Select Committee on European Communities Second Report

APPENDIX 4 (Continued)


24.  Transposition is an extremely important stage in the implementation process when dealing with Directives. The majority of EC environmental legislation consists of Directives which are not in principle directly applicable in the Member States and therefore require additional implementing measures which are only applicable as national law of Community origin. Consequently, timely transposition ensures that the Community law becomes applicable in all Member States more or less contemporaneously and proper transposition (conformity) ensures that national legislation has more or less the same content and achieves the results required by the Community directives.

25.  The Commission under Article 155 has the duty to ensure timely and correct transposition by the Member States, by using political pressures and, if necessary, court action under Articles 169 and 171 of the Treaty. It may also need to generally keep under review the practical application of the legislation and its enforcement in order to ensure that they are carried out in a satisfactory manner. However, this is a Community enforcement mechanism directed only towards Member State central governments. The Commission simply cannot monitor the thousands of individual decisions taken each year in accordance with the transposed or directly applicable environmental legislation, in the different parts and levels of authority within the Member States. The daily application and enforcement of those lazy in specific cases must be fully ensured by the authorities in the Member States through mechanisms which will strengthen enforcement and, at the same time, ease the control of Member States by the Commission.

Member State inspection tasks

26.  Article 5 of the Treaty, as interpreted by the Court of Justice in case 68/88[72], binds member States to make whatever provision for enforcement is effective, proportionate, and equivalent to that for Member State's national laws. This general principle of Community law, although fundamental, has resulted in a wide disparity in enforcement agencies or mechanisms among the Member States, with some putting considerable resources into well-supported inspectorates or other agencies which monitor the practical application of Community environmental law and other making lesser provision or none at all. Moreover, where provision is made, it is varied: inspection competencies are not always exercised by a single national body, but are often decentralised or shared among several lawyers of authority (local, regional, national, etc). In a number of cases, environmental inspections form only a part of the responsibilities of the relevant competent authorities. In some Member States, such as Denmark or the United Kingdom, the competent authority, in addition to inspecting for compliance, also makes decisions on the grant of permits or bringing of court actions for enforcement, while in other Member States (such as the Netherlands) these tasks are separated.

27.  This wide disparity cannot be considered as satisfactory with reference to the objective of correct and level enforcement at the Community level. The need exists to ensure that minimum inspections tasks are carried out, such as the process of monitoring whether the requirements of Community environmental laws, in particular those relating to industrial emissions and environmental quality standards, are in practice being applied. The need exists also to ensure that this is the case in all Member States.

28.  Given the variety of existing situations described above between the Member States, the achievement of that objective can be obtained by the definition of guidelines which leave to the Member States the choice of the structures/mechanisms they will use to meet it.

    The Commission would be able to define, in co-operation with the Member States, those guidelines and issue recommendations to that effect. The IMPEL network described below could also assist in defining minimum criteria for inspections, and help in capacity building, for instance as to the necessary competencies for the carrying out of inspection tasks.

    On that basis, where inspectorates or equivalent bodies exist and are already operating, in the way foreseen by those guidelines, there will be no need to alter the existing structures. Where inspectorates do not exist, the Commission would consider possible means, if available, for providing capacity-building assistance to help reach them.

29.  Such inspection authorities could produce and publish annual reports on the experience acquired during the carrying out of their tasks. These will give useful information on the problems met and addressed, improvements obtained, and could form a very important basis for future action.

    In fact, those annual reports, of which the Commission would be informed, could be used by the Commission in order to ascertain if the objective of even application is being met and to judge whether further action is needed. This further action could, for instance, by the establishment in the future, at Community level, of a limited body carrying out auditing competencies with respect to the fulfilling by the national bodies of their inspection tasks.

    The Commission will consider making recommendations in order to assist Member States in carrying out inspection tasks, by the establishment of guidelines, thereby reducing the currently existing wide disparity among Member State inspections. Further consideration would be given as to whether there might be a need for a limited Community body with auditing competencies.

