vereniging tot Bescherming van Vogels

European Commission: Guidelines for the Assessment of Indirect and Cumulative Impacts, 1999

European Commission: Managing Natura 2000 Sites: The provisions of Article 6 of the „Habitats” Directive 92/43/EEC, 2000

European Commission: Implementation of Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment, 2001

European Commission: Guidance on Public Participation in relation to the Water Framework Directive, 2002

European Commission: Assessment of plans and projects significantly affecting Natura 2000 sites, Methodological guidance on the provisions of Article 6 (3) and (4) of the Habitats Directive 92/43/EEC, 2002

European Commission: Commission Communication to the European Parliament and the European Ombudsman on Relations with the Complainant in respect of Infringements of Community Law, COM (2002) 141 final

European Commission: Guidance Document on Identification and Designation of Heavily Modified and Artificial Water Bodies, 2003

European Commission: Identification and Designation of Heavily Modified and Artificial Water Bodies, Policy Summary to the HMWB & AWB Guidance Document, 2003

[1] At present there is no Community legislation concerning quantitative management of water resources.

[2] C-96/98, Commission v. France, para 40.

[3] The relevant Community guidelines interpret “artificial” in a restrictive way: only those bodies of surface waters can be considered “artificial” which did not exits prior to human intervention. Modifications to exiting water bodies does not qualify. CIS Guide No. 4, page 15.

[4] The detailed conditions of designation are explained in CIS Guide No. 4, page 12-14, 19-23.

[5] The detailed procedure of designation is set out in CIS Guide No. 4, page 19-52.

[6] Identification and Designation of Heavily Modified and Artificial Water Bodies, Policy Summary to the HMWB & AWB Guidance Document (CIS Working Group 2.2), 2003, page 4.

[7] C-44/95, Regina v. Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds, para 26.

[8] C-355/90, Commission v. Spain, para 23.; C-44/95, Regina v. Secretary of State for the Environment, ex parte… para 19.

[9] C-3/96, Commission v. The Netherlands, para 62.

[10] C-44/95, Regina v. Secretary of State for the Environment, ex parte… para 25, 27.

[11] C-44/95, Regina v. Secretary of State for the Environment, ex parte… para 31, 40, 41.

[12] C-355/90, Commission v. Spain, para 22.

[13] C-3/96, Commission v. The Netherlands, para 58.

[14] Managing Natura 2000, page 20.

[15] Deterioration of water status means a change of water status for a lower category set forth in Annex V to the WFD (high, good, moderate).

[16] European Commission: Assessment of plans and projects significantly affecting Natura 2000 sites, Methodological guidance on the provisions of Article 6 (3) and (4) of the Habitats Directive 92/43/EEC, Luxembourg, Office for Official Publications of the European Communities, 2002; page 42-43.

[17] European Commission: Managing Natura 2000 Sites: The provisions of Article 6 of the „Habitats” Directive 92/43/EEC, Luxembourg, Office for Official Publications of the European Communities, 2000;

European Commission: Assessment of plans and projects significantly affecting Natura 2000 sites, Methodological guidance on the provisions of Article 6 (3) and (4) of the Habitats Directive 92/43/EEC, Luxembourg, Office for Official Publications of the European Communities, 2002.

[18] C-127/02, Landelijke Vereniging tot Behoud van Waddenzee és Nederlandse Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij, para 24-25. Also see Managing Natura 2000 Sites, Section 4.3.

[19] C-127/02, Landelijke Vereniging tot Behoud van Waddenzee és Nederlandse Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij, para 42, 49, 59, 67.

[20] C-57/89, Commission v. Germany, para 23.

[21] Managing Natura 2000, page 43-44.

[22] C-96/98, Commission v. France, para 40.

[23] C-57/89, Commission v. Germany, para 23.

[24] Managing Natura 2000, page 45-47.

[25] C-127/02, Landelijke Vereniging tot Behoud van Waddenzee és Nederlandse Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij; European Commission: Assessment of plans and projects significantly affecting Natura 2000 sites, Methodological guidance on the provisions of Article 6 (3) and (4) of the Habitats Directive 92/43/EEC, page 5

[26] European Commission: Implementation of Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment, page 8.

[27] European Commission: Implementation of Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment, page 21, 25.

[28] C-431/92, Commission v. Germany; C-435/97, WWF and others v. Autonome Provinz Bozen and others.

[29] Potentially also see Annex I 8. (a), (b), 12. (a), (b), 20; Annex II 1. (c), (d), 10. (c), (m).

[30] The Member State of origin must inform the competent authorities of the receiving Member State about the projects as soon as possible but no later then its own public. The receiving Member State has to ensure the appropriate participation of its own public and competent authorities in formulating the national position on the project.

[31] European Commission: Managing Natura 2000 Sites: The provisions of Article 6 of the „Habitats” Directive 92/43/EEC, page 35, Section 4.5; European Commission: Implementation of Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment, page 52, points 9.22.

[32] Managing Natura 2000 Sites, page 31, Section 4.3.

[33] Managing Natura 2000 Sites, page 35, Section 4.4.3.

[34] Managing Natura 2000 Sites, page 36, Section 4.5.1.

[35] Managing Natura 2000 Sites, page 37-38, Section 4.5.2.

[36] UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

[37] Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters (COM (2003) 624 final).

[38] European Commission: Guidance on Public Participation in relation to the Water Framework Directive, 2002, pages 42-49.

[39] Guidance on Public Participation, pages 31-42. The documents makes recommendations as to the form and content of public involvement.

[40] Guidance on Public Participation, page 50.

The Role of European Community Environmental Law

in the Resolution of the Legal Dispute relating to the Gabcikovo-Nagymaros Project