Select Committee on European Communities Second Report


Joint Public Hearing (European Parliament and Commission) 30 May 1996
Effective Environment Protection: Challenges for the Implementation of EC Law

Background paper for invited experts and participants
Nigel Haigh, Director, Institute for European Environmental Policy, London


  EC environmental legislation began in the 1970s but its implementation only became a matter for political attention during the 1980s. Even now the Community Institutions devote a much higher priority to the adoption of new legislation than they do to its implementation. Yet unless EC legislation is properly implemented it will fall into disrespect and the environment will not receive the protection that the EC legislators intended and that the public expects.

  The first three Action Programmes on the environment of 1973, 1977 and 1983 did not recognise the importance of implementation, and it took a well publicised scare to draw attention to the subject. When some drums of hazardous waste, thought to contain dioxin from Seveso in Italy, disappeared and were subsequently discovered in France, the European Parliament promptly established a Committee of Inquiry (the Pruvot Committee). This reported on `the odyssey of the drums' as a result of which the Parliament adopted a Resolution (OJ C127/67 14.5.84) which censured the Commission "for having failed to perform fully and properly its role of guardian of the Treaties" and "for its failure to take the necessary measures vis-a-vis the Member States with regard to the implementation and application of the Directive" (Directive 78/319 on toxic waste). As a result, implementation began to be recognized as an important subject. The Commission responded by increasing the number of staff in DGXI dealing with implementation and became more vigorous in bringing cases before the Court of Justice. Also in the same year the Commission published the first of its annual reports to the Parliament on the application of Community law - COM (84)181 - giving some statistics on infringement proceedings and drawing some conclusions.

  Shortly afterwards the Council, in adopting the fourth Action Programme on the Environment in 1987, underlined "the particular importance it attaches to the implementation of Community legislation" (OJ C328/2 7.12.87), and the Parliament identified several factors leading to inadequate implementation in a Resolution on implementation of water legislation (OJ C94/155 11.4.88).

  The political debate about how implementation was to be taken more seriously had thus already begun when, at the highest EC level, an even stronger commitment was made by the European Council (the Heads of State of Government) when it adopted the `Declaration on the Environmental Imperative' at Dublin in June 1990. This stated:

    "Community environmental legislation will only be effective if it is fully implemented and enforced by Member States. We therefore renew our commitment in this respect. To ensure transparency, comparability of effort and full information for the public, we invite the Commission to conduct regular reviews and publish detailed reports on its findings. There should also be periodic evaluations of existing Directives to ensure that they are adapted to scientific and technical progress and to resolve persistent difficulties in implementation; such reviews should not, of course, lead to a reduced standard of environmental protection in any case." (Bull. EC 1990 Vol 23 No 6 p.18)

  It is against this background of concern and commitment that the Commission is now preparing a communication on implementation, and that this Hearing is being held. As the Dublin Declaration emphasised, the subject of implementation requires transparency. It is also now recognized as having many different aspects with different actions being required by different actors including the Community Institutions, the Member States and the authorities within them, and all those affected by the legislation including the general public.

  This background paper is an attempt to provide a brief overview of the many different aspects of the implementation of Community environmental law to provide a frame for the more detailed discussions at the Hearing.

2.  Aspects of Implementation

  To regard implementation of EC law as a process which starts only after legislation is adopted is to omit an essential aspect. Ambiguous or poorly drafted legislation often leads to subsequent problems and therefore the process of adopting the legislation has to be regarded as the first aspect of implementation. Once adopted, Directives then have to be transposed into national law and administrative provisions. While EC Regulations are directly applicable law and no do not themselves need to be transposed, they often require national legislation to supplement them, eg. appointment of competent authorities and penalties for non-compliance. Transposition into national law can therefore be regarded as the second aspect of implementation.