Member State environmental complaints and investigation procedure

30.  Experience at Community level of concerns about the application and enforcement of Community environmental law has been gained in a number of ways. Considerable numbers of complains are made to the Commission by citizens and environmental non-governmental organisations. The European Parliament is also considerably involved in such problems: petitions are made to its Petitions Committee, and more and more written and oral questions by Members of the European Parliament raise complaints about environmental matters. Complaints are also made the European Ombudsman, often about matters which have already been the subject not only of Commission consideration but have also been referred to the Parliament. Many of the environmental problems referred to the Community institutions in this way arise from a lack of information or from misunderstandings (by either citizens or administrative bodies) about mainly procedural matters. The mechanisms available to the Community institutions for dealing with such complaints are not necessarily those which are most appropriate to the problem. These complaints might also be dealt with in a more efficient way within Member States, at the local level where they arise and where facts are more easily obtained.

31.  Court action to enforce Community environmental law within the Member States also has a number of disadvantages which prevent its being used effectively to protect the environment in such cases. Some of these problems arise in relation to issues of access to justice which are discussed in the next section. However, even apart from questions of access, there are inherent problems within legal systems, including, for example, costs and delays, which can make it unhelpful as a means for individuals to enforce Community environmental law: litigation should be the solution of last resort. A non-judicial complain investigation procedure could have the advantage of avoiding these inherent problems: it could contribute to a quick and low cost settlement of an issue more accessible to the citizen without any need for legal assistance.

32.  The advantages of considering environmental concerns at a local rather than Community level, coupled with the characteristics of speed, low cost and ease of use by citizens and environmental organisations, if applied across the Community, could lead to significant improvements in ensuring the proper implementation of Community environmental law. The Commission will therefore consider whether there is a need to establish minimum criteria for a procedural mechanism for handling environmental complaints and carrying out of investigations (a function which could also be similar to the functions of an ombudsman) in cases where problems arise in relation to the practical application and enforcement of Community environmental legislation by public authorities. These tasks could be carried out either within Member State's existing structure, or by the setting up of ad hoc bodies.

33.  Guidelines setting up such minimum criteria would need to be carefully considered: they could for instance cover the power to receive complaints (eg both from individuals and from environmental non-governmental organisations) regarding the procedures for administrative decisions affecting the environment, to request information from administrative bodies in response to such complaints, and to issue recommendations (which would be persuasive rather than of a legally binding nature). It would not be necessary for such a mechanism to rule on questions of substance, which are more appropriately considered either by administrative bodies or the courts, according to the administrative and legal systems within the Member States.

34.  Procedures similar to this concept already exist in a number of Member states, and can take very different forms. The two main models for such systems which can be found in the Member States are the institution of the independent "ombudsman" and systems for the review of decisions within administrative structures: Member States operating these systems should not in principle have to make changes. Only in Member States where such mechanisms are lacking would there be a need to establish equivalent models following the minimum criteria set up under guidelines in order to fill the gap.

35.  Such environmental complaints and investigation mechanisms might also be entrusted with the power of issuing recommendations aiming at solving problems or improving the functioning of the administration in relation to the application of Community environmental legislation. Again, such recommendations would not be binding but would have a strong moral authority and thus generally followed.

  The Commission will consider making recommendations for the establishment of minimum criteria for the handling of complaints and carrying out of environmental investigations in Member States where such mechanisms/procedures are lacking.

Access to Justice

36.  Judicial litigation is a last resort to solve problems. However, a Community based on the rule of law has to ensure that laws are respected and if necessary enforced. The role of the courts is crucial in that respect, especially for environmental matters where the source of a problem or damage is geographically confined but the effects may be widespread. Access to justice is, in general, sufficiently ensured if economic interests are at stake. Enforcement of legislation designed to create the framework for prosperous business, for instance in the industrial, commercial or agricultural sector, is likely to be encouraged by economic operators with sufficient resources to fight for enforcement. This is not necessarily the case for ecological interests. Economic operators do not perceive their role as being one of supervising other business compliance with environmental legislation.

