Explanatory Memorandum to COM(2023)416 - Soil Monitoring and Resilience (Soil Monitoring Law)

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dossier COM(2023)416 - Soil Monitoring and Resilience (Soil Monitoring Law).
source COM(2023)416
date 05-07-2023


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Soil is a vital, limited, non-renewable and irreplaceable resource. Healthy soils form the essential basis for our economy, society and environment as they produce food, increase our resilience to climate change, to extreme weather events, drought and floods and support our well-being. Healthy soils store carbon, have more capacity to absorb, store and filter water and provide vital services such as safe and nutritious food and biomass for non-food bioeconomy sectors.

Scientific evidence1 indicates that about 60 to 70% of soils in the EU are currently in an unhealthy state. All Member States are facing the problem of soil degradation. Degradation processes are continuing and worsening. The drivers and impacts of the problem go beyond country borders, reducing the soil’s capacity to provide these vital services throughout the EU and neighbouring countries. This creates risks for human health, the environment, climate, economy and society, including risks for food security, water quality, increased impacts from flooding and droughts, biomass production, carbon emissions and a loss of biodiversity.

The unprovoked and unjustified Russian war of aggression against Ukraine has destabilised global food systems, intensified food security risks and vulnerabilities across the world, and amplified the EU’s need to make its food systems sustainable for centuries to come. The trends and combination of the different drivers impacting food security draw attention to the fact that availability, access (affordability), utilisation, and stability cannot be taken for granted in the short or the long term2. In this context, fertile soils are of geo-strategic importance to secure our access to sufficient, nutritious and affordable food in the long-term. The food supply chain is highly interconnected and dependant at global level and the EU is an important global player on international food markets. To produce sufficient food for a global population that is expected to grow to 9-10 billion people in 2050, fertile soils are a key asset. Since 95% of our food is directly or indirectly produced on this precious finite natural resource, soil degradation has a direct impact on food security and the cross-border food markets.

Pressure on soil and land is increasing globally. In the EU, 4.2% of the territory has been artificialized by land take; land take and soil sealing continue predominantly at the expense of agricultural land. In addition, soil degradation affects the potential long-term fertility of agricultural soils. It is estimated that between 61% and 73% of agricultural soils in the EU is affected by erosion, loss of organic carbon, nutrient (nitrogen) exceedances, compaction or secondary salinisation (or a combination of these threats). For instance, soil compaction can lower crop yields by 2.5-15 %. Without sustainable management and action to regenerate soils, deteriorating soil health will be a central factor in future food security crises.

Healthy soils are essential for farmers and the agronomic ecosystem overall. Maintaining or increasing soil fertility over the long-term contributes to stable or even higher yields of crops, feed and biomass required for non-food bioeconomy sectors contributing to the de-fossilization of our economy3, and gives farmers long-term production security and business prospects. The availability of healthy and fertile soils and land is crucial in the transition towards a sustainable bioeconomy and can therefore help increase and preserve the value of the land. Measures to increase soil fertility can also reduce farms’ operational costs, such as the cost of inputs or machinery. Farmers can receive financial support for certain practices e.g. under the Common Agricultural Policy (CAP) or the proposal for an EU carbon removal certification framework4.

Soil degradation also harms human health. Airborne particulate matter produced by wind erosion causes or worsens respiratory and cardiovascular diseases. Sealed soils prolong the duration of high temperatures during heat waves and have less capacity to act as a sink for pollutants. Contaminated soils also affect food safety. For example, approximately 21% of agricultural soils in the EU contain cadmium concentrations in the topsoil that exceed the limit for groundwater. The recreational value of the environment and nature, with links to our physical and mental health, is also supported by healthy and sustainably managed soils. This is valuable both in the countryside, and especially in urban areas where the adoption of sustainable management practices can help create healthy green spaces and reduce heat islands, improve air quality and housing conditions. Improving soil health is key to increase the EU’s resilience to adverse events and adaptation to climate change. Europe’s resilience to climate change depends on the level of soil organic matter and fertility, water retention and filtering capacity, and resistance to erosion. Carbon farming practices help store CO2 in the soil and contribute to mitigating climate change. The capacity of soils to retain water helps both prevent and respond to disaster risks. When soils can absorb more rainfall, it reduces the intensity of flooding and alleviates the negative effects of drought periods. Some soil bacteria, part of the biodiversity of healthy soils, can also help crop plants tolerate drought.

As the extreme weather and climate-related hazards intensify, the risk of wildfires is increasing across Europe. The conditions that heighten the fire risk are set to increase with climate change, notably heat and humidity of ecosystems, including soils. Healthy soils with functional water retention capacity also support healthy forest ecosystems that are more resilient to wildfires. At the same time, wildfires can cause soil degradation, leading to increased risks of soil erosion, landslides and floods. Strengthening the knowledge base on soils can contribute to improving disaster risk assessments that recognise the multi-faceted roles that soils play in mitigating disasters. Measures to strengthen soil health build resilience to future stress brought on by climate change.