  But the main purpose of a Directive is not to develop national legislation, but is to achieve certain results. The steps taken in the Member States to achieve those results using national law and administrative provisions can be regarded as a third aspect that can be called practical implementation. Practical implementation may involve many steps including strengthening competent authorities, drawing up plans, following procedures, meeting standards, designating areas, providing information, and granting authorizations. It may involve investments - often very large - by the public and private sectors perhaps resulting in new products and processes. It will involve monitoring and reporting. The practical implementation of some Directives, e.g. relating to a product, may affect rather few manufacturers and may be relatively simple and therefore easy to evaluate. Other Directives may involve hundreds of actions per year in a Member State any one of which may not fully comply with the Directive so that assessment and comparisons between countries is difficult. It is important therefore not to draw general conclusions from a limited experience of only a few examples of implementation. Some Directives have indeed been successfully implemented often with little delay, while others are problematic and have involved long delays.

  A fourth aspect of implementation is enforcement under the processes of national and Community law.

  These different aspects sometimes overlap and some can be sub-divided into yet further aspects. For example the appointment of a competent authority in an item of national legislation is part of transposition, but if a new authority has to be created or an existing one expanded with new staff and extra money, then that can be regarded as practical implementation. Monitoring is an aspect of enforcement, but if the details are prescribed in a Directive then it is also practical implementation. If a Directive requires a report evaluating a Directive after several years, then that is practical implementation, but if an evaluation is carried out in the absence of a requirement to do so then that can be regarded as a fifth aspect of implementation.

  All these aspects: drafting, transposition, practical implementation, enforcement and evaluation are described below.

2.1  Drafting and Adopting EC Legislation

  While the responsibility for proposing a Directive rests with the Commission, the finally adopted text is the result of a process of negotiations in the Council machinery which increasingly also now involves the Parliament. The process often requires compromises as each Member States seeks to ensure that its own objectives are achieved, and the results show that problems of implementation have not always been adequately considered. Some examples can be given.

  A number of Directives set numerical standards to be met by a certain date, a case in point being the Drinking Water Directive 80/778. The Directive however is silent about what should be done if the standard is not met by the deadline: should water supply be discontinued even if the risk to human health in doing so is greater than continuing to supply safe water which may not meet the standards? The Commission has now learnt from experience, and under the proposed new drinking water Directive Member States will be able to grant time limited derogations in certain circumstances subject to certain conditions. Another lesson can be drawn from the experience of the Environmental Impact Assessment (EIA) Directive 85/337 which contained no transitional provisions dealing with developments authorised after the date set in the Directive but where the authorization process had started before. The Commission interpreted the Directive one way and some Member States another way. A great deal of emotional energy was expended in many Member States before the Commission changed its interpretation following an opinion of the Advocate General in a case before the Court of Justice relating to a power station in Germany (Case C431/92). Because of this ambiguity expectations were falsely raised among some sections of the public and the Community's reputation has suffered as a result. A conclusion that can be drawn is that the Commission and Council must consider the need for transitional provisions before adopting a Directive.

  A third lesson concerns reporting requirements which are important tools for evaluating what effect the Directive has had and how effectively it is being implemented. Some Directives include reporting requirements while others do not (See Section 2.6 below). The Drinking Water Directive for example places no obligations on Member States to report on quality so it is not possible to compare the quality of drinking water across the Community or to know how well the Directive is being implemented. This lesson has been learnt in the proposed new Drinking Water Directive. In other Directives the reporting requirements are often inconsistent so that in 1991 Directive 91/692 was adopted to standardize and rationalize these requirements. However the lesson is sometimes forgotten because the proposed new Directive on PCBs (on which the Council adopted a common position in November 1995 - OJ C87/1 25.3.96) contains no reporting requirements.

  One final point on drafting concerns the practice of agreeing ambiguous wording, perhaps as a way of securing agreement, and then recording explanatory statements in the unpublished Council minutes. An example concerns Directive 76/464 on the discharge of dangerous substances to water. The wording in the Directive that emissions limits are to be based on `best technical means available' is qualified in the Council minutes by the statement that `best technical means available is to take into account the economic availability of these means'. Not surprisingly this practice of secretly modifying the language of legislation was criticised by the Parliament in 1984 (OJ C172 2.7.84) but it was not till October 1995 that the Council adopted a `Code of Conduct on Public Access to the Minutes and Statements in the Minutes of the Council acting as a legislator' which should reduce the practice. It is too soon to assess whether the Code has been effective in curbing a practice which makes the assessment of implementation much more difficult, as well as offending against the principle that legislation should be publicly available.

