Select Committee on European Communities Second Report



Committee on the Environment, Public Health and Consumer Protection

Working document on implementation of Community environmental law


The implementation and enforcement of environment legislation has a somewhat patchy record. Whilst the Thirteenth Annual Report on Monitoring the Application of Community law[100] shows a relatively good record for transposition in Member States, the practical implementation rate is less impressive, with 265 suspected breaches of Community environmental law being notified in 1995. An examination of the EU's success in arresting environmental degradation requires us to consider four different aspects of the legislative process; these are adoption, transposition, practical implementation and enforcement. Each of these contributes to whether the intentions of the Act itself are realised in the Member State. For example, when considering the initial drafting of legislation, sufficient attention must be paid by the Commission to reporting requirements of transitional measures. When legislation is adopted during Council negotiations care must be taken to ensure that the internal logic of the directive is not lost in the final compromise. Or, the transposition of a directive may be so complicated in Member States that it becomes difficult to see whether or not the directive has been fully implemented. For example, one single directive may require several different Acts at various levels of government in each Member State. To save time, Member States may choose instead to transpose through the use of administrative rather than legal measures which bring their own problems.

In the application of the directive itself, it is an oft-remarked fact that whereas Internal Market legislation has any number of competitors to police it, environmental legislation has no defenders with a direct economic interest in its observance, so it is a priori less likely to be observed.

Finally, the enforcement of the legislation. This is hampered by the fact that although formally the Commission is responsible for upholding Community law under Article 155 of the TEU, in practice it is the Member States (or actors within them) that have the primary role in ensuring that national (or regional) legislation is upheld. This therefore is a matter which needs to be addressed at both the EU level and the Member State level.

As long ago as 1987, the Commission said that it would place considerable emphasis on the implementation of environment legislation when it adopted the Fourth Environmental Action Programme[101], yet despite the existence of a formidable body of environmental protection legislation, examples of deficiencies are abundant.


Although the EP's scope for action in this field has been limited by constraints imposed by the legislative procedure, by a lack of material and personnel resources and by a reluctance on the part of Member States to make information available, the EP has tabled a series of reports addressing deficiencies in the observance of Community environmental legislation[102]. Previous attempts to address the problems resulted in the reporting directive and the directive on freedom of access to environmental legislation, yet the situation is not much improved as a result[103].

To address the apparent inability of Member States and the Commission to resolve these problems, the Parliament and the Commission held a joint hearing called, "Challenges to environmental protection-making the legislation work", on 30th May, 1996. In advance of the forthcoming Commission Communication on the subject, this working document aims to outline the most pressing problems and propose a series of solutions to address them which it expects the Commission to take up in its Communication.


These challenges can be grouped into two categories: those that stem from institutional dynamics at Community level (e.g. unanimity for adoption of legislation in Council, excessive Council secrecy, the limitations of directives themselves, a bureaucratic and unwieldy complaints procedure, no legal standing for complainants at EU level), and those that relate to problems within Member States themselves (for example, those that adopt the legislation in the Council may not be the same authorities that are required to implement it). There follows a series of problems that the rapporteur has identified which need to be addressed as priority issues.

1.    The secrecy with which the Council envelops its legislative decision-making can undermine the effectiveness of legislation before it has even been transposed for example, by allowing for the possibility of declarations in the minutes. Furthermore the fact that decision-making takes place behind closed doors can result in the adoption of political compromises spanning a number of unrelated legislative proposals subsequently leading to unclear texts and imprecise legislation. As a result, although considerable thought may have been given initially to how draft legislation will operate in practice, this may be lost in the final compromise.

2.    There is a certain lack of accuracy in some legislation e.g. for some legislation there is no obligation to report in a specific timetable[104].

3.    There is an urgent need for legislation to be codified. Legislation that has been amended several times should be compiled into one single text, rather than as now, being contained in a series of different Official Journals covering a number of years.

4.    The reporting directive poses its own problems. Although the EP proposed a series of deadlines, at the time, EP had only one reading and the Council, with Commission support, postponed the deadline for nearly half of the relevant environmental directives so that the reporting dates do not start until 1997, 1998 and 1999.

5.    Information: The Annual Reports of the Commission are concerned solely with transposition not with practical implementation and are therefore of only limited use.

6.    Effective checking of compliance with Community environmental law is to a large extent assured informally. That is to say that in the vast majority of cases, the Commission, whose role it is to uphold Community law, relies upon reports from individual citizens, community groups and MEPs to report suspected breaches to it. WWF estimates that 80% of complaints registered with the European Commission are made by the public. However, potential complainants are inhibited by a lack of knowledge as to what the standards should be and by not knowing to whom their complaints should be addressed.

