Select Committee on European Communities Second Report


PART 3 SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

  115.    The following is a summary of the Committee's conclusions and recommendations. It should, however, be read in conjunction with the full texts, printed in bold type, of the "Opinion" sections in Part 2 of the Report. Specific recommendations have in all cases been made explicit.

GENERAL

i      We welcome the Commission's Communication Implementing Community Environmental Law and the concept of the "regulatory chain" of design, drafting, adoption, implementation, enforcement and evaluation of environmental legislation. We are pleased to note progress on a number of the recommendations in our 1992 Report, but must stress that much remains to be done in developing and putting the Commission's proposals into practice. Our greatest concern remains transparency in the Community institutions: we think that pressure for greater openness is bound to increase as more Member States adopt general freedom of information legislation. (22)

ii      We also welcome the Commission's General Guidelines for Legislative Policy. Some problems of internal coordination remain which we recommend require attention. (23)

iii    On the whole we are pleased to note the terms of the June 1997 Council Resolution on the Commission's proposals. We remain concerned about the lack of transparency in Council proceedings: the Community must tackle this problem with determination if implementation and enforcement of environmental law are to command widespread public support. Much will depend on how the new Article 191a of the EC Treaty is applied in practice. (24)

PREPARATION AND FORMULATION OF POLICY

iv      Although there have been some welcome improvements, we recommend that the Commission when formulating policy should pursue a more thorough and open process of consultation, which should include non-governmental organisations. (32)

v      We must reiterate our concerns about the unwarranted secrecy that surrounds scientific and technical advice to the Commission, which DG XI's reference to "comitology" does not properly address. Advances in science depend for their credibility on an open process of peer review. That process is frustrated by absence of transparency. We agree with the Department of the Environment and English Nature and recommend that papers produced for the Commission by its expert advisers should be published and that the outcomes of advisory committee meetings should be made public. (33-4)

vi      We recommend that all appointments to advisory and regulatory committees should be through a fully open process. Membership should include practitioners from regulatory authorities and industry. We also recommend that information should be publicly available on the membership of the formal committees appointed under the "comitology" procedure. (35)

FORM AND DRAFTING OF LEGISLATION

vii    We welcome the Commission's proposals to improve clarity of drafting. We recommend that before any directive is adopted, Member States should examine systematically the practical implications of implementation. The Cabinet Office checklist on implementing European law provides a useful methodology for considering such questions. (41)

viii    Framework directives have advantages in terms of subsidiarity and allowing for implementation that fits national institutional arrangements. They must be such as to permit Community-wide monitoring. (42)

TRANSPOSITION AND PRACTICAL IMPLEMENTATION

ix      We recommend that Member States and the Commission should establish mechanisms for joint and detailed consideration of implementation requirements before the Member States formally notify legislation to the Commission. This process would help to identify problems before Member States have committed themselves too far to the form and content of national implementing measures. (46)

x      We strongly support the Commission's proposal that Member States should be required to provide details of how their national legislation meets the obligations under particular directives. We recommend that this information is made publicly available. In any event we recommend that the Department of the Environment should adopt this practice for UK implementing legislation and publish the results. (47)

MONITORING, REPORTING AND EVALUATION

xi      We recommend that all future European Community environmental legislative measures should contain provision for regular reporting by Member States on implementation, and that existing measures are amended to this effect where appropriate. Reports should always be published. We support the Commission's proposals for a detailed annual report on implementation and enforcement in the environmental field. (58-9)

xii    We commend the Institute for European Environmental Policy's Manual of Environmental Policy and trust that the Department of the Environment will continue to support it. We recommend that the Commission, perhaps with the European Environment Agency, should explore ways of encouraging the production of similar reference works in other Member States. (60)

xiii    There is scope for the European Parliament to play a more active role in encouraging conformity with Community environmental legislation and in supervising the Commission in the exercise of its responsibilities. We recommend that reports by the European Environment Agency should be submitted to the European Parliament as well as to other Community institutions. (61)

xiv    National parliaments could be more active in examining the implementation and effectiveness of existing Community legislation, as well as scrutinising new proposals from the Commission. (62)

xv    We urge the Council of Ministers to pay more attention to implementation issues, on the basis of reports to be provided by the Commission or the European Environment Agency. (63)

xvi    The European Environment Agency has made excellent progress since its inception in 1993. One of its most valuable tasks is the production of quality assured data. We support its Chairman's wish to see more effective links with the various committees advising the Commission. (64-5)

xvii    We do not feel that the European Environment Agency should at this stage be given a formal role in the implementation and enforcement process. Nevertheless, we recommend that the Agency should play a role in assisting the Commission in the preparation of the reports required under various environmental directives. Eventually the Agency might be given the task of preparing such reports in its own right. (66-7)

xviii    In assisting the Commission in the preparation of reports, the European Environment Agency must necessarily consider implementation problems as well as the current physical state of the environment. This need not, however, involve straying into the Commission's policy territory. The Agency would also be able to provide guidance to Member States on the information needed for their own reports to the Commission. We recommend that any material provided by the Agency to the Commission for these proposes should be published. We recognise that the Agency's legal expertise might need strengthening if it were to take on these tasks. (68)