  One can conclude that while the needs of implementation are being considered more seriously as new Directives are adopted, there is still much room for improvement. In particular

    (i)  the Community legislator (Commission/Council/Parliament) could ensure that before any Directive is finally adopted the needs of implementation are formally considered including reporting requirements, transitional provisions, and absence of ambiguity. A checklist might be helpful.

    (ii)  Each Member State should also be prepared to give an assurance, at the time of adoption of a Directive, that it has begun to consider what is needed for implementation both by way of legislation, finance and capacity of its competent authorities. All too often this process does not start till the deadline for implementation is approaching. This would be to fulfil the call made by the Council in the Resolution adopting the Fifth Action Programme (OJC 138/3 17.5.93) which stressed `that due regard should be given both at the stage when legislation is proposed and when it is adopted to the quality of the drafting of legislation, in particular in terms of the practicability of implementing and enforcing it'.

2.2  Transposition into National Law

  The requirement in Directives that Member States should communicate to the Commission the texts of the provisions of national law which they adopt to implement a Directive is more complicated than it sounds. Only rarely will one text be sufficient for implementing one Directive in a Member State.

  Frequently different texts are required for different Articles of a Directive, particularly where they are the responsibility of different Ministries. In federal or regionalised Member States, where for constitutional reasons or reasons of national administrative structure, competence for introducing the legislation rests with the regions, or is shared between the regions and the national government, different texts may be required for different parts of the national territory. In some Member States e.g. Belgium, the national government has no authority over a region to ensure that legislation is adopted, even though Directives place obligations on Member States who are answerable to the Commission and the Court of Justice. There is also the problem that some Directives apply to some territories of Member States outside Europe (e.g. French overseas departments) or dependent territories (eg Netherlands Antilles, Gibraltar, etc.) while others do not. National laws (Acts of Parliament, Regulations) may also have to be supplemented by administrative documents (circulars, technical advice). It follows "that the Commission will be sent many texts.

  Member States frequently fail to communicate texts on time and this may be because of an oversight, because no texts are yet ready, or because some but not all texts are ready. There is also the problem that national laws are constantly evolving so that the texts sent to the Commission become out of date and have to be supplemented over time. The Commission's task in checking completeness and correctness of transposition, which should in theory be straightforward, is therefore difficult. It is not helped by the fact that communications between the Member States and the Commission is not always transparent since not all Member States make public the texts of their letters of transposition (sometimes called `compliance notices' and sometimes set out in the form of `tables of implementation' (`tableaux de concordance'). Thus the reasons for delay are often not easy to ascertain and are often not publicly explained. Since these documents provide a link between Community legislation (which is public) and national legislation (which is public) there should be no objection to publication of letters of transposition. Publication of such letters would enable the interested public (industrialists, academics, NGOs and other national governments) to check the adequacy of transposition and thus help the Commission by pointing to any deficiencies. Transparency would also create the pressure for improvement. Although the listing of implementation in the CELEX database is useful, CELEX does not indicate which Articles of a Directive are implemented by which items of national legislation.

  One welcome development in recent years has been the requirement in EC legislation that national implementing legislation should contain a reference to the Directive that it is implementing, thus showing the link between national and EC legislation. Without this visible link the competent authorities applying national legislation sometimes did not to know that it is derived from EC legislation.

2.3 Practical Implementation

  A Directive is binding as to the ends to be achieved while leaving to national authorities the choice of form and method. The ends to be achieved may be that certain standards are to be met by a certain date or that certain procedures are to be followed for a given purpose. There are many different procedures laid down in environmental Directives including:

    -    drawing up plans

    -    designating sensitive areas

    -    granting authorizations

    -    providing information

    -    making assessments

    -    conducting consultations

    -    restricting marketing and use

    -    monitoring

    -    preparing reports

  The steps taken to meet the standards and to fulfil the procedures all constitute practical implementation. Practical implementation is sometimes called `application' which has been defined by the Commission as `the incorporation of Community law by the competent authorities into individual decisions, for instance when issuing a permit or executing a plan or programme.' However a Directive may also result in many decisions being taken by e.g. an industrialist about which the competent authority may never be informed even though the industrialist's decision is taken as a result of implementing national legislation that transposes the requirements of a Directive. For example Directive 92/32 (known as the `seventh amendment') on the notification of new chemicals, requires a manufacturer to supply the competent authority with the results of studies for evaluating risk from the chemical before placing a new product on the market. The manufacturer may therefore discontinue development of a new chemical if his initial assessment suggests that it will be too dangerous to be worth manufacturing. The Directive will therefore have been effective in preventing use of a dangerous chemical, but no one other than the manufacturer need know. Even if this is unknown it must nevertheless be regarded as successful practical implementation of the precautionary principle embodied in the Directive.

  Sometimes an existing competent authority will simply take on new tasks required by a Directive, but if a new authority has to be appointed, which may involve hiring and training new staff, then that too must be regarded as practical implementation.

  There are now a very large number of items of EC legislation and 485 are listed and discussed in the IEEP Manual of Environmental Policy: The EC and Britain as shown on the table below:

  Not all these items are the responsibility of DG XI and many are minor amendments or are of a very detailed character (e.g. setting criteria for eco-labels). They can be divided into a number of categories according to practical steps that they require:

    -    product standards (e.g. lead in petrol, vehicle emissions, lawnmower noise)

    -    restrictions on production or marketing or use of substances (e.g. CFCs, asbestos, PCBs)

    -    emissions from stationary plant (e.g. certain plants require authorizations, and for some standards are set - e.g. sulphur dioxide, mercury)

    -    environmental quality standards (e.g. bathing water, air quality)

    -    designating areas (e.g. special protection areas for birds, nitrate sensitive areas, waters for shellfish)

    -    notifications to competent authorities (e.g. new chemicals, dangerous installations)

    -    plans and programmes (e.g. pollution reduction programmes, emergency plans)

    -    assessments (e.g. environmental impact assessments of development projects, assessments of risks of chemicals)

  Many Directives will fall under more than one category.

  It follows that practical implementation is a very wide subject involving many different kinds of decisions and actions, some involving considerable investments over a long timescale. It is therefore extremely difficult (indeed impossible) to make any overall assessment of the adequacy of the practical implementation of all environmental Directives. They have to be considered one by one, and indeed sometimes Article by Article. For some Directives practical implementation is fairly straightforward and easy to assess. This is particularly true of products.

  For example petrol is manufactured and distributed by a limited number of enterprises in the EC. Because the petrol is a traded product transposition of Directives setting standards for lead in petrol is usually achieved by means of national legislation rather than involving regions or local authorities. The national legislation can be drafted quickly and can be simple. Once the standard is set in national legislation it is easy for a competent authority to analyse petrol to ensure the standards are met, and for competitors to analyse each others products. Any failure by a petrol distributor to meet the standards will therefore be quickly known. Transposition and practical implementation may have involved costs for refiners but the steps are straightforward. In this case it can also be demonstrated fairly easily that the quantity of lead emitted into the environment in Member States has dropped significantly following the implementation of the Directive and that the lead content of air has reduced. This Directive has therefore been successfully implemented, and as a general comment it can be said that Directives relating to the single market, such as product standards, are likely to be well implemented because competitors act as watchdogs to ensure that there is no distortion to competition.

  Directives setting emission standards are more difficult to assess than product standards because they will involve many installations each one of which will have to be individually authorised and each one of which will need to be monitored over time to ensure that the emissions standards set in a Directive are being met. Some Directives set standards for a class of installations which are limited in number (e.g. chloralkali plants) and it is therefore not too difficult to collect and compare the national authorizations (though each may be many pages long) and monitoring data, even though several competent authorities may be involved within one Member State. However other Directives cover classes which include many installations (e.g. power stations, incinerators) so that the task of assessing practical implementation across the Community is much more difficult. Failure to meet the standards at any one plant on one occasion will constitute a formal failure of implementation by a Member State and could lead to an adverse judgement of the Court of Justice. A statement that a Member State is in breach of a Directive may give no indication whether the breach is widespread or is a rare event.