    Such active public participation is very welcome but it begs the question as to whether we do in fact have a system in place which we lack the means to implement in practice.

7.    The secret nature of official correspondence between the Commission and Member States means that there is no pressure on Member States to cooperate in investigations into possible infringements.

8.    Discrepancies between one Member State's implementation and another are inherent in the use of the Directive as the major legislative instrument in environment policy. Since Member States are not required to provide tables showing how they have implemented each Article, it is not always clear whether all the provisions have been implemented.

9.    The lack of a single source of information to consult about other cases can diminish the effectiveness of those individuals or organisations challenging Member States. This is because they are denied information about other cases that may be useful for their own case.

10.  Resources: It is the Commission which is ultimately responsible for ensuring that legislation is effectively enforced. This is stated in Article 155 of the TEU. It is equally clear however, that the Commission lacks the human resources to do this effectively. DG XI's legal service is currently staffed by fifteen employees who deal with around 600 cases a year. It is also hindered to some extent by the fact that much of the information that it needs to do its job is simply not available or not available at the right time from Member States. In addition, since the Commission has no right to undertake independent inspections in Member States, it is unable to verify if the rule of law is indeed upheld.

11.  As the EP has argued for many years, it is increasingly clear that without a well-resourced independent inspection and enforcement agency the job will never be done effectively. It should be noted that this is not a revolutionary suggestion; pan-EU teams of veterinary inspectors roam the EU countryside, food hygiene inspectors and fisheries inspectors also operate at EU level as do anti-fraud squads carrying out spot checks.


This section of the working document details a number of solutions that the rapporteur believes should be included in the Commission's forthcoming Communication on the subject. This list is by no means exhaustive and the rapporteur welcomes further suggestions for improving the effectiveness of environmental legislation.

1.    In drafting legislation, the Commission should take care to consult widely and systematically. This is more likely to result in the emergence of vested interests keen to ensure that the legislation is effective in Member States. The Commission should further ensure that the drafts which leave the Commission are drafted in a clear and precise manner thereby increasing their chances of being accurately transposed and implemented by Member States.

2    Since co-decision making is the most democratic procedure for adopting legislation, this IGC should ensure that this procedure covers all environmental legislation. This would ensure qualified majority voting in the Council and equal responsibility for both Council and the EP. In addition, the Environment Council, when meeting as a legislative body should ensure that decisions are made in public.

3.    The European Environment Agency is required to compile comparable data on the overall state of the environment; it is they who are best placed to see over time which measures have been effective and which have not, which countries are generally on schedule and which are not. It is too early to assess the EEA's performance in this respect, but close cooperation between the EEA and both the Commission and Member States in crucial to ensure that the data it provides enables Community law to be upheld effectively.

4.    The establishment of an inspectorate at European level is indispensable to the successful implementation and enforcement of environment legislation. This could be achieved by a small team of inspectors working within the Commission whose role is to audit the work of national inspectors to be established within each Member State. The IMPEL network's contribution to improving enforcement in Member States has been significant and the foundations they have laid would undoubtedly assist the new inspectorate in its work.

5.    In the meantime, the work of the Commission would be greatly facilitated if Member States were required to produce annual reports on the implementation of EC environmental legislation which could be analyzed by the Commission (or the EEA). These would include tables of transposition showing precisely how each piece of legislation had been transposed, as well as information on practical implementation and resulting environmental benefits as well as any problems encountered. These tables should then be analyzed so that standards of transposition could be compared between Member States.

6.    Redress. A number of suggestions for improving current procedures for redress has been mooted. A system of administrative mediation would have the benefit of being less lengthy and less costly than Court proceedings although it also has its own drawbacks. Another popular suggestion has been the establishment of an environmental ombudsman. However, it is hard to see how an environmental ombudsman could be immune from the intense pressure to which the Commission for example, is sometimes subjected in relation to environmental complaints. Furthermore, there have been mixed experiences with the establishment of such offices. The New Zealand experience has proved to be a great success, but the same could not be said of all such ombudsmen.

    A further possible model which could be followed is the Land and Environment Court in New South Wales, Australia. Presided over by a mix of judges and technical experts, the new Court has exclusive jurisdiction over all environmental matters, both civil and criminal. Its integrated jurisdiction and expertise has resulted in better and more consistent decision-making. It has proved more accessible to the public and less lengthy and costly than normal Court proceedings. The very existence of a specialist Court has elevated public, government and industry awareness of environmental issues. The establishment of such Courts in Member States could make an enormous contribution to improving compliance with environment legislation.

