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Select Committee on European Communities Eleventh Report



Memorandum from the Department of the Environment, Transport and the Regions

  1. The Select Committee carried out an enquiry during the 1996-97 Session on the implementation and enforcement of Community environmental law. This followed an earlier enquiry in the 1991-92 Session[11]. The 1996-97 enquiry was a review of progress since that time, particularly taking into account other reports which had been published during the period, on the Fifth Environmental Action Programme and on the European Environment Agency. The enquiry particularly focused on the Communication from the the European Commission on implementing Community environmental law, which appeared in October 1996[12]. The Committee published the Report of its enquiry in July 1997.

  2. The Government thanks the Select Committee for its thorough and helpful report which addresses important issues concerning the drafting, implementation and enforcement of Community environmental law. Its contribution is timely in view of the Council's Resolution on this issue in June[13]; the United Kingdom's six-month Presidency of the European Union which begins in January 1998; and negotiations on the enlargement of the European Union which are due to begin soon. This memorandum is the Government's formal response to the Select Committee's Report. The text follows the order of the recommendations made in the report, which are reproduced in small print throughout the response.


  (i) We welcome the Commission's Communication Implementing Community Environmental Law and the concept of the regulatory chain" of design, drafting, adoption, implementation, enforcement and evaluation of environmental legislation. We are pleased to note progress on a number of the recommendations in our 1992 Report, but must stress that much remains to be done in developing and putting the Commission's proposals into practice. Our greatest concern remains transparency in the Community institutions: we think that pressure for greater openness is bound to increase as more Member States adopt general freedom of information legislation.

  (ii) We also welcome the Commission's General Guidelines for Legislative Policy. Some problems of internal coordination remain which we recommend require attention.

  (iii) On the whole we are pleased to note the terms of the June 1997 Council Resolution on the Commission's proposals. We remain concerned about the lack of transparency in Council proceedings: the Community must tackle this problem with determination if implementation and enforcement of environmental law are to command widespread public support. Much will depend on how the new Article 191a of the EC Treaty is applied in practice.

  3. The Government is strongly committed to the effective implementation and enforcement of environmental law throughout the Community. The Government welcomed the Commission's Communication, and supported the adoption of the Resolution, which was Council's response to the Communication, at the June 1997 Environment Council.

  4. The Government agrees that the Commission's General Guidelines for Legislative Policy are a very welcome development. We would like to see rigorous application of these guidelines in the preparation of Community legislation.

  5. Transparency in Council proceedings, and indeed in the proceedings of the other Community institutions, is important in ensuring that regulation commands confidence and support. The Council Resolution calls for transparency in the development of policy and the drafting of proposals, and invites the Commission to keep other institutions and the Member States regularly informed of its preparatory work and to make available studies and relevant documentation. The Treaty of Amsterdam which resulted from the Inter-governmental Conference (IGC) will help to introduce greater transparency, with a new commitment to more open decision-making; a public right of access to European Parliament, Council and Commission documents; and the compulsory publication of Council votes when Council acts in a legislative capacity. The EU will have two years to determine general principles and limits for access to documents under Article 191A of the new Treaty. The Government strongly supported these provisions and hopes to take further steps under the UK Presidency to enhance the transparency of EU decision-making and procedures.

Preparation and formulation of policy

  (iv) Although there have been some welcome improvements, we recommend that the Commission when formulating policy should pursue a more thorough and open process of consultation, which should include non-governmental organisations.

  (v) We must reiterate our concerns about the unwarranted secrecy that surrounds scientific and technical advice to the Commission, which DG XI's reference to comitology" does not properly address. Advances in science depend for their credibility on an open process of peer review. That process is frustrated by absence of transparency. We agree with the Department of the Environment and English Nature and recommend that papers produced for the Commission by its expert advisers should be published and that the outcomes of advisory committee meetings should be made public.

  (vi) We recommend that all appointments to advisory and regulatory committees should be through a fully open process. Membership should include practitioners from regulatory authorities and industry. We also recommend that information should be publicly available on the membership of the formal committees appointed under the comitology" procedure.

