Select Committee on European Communities Second Report
PART 2 THE EVIDENCE AND THE COMMITTEE'S OPINIONS (CONTINUED)
69. The role of national
inspectorates is one of the areas in which the Commission proposes
an "innovative approach" (paragraph 20 of the Communication):
"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" (paragraphs 26-29).
It goes on to propose building on the IMPEL network of national
professional inspectorates: "The Commission will consider
the existing position of the informal IMPEL network as a useful
instrument of cooperation and capacity building, and will
make proposals for improving, developing and reorganising its
tasks. It will encourage the creation of national coordination
networks to be linked with IMPEL though the national coordinators"
70. We asked witnesses how they perceived the current relationship between the Commission, the Agency and the IMPEL network. The DoE felt that the joint chairmanship shared by the Commission and the Presidency tied IMPEL into the institutions in a satisfactory way: they provided us with a copy of the UK's discussion paper on the future role and organisation of IMPEL, produced for the European Council meeting in Dublin on 21-22 November 1996 (see Appendix 12), emphasising that the paper contained just ideas at that stage. The Commission had set up a working group with Member States to review the work of IMPEL and come forward with recommendations for the Environment Council when it considered the Commission's Communication (QQ 5-8).
71. Mr Haigh thought that the biggest deficiency in the Communication was the inadequate mapping out of the relationship between IMPEL, the Commission and the EEA. Despite the claims made on its behalf, he found IMPEL's public profile somewhat low-key and its purpose far from clear. There was a danger that they would be sucked into the Commission. He would much rather see them as an association of professionals, rather than as an organ of the Commission or (as the Communication seemed to imply) a group of Member States' representatives (QQ 328-9). The response from DG XI was that the Commission was the only Community institution that was responsible for implementation and enforcement of EU environmental legislation, but that both the EEA and IMPEL could assist it in those tasks. The EEA's responsibilities were clearly spelled out in the Regulation but were currently under review; at the same time IMPEL was in the process of revising its structure and role. In both cases it would be premature for the Commission to express an opinion on future relationships between these bodies (p 156).
72. The WSA was also critical of IMPEL for being opaque, and found it unreceptive to industry views (p 21): in common with the CBI, they favoured putting the IMPEL network on to a more formal footing, perhaps as an extension of the European Environment Agency's role, with the task of auditing national inspectorates (pp 13, QQ 71-2). The Environment Agency, in contrast to WSA, felt that IMPEL had led to improved transparency, and strengthened links between authorities at national, regional and local levels (Q 149). Like Mr Haigh, both they and SEPA wished to see IMPEL remaining independent and at arm's length from the Commission and the EEA (QQ 150-2). Similarly, UK EEB felt that IMPEL should remain an network of professionals, but would benefit from independent legal status (Q 193).
73. We noted that IMPEL's membership was predominantly made up of professional pollution control inspectors. There was no equivalent network of people working in the field of nature conservation-although English Nature had been building up contacts in recent years with other environmental advisory bodies in Europe. They had other opportunities for professional exchanges through the EEA's Nature Conservation Topic Centre and Eurosite (an institution which disseminates best practice on nature conservation monitoring and management across Europe) (QQ 308-11).
74. On the Commission's
proposal (in paragraphs 26-29 of the Communication) to adopt
a more gradualist approach than previously mooted, by concentrating
initially on performance levels for national inspectorates and
to defer for further consideration the idea of a Community-level
"auditor of inspectorates", DoE considered that the
latter idea (which came originally from the then Secretary of
State in 1992) had now "evolved to a sensible proposal"
(Q 19). Mr Osborn, whilst personally still favouring the
idea, felt that IMPEL was developing satisfactorily along present
lines as a professional association (QQ 241-2).
75. A high degree of uniformity across the Community in inspection standards and procedures is an essential prerequisite of effective enforcement at Member State level, and need not detract from subsidiarity. We therefore strongly support the Commission's proposal to develop guidelines for national inspectorates.
76. IMPEL is a useful initiative bringing together regulators from Member States mainly involved in pollution regulation. However, the relationship between IMPEL, the European Environment Agency and the Commission is unclear in the Commission's Communication, and the June 1997 Council Resolution (see paragraph 70) does not greatly advance matters. It is important that this is clarified as quickly as possible, once the current reviews of the Agency and IMPEL have been completed.
