Introduction

a) This paper summarises work by the European Common Forum on Contaminated Land to produce a proposal of alternative text for the proposed EU Soil Framework Directive.  The aim of this work is to inject new thinking into the negotiation of the proposed Directive.

b) The Commission submitted its proposals for a Thematic Strategy for Soil Protection and a Proposal for a Directive establishing a framework for the protection of soil to the Council and to the European Parliament on 22 September 2006. The proposal for a Directive is based on Article 192(1) of the Treaty on the Functioning of the European Union.

c) The Committee of the Regions and the Economic and Social Committee delivered their favourable Opinions on 13 February and on 25 April 2007 respectively.

d) The European Parliament adopted its first-reading opinion on 14 November 2007.

e) In the Council, extensive discussions on the above-mentioned proposal took place in 2007 under the Portuguese Presidency, in 2008 during the French Presidency, in 2009 under the Czech Presidency, and in 2010 under the Spanish Presidency.
In the course of these discussions, progress was made on many elements of the proposed Directive. However, important differences in positions remained on a number of key issues, such that no overall agreement was reached.

f) The Common Forum is an informal network of contaminated land policy experts and advisors, drawn mainly from Member State governments and competent authorities, and was created in 1994 (www.commonforum.eu). The Common Forum provides mutual professional support by:

• Being a platform for exchange of knowledge and experiences
• Establishing a discussion platform on policy, research, technical and managerial concepts of contaminated land
• Being a platform for initiating and following-up of international projects among members
• Offering an exchange of expertise to the European Commission and to European and International Networks.

g) The Common Forum has continuously discussed the technical and political aspects of the contaminated soil issues in the original proposal and in the alternative versions under each Presidency. Having failed to reach agreement in Council, in light of the desire of many Member States to have a framework directive for soil, and convinced that common grounds could be found, a “special task force” of Common Forum members from some Member States was established in July 2010 during the Belgian Presidency. The task force discussed the reasons for not being able to reach agreement in Council and proposed amendments to the draft Directive.  Experts on soil degradation processes covered in Chapter II (erosion, organic matter loss, landslides, etc.) were also invited and brought their experience to the discussions. The amendments were approved by the Common Forum in autumn 2011.

h) The reasons for opposing the Directive vary from one Member State to another.  Therefore the main focus for this work was to:

• identify the key issues where differences in position remained, in relation to both contaminated land and soil degradation processes, and develop alternative textual suggestions that offered possible solutions to some of these key issues
• consider the ability to implement the Directive, the level and scale of monitoring of the action plans, and the cost effectiveness of any proposed measures
• highlight the requirement for any EU framework regulation to take into account existing national legal regulations and the experiences acquired in soil protection and remediation in Member States over the past 30–35 years; in particular in terms of efficiency for reducing risks for human health and the environment.

i) The discussions also took into account:

• The wish to agree common principles in relation to managing soil based on the principle of sustainability, focusing on preventing soil threats as a priority and agreeing a more targeted, risk-based approach to identification and remediation
• Other environmental thematic needs such as the Water Framework Directive, the Common Agriculture Policy, etc., and broader issues such as desertification, climate change and biodiversity.
• An additional consideration was the need to avoid fragmentation of soil protection and soil remediation regulations in the EU legal framework.  Currently there is a dispersion of EU soil provisions that causes difficulties in transposition and implementation (examples include the definition of unpolluted soils in the Mining Residues Directive and of polluted soils in the Renewable Energies Directive, management of excavated soils on a hazard basis under the revised Waste Directive, remediation to baseline conditions for some sites and to risk levels for other under the Industrial Emissions Directive, etc.).

j) The main changes proposed in this alternative draft, based on the last version discussed at official parties (so called Spanish Version, March 2010) are:

• Clarified definitions,
• With respect to the contaminated land provisions, an improved overall scheme, which is more targeted and risk-based and that has enough flexibility to take into account local conditions and Member State priorities
• An on-going dynamic approach, which has a timetable for setting the start of actions, for seeing the progress done by Member States and adapting to new situations
• Some points have been left open for more discussions, for taking into consideration official parties’ conclusions and some pending concerns. These relate to:
  
  

  • The way to remove sites from the registers / inventories
  • Soil Status Reports (are they really needed in an on-going and public procedure? If so, what type of report should they be and what should the minimum content be?)
  • The need of comitology actions on the methodology of risk assessment.

With respect to Chapter II, a more flexible and efficient, but equally rigorous approach to identifying priority areas that takes into account differences in Member States’ local circumstances, within the constraints of existing scientific knowledge.

k) This file includes:

1. An alternative text proposal incorporating tracked changes ;
2. A cleaned version of the above text proposal, with tracked changes removed, to provide an overview of what this draft could look like.

l) For any information demand, comment, or suggestion, please feel free to contact General Secretary of the Common Forum on Contaminated Land in Europe (email: ).

See also:
- European Commission website - Soil pages