Select Committee on European Communities Second Report



The Commission's general approach

  13.    The Commission's detailed recommendations are discussed in later sections of this Report. In this section we note witnesses' views, and offer our opinion, on several general themes which run through the Communication:

Witnesses' views

  14.    In general, witnesses welcomed the Communication. Mr Derek Osborn, Chairman of the European Environment Agency (EEA), found it "extremely interesting...but still rather tantalisingly imprecise at the edges" (Q 223). The DoE shared the Commission's broad analysis: what to them made environmental legislation special was its concern to protect human health, natural resources (which had economic value) and intrinsic goods such as landscape and wildlife (QQ 7, 14). The Confederation of British Industry (CBI) felt that it was possible to over­play the special character of environmental law: the environment might be special in some respects, but that did not mean that environmental legislation had to be more complex than, say, social and economic legislation (Q 43). They considered proper monitoring and enforcement of environmental legislation to be "absolutely paramount. It is fundamental to the whole question of environmental improvement and the achievement of a level playing field" (Q 56). The United Kingdom Environmental Law Association (UKELA) thought that it was the need to balance private and public interests that made environmental law a difficult area for the courts (Q 262).

  15.    Non-governmental organisations (NGOs) were equally convinced of the fundamental importance of the issues raised by the Communication, whilst expressing concern that the Commission's proposals did not go far enough. For example, Friends of the Earth (FoE) said that their initial hopes were dashed by the document that eventually emerged: they felt it "disclosed a lack of political will to put enforcement of environmental law at the top of the agenda" (Q 164); and the World Wide Fund for Nature (WWF) saw the proposals as shifting too much responsibility for enforcement to Member States (Q 164). Some of this thinking is reflected in the European Parliament resolution of 15 May 1997, reproduced at Appendix 7. For the Commission, the witnesses from Directorate-General XI (DG XI)[21] stressed that this was the first time that they had tried to approach implementation and enforcement issues comprehensively, and they looked to the Communication to stimulate a debate in which everybody would feel a sense of "shared responsibility" (Q 352).

  16.    The Environment Agency for England and Wales expressed their strong support for the "regulatory chain" concept (Q 106), although the Scottish Environment Protection Agency (SEPA) felt that the Communication placed too much emphasis on procedures and not enough on evaluating actual environmental improvement (Q 106). English Nature also supported the "chain" approach but thought that the Communication gave too much weight to enforcement, which in their experience was best regarded as a last resort (QQ 287-8, 294): the need was to change the culture through effective integration of environmental considerations into other Community policies, such as agriculture, so that the legislation would to a large extent become self­enforcing (Q 293).

  17.    Issues of transparency came up frequently as we discussed with witnesses the various links in the "chain": we deal with these in later sections. One general area of concern was the effectiveness and transparency of internal consultation procedures within the Commission. We were informed by DoE that the Commission had an established process of "inter-service consultation" for any evolving proposal, for which a lead directorate-general would be designated (QQ 15­7); it had also adopted, in January 1996, General Guidelines for Legislative Policy, covering such things as the need to ensure consistency between Community policies, improved systems of impact assessment, continuous review of existing legislation, wider external consultation, simple and clear drafting, and observance of the principles of subsidiarity and proportionality (Q 13). The text of these guidelines is reproduced in Appendix 9.

  18.    Both NGOs and industry witnesses acknowledged there had been improvement, but some problems remained: for instance, despite what DoE had said, it was not always clear which directorate-general was in the lead on a particular proposal (QQ 60-1, 195). The Environment Agency thought the problem lay in consultations being conducted at too high a level (and therefore too late) (Q 146); English Nature similarly saw a problem of vertical chains in the different directorates-general and inadequate cross­links on policy (Q 282). The Environmental Services Association (ESA) even cited instances of unco­ordinated activity within DG XI itself (p 16, Q 91).

