EUROPEAN PARLIAMENT
Committee on the Environment, Public Health and Consumer
Protection
Working document on implementation of Community environmental
law
INTRODUCTION
The implementation and enforcement of environment legislation
has a somewhat patchy record. Whilst the Thirteenth Annual Report
on Monitoring the Application of Community law[100]
shows a relatively good record for transposition in Member States,
the practical implementation rate is less impressive, with 265
suspected breaches of Community environmental law being notified
in 1995. An examination of the EU's success in arresting environmental
degradation requires us to consider four different aspects of
the legislative process; these are adoption, transposition, practical
implementation and enforcement. Each of these contributes to whether
the intentions of the Act itself are realised in the Member State.
For example, when considering the initial drafting of legislation,
sufficient attention must be paid by the Commission to reporting
requirements of transitional measures. When legislation is adopted
during Council negotiations care must be taken to ensure that
the internal logic of the directive is not lost in the final compromise.
Or, the transposition of a directive may be so complicated in
Member States that it becomes difficult to see whether or not
the directive has been fully implemented. For example, one single
directive may require several different Acts at various levels
of government in each Member State. To save time, Member States
may choose instead to transpose through the use of administrative
rather than legal measures which bring their own problems.
In the application of the directive itself, it is an oft-remarked
fact that whereas Internal Market legislation has any number of
competitors to police it, environmental legislation has no defenders
with a direct economic interest in its observance, so it is a
priori less likely to be observed.
Finally, the enforcement of the legislation. This is hampered
by the fact that although formally the Commission is responsible
for upholding Community law under Article 155 of the TEU, in practice
it is the Member States (or actors within them) that have the
primary role in ensuring that national (or regional) legislation
is upheld. This therefore is a matter which needs to be addressed
at both the EU level and the Member State level.
As long ago as 1987, the Commission said that it would place considerable
emphasis on the implementation of environment legislation when
it adopted the Fourth Environmental Action Programme[101],
yet despite the existence of a formidable body of environmental
protection legislation, examples of deficiencies are abundant.
EP ACTION TO DATE
Although the EP's scope for action in this field has been limited
by constraints imposed by the legislative procedure, by a lack
of material and personnel resources and by a reluctance on the
part of Member States to make information available, the EP has
tabled a series of reports addressing deficiencies in the observance
of Community environmental legislation[102].
Previous attempts to address the problems resulted in the reporting
directive and the directive on freedom of access to environmental
legislation, yet the situation is not much improved as a result[103].
To address the apparent inability of Member States and the Commission
to resolve these problems, the Parliament and the Commission held
a joint hearing called, "Challenges to environmental protection-making
the legislation work", on 30th May, 1996. In advance of the
forthcoming Commission Communication on the subject, this working
document aims to outline the most pressing problems and propose
a series of solutions to address them which it expects the Commission
to take up in its Communication.
CHALLENGES TO EFFECTIVE ENVIRONMENTAL PROTECTION
These challenges can be grouped into two categories: those that
stem from institutional dynamics at Community level (e.g. unanimity
for adoption of legislation in Council, excessive Council secrecy,
the limitations of directives themselves, a bureaucratic and unwieldy
complaints procedure, no legal standing for complainants at EU
level), and those that relate to problems within Member States
themselves (for example, those that adopt the legislation in the
Council may not be the same authorities that are required to implement
it). There follows a series of problems that the rapporteur has
identified which need to be addressed as priority issues.
1. The secrecy with which the Council envelops its legislative
decision-making can undermine the effectiveness of legislation
before it has even been transposed for example, by allowing for
the possibility of declarations in the minutes. Furthermore the
fact that decision-making takes place behind closed doors can
result in the adoption of political compromises spanning a number
of unrelated legislative proposals subsequently leading to unclear
texts and imprecise legislation. As a result, although considerable
thought may have been given initially to how draft legislation
will operate in practice, this may be lost in the final compromise.
2. There is a certain lack of accuracy in some legislation
e.g. for some legislation there is no obligation to report in
a specific timetable[104].
3. There is an urgent need for legislation to be codified.
Legislation that has been amended several times should be compiled
into one single text, rather than as now, being contained in a
series of different Official Journals covering a number of years.
4. The reporting directive poses its own problems. Although
the EP proposed a series of deadlines, at the time, EP had only
one reading and the Council, with Commission support, postponed
the deadline for nearly half of the relevant environmental directives
so that the reporting dates do not start until 1997, 1998 and
1999.
5. Information: The Annual Reports of the Commission
are concerned solely with transposition not with practical implementation
and are therefore of only limited use.
6. Effective checking of compliance with Community environmental
law is to a large extent assured informally. That is to say that
in the vast majority of cases, the Commission, whose role it is
to uphold Community law, relies upon reports from individual citizens,
community groups and MEPs to report suspected breaches to it.