  6. The Government agrees that there is room for improvement in the consultation of interested parties before legislation is finalised, and fully supports consultation by the Commission on early drafts of legislation. This proved invaluable in, for example, the preparation of the auto-oils legislative programme. Early consultation of interested parties when proposals are being drafted is particularly important and was recommended in the Council Resolution which invites the Commission to consult the main actors concerned in the transposition and practical application at an early stage on concrete legislative draft proposals so as to, apart from facilitating subsequent discussions, make legislation easier to implement and enforce"[14]. This consultation should certainly include non-governmental organisations (NGOs).

  7. A variety of tools is available to the Commission for sounding out the views of the public and interest groups on the various options. These are outlined in General Guidelines for Legislative Policy. The Government welcomes, for example, the Commission's greater use of green papers, a practice which it believes should be standard practice for proposals which would substantially affect individuals or undertakings. In addition, as the Select Committee suggested in its earlier report on this subject, the Government believes that all draft legislation should have fiches d'impacte attached, setting out the assessed costs and benefits of the proposed legislation. In its Single Market Action Plan, the Commission has made a commitment to establish a pilot European Business Test Panel to improve consultation with business, particularly small firms. The Commission has asked Member States for views, and the Government is currently considering what the United Kingdom's input should be.

  8. On the question of scientific and technical advice, the Government agrees with the Select Committee that it would be helpful if such papers were to be made more widely available. Publication would allow errors of fact and interpretation to be corrected, and would allow for conflicts within scientific evidence to be aired openly. The Government recognises that where committees are established to give the Commission scientific advice, it may also be appropriate for there to be greater openness about the membership and results of such committees.

  9. With regard to publicising the membership and results of committees established to assist the Commission in exercising implementing powers[15], the Government believes that in most cases different considerations will apply. These committees are usually attended by civil servants representing the interests of their Member State, and accordingly membership will often change from meeting to meeting. Individuals are rarely if ever appointed in a personal capacity. Furthermore, the discussions in these committees are akin to negotiations in Council, and, as the Commission pointed out in its evidence to the Committee, the Rules of Procedure of many committees provide for their deliberations to be confidential. The Government doubts that publication of the membership of these committees would be useful, if indeed it were practicable. The Government considers that the question of openness of the proceedings of these committees should be approached in the same way as the question of openness in the workings of Council. The Government will therefore consider the scope for greater openness in these committees as part of its study of possible new initiatives for the Presidency, referred to above in relation to the Council.

Form and drafting of legislation

  (vii) We welcome the Commission's proposals to improve clarity of drafting. We recommend that before any directive is adopted, Member States should examine systematically the practical implications of implementation. The Cabinet Office checklist on implementing European law provides a useful methodology for considering such questions.

  (viii) Framework directives have advantages in terms of subsidiarity and allowing for implementation that fits national institutional arrangements. They must be such as to permit Community-wide monitoring.

  10. The Government agrees that Community legislation must be clearly drafted in order to be properly implemented. This is reflected in the Council Resolution and in the Declaration on the quality of drafting of Community legislation agreed at the IGC. The importance of clarity should be borne in mind throughout the drafting of proposals by the Commission and in the negotiation of legislation. It is particularly important, too, to avoid over-bureaucratic structures.

  11. The Cabinet Office checklist Implementing European Law, which was introduced in May 1996 is a useful guide to the practical implications of implementation in the United Kingdom. The checklist is designed to avoid the addition of unnecessary burdens when transposing European legislation. It is mainly intended for use by Ministers, Government officials and legal advisers when transposing European measures and when reviewing existing transposing legislation, and tackles such issues as double-banking" (where requirements may be met by existing provisions) and gold-plating" (where implementation may go beyond the standard required) as well as covering enforcement questions. In instances where Departments intend to go beyond the precise terms of a directive the checklist requires them to set out the compliance cost implications.

  12. Framework directives do not in themselves necessarily advance subsidiarity or allow more discretion to Member States. This depends on the content and substance of the legislation. Framework directives can take different forms - either the method where the Council or even the Commission makes daughter" directives, or alternatively, where the discretion is left to Member States to decide how to implement. In either case, for subsidiarity to be observed, legislation should not prescribe action at Community level which would be better taken by Member States.