Current EU and national policies have made positive contributions to improving soil health. But they do not tackle all the drivers of soil degradation and therefore significant gaps remain. Soils form very slowly (e.g. it takes 500 years or more to create 2,5 cm of new topsoil), but soil health can be maintained or improved if the right measures are taken and put into practice.

In this context, the European Green Deal5 sets out an ambitious roadmap to transform the EU into a fair and prosperous society, with a modern, resource-efficient and competitive economy, aiming to protect, conserve and enhance the EU’s natural capital, and to protect the health and well-being of citizens from environment-related risks and impacts. As part of the European Green Deal, the Commission adopted an EU Biodiversity Strategy for 20306, a Zero Pollution Action Plan7, an EU Climate Adaptation Strategy8 and an EU Soil Strategy for 20309.

The EU Biodiversity Strategy for 2030 stated that it is essential to step up efforts to protect soil fertility, reduce soil erosion and increase soil organic matter by adopting sustainable soil management practices. It also stated that significant progress is needed to identify contaminated sites, restore degraded soils, define the conditions for good ecological status, set restoration objectives, and improve the monitoring of soil health. The Biodiversity Strategy also announced the plan to update the 2006 Soil Thematic Strategy to tackle soil degradation and fulfil EU and international commitments on land-degradation neutrality.

The EU Soil Strategy for 2030 sets out the long-term vision to have all soils in healthy condition by 2050, to make protection, sustainable use and restoration of soils the norm and proposes a combination of voluntary and legislative actions to achieve these aims. The Strategy announced that the Commission would propose a Soil Health Law underpinned by an impact assessment which should analyse several aspects such as indicators and values for soil health, provisions for monitoring soils and requirements for a sustainable use of soils.

The 8th Environment Action Programme10 set the priority objective that by 2050 at the latest, people live well, within planetary boundaries in a well-being economy where nothing is wasted, growth is regenerative, the EU has achieved climate neutrality and has significantly reduced inequalities. Some of the enabling conditions needed to meet that objective include tackling soil degradation and ensuring the protection and sustainable use of soil, including by a dedicated legislative proposal on soil health.

Institutional stakeholders have called for policy changes. The European Parliament11 called on the Commission to develop an EU legal framework for soil. It should include definitions and criteria for good soil status and sustainable use, objectives, harmonised indicators, a methodology for monitoring and reporting, targets, measures, and financial resources. The Council of the EU 12 supported the Commission in stepping up efforts to better protect soils and reaffirmed its commitment to land degradation neutrality. Furthermore, the European Committee of the Regions 13, the European and Economic Social Committee 14 and the European Court of Auditors 15 all called on the Commission to develop a legal framework for the sustainable use of soil.

The importance of soil health has also been recognised at global level. The EU has made commitments in the international context of the three Rio Conventions to address soils affected by desertification (UN Convention to Combat Desertification), to contribute to climate change mitigation (UN Framework Convention on Climate Change) and to constitute an important habitat for biodiversity (Convention on Biological Diversity). Restoring, maintaining and enhancing soil health is a target in the new Kunming-Montreal Global Biodiversity Framework.

Soil health also directly contributes to the achievement of several UN Sustainable Development Goals16 (SDGs), in particular SDG 15.3. This goal aims to combat desertification, restore degraded land and soil, including land affected by desertification, drought and floods, and strive to achieve a land degradation-neutral world by 2030.

There is currently a lack of comprehensive and harmonized data on soil health from soil monitoring. Some Member States have soil monitoring schemes in place, but they are fragmented, not representative and not harmonised. Member States apply different sampling methods, frequencies and densities, and use different metrics and analytical methods, resulting in a lack of consistency and comparability across the EU.

For all these reasons, this proposal puts in place a solid and coherent soil monitoring framework for all soils across the EU, which will address the current gap of knowledge on soils. It should be an integrated monitoring system based on EU level, Member State and private data. This data will be based on a common definition of what constitutes a healthy soil and will underpin the sustainable management of soils, to maintain or enhance soil health, and thus to achieve healthy and resilient soils everywhere across the EU by 2050.

The soil monitoring framework is crucial to provide the data and information needed to define the right measures. This data is also likely to lead to technological development and innovation and stimulate academic and industrial research, for example artificial intelligence solutions based on data from sensing systems and field-based measuring systems. Demand for soil analysis services will also grow, consolidating businesses and the position of specialised SMEs in the EU. It will also support the development of remote sensing for soil and enable the Commission to pool resources, based on current mechanisms and technology (LUCAS, Copernicus) to offer cost-efficient services to interested Member States. This technological progress is expected to give farmers and foresters easier access to soil data, and also lead to a wider range, better availability and more affordable technical support for sustainable soil management, including decision support tools.

