2.4 Financing
The costs of implementation - which are sometimes very large
- are in principle a matter for the Member States and, following
the polluter pays principle, a matter for the polluter.
However there are some sources of EC funds that contribute
towards the implementation of EC environmental legislation. These
include LIFE, the Structural Funds and the Cohesion Fund (for
Spain, Portugal, Greece and Ireland).
The LIFE Regulation 1973/92 has provided modest funds for
the improvement of administrative structures and environmental
services (including the improvement of monitoring networks) and
the promotion of environmental education, training and information
(including exchange of experience on eco-management and auditing).
For the period 1996-99 the Commission proposes to focus LIFE
on four main areas one of which is `implementation of EU environmental
policy'.
The Commission's twelfth annual report `on monitoring the
application of Community Law - 1994' (OJ C254/44 29.9.95) has
a section on Structural Funds in the chapter on the Environment.
This notes that the integration of environmental concerns has
been reinforced by new provisions in the Structural Funds Regulation
2081/93 which provides for the inclusion of an environmental appraisal
in national and regional funding plans as well as retaining the
previous provision concerning compliance with Community environmental
law and policy of funded projects. The funds have been used for
such matters as water treatment and waste management and thus
for the implementation of EC environmental legislation.
Under the Cohesion Fund, large sums of money are available
in Spain, Portugal, Greece and Ireland for environmental protection
and transport projects. Projects funded have included sewage
works to implement the Urban Waste Water Treatment Directive 91/271,
and the provision of waste disposal facilities to implement the
Waste Directive 75/442. The rules for the Cohesion Fund do not
have the same environmental safeguards as do the Structural Funds
so it is possible for sewage work built with the purpose of implementing
one Directive to be located in an environmentally damaging way.
Already the Court of Auditors has criticised EU spending in Spain
and Greece because of environmental impacts. It is a further
curiosity of the rules of the Cohesion Fund that each funded project
shall cost at least 10 million ECU so that sewage works that are
oversized are being built with funding which is not to the long
term benefit of either the Member States (because of maintenance
costs) or of the environment. In its twelfth report on implementation
(mentioned above) the Commission has commented that a regrettable
deficiency of the spending of the Cohesion Fund is the failure
in Member States to undertake forms of environmental planning
required by EC legislation e.g. the preparation of waste plans.
However the Cohesion Fund Regulation does not require this
as a condition of funding. Given that enlargement of the Community
may require further Community funding to enable the countries
of Central and Eastern Europe to implement EC environmental law
it is important that the lessons of the Cohesion Fund are learnt
so that any new funding instruments have adequate environmental
safeguards.
2.5 Monitoring
The word monitoring is used in many different ways from a
narrow technical sense e.g. using instruments to measure the presence
of pollutants in emissions from industrial plants, to a broad
sense which includes assessment or evaluations. In this section
the word "monitoring" is used in the narrow sense of
gathering data, without value judgements being made. Several
Directives have monitoring obligations in this narrow sense to
confirm that standards are met (sometimes called `compliance monitoring')
and these sometimes also lay down monitoring methods. These relate
in particular to air and to water. The Habitats Directive 92/93
requires Member States to undertake "surveillance" of
the conservation status of the habitats and species found on their
territory.
Monitoring is an essential tool for implementation and Member
States will have their own monitoring methods and frequencies
which must at least conform with the requirements set out in Directives.
Sometimes Directives require the results of monitoring to be
published (see Section 2.6 below) but even if there is no express
requirement for publication it is possible for individuals to
request access to this information under Directive 90/313 on freedom
of access to information.
It is one of the tasks of the European Environment Agency
"to help ensure that environmental data at European level
are comparable and, if necessary, to encourage by appropriate
means improved harmonisation of methods of measurement".
2.6 Reporting/evaluation
Many Directives require Member States to submit reports.
Some of these will just be factual, e.g. the quality of bathing
waters, but some are in the nature of an evaluation of the implementation
of a Directive after a number of years. Some Directives require
the Commission to consider national reports and produce a Community
wide report. Some reports have to be published but some do not,
and the record of publication so far is not good.
In November 1993 this Institute (IEEP) reviewed the state
of reporting and found that of 64 items of environmental legislation
requiring the Commission to produce reports on implementation,
in the case of some 24 the Commission had produced no report at
all, and for a further 16, reports had either been delayed (sometimes
by years), or had been published at very infrequent intervals.