  13. Framework directives and daughter directives need to be sufficiently clear and precise about what is required to allow the Commission and national courts to enforce them effectively. Standards expressed at too high a level of generality can be difficult to enforce across the Community, leading to uneven protection of the environment and potential distortions of competition.

Transposition and practical implementation

  (ix) We recommend that Member States and the Commission should establish mechanisms for joint and detailed consideration of implementation requirements before the Member States formally notify legislation to the Commission. This process would help to identify problems before Member States have committed themselves too far to the form and content of national implementing measures.

  (x) We strongly support the Commission's proposal that Member States should be required to provide details of how their national legislation meets the obligations under particular directives. In any event we recommend that the Department of the Environment should adopt this practice for UK implementing legislation and publish the results.

  14. The Government has considered the Select Committee's view that there would be value in engaging in detailed discussion with the Commission in the period between the adoption of a Directive and the deadline for implementation by Member States. On the one hand, this process would help to identify ambiguities before the implementation process has gone too far, and at a point at which corrections can easily be made; similarly this would make clear to the Commission the institutional and legal framework within which the Member State's transposition must take place. It could therefore help to deliver better transposition and more consistent implementation of EC law across the Community. On the other hand, there is a potential problem where the Member State and the Commission have different views about what is required in the national measures; in these circumstances the Member State must reserve the right to implement in accordance with its own legal advice and if necessary allow its interpretation to be tested in the European Court of Justice. Moreover, there would be no guarantee that the Commission would remain consistent to the position it expressed at this stage, particularly when later exercising its discretion under Article 169. So far as UK practice is concerned, the Government considers that informal consultation with the Commission is sometimes being helpful, and always keeps this possibility in mind. General application across the Community, however, would necessitate formal procedures, for which the balance of advantage is by no means clear.

  15. The Select Committee recommended that Member States should be required to provide details of how their national legislation meets obligations under particular directives; this could be achieved in part by the 1991 Standardised Reporting Directive[16], the introduction of which the UK strongly supported. The obligations under this directive should help to ensure consistency of enforcement of environmental directives, which the UK welcomes. The aim of the directive is to create a level playing field, with all Member States providing data which has been collected on a similar basis. The Standardised Reporting Directive requires Member States to complete lengthy questionnaires on the implementation of water, air and waste legislation. At present the questionnaires require some details of how national legislation meets the obligations of particular directives but do not require the article by article comparison that is sometimes referred to as transposition or implementation tables. Moreover, the questionnaires follow some years after the directives to which they relate. The first report under this directive, on the implementation of a number of water directives, was due with the Commission in September 1996, and the UK was the first of the few Member States to meet this obligation. The Government sees some merit in a Community wide adoption of transposition tables, provided that Member States were equally diligent in producing them and that they were available on a compatible basis. The Government however, does not see merit in unilateral publication of transposition tables, since their virtue lies in consistent application across all Member States.

Monitoring, reporting and evaluation

  (xi) We recommend that all future European Community environmental legislative measures should contain provision for regular reporting by Member States on implementation, and that existing measures are amended to this effect where appropriate. Reports should always be published. We support the Commission's proposals for a detailed annual report on implementation and enforcement in the environment field. (58-9)

  (xii) We commend the Institute for European Environmental Policy's Manual of Environmental Policy and trust that the Department of the Environment will continue to support it. We recommend that the Commission, perhaps with the European Environment Agency, should explore ways of encouraging the production of similar reference works in Members States.

  (xiii) There is scope for the European Parliament to play a more active role in encouraging conformity with Community environmental legislation and in supervising the Commission in the exercise of its responsibilities. We recommend that reports by the European Environment Agency should be submitted to the European Parliament as well as to other Community institutions.

  (xiv) National parliaments could be more active in examining the implementation and effectiveness of existing Community legislation, as well as scrutinising new proposals from the Commission.

  (xv) We urge the Council of Ministers to pay more attention to implementation issues, on the basis of reports to be provided by the Commission or the European Environment Agency.

  (xvi) The European Environment Agency has made excellent progress since its inception in 1993. One of its most valuable tasks is the production of quality assured data. We support its Chairman's wish to see more effective links with the various committees advising the Commission.