77. We are concerned that the Commission (and to a lesser degree the Council Resolution) appears to be suggesting that IMPEL should develop into a semi-official regulatory body, an impression which is reinforced by the fact the Commission already provides premises and a secretariat for the organisation. We consider that IMPEL should retain the character of a professional association independent from the Community institutions, and should not take any formal role in the implementation and enforcement of Community environmental law. Member States should share the costs of providing office space and administrative costs rather than the Commission. We would hope that it will regularly consider implementation issues and feed back results and recommendations to the Commission, the European Parliament, and the Council. Its reports and findings should be published.
78. IMPEL is largely confined to pollution regulators. We see there could be value in having a similar professional grouping of those national regulatory bodies concerned with nature protection and equivalent issues (where the EC legislation is also complex). Some degree of cooperation has already been initiated but it does not yet appear as focused or developed as IMPEL.
79. We are inclined
to agree with the Commission that the question of a Community-level
auditing function need not be pursued urgently at this stage.
But we adhere to the view of the 1992 Report that the Agency would
be the logical home for an "inspectorate of inspectorates",
should such a body be established.
80. In its introduction (paragraph 11), the Commission refers to a recent review of its internal rules on the way in which Articles 169 and 171 are being used. The Commission declares it will "make full use" of Article 171 to ensure that Member States comply with judgments of the Court of Justice in cases brought under Article 169.
81. The Commission is
essentially proposing that it should devote more of its efforts
to ensuring that Member States fully transpose their Community
obligations into national legislation-i.e. formal implementation-and
that it should leave cases of non-implementation in practice to
be resolved at national level, via the national courts where appropriate.
It stresses (in paragraph 25) that the remedies under Articles
169 and 171 are available only against Member States' central
governments, and that day-to-day enforcement-of properly transposed
legislation-must be the prime responsibility of competent authorities
at various levels within the Member States.
82. We asked witnesses whether they thought the Commission had got its priorities right, given its limited resources and bearing subsidiarity in mind. Should it, for instance, have a more explicit policy explaining its criteria for dealing with complaints and taking enforcement action against Member States? The DoE considered the Commission's proposals were broadly on the right track (Q 18). The CBI felt the Commission should use its enforcement powers only sparingly, and (in common with the Environment Agency, SEPA and UKELA) was strongly in favour of a prioritised approach; hitherto the Commission's approach had been largely one of reacting to complaints: resource problems meant delays, and a skewed incidence of complaints resulted in a distorted and haphazard pattern of enforcement activity (QQ 55, 139-40, 251).
83. NGOs, whilst agreeing that it would help if the Commission had a clearer policy, felt that transparency was the real priority. It was also suggested that timescale could be more important than subject matter for determining priorities-"so that if an alleged infringement is about to occur you do not end up with a car park because it did not get looked at for two and half years" (Q 207). There was little experience to date of the Commission applying to the European Court for an injunction to stop damaging activities (QQ 20811).
84. We asked DG XI whether there was any truth in anecdotal reports of Commissioners blocking Article 169 proceedings against Member States for political reasons. Perhaps not surprisingly, this was neither confirmed nor denied explicitly. Mr Kremlis explained that the use of Article 169 was a "horizontal issue", in that it applied to all areas of Community legislation and had to be sanctioned by the College of Commissioners, i.e. by the Commissioners collectively. It was true that a Commissioner might "try to postpone or to gain time", but this would be essentially a tactical move: at the end of the day arguments had to be based on legal, not political, considerations (QQ 367-72). Sometimes there were good reasons for postponing a case, in the hope that a negotiated solution might emerge: "the main objective of the Article 169 procedure is to bring compliance. It is not to bring the Member States before the Court" (Q 373). The Commission's new internal guidelines on complaints and infractions (referred to in paragraph 11 of the Communication) had reconfirmed the "one year rule", which requires Commission staff within 12 months either to resolve a complaint or to recommend Article 169 infraction proceedings (Q 174). Later we were able to obtain from the Commission's Secretary-General a copy of the conclusions of the new guidelines: we have reproduced them at Appendix 13.
