THE
COMMISSION'S COMMUNICATION-GENERAL POINTS
The Commission's
general approach
13. The Commission's
detailed recommendations are discussed in later sections of this
Report. In this section we note witnesses' views, and offer our
opinion, on several general themes which run through the Communication:
The specific character of environmental
law
(paragraphs 7-9)
The so-called "regulatory
chain" (paragraph
18)[20]
Improved transparency
(paragraph 51)
Promoting knowledge of Community
environmental law (paragraph 60)
The integration principle
(paragraphs 61-63)
Witnesses' views
14. In general, witnesses
welcomed the Communication. Mr Derek Osborn, Chairman of the European
Environment Agency (EEA), found it "extremely interesting...but
still rather tantalisingly imprecise at the edges" (Q 223).
The DoE shared the Commission's broad analysis: what to them made
environmental legislation special was its concern to protect human
health, natural resources (which had economic value) and intrinsic
goods such as landscape and wildlife (QQ 7, 14). The Confederation
of British Industry (CBI) felt that it was possible to overplay
the special character of environmental law: the environment might
be special in some respects, but that did not mean that environmental
legislation had to be more complex than, say, social and economic
legislation (Q 43). They considered proper monitoring and
enforcement of environmental legislation to be "absolutely
paramount. It is fundamental to the whole question of environmental
improvement and the achievement of a level playing field"
(Q 56). The United Kingdom Environmental Law Association
(UKELA) thought that it was the need to balance private and public
interests that made environmental law a difficult area for the
courts (Q 262).
15. Non-governmental
organisations (NGOs) were equally convinced of the fundamental
importance of the issues raised by the Communication, whilst expressing
concern that the Commission's proposals did not go far enough.
For example, Friends of the Earth (FoE) said that their initial
hopes were dashed by the document that eventually emerged: they
felt it "disclosed a lack of political will to put enforcement
of environmental law at the top of the agenda" (Q 164);
and the World Wide Fund for Nature (WWF) saw the proposals as
shifting too much responsibility for enforcement to Member States
(Q 164). Some of this thinking is reflected in the European
Parliament resolution of 15 May 1997, reproduced at Appendix 7.
For the Commission, the witnesses from Directorate-General XI
(DG XI)[21]
stressed that this was the first time that they had tried to approach
implementation and enforcement issues comprehensively, and they
looked to the Communication to stimulate a debate in which everybody
would feel a sense of "shared responsibility" (Q 352).
16. The Environment
Agency for England and Wales expressed their strong support for
the "regulatory chain" concept (Q 106), although
the Scottish Environment Protection Agency (SEPA) felt that the
Communication placed too much emphasis on procedures and not enough
on evaluating actual environmental improvement (Q 106). English
Nature also supported the "chain" approach but thought
that the Communication gave too much weight to enforcement, which
in their experience was best regarded as a last resort (QQ 287-8, 294):
the need was to change the culture through effective integration
of environmental considerations into other Community policies,
such as agriculture, so that the legislation would to a large
extent become selfenforcing (Q 293).
17. Issues of transparency
came up frequently as we discussed with witnesses the various
links in the "chain": we deal with these in later sections.
One general area of concern was the effectiveness and transparency
of internal consultation procedures within the Commission. We
were informed by DoE that the Commission had an established process
of "inter-service consultation" for any evolving proposal,
for which a lead directorate-general would be designated (QQ 157);
it had also adopted, in January 1996, General Guidelines for
Legislative Policy, covering such things as the need to ensure
consistency between Community policies, improved systems of impact
assessment, continuous review of existing legislation, wider external
consultation, simple and clear drafting, and observance of the
principles of subsidiarity and proportionality (Q 13). The
text of these guidelines is reproduced in Appendix 9.
18. Both NGOs and industry
witnesses acknowledged there had been improvement, but some problems
remained: for instance, despite what DoE had said, it was not
always clear which directorate-general was in the lead on a particular
proposal (QQ 60-1, 195). The Environment Agency thought
the problem lay in consultations being conducted at too high a
level (and therefore too late) (Q 146); English Nature similarly
saw a problem of vertical chains in the different directorates-general
and inadequate crosslinks on policy (Q 282). The Environmental
Services Association (ESA) even cited instances of uncoordinated
activity within DG XI itself (p 16, Q 91).
