House of Lords - European Communities

Select Committee on European Communities Second Report

APPENDIX 4

Communication from the European Commission COM(96) 500 final, 22 October 1996
Implementing Community Environmental Law

PART I: INTRODUCTION

Background

1. The Community is at a crucial point in its environmental policy. The first stage of its policy, that of legislating for the major environmental problems facing the Community, has developed substantially as a result of the Community's work during the last two decades to create a legal framework designed to ensure a high level of protection for the environment in all its aspects. More than 200 pieces of Community environmental legislation have been adopted. Most of these are directives and therefore raised transposition[53] and conformity issues initially and now, given the fact that most have been transposed, give rise to questions of practical application[54] and enforcement[55], whereas Regulations raise only questions of practical application and enforcement.

2. We are now moving into a second stage of strengthening and consolidating the acquis communautaire through bringing about changes in current trends, practices and attitudes. The Fifth Community Environmental Action Programme on the environment and sustainable development, which was reviewed recently and on which the Commission has made a proposal to speed up its implementation[56], set out a number of priorities for this work. Implementation and enforcement through shared responsibility is one of these key elements, together with the review and/or simplification of some existing legislation and the broadening of the mix of instruments through Community initiatives on voluntary agreements and on fiscal and economic instruments.

3. Achieving the goal of a high level of environmental protection is only possible if our legal framework is being properly implemented. If the strong acquis communautaire on the environment is not properly complied with and equally enforced in all Member States, the Community's future environmental policies cannot be effective and its Treaty objectives cannot be fully and constantly met. The environment will either remain unprotected or the level of protection in different Member States and regions of the Community will be uneven and might, inter alia, lead to distortions of competition.

4. In this respect, it is also important to note that in preparation for the enlargement of the Union, the Commission is working closely with the authorities of the applicant countries to assist them in the adoption and implementation of Community law in the field of the environment[57].

Current position on implementation of Community environmental law

5. Within this context, there are weaknesses in the current state of implementation of Community environmental law in most parts of the Community, and more action is needed in order to improve the situation. The Commission's own statistics on implementation show the following: In 1995, Member States had notified implementing measures for only 91 per cent of the Community's environmental directives, leaving as many as 20 or 22 directives not transposed in some Member States[58]. In the same year the Commission registered a total of 265 suspected breaches of Community environmental law, based on complaints from the public, Parliamentary questions and petitions and cases detected by the Commission: this is over 20 per cent of all the infringements registered by the Commission in that year[59]. In October 1996 over 600 environmental complaints and infringement cases were outstanding against Member States, with eighty-five of the latter awaiting determination by the Court of Justice.

6. The Commission's infringement procedures demonstrate the ways in which problems of implementation arise within the Community. Some legislation causes similar difficulties in most Member States: the Commission has had to begin "horizontal" actions against most Member states in relation to the notification of habitat sites under Directive 92/43/EEC[60] and in relation to Directive 91/676/EEC on agricultural nitrates in water[61]. Other infraction procedures show the variety of environmental problems within the Community: although waste disposal is a major concern to European Union citizens and leads to many complaints to the Commission, in some Member States the main concern is illegal waste dumps while in others it is emissions from waste incinerators. Infraction proceedings also show the intractable nature of some environmental problems: many current cases relate to directives adopted in the 1970s: Directive 76/160/EEC on bathing water[62] and Directive 76/464/EEC on dangerous substances in surface water[63] are two examples where there are continuing problems of compliance in some Member States. More detailed examples of implementation problems by sector are set out in Annex II to this Communication.

Specific character of Community environmental law

7. The very nature of environmental protection creates challenges which are particular to environmental law as distinct from other fields of law. Environmental protection has to take account of complex inter-dependencies and inter-relationships between the environmental media (air, water, soil) and biodiversity: unless care is taken, action to protect one medium can adversely affect another. It had to bear in mind climatic, seasonal and geographical variations in environmental conditions[64] (an approach which may be sound in one part of the Community may not be sound in another). It has to reflect a constantly changing state of knowledge (often implying a need for significant and urgent innovations, adaptations and changes of approach). Because of the potentially very serious consequences of a lack of foresight, it has to an important extent to be based, both in formulation and interpretation, on the preventive and precautionary principles[65] rather than on a curative approach. Because it touches everyone, it has to involve a comprehensive set of actors, from government, industry and enterprise, to the general public, implying often very difficult balancing exercises. Because it relates to general interests in which there is often not a proprietary stake (clean air and water, a healthy biodiversity), it has to envisage methods of ensuring its effectiveness other than methods which are adequate in other fields of law.

8. These characteristics help explain why the implementation and enforcement of Community environmental law is complex and often unsatisfactory. These characteristics could also be found in other sectors of Community law but are particularly salient in the environment field. They are mainly connected with the legal and technical complexity of the matter, which gives rise to numerous questions of interpretation and issues of technical application, as well as difficulties in ensuring the proper co-ordination of the different national authorities involved in the transportation, practical application and enforcement stages.