The reasons for this included failures by the Member States to
provide information - or information of the right sort - to the
Commission, and cumbersome procedures and a lack of resources
within the Commission itself. A further reason was the lack of
pressure from the Council that has given a higher priority to
the adoption of new legislation.
The production of a Community wide report involves many people
and there is in effect a chain, e.g. regulated bodies report to
competent authorities, competent authorities report to Member
States, Member States report to the Commission, and the Commission
reports to the Parliament and Council. There may be delays or
deficiencies anywhere along this reporting chain which can therefore
affect the final report. Some problems with the original reporting
requirements have been recognised for some time and in an attempt
to standardise and rationalise implementation reports, Directive
91/692 requires the Commission to publish reports on groups of
Directives (air, water, waste). The first one (on water) is not
due till June 1997 so it is not yet possible to assess how useful
they will be, though it is disturbing that the Commission is late
in issuing the questionnaires on the basis of which the national
reports are to be produced.
One question that will need to be resolved is the role of
the European Environment Agency in contributing to such reports
or undertaking them itself. The Agency has the task of providing
the Community and the Member States with "objective, reliable
and comparable information at European level" as the basis
for environmental measures, and of assessing the results of such
measures, and of ensuring that the public is properly informed
about the state of the environment. Such tasks could certainly
include undertaking the reporting requirements, but since Directives
place responsibilities on the Commission, the Directives might
have to be amended unless the Agency were to undertake the work
on behalf of the Commission. The implementation network-IMPEL-(see
Section 2.7) could also have a role in contributing to such reports
or at least debating them.
In addition to formal reports, independent organisations
(NGOs, research institutes, universities, industrial associations)
are free to make their own evaluations and comparisons and so
contribute to public discussion and awareness of the effects of
EC legislation. This can only be done effectively if the basic
information is public. The Manual of Environmental Policy:
the EC and Britain produced by this Institute and updated
every six months explains how all EC environmental legislation
has been implemented in one Member State and the effects that
EC legislation have had in practice. Similar books have been
produced for some other countries by our sister institutes. Comparative
reports for a single or group of Directives have also been produced.
2.7 Administrative and judicial enforcement
The enforcement of Community obligations is primarily a matter
for the Member States and their relevant competent authorities.
In the words of the UK House of Lords
"the rigour with which Member States enforce Community
law thus in general reflects national enforcement policies, the
vigilance and competence of national regulatory agencies and the
legal remedies and sanctions available under national law. It
is also dependent on the degree to which accurate information
about environmental media is collected and handled. Given these
variables, it is inevitable that enforcement and its effectiveness
will differ across the Community not merely between but within
Member States". (House of Lords 9th Report Session 1991-92
"The Implementation and Enforcement of Environmental Legislation").
Article 130s(4) of the Treaty confirms that the prime responsibility
for implementation rests with the Member States. However the
Commission also has a duty under Article 155 to act as "guardian
of the Treaty" and to ensure that measures adopted under
the Treaty are applied. This extends not just to transposition
but to practical implementation.
One response to the frequently made allegation that the effectiveness
of enforcement differs across the Community, has been the creation
in 1992 of the implementation network known as IMPEL. This is
open to representatives of environmental enforcement bodies concerned
with industrial installations within the Member States and therefore
does not cover all EC environmental legislation e.g. the birds
and habitats Directives, the bathing water Directive, and non-industrial
developments under the EIA Directive. The Commission provides
one of the joint Chairmen of IMPEL which is therefore coming to
have a semi-official status. An indication of the tasks of IMPEL
is given by the four working groups it has established:
1. Technical aspects of permitting
2. Procedural/legal aspects of permitting
3. Compliance monitoring and inspection
4. Managing the enforcement process
In addition there is an ad hoc group on transfrontier shipment
of waste.
One of the roles of IMPEL is to provide a forum for professional
regulators to exchange information about the details of enforcement
methods used in the Member States. They should thereby educate
each other and so help disseminate good practice throughout the
Community. IMPEL is still young and the results of its work is
not yet well known.