Member States and EU bodies could use soil health data with sufficient granularity to improve monitoring and trend analysis of drought and disaster management and resilience17. Those data would enhance prevention and therefore contribute to a better response to disasters. Granular soil health data would also be a useful resource for climate change mitigation and adaptation policy implementation, also in relation to food security, and pressures on human health and biodiversity.

The application of sustainable management practices will help Member States ensure that soils will have the capacity to deliver the multiple ecosystems services that are vital both for human health and the environment. These should improve the safety, health, and infrastructure of communities and sustains the livelihood in the surrounding areas, e.g. agro-tourism, markets, infrastructure, culture and well-being.

Current studies on specific practices at farm/land unit level conclude that the costs of sustainable soil management are in many cases outweighed by the economic benefits, and in all cases by the environmental benefits18. This proposal creates the requisite framework to support soil managers until sustainable soil management and healthy soils deliver their benefits. It can be expected that it will stimulate the earmarking of national and EU funds for sustainable soil management, and also encourage and support private-sector funding by financial institutions, investors and related industry, such as food processing businesses. It would therefore consolidate the competitiveness of the activities related to soil management. The Horizon Europe research and innovation Mission “A Soil Deal for Europe” also supports EU ambitions for sustainable land and soil management by providing the knowledge base and generating solutions for wider action on soil health.

The proposal also tackles soil contamination. Member States must tackle unacceptable risks for human health and the environment caused by soil contamination to help create a toxic-free environment by 2050. The proposed risk-based approach will allow for standards to be set at national level so that the risk reduction measures can be adapted to site-specific conditions. The proposal will also improve the application of the polluter-pays principle and more societal fairness by spurring action that will benefit disadvantaged households living closer to contaminated sites. Requirements to identify, investigate, assess and remediate contaminated sites will generate jobs and long-term employment (e.g. increase the demand for environmental consultants, geologists, remediation engineers, etc.).

The legislation proposes taking a gradual and proportionate approach to give Member States sufficient time to set up their governance system, put in place the soil monitoring system, assess soil health and start applying measures related to sustainable soil management.

• Consistency with existing policy provisions in the policy area

Over the past 30 years, the EU has adopted a substantial and wide range of environmental measures with the aim of improving the quality of the environment for European citizens and of creating the conditions for a high quality of life. Current EU law contains several provisions of relevance to soil but there is a clear and indisputable gap in the current EU legal framework that this proposal on soil health is designed to close. The proposal complements existing environmental legislation by providing a coherent EU-level framework for soils. It will also contribute to the objectives set under current environmental legislation.

Regarding soil contamination, the proposal complements the Industrial Emissions Directive, the Waste Framework and Landfill Directives, the Environmental Liability Directive and the Environmental Crime Directive by covering all types of contamination, including historical soil contamination. It will make a major contribution to the protection of human health which is one key objective pursued by EU environmental policy.

Healthy soils have an inherent capacity to absorb, store and filter water. The proposal is therefore expected to contribute to the objectives of the Water Framework Directive, the Groundwater Directive, the Nitrates Directive, and the Environmental Quality Standards Directive by tackling soil contamination, soil erosion and by improving soil water retention. Healthy soils will also contribute to flood prevention, one of the objectives of the Floods Directive.

The provisions on sustainable soil management complement existing EU legislation relating to nature (the Habitats and Birds Directives) by improving biodiversity (for example, wild pollinators that nest in soils), and the air by preventing the erosion of soil particles. Healthy soils provide the basis for life and biodiversity, including habitats, species and genes, and contribute to reducing air pollution.

In addition, the knowledge, information and data collected under the monitoring requirements enshrined in the proposal will help improve the assessment of environmental impacts of projects, plans and programmes carried out under the Environmental Impact Assessment Directive and the Strategic Environmental Assessment Directive.

Contents

1.

Lastly the proposal is consistent with several other environment policy initiatives such as:


- The EU Biodiversity Strategy for 2030, which sets targets to further protect nature in the EU and in particular the proposal for a regulation on nature restoration19 (Nature Restoration Law (NRL)). The proposed NRL has the goal of 20% of the EU’s land and sea to be covered by restoration measures by 2030 and to cover all ecosystems in need of restoration by restoration measures by 2050. There are many synergies among the proposed NRL and this proposal on soil health. The proposed NRL and this proposal are therefore mutually reinforcing.

- The Zero Pollution Action Plan sets out the vision that by 2050, air, water and soil pollution is reduced to levels no longer considered harmful to health and natural ecosystems. This proposal is consistent with the proposals aiming to revise and strengthen key existing EU legislation in the air and water sectors and the legislation on industrial activities.

