COMMISSION STAFF WORKING PAPER Fourth - Annual Survey on the implementation and enforcement of Community environmental law - 2002

Foreword

The Commission continues to receive a high number of complaints from the general public and non-governmental organisations concerning non-compliance with Community environmental law. Such complaints often take the form of written questions and petitions in the European Parliament. This reflects the concern of European citizens about the state of environment and the "green record" of their Member States. This survey shows that these concerns are justified: there is a difficulty in the timely and correct implementation as well as proper application of Community environmental law by Member States.

As Commissioner responsible for the environment, I have a particular interest to see that the implementation gap of Community environmental law is improved. This is particularly important in view of the enlargement in order to ensure that new Member States transpose and implement correctly the "acquis communautaire" within the agreed timeframes. In line with the Communication on the better monitoring of application of Community law [1], implementation must be improved not only by taking Member States to the European Court of Justice, but also by developing new working methods with Member States at all stages of the implementation life cycle. I also expect that the full implementation of the Aarhus Convention [2] will improve the access to justice in Member States and thus also facilitate the handling of complaints by the Commission.

[1] COM(2002)725 final, 13.12.2002.

[2] UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

The Commission has already taken a number of practical steps to assist Member States in the implementation of Community environmental law. These include, inter alia, the use of guidelines and interpretative texts agreed by the Commission and the Member States when legislation has been adopted. I would also like to emphasise the need to improve transparency and awareness of the state of implementation of Community environmental legislation. It is important to inform the public about the compliance record of each Member State.

This is why I welcome in particular this Fourth Annual Survey, which covers the year 2002. It follows on from the First Annual Survey (1996/1997) [3], the Second Annual Survey (1998/1999) [4] and the Third Annual Survey (2000/2001) [5] by providing up-to-date information on the state of application of Community environmental law. This is in response to the Commission Communication on implementing Community environmental law [6] and in response to the Resolutions of the Council [7] and European Parliament.

[3] SEC(1999) 592, 27.4.1999.

[4] SEC(2000) 1219, 13.7.2000.

[5] SEC(2002) 1041, 1.10.2002.

[6] COM(96) 500 final, 22.10.1996.

[7] OJ C 321, 22.10.1997, p. 1.

I believe that the publication of this survey will provide Member States with a useful source of information and that it will make them even more committed than they already are to ensuring the full, timely and correct implementation of Community environmental law.

Margot Wallström

Member of the Commission

TABLE OF CONTENTS

Foreword

CHAPTER I: IMPLEMENTATION OF COMMUNITY ENVIRONMENTAL LAW IN 2002

1. Freedom of access to information

2. Environmental impact assessment

3. Air

4. Water

5. Nature

6. Noise

7. Chemicals and biotechnology

8. Waste

9. Environment and industry

10. Radiation protection

CHAPTER II: IMPEL (EUROPEAN UNION NETWORK FOR THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW)

1. Background

2. IMPEL's Activities

3. Legal base

4. Participation of other countries

4.1. Co-operation with AC-IMPEL

4.2. Merger of IMPEL and AC-IMPEL

4.3. Other European countries (EEA)

5. Co-operation with other networks

5.1. INECE

5.2. NISECEN and BERCEN

6. IMPEL reports adopted in 2002

7. Work projects and budget during 2002

8. Conclusions and outlook for the future

CHAPTER III: DETAILS OF MEMBER STATES' TRANSPOSING MEASURES COMMUNICATED FOR COMMUNITY DIRECTIVES TO BE TRANSPOSED DURING THE PERIOD COVERED BY THE SURVEY (Notifications received by 31 December 2002)

ANNEX: SCOREBOARD PER MEMBER STATE AND SECTOR SHOWING THE NUMBER OF NON-COMMUNICATION, NON-CONFORMITY AND HORIZONTAL BAD APPLICATION CASES

Table 1: Non-communication cases (31/12/2002)

Table 2: Non-conformity cases (31/12/2002)

Table 3: Bad application: "Horizontal" cases (31/12/2002)

CHAPTER I IMPLEMENTATION OF COMMUNITY ENVIRONMENTAL LAW IN 2002

The last five years have seen a growing difficulty in the timely and correct implementation as well as proper practical application of EC environmental legislation. This is reflected in the number of complaints received and infringement cases opened by the Commission every year. As in the earlier years, in 2002 the environment sector covered over one third of all infringement cases investigated by the Commission. The Commission brought 65 cases against Member States before the Court of Justice and issued 137 reasoned opinions on the basis of Article 226 of the EC Treaty.

The number of new complaints, which mainly refer to presumed instances of bad application of EC environmental law, remains at the high level experienced after 1996 when the Commission adopted the Communication "Implementing EC environmental law" [8]. In 2002, 555 new complaints alleging breach of Community environmental law were lodged with the Commission. A considerable number of these complaints give also rise to written questions and petitions in the European Parliament.

[8] COM(96)500 final, 22.10.1996.

The Article 228 procedure, which may lead to a pecuniary sanction, has continued to serve as a last resort to force Member States to comply with the judgements delivered by the European Court of Justice. The Commission annually issues several (17 in 2002) letters of formal notice and reasoned opinions (8 in 2002) under Article 228 to Member States. No new cases under Article 228 were brought to the Court during 2002. More details are given in Annex V to this report.

It is essential that the implementation of environmental legislation by Member States is improved. However, seeking improved implementation by taking Member States to the European Court of Justice is not the only, nor often the most efficient way to resolve the current problem. A substantial improvement will require efforts by the Commission to develop new working methods with Member States at all stages of the implementation life cycle. This is particularly relevant in the build up to enlargement in order to ensure that new Member States transpose and implement correctly the "acquis communautaire" within the agreed timeframes.

In line with the Communication on better monitoring of application of Community law [9], the Commission is already taking a number of practical steps to assist Member States in the implementation of EC environmental legislation:

[9] COM(2002)725 final, 13.12.2002.

- The Commission strives to anticipate implementation problems when it is designing Community environmental legislation which has to be drafted in a way to make it "enforcement friendly". When the legislation has been adopted, the use of guidelines and interpretative texts agreed by the Commission and the Member States can be helpful. For example, the Commission publishes reference documents on best available techniques under Council Directive 96/61 on the integrated pollution and prevention control. These documents are prepared with active involvement of authorities, industries concerned and other stakeholders. Another example is the Water Framework Directive [10] 2000/60/EC, where the Commission in partnership with the Member States has started a support process for the implementation immediately after the adoption of the Directive. Such a common implementation strategy is one example on how good governance can work in practice.

[10] OJ L 327, 22.12.2000, p.1.