  (xvii) We do not feel that the European Environment Agency should at this stage be given a formal role in the implementation and enforcement process. Nevertheless, we recommend that the Agency should play a role in assisting the Commission in the preparation of the reports under various environmental directives. Eventually the Agency might be given the task of preparing such reports in its own right.

  (xviii) In assisting the Commission in the preparation of reports, the European Environment Agency must necessarily consider implementation problems as well as the current physical state of the environment. This need not, however, involve straying into the Commission's policy territory. The Agency would also be able to provide guidance to Member States on the information needed for their own reports to the Commission. We recommend that any material provided by the Agency to the Commission for these purposes should be published. We recognise that the Agency's legal expertise might need strengthening if it were to take on these tasks.

  16. Most Community law has contained reporting requirements. Since the introduction of the Standardised Reporting Directive there has been a more consistent regime. Future legislation should contain reporting requirements which are at least consistent with the 1991 directive. It may not always be appropriate for these reports to be published, bearing in mind the cost of publication and the likely level of demand, but the information contained in the reports will be made available to the general public and interested organisations under the Environmental Information Regulations 1992.

  17. More generally, the Commission publishes an annual report to Council and the European Parliament on monitoring the application of Community law, and it is possible for the Commission to supplement that with additional information in the environment field (which the Government would support). The Council Resolution invites the Commission . . . to submit to Council an annual survey of the environment containing, inter alia, detailed information on transposition and practical application by Member States of Community environmental law"[17].

  18. The Government notes the Committee's commendation of the Manual for Environmental Policy and fully agrees with its view that the Manual is a valuable reference tool. The Government has supported the Institute for European Environmental Policy (IEEP) in its production of the Manual since its inception in 1991, and greatly values IEEP's contribution to understanding and informing European environmental policy making and its implementation in the UK. The Department of the Environment, Transport and the Regions uses the information in the Manual for its own purposes and, on the basis of a competitive tender, has now awarded this contract to another organisation, WRC. The Government continues to value the Manual and agrees that similar reference works might be useful to other Member States.

  19. The Government notes the recommendations at xiii, xiv, xvi and xviii, addressed to the European Parliament, the European Environment Agency, the Commission and national Parliaments. It considers that the European Parliament has a valuable role to play in Community decision making, particularly in areas that are subject to majority voting in the Council. It also strongly supports an enhanced role for national parliaments in the European Union. In addition to its support for the Treaty protocol on this subject agreed at Amsterdam, the Government is presently considering proposals for making the UK's national parliamentary scrutiny system more effective.

  20. The Government supports the Select Committee's view that the Council of Ministers should give more consideration to implementation of environmental law. Council discussed implementation issues in June when it adopted the Resolution on the drafting, implementation and enforcement of Community environmental law. It is likely that implementation issues will return to Council's agenda in future in the context of the further action that was called for in the Resolution.

  21. The Government agrees with the Select Committee that it would not appropriate at this stage for the European Environment Agency (EEA) to have a direct role in implementation and enforcement. The expertise of Agency staff, and that of the expert organisations with whom it has established links, lies in monitoring and research, not in implementation and enforcement, nor directly in inspection. If the Agency were to extend its functions in these directions, this would require both a very considerable increase in resources and a very different body of staff and network of contacts. The EEA should however continue to collate information on the standards and methodologies used to collect environmental data. The primary role of the EEA should remain the provision of information about the state of the environment and related pressures on it. This is the best way for it to contribute to the development of policy both within the Commission and Member States.

  22. The Regulation establishing the EEA is currently being reviewed. This review included consideration of a number of potential new tasks. The effect of the Commission's Proposals is that the EEA should continue to focus on its present core tasks of improving data quality, comparability and reporting at the European level. Among other points, they suggest that it would not be appropriate for the EEA to have an inspectorial role on implementation and enforcement, though it could do more to support the enforcement process, for example by supporting DGXI further on data collection and monitoring aspects of the Standardised Reporting Directive.


  (xix) We strongly support the Commission's proposal to develop guidelines for national inspectorates. A high degree of uniformity across the Community in inspection standards is an essential prerequisite of effective enforcement at Member State level and need not detract from subsidiarity.

