Select Committee on European Communities Second Report

APPENDIX 4 (Continued)


Consultations by Member States

52.  The implementation of Community environmental legislation is particularly likely to affect a wide range of actors. Lack of consultation within Member States can meas that those affected by the proposal are either unaware of the measure or feel that it does not reflect their needs and concerns. They may thus be more likely to impede proper and timely transposition and application of the measure within the Member States. This can be relieved, in some part, by extensive consultation on the measures by the Member States soon after adoption of the Community measure. Where such consultations do not take place, or are insufficient, the transposing legislative process at national level can be made more difficult by protests which only arise at a late stage. More systematic preliminary contacts by the Commission with the interested parties (Member States, IMPEL, NGOs, industry etc) when elaborating proposals should facilitate implementation by reducing these problems, but consultations at the Member State level are still likely to be necessary on the text as finally adopted. The addition of details on the likely scope and impact of a proposal in the explanatory memorandum which already accompanies Commission proposals for legislation, should assist Member States in handling these subsequent consultations.

  Member States should ensure that they have co-ordination mechanisms which enable proper consultation prior to the adoption of national transposing measures. To assist Member States in their task, the Commission will incorporate in Explanatory Memoranda accompanying its legislative proposals, references to the potential scope of the proposed measure and to its impact within the Member States.

Information strategy for Community environment policy and law

53.  A considerable amount of information on the Community's diplomatic, political and regulatory activities as a whole is given to the public by the General Report on the Activities of the European Union and the Annual Report on Monitoring the Application of Community Law. Sectoral reports are published by the Commission on competition policy and on the internal market; the latter is particularly relevant since it also deals with environmental matters in so far as they are closely related to the achievement of the internal market. The monthly Bulletin gives inter alia information on new legislation and infringement proceedings in all sectors covered by Community law. To complete the information concerning the monitoring of the application of Community environmental law given by the Commission's Annual Report on Monitoring the Application of Community Law, this report would contain, beginning with its fourteenth edition (concerning 1996) the following data:

    -    Details of the legislation notified by Member States as transposing Community environmental directives, including implementation tables showing how that legislation transposes the requirements of directives on the basis of information supplied by Member States.

    -    Details of action taken by Member States to apply Community environmental law, including such matters as notifications of competent authorities, the creation and notification of programmes under Community environmental legislation and the results achieved.

  The Commission's Annual Report on Monitoring the Application of Community Law will (from its fourteenth edition concerning 1996) be expanded to contain details of the legislation notified by Member States as transposing Community environmental law and the actions taken by the Member States to apply those laws. The points covered in this Communication which do not concern the monitoring of Community law and infringement procedures, such as the points on questions of policy and procedure, could be the subject of a follow-up in an "Annual Survey".

Improving co-operation

54.  Good co-operation between the Commission and the Member States is essential in order to achieve the ambitious goals pursued by the Community environment policy. At a national level law-making bodies should work closely with the application and enforcement agencies if the whole system is to be workable and efficient. The same is true with regard to the Commission and national competent authorities which should improve their co-operation in order to increase their effectiveness in the shared responsibility of implementation. Direct co-operation between national authorities of different Member States should also be welcomed in relation to cross-boundary environmental enforcement problems such as the detection of illegal traffic in hazardous waste or endangered species.

55.  Member States' concern as to the comparability of standards of application and enforcement of Community environmental legislation in different countries led to the creation in 1992 of an informal network of national environmental agencies called the Chester network. In parallel, the Fifth Environmental Action Programme recognised the unsatisfied need for a proper follow up of the application of Community environmental legislation by announcing the setting up of an implementation network comprising representatives of relevant national authorities and of the Commission in the field of practical implementation of Community measures[86]. The Chester network was then modified to create the informal EU Network for the Implementation and Enforcement of Environmental Law (IMPEL). Composed of appropriate representatives of the Member States and jointly chaired by the Commission and the Member State holding the Presidency of the Council of the European Union, IMPEL has a rather wide mandate to consider the implementation of environmental legislation, including mainly questions of how to ensure better enforcement by national, regional and local bodies. The present focus on enforcement could be broadened to include implementation and legal policy issues. The work carried out so far has included the following matters[87].

