Select Committee on European Communities Second Report

APPENDIX 5 (Continued)

2.4  Financing

  The costs of implementation - which are sometimes very large - are in principle a matter for the Member States and, following the polluter pays principle, a matter for the polluter.

  However there are some sources of EC funds that contribute towards the implementation of EC environmental legislation. These include LIFE, the Structural Funds and the Cohesion Fund (for Spain, Portugal, Greece and Ireland).

  The LIFE Regulation 1973/92 has provided modest funds for the improvement of administrative structures and environmental services (including the improvement of monitoring networks) and the promotion of environmental education, training and information (including exchange of experience on eco-management and auditing). For the period 1996-99 the Commission proposes to focus LIFE on four main areas one of which is `implementation of EU environmental policy'.

  The Commission's twelfth annual report `on monitoring the application of Community Law - 1994' (OJ C254/44 29.9.95) has a section on Structural Funds in the chapter on the Environment. This notes that the integration of environmental concerns has been reinforced by new provisions in the Structural Funds Regulation 2081/93 which provides for the inclusion of an environmental appraisal in national and regional funding plans as well as retaining the previous provision concerning compliance with Community environmental law and policy of funded projects. The funds have been used for such matters as water treatment and waste management and thus for the implementation of EC environmental legislation.

  Under the Cohesion Fund, large sums of money are available in Spain, Portugal, Greece and Ireland for environmental protection and transport projects. Projects funded have included sewage works to implement the Urban Waste Water Treatment Directive 91/271, and the provision of waste disposal facilities to implement the Waste Directive 75/442. The rules for the Cohesion Fund do not have the same environmental safeguards as do the Structural Funds so it is possible for sewage work built with the purpose of implementing one Directive to be located in an environmentally damaging way. Already the Court of Auditors has criticised EU spending in Spain and Greece because of environmental impacts. It is a further curiosity of the rules of the Cohesion Fund that each funded project shall cost at least 10 million ECU so that sewage works that are oversized are being built with funding which is not to the long term benefit of either the Member States (because of maintenance costs) or of the environment. In its twelfth report on implementation (mentioned above) the Commission has commented that a regrettable deficiency of the spending of the Cohesion Fund is the failure in Member States to undertake forms of environmental planning required by EC legislation e.g. the preparation of waste plans.

  However the Cohesion Fund Regulation does not require this as a condition of funding. Given that enlargement of the Community may require further Community funding to enable the countries of Central and Eastern Europe to implement EC environmental law it is important that the lessons of the Cohesion Fund are learnt so that any new funding instruments have adequate environmental safeguards.

2.5  Monitoring

  The word monitoring is used in many different ways from a narrow technical sense e.g. using instruments to measure the presence of pollutants in emissions from industrial plants, to a broad sense which includes assessment or evaluations. In this section the word "monitoring" is used in the narrow sense of gathering data, without value judgements being made. Several Directives have monitoring obligations in this narrow sense to confirm that standards are met (sometimes called `compliance monitoring') and these sometimes also lay down monitoring methods. These relate in particular to air and to water. The Habitats Directive 92/93 requires Member States to undertake "surveillance" of the conservation status of the habitats and species found on their territory.

  Monitoring is an essential tool for implementation and Member States will have their own monitoring methods and frequencies which must at least conform with the requirements set out in Directives. Sometimes Directives require the results of monitoring to be published (see Section 2.6 below) but even if there is no express requirement for publication it is possible for individuals to request access to this information under Directive 90/313 on freedom of access to information.

  It is one of the tasks of the European Environment Agency "to help ensure that environmental data at European level are comparable and, if necessary, to encourage by appropriate means improved harmonisation of methods of measurement".

2.6  Reporting/evaluation

  Many Directives require Member States to submit reports. Some of these will just be factual, e.g. the quality of bathing waters, but some are in the nature of an evaluation of the implementation of a Directive after a number of years. Some Directives require the Commission to consider national reports and produce a Community wide report. Some reports have to be published but some do not, and the record of publication so far is not good.