85. Although Mr Kremlis suggested that the Commission's priorities for the use of Article 169 were contained in the Communication (Q 379), it is necessary to look to the new guidelines for an explicit statement. These advise staff to deal with complaints in the following order of priority:
* "horizontal cases of incorrect application, in particular when these are detected on the basis of a series of specific complaints by individuals"
* "infringements which seriously harm the interests which the transgressed law is intended to protect".
86. The Commission's proposals on the imposition of penalties under Article 171 of the EC Treaty on Member States who fail to comply with European Court judgments on environmental matters were set out in a Commission Memorandum adopted on 5 June 1996. DG XI told us that at the end of January 1997 the Commission had decided to refer five such cases to the Court: the Commission was confident that the use of the Court's powers to impose financial penalties would improve the level of compliance (pp 155-6).
87. There was much criticism of the continuing reluctance of the Commission and most Member States to publish details of Article 169 proceedings. It was considered particularly unsatisfactory that when people complained to the Commission about a Member State's failure to implement Community environmental law, they should receive no adequate information from the Commission on the results of the proceedings, especially when they had been "settled" in negotiations with Member States. WWF and FoE referred to the Cardiff Bay Barrage case as an example of how decisions were taken behind closed doors. In this instance the NGOs only discovered that the file had been closed some six months after the event: no satisfactory reason was given at the time for the stopping of proceedings, and details of the negotiated settlement were not forthcoming (pp 73-4, 90-1, QQ 179-81). Mr Buxton, for UKELA, suggested "it would be slightly better if one got a letter from the Commission saying `We are very sorry but we have decided for political reasons not to take this forward', but one does not even get that" (Q 254). Mr Kremlis assured us that-on the contrary-DG XI, in common with other directorates-general, followed established internal procedures under which complainants were kept informed on progress, including closure of a case-or at least (in Mr Noble's words) "they are generally told that the case has been closed". Obviously they would not be told that a case had been closed for political reasons: the decision would be based on the advice from DG XI's Legal Unit and the Commission's legal services (QQ 375-8).
88. WWF referred to the recent hearing before the Court of First Instance of their action against the Commission for its refusal to disclose, under the Code of Conduct on access to Council and Commission documents (see paragraphs 19 and 31 above), the papers relating to a possible misuse of structural funds for the construction of a visitor centre in the Burren National Park, Ireland, an area protected under the Habitats Directive. The UK and France had intervened in the case in support of the Commission; Sweden had intervened in support of WWF (pp 71-2, Q 195): later we learned that the Court had annulled the Commission's decision.
89. The DoE argued to us that there was a need to maintain confidentiality in potential Article 169 cases so as not to prejudice the chances of a negotiated settlement (Q 25). This, however, was dismissed by Mr Buxton as "a completely unrealistic excuse" (Q 253). Mr Haigh (IEEP) was doubtful whether most Member States would agree to full transparency over Article 169 proceedings, as recommended in the 1992 Report: he offered the suggestion, as a compromise, that the moment a case went to the European Court, the Commission's Article 169 letter and the preceding exchanges should be made public (Q 343).
90. The RSPB referred
to the regular progress meetings that took place between the Commission
and Member States, known as the réunions pacquet,
to review (and to some extent to agree action on) currently outstanding
issues of transposition, complaints and potential infringement
proceedings. Not only did they feel that there should be more
public information about the outcomes of these meetings; they
also suggested that since the Commission regarded these meetings
as a fact-finding process and a way of short-cutting correspondence,
the Commission might consider inviting NGOs and other complainants
to attend at least part of the proceedings: it would be a step
in the direction of the Commission's ideas for environmental ombudsmen
and other possible mechanisms for mediating in and resolving disputes
(see paragraphs 99 and 104-5 below) (pp 60, 64, Q 201).
As a variant of this theme, one idea which we developed in the
course of the enquiry, and which found some favour, was that a
member of staff of the Commission's office in each Member State
might be given a rapporteur-type role in compiling factual dossiers
on the issues under dispute in particular complaint cases. This
could help to shorten the cumbersome fact-finding chain between
the Commission and Member States via the permanent representatives
in Brussels (QQ 202-3).
