Inspections and public participation

Installations must be covered by an environmental inspection plan at national, regional, or local level which is regularly reviewed and, where appropriate, updated. Based on these plans the competent authority shall regularly draw up programmes for routine environmental inspections, including the frequency of site visits for different types of installations. The period between two site visits shall be based on ^[1]

a systematic appraisal of the environmental risks of the installations concerned. It may in any case not exceed one year for installations posing the highest risks and three years for those posing the lowest risks. Non-routine inspections shall be carried out as soon as possible to investigate, inter alia, serious environmental complaints, and serious environmental accidents and occurrences of non-compliance. Following each site visit, the competent authority shall prepare a report, which must be notified to the operator concerned and be made publicly available. The competent authority shall ensure that the operator takes all the necessary actions identified in the report within a reasonable period. (Art 23.)

Since amendments were made in 2003 to make the then IPPC Directive compatible with the Aarhus Convention, the Directive has rather elaborate provisions on access to information and public participation intended to implement that Convention in relevant parts.'^[2]

The public concerned must be given early and effective opportunities to participate, inter alia, in the granting of permits for new installations and for substantial changes and in the granting or updating of a permit for an installation where the setting of less strict emission limit values is proposed. To that end the public concerned must have all of the relevant information from the stage of the administrative procedure at first instance, before a first decision has been adopted, to the extent that that information is available on the date of that stage of the procedure.^{[3] [4]} The procedure that applies to such participation is set out in Annex IV.

When a decision on granting, reconsideration, or updating of a permit has been taken, certain information must be made available to the public, including the content of the decision, the reasons on which it is based, the results of the consultations held before the decision was taken, and an explanation of how they were taken into account and how the permit conditions have been determined in relation to BAT and associated emission levels.

Although the Court of Justice has held that the public concerned by an authorisation procedure under the IED must, in principle, have access to all information relevant to that procedure, certain restrictions on the right to access to information may follow from Article 4 of Directive 2003/4/EC on public access to environmental information (see further section 7.5.1). Member States may, inter alia, provide for a request for information to be refused if disclosure of the information would adversely affect the confidentiality of commercial or industrial information. However, access cannot on that ground be denied to a decision by which a public authority authorises the location of an installation falling within the scope of the IED7¹

As regards access to justice, the Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts, or omissions when they either have a sufficient interest or, where administrative procedural law of a Member State requires this as a precondition, they maintain the impairment of a right. To this end, any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed to have a sufficient interest and, when relevant, to have rights capable of being impaired.

It is for Member States to determine at what stage the decisions, acts, or omissions may be challenged. What constitutes a sufficient interest and an impairment of a right shall be determined by Member States, consistently with the objective of giving the public concerned wide access to justice. (Art 25.)

Member States may require an applicant to exhaust all administrative review procedures before being authorised to bring legal proceedings. However, restrictions on the pleas in law which may be raised in support of legal proceedings have been found impermissible by the Court of Justice.^

Members of the public concerned must be able to ask a court or competent body to order interim measures such as temporarily to suspend the application of a challenged permit pending the final decision.³³

As regards the effects on developers of challenges brought against the granting of permits, the Court of Justice has found that a decision which annuls a permit granted in infringement of the provisions of the IED is not capable, in itself, of constituting an unjustified interference with the developer’s right to property enshrined in Article 17 of the Charter of Fundamental Rights of the European UnionA^{[5] [6]}

• [1] COM(2007) 844 final (n 6) 10.
• [2] See Directive 2003/35/EC of the European Parliament and of the Council providing for publicparticipation in respect of the drawing up of certain plans and programmes relating to the environmentand amending with regard to public participation and access to justice Council Directives 85/337/EECand 96/61/EC—Statement by the Commission [2003] OJ L 156/17.
• [3] Case C-416/10 Krizan and Others EU:C:2013:8, para 88.
• [4] Ibid, paras 78 and 82.
• [5] 2 Case C-137/14 Commission v Germany ECLI:EU:C:2015:683, para 76. 33 Case C-416/10 Krizan (n 30), para 110. 34 Ibid, para 116.
• [6] 35 Where the waste gases of two or more separate combustion plants are discharged through acommon stack, the combination formed by such plants shall be considered as a single combustionplant for the purpose of calculating the total rated thermal input. Art 29.