10. We have given further
consideration to the first of the following on the basis of further
information from the Government. We maintain our opinion[28]
that it raises questions of legal and political importance, but
now make no recommendation for its further consideration. We
consider that the second of the following raises questions of
political importance, but make no recommendation for its further
consideration:-
DEPARTMENT OF THE ENVIRONMENT
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(17637)
11418/96
COM(96)500
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Communication from the Commission on implementing Community environmental law.
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(17905)
-
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Draft Council Resolution on the drafting, implementation and enforcement of Community environmental law.
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Legal base:
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Articles 5, 130r, 169 and 171 are relevant.
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Background
10.1 When in January
we considered the Communication from the Commission, we asked
Ministers to let us know how the various proposals were to be
taken forward. The Explanatory Memorandum on the draft Council
Resolution responds to our request.
Draft Council Resolution
10.2 The Explanatory
Memorandum of 24 February from the Parliamentary Under-Secretary
of State at the Department of the Environment (Mr Clappison) sets
out in some detail the draft Council Resolution which has been
prepared by the Presidency.[29]
A copy of the text is attached to the EM. We understand that,
although no decision will be taken on it at the 3-4 March Environment
Council, agreement in principle may be sought.
10.3 The draft Resolution
emphasises the need for Member States to transpose Community directives
fully and accurately into national law within the deadlines laid
down in them. It recognises the need for subsidiarity in enforcement,
but emphasises that Community law should be applied with the same
rigour and effectiveness as national law. It recognises the complexity
of environmental law in that it has to take into account inter-relationships
between air, water and land, changing environmental situations
and developing scientific knowledge and technology. In addition,
a number of different legislative authorities and private interests
are involved.
10.4 The draft Resolution
encourages the Commission to consult the major parties at an early
stage on legislative or other proposals, and recommends that Member
States should also consult fully. The availability of documents,
and transparency of the consultation process, are particularly
highlighted. It urges simplicity and overall coherence for Community
environmental legislation, possibly including more use of framework
directives or codifying or consolidating legislation.
10.5 The draft argues
that Member States should provide for appropriate sanctions to
ensure more even enforcement. Such sanctions should be transparent,
dissuasive, proportionate and actually applied in practice, but
should remain within Member States' competence. The Commission
for its part should ensure that environmental objectives and requirements
of Community and environmental law are integrated into financial
support mechanisms and into the monitoring of projects financed
by the Community. The draft Resolution acknowledges the different
inspection systems in Member States, and opposes their replacement
by a common system of inspection, but suggests further consideration
of minimum criteria and guidelines for inspection tasks based
on the work of IMPEL[30].
The draft argues that IMPEL should play an important role during
different stages of the regulatory chain as well as on new draft
proposals. It will, however, require appropriate financial assistance
and a secretariat.
10.6 The draft Resolution
emphasises the importance of improving awareness, knowledge and
application of Community environmental law and appropriate mechanisms
to deal with complaints of both citizens and non-governmental
organisations regarding non-compliance. The Commission would
be requested to submit to the Council a report on existing mechanisms
for dealing with complaints and to assess the need for minimum
criteria or guidelines regarding the handling of complaints at
national and Community level and improved access to courts and
administrative tribunals, bearing in mind the need for subsidiarity
and the different legal systems of Member States.
The Government's view
10.7 The Parliamentary
Under-Secretary says that the Government is committed to the full
and effective implementation and enforcement of European environmental
law throughout the Community, that it welcomes the draft Council
Resolution and that it is broadly content with the text. He indicates
that all the Government's main points on systems of inspection
and access to the courts have been satisfactorily taken into account
during the negotiations.
Conclusion
10.8 When we considered
the Communication from the Commission in January, we sought further
information on how the Commission intended to bring forward the
various proposals. We were concerned that any Directives should
leave to the national authorities the choice of form and methods
of implementation. The Presidency Resolution endorses in general
terms the approach taken by the Commission in its Communication,
and also takes into account the need for subsidiarity.
10.9 There are, however,
some points which we believe the Government should consider carefully
in its examination of the Resolution. Paragraph 13 of the draft
invites the Commission "to consider the inclusion in its
future proposals for environmental measures, where appropriate
and on a case by case basis, of a provision requiring national
implementing measures to include appropriately dissuasive sanctions
for non-compliance with the requirements of the relevant Community
acts and having regard to the principle of subsidiarity".
We would expect the Government to resist any implication that
this paragraph of the Resolution would give the Commission authority
to specify what the sanction should be, since this would be inconsistent
with the view taken in paragraph 12 that sanctions should remain
within Member States' competence. It would also not be in accord
with Article 189 of the Treaty, which leaves to national authorities
the choice of form and methods of implementation of Directives.
10.10 Resolutions
have no formal legal status under the Treaty, but they are statements
of Council policy and can act as a political constraint on Member
States in opposing measures which give more detailed effect to
that policy. We expect the Government to take this factor fully
into account in its deliberations. We have particularly in mind
paragraph 17 of the draft, which might lead to proposals at a
later stage for minimum criteria or guidelines for inspections,
which might properly be left to Member States. Paragraphs 20
to 22 might give rise to proposals for enhancing and increasing
the role, powers, funding and staff of IMPEL.
10.11 The draft Resolution
takes into account many of the concerns on subsidiarity which
we raised on the Communication from the Commission on implementing
Community environmental law. We are therefore now clearing that
Communication. We also clear the draft Resolution, but expect
to be kept informed of any developments upon it and changes, if
any, resulting from consideration by the European Parliament.
28 (17637) 11418/96; see HC 36-ix (1996-97), paragraph 2 (15 January 1997). Back
29 5901/97 of 11 February 1997 (not depositable). Back
30 IMPEL is the EU network for the implementation and enforcement of environmental law. Back
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