- In order to increase efficiency and enhance effectiveness of implementation of environmental legislation, there is a need to apply pro-active measures by bilateral contacts and meetings between the Commission and Member States. Several seminars were held in 2002 at some Member States where the Commission's views on the correct implementation of particularly complex environmental directives was explained to the competent authorities with a view to prevent, rather than correct, instances of bad application. This approach has been confirmed by the Commission in its above mentioned Communication on better monitoring of application of Community law.

- Information exchange between implementing authorities is a key to improving implementation. The informal EU network for the Implementation of Environmental Law (IMPEL) consisting of the Commission and the Member States has been since its inception in 1992, a key instrument to discuss the stage of practical application of existing legislation. In order to improve the environmental standards of inspection, the Commission follows up closely the implementation of the Recommendation of the European Parliament and the Council on Minimum Criteria for Environmental Inspections (2001/331/EC).

In addition, the following measures are expected to give incentives to Member States to the better implementation of EC environmental legislation:

- Programmes and projects can only be funded if they comply with Community policies and instruments including those for environment and sustainable development. In this way Structural Funds can be a lever for implementation of EC environmental legislation.

- There is a need to improve transparency and awareness on the state of implementation of EC environmental legislation. To this end, as did the Third Annual Survey on the implementation and enforcement of Community environmental law [11], this Fourth Annual Survey includes a Scoreboard, which details the implementation record of each Member State in each sector of the environment. The Commission has organised "Name, Shame and Fame" events during 2000-2002 to provide information on the implementation performance of Member States.

[11] Commission staff working paper, SEC(2002) 1041, 1.10.2002.

- Effective reporting from Member States on implementation of environmental legislation is key to monitoring the implementation process. The Commission is presently reviewing the current system of environmental reporting. One of the objectives is to ensure more coherent and effective reporting on implementation of environmental legislation.

- The relatively high number of complaints received by the Commission reflects the non-existence and/or the relative lack of efficiency of complaint mechanisms in Member States. The Commission is preparing measures on the Community level concerning the possibility of creating cheaper and more efficient access to justice at Member State level in line with the Århus Convention [12], as well as the establishment of reliable national/regional complaint mechanisms and arbitration schemes to solve problems of practical application on the ground.

[12] UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

- The Commission adopted a proposal for a Directive on environmental liability with regard to the prevention and remedying of environmental damage. The proposed Directive should contribute to the better implementation of EC environmental legislation, acting as a disincentive to pollution.

- Non-observance of environmental law shows that the sanctions currently established by the Member States are not sufficient to achieve full compliance with Community law. The Commission has proposed a Directive that requires the Member States to provide for criminal sanctions because only this type of measure seems adequate and dissuasive enough to achieve proper implementation of environmental law [13].

[13] Amended proposal for a Directive of the European Parliament and of the Council on the Protection of the Environment through Criminal Law, OJ C 20 E, 28.1.2003, p.284. See also Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law OJ L 029 , 5.2.2003, p.55.

1. Freedom of access to information

As regards Directive 90/313/EEC on freedom of access to information on the environment, the Commission dealt with two non-conformity cases during 2002. The Commission continued court proceedings against France (Case C-233/00), since the French measures did not ensure formal, explicit and correct transposition of several aspects of the Directive, including the obligation to provide a formal explanation of refusal of access to the information. On the other hand, court proceedings against Austria (Case C-86/01) were withdrawn after that Member State had communicated the necessary transposition measures for the Land Styria.

Among the most common subjects of complaint brought to the Commission's notice relating to this Directive are: refusal by national authorities to provide the information requested, slowness of response, excessively broad interpretation by national government departments of the exceptions to the principle of disclosure, and unreasonably high charges. Directive 90/313/EEC contains a requirement for Member States to put in place national remedies against the improper rejection or ignoring of requests for access to information or an unsatisfactory response by the authorities to such requests. When the Commission receives complaints about such cases, it normally advises the aggrieved parties to use the national channels of appeal established to allow the Directive's aims to be achieved in practice.

On 16 and 18 November 2002, Parliament and Council adopted a new directive on public access to environmental information [14]. This Directive replaces the Directive 90/313/EEC, corrects the perceived shortcomings in its application in practice and brings it into line with developments in information and communications technology. It includes in particular information on genetically modified organisms as far as they are relevant for the contamination of the food chain. This issue was addressed in a preliminary reference to the Court of Justice where Advocate General Tizzano has advised the Court that such information should not be considered environmental information under Directive 90/313/EEC (Opinion of 5 December 2002 in case C-316/01).

[14] Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC OJ L 041, 14.02.2003, p. 26.

2. Environmental impact assessment

Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11/EC, is one of the prime legal instruments for general environmental matters. The Directive requires environmental issues to be taken into account in many decisions which have a general impact.

The deadline for transposition of Directive 97/11/EC which amends Directive 85/337/EEC was 14 March 1999. During 2002, the Court condemned the remaining three Member States who still have not brought into force, within the prescribed period, the legislation necessary to comply with Directive 97/11/EC (Case C-366/00 concerning Luxembourg, Case C-319/01 concerning Belgium and Case C-348/01 concerning France). The non-communication case against Greece (Case C-374/00) could be withdrawn from the Court after that Member State had communicated the necessary legislation.

Problems with the conformity of national measures with Directive 85/337/EEC have persisted. Most notably, the Commission decided to bring Ireland to the Court under Article 228 of the Treaty for not complying with the prior judgment as regards proper transposition of Article 4(2) relating to projects falling within points 1(d) and 2(a) of Annex II to Directive 85/337/EEC, and only partly transposing Article 2(3), (5) and (7) (Case C-392/96). The Court condemned Spain for failing to adopt legislation to comply with Articles 2(1) and 4(2), in conjunction with Annex II, of the Directive (Case C-474/99).

As already mentioned in previous Reports on Monitoring of the Application of Community Law, many complaints received by the Commission as well as oral and written questions tabled by the European Parliament and a large number of petitions presented to Parliament relate, at least incidentally, to alleged instances of incorrect application by Member States' authorities of Directive 85/337/EEC, in particular in cases concerning projects of the types listed in Annex II to the Directive. These complaints often require the examination of whether Member States have exceeded their margin of discretion in deciding whether or not such projects should be subject to an environmental impact assessment. As regards complaints about the quality of impact assessments and the lack of weight given to them, it is extremely difficult for the Commission to assess these cases. The basically formal nature of the Directive provides only a limited basis for contesting the merits of such assessments and the choice taken by the national authorities if they have complied with the procedure laid down by the Directive. Most of the cases brought to Commission's attention concerning incorrect application of this Directive revolve around points of fact where the most effective evaluation should rather be ensured at a decentralised level, particularly through the competent national administrative and judicial bodies.

Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment was adopted on 27 June 2001 [15]. Member States must bring into force the national rules necessary to comply with this Directive before 21 July 2004. While Directive 85/337/EEC applies to projects, this new "strategic environmental assessment" Directive of a procedural nature aims to ensure that an environmental assessment is carried out for certain plans and programmes which are likely to have significant effects on the environment.

[15] OJ L 197, 21.7.2001, p. 30.

3. Air

Council Directive 96/62/EC on ambient air quality assessment and management forms the basis for a series of Community instruments to set new limit values for atmospheric pollutants, starting with those already covered by existing directives, lay down information and alert thresholds, harmonise air quality assessment methods and improve air quality management in order to protect human health and ecosystems.

Apart from its Article 3, the Directive had to be transposed by 19 July 2001. During 2002, the Commission was able to close all infringement procedures opened for non-communication of national implementing measures for those articles.

A relatively big amount of legislation has been adopted in the air sector recently. Nine Directives [16] were to be transposed by Member States during 2001 and 2002. A number of infringement cases concerning non-communication of national implementing measures under these directives had to be opened.

[16] Directive 1998/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC, Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations, Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air, Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC, Directive 1999/94/EC of the European Parliament and of the Council of 13 December 1999 relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars, Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air, Commission Directive 2001/63/EC of 17 August 2001 adapting to technical progress Directive 97/68/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery, Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants.

During 2002, the Commission also opened a number of horizontal infringement proceedings for failure to report information on progress made in controlling substances that damage the ozone layer [17].

[17] Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, OJ L 244, 29.9.2000, p. 1.

Infringement action was taken due to problems of non-conformity in the air sector in a small number of cases.

4. Water

Monitoring implementation of Community legislation on water quality remains an important part of the Commission's work. This is due to the quantitative and qualitative importance of the responsibilities imposed on the Member States by Community law and by growing public concern about water quality.

In 2002, France replied to the letter of formal notice submitted on the basis of Article 228 of the EC Treaty for non-compliance with the judgment of 8 March 2001 (Case C-266/99). In that judgment, the Court of Justice declared that, by failing to take the necessary measures to ensure that the quality of surface water intended for the abstraction of drinking water conforms to the values laid down pursuant to Article 3 of Directive 75/440/EEC, France has failed to fulfil its obligations under Article 4 of that directive.

With regard to Directive 76/160/EEC concerning the quality of bathing water, monitoring of bathing areas is becoming increasingly common and water quality is improving. Despite this progress, however, proceedings concerning bad application are still under way against many Member States since implementation still falls far short of the Directive's requirements. An overview of the stage reached in infringement proceedings in these cases is given in Annex IV, Part 4. Most notably, by judgment of 19 March 2002, the Court condemned the Netherlands (Case C-268/00) for failing to fulfil its obligations as regards the quality of bathing water and the frequency of sampling thereof within the periods prescribed by the Directive. During 2002, the Commission also took several decisions under Article 228 for non-compliance with recent judgments of the Court concerning the bathing water quality (cases concerning Germany, Belgium and Sweden).

More information concerning the compliance with the parameters of water quality and sampling frequency of Directive 76/160/EEC is also provided by the annual reports on the quality of bathing water [18].

[18] The reports are available under http://europa.eu.int/water/water-bathing/ index_en.html

The Commission has continued proceedings under Article 228 against a number of Member States for not complying with earlier judgments of the Court over their bad application of Directive 76/464/EEC on dangerous substances discharged into the aquatic environment and of the directives setting levels for individual substances, particularly concerning adoption of programmes under Article 7 of the Directive. However, the case concerning Germany could be closed during 2002 since that Member State had taken the necessary measures to comply with the earlier judgement of the Court.

Further to the presentation of a guidance document on this issue in 2000, the Commission focused on supporting the implementation of the existing Directive 76/464/EEC and in particular Article 7 on the pollution reduction programmes and the transition to Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy [19]. An implementation report [20] has been published which built on the guidance document and translated the establishment of pollution reduction programmes into the requirements and approaches of Directive 2000/60/EC. The report found that, first, the infringement procedures improved considerably the compliance with this legislation and thereby improved water quality and, second, the establishment of pollution reduction programmes under Directive 76/464/EEC can be regarded as a building block for the implementation of the Water Framework Directive, in particular the programme of measures under Article 11.

[19] OJ L 327 , 22.12.2000, p.1.

[20] The report is available under http://europa.eu.int/comm/environment/ water/water-dangersub/article7ofdirective77464eec.pdf

Concerning Directive 80/778/EEC relating to the quality of water intended for human consumption (drinking water), the Commission initiated and continued a small number of infringement cases relating to bad application of the Directive, particularly concerning poor quality of drinking water. By judgment of 14 November 2002, the Court condemned Ireland for failure, in its implementing legislation, to reflect the binding character of the requirements of Annex I to the Directive in relation to group water supplies, and for failure to ensure compliance with certain microbiological parameters of Annex I to the Directive (Case C-316/00).

Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, which will replace Directive 80/778/EEC from 2003 [21], was due to be transposed into national law by 25 December 2000. The Commission was able to close the most infringement cases for non-communication of implementing measures for this Directive, but in three cases (Belgium, Spain and the United Kingdom) the Commission has taken the decision to bring proceeding in the Court.

[21] OJ L 330, 5.12.1998, p. 32.

The Community has two legislative instruments aimed specifically at combating pollution from phosphates and nitrates and the eutrophication they cause.

The first, Directive 91/271/EEC, concerns urban waste-water treatment. Member States are required to ensure that, from 1998, 2000 or 2005, depending on population size, all cities have waste-water collection and treatment systems. Since this Directive plays a fundamental role in the campaign for clean water and against eutrophication, the Commission is particularly eager to ensure that it is implemented on time [22]. During 2002, action in several cases of bad application were taken due to insufficient designation of sensitive areas or non-compliance with the requirements for urban waste water treatment. The Commission also sent a letter of formal notice to several Member States for the lack of a general implementation report and of information on sensitive areas.

[22] The implementation report for this directive is available under http://europa.eu.int/comm/environment/ water/water-urbanwaste/report2/report.html

The second anti-eutrophication measure is Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources. The Commission has continued to lay great stress on enforcing this Directive [23]. During 2002, the Commission took action over bad application of the Directive by a number of Member States concerning lacking or insufficient designation of vulnerable zones as well as the failure to establish action programmes as required by the Directive. Two of these cases were decided by the Court in 2002 (Case C-258/00 against France and Case C-161/00 against Germany). Regrettably, in many cases, the Commission has had to open infringement procedures under Article 228 in order to make Member States to comply with judgments given earlier by the Court.

