Subject: Correct application of the DNSH principle for projects financed by NRRPs
The Recovery and Resilience Facility states that all measures in the national recovery and resilience plans (NRRPs) must comply with the ‘Do No Significant Harm’ (DNSH) principle, which states that any project financed through the Facility must not be detrimental to the conservation status of habitats and species.
Commission document C/2023/267 deals with, inter alia, the situation of an assessment of the implications of a project for which compensatory measures are envisaged, and its compliance with the DNSH principle.
In light of the above:
1. Does the Commission believe that the need for compensation measures to be adopted in order for a project to pass an impact assessment with a negative outcome means, on the basis of the abovementioned document C/2023/267, that the project does not comply with the DNSH criteria regarding Objective 6 ‘Protection and restoration of biodiversity and ecosystems’?
2. Should a project that had an impact assessment (level II) with a negative outcome not be considered to be failing to comply with the conditions laid down in Regulation (EU) 2021/241, and should it therefore be considered ineligible for NRRP financing?
Submitted:10.4.2024
Answer given by Executive Vice-President Dombrovskis on behalf of the European Commission (24 June 2024)
1. Commission Notice C/2023/267 (1) pertains to the interpretation of specific legal provisions of the EU taxonomy climate delegated act establishing technical screening criteria for economic activities that contribute substantially to climate change mitigation or climate change adaptation and do no significant harm (DNSH) to other environmental objective. It therefore concerns considerations on the DNSH principle under the EU Taxonomy (2). Recovery and Resilience Facility (RRF) (3) funding is not bound by the EU Taxonomy technical screening criteria (4).
2. Pursuant to the RRF Regulation (5), DNSH is to be interpreted within the meaning of Article 17 of Regulation (EU) 2020/852. The RRF Regulation mandates the Commission to provide technical guidance on how DNSH should apply in the context of the RRF. It should not be affected by the delegated acts under Regulation (EU) 2020/85 2 (6). The said technical guidance is provided by Commission Notice 2021/C58/01 (7). It stipulates that impact assessments related to the environmental dimensions of a project should be considered for DNSH assessments (paragraph 2.3). The Commission evaluates compliance with DNSH for every measure upon submission of the Recovery and Resilience plans (RRP). A significant adverse effect on the environment outlined by inter alia an environmental impact assessment (8), if available at the time of the submission of the national RRP, could indicate harm for some of the environmental objectives. In such cases, Member States must ensure full compliance with applicable EU legislation and, if the project is authorised, provide further environmental safeguards and mitigation actions to ensure the DNSH compliance of the measure and its eligibility under the RRP. During the implementation of a measure, the Commission only verifies compliance with DNSH at the project level if it is specified (9).
1 ∙ ⸱ https://eur-lex.europa.eu/eli/C/2023/267/oj
2 ∙ ⸱ Regulation (EU) 2020/852 — https://eur-lex.europa.eu/eli/reg/2020/852/oj
3 ∙ ⸱ https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R0241
4 ∙ ⸱ As per paragraph 2.5 of the technical guidance on the application of ‘do no significant harm’ under the Recovery and Resilience Facility Regulation
Commission Notice 2021/C58/01, as amended by C/2023/111. 5 ∙ ⸱
Regulation (EU) 2021/241 — https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R0241 6 ∙ ⸱ As per Recital 25 of the RRF Regulation. 7 ∙ ⸱
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021XC0218%2801%29 — As amended by C/2023/111. 8 ∙ ⸱ EIA Directive, OJ ref. L 124, 25.4.2014, p. 1-18. Other examples include i) Appropriate Assessment of habitats under the Habitats Directive, Article 6(3) and 6(4), OJ ref. L 206, 22.7.1992, p. 7-50, and ii) impacts on a water body under the Water Framework Directive, Article 4.7, OJ ref. OJ L 327, 22.12.2000, p. 1- 73. 9 ∙ ⸱
As per the annex to the Council Implementing Decision on the approval of the assessment of the recovery and resilience plan.