  (xx) IMPEL - the Community - wide network of professional inspectors mainly involved in pollution control - is a useful initiative, but its relationship with the Commission and the European Environment Agency is unclear in the Commission's Communication. We recommend that this is clarified as quickly as possible.

  (xxi) We are concerned that the Commission appears to envisage IMPEL developing into a semi-official regulatory body. We consider IMPEL should remain a professional association, independent of the Community institutions, and should not take on any formal role in the implementation and enforcement of Community environmental law. We recommend that establishment costs of IMPEL should be shared between the Member States, not borne by the Commission. We also recommend that IMPEL should regularly consider implementation issues and offer opinions on them, in published reports, to the Commission, the European Parliament and the Council of Ministers.

  (xxii) We consider that there would be value in having a similar professional grouping of national regulatory bodies concerned with nature protection and related matters, complementary to IMPEL.

  (xxiii) If a Community-level inspectorate of inspectorates" were to be established, the logical home for it would be European Environment Agency. But we agree with the Commission that the question of formal machinery for auditing national inspectorates need not be pursued for the time being.

  23. The Council Resolution asked the Commission to propose minimum criteria and/or guidelines for national inspectorates, and a paper is currently being prepared by the EU Network for the Implementation of Environmental Law (IMPEL). The Environment Agency, which, along with the Scottish Environment Protection Agency and the Environment and Heritage Service (Northern Ireland), represents the UK on IMPEL, has been in the forefront of preparing this paper. Consistently high inspection standards across Member States are essential in ensuring the full and effective implementation of Community environmental law throughout the Community. In due course, it will be for the Commission to propose, and Council to consider, whether to adopt minimum criteria or guidelines for inspection tasks.

  24. The relationship between IMPEL and Community institutions was set out in a paper on the future of IMPEL which was agreed at IMPEL's plenary meeting in May: IMPEL continues to be an independent network of inspection and enforcement agencies. The representatives of Member States meet in a biannual plenary session; while the Commission holds the joint Chairmanship of plenaries, it does not have the right of decision. IMPEL has no formal links with either the European Parliament or the Council of Ministers.

  25. IMPEL was set up as a network of inspectors of industrial installations in order that they should be able to exchange information and expertise, and while its role has recently been enhanced by the adoption of the Council Resolution on drafting, implementation and enforcement of environmental law, the Government would not like to see the network move too far away from the purpose for which it was originally conceived and in which its value lies, particularly in view of the impending enlargement of the Community by the accession of Central and Eastern European countries. The Government agrees with the Select Committee that it is important for IMPEL to continue to be an independent network of professionals. We share the Committee's concern that IMPEL should not develop into a semi-regulatory body.

  26. Until recently, IMPEL was financed almost entirely by its members, with the exception of the provision of an office in the European Commission and the secondment of a Commission official to its secretariat. This year IMPEL received 500,000 ECU from the EU budget to support the cost of carrying out research and producing reports. At the same time IMPEL's secretariat has been augmented by a secondment from the Environment Agency. It is expected that a similar amount of money will be allocated by the European Parliament next year. In order to account for this contribution from EU funds, a report on the activities of IMPEL is to be included in the annual report of the Commission. In its Resolution, Council considered that IMPEL would require appropriate financial means and a secretariat[18].

  27. IMPEL does not cover drinking water. The Drinking Water Inspectorate has established liaison with agencies in other Member States through an informal network of contacts.

  28. The Government notes the idea of a professional grouping of national regulatory bodies, similar to IMPEL, for nature protection. Such a body could help to ensure that Community legislation in this area was being implemented to common standards. The Government would give constructive consideration to such a proposal from the Commission.

  29. The Government shares the Committee's view that at this stage an inspectorate of inspectorates should not be established. The preparation of minimum standards and/or guidelines on inspections, to be monitored by Member States themselves[19], which is currently being taken forward by IMPEL, is the right way forward. The Government considers that it would be best to wait and see how this will work in practice. We agree that in any event the European Environment Agency does not at present have the necessary expertise to undertake the role of auditing national inspectorates.


  (xxiv) We welcome the Commission's concern to place more emphasis on ensuring that national legislation implementing Community obligations fully reflects Community law and is in place in time.