There is no Community environmental inspectorate although
the idea has been discussed for many years possibly in the form
of an `inspectorate of inspectorates' (see Parliament's Resolution
on implementation of water legislation OJ C94/157 paras 27 and
28, 11.4.88). It will be discussed again when the Regulation
establishing the European Environment Agency is reviewed. Any
new discussion will have to consider not just the powers of such
an inspectorate, but also the field it is to cover. Is it, for
example, appropriate for a single Community inspectorate to cover
both industrial pollution matters and nature conservation?
Prosecution initiated by the competent authorities in the
national courts is a last resort after all administrative steps
have been taken. If the competent authority fails to initiate
proceedings it is possible in some Member States, depending on
national legal traditions, for third parties to bring an action
to compel the competent authority to act, or to bring a case for
damages under civil law if this can be proved. The rights of
access of third parties to the courts varies between Member States
and the Commission is known to be considering a Directive on common
rules on who should be entitled to seek judicial review of administrative
acts and omissions.
A further possibility open to members of the public, including
NGOs, who believe that a Directive is not being correctly implemented
is to make a complaint to the Commission. There would be fewer
complaints and the Commission would have a light task in fulfilling
its obligations to act as guardian of the Treaty if all Member
States perfectly fulfilled their obligations. The Commission's
task falls into two parts: ensuring correct transposition and
practical implementation. It examines all the national laws,
regulations and administrative provisions sent by the Member States
to demonstrate that they have transposed all the provisions of
Directives into national law. If necessary, after sending warning
letters and a Reasoned Opinion, the Commission can initiate proceedings
before the Court of Justice for failure of transposition. The
suggestion is sometimes made (e.g. by the House of Lords in the
report quoted above) that Article 169 letters, Reasoned Opinions
and their responses should be published.
Ensuring practical implementation is a much more difficult
task since the Commission does not always have all the relevant
information and has no inspectorate able to collect it. The Commission
is therefore dependent for its information on those reports required
under Directives (see 2.5 above) and on other sources including
complaints made by the public. The European Environment Agency
should be able to contribute as its tasks include providing `objective
information necessary for framing and implementing sound
and effective environmental policies' and drawing up expert reports
which the Commission can use `in its task of ensuring the implementation
of Community legislation' (emphasis added).
Meanwhile complaints by the public (individuals, NGOs, industries,
local authorities, etc) is an important source of information
for the Commission. It is a practice that has grown, stretching
the ability of the Commission to deal with them. The disadvantage
of the complaints system is that it may distort the selection
of infringements which the Commission deals with, focusing its
attention on those complained about to the neglect of possibly
more important infringements. Countries with well developed NGOs
who have learnt to use the system are subject of more complaints
than other countries whose infringements may be more significant.
There are however two important positive aspects of the complaints
system: it exerts pressure on the Member States and competent
authorities to take implementation seriously; and it makes a reality
of Community legislation for the citizens. Instead of Community
legislation being seen to consist of pieces of paper which may
or may not have an effect, and therefore may not be worth reading,
the interested public has a purpose in studying and understanding
EC legislation and knowing that they have a role in making it
work. It is indeed as a result of complaints that the Commission
has successfully brought several cases before the Court of Justice
relating to practical implementation and has thus forced Member
States to take action to protect the environment.
One response to the growth in numbers of complaints has been
to suggest better means to deal with issues at national level.
3. Conclusion
This paper is intended to show that implementation has many
aspects. The low priority accorded to examining the problems
of implementation may indeed result from this fact: it is a more
difficult subject to deal with than adopting new legislation,
and not as glamorous. To some peopole, it is a more difficult
subject to deal with than adopting new legislation, and is not
as glamorous. To some people it appears backward, instead of
forward, looking. Any who think this should reflect that if this
view is correct then the exciting item of new legislation that
is now being discussed will shortly suffer the same fate. The
view that the adoption of new legislation is all that matters
risks EC policy being nothing more than an impressive array of
pieces of paper.
Implementation should be seen much more positively. Implementation
is not just a narrow legal matter (transposition) though it includes
that, nor it a narrow technical matter (eg monitoring) though
it includes that too. Implementation is the link between what
is desirable and what is achievable; it provides the essential
feedback for the improvement of new policy making. It also provides
the link between Community policy and national policies and ensures,
not only that Community policies really penetrate into each Member
State, but also that an understanding of national and local policies
informs the development of Community policies. EC policy only
really comes to life when it is implemented in the Member States
and has become inseparably intertwined with national policies.
25 April 1996