    -    A comparison of technical standards and pollution control technology for various types of facility in each of the Member States, resulting in technical guidelines for regulatory bodies for a number of industries, for example, power plants, incinerators, refineries, cement, glass and chip board production.

    -    Exchange of information and comparison of experience on the permitting of industrial installations in the Member States and examination of the application of EC legislation in Member States and the practical aspects of the regulatory process, for example, reports on the cross-media evaluation of environmental impacts from industrial installations, and on the application of EC Directives on municipal waste incinerators and on large combustion plants.

    -    Comparison of enforcement arrangements within Member States, dealing with compliance assessment and inspection, for example, a report is to be published in the second half of 1996 outlining the Member States' legislation, organisations and mechanisms for inspection, monitoring and enforcement, including statistics, inspection visits and enforcement actions.

    -    Exchange programmes for inspectors, providing in-depth understanding of the regulatory systems in each country and, facilitating the future exchange of information between inspectorates, and preparation of "skills and management" manuals for inspectors, covering both the regulatory process and facility inspections.

    -    Examination and publication, of a report on the monitoring and enforcement mechanisms for the trans-frontier shipment of hazardous waste within the EU.

56.  IMPEL can play an important role in improving cooperation in implementation matters between the Commission and the Member States and between and within the Member States, but it may also improve coordination between different enforcement agencies within each Member State through internal coordination in preparation of Member States' positions within IMPEL. Just as there is a need for a coordination at the level of the Community and the Member States, there is often also a need for coordination within the Member States. Networks could help diminish the problems which arise from the decentralised implementation and enforcement of Community environmental legislation mentioned earlier[88]. If such networks[89] existed or were established in every Member State by the national governments acting with the competent national and regional authorities, IMPEL could then serve to coordinate these Member State networks at a Community level, the purpose being to most usefully exploit the resources available at every relevant level of the Member States. Given the almost complete reliance on publicly funded authorities for environmental enforcement, such coordination would lead to economies of scale and help to maximise the return gained from experience in any particular Member State. In addition, the designation of focal points in these national networks could be expected to improve the communication between the Commission and the various relevant national authorities.

  The Commission will consider the existing position of the informal IMPEL network as a useful instrument of cooperation and capacity building, and will make proposals for improving, developing and reorganising its tasks. It will encourage the creation of national coordination networks to be linked with IMPEL through the national coordinators.

Reporting, monitoring and evaluation

Evaluation of effectiveness of measures

57.  It is noticeable that, despite the large quantity of environmental measures which have been enacted by the Community, in some respects improvements to the environment have not been forthcoming at a desirable rate, and in other respects environmental conditions may in fact have worsened. Past efforts to monitor the effectiveness of Community measures have been hampered by the lack of information on proper implementation: it can be difficult to know whether lack of progress in a particular area is due to the ineffectiveness of the Member State's implementation or to the ineffectiveness of the provision made by the directive. Any evaluation of the practical effectiveness of a measure is therefore dependent in the first place on information regarding the implementation of that measure. Once that information has been obtained, it can be ascertained whether the provisions contained in the measure are effective and, if not, whether existing provisions need to be strengthened or whether an alternative approach to the problem is indicated.

58.  A review clause is more and more often inserted in Community environmental legislation, and much can be drawn from this exercise in terms of experience and improvement of the legislative framework. It remains to be seen on the basis of the experience to be gained in the application of the reporting requirements, for instance the first report to be published by the Commission in pursuance of the Reporting Directive, which concerns the water sector, is due only in June 1997, whether the practical arrangements to be taken by the Member States with a view to collect the relevant information are workable and the data collected reliable. In-depth assessment of the effects of a measure requires the collection of relevant information, data and experience. The Reporting Directive[90] and the new network on environmental information set up at Community level under the coordination of the European Environment Agency[91] could prove very helpful in this respect, especially considering the fact that scientific and technical assessment is of great importance when appraising the effectiveness and efficiency of environmental legislation. Other means of ensuring the feed-back from Member States and from those affected by the legislation to the Commission should also be explored.