37.  Enforcement of environmental law, in contrast to other areas of Community law such as the internal market and competition, therefore mainly rests with public authorities, and is dependent on their powers, resources and goodwill. Their ability to take into account the need to protect the environment may be limited by any of these factors. It is therefore important that supplementary avenues for improving enforcement of Community environmental law are available. In particular, actions by non-governmental organisations and/or citizens in relation to the application and enforcement of environmental laws (in administration, civil or criminal courts, as appropriate to the structures of the Member State concerned) would assist in the protection of the environment.

38.  As already mentioned, an important characteristic of environmental law is the frequent lack of a private interest as an enforcement driving force. The environment is often characterised as our "common heritage". This also implies that more often than not there is no private appropriation of many parts of it, such as air, seas, wild flora and fauna. Therefore, it is often the case that deterioration of the environment does not cause immediate reaction, and that even if a problem does arise, there is no means by which individuals can use the law to remedy the problem, or there are no appropriate legal remedies available. Even for Community environmental law, it can be the case that important general principles cannot be enforced by individuals (eg polluter pays, preventive and precautionary principles).

39.  The importance of wider public participation in shaping environmental policy as a whole is widely recognised[73] and all Member States have non-governmental organisations which enjoy some rights of participation in environmental matters. However, the ability of the public, as such, to take part in legal actions regarding application and enforcement of Community environmental laws differs widely throughout the Community. It varies from participation in certain authorisation procedures, through the right of recognised organisations to appeal for the annulment of administrative decisions, to the "actio popularis" for environmental purposes. It can however be stated that the public and public interest groups do not as a general rule have sufficient access to the national courts of the Member States in environmental matters.

40.  Better access to courts of non-governmental organisations and individuals would have a number of helpful effects in relation to the implementation of Community environmental law. First, it will make it more likely that, where necessary, individual cases concerning problems of implementation of Community law are resolved in accordance with the requirements of Community law. Second, as probably more important, it will have a general effect of improving practical application and enforcement of Community environmental law, since potentially liable actors will tend to comply with its requirements in order to avoid the greater likelihood of litigation.

41.  Finally, access to Member States' courts would have the desirable effect of channelling litigation on the enforcement of Community environmental law to the most appropriate level, ie regional and national. The use of courts within the Member States for the enforcement of Community environmental measures is desirable for various reasons. One is that there is no possibility that the resources in time and personnel which are available to the Commission and to the Court of Justice in Luxembourg will ever be sufficient for, not even a majority, of environmental cases arising in all Member States to be dealt with through direct actions brought by the Commission in the Court of Justice. In addition, the courts of the Member States are better placed than the Court of Justice to take into account during the proceedings the particular legal, administrative and environmental context of the environmental measure as it applies in each Member State, and to get a clearer picture of the facts through the evidence of witnesses and the appointment of experts. Moreover they are better placed to grant interim measures which are an extremely useful instrument for preventing damage to the environment.

42.  Restrictions on access to the courts arise in two main ways. Firstly, because legal procedures in the Member States create obstacles to the bringing of enforcement actions in relation to environmental law. For example, a special interest may have to be proven in order to bring a case. For reasons of legal history, such special interests are usually of a type which is easy for a property owner or economic operator to satisfy but less easy for environmental interest groups to satisfy. A further example is that appropriate court procedures may not exist to enable environmental interests to be protected: court procedures which are mainly designed to protect economic interests may not provide appropriate forms of action and remedies for environmental problems. Secondly, the cost of bringing enforcement actions in relation to environmental interests may be prohibitive.

43.  A number of options are available to the Commission for taking forward action on these matters, including "soft-law" approaches as a first step. Similar issues of access to justice are being considered in the context of the Community action in relation to access to justice for consumers[74]. The Commission has also included provisions on access to justice in various proposals for community directives[75]. In the context of securing more effective enforcement of Community environmental law[76] it is necessary to look wider than individuals directly affected and include representative organisations seeking to protect the environment. Therefore a possible way towards achieving improved application and enforcement of Community environmental law would be to ensure that environmental NGOs recognised by Member States are given the necessary locus standi to bring judicial review actions, which would be against public authorities in the Member States. If such a scheme proves desirable, a first step towards this direction could be a recommendation encouraging Member States to broaden access to justice for non-governmental organisations.

