PART II: NEW AREAS FOR ACTION
24. Transposition is an extremely important stage in the implementation
process when dealing with Directives. The majority of EC environmental
legislation consists of Directives which are not in principle
directly applicable in the Member States and therefore require
additional implementing measures which are only applicable as
national law of Community origin. Consequently, timely transposition
ensures that the Community law becomes applicable in all Member
States more or less contemporaneously and proper transposition
(conformity) ensures that national legislation has more or less
the same content and achieves the results required by the Community
directives.
25. The Commission under Article 155 has the duty to ensure
timely and correct transposition by the Member States, by using
political pressures and, if necessary, court action under Articles
169 and 171 of the Treaty. It may also need to generally keep
under review the practical application of the legislation and
its enforcement in order to ensure that they are carried out in
a satisfactory manner. However, this is a Community enforcement
mechanism directed only towards Member State central governments.
The Commission simply cannot monitor the thousands of individual
decisions taken each year in accordance with the transposed or
directly applicable environmental legislation, in the different
parts and levels of authority within the Member States. The daily
application and enforcement of those lazy in specific cases must
be fully ensured by the authorities in the Member States through
mechanisms which will strengthen enforcement and, at the same
time, ease the control of Member States by the Commission.
Member State inspection tasks
26. Article 5 of the Treaty, as interpreted by the Court of
Justice in case 68/88[72],
binds member States to make whatever provision for enforcement
is effective, proportionate, and equivalent to that for Member
State's national laws. This general principle of Community law,
although fundamental, has resulted in a wide disparity in enforcement
agencies or mechanisms among the Member States, with some putting
considerable resources into well-supported inspectorates or other
agencies which monitor the practical application of Community
environmental law and other making lesser provision or none at
all. Moreover, where provision is made, it is varied: inspection
competencies are not always exercised by a single national body,
but are often decentralised or shared among several lawyers of
authority (local, regional, national, etc). In a number of cases,
environmental inspections form only a part of the responsibilities
of the relevant competent authorities. In some Member States,
such as Denmark or the United Kingdom, the competent authority,
in addition to inspecting for compliance, also makes decisions
on the grant of permits or bringing of court actions for enforcement,
while in other Member States (such as the Netherlands) these tasks
are separated.
27. This wide disparity cannot be considered as satisfactory
with reference to the objective of correct and level enforcement
at the Community level. The need exists to ensure that minimum
inspections tasks are carried out, such as the process of monitoring
whether the requirements of Community environmental laws, in particular
those relating to industrial emissions and environmental quality
standards, are in practice being applied. The need exists also
to ensure that this is the case in all Member States.
28. Given the variety of existing situations described above
between the Member States, the achievement of that objective can
be obtained by the definition of guidelines which leave to the
Member States the choice of the structures/mechanisms they will
use to meet it.
The Commission would be able to define, in co-operation
with the Member States, those guidelines and issue recommendations
to that effect. The IMPEL network described below could also assist
in defining minimum criteria for inspections, and help in capacity
building, for instance as to the necessary competencies for the
carrying out of inspection tasks.
On that basis, where inspectorates or equivalent bodies
exist and are already operating, in the way foreseen by those
guidelines, there will be no need to alter the existing structures.
Where inspectorates do not exist, the Commission would consider
possible means, if available, for providing capacity-building
assistance to help reach them.
29. Such inspection authorities could produce and publish
annual reports on the experience acquired during the carrying
out of their tasks. These will give useful information on the
problems met and addressed, improvements obtained, and could form
a very important basis for future action.
In fact, those annual reports, of which the Commission
would be informed, could be used by the Commission in order to
ascertain if the objective of even application is being met and
to judge whether further action is needed. This further action
could, for instance, by the establishment in the future, at Community
level, of a limited body carrying out auditing competencies with
respect to the fulfilling by the national bodies of their inspection
tasks.
The Commission will consider making recommendations
in order to assist Member States in carrying out inspection tasks,
by the establishment of guidelines, thereby reducing the currently
existing wide disparity among Member State inspections. Further
consideration would be given as to whether there might be a need
for a limited Community body with auditing competencies.
