Environmental Assessments and Authorizations: SEA - EIA - IPPC Permit

Following the closure by the European Commission of the infringement procedure 2009/2086 against Italy concerning the Environmental Impact Assessment (see news published on 20/11/2015) it is considered appropriate to share the main steps and the related official documents which led to the closure of the infringement case.

Infringement procedure 2009/2086 was opened by the European Commission against Italy with a letter of formal notice pursuant to art. 226 of the EU Treaty notified on 15 April 2009(1) for the non conformity of national legislation (Part Two of the Law 152/2006, as amended by Legislative Decree no. 4/2008) with the following provisions of the EIA Directive (85/377/EEC as amended by Directives 97/11/EC, 2003/35/EC, 2009/31/EC and, most recently, codified by the 2011/92/EU):

• article 1, paragraph 2 (definition of "project")
• article 4, paragraphs 2 and 3 in conjunction with Annex III (“screening” procedure)
• article 6, paragraph 2 (public consultation)
• annexes I and II to the Directive (definition of certain projects categories).

With reference to the main issue of the infringement case concerning the EIA screening procedure, the European Commission complains that Italy failed to take into account, as required by Article 4.2 of the EIA directive, all the criteria listed in Annex III to the Directive in order to determine whether to submit or not to EIA projects listed in Annex II to the EIA Directive.

Italy has provided feedback to the letter of formal notice through the communication of the 7^th July 2009 (2) sent by the Legislative Office of the Ministry of Environment to the Presidency of the Council of Ministries.

With a subsequent submission of formal notice of the 27^th of February 2012 (3) despite the entry into force of the amendments and additions to Second Part of the Legislative Decree no. 152/2006 as last introduced by Decree 128/2010 and Law 162/2011 (implementing Directive 2009/31/EC on the geological storage of carbon dioxide), the European Commission did not consider decisive the measures taken by the Italian government for the correct transposition of the EIA Directive, reiterating the remarks already set out in the first notice of 2009.

Over the years there have been several comparisons between the Italian authorities and the European Commission in order to overcome the critical issues recognized by the Commission within the national legislation, by proposing specific regulatory changes which however were not considered sufficient to solve the legal disputes on the EIA screening.

Only with the decree-law n. 91 of 24 June 2014, converted with amendments by Law 116 of 11 August 2014 a detailed and comprehensive intervention was carried out aimed at solving all the remarks of the infringement procedure which included, in addition to the specific amendments to the provisions of Legislative Decree no. 152/2006, also the adoption of national Guidelines aimed at providing criteria to carry out EIA screening ex art.20 of Legislative Decree 152/2006 of projects listed in Annex IV to Second Part of the Legislative Decree 152/2006 on the basis of all the criteria of Annex III to the EIA Directive and thus not only on the basis of the location (protected areas) or dimensional criteria (thresholds) ).

Pending the conclusion of the parliamentary process of the aforementioned decree-law, the European Commission, on 28 March 2014, issued a reasoned opinion under Article 258 of the TFEU(4) requiring Italy to adopt the necessary legislative measures to comply with the reasoned opinion within two months.

For the issue of the national Guidelines on EIA screening, article 15 of the decree-law no. 91/2014 provided for the adoption (subject to agreement within the State-Regions Conference and competent parliamentary committees) of a decree of the Minister of the Environment in cooperation with the Ministry of infrastructure and Transport for what concern the infrastructure projects of strategic importance.

Pending the issue of the ministerial decree, in order to ensure the prompt and effective realignment of national law with Community law, article 15 of the decree-law no. 91/2014 provided for a specific transitional rule. Within the State-Regions Conference on 18.12.2014 has been signed an agreement between Government, Regions and Autonomous provinces of Trento and Bolzano (5), aimed at clarify ,with an explanatory note, the modi operandi for the application of the transitional regime.

Within the abovementioned State-Regions Conference, Regions and Autonomous provinces expressed the agreement (6), on the draft ministerial decree, also achieved through the complex and articulated technical dialogue with the competent structures of the Ministry of Environment, which already started in 2013.

On 30 March 2015 the ministerial decree n. 52 "Guidelines for the EIA screening of projects falling within the competence of the Regions and Autonomous Provinces” has been issued.

While welcoming the improvements introduced by the decree-law no. 91/2014 and by the ministerial decree n. 52/2015, by note of 21 May 2015 (7) the Commission services requested some clarifications about the contents of the ministerial decree n. 52/2015, paying particular attention to the methodology used to fix the thresholds for projects listed in Annex IV to Second Part of the Legislative Decree no. 152/2006, together with specific questions concerning the criteria included in the Guidelines.

On 1 July 2015 Italian authorities has provided formal feedbacks to the requests of the Commission through a detailed technical report(8) concerning each questions.

On 19 November 2015 European Commission closed the infringement procedure 2009/2086(9).