Plans and programmes
Which documents will be subject to the law of 13 February 2006 (.PDF)? In other words, which types of plan and programme will need to be assessed and entail an environmental report?
The law’s field of application is presented diagrammatically in the following directive's transposition (.PDF)
The concepts of ‘plan’ and ‘programme’ are not precisely defined at either European or Belgian federal level. Just because a document includes one of these two words in its title does not automatically make it a plan or programme. Conversely, a document which makes no mention of plans or programmes will not necessarily lie outside the scope of the law. According to the Council of State, the terms ‘plan’ and ‘programme’ refer to decisions ‘determining an ordered series of actions or operations envisaged to achieve a set goal […] or defining the framework within which the implementation of activities may be authorised in a given place’.
The concepts of ‘plan’ and ‘programme’
Under the law of 13 February 2006 (.PDF), plans and programmes are considered as such if they are:
a) prepared and/or adopted by an authority at federal level or prepared by an authority at federal level with a view to their adoption by the federal legislative chambers or by the King;
b) and stipulated by legislative, regulatory or administrative measures.
The law also applies to the modification of relevant plans and programmes where this has consequences for the environment.
These are basically the federal administrations defined by law. Plans and programmes prepared by private bodies on their own behalf are not subject to the law. On the other hand, if they are acting on behalf of an authority at federal level, they must comply with the law.
The law starts by listing a series of plans and programmes for which the environmental assessment is compulsory. These include, for example, plans or programmes relating to the organisation of the electricity market (production, supply, distribution), the supply of natural gas, the long-term management of radioactive waste or the exploration and exploitation of the non-living resources in the North Sea.
Beyond these clearly defined sectors, the law also stipulates that all plans and programmes which are not listed but may have significant effects on the environment must assess the consequences of their actions.
But how can one tell whether a given plan will have ‘significant’ effects? It will be up to the Council of Ministers to decide, based on a proposal submitted by the Minister responsible for the dossier in question and acting on the advice of a consultative committee. In order to determine the likely scale of the effects, the decision will be based on criteria listed in Annex I (.PDF) to the law, such as the fragility of the affected areas, the potential duration of the effects or their irreversibility.
If the preparer of a draft plan or programme in another country believes that its implementation is likely to have non-negligible effects on the environment in Belgian territory, the Minister of the Environment, the Advisory committee (.HTML) and the regional governments must be informed. Naturally, the preparing authority should send them detailed information about the project. The Belgian federal government then has 45 days to decide whether or not the plan or programme is indeed likely to have effects on the environment and whether it should therefore be submitted for public consultation.
Equally, if a ‘Belgian’ plan is likely to involve environmental effects for a neighbouring country, the authority preparing the plan or programme should determine, on the basis of the Committee’s advice, whether or not these effects are a real possibility for the country in question. If so, the country will be sent the draft plan or programme together with a description of the preparation and assessment procedure. The country’s authorities can then decide whether to participate in the process of assessing the plan or programme. Logically, the preparer of the plan or programme will have to take account of the results of this ‘transboundary’ consultation, as is the case with a national consultation, when making its final decision.
You will find a diagram outlining this transboundary procedure(.PDF).