Opinion of the Economic and Social Committee on the "Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions - Environmental Agreements at Community Level Within the Framework of the Action Plan on the Simplification and Improvement of the Regulatory Environment"

(COM(2002) 412 final)

(2003/C 61/23)

On 18 July 2002, the Commission decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 29 August 2002. The rapporteur was Mr Gafo Fernández.

At its 393rd Plenary Session on 18 and 19 September 2002 (meeting of 18 September) the Economic and Social Committee adopted the following opinion with 83 votes in favour and two abstentions.

1. Commission proposal

1.1. This communication concerns a system for voluntary environmental agreements at Community level. It examines their various features and explores possibilities for recognition by the Community institutions alongside the traditional legislative process. The communication follows on from a similar text published in 1996 on voluntary environmental agreements at national level(1), which resulted in hundreds of voluntary agreements in countries such as the Netherlands and Germany.

1.2. This communication cannot be viewed in isolation. It must be examined in conjunction with two communications published on 5 June 2002, on simplifying and improving the regulatory environment(2) and impact assessment(3). It is also an integral part of action planned under the Sixth Community Environmental Action Programme.

The communication lays down the minimum requirements that voluntary agreements must meet to be considered as being of Community interest (most importantly, they must tie in with the Commission's priorities for action) and which may be acknowledged in some way by the Community. The criteria concern:

- cost-effectiveness of administration;

- representativeness;

- well-defined and quantified objectives;

- involvement of civil society at the drafting stage;

- the monitoring and reporting system;

- sustainability;

- compatibility with other incentives and actions.

1.3. There are two ways in which the Community institutions may acknowledge agreements:

1.3.1. Under the self-regulation procedure, the Commission notes the existence of the voluntary agreement by means of an official recommendation, or the simpler method of an exchange of letters. This in no way prevents the Commission from initiating a legislative process at a later date, particularly if the voluntary agreement does not achieve the intended objectives.

1.3.2. Under the coregulation procedure a directive is used. The most important feature of the directive is that its content is limited to a description of the general objectives to be attained and the requirements concerning the monitoring and public information systems. Implementing arrangements are the subject of a pre-existing voluntary agreement. As specified in the communication on improving and simplifying the regulatory environment, it would thus be used "where flexible and/or urgent measures are necessary, provided that they do not require a uniform application in the Community and that they do not affect the conditions for competition."

As the communication states, the content and scope of environmental agreements and means of monitoring and publicising their results are not negotiated with the Commission.

2. Comments and proposals

2.1. The Economic and Social Committee has always been in favour of improving legislative methods to make them less complex, more flexible, closer to Union citizens and easier for the public to understand. It welcomes this communication which seeks to promote the adoption of voluntary environmental agreements at Community level, and hopes that after a short trial period it can be extended to other areas of economic and social activity as an alternative (which may be quicker and more flexible) to the traditional legislative process.

2.2. By definition, voluntary agreements must always go beyond the minimum standards required by law. In no circumstances must they conflict with minimum standards adopted at national or Community level.

2.3. Nonetheless, the Committee believes that some aspects of this initiative could be improved to make it more accessible and transparent, and in particular to give greater certainty in terms of the final outcome for stakeholders proposing voluntary agreements. To this end, it suggests the following amendments to the approach adopted in the Commission document.

2.4. The concept of "stakeholders" must be defined more clearly. Although the Committee understands that this concept does not apply exclusively to industry, a significant proportion of voluntary agreements will clearly originate from the latter. By definition, it is industry that will be the most able, in the short term, to act at Community level, since it can guarantee sufficient coverage and thus representativeness and, of course, the "added value" which is one of the Commission's priorities.

2.5. Proposal 1: Within the concept of "stakeholders", make a clear distinction between the parties which are the driving force behind the agreement, such as industry and, where relevant, other civil society organisations, whose role is confined to the public information stage of voluntary agreements.

2.6. The communication makes no mention of the benefits to stakeholders of voluntary agreements, aside from a reference to seeking alternative methods to the traditional legislative process. However, there are other clear advantages, such as being seen by users, and the public in general, to adopt an open and committed position to environmental conservation. It may even be possible to link participation in such voluntary agreements to award of the eco-label or EMAS certification, or to provide for official inclusion in the annual accounts reports of participating firms. Likewise, a firm's participation in a Community level voluntary agreement could count in its favour in the award of public works and supply contracts, provided that the environmental aspect of the voluntary agreement is a relevant additional criterion in the award of the contract, and subject to the final provisions of the directives currently in the process of adoption by the Council and European Parliament.

2.7. Proposal 2: Environmental quality certificate. Make participation in a voluntary environmental agreement a criterion in the award of an eco-label or EMAS certification.

2.8. Proposal 3: Relation to public procurement. Press for the directives on the public procurement of works and services currently in the final stages of adoption by the European Parliament and the Council to indicate the merits of such agreements with regard to the award of these contracts.

2.9. A clearer distinction must be made between the different kinds of voluntary agreement in relation to pre-existing legislation in the area concerned, since some voluntary agreements seek to make new advances of a general nature. Others are concerned with specific sectoral problems where there is no pre-existing legislation and where the Commission does not intend to legislate (which the Commission communication describes as grounds for not acknowledging the agreement). Others still may concern areas or subjects where there is already pre-existing legislation and where the agreement enables it to be implemented more effectively.