  The Commission will examine the need for guidelines on the access to national courts by representative organisations with a view to encouraging the application and enforcement of Community environmental legislation in the light of the subsidiarity principle, taking into account the different legal systems of the Member States.


44.  The proposals made in the remainder of this Communication aim at improving a number of areas in Community environmental law and policy where current practices fall short of the high standards required for effective environmental protection: the quality of legislation, transparency, co-operation at Community and Member State level, monitoring and evaluation of the effects of legislation, knowledge of Community environmental law among practitioners, and the integration of Community funding into the implementation of Community environmental legislation.

Quality of Community legislation

The legislative process

45.  Clear drafting of legislation is a prerequisite for a timely and conforming transposition in the sense that clear obligations may easily and correctly be transposed. Ambiguous, unclear and complicated provisions will cause delays, problems of conformity and problems of practical application which lead to incomplete or uneven implementation throughout the Community. Because the Commission has the exclusive right of initiative on Community environmental legislation it is in a position to take into account the potential difficulties which Member States might have in transposing the resulting Community measure. Drafting of the proposals in such a way, and with a transparent approach, makes the process of transposition an easier one for Member States. For instance, it can ensure that legislation which depends on the subsequent adoption of technical measures is drafted in such a way that delays in adopting those technical measures do not impose impossible implementation deadlines on the Member States, as occurred recently in relation to technical provisions relating to genetically modified organisms[77]. The new General Guidelines on Regulatory Policy, adopted by the Commission in January 1996, which supplement the Commission's Rules on Legislative Drafting ("Règles de technique législative"), should improve coherence in drafting within the Commission. Rigorous application of those rules and guidelines is crucial.

46.  It is equally important that when proposals are made the initial text is as clear as possible. Complicated or unclear drafting is likely to make negotiations of the proposal more difficult and to make it more likely that the final legislation will lack clarity and create difficulties for Member States' implementation. This is true both for the negotiations in Council and for amendments proposed by the European Parliament. Although responsibility for drafting and proposing a new Directive lies with the European Commission, subsequent developments occur throughout the legislative process in both Council of the European Union and the European Parliament. Unclear and ambiguous drafting of environmental legislation is very often the result of compromises needed at the Council level or following the readings of the European Parliament[78]. Even at these later stages the Commission should ensure the coherence, efficiency and practicality of proposal if necessary by amending its own proposals or by withdrawing proposals which will no longer achieve the desired aims.

47.  A final point of importance is that legislative texts themselves should contributor to the transparency of the implementation process. This can be done by including in Community legislative texts provisions ensuring that information on implementation will be published, either by the Member States or by the Commission. Some provisions of this nature are already included, for instance as to the publication of reports or as to the public availability of information on the application of the measure[79]. It may however be appropriate, in order to achieve maximum transparency in the implementation of Community environmental legislation for such texts to include provisions requiring the publication by the Member States of additional information on implementation, such as tables of transposition indicating the provision of national law implementing the corresponding provisions of the directives.

  The Commission will ensure that all proposals for new Community environmental measures or amendments of existing measures are drafted in accordance with the principles of achieving maximum clarity, transparency and certainty, in order to make the implementation process simpler and quicker. During the legislative process the Commission will seek to co-operate with the Council of the European Union and the European Parliament on issues of drafting and will propose its own drafting amendments where these become necessary as a result of points raised or alterations to its original text made during negotiations.

Sanctions at Member State level

48.  Article 5 of the EC Treaty, as interpreted by the Court of Justice, requires Member States to introduce effective, proportionate and dissuasive sanctions which ensure compliance with provisions of Community law. Although this permits Member States discretion to decide upon the sanctions for which they make provision, such sanctions must be equivalent to those used to dissuade breaches of equivalent national legislation[80]. As the Commission has outlined in its Communication to Council and Parliament on the role of penalties in implementing Community internal market legislation[81], the national systems of penalties for the non-fulfilment of obligations under Community law have to be transparent. Transparency is not only the key to mutual confidence but also allows the Commission to evaluate the systems and confine Community action in that respect to what is strictly necessary.