  In November 1993 this Institute (IEEP) reviewed the state of reporting and found that of 64 items of environmental legislation requiring the Commission to produce reports on implementation, in the case of some 24 the Commission had produced no report at all, and for a further 16, reports had either been delayed (sometimes by years), or had been published at very infrequent intervals. The reasons for this included failures by the Member States to provide information - or information of the right sort - to the Commission, and cumbersome procedures and a lack of resources within the Commission itself. A further reason was the lack of pressure from the Council that has given a higher priority to the adoption of new legislation.

  The production of a Community wide report involves many people and there is in effect a chain, e.g. regulated bodies report to competent authorities, competent authorities report to Member States, Member States report to the Commission, and the Commission reports to the Parliament and Council. There may be delays or deficiencies anywhere along this reporting chain which can therefore affect the final report. Some problems with the original reporting requirements have been recognised for some time and in an attempt to standardise and rationalise implementation reports, Directive 91/692 requires the Commission to publish reports on groups of Directives (air, water, waste). The first one (on water) is not due till June 1997 so it is not yet possible to assess how useful they will be, though it is disturbing that the Commission is late in issuing the questionnaires on the basis of which the national reports are to be produced.

  One question that will need to be resolved is the role of the European Environment Agency in contributing to such reports or undertaking them itself. The Agency has the task of providing the Community and the Member States with "objective, reliable and comparable information at European level" as the basis for environmental measures, and of assessing the results of such measures, and of ensuring that the public is properly informed about the state of the environment. Such tasks could certainly include undertaking the reporting requirements, but since Directives place responsibilities on the Commission, the Directives might have to be amended unless the Agency were to undertake the work on behalf of the Commission. The implementation network-IMPEL-(see Section 2.7) could also have a role in contributing to such reports or at least debating them.

  In addition to formal reports, independent organisations (NGOs, research institutes, universities, industrial associations) are free to make their own evaluations and comparisons and so contribute to public discussion and awareness of the effects of EC legislation. This can only be done effectively if the basic information is public. The Manual of Environmental Policy: the EC and Britain produced by this Institute and updated every six months explains how all EC environmental legislation has been implemented in one Member State and the effects that EC legislation have had in practice. Similar books have been produced for some other countries by our sister institutes. Comparative reports for a single or group of Directives have also been produced.

2.7  Administrative and judicial enforcement

  The enforcement of Community obligations is primarily a matter for the Member States and their relevant competent authorities. In the words of the UK House of Lords

  "the rigour with which Member States enforce Community law thus in general reflects national enforcement policies, the vigilance and competence of national regulatory agencies and the legal remedies and sanctions available under national law. It is also dependent on the degree to which accurate information about environmental media is collected and handled. Given these variables, it is inevitable that enforcement and its effectiveness will differ across the Community not merely between but within Member States". (House of Lords 9th Report Session 1991-92 "The Implementation and Enforcement of Environmental Legislation").

  Article 130s(4) of the Treaty confirms that the prime responsibility for implementation rests with the Member States. However the Commission also has a duty under Article 155 to act as "guardian of the Treaty" and to ensure that measures adopted under the Treaty are applied. This extends not just to transposition but to practical implementation.

  One response to the frequently made allegation that the effectiveness of enforcement differs across the Community, has been the creation in 1992 of the implementation network known as IMPEL. This is open to representatives of environmental enforcement bodies concerned with industrial installations within the Member States and therefore does not cover all EC environmental legislation e.g. the birds and habitats Directives, the bathing water Directive, and non-industrial developments under the EIA Directive. The Commission provides one of the joint Chairmen of IMPEL which is therefore coming to have a semi-official status. An indication of the tasks of IMPEL is given by the four working groups it has established:

    1.  Technical aspects of permitting

    2.  Procedural/legal aspects of permitting

    3.  Compliance monitoring and inspection

    4.  Managing the enforcement process

    In addition there is an ad hoc group on transfrontier shipment of waste.

  One of the roles of IMPEL is to provide a forum for professional regulators to exchange information about the details of enforcement methods used in the Member States. They should thereby educate each other and so help disseminate good practice throughout the Community. IMPEL is still young and the results of its work is not yet well known.