WWF estimates that 80% of complaints registered with the European
Commission are made by the public. However, potential complainants
are inhibited by a lack of knowledge as to what the standards
should be and by not knowing to whom their complaints should be
addressed.
Such active public participation is very welcome but
it begs the question as to whether we do in fact have a system
in place which we lack the means to implement in practice.
7. The secret nature of official correspondence between
the Commission and Member States means that there is no pressure
on Member States to cooperate in investigations into possible
infringements.
8. Discrepancies between one Member State's implementation
and another are inherent in the use of the Directive as the major
legislative instrument in environment policy. Since Member States
are not required to provide tables showing how they have implemented
each Article, it is not always clear whether all the provisions
have been implemented.
9. The lack of a single source of information to consult
about other cases can diminish the effectiveness of those individuals
or organisations challenging Member States. This is because they
are denied information about other cases that may be useful for
their own case.
10. Resources: It is the Commission which is ultimately responsible
for ensuring that legislation is effectively enforced. This is
stated in Article 155 of the TEU. It is equally clear however,
that the Commission lacks the human resources to do this effectively.
DG XI's legal service is currently staffed by fifteen employees
who deal with around 600 cases a year. It is also hindered to
some extent by the fact that much of the information that it needs
to do its job is simply not available or not available at the
right time from Member States. In addition, since the Commission
has no right to undertake independent inspections in Member States,
it is unable to verify if the rule of law is indeed upheld.
11. As the EP has argued for many years, it is increasingly
clear that without a well-resourced independent inspection and
enforcement agency the job will never be done effectively. It
should be noted that this is not a revolutionary suggestion; pan-EU
teams of veterinary inspectors roam the EU countryside, food hygiene
inspectors and fisheries inspectors also operate at EU level as
do anti-fraud squads carrying out spot checks.
SOLUTIONS FOR MORE EFFECTIVE ENVIRONMENTAL PROTECTION
This section of the working document details a number of solutions
that the rapporteur believes should be included in the Commission's
forthcoming Communication on the subject. This list is by no means
exhaustive and the rapporteur welcomes further suggestions for
improving the effectiveness of environmental legislation.
1. In drafting legislation, the Commission should take
care to consult widely and systematically. This is more likely
to result in the emergence of vested interests keen to ensure
that the legislation is effective in Member States. The Commission
should further ensure that the drafts which leave the Commission
are drafted in a clear and precise manner thereby increasing their
chances of being accurately transposed and implemented by Member
States.
2 Since co-decision making is the most democratic procedure
for adopting legislation, this IGC should ensure that this procedure
covers all environmental legislation. This would ensure qualified
majority voting in the Council and equal responsibility for both
Council and the EP. In addition, the Environment Council, when
meeting as a legislative body should ensure that decisions are
made in public.
3. The European Environment Agency is required to compile
comparable data on the overall state of the environment; it is
they who are best placed to see over time which measures have
been effective and which have not, which countries are generally
on schedule and which are not. It is too early to assess the EEA's
performance in this respect, but close cooperation between the
EEA and both the Commission and Member States in crucial to ensure
that the data it provides enables Community law to be upheld effectively.
4. The establishment of an inspectorate at European level
is indispensable to the successful implementation and enforcement
of environment legislation. This could be achieved by a small
team of inspectors working within the Commission whose role is
to audit the work of national inspectors to be established within
each Member State. The IMPEL network's contribution to improving
enforcement in Member States has been significant and the foundations
they have laid would undoubtedly assist the new inspectorate in
its work.
5. In the meantime, the work of the Commission would
be greatly facilitated if Member States were required to produce
annual reports on the implementation of EC environmental legislation
which could be analyzed by the Commission (or the EEA). These
would include tables of transposition showing precisely how each
piece of legislation had been transposed, as well as information
on practical implementation and resulting environmental benefits
as well as any problems encountered. These tables should then
be analyzed so that standards of transposition could be compared
between Member States.
6. Redress. A number of suggestions for improving current
procedures for redress has been mooted. A system of administrative
mediation would have the benefit of being less lengthy and less
costly than Court proceedings although it also has its own drawbacks.
Another popular suggestion has been the establishment of an environmental
ombudsman. However, it is hard to see how an environmental ombudsman
could be immune from the intense pressure to which the Commission
for example, is sometimes subjected in relation to environmental
complaints. Furthermore, there have been mixed experiences with
the establishment of such offices. The New Zealand experience
has proved to be a great success, but the same could not be said
of all such ombudsmen.
A further possible model which could be followed is
the Land and Environment Court in New South Wales, Australia.