9. Indeed, most Community legislation on environmental protection is adopted in the form of directives which much be transposed into national laws, giving Member States the freedom to enact transposing legislation in the form most appropriate to its national conditions. Moreover, whether or not the Community legislation is adopted in the form of directives, competent bodies and institutions within national administrations are primarily responsible for the actual and daily application, in all its aspects, of both directly applicable Community measures (ie regulations) and national transposing legislation. Within Member States, whether unitary or federal, competence in relation to the practical application and enforcement of Community environment law is frequently shared between or devolved to different levels of the public administration. This decentralisation of the implementation process adds considerably to the complexity of the implementation of Community environmental policy, and thus co-ordination through the "regulatory chain"[66] is required in order to achieve full and correct implementation. Furthermore, the complexity of the inspection and enforcement functions involving the monitoring of a multitude of individual cases requires sufficient numbers of staff with the appropriate professional qualifications and adequately resourced. This is not always the situation in all Member States.

Implementation powers

10. The Commission, as guardian of the European Community Treaty, has the responsibility of ensuring the Community legislation is applied[67]. It exercises this responsibility mainly through exercising the power to bring infringement proceedings against Member States under Article 169 of the Treaty. This power is a very important and necessary tool for the Commission with respect to enforcement, as shown by the statistics on infringements given above. The Commission intends to continue to make full use of its enforcement powers based on Article 169.

11. An attempt to improve the effectiveness of the Article 169 procedure was made through the Maastricht Treaty by introducing fines against the Member States under Article 171, and this provision is now beginning to be applied. The Commission will also make full use of Article 171 in ensuring full compliance by the Member States with their environmental obligations as defined by the Court of Justice in its judgments in relation to cases brought under Article 169, in order to achieve a strong deterrent effect. Further improvements in the use of Article 169 should arise from the proposals contained in the Commission's recent review of its internal rules on the way in which Articles 169 and 171 are being used[68]. This major review of Commission practice and procedure should considerably enhance the speed and effectiveness with which it can make use of its powers under those Articles.

12. However, it must be recognised that the procedure under Article 169 may be both lengthy and formal, and was not particularly designed with environmental law cases in mind. Because it operates on decisions and actions after they have been taken, even if Community law is applied as a result, it is not always the best way to prevent degradation or damage to the environment from taking place.

13. There are further fundamental problems with the use of Article 169 and Article 171 as the sole means of enforcing Community environmental law apart from the limitations mentioned above. Many environmental regulations and directives have to be applied on a daily basis by large numbers of people throughout the Member States. It would be neither possible nor practical for all the legal actions which could arise from these cases to be channelled through one enforcing authority, the Commission, and one court of law, the Court of Justice. In addition, Article 169 creates a Community "enforcement mechanism" which is directed only against the central governments of the Member States: the Commission is unable to oversee, on the ground, the application of individual decisions (either voluntary or binding) necessary to comply with Community legislation.

14. Nor is it possible for a single, Community wide, judicial enforcement system to take into account the legal and administrative structures at national, regional and local levels within the Member States through which Community environmental measures are applied. The use of such structures is essential to the incorporation of Community environmental law into national systems and to their practical application. Consequently, alternative methods of enforcement which can give full effect to these national and local conditions, which are vital to the proper protection of the environment, are required. More ambitious solutions than can be achieved through changes to practices and procedures under Articles 169 and 171 are therefore required in order to ensure the proper implementation of Community environmental measures.

15. Finally, there is a wide disparity in environmental inspection mechanisms among the Member States. Although the Commission, as the guardian of the Treaty, has the role of ensuring that Member states comply with Community environmental laws, there are non generally applicable Community level mechanisms for the monitoring of the practical application of those laws within the Member States. Thus the Commission has only limited powers to monitor the correct application of Community environmental law. It is almost entirely dependent on information supplied to it on an ad hoc basis by complaints, by petitions to and written and oral questions from the European Parliament, by non-governmental organisations, by the media and by the Member States themselves. Although this information is very valuable to the Commission at the current stage, sole reliance on such ad hoc and unverifiable reporting systems and sources of information could have severely detrimental consequences for the environment in the longer term.

Scope and objectives

16. As it has already been illustrated above[69] and will be shown in detail in Parts II and III of this Communication, the specificities of Community environmental law give rise to particular difficulties and challenges in implementation and therefore it is necessary for special consideration to be given to the solutions which should be applied to meet these difficulties and challenges. The Commission considers that an effective implementation of its environmental laws is crucial since failure is likely to put at risk the credibility of the Community with its citizens in creating and putting in place its future environmental policy.

17. Furthermore, on the international stage, implementation of environmental laws and policy will be an important area for discussion in the review of Agenda 21 which will take place as part of the follow up in 1997 to the Rio "Earth Summit". If it is to make an effective contribution to this debate, the Community must have its own implementation policies firmly in place by that time.