- The Circular Economy Action Plan, which announces measures to reduce micro-plastics and an evaluation of the Sewage Sludge Directive, regulating the quality of sludge used in agriculture.

- The Chemicals Strategy for Sustainability, which recognises that chemicals are essential for the well-being of modern society but aims to better protect citizens and the environment against their possible hazardous properties.

• Consistency with other Union policies

The proposal is consistent with EU policies on climate, food and agriculture.

The initiative is a crucial centrepiece of the European Green Deal and an instrument to achieve EU policy objectives such as climate neutrality, resilient nature and biodiversity, zero pollution, sustainable food systems, human health and well-being.

The objectives of the proposal are complementary and in synergy with the European Climate Law20. They will contribute to the EU climate change adaptation objectives by making the EU more resilient and to its aim to achieve a climate-neutral Europe by 2050. Storing carbon in soil is an essential part of the action needed to reach climate neutrality. Achieving this objective requires action in multiple areas, such as carbon removals through sustainable soil management to balance greenhouse gas emissions that will remain at the end of an ambitious decarbonisation pathway. This proposal will also contribute to the EU’s climate change adaptation objectives, make the EU more resilient and reduce its vulnerability to climate change, for example by enhancing the capacity of soils to retain water.

The proposal is fully complementary and synergetic with the Land Use, Land Use Change and Forestry (LULUCF) Regulation21, as revised recently to make it fit to the target to reduce net emissions by 55% by 2030. The revised LULUCF Regulation22 aims to achieve 310 Mt CO2 equivalent net removals in the LULUCF sector by 2030 at EU level. For the period 2026-2029, each Member State will have a binding national goal to progressively increase of greenhouse gas removals. These objectives require all Member States to step up the level of climate ambition for their land use policies. The LULUCF Regulation moreover requires that Member States set up systems to monitor soil carbon stocks, with the expectation of enhanced implementation of nature-based climate mitigation in soils. This proposal on soil health and the revised LULUCF Regulation will be mutually reinforcing, since healthy soils sequester more carbon and the LULUCF targets promote the sustainable management of soils. Enhanced and more representative soil monitoring will also improve the monitoring of successful policy implementation in the LULUCF sector.

The aim of the proposed regulation for a certification framework for carbon removal23 is to facilitate the deployment of high-quality carbon removals through a voluntary EU certification framework with high climate and environmental integrity. Carbon removals also constitute a new business model in the voluntary carbon market. This initiative is instrumental in ensuring the soil’s capacity to absorb and store carbon. Conversely, regenerating soil to good health is instrumental in increasing its capacity to absorb and store carbon and to generate carbon removal credits. Moreover, creating soil districts, as envisaged under the initiative on soil, and generating the related data and knowledge will facilitate implementation of the carbon removal certification.

Lastly, a commensurate certification of healthy soil is expected to increase the value of the carbon removal certificate and give greater social and market recognition for sustainable soil management and related food and non-food products. The benefits of healthy soils and measures to achieve this will also help boost private financing, as food industry and other business have already started putting in place programmes to pay for ecosystem services and support sustainable practices related to soil health. At the same time, soil certified as healthy is likely to increase the value of the land, e.g. for the purposes of collateral, sale or succession.

This proposal is consistent with the Farm to Fork Strategy24 which aims to reduce nutrient losses by at least 50% while ensuring that there is no deterioration in soil fertility. In addition, the proposal on soil health will contribute to making the EU food system more resilient.

The proposal supports the efforts made by the agricultural sector under the CAP25 with its new rules to increase the environmental performance of the agricultural sector, also manifested in the CAP strategic plans 2023-202726. This policy includes some mandatory environmental and climate conditions (good agricultural and environmental conditions) that farmers must meet in order to receive CAP income support. Some of these conditions are linked to soil management practices (such as practices to limit soil erosion (e.g. tillage management), minimum soil cover and crop rotation) and are expected to help maintain or enhance soil health on agricultural soils. The CAP also provides for financial support to farmers who commit to undertake specific environmental and climate practices or investments going beyond these conditions. According to the approved CAP Strategic Plans for the period 2023-2027, by 2027, half of the EU’s used agricultural area will be supported by commitments beneficial for soil management to improve soil quality and biota (such as reducing tillage, soil cover in sensitive periods with intermediary crops, crop rotation including leguminous crops). By strengthening the CAP’s innovation dimension, Member States have planned to set up more than 6.600 Operational Groups out of which about 1.000 are expected to address soil health issues. Due to these links, this directive should be taken into account when, in accordance with Article 159 of Regulation (EU) 2021/2115, the Commission reviews, by 31 December 2025, the list set out in Annex XIII to that Regulation.