Member State environmental complaints and investigation procedure
30. Experience at Community level of concerns about the application
and enforcement of Community environmental law has been gained
in a number of ways. Considerable numbers of complains are made
to the Commission by citizens and environmental non-governmental
organisations. The European Parliament is also considerably involved
in such problems: petitions are made to its Petitions Committee,
and more and more written and oral questions by Members of the
European Parliament raise complaints about environmental matters.
Complaints are also made the European Ombudsman, often about matters
which have already been the subject not only of Commission consideration
but have also been referred to the Parliament. Many of the environmental
problems referred to the Community institutions in this way arise
from a lack of information or from misunderstandings (by either
citizens or administrative bodies) about mainly procedural matters.
The mechanisms available to the Community institutions for dealing
with such complaints are not necessarily those which are most
appropriate to the problem. These complaints might also be dealt
with in a more efficient way within Member States, at the local
level where they arise and where facts are more easily obtained.
31. Court action to enforce Community environmental law within
the Member States also has a number of disadvantages which prevent
its being used effectively to protect the environment in such
cases. Some of these problems arise in relation to issues of access
to justice which are discussed in the next section. However, even
apart from questions of access, there are inherent problems within
legal systems, including, for example, costs and delays, which
can make it unhelpful as a means for individuals to enforce Community
environmental law: litigation should be the solution of last resort.
A non-judicial complain investigation procedure could have the
advantage of avoiding these inherent problems: it could contribute
to a quick and low cost settlement of an issue more accessible
to the citizen without any need for legal assistance.
32. The advantages of considering environmental concerns at
a local rather than Community level, coupled with the characteristics
of speed, low cost and ease of use by citizens and environmental
organisations, if applied across the Community, could lead to
significant improvements in ensuring the proper implementation
of Community environmental law. The Commission will therefore
consider whether there is a need to establish minimum criteria
for a procedural mechanism for handling environmental complaints
and carrying out of investigations (a function which could also
be similar to the functions of an ombudsman) in cases where problems
arise in relation to the practical application and enforcement
of Community environmental legislation by public authorities.
These tasks could be carried out either within Member State's
existing structure, or by the setting up of ad hoc bodies.
33. Guidelines setting up such minimum criteria would need
to be carefully considered: they could for instance cover the
power to receive complaints (eg both from individuals and from
environmental non-governmental organisations) regarding the procedures
for administrative decisions affecting the environment, to request
information from administrative bodies in response to such complaints,
and to issue recommendations (which would be persuasive rather
than of a legally binding nature). It would not be necessary for
such a mechanism to rule on questions of substance, which are
more appropriately considered either by administrative bodies
or the courts, according to the administrative and legal systems
within the Member States.
34. Procedures similar to this concept already exist in a
number of Member states, and can take very different forms. The
two main models for such systems which can be found in the Member
States are the institution of the independent "ombudsman"
and systems for the review of decisions within administrative
structures: Member States operating these systems should not in
principle have to make changes. Only in Member States where such
mechanisms are lacking would there be a need to establish equivalent
models following the minimum criteria set up under guidelines
in order to fill the gap.
35. Such environmental complaints and investigation mechanisms
might also be entrusted with the power of issuing recommendations
aiming at solving problems or improving the functioning of the
administration in relation to the application of Community environmental
legislation. Again, such recommendations would not be binding
but would have a strong moral authority and thus generally followed.
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/procedures are lacking.
Access to Justice
36. Judicial litigation is a last resort to solve problems.
However, a Community based on the rule of law has to ensure that
laws are respected and if necessary enforced. The role of the
courts is crucial in that respect, especially for environmental
matters where the source of a problem or damage is geographically
confined but the effects may be widespread. Access to justice
is, in general, sufficiently ensured if economic interests are
at stake. Enforcement of legislation designed to create the framework
for prosperous business, for instance in the industrial, commercial
or agricultural sector, is likely to be encouraged by economic
operators with sufficient resources to fight for enforcement.
