Participation, presentation and review - Introduction to Environmental Impact Assessment - page 190

authority imposed a condition that required the developer to carry out a bat survey prior
to development. The inspector quashed this decision, ruling that the information on bats
should have been part of the EIS.
In summary, judicial reviews of competent authority decisions have to date been
limited by the issue of standing, and by the courts' relatively narrow interpretation of the
duties of competent authorities under the EIA regulations. More recent court cases have
strengthened and widened this interpretation, but it is very unlikely that the UK courts
will play as active a role as those in the US did in relation to the NEPA.
6.6.4 Challenging a decision: the European Commission
Another avenue by which third parties can challenge a competent authority's decision to
permit development, or not to require EIA, is the European Commission. Such cases need
to show that the UK failed to fulfil its obligations as a Member State under the Treaty of
Rome by not properly implementing EC legislation, in this case Directive 85/337. In such
a case, Article 169 of the Treaty allows a declaration of non-compliance to be sought
from the European Court of Justice. The issue of standing is not a problem here, since the
European Commission can begin proceedings either on its own initiative or based on the
written complaint of any person. To use this mechanism, the Commission must first state
its case to the Member State and seek its observations. The Commission may then issue a
“reasoned opinion”. If the Member State fails to comply within the specified time, the
case proceeds to the European Court of Justice.
Under Article 171 of the Treaty of Rome, if the European Court of Justice finds that a
Member State has failed to fulfil an obligation under the Treaty, it may require the
Member State to take the necessary measures to comply with the Court's judgement.
Under Article 186, the EC may take interim measures to require a Member State to desist
from certain actions until a decision is taken on the main action. However, to do so the
Commission must show the need for urgent relief, and that irreparable damage to
Community interests would result if these measures were not taken. Readers are referred
to Atkinson & Ainsworth (1992), Buxton (1992) and Salter (1992a, b, c) for further
information on procedures.
The latest Five-Year Review of the implementation of the Directive (CEC 2003)
shows an increasing number of new complaints about impact assessment opened, rising
from 81 in 1997 to 237 in 2001, with the highest numbers for Spain, Ireland, Germany
and Italy. However, for almost, 1000 cases over the period 1997-2001, the Commission
sent only 36 reasoned opinions to Member States for non-conformity or wrong
application of the EIA Directive. This can be explained largely by (i) unfounded
complaints and (ii) compliance by a Member State to a breach, resolving the issue before
the Commission is obliged to send a reasoned opinion.
6.7 Summary
Active public participation, thorough consultation with relevant consultees, and good
presentation are important aspects of a successful EIA process. All have been
undervalued to date. The presentation of environmental information has improved, and