Presided over by a mix of judges and technical experts, the new
Court has exclusive jurisdiction over all environmental matters,
both civil and criminal. Its integrated jurisdiction and expertise
has resulted in better and more consistent decision-making. It
has proved more accessible to the public and less lengthy and
costly than normal Court proceedings. The very existence of a
specialist Court has elevated public, government and industry
awareness of environmental issues. The establishment of such Courts
in Member States could make an enormous contribution to improving
compliance with environment legislation.
7. The overtly political nature of the grievance procedure
at Community level is a massive hindrance to effective environmental
protection. There is an astonishing degree of interference and
non-cooperation by Member States who often appear to display a
cavalier disregard for the rule of law which they themselves are
duty bound to uphold.
One way in which this could be tackled is by making
all official communication, that is to say Article 169 letters
and Reasoned Opinions and their replies, public.
8. In addition, the Commission, through the promotion
of an amendment to the Treaty, should consider the possibility
of granting legal standing to a defined group of organisations
to challenge Commission decisions before the European Court of
Justice (or the Court of First Instance). This would have the
additional benefit of enabling a wider audience to access the
above-mentioned documents.
9. It must be made easier for individuals to press their
cases against Member States for suspected infringements of Community
law. Legal redress could be made more efficient by granting individuals
or groups extensive rights of standing before their national courts.
This would have the twofold benefit of national government being
more likely to obey national court judgements and of relieving
pressure on the Court of Justice. Furthermore, national courts
are far better placed to take account of specific legal and economic
aspects of cases the precise details of which may be unfamiliar
to the ECJ.
10. The financial implications for individuals and organisations
taking legal action in Member States should be recognised by granting
either legal assistance or reduced fees. Access to scientific
and technical expertise free of charge in the run up to, and throughout
the hearing could also be considered.
11. Although directives may allow Member States a generous
margin for manoeuvre, a recent ECJ judgement suggests that any
national legislation which purports to implement a directive must
be at least as clear as and precise as the relevant provisions
of the directive itself. If it is not, a right is created for
an individual to go beyond the national legislation and straight
to the directive to ensure that the directive's intended aim is
achieved[105]. The
possibilities afforded by this Judgement should be fully exploited.
In addition, systematic consideration should be given by the Commission
over its choice of legal instrument for achieving policy goals.
12. Sanctions. It is not clear how Article 171 of the TEU
can be made effective despite the publication by the Commission
of a clarifying memorandum of the subject[106]
since the drawbacks of fines are both well documented and numerous.
For example, the authority in breach of the legislation may not
be the Member State which is required to pay the fine (although
that Member State is ultimately responsible for ensuring that
its authorities obey the rule of law). In the case of cohesion
countries, withholding funding could only make it less likely
that the legislation will be implemented and enforced correctly.
However, the polluter pays principle requires us to
stop viewing natural resources as "free" goods. Imposing
sanctions on Member States who fail to implement legislation to
protect the environment is only an extension of the idea that
industries who pollute should pay for the damage they cause. Since
this is now widely accepted and has been central to Community
environment law since the entry into force of the SEA in 1987
there is no reason to oppose its use in a wider context. Indeed,
one of the failings in some Member States has been their willingness
to transpose legislation without introducing sanctions to compel
those affected by the law to respect it.
CONCLUSIONS
In many ways, the development of environment policy has been the
history of the democratization of the EU. Democracy is of course
essential to good environment policy because public discussion
resulting in widely supported aims is vital for the achievement
of the aims set out in legislation. The public's role as an adjunct
environmental police force, means that they are the people whose
support is most needed; without it there can be no adequate environmental
protection.
Yet despite the fact that over 200 legal instruments for the protection
of the environment have been adopted, environmental protection
remains a highly contested area. Noting the succession of Parliamentary
reports highlighting the hindrances to effective environmental
legislation, it should be emphasised that the EU's inability to
ensure effective enforcement of legislation bodes ill for the
Community's credibility in all policy areas and should therefore
be addressed as a matter of urgency.
Ken Collins MEP (Rapporteur)
Chairman,
Environment, Public Health and Consumer Protection Committee
The European Parliament
9 October 1996
100
29.05.1966 COM(96)0600. Back
101
OJ C289, 29.10.1987, p.3. Back
102
OJ C94, 4.11.1988 pp. 113, 151, 155 and OJ C125, 18.5.1992, p.122. Back
103
Directive 91/692/EEC and Directive 90/313/EEC. Back
104
For example, directive 85/203 on air quality requires the Commission
to publish a report on this directive's application "periodically".
Regulation EEC/1734/88 of 16 June 1988 on the import and export
of dangerous chemicals requires exchange of information and monitoring
by the Commission and Member States to take place "regularly"
rather than within a specific timetable. Back
105
Judgement of the Court Case No. C-118/94 of 7 March, 1996, para.19 Back
106
OJ No. C242, 21.8.96, p.6 Back