This proposal on soil will lay down sustainable management principles applicable to managed soils in Europe, including agricultural soils. It will give Member States flexibility to apply these principles as they see best, and to choose how to integrate these in their CAP strategic plans. This proposal will also provide the tools to improve the monitoring of the impacts of the support instruments under the CAP.

This proposal is consistent with the proposal to transform the current Farm Accountancy Data Network (FADN) into a Farm Sustainability Data Network (FSDN)27, included in the Farm to Fork Strategy. The new FSDN will aim to collect farm level data on sustainability and contribute to the improvement of advisory services to farmers and benchmarking of farm performance. Once transformed, the new network will allow the European Commission and Member States to monitor the development of specific agro-environmental practices at farm level, including soil management practices.

This proposal is consistent with other EU policy objectives aimed at achieving the EU’s open strategic autonomy, such as the ones under the proposal for a European Critical Raw Materials Act28 that aim at ensuring secure and sustainable supply of critical raw materials for Europe’s industry, and should be implemented accordingly.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The provisions of this proposal relate to environmental protection. The legal basis for this proposal is therefore Article 192(1) of the Treaty on the Functioning of the European Union that sets out how Article 191 of the Treaty should be implemented. Article 191 of the Treaty specifies the objectives of EU environmental policy:

- preserving, protecting and improving the quality of the environment;

- protecting human health;

- utilising natural resources prudently and rationally;

- promoting measures at international level to deal with regional or worldwide environmental problems, in particular to combat climate change.

The proposal does not contain measures affecting land use.

Given that this is an area of shared competence between the EU and the Member States, EU action must comply with the subsidiarity principle.

• Subsidiarity (for non-exclusive competence)

Action at EU level is justified given the scale and cross-border nature of the problem, the impact of soil degradation across the EU and the risks to the environment, economy and society.

Soil degradation is often wrongly considered as a purely local issue and the transboundary impacts are underestimated. The drivers and impacts of the problem go beyond country borders and reduce the provision of ecosystem services in multiple countries as soil is washed away by water or blown by winds. Contaminants can become mobile via the air, surface water and groundwater, they can move across borders and can affect food.

In ways that are rarely seen or acknowledged, healthy soils are essential to tackle global societal challenges. Soils play a key role in the nutrient, carbon and water cycles, and these processes are clearly not constrained by physical and political borders.

Therefore, coordinated measures by all Member States are needed to achieve the vision to have all soils healthy by 2050, as set out in the Soil Strategy for 2030, and to ensure that soil has the capacity to provide ecosystem services across the EU in the long-term.

Unless we rapidly halt the current level of soil degradation and regenerate soil to good health, our food system will become less productive and increasingly vulnerable to climate change and reliant on resource-intensive inputs. Individual action by the Member States has proven to be insufficient to remedy the situation, since soil degradation is continuing and even worsening.

Given that some aspects of soil health are only marginally covered by EU legislation, additional EU action is needed to complement current requirements and to fill the policy gaps.

The proposal is designed to create the conditions for action to manage soils sustainably and to tackle the costs of soil degradation. The objectives of the proposed action can be better achieved at EU level because of the scale and effects it will produce. Coordinated action is needed at sufficiently large scale to monitor and to sustainably manage soils in order to benefit from synergies, effectiveness and efficiency gains. Coordinated action is also needed to meet the commitments on soil health made at both EU and global level. There is a risk that if soil is not properly protected, the EU and its Member States will fail to meet international and European Green Deal commitments on the environment, sustainable development and climate. Lastly, action at EU level is essential to address potential distortions on the internal market and unfair competition among businesses since there are lower environmental requirements in some Member States.

• Proportionality

The proposal complies with the proportionality principle because it does not go beyond what is necessary to have all soils in the EU healthy by 2050. The proposed instrument is a directive that leaves much flexibility to the Member States to identify the best measures for them and to adapt the approach to local conditions. This is crucial to take account of the regional and local specificities as regards soil variability, land use, climatological conditions and socio-economic aspects.

The proposal ensures that its objectives are reached with requirements that are both realistic and do not go beyond what is necessary. For this reason, Member States are given sufficient time to gradually put in place the governance, the mechanisms to monitor and assess soil health and the measures needed to implement the sustainable soil management principles.

To ensure the EU reaches its objectives, the proposal lays down obligations to monitor and assess soil health and to review the effectiveness of the measures taken. The impact assessment evaluated the impacts of all policy options and showed that the proposals are proportionate.

• Choice of the instrument

A legislative rather than a non-legislative approach is needed to meet the long-term objective of healthy soil in the EU by 2050. The proposal provides a coherent framework for soil monitoring and sustainable management in this respect. The proposal leaves much flexibility to the Member States to identify the best measures for them and to adapt the approach to local conditions. These objectives can be best pursued in the form of a directive. The wide range of soil conditions and uses across the EU, and the need for flexibility and subsidiarity, mean that a directive is the best legal instrument to meet this purpose.

