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
65
See Article 130r § 2 of the Treaty. These principles are
evolving in the light of circumstances and new multi-disciplinary
insights. Back
66
See definition in the Annex. Back
67
Article 155: "In order to ensure the proper functioning and
development of the common market, the Commission shall ... ensure
that the provisions of this Treaty and the measures taken by the
institutions pursuant thereto are applied ...". Back
68
See also the communication concerning the operation of Article
171 of the Treaty, O J No. C 242, 21 August 1996, p 6. Back
69
See paragraph 7 to 9 above. Back
70
The importance of implementation of Community law has been emphasised
by the Member States in the 19th Declaration to the Treaty on
European Union and by President Santer in his investiture address
to the European Parliament, as well as in the Commission's one
proposal for a European Parliament and Council Decision on the
review of the European Community Programme of policy and action
in relation to the environment and sustainable development: "Towards
Sustainability". Back
71
European Community Programme of policy and action in relation
to the environment and sustainable development "Towards sustainability";
O J No. C 138/1, 17 May 1993. See also Progress Report from the
Commission on the implementation of this 5th Action Programme
COM(95) 624 final, 10 January 1996. Back