[23] The implementation report for this directive is available under http://europa.eu.int/comm/environment/ water/water-nitrates/report.html

Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy [24] is due to be transposed by 22 December 2003. In May 2001, a Common Implementation Strategy [25] was agreed which involves all national, regional and local authorities of Member States, EEA countries, Accession Countries and various stakeholders and NGOs. The strategy includes a large number of joint activities including the development of guidance, the testing of implementation aspects in pilot river basins and the sharing of knowledge and information. So far, nine guidance documents and several technical reports have emerged from this process [26]. In addition, an extensive European implementation network has been established. The process will continue over the coming years.

[24] OJ L 327, 22.12.2000, p.1.

[25] More information under http://europa.eu.int/comm/environment/ water/water-framework/implementation.html

[26] More information under http://forum.europa.eu.int/Members/irc/ env/wfd/library

5. Nature

The two main legal instruments aimed at protecting 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 fauna and flora.

Regarding the transposal of Directive 79/409/EEC, a small number conformity problems remain unresolved. In 2002, the Commission had to continue infringement actions against some Member States, notably concerning hunting periods and hunting practices not in line with the Directive.

The deadline for notifying the implementing measures for Directive 92/43/EEC expired in June 1994. In many cases the transposal is still insufficient, particularly concerning Article 6 on the protection of habitats in the special conservation sites which are to be set up, and Articles 12 to 16 on the protection of species. In its judgment of 5 December 2002, the Court held that by failing to adopt all the laws, regulations and administrative measures necessary to ensure the full and proper transposition of several Articles of the Directive, Belgium has failed to fulfil its obligations under the Directive (Case C-324/01).

As in the past, the main problems with the implementation of Directives 79/409/EEC and 92/43/EEC relate to its bad application, namely the insufficient classification of special protection areas (SPA) for birds and the insufficient selection of the proposed sites of Community importance (SCI) for habitats for inclusion in the Natura 2000 network, or to the protection of such sites.

Existing SPAs for birds in a number of Member States are still too few in number or cover too small an area. The Commission's strategy revolves around initiating general infringement proceedings, rather than infringement proceedings on a site-by-site basis. By its judgment of 26 November 2002, the Court declared that France has failed to comply with its obligations under Article 4(1) and (2) of Directive 79/409/EEC by not in sufficient measure classifying as special protection areas the territories most suitable for the conservation of the species of wild bird referred to in Annex I to the Directive, and of migratory species, and, in particular, by not classifying a sufficiently large area of the site Plaine des Maures as a special protection area (Case C-202/01). As regards SCI's, the Commission continued infringement proceedings against several Member States whose selection of sites is either not satisfactory or is under assessment subject to the results of biogeographical seminars. In a number of these cases, the Commission had to start infringement proceedings under Article 228 to make the Member States comply with the earlier judgments of the Commission.

Problems remain concerning the special protection regime under Article 4(4) of Directive 79/409/EEC and Article 6(2) to (4) of Directive 92/43/EEC, e.g. wrongly applying or setting aside the special protection regime in relation to various projects affecting sites. In this respect, infringement actions against a number of Member States had to be taken in the course of 2002. Most notably, by its judgment of 13 June 2002, the Court found that Ireland has breached Article 3 of Directive 79/409/EEC and Article 6(2) of Directive 92/43/EEC by failing to take measures necessary to safeguard a sufficient diversity and area of habitats for the Red Grouse and by failing to take appropriate steps to avoid, in a certain special protection area (SPA), the deterioration of habitats of the species for which the SPA was designated (Case C-117/00). The case arose as a result of an investigation of complaints about the widespread vegetation loss and erosion caused by the overstocking of sheep on fragile upland habitats in the west of Ireland. This judgment is the first case in which the Court has condemned a Member State for the breach of Article 3 of Directive 79/409/EEC.

During 2002, the Commission continued setting conditions in Structural Funds plans and programmes and rural development programmes requiring Member States to submit outstanding lists for the setting up of the Natura 2000 network in accordance with their obligations under Directives 79/409/EEC and 92/43/EEC.

The Commission has maintained its strict policy with regard to the granting of Community funding for conservation of sites under the LIFE Regulation on sites being integrated or already integrated into the Natura 2000 network. Furthermore, it scrutinises requests for co-financing from the Cohesion Fund very thoroughly for compliance with environmental regulations. The same applies to various pre-accession funding mechanisms concerning the candidate countries.

Problems with the implementation of Directive 92/43/EEC may also arise with regard to the protection, not of designated or nominated sites, but of species. Article 12 of the Directive establishes a strict protection scheme for species under Annex IV (a), from which Member States can derogate only under the conditions laid down in Article 16(1) and (2).

In its judgment of 20 January 2002, the Court held that Greece has breached Article 12(1)(b) and (c) by failing to take, within the prescribed time-limit, the requisite measures to establish and implement an effective system of strict protection for the sea turtle Caretta caretta on Zakinthos so as to avoid any disturbance of the species during its breeding period and any activity which might bring about deterioration or destruction of its breeding sites (Case C-103/00). This is the first judgment of the European Court of Justice related to Article 12 of the Directive. It underlines the necessity to establish and implement an effective system of strict protection for species listed in Annex IV (a) and interprets the term 'deliberate'. A similar case against the United Kingdom for its failure to ensure the proper protection of the great crested newt (Triturus cristatus) is pending (Case C-434/01).

6. Noise

Directive 2000/14/EC of the European Parliament and of the Council on the approximation of laws of the Member States relating to noise emission in the environment by equipment for use outdoors [27] was due to be transposed in 3 July 2001. This directive repeals, from 3 January 2002, nine directives concerning different types of equipment. The Commission decided to bring to the Court three Member States who still had not yet adopted and notified their implementing measures, or had not done so for the whole of their territory. These Member States are Italy, Greece and the United Kingdom as far as Gibraltar is concerned.

[27] OJ L 162, 3.7.2000, p. 1.

7. Chemicals and biotechnology

Community legislation on chemicals and biotechnology covers various groups of directives relating to products or activities which have certain characteristics in common: they are technically complex, require frequent changes to adapt them to new knowledge, apply to both the scientific and industrial spheres and deal with risks for human health and environment.