  (xxv) For cases of poor implementation, where it is appropriate for the Commission to initiate proceedings against Member States under Article 169 of the EC Treaty, we recommend that the Commission should develop and publish (as it has done in the competition field) a more clearly defined statement of its policy and priorities for handling such cases. We welcome the European Ombudsman's initiative in investigating the Commission's performance in this field.

  (xxvi) We suggest that a Commission official in each Member State should have the task of compiling factual dossiers on complex complaints, to shorten the present cumbersome communication chain between the Commission and Member States in these cases and to ease the burden of the Legal Unit in DG XI - although we consider that the directorate-general's complement of lawyers needs to be strengthened in any event.

  (xxvii) As a matter of good administration, we recommend that the Commission should always inform complainants each time a critical decision is taken, such as to drop an investigation or start Article 169 proceedings. Where the Commission and a Member State has settled" an action - eg, with the Member State undertaking to take corrective legislative action - we recommend that the parties should publish an agreed statement of the results within one month, and that until such procedures are agreed UK government departments should adopt the practice unilaterally for all cases in which they are involved.

  (xxviii) We recommend that the European Parliament should take a closer interest in the handling of complaints to the Commission. We recommend that the Commission should be required to publish regular reports to the Parliament on its dealings with Member States in this area. We also recommend that more information is published on the outcomes of re«unions pacquet meetings, and that complainants should be informed of progress on items that affect them.

  (xxix) We wish to re-state emphatically the recommendation of our 1992 Report that Article 169 letters, Reasoned Opinions and the responses to them should be in the public domain. We would be content for publication to occur at the point where papers are lodged with the Court of Justice.

  (xxx) Notwithstanding some reservations in our 1992 Report, we welcome the Commission's decision to press ahead with a number of cases where it will be asking the Court of Justice to apply financial penalties under Article 171 of the EC Treaty to Member States who have failed to comply with judgment of the Court. We believe these will have a salutary deterrent effect.

  30. The Government endorses the Committee's view that the Commission is right to place more emphasis on ensuring that national legislation fully implements Community environmental law and is in place in time. This is the most effective way to ensure effective implementation across the Community. Nevertheless, the Government considers that the Commission should continue to pursue individual cases of poor implementation in appropriate cases. Like the Committee, the Government believes that the Commission should publish a more clearly defined statement of how it will determine which such cases it is appropriate to pursue under Article 169. The Government also welcomes the European Ombudsman's initiative in this area.

  31. As regards the publication of Article 169 letters, reasoned opinions and responses to them, it is an established convention agreed between the Commission and Member States that correspondence between the parties should be confidential. Very often such correspondence contains unsubstantiated allegations and provisional legal opinions which may be modified subsequently in the light of further information received. Although the texts of Article 169 letters and reasoned opinions and responses to them remain confidential, decisions to issue a reasoned opinion or proceed to the European Court of Justice are routinely published by the Commission by means of a press statement.

  32. Article 169 correspondence forms part of what can be a delicate process which might be prejudiced if both the Commission and Member States were having to take a public position at an early stage. This correspondence is treated as confidential both by the Commission and by all Member States. The same consideration apply to the results of meetings between officials of the Commission and national governments to discuss Article 169 correspondence. The Government does not therefore support the Committee's recommendation that the results of these are published.

  33. The Government endorses the Select Committee's welcome for the Commission's decision to make greater use of Article 171, which allows for fines to be levied on Member States who fail to comply with judgements of the Euroepean Court of Justice. The threat of applying Article 171 has already proved effective in a number of cases.

Access to justice

  (xxxi) We endorse in general terms the Commission's proposal to rely more on national courts and authorities in ensuring compliance with Community environmental law. We are concerned, however, that the Commission retains a watchful eye and does not derogate its responsibilities. Such a policy makes the need for good quality reports on directives all the more important.

  (xxxii) Although locus standi may no longer be a serious obstacle to environmental litigation in the United Kingdom, we find that the cost rules can be a major deterrent to non-governmental organisations and others seeking to challenge decisions by the authorities. We support the Law Commission's 1994 recommendations that in judicial review cases the courts should have a discretion to award costs out of public funds, even where the applicant loses, where a case is considered to be in the public interest. It would be helpful if applicants could be told at the earliest possible stage whether their case is likely to fall within that category.