  19.    The NGOs pressed for greater transparency of Council proceedings, arguing that the Code of Conduct on public access to Commission and Council documents[22] was rendered largely ineffectual by excessive recourse to exceptions (pp 65, 71­2, QQ 195-200). The Institute for European Environmental Policy (IEEP) was, however, sceptical about the prospects for achieving greater openness in the proceedings of the Council of Ministers: Mr Nigel Haigh drew an analogy between the Council, as a policy-making body, and the United Kingdom Cabinet (whose deliberations are necessarily private): even when the Council was acting in its other capacity, as a legislature, its proceedings often involved the sort of negotiation and compromise typical of international diplomacy, which could not in practice be conducted under the public gaze. It was, however, quite unacceptable for the Council to compromise on intentionally ambiguous wording in directives and then to adopt declarations in private which affected their interpretation. It was hoped that a recently introduced code of conduct on access to Council minutes would help to curb this practice (Q 341; Appendix 5, p 65).

  20.    The Commission's proposals for increasing awareness-particularly among judges, lawyers and officials-of environmental law did not elicit much direct comment from witnesses. Mr Haigh of IEEP said he was not clear what the Commission really meant (QQ 337-8). The RSPB cited the handling of the Lappel Bank case[23] as evidence that the judiciary would have benefitted from better training in environmental issues and European law (p 62). Mr Burnett­Hall (UKELA) suggested that compared with the inquisitorial procedure of continental European legal systems, environmental litigation sat less easily with the UK's adversarial procedure, in that parties could find themselves arguing, often at considerable length, before a judge who was not necessarily very experienced in the technical and legislative area in question (Q 263). DG XI's reply to our written question on this issue acknowledged that the evidence was largely anecdotal and based on individual complaints to the Commission, of which only a few examples were cited. Nevertheless they perceived "a serious lack of appreciation of both the substantive EC environmental law and the relevant general jurisprudence of the European Court of Justice", which they envisaged being addressed through seminars and training for the legal profession, with some modest financial support from the Commission (p 157).

  21.    Although we decided that a detailed review of the principle of integration of environmental considerations into other areas of policy would be outside the scope of this Report, many witnesses responded to our invitation to comment on relevant aspects of policy integration in their written submissions and emphasised its importance to credible and effective implementation and enforcement of environmental law. For instance, English Nature stressed the damaging effects of the Common Agriculture Policy, the Structural Funds and EU policies in other fields, such as transport (pp 131-2, Q 282-4); UK members of the European Environmental Bureau (EEB) wished to see the environment given equal status with competition policy (Q 194); and SEPA felt that much environmental legislation had been over-compartmentalised and that this had in some areas hampered environmental improvement (Q 155).

Opinion-general approach of the Communication

  22.    We welcome the Commission's Communication on Implementing Community Environmental Law and the concept of the "regulatory chain", which emphasises that implementation and enforcement issues are not confined to the formal legislative stage of the process but must encompass such issues as initial design of legislation, institutional structure, and training and education. We are pleased to note progress on a number of the issues on which we made recommendations in our 1992 Report, but must stress that much remains to be done by the Commission and Member States in developing and putting into practice the proposals in the Communication. As we note under several headings below (paragraphs 24, 33-4, 92, 95-7), transparency remains our greatest concern. However, it is not without significance that six out of the 15 EU Member States now have general freedom of information legislation[24], and that the United Kingdom Government has promised a White Paper on the subject this summer. As more Member States move in that direction, the pressure for greater openness in the Community is bound to increase.

  23.    We also welcome the Commission's General Guidelines for Legislative policy, but we note that some problems remain with internal co­ordination of policy, particularly between different directorates-general but also occasionally within DG XI itself. These require attention if the important policy of integrating environmental considerations into other Community programmes is to achieve worthwhile results. We hope that the problems will diminish as Commission staff become more familiar with the guidelines.

  24.    On the whole, we are pleased to note the terms of the June 1997 Council Resolution, which generally gives a fair wind to the further development of the Commission's proposals. We remain concerned, however, about the low level of transparency which applies to proceedings of the Council. In the long-term interests of the environment, we feel that the Community must now tackle this issue with some determination if implementation and enforcement of environmental law are to command widespread public support. We note that the draft Treaty of Amsterdam inserts a new Article on transparency into the EC Treaty, guaranteeing a right of access to documents of the Community institutions[25]. This right, however, is subject to the Council of Ministers' power to determine principles of access and to detailed procedural rules to be adopted by each institution. Much therefore will depend on how far the Council is prepared to go in meeting the expectations which the new Article will undoubtedly arouse.



