ANNEX I: DEFINITIONS
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.
ANNEX II: IMPLEMENTATION PROBLEMS BY SECTOR
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.