§3.2.6 Further considerations: consultations, quality of the appropriate assessment, access to justice

Consultations Consultations with experts, other authorities, NGOs, potentially affected groups or the general public can improve the environmental information available to those carrying out the appropriate assessment and to decision-makers, e.g. by identifying environmental effects or designing suitable mitigation measures. Consultations can also help minimise potential conflicts and delays. Consultation with relevant authorities, experts in biology or ecology as well as with representatives of relevant industries and policy sectors, stakeholders and NGOs during the procedures laid down in Article 6(3) improves the availability of information and the consideration of different points of view. Nature conservation and sectoral authorities should cooperate during the assessment process to ensure that: (i) the appropriate assessment is based on the best available information and experiences; and (ii) all relevant aspects are properly taken into account. Public participation in the Article 6(3) procedure The Habitats Directive does not contain an explicit obligation to obtain the opinion of the general public when authorising plans or projects requiring an appropriate assessment. According to the wording of Article 6(3) this has only to be done if it is ‘considered appropriate’. However, the Court has clarified that, on the basis of the requirements of the Aarhus Convention (34) , the public concerned, including recognised environmental NGOs, has the right to participate in the authorisation procedure (C-243/15 paragraph 49). This right involves in particular, ‘the right to participate “effectively during the environmental decision-making” by submitting, “in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity”’ (C-243/15, paragraph 46). See further details in the Article 6 Guide – section 4.7.2. When the appropriate assessment is coordinated or runs jointly with the environmental impact assessment (EIA) / strategic environmental assessment (SEA), it can also benefit from the necessary provisions regarding public participation under those directives. However, it is important that the results of the appropriate assessment are distinguished and distinct from those of the EIA/SEA. This is required to ensure the correct application of Article 6(3), second sentence (authorisation can only be given after having ascertained that it will not adversely affect the integrity of the site concerned). The EIA Directive (Article 6) requires the Member States to: (i) ensure consultation of relevant authorities; and (ii) provide for early and effective opportunities to inform the public and allow the public concerned to participate in the environmental decision-making procedure. This includes the setting of reasonable time frames for different phases of participation. Similar requirements are set out in Article 6 of the SEA Directive. Public participation under the EIA and SEA Directives EIA Directive Preamble: — Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken. — Participation, including participation by associations, organisations and groups, in particular non-governmental organisations promoting environmental protection, should accordingly be fostered, including, inter alia, by promoting environmental education of the public. — Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being. Article 6 of the Aarhus Convention provides for public participation in decisions on activities not so listed which may have a significant effect on the environment. Article 6(2): In order to ensure the effective participation of the public concerned in the decision-making procedures, the public shall be informed electronically and by public notices or by other appropriate means, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided: SEA Directive Preamble: In order to contribute to more transparent decision making and with the aim of ensuring that the information supplied for the assessment is comprehensive and reliable, it is necessary to provide that authorities with relevant environmental responsibilities and the public are to be consulted during the assessment of plans and programmes, and that appropriate time frames are set, allowing sufficient time for consultations, including the expression of opinion. Article 6(4): Member States shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned. Ensuring the quality of the appropriate assessment As stated previously, the appropriate assessment must be based on the best scientific knowledge in the field. Accordingly, the appropriate assessment must be prepared by a person or persons with the requisite ecological expertise and experience. The study should be supplemented as necessary by additional expertise and experience (e.g. geology, hydrology, engineering or planning, environmental law) and produced in a scientifically complete, professional and objective manner. While the study to inform the appropriate assessment will generally be submitted by those seeking approval for a plan or project, competent authorities should satisfy themselves that it demonstrates sufficient expertise, scope and focus in relation to the ecological or other issues (e.g. hydrological) concerned, and sufficient competence and standards in scientific methodology and impact assessment. In order to comply with these quality requirements, some countries have adopted a certification scheme or qualification/authorisation system for those who undertake the appropriate assessment study (see box 14). Ensuring quality of the environmental impact assessment report in the EIA Directive In order to ensure the completeness and quality of the environmental impact assessment report: (a) the developer shall ensure that the environmental impact assessment report is prepared by competent experts; (b) the competent authority shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report; and (c) where necessary, the competent authority