One of the features of Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances is the frequency with which it has to be amended to keep up with scientific and technical developments. Commission Directive 2001/59/EC adapting Directive 67/548/EEC to technical progress for the 28th time, had to be transposed by 31 July 2002. In this context, Member States are still frequently late in notifying their implementing measures. In such cases, the Commission rigorously commences proceedings for non-communication to make Member States meet their obligations.

Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing on the market of biocidal products [28] was due to be transposed by the Member States by no later than 14 May 2000. At the end of 2002, there were still a few Member States who had not yet notified their implementing measures.

[28] OJ L 123, 24.4.1998, p. 1.

Animal experiments are covered by Directive 86/609/EEC on the approximation of laws, regulations and administrative provisions of the Member States regarding the protection of animals used for experimental and other scientific purposes. Certain problems with the conformity of the Directive persist. The Commission issued a reasoned opinion under Article 228 to Ireland for not complying with the Court's judgment of 18 October 2001, to the effect that Ireland has failed to adopt all the measures necessary to ensure the correct implementation of Articles 2(d), 11 and 12 of the Directive as well as to provide for an adequate system of penalties for non-compliance with the requirements of the Directive (Case C-354/99). In its judgment of 12 September 2002, the Court found that France had not correctly transposed Articles 4, 7(3), 11, 12(2), 18(1) and (3) and 22(1) of the Directive (Case C-152/00). The Advocate-General proposed in his Opinion of 26 September 2002 that the Court declares that the Netherlands has not transposed Article 11 and 22(1) of the Directive (Case C-205/01). Infringement actions against Spain and Belgium for bad application of the Directive were continued.

A new Directive revising the original framework for regulating the release of GMOs in the Community [29] had to be transposed into national law by 17 October 2002. The original regulatory framework, which was established by the 1990 Directive [30], was established in response to concerns that the release of GMOs might lead to irreversible damage to the environment. A 1996 review identified several aspects of the original framework that needed clarification and improvement. As a result, Directive 90/220/EEC was revised and replaced by Directive 2001/18/EC. The revised Directive maintains the structure of the old directive, but improves the strictness and transparency of the provisions, notably creating a more effective and efficient authorisation procedure. Infringement cases for non-communication of transposal measures were opened against fourteen Member States who had failed to meet the deadline of 17 October 2002.

[29] Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC.

[30] Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms.

8. Waste

The Waste Framework Directive (Directive 75/442/EEC, as amended by Directive 91/156/EEC) requires that prior authorisation be obtained for waste-disposal and waste-recovery sites; in the case of waste-disposal, the authorisation must lay down conditions to contain the environmental impact. Member States still have problems in fully and correctly implementing its provisions into national law.

In 2002, the Commission took a number of infringement actions involving bad application of the Waste Framework Directive. Most of the implementation difficulties concern the application of the Waste Framework Directive to specific installations. This is at the root of the large number of complaints primarily concerned with local waste dumping problems (illegal landfills and/or uncontrolled treatment of waste, non-existent or insufficient environmental impact assessments, uncontrolled dumps, controversial siting of planned controlled tips, mismanagement of lawful tips, water pollution caused by directly discharged waste). The Commission uses individual cases to detect more general problems concerning incorrect application of Community law, such as the absence or inadequacy of waste management plans, based on the assumption that an illegal dump may provide evidence of an unsatisfied need for adequate waste management.

Another category of bad application of the waste legislation are cases concerning inadequate waste planning. They cover a range of failings, relating variously to plans as required by Article 7 of the Waste Framework Directive, plans for management of dangerous waste as required by Article 6 of Directive 91/689/EEC, and special plans for packaging waste, as required by Article 14 of Directive 94/62/EC. During 2002, the Court condemned three Member States for having breached Article 7(1) of the Waste Framework Directive, Article 6(1) of Directive 91/689/EEC and Article 14 of Directive 94/62/EC for insufficient waste management plans [31]. The Commission is following-up these cases under Article 228 in order to ensure compliance with the Court judgments.

[31] Case C-292/99 concerning France, Case C-35/00 concerning the United Kingdom and Case C-466/99 concerning Italy.

The case-law on the definition of waste under the Waste Framework Directive was confirmed and further developed by the preliminary ruling given by the Court in 18 April 2002 (Case C-9/00 Palin Granit). The Court held that the holder of leftover stone resulting from stone quarrying which is stored for an indefinite length of time to await possible use discards or intends to discard that leftover stone, which is accordingly to be classified as waste within the meaning of the Directive. The place of storage of leftover stone, its composition and the fact, even if proven, that the stone does not pose any real risk to human health or the environment are not relevant criteria for determining whether the stone is to be regarded as waste.

Directive 1999/31/EC on the landfill of waste [32] clarifies the legal framework in which landfill sites are authorised in the Member States. This Directive was to be transposed by 16 July 2001. For landfills coming into operation after, as well as those existing on, this date, requirements have been tightened by this Directive. By the end of 2002, several Member States still had not adopted and communicated their transposal measures to the Commission and the Commission had to start court proceedings.

[32] OJ L 182, 16.7.1999, p. 1.

Regarding Directive 91/689/EEC on hazardous waste, Member States still had problems in transposing the national legislation correctly. An overview of the stage of proceedings reached in these cases is given in Annex IV, Part 3. As regards the application of the Directive, the Commission had commenced infringement proceedings in 1998 against a number of Member States which had failed to provide the Commission with particular information required in relation to establishments or undertakings carrying out disposal and/or recovery of hazardous waste. In its judgment of 13 June 2002, the Court found that Greece has failed to send to the Commission, within the prescribed period, all the information required under Article 8(3) of the Directive (Case C-33/01).

Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles had to be transposed by Member States by 21 April 2002. By the end of 2002, the Commission had non-communication cases open against ten Member States who had not adopted and communicated their transposal measures to the Commission.

Regarding Directive 75/439/EEC on the disposal of waste oils, the Commission had opened in 2001 infringement proceedings against 11 Member States for the non-conformity and/or bad application of national legislation with several Articles of the Directive, particularly regarding the obligation to give priority to the processing of waste oils by regeneration, provided that technical, economic and organisational constraints so allowed. During 2002, the Commission continued infringement proceedings against France, Belgium, Ireland, the Netherlands, Finland, Denmark, and Sweden and decided to open court proceedings against Austria, Greece, the United Kingdom and Portugal.

With regard to the disposal of PCBs and PCTs, two particularly dangerous substances, Directive 96/59/EC stipulates that Member States shall draw up, within three years of its adoption, namely by 16 September 1999, plans for the decontamination and/or disposal of inventoried equipment and PCBs contained therein and outlines for the collection and subsequent disposal of certain equipment under Article 11 of the Directive, as well as inventories under Article 4(1) of the Directive. However, many Member States have still not communicated to the Commission the necessary measures. Thus, in 2002 the Court gave judgments against several Member States for the absence of the above information (Case C-174/01 concerning Luxembourg, Case C-46/01 concerning Italy, Case C-177/01 concerning France and Case C-47/01 concerning Spain).

