Select Committee on European Communities Second Report




Decisions of enforcement authorities should be more open to review by national courts or other quasi-judicial machinery. The Government might draw lessons for the United Kingdom from examination of environmental tribunals and proceedings in other Member States, notably the Netherlands and Denmark.

The Government should ensure that decisions of government departments not to release environmental information (under the Directive on Freedom of Access to Information on the Environment) are subject to judicial review and that the cost of obtaining information does not act as a deterrent.

The Commission should promote legislation to give individuals and NGOs ready access to the courts to seek judicial review of decisions of public bodies in environmental matters.

While Member States should develop national mechanisms to enable complaints to be dealt with locally, they should be distinguished from the Community complaints procedure itself.

The Commission's proposals

  99.    Two further areas of innovative action are proposed:

  (a)  "The Commission will examine the need for guidelines on the access to national courts by representative organisations with a view to encouraging the application and enforcement of Community environmental legislation in the light of the subsidiarity principle, taking into account the different legal systems of the Member States" (paragraphs 36-43).

  (b)  "The Commission will consider making recommendations for the establishment of minimum criteria for the handling of complaints and carrying out of environmental investigations in Member States where such mechanisms [or] procedures are lacking": the Commission envisages the latter task being performed by independent ombudsmen or tribunal-type machinery (paragraphs 30-35).

Witnesses' views on national courts

  100.    The DOE welcomed the general proposition that there should be easier access to national courts; however, they had reservations on how far it was proper for the Community to involve itself in what they regarded as matter of national governments' competence (Q 28). The CBI said that they did not accept that NGOs should have new powers to take individual organisations to court (Q 29); but they were happy with the recent tendency of British courts to apply more liberal interpretations to the concepts of "sufficient interest" and locus standi in relation to judicial review (Q 62). FoE confirmed that this was no longer a problem, at least for the larger NGOs. However, in common with UKELA (p 121), they supported the proposal by Lord Woolf, at one time canvassed by the Law Commission, that any person should have the right to bring an action for judicial review where that is deemed to be in the public interest (QQ 204, 267). WWF said that locus standi was still a problem with the European Court (Q 206).

  101.    UKELA criticised the national courts in the UK for their handling of certain cases involving Community environmental law (p 118). They were not able to say whether this was peculiar to environmental law: they suggested that courts tended to be suspicious of people acting in the public interest in opposition to commercial and property interests, and that they seemed reluctant to follow guidance from the European Court (Q 259). UKELA also expressed concern about the deterrent effect of the "costs in the cause" rule (under which the loser pays all). They considered that the Law Commission's proposals[50] for payment out of public funds of the costs of "public interest cases" did not go far enough, in that the plaintiff did not know the extent of his exposure until the end of the case: they proposed that courts should be able to determine much earlier on in the proceedings that a case was in the public interest (p 119, Q 263-7). DG XI told us that they were planning to launch a study on access to justice which would inter alia look at the position of costs in the Member States (Q 380).

Opinion-national courts

  102.    The Commission proposes a greater role for national courts and authorities in ensuring implementation and enforcement of Community environmental law on the ground. We endorse this trend in general terms. But it also contains dangers where national systems of law enforcement are less effective than they might be. The Commission must retain a watchful eye rather than derogate its responsibilities. Such a trend also makes the need for and the quality of the reports on Directives all the more important.

  103.    We believe that in the United Kingdom locus standi rules no longer inhibit environmental litigation, and we welcome the more liberal approach shown by British courts in recent years towards environmental groups. Nevertheless, we agree with the witnesses from UKELA and the NGOs that the costs rules in British cases can be a major deterrent to legal action. We support the 1994 recommendations of the Law Commission that in cases of judicial review the courts should have a discretion to award costs out of public funds, even where the applicant loses, in cases considered to be in the public interest. We appreciate that it would be helpful for applicants to know as far in advance as possible whether their case is likely to fall within such a category.

Witnesses' views on ombudsmen and tribunals

  104.    We invited views on the Commission's proposals for disputes resolution by national environmental ombudsmen or tribunals. (We should mention, in passing, that it is important to distinguish these proposals from the quite different role of the European Ombudsman in hearing complaints of maladministration within the Community institutions: it became apparent during our enquiry that the terminology has caused much confusion.) There was some support from witnesses (e.g. UKELA) for a specialist tribunal which could develop expertise in environmental law (QQ 266, 279); although SEPA had reservations, in that they saw a risk of the tribunal second-guessing the agencies (Q 131). DG XI explained that the aim was to encourage faster and cheaper resolution of complaints at national or local level instead of involving the Commission in Article 169 proceedings. It was envisaged that the ombudsman or tribunal would have power to investigate complaints, determine whether the legislation had been complied with, and make a non-binding recommendation to the authorities (p 157).

Opinion-ombudsmen and tribunals

  105.    We see some merit in the development of national environmental ombudsmen or tribunals to provide less costly ways of dealing with some types of environmental dispute. The Commission's proposals are undeveloped in this area, and we would urge the Government to consider the issue in more detail. It is important, however, that the development of such processes should not detract from the underlying role of the courts in determining the meaning of what are often complex laws.


The Commission's proposals

  106.    At several points in the Communication the Commission refers to the part NGOs have to play in the formulation and implementation of legislative proposals. This should be seen in the context of the separate proposals for Community funding of environmental NGOs (see paragraph 6 above).