2.10. Proposal 4: Acknowledgement procedures. Articulate the instruments for acknowledgement of voluntary agreements as follows:

- Exchange of letters between the European Commission and the stakeholders proposing the voluntary agreement. Applicable to voluntary agreements where there is neither pre-existing legislation nor an immediate interest on the part of the Commission in introducing legislation. This recognition would in no way affect award of the eco-label or EMAS certification, or confer any advantage with regard to the award of public contracts.

- Formal acknowledgement of a voluntary agreement by the European Commission. In cases where the Commission considers that all criteria have been fulfilled, including the ability to replace planned legislation, at least on a temporary basis. Under certain conditions, acknowledgement of this kind could affect award of the eco-label, EMAS certification and, possibly, could confer an advantage with regard to the award of public contracts.

- Coregulation procedure. Applicable in cases where legislation already exists, as a means of improving its implementation at national level and making it more flexible, and thus as a step on from those voluntary agreements where a formal Commission recommendation has been issued and where the agreement in question has failed to reach the proposed objectives in a satisfactory manner.

2.11. The Committee considers that the added value for the environment of any potential voluntary agreement must be taken into account, provided that the criteria for representativeness and effective monitoring and reporting systems are met. Likewise, the three available instruments would have to be adapted to these situations, so as to ensure in all cases that voluntary agreements at Community level benefit both stakeholders and the public.

2.12. Proposal 5: Criteria for the internal operation of voluntary agreements. Make a fair distribution of effort and an automatic internal penalty system for participants who commit serious and repeated breaches of the agreement conditions for acknowledgement of such agreements.

2.13. Remove the requirement for cost-effective administration from proposed voluntary agreements on the grounds that it is restrictive, and introduce tighter criteria on monitoring and dissemination of results. In this way internal management of the voluntary agreements would become automatic, with maximum guarantees of external evaluation of fulfilment, and the work of the Community institutions (the Commission and, possibly, the European Environment Agency) would be minimised.

2.14. Proposal 6: Criteria for approval. Support the urgent publication of a European Parliament and Council recommendation laying down precise, detailed criteria that voluntary agreements must meet before approval will be granted. These should cover such aspects as the monitoring of the objectives to be achieved, verification by a recognised independent body and publication of results, in particular in the case of agreements which are the subject of a formal recommendation or coregulation. Particular emphasis should be placed on the administrative self-sufficiency of the agreements so as to ensure that the Community institutions are not involved in verification.

2.15. Compatibility between these voluntary agreements and Community competition law must be made clearer, since in some cases voluntary agreements may involve joint action on technological matters, the exchange of confidential information or even joint public information activities, which, as the communication notes, may involve certain tax benefits. In view of this, it seems appropriate to insist that such voluntary agreements comply with the "Guidelines on the Applicability of Article 81 of the EC Treaty to Horizontal Cooperation Agreements."(4)

2.16. Proposal 7: Relation to Community competition law. The European Commission must insist that such agreements respect these guidelines, in order to ensure that they are in compliance with Community competition law during negotiations within sectors or specific to the agreement in question. These guidelines would not preclude the possibility of action by the Commission where a clear breach of competition law has occurred.

2.17. The procedures described in the communication, which provide for the possibility of participation by the European Parliament and the Council in the non-legislative phase of a formal recommendation, make the process extremely complex and costly. This could have a very damaging impact on cost-efficiency for partners in the voluntary agreement, and may thwart the good intentions expressed in the Commission communication.

2.18. Proposal 8: Written acknowledgement procedure. The public information criteria for voluntary agreements whose sole final objective is written acknowledgement of their existence by the Commission (through an exchange of letters) could be confined to publication of the project in the EC's Official Journal and creation of a web page to allow for suggestions on the project, which the partners could subsequently incorporate if they so wish. In all other respects, they must comply with all the same requirements as agreements which are the subject of a formal recommendation process.

2.19. Proposal 9: Formal recommendation procedure. With regard to public information, voluntary agreements which are the subject of a Commission recommendation must comply with the requirements described above, but the partners must also inform the Commission of the suggestions received and, where relevant, their reasons for not including them in the final draft voluntary agreement. The Commission will examine in detail the comments received and the stance taken before it makes the formal recommendation. This would go some way towards compensating for the fact that the Commission is not involved in negotiating voluntary agreements prior to approval. The Committee does not consider it necessary for the European Parliament and Council to be involved in the approval process, given that acknowledgement of these voluntary agreements has no direct legal effect.

2.20. Proposal 10: Coregulation procedure. In the case of voluntary agreements which are drawn up under the coregulation process, with the involvement of the European Parliament and the Council, when the proposal for a legislative act (by definition a directive) is made, it must be made clear which aspects are to be regulated directly by the directive and which are the subject of a request for a voluntary agreement between stakeholders for the purposes of implementing certain measures designed to achieve the objectives of the directive. Given the voluntary nature of the agreements, additional measures would be needed for those individual cases where the parties concerned directly by the directive do not wish to participate in a voluntary agreement at Community level.

Brussels, 18 September 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) COM(1996) 561 final.

(2) COM(2002) 278 final.

(3) COM(2002) 276 final.

(4) OJ C 3, 6.1.2001, p. 2.