  Directives which involve plans, or designating areas, or assessment are more complicated still. Designations will often be made by competent authorities at regional or local level with knowledge of local circumstances and there may be inconsistency in the criteria applied and disputes e.g. over the boundaries of areas. Monitoring to ensure that environmental quality standards are met may need to be extensive and will need adequate numbers of trained staff.

  Some Directives will involve more than one kind of competent authority which may have to collaborate together to ensure practical implementation. For example the `Seveso' Directive 82/501 on major accident hazards requires a manufacturer operating a hazardous installation to prepare a safety report and an `on-site' emergency plan. The competent authority for supervising these is usually a technical inspectorate concerned with safety in factories (`labour inspectorate'). However the Directive also requires the preparation of an `off-site' emergency plan outside the installation and this is usually prepared by a local authority which is better placed to communicate with the public likely to be affected. But in order for the `off-site' plan to be prepared, the local authority will need to have information from the manufacturer or competent authority responsible for the safety report and `on-site' plan. Effective practical implementation therefore depends on good relationships between the competent authorities.

  Some Directives have practical effects that touch activities that are not just technical but are embedded in the culture of a country. An example is the setting of the periods of the hunting season under the birds Directive which have caused much controversy.

  The Directive that has probably caused the greatest problems in practical implementation is the Directive 85/337 on environmental impact assessment (EIA) of certain development projects. A large number of different kinds of development project are included within the scope of the Directive so that different Government ministries and competent authorities are involved. Projects covered include industrial plant, transport projects (roads, railways, airports, etc), installations for hazardous waste, and certain urban developments. For some projects an assessment is always required while for others Member States have discretion to decide whether or not a project is likely to have a significant effect on the environment. Hundreds of assessments may be made under the Directive in a Member State each year, any one of which may not completely fulfil the requirements set in the Directive particularly since assessments are often subjective. Since large development projects or even small ones in sensitive areas frequently cause controversy, the EIA Directive is subject to many complaints about failures of implementation.

  While the variety of provisions within Directives is one cause of the difficulty in trying to assess their implementation, another is the variety of administrative structures within the Member States for implementing them. In some Member States there will be a single competent authority for some Directives, so that there is likely to be national consistency in implementation. In other Member States the constitution or administrative structure will require implementation to be carried out at the level of the regions and there may therefore be greater variation. In some Member States there may be specialised competent authorities, whereas in others the task may fall to local authorities who have many other tasks and priorities. In some Member States the competent authorities may be understaffed and inadequately trained.

  Some Directives may require practices that have long been carried out in one Member State, while practices may be new in another. In theory therefore the Directive should be easy to implement in the first Member State, while the second may have to introduce completely new structures to ensure implementation. There is a paradox however in EC environmental policy that a Member State which already has a procedure before a Directive is adopted may have more difficulty in implementing it correctly than another Member State which starts freshly on the subject. This is because a competent authority that has already developed its traditions may not be convinced of the need to make what it may regard as unnecessary changes to existing practices in order to implement fully a Directive. Examples include implementation in the Netherlands of the EIA Directive and in Germany of the Seveso Directive.

  The above discussion suggests that the only effective way to consider practical implementation is to examine it Directive by Directive and Member State by Member State. Comparative reports can only be prepared with a full knowledge not just of the technical subject matter of a Directive but also of the administrative structure and indeed the culture of the country implementing it. There is no short cut to a study of practical implementation of all Directives in the Community as a whole. It follows that the very brief discussion in the annual reports on monitoring the application of Community law presented by the Commission are of limited value as a basis for a serious discussion which would help to improve practical implementation. The Dublin Declaration on the Environmental Imperative (see Section 1 above) of the European Council went further and called on the Commission to conduct regular reviews and to publish detailed reports on its findings (emphasis added). These need to relate not just to measurements but also to assessments of the adequacy of national administrative structures (numbers of staff, training, etc).

  Some basis for regular reviews and detailed reports is provided in some Directives in the form of monitoring obligations and obligations to evaluate and report. These are discussed below.

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