Joint Public Hearing (European Parliament and Commission)
30 May 1996
Effective Environment Protection: Challenges for the
Implementation of EC Law
Background paper for invited experts and participants
Nigel Haigh, Director, Institute for European Environmental
Policy, London
1.Introduction
EC environmental legislation began in the 1970s but its implementation
only became a matter for political attention during the 1980s.
Even now the Community Institutions devote a much higher priority
to the adoption of new legislation than they do to its implementation.
Yet unless EC legislation is properly implemented it will fall
into disrespect and the environment will not receive the protection
that the EC legislators intended and that the public expects.
The first three Action Programmes on the environment of 1973,
1977 and 1983 did not recognise the importance of implementation,
and it took a well publicised scare to draw attention to the subject.
When some drums of hazardous waste, thought to contain dioxin
from Seveso in Italy, disappeared and were subsequently discovered
in France, the European Parliament promptly established a Committee
of Inquiry (the Pruvot Committee). This reported on `the odyssey
of the drums' as a result of which the Parliament adopted a Resolution
(OJ C127/67 14.5.84) which censured the Commission "for having
failed to perform fully and properly its role of guardian of the
Treaties" and "for its failure to take the necessary
measures vis-a-vis the Member States with regard to the implementation
and application of the Directive" (Directive 78/319 on toxic
waste). As a result, implementation began to be recognized as
an important subject. The Commission responded by increasing
the number of staff in DGXI dealing with implementation and became
more vigorous in bringing cases before the Court of Justice.
Also in the same year the Commission published the first of its
annual reports to the Parliament on the application of Community
law - COM (84)181 - giving some statistics on infringement proceedings
and drawing some conclusions.
Shortly afterwards the Council, in adopting the fourth Action
Programme on the Environment in 1987, underlined "the particular
importance it attaches to the implementation of Community legislation"
(OJ C328/2 7.12.87), and the Parliament identified several factors
leading to inadequate implementation in a Resolution on implementation
of water legislation (OJ C94/155 11.4.88).
The political debate about how implementation was to be taken
more seriously had thus already begun when, at the highest EC
level, an even stronger commitment was made by the European Council
(the Heads of State of Government) when it adopted the `Declaration
on the Environmental Imperative' at Dublin in June 1990. This
stated:
"Community environmental legislation will only be effective
if it is fully implemented and enforced by Member States. We
therefore renew our commitment in this respect. To ensure transparency,
comparability of effort and full information for the public, we
invite the Commission to conduct regular reviews and publish detailed
reports on its findings. There should also be periodic evaluations
of existing Directives to ensure that they are adapted to scientific
and technical progress and to resolve persistent difficulties
in implementation; such reviews should not, of course, lead to
a reduced standard of environmental protection in any case."
(Bull. EC 1990 Vol 23 No 6 p.18)
It is against this background of concern and commitment that
the Commission is now preparing a communication on implementation,
and that this Hearing is being held. As the Dublin Declaration
emphasised, the subject of implementation requires transparency.
It is also now recognized as having many different aspects with
different actions being required by different actors including
the Community Institutions, the Member States and the authorities
within them, and all those affected by the legislation including
the general public.
This background paper is an attempt to provide a brief overview
of the many different aspects of the implementation of Community
environmental law to provide a frame for the more detailed discussions
at the Hearing.
2. Aspects of Implementation
To regard implementation of EC law as a process which starts
only after legislation is adopted is to omit an essential aspect.
Ambiguous or poorly drafted legislation often leads to subsequent
problems and therefore the process of adopting the legislation
has to be regarded as the first aspect of implementation.
Once adopted, Directives then have to be transposed into national
law and administrative provisions. While EC Regulations are directly
applicable law and no do not themselves need to be transposed,
they often require national legislation to supplement them, eg.
appointment of competent authorities and penalties for non-compliance.
Transposition into national law can therefore be regarded as
the second aspect of implementation.
But the main purpose of a Directive is not to develop national
legislation, but is to achieve certain results. The steps taken
in the Member States to achieve those results using national law
and administrative provisions can be regarded as a third aspect
that can be called practical implementation. Practical implementation
may involve many steps including strengthening competent authorities,
drawing up plans, following procedures, meeting standards, designating
areas, providing information, and granting authorizations. It
may involve investments - often very large - by the public and
private sectors perhaps resulting in new products and processes.
