Select Committee on European Communities Second Report


1 July 1997

  By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.



COM(96)500 final

Communication from the Commission on implementing Community environmental law


  1.    Five years ago, this Committee reported on an enquiry into implementation and enforcement of Community environmental law[1]. The opening paragraphs of the Report's summary of conclusions are worth recalling:

    ;"Implementation and enforcement of environmental legislation go to the heart of Community policy. But Community environmental legislation is being widely disregarded, and the Community has paid insufficient attention to how its policies can be given effect, enforced or evaluated. The time has come to redress the balance.

    "The prime responsibility rests with the Member States. Unless they demonstrate, in accordance with the principle of subsidiarity, that they can ensure the effective implementation of Community legislation, the pressure will grow for a transfer of competencies to the Community itself.

    "Substantial changes in attitude are required. First, Member States must pay more attention to implementation and enforcement and the issues given greater political prominence. Second, implementation should be seen as a continuous process spanning the formulation and evaluation of policies as well as their execution. Third, the whole process should be made more transparent."

  2.    In many respects the Committee's Report on Implementation and Enforcement of Environmental Legislation (referred to in this Report as the "1992 Report") has set the scene for a number of subsequent reports-for example, on the Fifth Environmental Action Programme and the integration of environmental considerations into other areas of policy[2]; on progress in setting up the European Environment Agency[3]; on transparency and access to environmental information[4]; and on the scientific basis and credibility of environmental policy (a theme which has exercised the Committee for many years)[5].


  3.    The enquiry was carried out during the 1996-97 Session by Sub-Committee C (Environment, Public Health and Consumer Protection), whose then Members are listed in  Appendix 1. The oral and written evidence received is listed in Appendix 2. The specialist adviser was Professor Richard Macrory, Professor of Environmental Law, Imperial College Centre for Environmental Technology, London. We wish to record our appreciation of Professor Macrory's valuable and expert assistance, and of the helpful and constructive contributions from the many witnesses to the enquiry.

  4.    The Sub-Committee's invitation for evidence is reproduced in Appendix 3. The enquiry was conceived primarily as a review of progress since the 1992 Report, but taking in also relevant aspects of the later reports on the Fifth Environmental Action Programme and the European Environment Agency. The evidence invitation was intentionally wide­ranging, to give witnesses scope to highlight selectively the issues they considered most important for the development, application and enforcement of Community environmental policy. It was also written in the expectation that by the time the sessions of oral evidence were under way the Commission would have published a proposed Communication on enforcement of Community law. This document subsequently appeared in October 1996 under the title Implementing Community Environmental Law[6] and provided the main focus of the enquiry.

  5.    The Commission's Communication (the text of which is reproduced at Appendix 4) may be seen as a milestone in the development of Community policy in this field. It is important both as a consolidated statement of existing policy and practice and for its proposals for future policy in the light of experience. In view of the substantial common ground covered by the Communication and the Committee's 1992 Report, we draw attention in particular to areas of progress and change over the past five years, comparing its main conclusions and recommendations with the Commission's latest position.

  6.    Evidence was also invited on two other Commission documents, which were on the table at the start of the enquiry-a proposal to regularise Community funding of environmental non-governmental organisations (NGOs)[7]; and proposals for the review of the Fifth Environmental Action Programme[8]. We see the role of NGOs as having an important bearing on the transparency and public credibility of the Community's decision-making processes; and effective integration of environmental considerations into other areas of policy has, in our view, significant implications for the way in which legislation is framed, implemented and enforced. Although we felt it was unnecessary to maintain a scrutiny reserve on these proposals, we have referred to relevant aspects of them in this Report.


  7.     Protection of the environment is now a significant component of the acquis communautaire[9]. The Commission's Communication refers, in its opening paragraph, to over 200 pieces of Community environmental legislation having been adopted. These would be instruments specifically directed at environmental protection; but if the definition is extended to other instruments which affect the environment, the count ranges from over 280 (p 11) to nearly 500 (p 37, Appendix 5, p 67). Recognition by the Community of the importance of implementation and enforcement-as opposed to simply having the laws in place-came relatively slowly. It was only with the adoption of the Fourth Action Programme on the Environment in 1987 that the Council first underlined "the particular importance it attaches to the implementation of Community legislation"; and the European Parliament around that time began taking an interest in questions of implementation. The June 1990 Dublin European Council reinforced the position with a declaration which invited the Commission to conduct regular reviews, including evaluations of existing directives, and emphasised the point that effective implementation requires transparency.

  8.    The Commission's Communication looks on implementation (in the broadest sense) as a continuum, or "regulatory chain", of activity, which links together at least five distinct stages. There are various ways of describing these stages, and some may be seen as concurrent or iterative, rather than sequential, but for present purposes we have used the following terms, and have structured the Report accordingly:

    Preparation and Formulation of Policy

    Form and Drafting of Legislation

    Transposition and Practical Implementation

    Monitoring, Reporting and Evaluation (including inspectorates)

    Enforcement (including machinery for handling complaints)

  9.    A useful discussion of the issues, with historical background, is to be found in the paper by Nigel Haigh, Director, Institute for European Environmental Policy, London, reproduced at Appendix 5; for a European Parliament perspective, see the working document of 9 October 1996 by Ken Collins MEP and the Parliament's Resolution of 15 May 1997, reproduced at Appendices 6 and 7 respectively.