19. The NGOs pressed
for greater transparency of Council proceedings, arguing that
the Code of Conduct on public access to Commission and Council
documents[22]
was rendered largely ineffectual by excessive recourse to exceptions
(pp 65, 712, QQ 195-200). The Institute for
European Environmental Policy (IEEP) was, however, sceptical about
the prospects for achieving greater openness in the proceedings
of the Council of Ministers: Mr Nigel Haigh drew an analogy between
the Council, as a policy-making body, and the United Kingdom Cabinet
(whose deliberations are necessarily private): even when the Council
was acting in its other capacity, as a legislature, its proceedings
often involved the sort of negotiation and compromise typical
of international diplomacy, which could not in practice be conducted
under the public gaze. It was, however, quite unacceptable for
the Council to compromise on intentionally ambiguous wording in
directives and then to adopt declarations in private which affected
their interpretation. It was hoped that a recently introduced
code of conduct on access to Council minutes would help to curb
this practice (Q 341; Appendix 5, p 65).
20. The Commission's
proposals for increasing awareness-particularly among judges,
lawyers and officials-of environmental law did not elicit much
direct comment from witnesses. Mr Haigh of IEEP said he was not
clear what the Commission really meant (QQ 337-8). The RSPB
cited the handling of the Lappel Bank case[23]
as evidence that the judiciary would have benefitted from better
training in environmental issues and European law (p 62).
Mr BurnettHall (UKELA) suggested that compared with the
inquisitorial procedure of continental European legal systems,
environmental litigation sat less easily with the UK's adversarial
procedure, in that parties could find themselves arguing, often
at considerable length, before a judge who was not necessarily
very experienced in the technical and legislative area in question
(Q 263). DG XI's reply to our written question on this
issue acknowledged that the evidence was largely anecdotal and
based on individual complaints to the Commission, of which only
a few examples were cited. Nevertheless they perceived "a
serious lack of appreciation of both the substantive EC environmental
law and the relevant general jurisprudence of the European Court
of Justice", which they envisaged being addressed through
seminars and training for the legal profession, with some modest
financial support from the Commission (p 157).
21. Although we decided
that a detailed review of the principle of integration of environmental
considerations into other areas of policy would be outside the
scope of this Report, many witnesses responded to our invitation
to comment on relevant aspects of policy integration in their
written submissions and emphasised its importance to credible
and effective implementation and enforcement of environmental
law. For instance, English Nature stressed the damaging effects
of the Common Agriculture Policy, the Structural Funds and EU
policies in other fields, such as transport (pp 131-2, Q 282-4);
UK members of the European Environmental Bureau (EEB) wished to
see the environment given equal status with competition policy
(Q 194); and SEPA felt that much environmental legislation
had been over-compartmentalised and that this had in some areas
hampered environmental improvement (Q 155).
Opinion-general
approach of the Communication
22. We welcome the
Commission's Communication on Implementing Community Environmental
Law and the concept of the "regulatory chain", which
emphasises that implementation and enforcement issues are not
confined to the formal legislative stage of the process but must
encompass such issues as initial design of legislation, institutional
structure, and training and education. We are pleased to note
progress on a number of the issues on which we made recommendations
in our 1992 Report, but must stress that much remains to be done
by the Commission and Member States in developing and putting
into practice the proposals in the Communication. As we note under
several headings below (paragraphs 24, 33-4, 92, 95-7), transparency
remains our greatest concern. However, it is not without significance
that six out of the 15 EU Member States now have general freedom
of information legislation[24],
and that the United Kingdom Government has promised a White Paper
on the subject this summer. As more Member States move in that
direction, the pressure for greater openness in the Community
is bound to increase.
23. We also welcome
the Commission's General Guidelines for Legislative policy,
but we note that some problems remain with internal coordination
of policy, particularly between different directorates-general
but also occasionally within DG XI itself. These require
attention if the important policy of integrating environmental
considerations into other Community programmes is to achieve worthwhile
results. We hope that the problems will diminish as Commission
staff become more familiar with the guidelines.
24. On the whole,
we are pleased to note the terms of the June 1997 Council Resolution,
which generally gives a fair wind to the further development of
the Commission's proposals. We remain concerned, however, about
the low level of transparency which applies to proceedings of
the Council. In the long-term interests of the environment, we
feel that the Community must now tackle this issue with some determination
if implementation and enforcement of environmental law are to
command widespread public support. We note that the draft Treaty
of Amsterdam inserts a new Article on transparency into the EC
Treaty, guaranteeing a right of access to documents of the Community
institutions[25].
This right, however, is subject to the Council of Ministers' power
to determine principles of access and to detailed procedural rules
to be adopted by each institution. Much therefore will depend
on how far the Council is prepared to go in meeting the expectations
which the new Article will undoubtedly arouse.
PREPARATION
AND FORMULATION OF POLICY