This is not necessarily the case for ecological interests. Economic
operators do not perceive their role as being one of supervising
other business compliance with environmental legislation.
37. Enforcement of environmental law, in contrast to other
areas of Community law such as the internal market and competition,
therefore mainly rests with public authorities, and is dependent
on their powers, resources and goodwill. Their ability to take
into account the need to protect the environment may be limited
by any of these factors. It is therefore important that supplementary
avenues for improving enforcement of Community environmental law
are available. In particular, actions by non-governmental organisations
and/or citizens in relation to the application and enforcement
of environmental laws (in administration, civil or criminal courts,
as appropriate to the structures of the Member State concerned)
would assist in the protection of the environment.
38. As already mentioned, an important characteristic of environmental
law is the frequent lack of a private interest as an enforcement
driving force. The environment is often characterised as our "common
heritage". This also implies that more often than not there
is no private appropriation of many parts of it, such as air,
seas, wild flora and fauna. Therefore, it is often the case that
deterioration of the environment does not cause immediate reaction,
and that even if a problem does arise, there is no means by which
individuals can use the law to remedy the problem, or there are
no appropriate legal remedies available. Even for Community environmental
law, it can be the case that important general principles cannot
be enforced by individuals (eg polluter pays, preventive and precautionary
principles).
39. The importance of wider public participation in shaping
environmental policy as a whole is widely recognised[73]
and all Member States have non-governmental organisations which
enjoy some rights of participation in environmental matters. However,
the ability of the public, as such, to take part in legal actions
regarding application and enforcement of Community environmental
laws differs widely throughout the Community. It varies from participation
in certain authorisation procedures, through the right of recognised
organisations to appeal for the annulment of administrative decisions,
to the "actio popularis" for environmental purposes.
It can however be stated that the public and public interest groups
do not as a general rule have sufficient access to the national
courts of the Member States in environmental matters.
40. Better access to courts of non-governmental organisations
and individuals would have a number of helpful effects in relation
to the implementation of Community environmental law. First, it
will make it more likely that, where necessary, individual cases
concerning problems of implementation of Community law are resolved
in accordance with the requirements of Community law. Second,
as probably more important, it will have a general effect of improving
practical application and enforcement of Community environmental
law, since potentially liable actors will tend to comply with
its requirements in order to avoid the greater likelihood of litigation.
41. Finally, access to Member States' courts would have the
desirable effect of channelling litigation on the enforcement
of Community environmental law to the most appropriate level,
ie regional and national. The use of courts within the Member
States for the enforcement of Community environmental measures
is desirable for various reasons. One is that there is no possibility
that the resources in time and personnel which are available to
the Commission and to the Court of Justice in Luxembourg will
ever be sufficient for, not even a majority, of environmental
cases arising in all Member States to be dealt with through direct
actions brought by the Commission in the Court of Justice. In
addition, the courts of the Member States are better placed than
the Court of Justice to take into account during the proceedings
the particular legal, administrative and environmental context
of the environmental measure as it applies in each Member State,
and to get a clearer picture of the facts through the evidence
of witnesses and the appointment of experts. Moreover they are
better placed to grant interim measures which are an extremely
useful instrument for preventing damage to the environment.
42. Restrictions on access to the courts arise in two main
ways. Firstly, because legal procedures in the Member States create
obstacles to the bringing of enforcement actions in relation to
environmental law. For example, a special interest may have to
be proven in order to bring a case. For reasons of legal history,
such special interests are usually of a type which is easy for
a property owner or economic operator to satisfy but less easy
for environmental interest groups to satisfy. A further example
is that appropriate court procedures may not exist to enable environmental
interests to be protected: court procedures which are mainly designed
to protect economic interests may not provide appropriate forms
of action and remedies for environmental problems. Secondly, the
cost of bringing enforcement actions in relation to environmental
interests may be prohibitive.
43. A number of options are available to the Commission for
taking forward action on these matters, including "soft-law"
approaches as a first step. Similar issues of access to justice
are being considered in the context of the Community action in
relation to access to justice for consumers[74].