A directive requires Member States to achieve its objectives and implement the measures into their national substantive and procedural law systems. But directives give Member States more freedom when implementing an EU measure than regulations, in that Member States can choose how to implement the measures set out in the directive.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Not applicable since there is currently no EU-wide legislation specifically on soil.

The evaluation of the EU Biodiversity Strategy to 2020 (SWD(2022)284) confirmed that soil degradation and loss and desertification pose a threat to habitats and species. It also stated that nature-based solutions are essential to help reduce emissions and adapt to a changing climate.

• Stakeholder consultations

The Commission organised a call for evidence on soil health between 16 February 2022 and 16 March 2022 that received 189 replies.

Between 1 August 2022 and 24 October 2022, the Commission organised an online public consultation on the potential Soil Health Law on protecting, sustainably managing and restoring soils. It received 5 782 responses.

Since 2015, the Commission has maintained an open dialogue with Member States via the EU expert group on soil protection. The group typically met twice a year but convened eight times in 2022 to discuss several aspects of the Soil Health Law based on thematic working papers prepared by the Commission. In October 2022, the expert group was extended to include stakeholder groups other than Member States. The expert group met twice in the new composition on 4 October 2022 and 7 February 2023 and discussed the Soil Law in these meetings.

The Commission also organised interviews and sent targeted questionnaires to elicit the views of experts on the costs, feasibility and impacts of certain measures. It collected responses between 14 and 28 November 2022.

A synopsis report of all consultation activities is annexed to the impact assessment (Annex 2). It describes the strategy, method and overview of the feedback received. The Commission took full account of the views of the stakeholders when comparing the various policy options (see Annex 10 to the impact assessment).

• Collection and use of expertise

The Commission drew substantially from the expertise of the EU expert group on soil protection which discussed several thematic papers prepared by the Commission and on the internal research expertise developed by the Joint Research Centre.

The Commission also drew on the publicly available data and knowledge from competent organisations such as the FAO, EEA, IPBES and European Academies Science Advisory Council. It collected further expertise through service contracts and EU-funded projects notably under Horizon programmes.

• Impact assessment

The proposal is based on an impact assessment. After having resolved the issues raised in the Regulatory Scrutiny Board’s negative opinion issued on 17 February 2023, the draft impact assessment received a positive opinion with reservations on 28 April 2023. The Regulatory Scrutiny Board required in particular to clarify the content and feasibility of the options, to reflect the risks of not reaching the objective of healthy soils across EU by 2050, to nuance the analysis of the impacts on competitiveness and to be more explicit on the views of Member States.

2.

In the impact assessment, the policy options have been described by using five key building blocks:


definition of soil health and establishment of soil districts,

monitoring of soil health,

sustainable soil management,

identification, registration, investigation and assessment of contaminated sites,

restoration (regeneration) of soil health and remediation of contaminated sites.

Options have been designed for each of the five building blocks, by modulating flexibility and harmonisation to different degrees corresponding to meaningful potential solutions. One option was designed to give the highest degree of flexibility for Member States, another with the highest degree of harmonisation and a third gives an intermediate degree of harmonisation and flexibility. Option 1 is a monitoring-only scenario without measures on sustainable soil management, regeneration and remediation, but it was discarded at an early stage because it was deemed insufficient to achieve the objectives and meet stakeholders’ expectations.

The preferred option combined the most effective, efficient and policy coherent options selected from each building block. For all building blocks, except for the remediation of contaminated sites, Option 3 providing an intermediate level of flexibility and harmonisation was chosen (and very flexible Option 2 for remediation). The preferred option resulting from the impact assessment was based on a staged approach that would give Member States time to put in place the mechanisms to first assess the condition of soils and then decide on the regeneration measures needed once the conclusions are available.

The preferred option was designed to tackle the costs of soil degradation, in particular the resulting loss of ecosystem services. It would ensure that the EU will achieve its policy objectives, such as healthy soils and the zero-pollution ambition by 2050, in a cost-efficient manner. Most benefits come from avoiding costs by tackling soil degradation. The highest costs relate to the implementation of measures for sustainable soil management and regeneration. The benefits of the initiative were estimated at around EUR 74 billion per year. Total costs would be of the order of EUR 28-38 billion per year. For contaminated sites, the annual cost is highly uncertain. It is estimated at EUR 1.9 billion for the identify and investigate contaminated sites and EUR 1 billion a year to remediate contaminated sites.

Although it was not possible to quantify and monetise all impacts, the benefit-cost ratio of the preferred option was estimated at a conservative and prudent 1.7. It also requires Member States to ensure public participation, in particular from soil managers, farmers and foresters.

