In an further attempt to respond to EU Commission concerns about deficiencies in Slovakia’s implementation of the Directive 2011/92/EU (“Directive”), a new amendment has been proposed. The wording of the proposal indicates that the elimination of shortcomings will also include an increase in the number of projects which fall under the scope of Act No 24/2006 Coll. on environmental impact assessment (“Slovak EIA Act”).
If this proposal is adopted, any project concerning crude oil refineries would mandatorily be subject to EIA, regardless of its actual processing capacities. The currently valid threshold capacity of 500 tonnes or more per day would, after enactment, only apply to facilities for the regeneration of waste mineral oils.
This necessary implementation will of course impact all new projects and changes in already approved projects concerning crude oil refineries. Once adopted, it will be necessary to submit specific information in an appropriate form (intention) to the competent authority and undergo time consuming proceedings. Furthermore, in the event of final approval, the operator of the refinery would also be obliged to carry out a post-project analysis, leading to additional considerable expenses.
On top of the requirements set forth in the Slovak EIA Act, the applicant (in most cases a developer) also needs to take into account that the relevant public has the right to submit objections and remarks in the course of the spatial planning proceedings. This would further exacerbate and extend the already prolonged process, since the competent authority has no other choice but to deal with these objections. Neglecting public objections would most likely result in a court judgment invalidating the relevant decision as being in violation of procedural law and would force the entire process to be redone.
Therefore there is no doubt that enacting the proposed amendment would pose a significant, if not insurmountable, burden on companies in this sector.
Insofar as a proper implementation of the Directive is necessary for the Slovak Republic to receive EU funds, the adoption of the amendment is presumably unavoidable. Indeed, failure to fulfill this task by 31 December 2016 may lead to the suspension of all or some interim payments from the European Structural and Investment Funds.
However, we are deeply concerned that the proposed amendment in its current form does not address all issues expressly stated in the notice issued to the Slovak Republic. It seems that the Slovak EIA Act is still lacking provisions which would oblige courts to decide in a timely manner on the legality of administrative decisions and omissions. This therefore raises the significant question of whether the EU Commission will deem this attempt as sufficient to meet the conditions laid down in Part II of Annex XI to EU Regulation No 1303/2013.
If the amendment is adopted by the National Council of the Slovak Republic, it will enter into force on 1 January 2017.