As regards Directive 94/62/EC on packaging and packaging waste, two particular developments merit attention. The Commission continued the court action (Case C-463/01) against Germany concerning its packaging Ordinance (commonly referred to as the 'Töpfer' Ordinance), which promotes the re-use of packaging materials since the reuse quota as set up by the German Ordinance amounts to a barrier to trade and indirect discrimination of imported natural mineral waters to be filled at source. On the other hand, the Commission was able to withdraw the case opened earlier against Denmark (Case C-246/99) in relation to Denmark's so-called 'Can Ban', i.e. Danish legislation which bans the marketing of beer and carbonated drinks in metal cans and other types of non-reusable packaging. This was because Denmark repealed the legislation at issue.

9. Environment and industry

Directive 96/61/EC concerning integrated pollution prevention and control (IPPC), adopted on 24 September 1996, was due to be implemented by 30 October 1999. In the course of 2002, proceedings for non-communication of the transposition measures to the Commission still had to be continued against a few Member States. In 2002, the Court gave judgments against Spain, Greece and the United Kingdom for failure to adopt the laws, regulations and administrative measures necessary in order to comply with the Directive. Reasoned opinions were issued for Finland, Sweden and Austria for non-conformity of certain aspects of their national legislation with the Directive.

Directive 96/82/EC on the control of major accident hazards involving dangerous substances ("Seveso II"), replacing Directive 82/501/EEC from 3 February 2001 ("Seveso I"), was due to be transposed by no later than 3 February 1999. The notification of implementing measures by few Member States is still incomplete, particularly as regards Articles 11 and 12 of the Directive.

10. Radiation protection

Council Directive 96/29/Euratom, laying down basic safety standards for the health protection of the general public and workers against the dangers of ionising radiation (OJ L 159, 29.6.1996, p. 1), and Council Directive 97/43/Euratom on health protection of individuals against dangers of ionising radiation in relation to medical exposure (OJ L 180, 9.7.1997, p. 22), were to be transposed by May 2000. In December 2002, a majority of Member States had adopted transposing measures for both Directives, while some provisions were still missing in the United Kingdom and Denmark (for Directive 96/29) and in France (for both Directives).

In 2002 the Commission received five submissions of national draft legislation under Article 33 of the Euratom Treaty (one concerning Directive 92/3 on shipments of radioactive waste and four for transposing measures of the two Directives mentioned above). No formal recommendation was issued.

In accordance to Article 35 of the Euratom Treaty, the Commission carried out one verification in Portugal in order to check the facilities necessary for the continuous monitoring of the environmental level of radioactivity.

In 2002 the Commission received 9 submissions of general data relating to plans for the disposal of radioactive waste, under Article 37 of the Euratom Treaty, so that it could assess the data and determine whether the implementation of the plans was able to cause radioactive contamination of the water, soil or airspace of another Member State. The Commission issued 17 opinions.

The Commission dealt with a number of infringement procedures under Article 141 of the Euratom Treaty. It opened four new own initiative cases and received two complaints. It sent one reasoned opinion to the United Kingdom concerning the implementation of Directive 89/618, on the information of the population in case of radiological emergency. It decided to refer the UK to the Court because of the non-submission of data under Article 37 of the Treaty concerning the dismantling of the JASON research reactor. It also decided to refer Denmark to the Court because of the non-communication of all transposing measures for Directive 96/29.

In view of the progress made in the transposition of Directives 96/29 and 97/43, the Commission decided the closure of the procedures opened against the Netherlands and the withdrawal of the Court applications against Ireland and Portugal. This was also the case for Germany, in view of the adoption of new legislation concerning Directive 89/618.

CHAPTER II IMPEL (EUROPEAN UNION NETWORK FOR THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW)

1. Background

IMPEL is an informal network of the environmental authorities of the Member States and the Commission that has existed since 1992. It has as its primary objective to create the necessary impetus in the European Community to ensure a more effective application of environmental legislation.

Initially its main focus was the implementation and enforcement of environmental legislation, mainly as it affected large industrial processes. Since then it has gradually broadened the scope of its activities to cover other parts of the regulatory chain. The First Annual Survey gave a full description of the history of the network (paragraph 3.5.1, p.19). The Second Annual Survey described how the structure of IMPEL had developed up to June 1999 and how it had then been rationalised (paragraphs 4.2 and 4.3, pp 27-28). As a result, in place of the former standing committees and IMPEL Plenary Meetings there are bi-annual IMPEL meetings in addition to meetings held in connection with projects or clusters of projects. The Third Annual Survey looked at how IMPEL worked as a result of these changes and what it had been able to achieve. This Fourth Annual Survey looks at how IMPEL is working now and how it is preparing to ensure its continuing value and usefulness in the future.

2. IMPEL's Activities

The essence of the IMPEL network is its projects. As a general rule, the projects look at how legislation is currently applied and enforced and then good practice is defined.

The framework for IMPEL projects and activities is its multi-annual work programme. This programme aims at providing a structure for IMPEL's work for the years of 2002-2006. It is based on the 6th Environmental Action Programme with a particular focus on the Recommendation on Minimum Criteria for Environmental Inspections (2001/331/EC). The multi annual work programme will be used in a flexible way and it will be kept under regular review to ensure that it is in line with future priorities and developments.

The multi annual work programme can be found on the IMPEL website at http://europa.eu.int/comm/environment/ impel.

The adoption of the Recommendation of the European Parliament and the Council on Minimum Criteria for Environmental Inspections (2001/331/EC) in April 2001 has had a substantial impact on the work of IMPEL. This Recommendation itself drew heavily on work which had been done in previous IMPEL projects. It includes several tasks which IMPEL is specifically invited to undertake and it will be one of the principal features of IMPEL's work programme over the next few years.

IMPEL is already active in playing its part in the implementation of the Recommendation. IMPEL has developed a voluntary scheme for reporting and offering advice on inspectorates and inspection procedures. The potential benefits foreseen from such a scheme were:

- Encouragement of capacity-building in EU Member State inspectorates.

- Encouragement of further collaboration between EU Member State inspectorates on common issues or problems, on exchange of experience and on development and dissemination of good practice in environmental regulation.

- Provision of advice to inspectorates ("candidate inspectorates") who may be seeking an external view of their structure, operation or performance by trusted, knowledgeable and independent counterparts for the purpose of benchmarking and continuous improvement of their organisation.