It will involve monitoring and reporting. The practical implementation
of some Directives, e.g. relating to a product, may affect rather
few manufacturers and may be relatively simple and therefore easy
to evaluate. Other Directives may involve hundreds of actions
per year in a Member State any one of which may not fully comply
with the Directive so that assessment and comparisons between
countries is difficult. It is important therefore not to draw
general conclusions from a limited experience of only a few examples
of implementation. Some Directives have indeed been successfully
implemented often with little delay, while others are problematic
and have involved long delays.
A fourth aspect of implementation is enforcement under
the processes of national and Community law.
These different aspects sometimes overlap and some can be
sub-divided into yet further aspects. For example the appointment
of a competent authority in an item of national legislation is
part of transposition, but if a new authority has to be created
or an existing one expanded with new staff and extra money, then
that can be regarded as practical implementation. Monitoring
is an aspect of enforcement, but if the details are prescribed
in a Directive then it is also practical implementation. If a
Directive requires a report evaluating a Directive after several
years, then that is practical implementation, but if an evaluation
is carried out in the absence of a requirement to do so then that
can be regarded as a fifth aspect of implementation.
All these aspects: drafting, transposition, practical implementation,
enforcement and evaluation are described below.
2.1 Drafting and Adopting EC Legislation
While the responsibility for proposing a Directive rests
with the Commission, the finally adopted text is the result of
a process of negotiations in the Council machinery which increasingly
also now involves the Parliament. The process often requires
compromises as each Member States seeks to ensure that its own
objectives are achieved, and the results show that problems of
implementation have not always been adequately considered. Some
examples can be given.
A number of Directives set numerical standards to be met
by a certain date, a case in point being the Drinking Water Directive
80/778. The Directive however is silent about what should be
done if the standard is not met by the deadline: should water
supply be discontinued even if the risk to human health in doing
so is greater than continuing to supply safe water which may not
meet the standards? The Commission has now learnt from experience,
and under the proposed new drinking water Directive Member States
will be able to grant time limited derogations in certain circumstances
subject to certain conditions. Another lesson can be drawn from
the experience of the Environmental Impact Assessment (EIA) Directive
85/337 which contained no transitional provisions dealing with
developments authorised after the date set in the Directive but
where the authorization process had started before. The Commission
interpreted the Directive one way and some Member States another
way. A great deal of emotional energy was expended in many Member
States before the Commission changed its interpretation following
an opinion of the Advocate General in a case before the Court
of Justice relating to a power station in Germany (Case C431/92).
Because of this ambiguity expectations were falsely raised among
some sections of the public and the Community's reputation has
suffered as a result. A conclusion that can be drawn is that
the Commission and Council must consider the need for transitional
provisions before adopting a Directive.
A third lesson concerns reporting requirements which are
important tools for evaluating what effect the Directive has had
and how effectively it is being implemented. Some Directives
include reporting requirements while others do not (See Section
2.6 below). The Drinking Water Directive for example places no
obligations on Member States to report on quality so it is not
possible to compare the quality of drinking water across the Community
or to know how well the Directive is being implemented. This
lesson has been learnt in the proposed new Drinking Water Directive.
In other Directives the reporting requirements are often inconsistent
so that in 1991 Directive 91/692 was adopted to standardize and
rationalize these requirements. However the lesson is sometimes
forgotten because the proposed new Directive on PCBs (on which
the Council adopted a common position in November 1995 - OJ C87/1
25.3.96) contains no reporting requirements.
One final point on drafting concerns the practice of agreeing
ambiguous wording, perhaps as a way of securing agreement, and
then recording explanatory statements in the unpublished Council
minutes. An example concerns Directive 76/464 on the discharge
of dangerous substances to water. The wording in the Directive
that emissions limits are to be based on `best technical means
available' is qualified in the Council minutes by the statement
that `best technical means available is to take into account the
economic availability of these means'. Not surprisingly this
practice of secretly modifying the language of legislation was
criticised by the Parliament in 1984 (OJ C172 2.7.84) but it was
not till October 1995 that the Council adopted a `Code of Conduct
on Public Access to the Minutes and Statements in the Minutes
of the Council acting as a legislator' which should reduce the
practice. It is too soon to assess whether the Code has been
effective in curbing a practice which makes the assessment of
implementation much more difficult, as well as offending against
the principle that legislation should be publicly available.