INSPECTORATES

xix    We strongly support the Commission's proposal to develop guidelines for national inspectorates. A high degree of uniformity across the Community in inspection standards is an essential prerequisite of effective enforcement at Member State level and need not detract from subsidiarity. (75)

xx    IMPEL-the Community-wide network of professional inspectors mainly involved in pollution control-is a useful initiative, but its relationship with the Commission and the European Environment Agency is unclear in the Commission's Communication. We recommend that this is clarified as quickly as possible. (76)

xxi    We are concerned that the Commission appears to envisage IMPEL developing into a semi-official regulatory body. We consider IMPEL should remain a professional association, independent of the Community institutions, and should not take on any formal role in the implementation and enforcement of Community environmental law. We recommend that establishment costs of IMPEL should be shared between the Member States, not borne by the Commission. We also recommend that IMPEL should regularly consider implementation issues and offer opinions on them, in published reports, to the Commission, the European Parliament and the Council of Ministers. (77)

xxii    We consider that there would be value in having a similar professional grouping of national regulatory bodies concerned with nature protection and related matters, complementary to IMPEL. (78)

xxiii    If a Community-level "inspectorate of inspectorates" were to be established, the logical home for it would the European Environment Agency. But we agree with the Commission that the question of formal machinery for auditing national inspectorates need not be pursued for the time being. (79)

ENFORCEMENT

xxiv    We welcome the Commission's concern to place more emphasis on ensuring that national legislation implementing Community obligations fully reflects Community law and is in place in time. (91)

xxv    For cases of poor implementation, where it is appropriate for the Commission to initiate proceedings against Member States under Article 169 of the EC Treaty, we recommend that the Commission should develop and publish (as it has done in the competition field) a more clearly defined statement of its policy and priorities for handling such cases. We welcome the European Ombudsman's initiative in investigating the Commission's performance in this field. (92)

xxvi    We suggest that a Commission official in each Member State should have the task of compiling factual dossiers on complex complaints, to shorten the present cumbersome communication chain between the Commission and Member States in these cases and to ease the burden of the Legal Unit in DG XI-although we consider that the directorate-general's complement of lawyers needs to be strengthened in any event. (93)

xxvii  As a matter of good administration, we recommend that the Commission should always inform complainants each time a critical decision is taken, such as to drop an investigation or start Article 169 proceedings. Where the Commission and a Member State have "settled" an action-e.g. with the Member State undertaking to take corrective legislative action-we recommend that the parties should publish an agreed statement of the results within one month, and that until such procedures are agreed UK government departments should adopt the practice unilaterally for all cases in which they are involved. (94-5)

xxviii  We recommend that the European Parliament should take a closer interest in the handling of complaints to the Commission. We recommend that the Commission should be required to publish regular reports to the Parliament on its dealings with Member States in this area. We also recommend that more information is published on the outcomes of réunions pacquet meetings, and that complainants should be informed of progress on items that affect them. (96)

xxix    We wish to re­state emphatically the recommendation of our 1992 Report that Article 169 letters, Reasoned Opinions and the responses to them should be in the public domain. We would be content for publication to occur at the point where papers are lodged with the Court of Justice. (97)

xxx    Notwithstanding some reservations in our 1992 Report, we welcome the Commission's decision to press ahead with a number of cases where it will be asking the Court of Justice to apply financial penalties under Article 171 of the EC Treaty to Member States who have failed to comply with judgments of the Court. We believe these will have a salutary deterrent effect. (98)

ACCESS TO JUSTICE

xxxi    We endorse in general terms the Commission's proposal to rely more on national courts and authorities in ensuring compliance with Community environmental law. We are concerned, however, that the Commission retains a watchful eye and does not derogate its responsibilities. Such a policy makes the need for good quality reports on directives all the more important. (102)

xxxii  Although locus standi may no longer be a serious obstacle to environmental litigation in the United Kingdom, we find that the cost rules can be a major deterrent to non-governmental organisations and others seeking to challenge decisions by the authorities. We support the Law Commission's 1994 recommendations that in judicial review cases the courts should have a discretion to award costs out of public funds, even where the applicant loses, where a case is considered to be in the public interest. It would be helpful if applicants could be told at the earliest possible stage whether their case is likely to fall within that category. (103)

xxxiii  We think the Commission's proposals, currently not precisely articulated, to encourage the establishment of national environmental ombudsmen or tribunals merit pursuit, as a more cost-effective means of dealing with certain types of dispute, provided that they do not detract from the courts' responsibility for interpreting the law in what are often complex cases. (105)

NON-GOVERNMENTAL ORGANISATIONS

xxxiv  The energy, enthusiasm and expertise of non-governmental organisations can contribute significantly to effective implementation of environmental policies. We commend the Department of the Environment's Wildlife Law Enforcement Group as a model to the Community of constructive cooperation between NGOs and regulators. We support the principle of some public funding for NGOs, subject to appropriate safeguards. (110-11)

IMPLICATIONS FOR THE FUTURE ENLARGEMENT OF THE COMMUNITY

xxxv  The prospect of further accessions makes it all the more important to establish more transparent, systematic and focused procedures of implementation and enforcement of Community environmental law. 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. The PHARE programme of assistance, properly targeted and with improved procedures (as recommended by this Committee and the Court of Auditors) should have an important part to play in supporting the process of approximation of environmental law in the countries which aspire to join the European Union. (114)

RECOMMENDATION TO THE HOUSE

  116.    The Committee considers that implementation, monitoring and enforcement of Community environmental law raise important questions of policy and principle. It therefore makes this Report to the House for debate.

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Prepared 21 July 1997