The Commission has also included provisions on access to justice
in various proposals for community directives[75].
In the context of securing more effective enforcement of Community
environmental law[76]
it is necessary to look wider than individuals directly affected
and include representative organisations seeking to protect the
environment. Therefore a possible way towards achieving improved
application and enforcement of Community environmental law would
be to ensure that environmental NGOs recognised by Member States
are given the necessary locus standi to bring judicial
review actions, which would be against public authorities in the
Member States. If such a scheme proves desirable, a first step
towards this direction could be a recommendation encouraging Member
States to broaden access to justice for non-governmental organisations.
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.
PART III: REINFORCING EXISTING SYSTEMS
44. The proposals made in the remainder of this Communication
aim at improving a number of areas in Community environmental
law and policy where current practices fall short of the high
standards required for effective environmental protection: the
quality of legislation, transparency, co-operation at Community
and Member State level, monitoring and evaluation of the effects
of legislation, knowledge of Community environmental law among
practitioners, and the integration of Community funding into the
implementation of Community environmental legislation.
Quality of Community legislation
The legislative process
45. Clear drafting of legislation is a prerequisite for a
timely and conforming transposition in the sense that clear obligations
may easily and correctly be transposed. Ambiguous, unclear and
complicated provisions will cause delays, problems of conformity
and problems of practical application which lead to incomplete
or uneven implementation throughout the Community. Because the
Commission has the exclusive right of initiative on Community
environmental legislation it is in a position to take into account
the potential difficulties which Member States might have in transposing
the resulting Community measure. Drafting of the proposals in
such a way, and with a transparent approach, makes the process
of transposition an easier one for Member States. For instance,
it can ensure that legislation which depends on the subsequent
adoption of technical measures is drafted in such a way that delays
in adopting those technical measures do not impose impossible
implementation deadlines on the Member States, as occurred recently
in relation to technical provisions relating to genetically modified
organisms[77]. The new
General Guidelines on Regulatory Policy, adopted by the Commission
in January 1996, which supplement the Commission's Rules on Legislative
Drafting ("Règles de technique législative"),
should improve coherence in drafting within the Commission. Rigorous
application of those rules and guidelines is crucial.
46. It is equally important that when proposals are made the
initial text is as clear as possible. Complicated or unclear drafting
is likely to make negotiations of the proposal more difficult
and to make it more likely that the final legislation will lack
clarity and create difficulties for Member States' implementation.
This is true both for the negotiations in Council and for amendments
proposed by the European Parliament. Although responsibility for
drafting and proposing a new Directive lies with the European
Commission, subsequent developments occur throughout the legislative
process in both Council of the European Union and the European
Parliament. Unclear and ambiguous drafting of environmental legislation
is very often the result of compromises needed at the Council
level or following the readings of the European Parliament[78].
Even at these later stages the Commission should ensure the coherence,
efficiency and practicality of proposal if necessary by amending
its own proposals or by withdrawing proposals which will no longer
achieve the desired aims.
47. A final point of importance is that legislative texts
themselves should contributor to the transparency of the implementation
process. This can be done by including in Community legislative
texts provisions ensuring that information on implementation will
be published, either by the Member States or by the Commission.
Some provisions of this nature are already included, for instance
as to the publication of reports or as to the public availability
of information on the application of the measure[79].
It may however be appropriate, in order to achieve maximum transparency
in the implementation of Community environmental legislation for
such texts to include provisions requiring the publication by
the Member States of additional information on implementation,
such as tables of transposition indicating the provision of national
law implementing the corresponding provisions of the directives.
The Commission 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 co-operate 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.
Sanctions at Member State level
48. Article 5 of the EC Treaty, as interpreted by the Court
of Justice, requires Member States to introduce effective, proportionate
and dissuasive sanctions which ensure compliance with provisions
of Community law. Although this permits Member States discretion
to decide upon the sanctions for which they make provision, such
sanctions must be equivalent to those used to dissuade breaches
of equivalent national legislation[80].