  Through the most effective use of the Reporting Directive, and close cooperation with the European Environment Agency, the Commission will ensure that the best possible information is available on the effectiveness of Community environmental measures and can be used in the formulation of its policies on environmental protection. The Commission will launch and coordinate case studies to evaluate the transposition, application and enforcement of selected provisions of Community environmental law. It will aim to ensure a wise dissemination of the information resulting from those case studies.

European Environment Agency

59.  The European Environment Agency was set up in 1990[92] to provide the Community and the Member States with objective, reliable and comparable information at the European level which will enable them to take the requisite measures to protect the environment, to assess the results of such measures and to ensure that the public is properly informed about the state of the environment. The Agency therefore has a crucial role to play in the provision of information which will enable the evaluation of the effectiveness of Community environmental measures. This role is equally important in relation to the Commission's work on the formulation and adoption of Community environmental legislation and on its implementation: the provision of information and technical advice on the Commission's new proposals for environmental protection. The Agency is therefore a vital link in the regulatory chain, in that its role links the end of the regulatory chain in relation to measures which have been adopted and implemented to the beginning of the regulatory chain in relation to the measures which follow on from the earlier legislation, amending it as necessary so that it can more effectively and efficiently protect the environment. The EEA could also be more actively involved in the assessment and the follow up of the reports received under the Reporting Directive and other directives with specific reporting requirements (eg the Birds Directive).

  The Commission will closely involve the Agency on the evaluation of the effects of Community measures, and ensure that the information, knowledge and skills of the Agency are fully utilised in assisting the Commission in its role of formulating proposals for new Community environmental measures and reviewing existing legislation.

Promoting knowledge of Community environmental law

60.  Implementation starts with knowledge of the provisions to be implemented. Community directives are usually applied on the basis of the transposing national act, which is usually sufficiently well known by the competent national authorities and in a form familiar to them. Timely and correct transposition is therefore crucial to the practical application of a directive. Furthermore it should be ensured that the implementing national measures clearly refer to their Community origin, thus allowing the national judges to interpret them accordingly and to ensure primacy of Community measures vis-a-vis any conflicting national provisions. The situation is, however, different if transposition is lacking, incomplete or wrong. As the Court stated in its judgement Costanzo/Milano[93], not only national courts but every national authority has to apply directly applicable provisions of European law by putting aside incompatible provisions of national law. This is, in fact, a difficult task, as the Advocate General pointed out in his conclusions to the above mentioned case. Even if the competent authorities have knowledge of the relevant provisions, there might be the tendency to avoid their application. Although European law has primacy over national law and is part of the national legal orders, there may be resistance among practitioners to the application of laws which have a format which can be very different to that usually in place in the Member States.

  The Commission will consider initiatives for financial and technical assistance for increasing awareness in Community environmental law, in particular by judges, lawyers and officials of the Member States. Community finance in the framework of "Life 2" can also contribute to horizontal measures such as telematic networks or training in relation to the improvement of the application and enforcement of environmental legislation.

Community funding and the implementation of Community environmental law

61.  There are different sources and forms of Community funding relating to the environment. Funding under "Life"[94] contributes exclusively to the development and the implementation of environmental policy, but other financial instruments provide for important funding for the environment even though they are not specific to the environment. Under the Cohesion Fund[95], which provides assistance for environmental and transport infrastructure projects, eligible measures include projects which aim at full compliance with community environmental legislation, in particular in three sectors: water supply and water quality, waste water treatment and solid waste. In the Member States eligible for assistance from this Fund, Community funding of environmental projects may be important in assisting them to apply and enforce Community environmental legislation. In addition, assistance under the Structural Funds[96], which principally consists in co-financing of operational programmes and national aid schemes, may include projects with environmental aspects to them.

62.  Community funding[97] must, in accordance with the integration principle, take into consideration the environmental laws of the Community.[98] Nor should the Commission co-finance projects which have a negative impact on environmental interests which are protected under Community legislation, such as special areas of conservation protected under the Habitats Directive, unless the project complies in principle and practice with the protective requirements of that legislation. It is also important that all Community funds are granted in an appropriate policy context. Not just Community environmental legislation, but also Community environmental policy, is to be taken into account in the grant and expenditure of Community funds[99]. Any proposal for Community funding should be assessed against and comply with Community environmental policy and legislation.