7.    The overtly political nature of the grievance procedure at Community level is a massive hindrance to effective environmental protection. There is an astonishing degree of interference and non-cooperation by Member States who often appear to display a cavalier disregard for the rule of law which they themselves are duty bound to uphold.

    One way in which this could be tackled is by making all official communication, that is to say Article 169 letters and Reasoned Opinions and their replies, public.

8.    In addition, the Commission, through the promotion of an amendment to the Treaty, should consider the possibility of granting legal standing to a defined group of organisations to challenge Commission decisions before the European Court of Justice (or the Court of First Instance). This would have the additional benefit of enabling a wider audience to access the above-mentioned documents.

9.    It must be made easier for individuals to press their cases against Member States for suspected infringements of Community law. Legal redress could be made more efficient by granting individuals or groups extensive rights of standing before their national courts. This would have the twofold benefit of national government being more likely to obey national court judgements and of relieving pressure on the Court of Justice. Furthermore, national courts are far better placed to take account of specific legal and economic aspects of cases the precise details of which may be unfamiliar to the ECJ.

10.  The financial implications for individuals and organisations taking legal action in Member States should be recognised by granting either legal assistance or reduced fees. Access to scientific and technical expertise free of charge in the run up to, and throughout the hearing could also be considered.

11.  Although directives may allow Member States a generous margin for manoeuvre, a recent ECJ judgement suggests that any national legislation which purports to implement a directive must be at least as clear as and precise as the relevant provisions of the directive itself. If it is not, a right is created for an individual to go beyond the national legislation and straight to the directive to ensure that the directive's intended aim is achieved[105]. The possibilities afforded by this Judgement should be fully exploited. In addition, systematic consideration should be given by the Commission over its choice of legal instrument for achieving policy goals.

12.  Sanctions. It is not clear how Article 171 of the TEU can be made effective despite the publication by the Commission of a clarifying memorandum of the subject[106] since the drawbacks of fines are both well documented and numerous. For example, the authority in breach of the legislation may not be the Member State which is required to pay the fine (although that Member State is ultimately responsible for ensuring that its authorities obey the rule of law). In the case of cohesion countries, withholding funding could only make it less likely that the legislation will be implemented and enforced correctly.

    However, the polluter pays principle requires us to stop viewing natural resources as "free" goods. Imposing sanctions on Member States who fail to implement legislation to protect the environment is only an extension of the idea that industries who pollute should pay for the damage they cause. Since this is now widely accepted and has been central to Community environment law since the entry into force of the SEA in 1987 there is no reason to oppose its use in a wider context. Indeed, one of the failings in some Member States has been their willingness to transpose legislation without introducing sanctions to compel those affected by the law to respect it.


In many ways, the development of environment policy has been the history of the democratization of the EU. Democracy is of course essential to good environment policy because public discussion resulting in widely supported aims is vital for the achievement of the aims set out in legislation. The public's role as an adjunct environmental police force, means that they are the people whose support is most needed; without it there can be no adequate environmental protection.

Yet despite the fact that over 200 legal instruments for the protection of the environment have been adopted, environmental protection remains a highly contested area. Noting the succession of Parliamentary reports highlighting the hindrances to effective environmental legislation, it should be emphasised that the EU's inability to ensure effective enforcement of legislation bodes ill for the Community's credibility in all policy areas and should therefore be addressed as a matter of urgency.

Ken Collins MEP (Rapporteur)
Environment, Public Health and Consumer Protection Committee
The European Parliament

9 October 1996

100   29.05.1966 COM(96)0600. Back

101   OJ C289, 29.10.1987, p.3. Back

102   OJ C94, 4.11.1988 pp. 113, 151, 155 and OJ C125, 18.5.1992, p.122. Back

103   Directive 91/692/EEC and Directive 90/313/EEC. Back

104   For example, directive 85/203 on air quality requires the Commission to publish a report on this directive's application "periodically". Regulation EEC/1734/88 of 16 June 1988 on the import and export of dangerous chemicals requires exchange of information and monitoring by the Commission and Member States to take place "regularly" rather than within a specific timetable. Back

105   Judgement of the Court Case No. C-118/94 of 7 March, 1996, para.19 Back

106   OJ No. C242, 21.8.96, p.6 Back

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