18. This Communication is the Commission's initial contribution to taking forward the aims of the Community in this area. It seeks to ensure that environmental laws are fully and correctly transposed within the Community at all relevant levels and that they are applied and enforced in an even way throughout the Community and thus safeguard Europe's environment. The Commission's task, as a guardian of the Treaty under Article 155, is, taking a comprehensive approach, to improve implementation and enforcement and make proposals for improvements at all appropriate levels, and this Communication responds to the demands of political and public opinion that it does so[70]. The European Parliament, in particular, has always been very supportive of a strengthening of the effectiveness of the Commission's action in that respect; this commitment was once more evidenced at the Joint Hearing "Challenges to Environmental Protection: Making the Legislation Work", co-organised by the Parliament and the Commission, and held on 30 May 1996. The approach of the Communication is broad. It presents the "global picture" of the implementation, practical application and enforcement issues of Community environmental law. The approach adopted by this Communication also takes into account the methodology of the "regulatory chain" which demonstrates in successive stages all the problems related to implementation (legislation, transposition, practical application, enforcement and review).

19. The objective is to present a clear analysis of the issues covered by this broad approach and to raise awareness of them (at all levels-citizens, NGOs, regional authorities, Member State governments and Community institutions). In the light of this analysis the purpose of the Communication is to reinforce the obligations which different actors in the regulatory chain (the Commission, Member States, regional and local authorities, industry, citizens and non-governmental organisations) bear in the "shared responsibility"[71] for the application of Community environmental law, in order to increase the effectiveness and efficiency of environmental policy and law with consequent improvements for the European environment. The remainder of this Communication sets out orientations for achieving those solutions, which will bring improvements to the implementation and enforcement of Community environmental law at all relevant levels and enable the environmental objectives assigned to the Community by the Treaty to be achieved.

Structure of the Communication

20. Issues of implementation, application and enforcement have been examined against the framework provided by the regulatory chain. That analysis has shown that there is a need for a broader range of actions which include aspects which can be considered innovative, aiming to ensure the achievement of specific objectives for which the existing mechanisms seem not to be fully appropriate or efficient, as well as on the existing mechanisms and procedures in order to reinforce and make them even more effective. Parts II and III of the Communication deal respectively with the "innovative approach" and the "reinforcing" one, the two being closely linked in achieving the general objective foreseen, that is to say, good implementation and enforcement of environmental community law.

21. The new areas covered in Part II need to be examined and, if retained, made effective by appropriate procedures to be decided upon at a later stage as they deal with:

- the development of Community-wide minimum criteria for the carrying out of inspection tasks by Member State authorities;

- the operation of environmental complaints and investigations procedures within the Member States which will receive and examine complaints from the public about the implementation of Community environmental law;

- increase the opportunities for environmental cases to be dealt with by national courts, through border access to justice on Community environmental law issues.

22. Action on these three areas will represent important progress towards an even application of Community environmental law throughout the Member States and give European citizens better sources of information and ways of dealing with the concerns they may have in the field of environmental protection. In a sense, it will also make Member States more conscious of their responsibility in ensuring environmental protection by effective application and enforcement of environmental law on the ground.

23. Reinforcing the actual system, in particular the issues covered in Part III, is an equal priority issue as it is the very basis of obtaining timely and correct implementation and enforcement. A large part of the actions which are needed in that respect can be dealt with by the Commission and/or Member States without a need for formal measures to be approved. The Commission will take all appropriate initiatives in order to make them effective as quickly as possible.

53 A definition is given in the Annex. Back

54 A definition is given in the Annex. Back

55 A definition is given in the Annex. Back

56 Progress Report from the Commission on the Implementation of the European Community Programme of Policy and Action in relation to the Environment and Sustainable Development "Towards Sustainability" COM(95) 624 final and the proposal for a European Parliament and Council Decision on its review COM(95) 647 of 24 January 1996. Back

57 Through the Phare programme, approximately 100 million ECU a year is allocated to environmental projects in central and eastern Europe which help national and local authorities to take on and implement Community environmental law, through training programmes and the provision of infrastructure. As far as Cyprus and Malta are concerned, the Commission will continue to support the harmonisation of legislation in the field of the environment in the framework of the acquis communautaire and preparations for their accession to the Union. Back

58 Thirteenth Annual Report on Monitoring the Application of Community Law (1995), Brussels, 29 May 1996, COM(96) 600 final. Back

59 Figures for 1994 and 1993 are 359 and 383 suspected breaches registered, representing 25 per cent and 28.5 per cent respectively of total suspected infringements registered. Source: Twelfth Annual Report on Monitoring of Community Law (1994), Brussels, 7 June 1995, COM(95) 500 final. Back

60 OJ L 206/7, 22 July 1992. Back

61 OJ L 375/1, 31 December 1991. Back

62 OJ L 31/1, 5 February 1976. Back

63 OJ L 129/23, 18 May 1976. Back

64 See Article 130r § 2 and 3 of the Treaty: "Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions". "In preparing its policy on the environment, the Community shall take account of environmental conditions in the various regions". Back