- Spread of good practice leading to improved quality of inspectorates and inspections, and contributing to continuous improvement of quality and consistency of application of environmental law across the EU ("the level playing-field").

IMPEL has carried out five reviews of practices and procedures in environmental inspectorates already; the first in 2001 in Germany and in 2002 Ireland, Belgium, the Netherlands and France hosted a review. A further review is planned in Spain in February 2003.

The Recommendation 2001/331/EC on Minimum Criteria for Environmental Inspections also invites IMPEL to draw up minimum criteria concerning the qualifications of environmental inspectors. In 2002 IMPEL continued its project on Training and Qualifications for Inspectors. Experts participating in the project were asked to describe practices on inspector training and education in their Member States. The project identified which items are core topics or minimum criteria, which all inspectors should understand. A background study on entry qualifications that will illustrate the sorts of qualifications usually required is another main part of the project.

Under point VIII.1 of the Recommendation 2001/331/EC, Member States are asked to "report to the Commission on their experiences of the operation of this recommendation two years after its publication that is, by 27 April 2003, using to the extent possible any data available from regional and local inspecting authorities".

IMPEL has developed a Guidance Document to support the provision of this information and to assist Member States to respond to this request for information in a consistent manner. This Guidance Document is published on the IMPEL website.

3. Legal base

With the publication of the Decision No. 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the 6th Community Environmental Action Programme in the Official Journal of the European Communities on 10 September 2002 (OJ L 242/1) the IMPEL network has now a formal legal base.

Article 3 "Strategic Approaches to meet environmental objectives" has an explicit reference to IMPEL's work. Article 3.2 is about encouraging more effective implementation and enforcement of Community legislation on the environment, which requires, amongst other things:

- Promotion of improved standards of permitting, inspection, monitoring and enforcement by Member States; and

- Improved exchange of information on best practice on implementation including by the IMPEL network within the framework of its competencies.

4. Participation of other countries

4.1. Co-operation with AC-IMPEL

AC-IMPEL was established in January 1998 in Brussels, Belgium and is the sister network for the candidate countries and assists those countries in the implementation of the acquis communautaire and in capacity building.

In 2002 the main activities of the AC-IMPEL network have been

- the 8th AC-IMPEL Plenary Meeting and Exchange Programme for Inspectors in Latvia and

- the 9th AC-IMPEL Plenary Meeting and Exchange Programme for Inspectors in Lithuania.

AC-IMPEL participants have been participating in IMPEL projects, such as the Finnish project on energy efficiency, the Danish/Portuguese project on a management reference book for environmental inspectorates, Cluster 1 on Training and Exchange and the IMPEL Cluster on Transfrontier Shipment of Waste.

4.2. Merger of IMPEL and AC-IMPEL

Following the agreement in June 2001 to work more closely together, at the 19th IMPEL Meeting and 2nd Joint IMPEL/AC-IMPEL Meeting in Santiago de Compostela in June 2002 it was decided that the two networks would merge as from 1 January 2003. The merger of the two networks, IMPEL and AC-IMPEL, will ensure an increased exchange of experience among Member States and candidate countries. The AC-IMPEL countries will be full members of the IMPEL network. They will progressively phase in IMPEL projects but still have the possibility of carrying out projects of specific interest to them, as they have access as candidate countries to the funds earmarked for this purpose.

The 20th IMPEL and 1st Full Joint Meeting IMPEL/AC-IMPEL Meeting in Copenhagen in December 2002 agreed on the organisational structure and proceedings of the merged IMPEL network. It was decided that two representatives from the AC-IMPEL countries will participate in the IMPEL Troika in the future. The IMPEL Troika is composed of members of the previous, current and next Presidency and is responsible for setting up the agenda for IMPEL Plenary Meetings.

4.3. Other European countries (EEA)

The countries of the European Economic Area (EEA), that is Iceland, Liechtenstein and Norway, are invited to take part in working groups if their specific contribution is considered valuable. Norway takes part in the two clusters on Training and Exchange and Transfrontier Shipment of Waste. Norway was represented at the IMPEL Meetings in 2002 in Santiago de Compostela and Copenhagen.

At the same time as two networks IMPEL and AC-IMPEL merge , Norway will become a full member of the IMPEL network.

5. Co-operation with other networks

5.1. INECE

INECE is the International Network for Environmental Compliance and Enforcement. It began in 1985 and is now a major international network of over 2500 enforcement practitioners from governmental agencies, NGOs and international organisations.

In June 2002 the 6th INECE conference, entitled "Inaugurating a millennium of Implementation and Enforcement of Environmental Law" was held in San Jose, Costa Rica. This conference brought together over 170 environmental enforcement officials from government, international organisations, NGOs, and academia from over 80 countries and organisations.

For the first time, the 6th INECE Conference prepared a Conference Statement that was submitted to the World Summit on Sustainable Development in Johannesburg in 2002. In addition to the Conference Statement, the draft Strategic Plan was discussed.

This three-year Strategic Plan was adopted at the INECE Executive Planning Committee meeting, in Prague in October 2002 [33]. The Plan identifies a programme of work to implement INECE's mission and goals from November 2002 to October 2005.

[33] A complete copy of the Strategic Plan is available at: http:// www.inece.org

5.2. NISECEN and BERCEN

IMPEL has played an important role in the development of the Compliance and Enforcement Network of the Newly Independent States (NISECEN) and the Balkan Environmental Regulatory Compliance and Enforcement Network (BERCEN) and maintains close co-operation with them.

In 2002 the co-ordinators of the NISECEN and the BERCEN network participated in the two IMPEL Meetings in Santiago de Compostela and Copenhagen. It was agreed to strengthen the co-operation and collaboration among the networks further and that representatives from NISECEN and BERCEN should be invited to IMPEL projects and meetings on a case-by-case basis.

6. IMPEL reports adopted in 2002

Reports adopted by IMPEL in 2002 have included the following:

* IMPEL Guidance Document on the Point VIII of the Recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections

* IMPEL Review Initiative 3: Testing of the Review Scheme: Review in Ireland

* IMPEL Review Initiative 3: Testing of the Review Scheme: Review in Belgium

* Finnish report on Energy Efficiency in Environmental Permits

* Finnish Comparison Programme II - Self-monitoring and electronic reporting, pulp and paper production

* Report on Lessons Learnt from accidents, Seminar held in Reims in 2001.