Too much environmental legislation is formulated and drafted with insufficient attention to its eventual implementation. The Commission should take the following steps to improve the quality of draft legislation:

  *  there should be a more consistent use of green papers

  *  the supporting scientific and technical information on which legislative proposals are grounded should be published, and the results of consultative meetings made known

  *  the practice of consulting on early drafts of legislation should be extended

  *  advice on draft legislation should be sought from the European Environment Agency when established

  *  clear indications should be given of the cost implications of draft legislation

  *  the legal and technical units of DG XI should collaborate more closely in drafting legislation

  *  informal guidelines should be issued to assist Member States in the interpretation of difficult concepts

Member States should involve representatives from regulatory authorities alongside civil servants in Council Working Groups

The Commission's proposals

  25.    The Commission emphasises in paragraph 51 of the Communication its awareness of the need for "an open and consultative process" when formulating environmental legislation, citing examples of green papers, consultative networks, meetings of national experts and NGOs, joint public hearings with the European Parliament and other forms of consultation. It promises to "consult as widely as possible on the formulation of new proposals for Community environmental measures. Consultations will include the full range of actors who will be concerned with a particular measure" (paragraph 51).

Witnesses' views

  26.    The CBI felt that consultation needed to be much earlier than the stage when a Directive was ready for transposition (Q 38): the Groundwater Directive[26] and the Dangerous Substances in Water Directive[27] were particularly bad examples of inadequate consultation, with the result that their objectives lacked clarity (Q 46). However, they agreed that the Commission had in recent years improved its consultation procedures "immeasurably"-for example on the Auto Oil programme[28] (Q 58). The EEB's Secretary-General, Mr John Hontelez, however criticised the Commission for being biased towards industry in their handling of this programme and for not allowing them to make an input at the formative stage: although the Commission was now involving the EEB in early consultations on a proposed second phase ("Auto Oil II") of the programme, they felt that there was still reluctance or resistance within the Commission to giving the NGOs a real role. "It is not a matter of inviting us, it is also a matter of inviting us in time, and...of giving us the opportunity to really participate" (Q 184). From a different perspective, the ESA made some trenchant criticisms of the pre-legislative processes in the Commission-seeing a lack of transparency, a failure to take practitioners' experience into account, and even an anti-industry bias (p 14, Q 90).

  27.    Picking up a particular point in the 1992 Report, and mindful of the ESA's criticisms (paragraph 18 above), we asked DG XI to comment on the relationship between the Legal Unit (represented by our witnesses, Mr Kremlis and Mr Noble) and the so­called technical (or "vertical") units-water, waste, etc-within the Directorate-General. They explained that the vertical units were in the lead during the pre­legislative and legislative stages of the "chain", but the Legal Unit was involved throughout as in-house legal advisers. After the transposition stage, the lead passed to the Legal Unit for the task of checking conformity of national legislation and initiating infringement procedures, if appropriate-the latter being in consultation with the vertical units and the Commission's central Legal Service. Evaluation of the effectiveness of measures was the responsibility of the originating units. If infringement cases arose in which other directorates-general (e.g. agriculture) were in the lead and which had implications for the environment, there would be "inter-service" consultations with the DG XI Legal Unit.

  28.    The Legal Unit, having at one time (under Mr Kremlis' predecessor) reported direct to the Director-General, DG XI, was now one of several "horizontal" units grouped within Directorate B ("Environmental Instruments"), which in turn was one of five directorates under the Director-General (see organisation chart at Appendix 10). Mr Kremlis said that this change had been made for organisational reasons and implied no change in status or operating methods. He acknowledged that the staffing of his unit left "room for improvement", with only 20 lawyers (not all of them permanent), of whom at least 15 were assigned as desk officers for individual Member States. Some selectivity was necessary, particularly in cases of "bad application", and this underlay the approach in the Communication of placing more emphasis on national complaints and investigation mechanisms (Q 356-62, 379).

