Opinion of the Economic and Social Committee on 'Environmental agreements` (97/C 287/01)

On 27 February 1997 the Economic and Social Committee decided, under Rule 23(3) of its Rules of Procedure, to draw up an opinion on 'Environmental Agreements`.

The Section for Protection of the Environment, Public Health and Consumer Affairs, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 15 May 1997. The rapporteur-general was Mr Boisserée.

At its 346th plenary session (meeting of 28 May 1997) the Committee adopted the following opinion by 66 votes to one, with one abstention.

1. Introduction

1.1. The ESC brought up the question of 'voluntary agreements` quite early in discussions of environment policy at Community level. In its opinion on 'Environmental policy and the Single European Market` of 19 September 1990 (), it considered the importance of new, particularly economic, instruments as a response to the environment policy challenges of the internal market. Point 6.3 of that opinion reads as follows:

'A number of Member States have had favourable experiences with a system of voluntary agreements between the authorities and individual undertakings or whole sectors of industry or commerce with a view to meeting environmental requirements. The responsibility of the public authorities for environmental protection must of course not be undermined by these arrangements. By adopting such measures it is however often possible, by means of self-regulation, to implement environmental protection measures more effectively and to introduce regulations at an earlier date. Generally speaking, the EC should encourage such agreements.`

1.2. In the 5th Environment Action Programme and in the opinions of the Council, the European Parliament and the ESC on that programme the principle of shared responsibility is stressed; the instrument of environmental agreements fits in with this principle. Point 4.3 of the ESC's opinion of 29 May 1996 on the review of the 5th environment programme () states:

'... voluntary agreements must obviously have a clear cut legal framework in order to prevent environmental protection objectives from being circumvented. Steps must be taken to monitor observance of the processes and decisions laid down in the agreement and to ensure that such agreements are consistent with EU and national competition laws. The life-span of the agreements is a particular matter of concern; it is particularly necessary to prevent the emergence of a legal vacuum in environment protection following the termination of such agreements.`

1.3. Now that the Commission has published a Communication to the Council and the European Parliament on environmental agreements (COM(96) 561 final), on which a number of interest groups have already expressed their views, it seems appropriate for the ESC to give its opinion on this subject once again and in detail. That is why the Committee has decided to issue the following own-initiative opinion.

2. Environmental agreements: opportunities and problems

2.1. The subject of environmental agreements is very wide-ranging. The following cases are involved:

a) The Commission Communication mentions first and foremost environmental agreements which are intended to take the place of legal provisions, either wholly or in part.

b) The Commission also mentions unilateral obligations of the social partners, which assume that a legal provision is thereby made superfluous and will not be enacted; the validity of such a unilateral declaration depends on this expectation being met.

c) However, environmental agreements in the Member States are mostly concerned with rules for implementation of environmental law, and hence with administrative measures. There are many positive experiences here. These agreements between responsible authorities and industry, and if necessary third parties in the neighbourhood, normally relate to specific practical cases.

d) The Commission document does not deal with agreements or codes of conduct which are not legally binding but which in practice also play an important role. They can be useful for preparing a legal measure or the implementation of provisions by the authorities.

2.2. The communication focuses in particular on establishing environmental agreements as a binding contract between a Member State and the partners involved ('industry`) which would take the place of the transposition of Community directives into national law.

The ESC perceives a number of problems with this model of environmental agreement, they must be solved in accordance with the Member States' laws. It does not think attention should be concentrated on this type of agreement. However, the tried and tested form of agreement should form a part of the implementation of transposed Community law.

It has been demonstrated that better, more flexible solutions to practical problems can often be obtained through environmental agreements which take account of the need for protection of the public and the neighbourhood. Such agreements are not in competition with the political responsibility of the legislator. They make use of a modern administrative instrument which is successfully employed in many Member States in environmental and other policy areas.

3. Requirements for the conclusion of environmental agreements

3.1. The most important requirement for the lasting success of an environmental agreement is for it to guarantee distinct advantages for both sides. The rights and obligations of both sides should be roughly balanced in the agreement.

3.2. A basic requirement for environmental agreements is respect for EC Treaty provisions on environment law at Community level, particularly Article 130r. This means that the following aims and principles of Community environment policy are to be respected in such agreements:

- high level of protection;

- prevention;

- the 'polluter pays` principle.

3.3. Under the EC Treaty and numerous rulings of the European Court of Justice, environment policy - in the formulation and execution of which the citizens and economic actors are involved - is ultimately a public responsibility. Environmental agreements must therefore not be allowed to lead to 'privatization` of environment policy.

Environment policy objectives and limit values cannot be the object of environmental agreements; they must be reserved for political decision-makers, who must be responsible for them. The environmental objectives mentioned by the Commission do not on their own provide a basis for environmental agreements. The objectives need to be pursued through the legislative procedure set out in Articles 130r and 130s of the EC Treaty.

3.4. The field covered by an environmental agreement must be precisely defined and the mutual obligations laid down in material and temporal terms (as far as possible through step-by-step plans). The environmental agreement can also include the obligation to participate in the environmental management and enterprise monitoring system (eco-audit) ().

3.5. If an environmental agreement, as the Commission prefers, is to assist the transposition of European law at Member State level, it should be ensured that the negotiations on such agreements comply with the deadline for transposition, even if individual Member States have to negotiate with a number of partners, and negotiations are completed at different times. It must be ensured that the Community law applying in the Member States can be clearly identified. Otherwise it would be more difficult to monitor precise implementation, and the call for better transposition of European environment law (Commission Communication of 22 October 1996, COM(96) 500) would remain unanswered.