The transition to sustainable soil management requires investments to reap the long-term benefits of healthy soils for the environment, economy and society. Successful implementation of the preferred option requires tapping various sources of funding at European, national, regional and local level. Therefore, this proposal is published alongside a Staff Working Document (SWD) providing an overview of funding opportunities available under the EU’s 2021-2027 multiannual budget for the protection, sustainable management, and regeneration of soils. Member States also continue sharing knowledge, experience and expertise in several interconnected EU platforms on soil health.

The proposal corresponds to the preferred option for all building blocks except for the building block on soil restoration. The proposal is less demanding in terms of soil regeneration than the preferred option contained in the impact assessment in order to limit the burden on Member States, landowners and land managers. In particular, the proposal does not require Member States to create any new programmes of measures or soil health plans. However, since this approach may entail an increased risk not to reach the objective of healthy soils by 2050, it is proposed that the Commission will carry out an analysis on the need to set more specific requirements to restore/regenerate unhealthy soils by 2050 in the context of an early evaluation of the directive scheduled 6 years after its entry into force. This analysis will be based on exchanges with the Member States and interested parties, and will take into account the conclusions of the assessment of soil health, the progress on sustainable soil management and the advancement of knowledge on the criteria for the descriptors of soil health.

• Regulatory fitness and simplification

The business sectors expected to be affected by the initiative include agriculture, forestry and related extension services, business activities that have contaminated the soil, business activities related to remediation of contaminated sites, research and laboratories. Soil degradation affects their productivity and competitiveness. Action taken to address degradation is not rewarded, and affects the level playing field.

Implementing the proposal will create several opportunities for growth and innovation, including for EU SMEs, both in designing and applying sustainable soil management practices, and in investigating and remediating contaminated soils. In addition, setting up a soil monitoring system is expected to create opportunities for research and development and business to develop new technologies and innovations for monitoring and assessing soil health.

To further reduce the administrative burden, the proposal does not require Member States to create any new programmes of measures for sustainable soil management or regeneration. In addition, it draws as much as possible on digital and remote sensing solutions. The Member States will report to the Commission only every 5 years and reporting is limited to the information that the Commission needs to fulfil its role in overseeing implementation of the directive, evaluate it and report to the other EU institutions.

• Fundamental rights

The proposed directive respects fundamental rights and the principles enshrined in the EU Charter of Fundamental Rights. The proposal lays down measures to achieve healthy soils by 2050 and to ensure that soil contamination is reduced to levels no longer considered harmful to human health and the environment. This will provide protection to socially and economically disadvantaged communities living on or close to contaminated sites. The proposal seeks to integrate into EU policies a high level of environmental protection and to improve the quality of the environment, in line with the principle of sustainable development laid down in Article 37 of the EU Charter of Fundamental Rights. It also puts into concrete terms the obligation to protect the right to life as laid down in Article 2 of the Charter.

The proposal contributes to the right to an effective remedy before a tribunal, as laid down in Article 47 of the Charter, with detailed provisions on access to justice and penalties.

The proposal does not regulate the use of property and respects the right of property laid down in Article 17 of the Charter. However, to fulfil the obligations related to monitoring soil health (to take soil samples), the competent authorities in the Member States may need to require landowners to give them the right to access their property in line with the applicable national rules and procedures. Member States may also require that landowners implement measures to manage the soil in a sustainable manner.

4. BUDGETARY IMPLICATIONS

The proposal will have budgetary implications for the Commission in terms of the human and administrative resources required.

The Commission’s implementation and enforcement workload will increase because of this new initiative, which sets a new framework for soil monitoring and assessment, sustainable management and regeneration. The Commission will need to manage a new committee and verify the completeness and compliance of transposition measures. It will also need to monitor and analyse data reported by Member States, adopt implementing acts and provide guidance where needed.

The Commission will step up action on soil monitoring implementation and integration. It will seek support from the scientific community with support from the Joint Research Centre and by launching EU-funded projects.

The European Environment Agency will create a new infrastructure for reporting analyses, support for policies on soil protection and the work needed to integrate soil data with other policy areas. Synergies will be sought with other tasks. A potential need for minor reinforcement will be grouped together in a Legislative Financial Statement of a forthcoming legal proposal.

The annexed financial statement shows the budgetary implications and the human and administrative resources required.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

After the proposed directive enters into force, Member States will have a maximum of 2 years to adopt measures needed to transpose the directive and to notify these measures to the Commission.

The Commission will verify the completeness of the transposition measures notified by the Member States and the compliance of these measures based on explanatory documents explaining the relationship between the components of the directive and the corresponding parts of national transposition instruments.

The proposal has several provisions governing the monitoring arrangements. It puts in place a coherent soil monitoring framework to provide data on soil health in all Member States and for all soils. These data will be made public in accordance with the applicable legislation.

