11418/96
COM(96) 500 final
Communication from the Commission on
implementing Community environmental law
Explanatory Memorandum by the Department of the Environment
SUBJECT MATTER
1. The Communication notes that more than 200 pieces of environmental
legislation have been adopted by the Community. It states that
achieving the goal of a high level of environmental protection
is only possible if the legal framework is being properly implemented.
The Communication notes that there are weaknesses in the current
state of implementation of Community environmental law in most
parts of the Community, and more action is needed in order to
improve the situation.
2. The Commission has the responsibility under the Treaty
of Rome to ensure that Community legislation is applied. It carries
out this function by the use of infringement proceedings against
Member States under Articles 169 and 171 of the Treaty. However,
the Commission is unable to oversee effectively the application
of all individual decisions necessary to comply with Community
legislation. Moreover, a single, Community wide, judicial enforcement
system is unable to take into account legal and administrative
structures within Member States. It is argued in the Communication
that alternative methods of enforcement are required.
3. The Communication considers the "regulatory chain"
of implementation, which covers legislation, transposition, practical
application, enforcement and review. The purpose of the Communication
is described as the reinforcement of the obligations which the
actors in the regulatory chain (the Commission, Member States,
local authorities, industry, citizens and non-governmental organisations)
bear for the application of Community environmental law.
4. The Communication includes 3 new areas for action:
- the possible development of Community-wide
guidelines establishing minimum criteria for the carrying out
of inspection tasks by Member States and the possible need for
a limited Community body with auditing competencies;
- the possible development of guidelines
setting minimum criteria for the operation of environmental complaints
and investigations procedures within Member States;
- the possible establishment of minimum
criteria for increased opportunities for environmental cases to
be dealt with by national courts, through broader access to justice
on Community environmental law issues by representative organisations.
5. The Communication also contains a number of proposals for
action to reinforce existing systems. These include:
- clarity of drafting, transparency
and certainty for Community environmental measures;
- requiring national implementing measures
to include appropriately deterrent sanctions and that they should
be notified to the Commission;
- consultation by the Commission and
Member States;
- information strategy for Community
environment policy and law;
- improving cooperation by means of
the Network for the Implementation and Enforcement of Environmental
Law (IMPEL);
- evaluation of effectiveness of measures
through the Reporting Directive and cooperation with the European
Environment Agency;
- promoting knowledge of Community
environmental law;
- integration of environmental objectives
and law in decisions on Community funding.
MINISTERIAL RESPONSIBILITY
6. The Secretary of State for the Environment has lead responsibility
for the subjects covered by the Communication. The Foreign Secretary,
the Chancellor of the Exchequer, the Lord Chancellor, the President
of the Board of Trade, the Secretaries of State for Defence, Transport,
Scotland, Wales and Northern ireland and the Minister of Agriculture
also have an interest.
LEGAL AND PROCEDURAL BASIS
7. The Communication does not constitute a legislative instrument.
It will be considered by the Council and by the European Parliament.
SUBSIDIARITY
8. The Communication recognises the different roles played
in the regulatory chain by the Commission, Member States and others
and to that extent is consistent with the principle of subsidiarity.
Two of the proposals, on minimum criteria for the handling of
complaints and on sanctions, will need to be tested against the
subsidiarity principle during the course of discussions on the
Communication in the Council. The Government supports appropriate
sanctions for non-compliance, but considers that this is a matter
for member States. In the UK sanctions can be specified other
than in implementing legislation. The Government is pleased to
see a reference to the subsidiarity principle in the section of
the Communication which refers to the possible need for guidelines
on access to the national courts.
POLICY IMPLICATIONS
9. The Government broadly welcomes the Communication. The
Government is committed to effective implementation and enforcement
of European Community environmental law. The policy implications
of the Communication will very much depend on how the individual
proposals it contains are carried forward. Some proposals are
more welcome than others. For example, the Government broadly
supports: the proposal for guidelines in carrying out inspection
tasks; minimum criteria for handling environmental complaints
regarding procedures for administrative decisions (in the UK such
complaints are dealt with by Ombudsmen at national and local authority
levels) and the proposal that IMPEL should develop as an instrument
of cooperation and information exchange.
10. The Government believes that other of the proposals will
need further consideration, for example, the Commission's intention
to examine, in due course, the possibility of a limited body with
auditing competences to monitor the adequacy of Member States'
inspectorates. Similarly, the Government will want to consider
carefully the need for Community guidelines on access to national
courts by representative organisations. The Commission's recognition
of the need to have regard to the subsidiarity principle and to
take into account the different legal systems of Member States
is welcome. Nevertheless, the Government will wish to ensure
that any such guidelines, and any legislative instruments which
may subsequently emerge, fully respect the principle that rules
of civil procedudre, including rules as to whether representative
actions by environmental [or other] NGOs should be allowed, and
the rules as to who has locus standi in judicial review
or other actions, are matters for Member States and not for the
Community.
FINANCIAL IMPLICATIONS
11. The Communication itself has no financial implications-but
certain amongst the proposals it contains might have financial
implications depending on how they are carried forward.
TIMETABLE
12. The Government understands that the Dutch Presidency is
likely to take forward discussion of the Communication.
James Clappison MP
Parliamentary Under Secretary of State
Department of the Environment
9 December 1996