These reports can be found on the IMPEL website at http://europa.eu.int/comm/environment/ impel/

7. Work projects and budget during 2002

Since 1997, IMPEL projects have generally been co-financed by the Commission and the Member State leading the project. The proportion of funding from the Commission has ranged from 50-80% though the Commission will only contribute towards eligible costs. This means, for instance, that Member States have to meet the full costs of employees in the public sector who work on IMPEL projects, a fact which should be borne in mind when looking at the investment made in IMPEL projects. The amount allocated to projects in 2002 was EUR250,000.

The emphasis of IMPEL's work continues to be on the implementation and enforcement of environmental legislation, mainly as it affects large industrial processes. Typically, the projects look at how legislation is currently applied and enforced and then good practice is defined. The project on Energy Efficiency in Environmental Permits has been one of the most important IPPC-related IMPEL projects so far and provided results which were particularly useful to the Commission.

The number and quality of the reports that IMPEL has produced in 2002 illustrates the success of the network in achieving its objectives. IMPEL has rapidly taken up the challenge presented by the Recommendation on Minimum Criteria for Environmental inspections and has already carried another two reviews in the series of reviews of inspectorates and inspection practices.

The website continues to be a great success and a very useful way for promoting IMPEL's activities. All of the reports adopted by IMPEL are on the website and this helps to ensure that they are available to a very wide audience.

8. Conclusions and outlook for the future

IMPEL is continuing to deliver work of high quality. The multi-annual work programme (with its emphasis on the Recommendation on Minimum Criteria for Environmental Inspections and the 6th Environmental Action Programme) gives a clear focus to the work of the network and helps to ensure that its activities continue to be of high value and usefulness.

The merger of the two networks, IMPEL and AC-IMPEL will raise the profile of the environment in future Member States and candidate countries and accelerate the approximation of the acquis in those countries. The IMPEL work programme for 2003 includes a number of priority activities that can help prepare the ground for implementation in the future Member States and candidate countries. The merger will also result in a better liaison between the Member States and the future Member States and candidate countries.

CHAPTER III DETAILS OF MEMBER STATES' TRANSPOSING MEASURES COMMUNICATED FOR COMMUNITY DIRECTIVES TO BE TRANSPOSED DURING THE PERIOD COVERED BY THE SURVEY (Notifications received by 31 December 2002)

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ANNEX SCOREBOARD PER MEMBER STATE AND SECTOR SHOWING THE NUMBER OF NON-COMMUNICATION, NON-CONFORMITY AND HORIZONTAL BAD APPLICATION CASES

The Scoreboard builds upon the following typology of infringement cases:

- Non-communication (Table 1) = Member State fails to adopt the measures (national laws, regulations and administrative provisions) to transpose Directives and to communicate them to the Commission in prescribed time limit.

- Non-conformity (Table 2) = Member State transposition measures are not in conformity with the Directive.

- Horizontal bad application (Table 3) = Member State fails to implement certain derived or secondary obligations contained in the Community acts, such as setting out plans, classifying sites and designating areas, adopting programmes, submitting monitoring data, reporting etc.

Non-communication

The Commission automatically opens an infringement procedure for non-communication if a Member State has not adopted the national measures to transpose the Directive in a prescribed deadline. Non-communication may be either total, i.e. a Directive has not been transposed at all, or partial, i.e. only certain provisions of the Directive have been transposed and/or transposal measures do not cover the whole territory of a Member State. When transposition is complete, the Commission closes the infringement procedure.

Table 1 shows that Member States are regularly late in communicating their transposal measures for Community environmental Directives. Thus, the number of non-communication cases at the end of 2002 tends to follow the number of legislative acts recently adopted in the sector concerned. For example, the high figure in the air, waste and chemicals sectors has to do with the fact that a relatively big number of Directives in those sectors were due to be transposed during the last one or two years.

Non-conformity

Table 2 shows that problems with non-conformity are concentrated in three areas: nature, impact assessment and waste. In the sector of nature, non-conformity issues include mainly hunting periods [34] and hunting practices [35] not in line with the Birds Directive [36], as well as insufficient protection regime for sites [37] and species [38] under the Habitats Directive [39] (see Chapter 1, point 5). In the sector of impact assessment, conformity problems are often related to national laws which do not ensure that all projects for which impact assessment must be carried out are made subject to the assessment procedure required by the Directive, including public consultation (see Chapter I, point 2). In the sector of waste, conformity problems mainly concern the incorrect transposition of the Waste Framework Directive [40] (e.g. national law defines 'waste' differently from the Directive, permit requirements are less stringent than required by the Directive), Waste Oils Directive [41] (e.g. national law does not require priority to be given to regeneration of waste oils), Hazardous Waste Directive [42] and the Packaging Waste Directive [43].

[34] Article 7 of Directive 79/409/EEC.

[35] Article 8 of Directive 79/409/EEC.

[36] Directive 79/409/EEC on the conservation of wild birds.

[37] Article 6 of Directive 92/43/EEC.

[38] Article 12 and 16 of Directive 92/43/EEC.

[39] Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.

[40] Directive 75/442/EEC on waste.

[41] Directive 75/439/EEC on the disposal of waste oils.

[42] Directive 91/689/EEC on hazardous waste.

[43] Directive 94/62/EEC on packaging and packaging waste.

Horizontal bad application

In addition to correct and timely transposition, the effectiveness of Community environmental law is largely dependent on the prudent application of certain horizontal secondary obligations included in the Directives. Most notably, Community environmental Directives frequently include obligations to classify, nominate or designate certain protection areas for the purposes of the directive.

Table 3 shows that horizontal bad application cases are concentrated in three sectors. In the water sector, a number of infringements are on-going concerning Member States who have not designated sufficiently nitrate vulnerable areas [44] as well as areas sensitive to urban waste water [45] (see Chapter I, point 4). In the sector of nature many Member States have problems in submitting appropriate lists of proposed sites of Community importance [46] as well as special protection areas [47] (see Chapter I, point 5). In the sector of waste, one of the most general problems is absence of waste plans which are important tools of waste management (see Chapter I, point 8). Fulfilment of such obligations is an essential precondition for a full application and effectiveness of such Directives.

[44] Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources.

[45] Council Directive 91/271/EEC concerning urban waste-water treatment.

[46] Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.

[47] Council Directive 79/409/EEC on the conservation of wild birds.

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Table 1: Non-communication cases (31/12/2002)

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Table 2: Non-conformity cases (31/12/2002)

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Table 3: Bad application: "Horizontal" cases [48] (31/12/2002)

[48] Failure to implement certain derived or secondary obligations contained in Community acts, such as setting out plans, classifying sites and designating areas, adopting programmes, submitting monitoring data, reporting, etc.

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