  29.    As we have mentioned in paragraph 2, a long-standing concern of this Committee and its Sub-Committees has been lack of transparency in relation to the scientific and other expert advice on which the Commission bases its policies and proposals. Many witnesses, especially NGOs, criticised the secrecy surrounding the work of the various scientific and technical committees which advise the Commission on draft legislation, or the so­called regulatory and other committees appointed by the Council under particular Directives. WWF in particular drew our attention to the large number of such committees (some 300 across the whole range of Community activities) which existed in 1995 (p 72, Q 177)[29]. From an industry standpoint, there was criticism by the Water Services Association (WSA) that the Commission did not take sufficient account of views of practitioners in industry and the regulatory authorities (QQ 85-6). The DoE agreed that the Commission's record was not good, particularly over the Bathing Water Directive[30], but considered that the handling of the Auto Oil programme showed a distinct improvement on past practice (see paragraph 26 above): besides conducting a more open consultative process, the Commission published the findings of the research programme on which its proposals were based (Q 24). The Department suggested that the Commission might go further in making publicly available the various papers commissioned from its expert advisers (Q 23).

  30.    English Nature said they shared our concern. Ms Sue Collins said: "The Commission tend to use consultancies and academic institutions...that do not necessarily have any practical experience of what it means to implement and deliver environmental change on the ground" (Q 300). Dr Langslow, Chief Executive, added that, as the Government's advisers, English Nature had some experience of participating in advisory committees, and he felt that it would be beneficial if the outcomes of their meetings were to be published. He saw difficulties, however, in throwing the committees entirely open, as it would expose them to lobbying by interest groups. On the Commission's choice of advisers, "the way in which they select their scientific advisers, and the openness with which that operates, is not always good enough and quite often we seem to learn about things long after they appear to have reached quite an advanced stage. Unravelling them again is quite difficult" (QQ 301-2). Mr Haigh, IEEP, congratulating this Committee on its persistence and consistency over this issue, said it was "scandalous...that the scientific data on which proposals are made should not be made public", thereby ensuring quality through peer review. But he added that the making of EC legislation was a political process, and the choice of, for example, an emission limit inevitably involved some compromise between scientific advice, what was technically achievable, and what Member States were in practice prepared to sign up to. He felt there was some truth in the criticism that the UK had tended to use scientific uncertainty as an excuse for not acting (QQ 344-9).

  31.    We asked DG XI why it was necessary for committees to work in such conditions of secrecy, and what would be lost if the basis on which members were selected, and their advice, were to be part of a fully open process. Their reply referred us to the Council's Decision on "comitology", which defines the use of delegated powers by the Commission[31]: "As regards the issue of transparency, each committee will have its own rules of procedure and these would need to be consulted to determine a committee's scope for openness." Our attention was also drawn to the Code of Conduct on public access to Commission and Council documents (cf paragraph 19) (p 156).

Opinion-preparation and formulation of policy

  32.    Compared with the position five years ago, we recognise a number of improvements in the Commission's modus operandi, notably the more frequent use of green papers and the adoption of internal guidelines which reinforce the need for consultation and better co­ordination of legislative policy. Even so, we consider that the Commission should pursue a more thorough and open process of consultation during the pre-legislative stage, involving NGOs as well as government and industry.

  33.    Whilst there are some welcome signs of a move to greater transparency, we feel we must again reiterate our concerns about the unwarranted secrecy that surrounds the scientific and technical advice on which the Commission bases its policies. In their evidence to us the Commission appears to rely on the principles of "comitology", the procedures of which (as the footnote to paragraph 31 illustrates) are not entirely straightforward. Since membership of the formal committees appointed under those procedures is largely in the hands of Member States' governments, at least part of the blame for lack of transparency must attach to them. But whatever the complexities of "comitology", the response from DG XI does not address the large number of committees which the Commission appoints to advise it on scientific and technical matters when developing policy and legislative proposals. The credibility of advances in scientific knowledge and the development of new hypotheses rely heavily on the open process of peer review. That process is frustrated if those outside the circle of committees and individuals who advise the Commission are denied access to the data and analyses on which legislative proposals (such as emission limit values) and implementing measures are based, and if they are not even allowed to know the names of the scientists on whose advice the Commission relies or what their advice has been. The new Article 191a of the EC Treaty (see paragraph 24) should, in our view, create a much greater presumption in favour of openness.

  34.    We therefore support the view of the Department of the Environment that papers produced for the Commission by its expert advisers should be published. We also agree with English Nature that the outcomes of meetings of advisory committees should similarly be made public.