49.  The Commission therefore decided to insert in its legislative proposals, in respect of the internal market, explicit provisions stipulating that national implementing measures have to foresee sanctions to be imposed by Member States in case of non-compliance with the provisions of the Directive by individuals or legal persons, and that the legislation related to these sanctions have to be notified to the Commission. Such obligations should be extended to the environment. The objective should be that appropriate sanctions, be they administrative, civil or penal, or a combination of those, according to the choice of national authorities, are available in all Member States and they are applied in practice so that an even enforcement of Community environmental law is ensured. Publicity for the application of such sanctions in the Member States and at Community level would assist their deterrent effect.

50.  General requirements for the imposition of sanctions have already been inserted in Community environmental legislation as in the case of the regulations implementing the CITES Convention on trade in endangered species and the Basel Convention on trans-boundary movements of hazardous waste. More specific provisions, for example the imposition of administrative penalties such as the withdrawal of permits, could also be included in Community environmental measures where appropriate.

  The Commission may include in its proposals for environmental measures a provision requiring national implementing measures to include appropriately deterrent sanctions for non-compliance with the requirements of the relevant directive.


Consultations by the Commission

51.  The Commission is aware of the need, when formulating environmental legislation, for an open and consultative process in the pre-proposal and drafting stages. Different ways of achieving this are by the use of green papers, for example the Green paper on remedying environmental damage[82]; the consultation of formal and informal networks, for example the Consultative Forum on the Environment[83], the Environment Policy Review Group[84], IMPEL[85], meetings with Member State experts and NGOs to discuss policy developments; the publication of the work programme and the holding of public hearings, either on its own, for example, on the Commission's future water policy on 28 and 29 May 1996 or jointly with the Parliament, as with "Challenges to environmental protection: Making the legislation work" on 30 May 1996. The Commission needs to ensure that such consultations will be carried out on a more systematic basis with all the persons and organisations with an interest in a particular proposal. It will be important for the Commission to involve in its consultations the European Environment Agency, which is able to provide invaluable information and technical advice on the state of the environment in Europe and the effects of the Community measures taken to protect the environment.

  The Commission will consult as widely as possible on the formulation of new proposals for Community environmental measures. Consultation will include the full range of actors who will be concerned with a particular measure.

72   Judgment of 21 September 1989, case 68/88 (1989) ECR 2965, points 23 and 24. Back

73   Principle 10 of The Rio Declaration on Environment and Development proclaimed inter alia that: "Environmental issues are best handled with the participation of all concerned citizens, at the relevant level ... Effective access to judicial and administration proceedings, including redress and remedy, shall be provided". Back

74   COM(95) 712 final O J No C 107, 13 april 1996, p 3. Back

75   See for instance Article 4 of Directive 90/313/EEC on the freedom of access to information on the environment (O J L 158/56, 23 June 1990). Back

76   Community law already ensures that those directly and individually affected by a decision of a Community institution can take action in the European Court of Justice, but in the environment there are often difficulties in identifying such persons. Back

77   Commission Guidance on classification adopted under Directive 94/51/EC on the contained use of genetically modified organisms. Back

78   These problems are compounded by the need for Community legislation to be available, and equally valid, in all eleven Community languages: compromises brokered in one language can be difficult to translate satisfactorily into all the other languages. Back

79   For example the report on implementation of Directive 85/337/EEC, Article 11(3). Back

80   Judgment of 21 September 1989, Case 68/88, (1989] ECR 2965, points 23 and 24. Back

81   COM(95) 162 of 3 May 1995. Back

82   COM(93) 47 final: 14 May 1993. Back

83   See Chapter 9 of the 5th Action Programme (footnote 19 above). Back

84   See Chapter 9 of the 5th Action Programme (footnote 19 above). Back

85   See paragraph 55 below. Back

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