Witnesses' views

  107.    The DOE valued the part played by NGOs in responding to consultation on policy development and transposition of Community law; they also felt that NGOs' role in triggering off Article 169 action was "a valuable function" (Q 31). NGOs saw themselves, in WWF's words, as "trusty environmental watchdogs", and stressed the value of their extensive network of offices in Europe (Q 178). English Nature acknowledged the "vital role" of NGOs in gathering information and challenging public policy, but pointed out that as membership was skewed towards Northern Europe, less attention was paid by NGOs to areas of high biodiversity; they did not regard enforcement as the most important part of the NGOs' role, and had reservations about encouraging a "litigious culture" (p 131, QQ 297-8). The WSA considered that some NGOs had undue influence in Europe (Q 78).

  108.    Asked whether Commission funding of NGO activities might compromise their independence, Mr Hontelez (EEB) acknowledged that "any institutional donor has some influence on the recipient"; but he pointed out that the Commission did not, and would not, fund 100 per cent of NGOs' work: this helped to keep down the Commission's influence. He welcomed the introduction of a proper legal framework for the Commission's support for NGOs (see paragraph 6 above), but was concerned about increasingly bureaucratic procedures. He was also concerned about the Commission's proposal to limit funding to three or four years, which he saw as "violating the whole idea of having permanent representation of environmental organisations in Brussels" (Q 185).

  109.    The RSPB mentioned their involvement in the Wildlife Law Enforcement Group, set up by the DoE and the police, as an example of how NGOs' knowledge and energies could be harnessed constructively: they considered that it offered a model which could be adopted more widely in Europe (p 61, QQ 188-9). Mr Osborn (EEA) said that relatively few NGOs were in a position to supply data of the quality collected by the RSPB:"most NGOs have more opinions than data". But such opinions were, in his view, "very useful in steering official bodies, such as the Agency, to what sort of information will be useful and what will be relevant to the concerns on which the NGOs are focusing....What the NGOs are worrying about is very often what everybody is worrying about in five or ten years' time" (Q 238).

Opinion-role of non-governmental organisations

  110.    We consider that the energy, enthusiasm and expertise of NGOs can contribute significantly to the development, implementation and monitoring of effective environmental policies. NGOs can help to raise the profile of issues in advance of government thinking, by challenging policies and sounding warning signals. We therefore support the principle of some public funding for NGOs, subject to appropriate safeguards.

  111.    We commend the Department of the Environment's Wildlife Law Enforcement Group as a model of constructive co­operation between NGOs and enforcement authorities, which has the potential for wider application in the Community.


Witnesses' views

  112.    It was outside the scope of our enquiry to go in detail into questions of Community enlargement. We took the opportunity, however, to ask some witnesses for their views. The DOE suggested that since it would take time for former Eastern bloc countries to bring their environmental protection standards fully up the level of existing EU Member States, there would be a need to determine priorities for harmonisation of legislation (Q 32). The CBI considered that the prospect of enlargement made subsidiarity all the more important-i.e. that enforcement should be through local agencies overseen by a Community audit capability; some flexibility of standards was an inevitable price of enlargement (QQ 53-4).

  113.    Mr Osborn, English Nature and the EEB saw the priorities as supporting the growth of primary information sources in weaker or poorer Member States and building the capacity of national enforcement agencies and NGOs: the EEB had established contacts with a number of NGOs in Eastern and Central Europe; and the opportunity for non-EU countries to participate in the work of the EEA would help (QQ 243, 291-2, 190-1). Dr David Slater of the Environment Agency referred to IMPEL's policy of exchange visits and discussions with officials from a number of those countries: he was optimistic about the effect of peer pressure in raising standards and did not feel that enlargement would pose intractable problems. Indeed, he did not rule out the possibility that some existing Member States would have something to learn from future accessions to the Community, as had happened when Austria and Sweden joined (QQ 113, 117).

Opinion-implications for Community enlargement

  114.    The prospect of further accessions makes it all the more important to establish the more transparent, systematic and focused procedures which we recommend in this Report. We commend the efforts of the European Environment Agency, IMPEL and the European Environment Bureau in helping to build capacity in the national agencies and NGOs in the countries of Central and Eastern Europe who aspire to join the European Union. The PHARE programme of technical assistance, provided that it is well targeted and that its procedures have been reformed in line with the recommendations of our 1995 Report[51] and the recent report of the European Court of Auditors[52], should have an important part to play in supporting the process of approximation of environmental law in those countries.

50   Made in 1994 but not yet implemented. Back

51   See Environmental issues in Central and Eastern Europe: the PHARE programme, 16th Report, 1994-95, 18 July 1995, HL Paper 86. The PHARE programme was established by the European Community in December 1989 under Council Regulation (EEC) No 3906/89 (OJ L375, 23 December 1989) in order to support the process of reform in Poland and Hungary and, in particular, to finance economic restructuring projects (the acronym PHARE stands for "Pologne/Hongrie: Assistance à la Restructuration Economique"). Later the programme was extended to Bulgaria, the Czech Republic, Romania and Slovakia (1990), to Albania, Estonia, Latvia and Lithuania (1991), and to Slovenia (1992), Croatia (1995), Bosnia-Herzogovina and Macedonia (1996). Following the Essen European Council meeting of December 1994, the PHARE programme has become the main instrument of financial support to countries applying to join the EU and is designed to help them create the conditions necessary for future membership. The programme covers a wide range of sectoral activities, including infrastructure development (energy, transport and telecommunications), education, health, training, research, private sector development and enterprise support, and environmental development and protection. Back

52   Special Report 3/97 of the Court of Auditors concerning the decentralised system for the implementation of the PHARE programme, 23 March 1997 (to be published in the Official Journal). Back

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