Select Committee on European Communities Second Report




Difficulties of legal interpretation should not lead to the development of more prescriptive or inflexible legislation, either in form or content. The requirements of environmental protection can best be met by providing Member States with the opportunity to tailor Community requirements to meet local legal and administrative arrangements and environmental conditions. Directives can best achieve this and should remain the main form of legal instrument for Community environmental policy. Member States should not, however, regard the use of directives as a soft policy option, even if that were possible given the developing jurisprudence of the European Court.

There may, however, be scope for some increase in the use of regulations. The Commission and Council should address the general principles on the choice of legislative instrument, and the Commission should explain its choice in the explanatory memorandum for each proposal.

The Commission's proposals

  36.    The Commission says that it "will ensure that all proposals for new Community environmental measures or amendments of existing measures are drafted in accordance with the principles of achieving maximum clarity, transparency and certainty, in order to make the implementation process simpler and quicker. During the legislative process the Commission will seek to co­operate with the Council of the European Union and the European Parliament on issues of drafting and will propose its own drafting amendments where these become necessary as a result of points raised or alterations to its original text made during negotiations." (paragraphs 45-47)

  37.    It goes on to say that it "may include in its proposals for environmental measures a provision requiring national implementing measures to include appropriately deterrent sanctions for non-compliance with the requirements of the relevant directive." (paragraphs 48-50)

Witnesses' views

  38.    The Commission's proposals to improve the drafting and clarity of Community environmental legislation, as the first step towards improved implementation, were generally welcomed. But again there were calls for more transparency: the Environment Agency and SEPA saw a need for more consultation at drafting stage and for feedback on the results of consultation (QQ 146-7); while United Kingdom EEB members thought the key to greater clarity was greater transparency in the Council (Q 200). UKELA felt that full transposition and effective enforcement of existing legislation would achieve environmental gains that would probably substantially outweigh anything that could be achieved by the Commission's sharpening up its own drafting procedures (Q 256).

  39.    The IEEP has recommended, in the paper at Appendix 5, that before any directive is finally adopted, the needs of implementation (including reporting requirements, transitional provisions and absence of ambiguity) are formally considered; and that each Member State should be prepared to give an assurance, at the time of the adoption of a directive, that it has begun to consider what is needed for implementation by way of legislation, finance and capacity of its competent authorities (p 65). In this context the Cabinet Office's checklist "Implementing European Law", to which our attention was drawn by DoE (Q 13), offers a useful model at the Member State level. We have reproduced this document at Appendix 11.

  40.    We asked for views on whether the Commission was having proper regard to subsidiarity and the practicalities of enforcement when drafting legislation. DoE and the environment agencies felt that strong enforcement at national level went hand in hand with subsidiarity (QQ 10, 108). UK EEB members felt that the application of the principle of subsidiarity posed no problem so long as Community legislation set clear standards and objectives, so that effective action could be taken at the appropriate national level to achieve a level playing field across the Community (QQ 166-7, 169). The CBI and the WSA strongly supported greater use of framework directives, because of their strategic nature, their ability to accommodate different national legal systems, and the scope they left to Member States to devise (and keep updated) appropriate technical solutions (QQ 45, 76). Similarly the DoE and SEPA favoured framework directives, but pointed out that not every form was necessarily going to mean greater subsidiarity (for example, one should beware of directives which spawned highly prescriptive "daughter" directives) (QQ 9, 110). The suggestion in the 1992 Report that greater use of regulations, as opposed to directives, might be considered did not generally find favour: the Department said it tended to prefer directives because of the greater flexibility they offered to Member States; but they agreed that some areas of policy (e.g. transboundary pollution) were suitable for tackling by regulations (Q 11).

Opinion-form and drafting of legislation

  41.    We welcome the Commission's proposals to improve clarity of drafting: we note that the quality of the drafting of Community legislation is a matter to which considerable attention has been paid in the context of the proposed Treaty of Amsterdam. We agree with the Institute for European Environmental Policy that before any directive is finally adopted, the needs of implementation are formally considered: Member States must, prior to adoption, examine systematically what is needed for implementation by way of legislation, finance and capacity of its competent authorities. In this connection the Cabinet Office checklist on implementing European law, if suitably purged of its somewhat negative tone, could provide a model for a concise and useful methodology to be used by national negotiators when appraising Community legislative proposals at pre­adoption and subsequent stages.

  42.    Framework Directives have advantages in terms of subsidiarity and allowing for implementation that fits national institutional arrangements, but they must be such as to permit effective Community-wide monitoring.



It should be standard practice for transposition to be effected by means of instruments which have legal force.

Where problems of transposition arise, the Government should use the powers under the European Communities Act 1972 as a temporary measure to ensure transposition, but bring forward appropriate primary legislation at an early date. The Act might serve as a useful model for adoption in other Member States.

Member States and the Commission should consult on the form of national implementing legislation, which should be planned at the earliest opportunity.

The Commission's proposals

  43.    The Commission advises Member States to "ensure that they have co­ordination mechanisms which enable proper consultation prior to the adoption of national transposing measures. To assist Members States in their task, the Commission will incorporate in explanatory memoranda accompanying its legislative proposals references to the potential scope of the proposed measure and to its impact within the Member States." (paragraph 52)

  44.    Under the heading An Information Strategy for Community environment policy and law, the Commission proposes that its Annual Report on Monitoring the Application of Community Law[32] should from now on be expanded to contain details of national transposing measures notified by Member States and the actions being taken nationally to apply them (paragraph 53). Earlier in the Communication (paragraph 47) it suggests, more tentatively, that Community legislative texts might include provisions requiring Member States to publish additional information on implementation, such as tables of transposition showing, article by article, how national legislation gives effect to the corresponding provisions of directives.

Witnesses' views

  45.    The Commission's approach was generally supported. The DoE told us that since it already attached considerable importance to consulting interested parties in developing its policies, it would welcome seeing the practice adopted more widely across the Community, including consultation with NGOs about transposition (Q 27).

Opinion-transposition and practical implementation

  46.    We agree with the Commission that it is important that Member States ensure that there is proper consultation at national level before governments commit themselves to the precise form of national transposing legislation. This process of consultation, however, should not be seen as a wholly domestic matter. We understand that at present the standard practice is that the first time that the Commission sees the form of national implementing measures is when these are sent in final form under the requirements of the relevant directive. Only occasionally do Member States engage in informal discussion with the Commission before the prescribed deadlines. We think it is important that Member States and DG XI's technical and legal services should establish mechanisms which would allow them to consider, jointly and in detail, implementation requirements before formal legislation is submitted by Member States to the Commission, i.e. between the period of agreeing a Directive and the deadline for implementation (normally two or three years). This process can help identify ambiguities and points of conflict in advance and before Member States have over-committed themselves on the form and content of national implementing measures. Again we commend the Cabinet Office's checklist as a useful methodology which could be adapted for the purpose.

  47.    We strongly support the Commission's suggestion that Community legislation might require Member States to provide details, article by article, of how their national legislation meets the obligations under particular directives. We recommend that this information is made publicly available. We recommend that in any event the Department of the Environment should adopt this practice in relation to United Kingdom implementing legislation and should publish the results.

32   See, for example, COM(96)600 final: Commission of the EC, Thirteenth Annual Report on Monitoring the Application of Community Law (1995), 29 May 1996. Back

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