One can conclude that while the needs of implementation are
being considered more seriously as new Directives are adopted,
there is still much room for improvement. In particular
(i) the Community legislator (Commission/Council/Parliament)
could ensure that before any Directive is finally adopted the
needs of implementation are formally considered including reporting
requirements, transitional provisions, and absence of ambiguity.
A checklist might be helpful.
(ii) Each Member State should also be prepared to give an
assurance, at the time of adoption of a Directive, that it has
begun to consider what is needed for implementation both by way
of legislation, finance and capacity of its competent authorities.
All too often this process does not start till the deadline for
implementation is approaching. This would be to fulfil the call
made by the Council in the Resolution adopting the Fifth Action
Programme (OJC 138/3 17.5.93) which stressed `that due regard
should be given both at the stage when legislation is proposed
and when it is adopted to the quality of the drafting of legislation,
in particular in terms of the practicability of implementing and
enforcing it'.
2.2 Transposition into National Law
The requirement in Directives that Member States should communicate
to the Commission the texts of the provisions of national law
which they adopt to implement a Directive is more complicated
than it sounds. Only rarely will one text be sufficient for implementing
one Directive in a Member State.
Frequently different texts are required for different Articles
of a Directive, particularly where they are the responsibility
of different Ministries. In federal or regionalised Member States,
where for constitutional reasons or reasons of national administrative
structure, competence for introducing the legislation rests with
the regions, or is shared between the regions and the national
government, different texts may be required for different parts
of the national territory. In some Member States e.g. Belgium,
the national government has no authority over a region to ensure
that legislation is adopted, even though Directives place obligations
on Member States who are answerable to the Commission and the
Court of Justice. There is also the problem that some Directives
apply to some territories of Member States outside Europe (e.g.
French overseas departments) or dependent territories (eg Netherlands
Antilles, Gibraltar, etc.) while others do not. National laws
(Acts of Parliament, Regulations) may also have to be supplemented
by administrative documents (circulars, technical advice). It
follows "that the Commission will be sent many texts.
Member States frequently fail to communicate texts on time
and this may be because of an oversight, because no texts are
yet ready, or because some but not all texts are ready. There
is also the problem that national laws are constantly evolving
so that the texts sent to the Commission become out of date and
have to be supplemented over time. The Commission's task in checking
completeness and correctness of transposition, which should in
theory be straightforward, is therefore difficult. It is not
helped by the fact that communications between the Member States
and the Commission is not always transparent since not all Member
States make public the texts of their letters of transposition
(sometimes called `compliance notices' and sometimes set out in
the form of `tables of implementation' (`tableaux de concordance').
Thus the reasons for delay are often not easy to ascertain and
are often not publicly explained. Since these documents provide
a link between Community legislation (which is public) and national
legislation (which is public) there should be no objection to
publication of letters of transposition. Publication of such
letters would enable the interested public (industrialists, academics,
NGOs and other national governments) to check the adequacy of
transposition and thus help the Commission by pointing to any
deficiencies. Transparency would also create the pressure for
improvement. Although the listing of implementation in the CELEX
database is useful, CELEX does not indicate which Articles of
a Directive are implemented by which items of national legislation.
One welcome development in recent years has been the requirement
in EC legislation that national implementing legislation should
contain a reference to the Directive that it is implementing,
thus showing the link between national and EC legislation. Without
this visible link the competent authorities applying national
legislation sometimes did not to know that it is derived from
EC legislation.
2.3 Practical Implementation
A Directive is binding as to the ends to be achieved while
leaving to national authorities the choice of form and method.
The ends to be achieved may be that certain standards are to
be met by a certain date or that certain procedures are to be
followed for a given purpose. There are many different procedures
laid down in environmental Directives including:
- designating sensitive areas
- granting authorizations
- conducting consultations
- restricting marketing and use
The steps taken to meet the standards and to fulfil the procedures
all constitute practical implementation. Practical implementation
is sometimes called `application' which has been defined by the
Commission as `the incorporation of Community law by the competent
authorities into individual decisions, for instance when issuing
a permit or executing a plan or programme.' However a Directive
may also result in many decisions being taken by e.g. an industrialist
about which the competent authority may never be informed even
though the industrialist's decision is taken as a result of implementing
national legislation that transposes the requirements of a Directive.