  10.    The Department of the Environment (DoE), in oral evidence, gave us a useful tour d'horizon of developments since our 1992 Report (Q 3). Of these, plainly the most significant was the Treaty on European Union ("the Maastricht Treaty"), which entered into force on 1 November 1993. Under one of the various amendments to the EC Treaty, qualified majority voting (QMV) in the Council of Ministers became the standard procedure for adoption of environmental measures, apart from those of a fiscal nature; and the European Parliament's role in the legislative process was enhanced by more extensive application to environmental legislation of the "co­operation" procedure[10] (which requires a unanimous vote in Council to override the Parliament) and by the introduction of the "co­decision" procedure[11] (applicable inter alia to "general action programmes" in the environment), which effectively gives the Parliament a veto[12]. The Maastricht Treaty introduced two other measures of general application but important for environmental legislation-fines for Member States who fail to comply with judgments of the Court of Justice[13]; and the formal embodiment of the principle of subsidiarity in Community law (see box). Under Commission procedures introduced in 1992 (the so-called Edinburgh Guidelines) all draft proposals to the Council and the European Parliament have to be assessed for compatibility with the principle. The draft Treaty of Amsterdam includes a new protocol on subsidiarity[14].


The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

  11.    Other major developments include the establishment of the network of national pollution inspectorates, known as IMPEL (see paragraphs 69-74); implementation of directives on access to information on the environment[15] and on standardised reporting procedures[16]; the promotion within the Community of "environmental management and audit" schemes (EMAS) in industry[17]; and the inauguration in October 1993 of the European Environment Agency with headquarters in Copenhagen (see paragraphs 53-7). Finally, on the domestic front, the Department referred to the establishment on 1 April 1996 of the Environment Agency in England and Wales and its counterpart the Scottish Environment Protection Agency; and mentioned also the widening opportunities for people to seek judicial review of decisions affecting the environment, as a result of a progressively more liberal interpretation by British judges of the concept of "sufficient interest" (see paragraph 100). The appearance of the Commission's Communication was, of course, itself a significant development.


  12.    The text of the Commission's Communication Implementing Community Environmental Law is reproduced at Appendix 4 and is conveniently summarised in the Government's Explanatory Memorandum at Appendix 8. Towards the end of the enquiry the Government came forward with a further Explanatory Memorandum[18] covering a proposed resolution for the Environment Council meeting of 3-4 March 1997: in the event the resolution was deferred to the meeting of 19-20 June. As only a provisional text of the resolution exists at the time of reporting, we have not reproduced it here, but we note that it is broadly supportive of the Commission's proposals and is consistent with the Government's position at the time of our enquiry. The DoE confirmed to us[19] before the Council meeting that the incoming Government remained committed to that position, and that it welcomed the latest draft of the resolution, which now reflected to a considerable extent the points put by the United Kingdom during negotiations.

1   9th Report, 1991-92, Implementation and Enforcement of Environmental Legislation, HL Paper 53. Back

2   8th Report, 1992-93, Fifth Environmental Action Programme: Integration of Community Policies, HL Paper 27. Back

3   5th Report, 1994-95, European Environment Agency, HL Paper 29. Back

4   1st Report, 1996-97, Freedom of Access to Information on the Environment, HL Paper 9. Back

5   For example, 16th Report, 1988-89, Nitrate in Water, HL Paper 73; 1st Report, 1994-95, Bathing Water, HL Paper 6-I; 4th Report, 1995-96, Drinking Water, HL Paper 31. Back

6   COM(96)500 final. Back

7   4163/96;COM(95)573 final: Proposal for a Council Decision on a Community action programme promoting non-governmental organisations active in the field of environmental protection.  Back

8   5641/96; COM(95)647 final: Proposal for a Decision of the European Parliament and of the Council on the Review of the European Community Programme of Policy and Action in relation to the Environment and Sustainable Development Towards Sustainability. Other relevant documents are the Commission's progress report on the Programme (4601/96; COM(95)624 final) and the European Environment Agency's updated State of the Environment Report of 10 November 1995 (see paragraph 53). Back

9   Acquis communautaire-a term deliberately left untranslated in English texts of the Treaties, Community legislation and official documents of the Community-means the body of Community law in the widest sense, i.e. the corpus of treaties, protocols, legislation, court judgments, policy declarations, administrative procedures and so on which Member States have committed themselves to observe. Article B of the Common Provisions of the Treaty on European Union requires the European Union, among its various objectives, "to maintain in full the `acquis communautaire' and build on it with a view to considering, through the [1996 Intergovernmental Conference], to what extent the policies and forms of co­operation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community". Back

10   EC Treaty Article 189c, as amended by the Treaty on European Union. Under the draft Treaty of Amsterdam the co­decision procedure replaces the co­operation procedure for environmental measures (CONF/4001/97, 19 June 1997, pp 116-7). Back

11   Idem, Article  189b. The draft Treaty of Amsterdam (pp 118-20) simplifies the co­decision procedure in various respects. Back

12   For a convenient explanation of these, and other, procedures, see Klaus-Dieter Borchardt, The ABC of Community Law, Office for Official Publications of the European Communities, Luxembourg, last updated 1994, ISBN 92-826-6293-4 (available from the Commission's UK office, 8 Storey's Gate, London SW1P 3AT). This publication will need further updating to reflect the procedural changes introduced by the Amsterdam Treaty.  Back

13   Article 171, EC Treaty. Back

14   CONF/4001/97, 19 June 1997, pp 87-91: the Protocol takes forward the principles of the Edinburgh Guidelines and other previous Council decisions on subsidiarity. Back

15   Directive 90/313/EEC, Freedom of Access to Information on the Environment, OJ L158, 23 June 1990, p 56. Back

16   Directive 91/692/EEC standardising and rationalising reports on the implementation of certain directives relating to the environment, OJ L377, 31 December 1993, p 48. Back

17   Regulation 1836/93/EEC, OJ L168, 10 July 1993. Back

18   Not reproduced. Back

19   Official letter to the Clerk, 2 June 1997. Back

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