  There is no Community environmental inspectorate although the idea has been discussed for many years possibly in the form of an `inspectorate of inspectorates' (see Parliament's Resolution on implementation of water legislation OJ C94/157 paras 27 and 28, 11.4.88). It will be discussed again when the Regulation establishing the European Environment Agency is reviewed. Any new discussion will have to consider not just the powers of such an inspectorate, but also the field it is to cover. Is it, for example, appropriate for a single Community inspectorate to cover both industrial pollution matters and nature conservation?

  Prosecution initiated by the competent authorities in the national courts is a last resort after all administrative steps have been taken. If the competent authority fails to initiate proceedings it is possible in some Member States, depending on national legal traditions, for third parties to bring an action to compel the competent authority to act, or to bring a case for damages under civil law if this can be proved. The rights of access of third parties to the courts varies between Member States and the Commission is known to be considering a Directive on common rules on who should be entitled to seek judicial review of administrative acts and omissions.

  A further possibility open to members of the public, including NGOs, who believe that a Directive is not being correctly implemented is to make a complaint to the Commission. There would be fewer complaints and the Commission would have a light task in fulfilling its obligations to act as guardian of the Treaty if all Member States perfectly fulfilled their obligations. The Commission's task falls into two parts: ensuring correct transposition and practical implementation. It examines all the national laws, regulations and administrative provisions sent by the Member States to demonstrate that they have transposed all the provisions of Directives into national law. If necessary, after sending warning letters and a Reasoned Opinion, the Commission can initiate proceedings before the Court of Justice for failure of transposition. The suggestion is sometimes made (e.g. by the House of Lords in the report quoted above) that Article 169 letters, Reasoned Opinions and their responses should be published.

  Ensuring practical implementation is a much more difficult task since the Commission does not always have all the relevant information and has no inspectorate able to collect it. The Commission is therefore dependent for its information on those reports required under Directives (see 2.5 above) and on other sources including complaints made by the public. The European Environment Agency should be able to contribute as its tasks include providing `objective information necessary for framing and implementing sound and effective environmental policies' and drawing up expert reports which the Commission can use `in its task of ensuring the implementation of Community legislation' (emphasis added).

  Meanwhile complaints by the public (individuals, NGOs, industries, local authorities, etc) is an important source of information for the Commission. It is a practice that has grown, stretching the ability of the Commission to deal with them. The disadvantage of the complaints system is that it may distort the selection of infringements which the Commission deals with, focusing its attention on those complained about to the neglect of possibly more important infringements. Countries with well developed NGOs who have learnt to use the system are subject of more complaints than other countries whose infringements may be more significant. There are however two important positive aspects of the complaints system: it exerts pressure on the Member States and competent authorities to take implementation seriously; and it makes a reality of Community legislation for the citizens. Instead of Community legislation being seen to consist of pieces of paper which may or may not have an effect, and therefore may not be worth reading, the interested public has a purpose in studying and understanding EC legislation and knowing that they have a role in making it work. It is indeed as a result of complaints that the Commission has successfully brought several cases before the Court of Justice relating to practical implementation and has thus forced Member States to take action to protect the environment.

  One response to the growth in numbers of complaints has been to suggest better means to deal with issues at national level.

3.  Conclusion

  This paper is intended to show that implementation has many aspects. The low priority accorded to examining the problems of implementation may indeed result from this fact: it is a more difficult subject to deal with than adopting new legislation, and not as glamorous. To some peopole, it is a more difficult subject to deal with than adopting new legislation, and is not as glamorous. To some people it appears backward, instead of forward, looking. Any who think this should reflect that if this view is correct then the exciting item of new legislation that is now being discussed will shortly suffer the same fate. The view that the adoption of new legislation is all that matters risks EC policy being nothing more than an impressive array of pieces of paper.

  Implementation should be seen much more positively. Implementation is not just a narrow legal matter (transposition) though it includes that, nor it a narrow technical matter (eg monitoring) though it includes that too. Implementation is the link between what is desirable and what is achievable; it provides the essential feedback for the improvement of new policy making. It also provides the link between Community policy and national policies and ensures, not only that Community policies really penetrate into each Member State, but also that an understanding of national and local policies informs the development of Community policies. EC policy only really comes to life when it is implemented in the Member States and has become inseparably intertwined with national policies.

25 April 1996

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