  35.    At the very least, membership of the Commission's advisory committees should be determined through a fully open process. We also feel that details of the membership of formal regulatory and other committees appointed under the "comitology" procedure for particular directives should be publicly available. The Commission should ensure that academic and consultancy advice is complemented by the "hands on" experience of practitioners in national regulatory authorities and in industry.

20   In Annex I to the Communication "regulatory chain" is defined as "the whole process through which legislation is designed, drafted, adopted, implemented and enforced until its efficiency is assessed" (p 60). Back

21   The Directorate-General of the Commission responsible for environmental policy. Back

22   OJ L46, 18 February 1994, p 58. Back

23   In 1993 the Secretary of State for the Environment designated some 4000 hectares of the Medway Estuary and Marshes, North Kent, as a special protection area (SPA) under the 1985 EC Directive on wild birds. About 22 hectares in the area known as Lappel Bank were excluded from the designation to allow room for the expansion, on reclaimed land, of the port of Sheerness-an area of high unemployment. Lappel Bank was considered the only area in which the expansion could realistically take place. The RSPB challenged the Secretary of State's decision by way of judicial review, arguing that taking into account economic factors at the stage of designating the SPA was an incorrect interpretation of the Directive and ECJ case law. After the RSPB's case had been dismissed by the High Court and the Court of Appeal, the House of Lords sought clarification from the European Court of Justice on a number of points of interpretation of Community law. On the main point at issue, the ECJ in July 1996 found in favour of the RSPB, ruling that the Secretary of State had acted unlawfully in excluding Lappel Bank from the SPA for economic reasons: only ornithological criteria were relevant. Back

24   Denmark, Finland, France, Ireland, the Netherlands and Sweden. Back

25   CONF/4001/97, 19 June 1997, p 92: new Article 191a. Back

26   80/68/EEC, OJ L20, 26 January 1980. Back

27   76/464/EEC, OJ L129, 18 May 1976. Back

28   Under Article 4 of Directive 94/12/EC (OJ L100, 19 April 1994, one of a series of directives amending Directive 70/220/EEC, OJ L76, 6 April 1976, on harmonisation of vehicle emission standards) the Commission was given the task of drawing up a package of measures necessary to reduce road transport emissions to a level compatible with future air quality objectives. The Commission responded with a Communication in August 1996 on a future strategy for the control of vehicle emissions (COM(96)248 Final), which drew on the results of the Auto Oil Programme-a tripartite programme of research and development launched by the Commission in 1992 in collaboration with the European oil and motor industries. The Communication was accompanied by proposals for amending directives on emissions and fuel composition. For a discussion of the programme and the Commission's proposals, see Towards Zero Emissions for Road Transport, 1st Report of the House of Lords Select Committee on Science and Technology, 1996-97, HL Paper 13. Back

29   For the 1995 financial year the EU General Budget provided for a total of 333 committees established under the "comitology" procedure (see footnote 31), of which 29 were listed under "environment" (OJ L369, 31 December 1994). The budget also listed a further 66 committees of a purely advisory nature (including six in the environmental field): that figure, however, would have been an underestimate as not all advisory committees are formally budgeted for. The number of comitology and advisory committees listed in the budget quadrupled between 1975 and 1995. It has recently been estimated that the number of persons participating in such committees is around 20,000 (Falke and Winter, Management and Regulatory Committees in Executive Rule-Making, in Winter G (ed), Sources and Categories of European Union Law, Nomos Verlagsgesellschaft, Baden Baden, 1996). Back

30   76/160/EEC, OJ L31, 5 February 1976. Back

31   When the Council confers on the Commission the power to issue measures implementing Community legislation, it normally provides for the measures to be controlled to some degree by a Council Committee. Current procedures were established by Council Decision 87/373/EEC (laying down the procedures for the exercise of implementing powers conferred on the Commission), OJ L197, 18 July 1987, p 33, known as the "Comitology Decision" (spelling varies). Committees are made up of Member States' representatives (who may be government officials or nominated experts) and are chaired by Commission officials. There are three types of committee:

Besides the "comitology" committees, the Commission itself appoints a wide range of committees of outside experts (technical, scientific, etc) to advise it on the development of policy and legislative proposals. Back

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