3.6. Environmental agreements must also take account of the problem of 'freeloaders` who enjoy the general advantages of an environmental agreement (e.g. absence of transposition of an EC law) without having committed themselves to take the necessary measures.

3.7. In agreements to solve specific practical problems in the implementation of environment law (e.g. delayed improvements to reconstruct old production plant or agreements on implementing nature conservation provisions) the interests of those affected in the neighbourhood must be taken into account so that the provisions will also have legal force.

In negotiations on an environmental agreement based on a specific case (branch agreement) the social groups (social partners, environmental associations, consumers' representatives) should be involved, depending on the subject of the agreement, in the way laid down for preparing legal provisions or the way which is customary. In this case, too, legal recourse must remain open to any individually affected citizens.

3.8. It must be possible to review an environmental agreement in the light of practical experience, technical developments and ecological knowledge.

3.9. Compliance with the environmental agreement must be monitored in the same or an equally valid way as that used for legal provisions or administrative measures. This monitoring should be directed particularly at individual undertakings. Agreement on applying the eco-audit procedure is advisable here. Non-compliance with environmental agreements must entail adequate sanctions.

3.10. The content of environmental agreements must be transparent to the public, as for a legal or administrative measure. The Directive on access to environmental information () is applicable here.

4. Legal form of the environmental agreement

4.1. As the Commission rightly states in its communication, there are two different legal forms for environmental agreements:

- bilateral agreements, usually between authorities and industry (associations or individual firms), or between different public bodies;

- unilateral obligations of the industry-side partner as a result of negotiations between authorities and industry, covering a specific action or failure to act.

4.2. There are problems as regards the possibility and reliability of contractual rules:

- Where an environmental agreement involves the expectation that the 'authority` will refrain from taking a legal or administrative measure, it should be borne in mind that refraining from an act of legislation - at least under the laws of some Member States - cannot be the subject of an agreement.

- An actionable agreement presupposes authorizing the agreement partner to undertake such a legal obligation. Although negotiations on environmental agreements at sectoral level can be conducted by associations (branch representatives), such agreements also need the approval of each individual firm.

4.3. In the Committee's view, a decision can be taken only on the merits of the individual case and depending on the legal form adopted for environmental agreements in the Member State concerned.

5. Subject of an environmental agreement

5.1. Environmental agreements concerning the implementation of European law transposed into national law pose no problems. They concern practical arrangements for implementing the law (e.g. timetable and phases), financial aid (e.g. for setting up nature conservation parks) or projects to clear up local environmental problems.

In negotiations on environmental agreements of this kind Member States have achieved very good results by getting independent figures to chair the talks with the aim of mediating between the different interests. A similar mediation procedure can be used with the implementation of European environment law.

5.2. In the Communication on environmental agreements and in the relevant Recommendation to the Member States (), the Commission deals primarily with the environmental agreements which take the place of a legal act, and which therefore should serve to transpose Community directives.

In practice such arrangements can only be considered when a small group of parties to an agreement (firms) is involved: only in this case could a binding agreement be reached which would be as effective as a transposing legal act. Umbrella organizations at European level are not usually authorized to conclude such agreements with binding legal force.

5.3. The political level for environmental agreements is primarily that of the Member States when transposition of Community directives is involved; otherwise it could also be that of the regions or local authorities.

The European Community level is practically excluded in the Commission communication. The ESC agrees with this, except that 'global agreements` on 'global problems` can be concluded with European associations. However, these will mainly concern self-regulation undertakings or the results of negotiations to prepare legislation, or an international agreement.

When such agreements are envisaged, the involvement of the bodies responsible for the legislation at Community level (including the ESC) should be ensured.

5.4. It is necessary to inform interested parties in a suitable way, unless they are already directly involved in the agreement. For agreements of a general nature, a notification in the relevant official journal should be agreed.

5.5. Environmental agreements must be checked for compatibility with the competition rules (Articles 85 and 86 of the EC Treaty) and - if the agreement in question provides for subsidies or awards tax privileges to a party to the agreement - with Article 92 of the same Treaty. The same applies to compatibility with the rules of the World Trade Organization on free movement of goods and trade barriers. These checks are to be carried out by the Commission, with the participation of the authority concluding the agreement.

6. On the Commission Communication and the Recommendation to the Member States

6.1. The ESC opinion is basically in agreement with the communication, although the priorities differ to some extent. The opinion contains proposals for additional provisions which the ESC regards as important.

6.2. The scope of the communication's 'General guidelines for the use of Environmental Agreements` should be extended to cover also agreements in the administrative field. It also seems necessary to include a provision on the use of the environmental agreements instrument in implementing Community regulations. Consideration could be given to making the communication applicable to agreements whose validity extends beyond the Community's frontiers.

6.3. It is not clear whether the 'Recommendation on environmental agreements` (annexed to the communication) which was published in the Official Journal on 21 December 1996 relates only to transposition into national law or to implementation of transposed law as well. This should be clarified in the communication. In the latter case the recommendation should also mention unilateral self-regulation undertakings. It seems right to point out that the relevant provisions of the EC Treaty must be respected for every type of environmental agreement covered by European law.

Brussels, 28 May 1997.

The President of the Economic and Social Committee

Tom JENKINS

() OJ C 332, 31. 12. 1990.

() OJ C 212, 22. 7. 1996.

() See Regulation 1836/93 - OJ L 168, 10. 7. 1993.

() OJ L 158, 23. 6. 1990.

() OJ L 333, 21. 12. 1996.