The register of contaminated and potentially contaminated sites will enable the Commission and citizens, NGOs and other interested parties to monitor the obligations regarding soil contamination.

The proposal also sets out reporting provisions. Member States are required to report to the Commission on a limited number of issues every 5 years.

The proposal provides for an evaluation of the directive which will be based on the information reported by Member States and any other available information. This evaluation will serve as a basis for revising the directive. The main findings of the evaluation will be transmitted to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions.

The proposal also contains provisions to adapt the rules in line with scientific and technical progress.

• Explanatory documents (for directives)

The proposed directive touches on environmental law and aims to regulate soil health at EU level while giving Member States a wide degree of flexibility on how to achieve the objectives. There is currently no dedicated EU legislation on soil and the proposed directive contains new concepts and obligations regarding soils which will mainly affect public authorities and stakeholders in agriculture, forestry and industrial sectors.

Member States might use different legal instruments to transpose the directive and might need to amend existing national provisions. It is likely that implementing the directive will affect not only the central/national level of legislation in the Member States but also different levels of regional and local legislation. Explanatory documents will therefore aid the process to verify transposition and help reducing the administrative burden on the Commission of compliance monitoring. Without these, considerable resources and numerous contacts with national authorities would be required to track the methods of transposition in all Member States.

Against this background it is proportionate to ask Member States to shoulder the burden of providing explanatory documents in order to equip the Commission for overseeing transposition of the proposed directive, which is central to the European Green Deal. Member States should therefore notify transposition measures along with one or more documents explaining how the components of the directive are linked with the corresponding parts of national transposition instruments. This is in accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents.

• Detailed explanation of the specific provisions of the proposal

Article 1 sets out the overarching objective of the directive which is to put in place a coherent soil monitoring framework that will provide data on soil health in all Member States and to ensure that EU soils are in healthy condition by 2050 at the latest, so that they can supply multiple services at a scale sufficient to meet environmental, societal and economic needs and to reduce soil pollution to levels no longer considered harmful to human health. The directive contributes to preventing and mitigating the impacts of climate change, increasing resilience against natural disasters and ensuring food security.

Article 2 sets out the territorial scope of the directive which applies to all soil in the EU.

Article 3 provides definitions.

Articles 4 and 5 set out the governance requirements. Article 4 states that Member States must establish soil districts throughout their territory to manage the soils and the requirements of the directive. Article 4 also lays down criteria for Member States to use when establishing such soil districts. Article 5 requires Member States to appoint the authorities tasked with carrying out the obligations set out in the directive.

Article 6 describes the overall monitoring framework based on the soil districts, to ensure that soil health is monitored regularly. It also describes how the Commission can support the action taken by the Member States on soil health monitoring.

Article 7 lays down the soil descriptors and criteria for monitoring and assessing soil health. It specifies that some criteria will be established by the Member States.

Article 8 states that Member States must carry out regular soil measurements. It further lays down methodologies for identifying the sampling points and for measuring the soil descriptors.

Article 9 requires Member States to assess soil health based on regular soil measurements in order to ascertain whether the soils are healthy.

Article 10 lays down sustainable soil management principles that aim to maintain or enhance soil health.

Article 11 provides for mitigation principles that the Member States must follow in the event of land take.

Article 12 sets an overarching obligation to take a risk-based approach to identifying and investigating potentially contaminated sites and for managing contaminated sites.

Article 13 requires that all potentially contaminated sites are identified and Article 14 requires that these sites are investigated to ascertain the presence of contamination.

Article 15 contains obligations regarding the management of contaminated sites. It sets out that Member States must carry out a site-specific risk assessment to ascertain whether the contaminated site poses unacceptable risks to human health or the environment and to take the appropriate risk reduction measures.

Article 16 requires Member States to draw up a register of contaminated sites and potentially contaminated sites. It states that the register must contain the information set out in Annex VII and that it must be publicly accessible and kept up to date.

Article 17 contains provisions regarding EU financing.

Articles 18 contains reporting requirements. It states that Member States must regularly report data and information to the Commission in electronic format.

Article 19 provides for access to information to increase transparency.

Articles 20 sets out the conditions for the Commission to adopt delegated acts.

Article 21 sets out the conditions for the Commission to adopt implementing acts (Committee procedure).

Article 22 contains requirements governing access to justice.

Article 23 requires Member States to lay down the rules on penalties applicable to breaches of the national provisions adopted under the directive. The penalties must be effective, proportionate and dissuasive.

Article 24 provides for an evaluation of the directive.

Article 25 contains requirements to transpose the directive into national law.

Article 26 provides for the entry into force of the directive.

Article 27 specifies that the directive is addressed to the Member States.