PART III: REINFORCING EXISTING SYSTEMS (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.
PART IV: CONCLUSION
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
