Select Committee on European Communities Second Report

APPENDIX 4 (Continued)


  The "Regulatory chain" is the whole process through which legislation is designed, conceived, drafted, adopted, implemented and enforced until its efficiency is assessed. It is a methodological tool allowing for a "holistic" approach to address instruments of environmental policy.

  "Transposition" in this Communication means any legislative, regulatory or administrative binding measure taken by any competent authority of a Member State in order to incorporate into the national legal order the obligations, rights and duties enshrined in Community environmental directives. Transposition thus includes not merely the reproduction of the words of a directive in national law, but also any additional provisions, such as the amendment or repeal of conflicting national provisions, which are necessary in order to ensure that national law as a whole properly reflects the provisions of a directive. In some Member States, transposition measures have to be adopted at national/central level only, while in some others, regional authorities have exclusive competence in certain fields of environment policy (eg nature conservation falls within the competence of the German and Austrian Länder). It may also happen that both levels have to take transposing measures in case of shared competencies.

  "Practical Application" is defined as the incorporation of Community law by the competent authorities into individual decisions, for instance when issuing a permit or devising executing a plan or programme. Community legislation is directly applied by national authorities in case of regulations and directly applicable provisions of directives. However, once a directive is correctly transposed, it is applied through the national transposing measures. It also includes providing the infrastructure and provisions needed in order to enable competent authorities to perform their obligations under Community law and to take the appropriate decisions.

  "Enforcement" is defined broadly as all approaches of the competent authorities to encourage or compel others to comply with existing legislation (eg monitoring, on-the-spot controls, sanctions and compulsory corrective measures) in order to improve the performance of environmental policy with the final goal of improving the overall quality of the environment.


  Problems of implementation and enforcement arise in all sectors in relation to which the Community has adopted environmental laws. This Annex gives more details of the types of implementation and enforcement problems which arise in just four sectors: water, waste, nature protection and environmental impact assessment.


  In relation to the improvement of water quality, the size and the complexity of the obligations imposed by the traditional approach of the Community legislation in this area, which relies principally on fixing quality objectives, establishing clean up programmes and systems of prior authorisation and the compilation of reports, still creates considerable problems for the administrations of the Member States. Some of the Member States have major difficulties in satisfactorily applying the Community directives in this area.

  The case of Directive 76/464/EEC on dangerous substances discharged to surfaced water is a good example. The Commission is taking infraction proceedings against many Member States for non-notification of pollution reduction programmes for substances in List II of the Annex to the Directive. The application of Directive 76/160/EEC on bathing waters continues to raise problems in several Member States.

  In relation to Directive 91/676/EEC on agricultural nitrates, several Member States have still not notified their national transposing measures. Most Member States have problems in relation to the application of the Directive (lack of designation of vulnerable zones, absence of codes of good agricultural practice, failure to put in place surveillance programmes, non-communication to the Commission of reports required by Article 10 of the Directive). The Commission is following closely the problems of the application of this Directive in the Member States, and is opening infraction proceedings in appropriate cases.

  The Commission also receives complaints on the quality of drinking water (Directive 80/778/EEC): often the lack of adequate technical infrastructure is behind the complaints about this directive. The task of the Commission in ensuring compliance with Community standards is sometimes rendered more difficult by the methods used in some Member States to enforce water quality standards.


  Community legislation on waste management applies to a great number of waste recovery and disposal operations carried out by economic operators; each and every one of these operations should normally be processed in accordance with Community waste legislation and transposing national legislation; waste disposal facilities being subject to a permit system while waste recovery facilities should be at least registered. Even shipping waste between Member States is covered by a Community Regulation.

  The whole system therefore relies to a very great extent on the performance by national, regional and/or local competent authorities of the different actions necessary with a view to processing the numerous permit applications, granting the permit under the conditions prescribed by the laws and regulations, monitoring the compliance by the economic operators with the permit and the conditions set out therein and, in case of non compliance, taking corrective measures and sanction the non compliance. Moreover, the competent authorities are also responsible for enforcing waste legislation with respect to activities which are illegal per se in the absence of any permit granted (eg illegal dumping of waste).

  Most of the more difficult problems of implementation in the waste sector relate to failures of application within the Member States: illegal dumping, bad disposal practices, and the pollution of water through the direct discharge of waste into water. To be effective, this whole system requires a decentralized network of competent authorities be in place and to actively fulfil their roles; decentralization constitutes a more cost effective response to the environmental challenge posed by waste since a very good knowledge of the actual situation on the spot is absolutely necessary in order to correctly and efficiently apply the law as the factual circumstances require it.


  The most important Community instruments in the field of nature are Directive 79/409/EEC on the conservation of wild birds and Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna. These directives give rise to considerable problems of implementation, and together they annually generate a significant number of complaints.

  The Commission is well placed to play an important role in ensuring the adoption and conformity of national legislation as well as the achievement of major Community goals such as the establishment of Natura 2000 (a Community network of protected sites). However, the majority of complaints made in relation to these two directives concern threats to individual sites, where the Commission faces considerable difficulties. Site-specific complaints often call for a consideration of complex and localised factors, and will also often also relate to quickly evolving circumstances (for example, they may concern damaging projects which are already being carried out). The centralised enforcement mechanism currently available to the Commission is unsuited to dealing with such complaints, particularly in terms of speed of response, use of experts with local knowledge, and site visits.

Environmental Impact Assessment

  Directive 85/337/EEC on environmental impact assessment constitutes one of the most frequent legal basis for complaints, petitions, parliamentary questions and infringement procedures.

  Infringement procedures by the Commission mostly result from incorrect transposal into the national legal orders: conformity problems still subsist in several Member States, most notably concerning the transposition into national law of the categories of projects listed in Annex II of the Directive.

  Complaints and petitions tend mostly to be about the quality of the impact assessment studies, the examination of alternatives, and the failure of competent authorities to act on opinions validly expressed at public inquiries. It is very difficult for the Commission to investigate and intervene in such cases, the Directive being primarily of a procedural nature and not giving to the Commission enforcement powers to investigate the quality of the assessments or to monitor the results of the assessment process.

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