91. On Article 169 complaint procedures, we welcome the Commission's concern to place more emphasis on ensuring that national legislation implementing Community obligations fully reflects Community law and is in place in time. This will not resolve all the problems of implementation but at least will ensure that a proper national legislative framework is in place.
92. We accept that there will remain cases of poor implementation in practice where the Commission should be prepared to consider Article 169 procedures against Member States. Nevertheless, we think the Commission needs to develop and publish a more clearly defined statement of its policy and priorities in this field, reflecting but perhaps going somewhat further than its new internal guidelines to staff. This would not detract from the Commission's legal duty to consider every complaint, but would help complainants as well as the Commission. We very much welcome the European Ombudsman's recent decision to conduct an investigation into the Commission's handling of alleged infringement cases, including the issue of transparency.
93. We would like to propose, for further consideration, that within Commission offices in Member States a Commission official should have the responsibility for compiling dossiers on complex complaints in which noncontentious factual material can readily be established by direct contact with the parties rather than through the cumbersome communications chain through Permanent Representatives in Brussels. This might help to relieve some of the burden from DG XI's Legal Unit, although we consider that the Unit's complement of qualified lawyers needs to be augmented in any event.
94. We recommend that as a matter of good administration the Commission should always inform complainants when key decisions have been taken in respect of a complaint (e.g. to drop an investigation or to commence formal Article 169 proceedings).
95. Where the Commission and a Member State have "settled" an action (for example, where the Member State has agreed to introduce new legislation within a specified time-limit) we recommend that in accordance with the principles of open government the Commission and the Member State should make public an agreed statement of the results within one month. Until such procedures are agreed, we recommend that the Department of the Environment (and its Scottish and Northern Irish equivalents) should implement such a policy in respect of actions in which it is involved.
96. We think that the European Parliament could usefully take a closer interest in the handling of complaints. The Commission should be required to publish regular reports to the European Parliament on its exchanges with Member States over complaints about non-implementation. These would enable the Parliament to keep a closer eye on the effectiveness of enforcement at the Community level. We also recommend that more information is made public on the outcomes of réunions pacquet meetings, and that complainants should be informed of progress on items which affect them.
97. We wish to re-state emphatically the recommendation of our 1992 Report that Article 169 letters, Reasoned Opinions and the responses to them should be in the public domain, at least from the point when papers are lodged with the Court of Justice.
98. Although in our
1992 report we felt that the proposal to give powers to the European
Court to fine Member States who failed to comply with its judgments
was "not a road down which the Community should travel lightly",
we welcome the fact that the Commission has now made substantial
progress in developing criteria for penalties, and that Article
171 proceedings in the environmental field have been brought against
Member States in certain instances. We look forward with interest
to the decisions of the European Court of Justice on these cases,
and should they result in penalties being imposed we recommend
that the judgments be given as wide publicity as possible in all
Member States. Early indications are that the possibility of substantial
fines being imposed has forced some Member States to take corrective
action. We suspect that the embarrassment factor may well count
for more than the actual monetary penalties.
43 The June 1997 Council resolution recognises the importance of IMPEL as "a very useful informal instrument for the improvement of implementation, inspection and enforcement....It could in particular give advice-on request or on its own initiative-on general questions regarding implementation and enforcement as well as on new draft proposals...in particular where the input of practical experience is necessary". The Council also considers that "IMPEL could be further developed, inter alia by asking it to consider whether it should not broaden the scope of its mandate and the focus of its current work". Back
Case T-105/95, WWF UK v European Commission, Judgment of
the Court of First Instance, 5 March 1997. It should
be noted, however, that while the Court annulled the Commission's
decision to refuse disclosure on the grounds that the Commission
had given insufficient reasons, the Court did say that it was
in the public interest for the Commission to maintain the confidentiality
of Article 169 papers even after a case had closed. Back
In the field of competition law, the Commission in 1993 published
such a statement of policy and priorities for dealing with complaints
(Commission Notice on co-operation between national courts and
the Commission in applying Articles 85 and 86 of the EC Treaty
[the "Co-operation Notice"], OJ C234, June 1993, p 89).
This gave a clear signal to potential complainants that the Commission
might be more selective as to which cases it took up and that
other avenues of redress were to be explored, in particular by
the enforcement of Community law through the national courts. Back
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