For example Directive 92/32 (known as the `seventh amendment')
on the notification of new chemicals, requires a manufacturer
to supply the competent authority with the results of studies
for evaluating risk from the chemical before placing a new product
on the market. The manufacturer may therefore discontinue development
of a new chemical if his initial assessment suggests that it will
be too dangerous to be worth manufacturing. The Directive will
therefore have been effective in preventing use of a dangerous
chemical, but no one other than the manufacturer need know. Even
if this is unknown it must nevertheless be regarded as successful
practical implementation of the precautionary principle embodied
in the Directive.
Sometimes an existing competent authority will simply take
on new tasks required by a Directive, but if a new authority has
to be appointed, which may involve hiring and training new staff,
then that too must be regarded as practical implementation.
There are now a very large number of items of EC legislation
and 485 are listed and discussed in the IEEP Manual of Environmental
Policy: The EC and Britain as shown on the table below:
Not all these items are the responsibility of DG XI and many
are minor amendments or are of a very detailed character (e.g.
setting criteria for eco-labels). They can be divided into a
number of categories according to practical steps that they require:
- product standards (e.g. lead in petrol,
vehicle emissions, lawnmower noise)
- restrictions on production or marketing
or use of substances (e.g. CFCs, asbestos, PCBs)
- emissions from stationary plant (e.g.
certain plants require authorizations, and for some standards
are set - e.g. sulphur dioxide, mercury)
- environmental quality standards (e.g.
bathing water, air quality)
- designating areas (e.g. special protection
areas for birds, nitrate sensitive areas, waters for shellfish)
- notifications to competent authorities
(e.g. new chemicals, dangerous installations)
- plans and programmes (e.g. pollution
reduction programmes, emergency plans)
- assessments (e.g. environmental impact
assessments of development projects, assessments of risks of chemicals)
Many Directives will fall under more than one category.
It follows that practical implementation is a very wide subject
involving many different kinds of decisions and actions, some
involving considerable investments over a long timescale. It
is therefore extremely difficult (indeed impossible) to make any
overall assessment of the adequacy of the practical implementation
of all environmental Directives. They have to be considered one
by one, and indeed sometimes Article by Article. For some Directives
practical implementation is fairly straightforward and easy to
assess. This is particularly true of products.
For example petrol is manufactured and distributed by a limited
number of enterprises in the EC. Because the petrol is a traded
product transposition of Directives setting standards for lead
in petrol is usually achieved by means of national legislation
rather than involving regions or local authorities. The national
legislation can be drafted quickly and can be simple. Once the
standard is set in national legislation it is easy for a competent
authority to analyse petrol to ensure the standards are met, and
for competitors to analyse each others products. Any failure
by a petrol distributor to meet the standards will therefore be
quickly known. Transposition and practical implementation may
have involved costs for refiners but the steps are straightforward.
In this case it can also be demonstrated fairly easily that the
quantity of lead emitted into the environment in Member States
has dropped significantly following the implementation of the
Directive and that the lead content of air has reduced. This
Directive has therefore been successfully implemented, and as
a general comment it can be said that Directives relating to the
single market, such as product standards, are likely to be well
implemented because competitors act as watchdogs to ensure that
there is no distortion to competition.
Directives setting emission standards are more difficult
to assess than product standards because they will involve many
installations each one of which will have to be individually authorised
and each one of which will need to be monitored over time to ensure
that the emissions standards set in a Directive are being met.
Some Directives set standards for a class of installations which
are limited in number (e.g. chloralkali plants) and it is therefore
not too difficult to collect and compare the national authorizations
(though each may be many pages long) and monitoring data, even
though several competent authorities may be involved within one
Member State. However other Directives cover classes which include
many installations (e.g. power stations, incinerators) so that
the task of assessing practical implementation across the Community
is much more difficult. Failure to meet the standards at any
one plant on one occasion will constitute a formal failure of
implementation by a Member State and could lead to an adverse
judgement of the Court of Justice. A statement that a Member
State is in breach of a Directive may give no indication whether
the breach is widespread or is a rare event.
