On 13 December 2011, the new European Directive No. 2011/92/EU on the assessment of the effects of certain public and projects on the environment (hereinafter as the “EIA Directive”), which codified the previous regulation, entered into force. Not for the first time, in April 2013 the European Commission initiated an infringement procedure against the Czech Republic due to the incorrect transposition of the aforementioned Directive that is carried out by Act No. 100/2001 Coll., on environmental impact assessment (hereinafter as the “EIA Act”). The most essential objectives of the European Commission to the national legislation consist in the fact that besides other things (i) the EIA procedure in the Czech Republic does not result in a separate administrative decision with binding effect for the follow-up zoning/building-permit proceedings according to the Czech Building Code that might lead to certain changes in the assessed projects in such proceedings that no longer meet the original EIA requirements, (ii) the provisions of the EIA Directive also are not applied in the follow-up proceedings according to the Czech Building Code, (iii) the “public concerned” is not explicitly and sufficiently defined and, moreover, the public concerned is not sufficiently involved in the EIA procedure, and (iv) the proper judicial protection for the EIA procedure’s participants is not guaranteed.
In its formal notice of 25 April 2013, the European Commission required rectification of the aforementioned deficiencies in Czech regulation by 31 December 2014, otherwise substantial financial penalties amounting to millions of Euros might be imposed on the Czech Republic. Besides that, European Union grants might be frozen until the situation is remedied. In order to prevent such negative consequences and to duly comply with the European legislation, the Czech Parliament has been debating the amendment to the EIA Act since September 2014. Notwithstanding the deadline set in the Commission’s notice, the Parliament’s Lower Chamber Parliament approved the amendment on 12 December 2014 and the Upper Chamber debated it on 16 January 2015 and returned it to the Lower Chamber with several amendatory proposals. The newly amended EIA Act shall enter into force as of 1 March 2015, which, hopefully, will be still in due time for the European Commission.
The substantial changes to the EIA Act carried out by the proposed amendment are as follows:
- The scope of projects subject to EIA procedure according to the EIA Act is extended.
- To strengthen the importance of the EIA procedure, it will no longer be possible to merge this procedure with the zoning- or building-permit proceedings. As of the entry into force of the amended EIA Act, all EIA procedures will result in a separate environmental authorisation.
- The outcome of the EIA procedure will be a statement of a binding nature according to the Czech Administrative Procedure Code, which means that all parts of such statement must be observed in any other follow-up proceedings according to the Czech Building Code regarding the assessed project. Furthermore, a negative decision by the relevant authority will have the status of an administrative decision within the meaning of the Czech Administrative Procedure Code. That status results in the possibility, in the event that the relevant authority decides that the respective project is not subject to the EIA procedure, of remedial measures being filed against such negative decision.
- Each assessed project will obtain a so-called coherence stamp that serves as verification that the project was not changed after being approved in the EIA procedure.
- The scope of persons defined as “public concerned” will fully correspond to its definition according to the EIA Directive. The public concerned shall therefore include the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures. All non-governmental organisations (NGOs) promoting environmental protection shall be deemed to have an interest. These NGOs might be either long-acting permanent organisations or ad-hoc established organisations, the legitimacy of which shall be proved by at least 200 uncertified signatures.
- As far as the judicial protection is concerned, all participants of an EIA procedure and the two types of entities mentioned under point 4 above will be entitled to apply for the remedial measures against the resultant EIA outcome issued by the EIA authority. However, the fact that these persons will be subsequently entitled to challenge the EIA outcome in court from both the substantive and procedural aspects is essential. This regulation also corresponds to the recent practice of the Court of Justice of the European Union that adjudged the right to a favourable environment not only to individuals, but also to legal entities (or, more precisely, to its members).
- Potential legal actions against the EIA decision will have a suspensive effect. On the other hand, the time limit provided for the judicial decision will be shortened.
All of the aforementioned changes will be of a retroactive nature, as they will be applicable also to all assessed projects in progress (irrespective of whether they are still being assessed in the EIA procedure or they already are subjects to zoning- or building-permit proceedings).
However, this new regulation may also have some negative consequences in practise. Developers in particular are afraid of unreasonable delays in zoning- or building-permit proceedings. Reduced to absurdity, the application of the new regulation could lead to, for example, a group of 200 people living in western part of the Czech Republic contesting and slowing down building-permit proceedings regarding a project to be built on the other side of the country. Such delays shall be prospectively eliminated by the amendment of the Czech Building Code. This amendment, which is intended to be approved by 2016, shall introduce a new unified procedure that simplifies and accelerates the building permit proceedings.