Document originated:	9 January 1997
Original language:	French
Forwarded to the Council:	10 January 1997
Circulated by the Council in the original language:	16 January 1997
Circulated by the Council in English:	16 January 1997
Deposited in Parliament:	30 January 1997
Department:	Environment
Basis of consideration:	Minister's letter of 8 April 1997
Previous consideration:	5 March 1997
Committee's assessment:	Legally and politically important
Committee's decision:	Cleared

Background

40.1  The previous Committee considered this re-examined proposal on 5 March 1997. The original proposal had been considered on 26 May 1994; at that time the previous Government expressed concern on the legal base and indicated it would argue for Article 130s(2) and so unanimity in the Council. Article 130s(2) covers:

"Measures concerning town and country planning, land use with the exception of waste management and measures of a general nature, and management of water resources."

40.2  In March this year the previous Committee therefore asked the Government what action it proposed to take on the legal base proposed by the Commission.

The Minister's letter

40.3  The letter[120] from the previous Parliamentary Under-Secretary at the Department of the Environment (Mr Clappison) makes it clear that Article 130s(2) would have been the appropriate legal base, but that the UK was isolated in discussions in Council and that the Commission argued that the primary thrust of the Environmental Impact Assessment Directive is protection of the environment rather than town and country planning or land use. The Directive was adopted on 3 March with the UK entering a statement in the Council Minutes as follows:

"The United Kingdom delegation considers that there are strong arguments for the view that the correct legal basis for these measures is Article 130s(2) rather than 130s(1)."

40.4  The Minister considered that a reference to the European Court of Justice would not be likely to succeed, on the grounds that Article 130s(2) derogates from Article 130s(1).

Conclusion

40.5  The previous Committee did not clear the document, which has now been adopted. We share the assessment of the previous Government that Article 130s(2) is a more appropriate legal base, and welcome the statement in the Council Minutes.[121] We are not, however, convinced by the Minister's argument that a reference to the European Court of Justice would fail on the grounds that a specific derogation (which will have been incorporated in the text for a specific purpose) would be ignored simply because the main purpose of the Directive is the protection of the environment. This would largely nullify the derogation, and seems to us a dangerous argument.

40.6  As the Directive has now been adopted we are clearing the document.

121   Similar issues arise on another document on which we report today: (18045) 7093/97 on the environmental impact of plans and programmes (see paragraph 12). Back