shall seek from the developer supplementary information, in accordance with Annex IV, which is directly relevant to reaching the reasoned conclusion on the significant effects of the project on the environment. Member States shall, if necessary, ensure that any authorities holding relevant information, with particular reference to Article 3, make this information available to the developer. (Article 5(3) and (4) of the EIA Directive) Box 14 Use of licenced experts for appropriate assessment in Czechia In the Czechia, only licensed experts are allowed to carry out appropriate assessments (AA). The licensing system is anchored in the Act on Nature Protection and details are specified in a ministerial decree. The first basic criterion for obtaining a license is to have a degree in biology or ecology or state exam in ecology. No derogation from this rule is allowed as experience from the field has shown that knowledge of ecology is an essential prerequisite for correct assessments. The authorisation exam consists of a written test on ecology, zoology, botany and national law (the latter is linked to AA and EIA/SEA issues) and an oral presentation of a case study. The exams take place approximately twice a year and the standard is set rather high, with a special emphasis on knowledge in ecology. Successful candidates are granted a license by the Ministry of Environment (MoE) for 5 years. The licensing scheme has had a positive spin-off in terms of making improvements to the overall AA process. The licensed assessors organise regular meetings to share experiences and discuss difficult cases. In view of this the Ministry of Environment commissioned a number of practical guidance documents from them to improve the AAs and ensure a consistent approach. Regardless of whether Article 6(3) is complied with through existing environmental impact assessment procedures or other specific approaches, the results of Article 6(3) assessments should allow full traceability of the decisions eventually made. Box 15 Elements for ensuring quality of the appropriate assessment The assessment: — considers all elements contributing to the Natura 2000 site’s integrity as indicated in the site’s conservation objectives, management plan (where available) and Standard Data Form and the importance of habitats and species concerned in the context of network, and is based on best available scientific knowledge in the field; — considers the role of the site and its function within the biogeographical region and the ecological coherence of the Natura 2000 network; — includes a comprehensive identification of all the potential impacts of the plan or project likely to be significant on the site, taking into account cumulative impacts likely to arise as a result of the combined effects of the plan or project under assessment with other plans or projects; — if appropriate, incorporates effective mitigation measures into the plan or project, in order to avoid, reduce or even cancel the negative impact on the site; — applies the best available techniques and methods to estimate the extent of the effects of the plan or project on the ecological integrity of the site(s); — includes the robust indicators to monitor the plan or project implementation. To meet the requirements of the Article 6(3) assessment, the Natura 2000 authorities may draw up formal specifications on the type of information and criteria to follow when carrying out the appropriate assessment. It is highly recommended that good practice sharing and training be given to all those concerned by the appropriate assessment (e.g. relevant statutory authorities at all levels of government, consultants, project or plan developers). Box 16 Example of contents of the appropriate assessment report Description of the plan or project Aim, scope, location, main activities Natura 2000 sites likely to be affected and their conservation objectives Outline of the Natura 2000 sites likely to be affected, the species and habitats for which they are designated and their conservation condition, as well the conservation objectives of the sites. Assessment of the effects of the plan or project on the integrity of the site — Describe the elements of the plan or project (alone or in combination with other projects or plans) that are likely to cause significant effects on the Natura 2000 site (use outcomes of the screening assessment). — Describe how the plan or project will affect species and habitats protected in the site, and the implications for the site’s conservation objectives (e.g. loss of habitat, fragmentation, disturbance to species, mortality of species, chemical changes, hydrological or geological changes). Acknowledge uncertainties and any gaps in information. — State whether the integrity of the site will be affected by the plan or project or not. — Acknowledge uncertainties and any gaps in information. Mitigation measures — Describe what mitigation measures are to be introduced to avoid or reduce the adverse effects on the integrity of the site and demonstrate their effectiveness in reducing the impact below significance. — Acknowledge uncertainties and any gaps in information. — Outline intended monitoring. Conclusion State whether the integrity of the site might or will be affected by the plan or project or that it certainly will not (having regard to the precautionary principle). Sources used when drawing up the appropriate assessment Indicate sources of information used Results of consultation Name of agencies, bodies or experts consulted Summary of responses Access to justice The Court of Justice of the European Union has also recognised the right of the public, which includes environmental organisations, to challenge the appropriate assessment decisions taken by authorities (Case C-243/15, paragraphs 56-61), including on the validity of the conclusions drawn from the assessment as regards the risks of that plan or project for the integrity of the site.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07