63.  Once a decision to grant Community funding has been mae, compliance with the requirements of the Community's environmental law and policy must be assured. Community regulations granting financial assistance to Member States require as a matter of principle that the competent authorities should ensure that the recipients of the aid will comply with the requirements of Community policy and law on the environment.

  This principle applies whether or not there are existing infringement proceedings in relation to the project benefitting from Community financing, since it is the Commission decision granting the funding itself that requires compliance with Community environmental law and policy. The possibility of suspending payments or requesting repayment is an important tool in ensuring compliance with Community environmental policy and law in relation to Community financing. The Commission should enhance its compliance checking and monitoring of Community funded projects.

  The Commission will consider additional measures to ensure that the Community's environmental objectives and the requirements of European Community environmental law are fully integrated into decisions to grant financial assistance to Member States and in the monitoring of projects financed by the Community.


64.  The Commission considers that priority has to be accorded to measures to improve the implementation of Community law as the Community moves into an era of consolidating the acquis communautaire so far achieved in the environmental field.

65.  Furthermore, the Commission concludes from experience, that the current means of ensuring implementation, which relies principally upon the use of the procedure under Articles 169 and 171 of the Treaty although important, powerful and necessary, have proved to be insufficiently speedy and appropriate for protection of the environment from breaches of Community law. Certainly, some of the problems which are related to the special features of environmental law can be reduced through broadening the mix of environmental instruments, but there is also a need for a greater diversity and decentralisation of control mechanisms.

66.  Consequently, the Commission in this Communication introduces a new broad approach, encompassing the whole regulatory chain and all relevant actors. It suggests a number of new proposals aimed at improving the state of implementation of Community environmental law at all levels.

67.  The Commission expects to raise awareness on the overall picture of implementation and enforcement drawn by this Communication at all levels, and thereafter to exercise fully its right of initiative in the light of responses to the Communication and the debate about what should be done to improve the situation, by all actors concerned, at all different levels.

86   O J No C 138, 17 May 1993, p 80. Back

87   The papers produced by IMPEL are disseminated through the IMPEL Secretariat, which is hosted by DG XI in the European Commission. Back

88   See paragraphs 13 and 14 above. Back

89   In this context, it should be explored whether the EIONET telematics network under the European Environment Agency could play a useful role as regards implementation. Back

90   Council Directive 91/692/EEC of 23 December 1991 standardizing and rationalizing reports on the implementation of certain directives relating to the environment (OJ No L 377 of 31.12.93, p.48). Back

91   Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European environment information and observation network (OJ No L 120 of 11.5.1990, p.1). Back

92   Council Regulation (EEC) 1210/90 of 7 May 1990 (see previous footnote). Back

93   Judgement of 22.6.1989, C-103/88, [1989] ECR 1839 (1870). Back

94   Council Regulation (EEC) No 1973/92 of 21 May 1992 establishing a financial instrument for the environment (OJ L 206 of 22.7.1992). Back

95   Council Regulation (EC) No 566/94 of 16 May 1994 establishing a Cohesion Fund (OJ L 72 of 16.3.94). Financial perspectives for environmental projects in 1996 amount to approximately 1.7 billion ECU. Back

96   Council Regulation (EEC) No 2081/93 of 20 July 1993 amending regulation (EEC) No 2052/88 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ L 193 of 31.7.1993). Back

97   This reference also includes those EAGGF actions which relate to structural funding, ie the Guidance Section of the Fund. Back

98   For instance, the Community should not in principle fund sewerage projects of the Member State which receives the funding has not transposed the Urban Waste Water Treatment Directive, since in such a case the legal framework defining the practical modalities for individual project is lacking. Back

99   See eg. Article 8(1) of Council Regulation (EC) No 1164/94 establishing a Cohesion Fund (OJ No L 130/1 of 25.5.94). Back

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