As the Commission has outlined in its Communication to Council
and Parliament on the role of penalties in implementing Community
internal market legislation[81],
the national systems of penalties for the non-fulfilment of obligations
under Community law have to be transparent. Transparency is not
only the key to mutual confidence but also allows the Commission
to evaluate the systems and confine Community action in that respect
to what is strictly necessary.
49. The Commission therefore decided to insert in its legislative
proposals, in respect of the internal market, explicit provisions
stipulating that national implementing measures have to foresee
sanctions to be imposed by Member States in case of non-compliance
with the provisions of the Directive by individuals or legal persons,
and that the legislation related to these sanctions have to be
notified to the Commission. Such obligations should be extended
to the environment. The objective should be that appropriate sanctions,
be they administrative, civil or penal, or a combination of those,
according to the choice of national authorities, are available
in all Member States and they are applied in practice so that
an even enforcement of Community environmental law is ensured.
Publicity for the application of such sanctions in the Member
States and at Community level would assist their deterrent effect.
50. General requirements for the imposition of sanctions have
already been inserted in Community environmental legislation as
in the case of the regulations implementing the CITES Convention
on trade in endangered species and the Basel Convention on trans-boundary
movements of hazardous waste. More specific provisions, for example
the imposition of administrative penalties such as the withdrawal
of permits, could also be included in Community environmental
measures where appropriate.
The Commission 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.
Transparency
Consultations by the Commission
51. The Commission is aware of the need, when formulating
environmental legislation, for an open and consultative process
in the pre-proposal and drafting stages. Different ways of achieving
this are by the use of green papers, for example the Green paper
on remedying environmental damage[82];
the consultation of formal and informal networks, for example
the Consultative Forum on the Environment[83],
the Environment Policy Review Group[84],
IMPEL[85], meetings with
Member State experts and NGOs to discuss policy developments;
the publication of the work programme and the holding of public
hearings, either on its own, for example, on the Commission's
future water policy on 28 and 29 May 1996 or jointly with the
Parliament, as with "Challenges to environmental protection:
Making the legislation work" on 30 May 1996. The Commission
needs to ensure that such consultations will be carried out on
a more systematic basis with all the persons and organisations
with an interest in a particular proposal. It will be important
for the Commission to involve in its consultations the European
Environment Agency, which is able to provide invaluable information
and technical advice on the state of the environment in Europe
and the effects of the Community measures taken to protect the
environment.
The Commission will consult as widely as possible on the
formulation of new proposals for Community environmental measures.
Consultation will include the full range of actors who will be
concerned with a particular measure.
72
Judgment of 21 September 1989, case 68/88 (1989) ECR 2965, points
23 and 24. Back
73
Principle 10 of The Rio Declaration on Environment and Development
proclaimed inter alia that: "Environmental issues
are best handled with the participation of all concerned citizens,
at the relevant level ... Effective access to judicial and administration
proceedings, including redress and remedy, shall be provided". Back
74
COM(95) 712 final O J No C 107, 13 april 1996, p 3. Back
75
See for instance Article 4 of Directive 90/313/EEC on the freedom
of access to information on the environment (O J L 158/56, 23
June 1990). Back
76
Community law already ensures that those directly and individually
affected by a decision of a Community institution can take action
in the European Court of Justice, but in the environment there
are often difficulties in identifying such persons. Back
77
Commission Guidance on classification adopted under Directive
94/51/EC on the contained use of genetically modified organisms. Back
78
These problems are compounded by the need for Community legislation
to be available, and equally valid, in all eleven Community languages:
compromises brokered in one language can be difficult to translate
satisfactorily into all the other languages. Back
79
For example the report on implementation of Directive 85/337/EEC,
Article 11(3). Back
80
Judgment of 21 September 1989, Case 68/88, (1989] ECR 2965, points
23 and 24. Back
81
COM(95) 162 of 3 May 1995. Back
82
COM(93) 47 final: 14 May 1993. Back
83
See Chapter 9 of the 5th Action Programme (footnote 19 above). Back
84
See Chapter 9 of the 5th Action Programme (footnote 19 above). Back
85
See paragraph 55 below. Back