Directives which involve plans, or designating areas, or
assessment are more complicated still. Designations will often
be made by competent authorities at regional or local level with
knowledge of local circumstances and there may be inconsistency
in the criteria applied and disputes e.g. over the boundaries
of areas. Monitoring to ensure that environmental quality standards
are met may need to be extensive and will need adequate numbers
of trained staff.
Some Directives will involve more than one kind of competent
authority which may have to collaborate together to ensure practical
implementation. For example the `Seveso' Directive 82/501 on
major accident hazards requires a manufacturer operating a hazardous
installation to prepare a safety report and an `on-site' emergency
plan. The competent authority for supervising these is usually
a technical inspectorate concerned with safety in factories (`labour
inspectorate'). However the Directive also requires the preparation
of an `off-site' emergency plan outside the installation and this
is usually prepared by a local authority which is better placed
to communicate with the public likely to be affected. But in
order for the `off-site' plan to be prepared, the local authority
will need to have information from the manufacturer or competent
authority responsible for the safety report and `on-site' plan.
Effective practical implementation therefore depends on good
relationships between the competent authorities.
Some Directives have practical effects that touch activities
that are not just technical but are embedded in the culture of
a country. An example is the setting of the periods of the hunting
season under the birds Directive which have caused much controversy.
The Directive that has probably caused the greatest problems
in practical implementation is the Directive 85/337 on environmental
impact assessment (EIA) of certain development projects. A large
number of different kinds of development project are included
within the scope of the Directive so that different Government
ministries and competent authorities are involved. Projects covered
include industrial plant, transport projects (roads, railways,
airports, etc), installations for hazardous waste, and certain
urban developments. For some projects an assessment is always
required while for others Member States have discretion to decide
whether or not a project is likely to have a significant effect
on the environment. Hundreds of assessments may be made under
the Directive in a Member State each year, any one of which may
not completely fulfil the requirements set in the Directive particularly
since assessments are often subjective. Since large development
projects or even small ones in sensitive areas frequently cause
controversy, the EIA Directive is subject to many complaints about
failures of implementation.
While the variety of provisions within Directives is one
cause of the difficulty in trying to assess their implementation,
another is the variety of administrative structures within the
Member States for implementing them. In some Member States there
will be a single competent authority for some Directives, so that
there is likely to be national consistency in implementation.
In other Member States the constitution or administrative structure
will require implementation to be carried out at the level of
the regions and there may therefore be greater variation. In
some Member States there may be specialised competent authorities,
whereas in others the task may fall to local authorities who have
many other tasks and priorities. In some Member States the competent
authorities may be understaffed and inadequately trained.
Some Directives may require practices that have long been
carried out in one Member State, while practices may be new in
another. In theory therefore the Directive should be easy to
implement in the first Member State, while the second may have
to introduce completely new structures to ensure implementation.
There is a paradox however in EC environmental policy that a
Member State which already has a procedure before a Directive
is adopted may have more difficulty in implementing it correctly
than another Member State which starts freshly on the subject.
This is because a competent authority that has already developed
its traditions may not be convinced of the need to make what it
may regard as unnecessary changes to existing practices in order
to implement fully a Directive. Examples include implementation
in the Netherlands of the EIA Directive and in Germany of the
Seveso Directive.
The above discussion suggests that the only effective way
to consider practical implementation is to examine it Directive
by Directive and Member State by Member State. Comparative reports
can only be prepared with a full knowledge not just of the technical
subject matter of a Directive but also of the administrative structure
and indeed the culture of the country implementing it. There
is no short cut to a study of practical implementation of all
Directives in the Community as a whole. It follows that the very
brief discussion in the annual reports on monitoring the application
of Community law presented by the Commission are of limited value
as a basis for a serious discussion which would help to improve
practical implementation. The Dublin Declaration on the Environmental
Imperative (see Section 1 above) of the European Council went
further and called on the Commission to conduct regular reviews
and to publish detailed reports on its findings (emphasis
added). These need to relate not just to measurements but also
to assessments of the adequacy of national administrative structures
(numbers of staff, training, etc).
Some basis for regular reviews and detailed reports is provided
in some Directives in the form of monitoring obligations and obligations
to evaluate and report. These are discussed below.