  (xxxiii) We think the Commission's proposals, currently not precisely articulated, to encourage the establishment of national environmental ombudsmen or tribunals merit pursuit, as a more cost-effective means of dealing with certain types of dispute, provided that they do not detract from the courts' responsibility for interpreting the law in what are often complex cases.

  34. The Government agrees with the Commission that it is right to rely where possible on national courts in ensuring compliance with Community environmental law. The Government welcomes the recent relaxation of rules of standing in relation to environmental organisations in courts in the UK, and has not raised issues of standing in recent challenges brought by environmental organisations.

  35. The Government is considering how best to fund public interest cases. This was touched on in the Law Commission's report on judicial review as well as by Lord Woolf. More recently, Sir Peter Middleton in his report on Civil Justice and Legal Aid recommended a separate fund administered by the Legal Aid Board to pay for such cases. We are considering how best to make such cases affordable, but have yet to reach a final conclusion.

  36. The Government generally favours methods of dealing with disputes which avoid going to court; however, as the Committee has noted, the respective roles of the courts and any other bodies, such as ombudsmen or tribunals, which may be empowered to deal with such disputes, would have to be carefully defined.

Non-governmental organisations

  (xxxiv) The energy, enthusiasm and expertise of non-governmental organisations can contribute significantly to effective implementation of environmental policies. We commend the Department of the Environment's Wildlife Law Enforcement Group as a model to the Community of constructive cooperation between NGOs and regulators. We support the principle of some public funding for NGOs subject to appropriate safeguards.

  37. It is the Government's practice to consult with NGOs, industry and local authorities on all proposed Community environmental legislation. Now that the English and Welsh courts have given a liberal interpretation to the term locus standi, it is likely that a responsible NGO, with a record of involvement on behalf of the public in the subject matter of a decision challengeable on judicial review, will be accepted by the courts as having sufficient interest to make a challenge. The Government welcomes this development.

  38. The Government considers that there is a clear role for responsible NGOs in helping to ensure compliance with Community environmental legislation, as in promoting public debate and concern for the environment generally. The Government will continue to consult and work closely with them.

Implications for the future enlargement of the community

  (xxxv) The prospect of further accessions makes it all the more important to establish more transparent, systematic and focused procedures of implementation and enforcement of Community environmental law. We commend the efforts of the European Environment Agency, IMPEL and the European Environment Bureau in helping to build capacity in the national agencies and NGOs in the countries of Central and Eastern Europe. The PHARE programme of assistance, properly targeted and with improved procedures (as recommended by this Committee and the Court of Auditors) should have an important part to play in supporting the process of approximation of environmental law in the countries which aspire to join the European Union.

  39. The Government is broadly content with the recently published Opinions of the Commission on the Central and Eastern European Countries which have applied for membership of the European Union. The UK is a strong supporter of enlargement and looks forward to decisions at the Luxembourg Council in December which will allow the opening of accession negotiations early in 1998. Enlargement offers an excellent opportunity to raise environmental standards in Central and Eastern Europe and to extend the Single Market with its common standards for environmental protection.

  40. The Opinions underlined the need to build administrative and enforcement capacity in the accession states in order to ensure implementation, and not just formal transposition, of Community environmental law. The Government supports the proposed reorientation of the EU Phare programme in order to improve its effectiveness in assisting the necessary institutional capacity building. The UK is also providing technical assistance relating to EU integration to national agencies and NGOs through the know How Fund and IMPEL and other networks.

European Environment Division

5 November 1997

11  9th Report 1991-92, Implementation and Enforcement of Environmental Legislation, HL Paper 53. Back

12  COM(96)500 final. Back

13   Council Resolution on the drafting implementation and enforcement of Community environmental law, 97/C321/01 OJ, adopted by the Environment Council in June 1997 (hereafter Council Resolution). Back

14  Council Resolution paragraph 5. Back

15   Committees whose procedures are defined by Council's Comitology Decision 87/373/EEC. Back

16   Council Directive 91/692/EEC. Back

17  Council Resolution paragraph 17. Back

18   Council Resolution paragraph 23. Back

19   Council Resolution paragraph 17. Back

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