COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the Common Position of the Council on the Proposal for a European Parliament and Council Recommendation providing for minimum criteria for environmental inspections in Member States

1998/0358 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the Common Position of the Council on the Proposal for a European Parliament and Council Recommendation providing for minimum criteria for environmental inspections in Member States

1. Procedure

The Proposal (COM(1998)772 final - 1998/0358(COD) of 16 December 1998, was forwarded to the Council on 17 December 1998 in accordance Article 175(1) (at that time, Article 130S(1)) of the EC Treaty.

The Economic and Social Committee gave its Opinion on 28 April 1999 (OJ C 169, 16.6.1999, p. 12).

The Committee of the Regions gave its opinion on 16 September 1999 (OJ C.374, 23.12.1999, p. 48).

The European Parliament gave its Opinion under the co-decision procedure at the first reading in plenary session on 16 September 1999.

Following the Opinion of the European Parliament and pursuant to Article 250(2) of the EC Treaty the Commission adopted an Amended Proposal (COM(1999)652 final) on 3 December 1999.

The Council Common Position was adopted on 30.3.2000.

2. Purpose of the Recommendation

The proposed Recommendation will contribute to preserving, protecting and improving the quality of the environment and protecting human health as required by Article 174 of the EC Treaty.

The purpose of the Proposal is to establish guidelines for minimum criteria in environmental inspections of industrial installations and other enterprises and facilities ('controlled installations') whose air emissions, water discharges or waste activities are subject to authorisation, permit or licence under Community law. The guidelines relate to the organisation and carrying out of such inspections as well as follow up and publicity for the results of inspections. Its aim is to strengthen compliance with, and contribute to a more consistent implementation and enforcement of, Community environmental legislation in all Member States.

The proposal provides for environmental inspections to check and promote the compliance of controlled installations with Community legislation transposed or applied in the Member States. For this purpose, it is provided that:

- inspections, which may be routine or non-routine, should include site visits, verification of self monitoring by the operators of the controlled installations, checking the premises, the equipment and the adequacy of the environmental management at the site as well as the records kept by the operators

- Member States should draw up in advance plans for environmental inspection activities, covering all their territory and the installations within it

- site visits should as soon as possible be followed by reports, containing findings, evaluations and conclusions.

To increase transparency and public involvement, it is provided that advance inspection plans and site visit reports should be available to the public in accordance with the Directive on the freedom of access to information on the environment (Directive 90/313/EEC).

The Commission is invited to review the operation and effectiveness of the Recommendation as soon as possible after receipt of reports from the Member States on their experience with its operation.

3. Commission comments

3.1. General Comments

Provided the form of the Proposal remained that of a recommendation, the Commission accepted in principle five of the fifteen amendments adopted by the European Parliament at first reading. The Commission's amended Proposal COM(1999)652 final of 3 December 1999 took account of these five amendments, with some minor drafting changes. Two of these five amendments have been incorporated, in modified form, in the Common Position.

The Commission considers that the Common Position achieves the purposes of the Proposal and that some useful changes have been made.

3.2 Detailed Comments

3.2.1 Parliamentary amendments accepted by the Commission and incorporated in full or in modified form in the Common Position

Amendment no 16 introduced a new Point VIIIa. The first paragraph sought to encourage the Commission in co-operation with IMPEL, the European Environment Agency ('EEA') and other interested parties to draw up minimum criteria concerning the qualification and accreditation of inspectors. The Commission's amended Proposal incorporated this paragraph but with the reference to the EEA removed, as this sort of activity does not form part of their functions. The Common Position reformulates this provision in Point IX(2) as an invitation to IMPEL, in co-operation with the Commission and other interested parties, to draw up a working paper on best practices concerning the qualifications of environmental inspectors. The Commission accepts that the status of IMPEL in relation to the Council and the Parliament makes it more appropriate for the provision to be framed in terms of an invitation and that, for reasons of subsidiarity, IMPEL's working paper should relate only to best practices for qualifications.

The second paragraph of Amendment 16 relating to training programmes for inspectors was incorporated at Point VIIIa in the Commission's amended Proposal. The provision, which appears as Point IX(3) in the Common Position, is modified to refer to the development of best practices concerning training programmes. The Commission considers that the substance of the amendment is retained and that the Council's modification is consistent with respect for the principle of subsidiarity.

Amendment no 24 provided for site visit reports to be made publicly available within 2 months of the inspection. The Commission, in Point VI(2) of its amended Proposal, provided for such reports to be finalised within 2 months of the site visit (it being understood that public availability was a matter dealt with by Directive 90/313/EEC). The Common Position, in the final sentence of Point VI(1), modifies the amendment further by providing for reports to be finalised as soon as possible. As the circumstances of site visits and the work involved in preparing reports are likely to differ widely, the Commission recognises that any specific time-limit would be arbitrary. The provision in the Common Position is useful as a constant reminder of the need to finish reports as soon as possible and so is acceptable to the Commission.

3.2.2 Parliamentary amendments accepted by the Commission but not included in the Common Position

The Commission's amended Proposal incorporated Amendment no 10 (paragraph 2a) by inserting a new paragraph in Point III which recommended the Member States, in co-operation with IMPEL and the Commission, to encourage the co-ordination of inspections and inspection services in order to prevent illegal cross-border environmental practices. The Common Position omits this paragraph and substitutes the paragraph described below under Point III. The Commission welcomes the substituted paragraph as an improvement on the European Parliament's amendment.

The Commission's amended Proposal incorporated Amendment no 17 by inserting a specific reference to the EEA as an interested party whose contributions should be taken into account in the Commission's review of the operation of the Recommendation. The reference to the EEA has been omitted from the Common Position. The Commission was content to add the express reference to the EEA in recognition of the role the Agency could play in certain aspects of the review. Nonetheless it is for the Commission to determine who are the interested parties in the context of the review and, whether or not the EEA is specifically mentioned, it is open to the Commission to take account of the EEA's contributions if that appears appropriate. The Commission can therefore accept the omission of the EEA reference in the Common Position.

Amendment 1 (a recital concerning the involvement of EEA in advising and giving support) was included in the Commission's amended Proposal as recital 3a The omission, in the Common Position, of references to the EEA in the modified version of Amendment 16 and the non-incorporation of Amendment 17 mean that this recital has no parallel in the numbered Points of the Proposal. It has therefore been omitted from the recitals in the Common Position.

3.2.3 Changes made by the Council to the amended Proposal

Recitals

The recitals in the Commission's amended Proposal have been altered to reflect the fact that the Proposal is subject to the co-decision procedure and that changes have been made to certain provisions, in particular Points II(1)(a), III(3) and IX. The Commission is satisfied that these changes were necessary In addition, some minor drafting changes have been made to the recitals but without affecting the substance.

Recitals 17 and 21 have been specifically inserted to meet concerns of the European Parliament. In recital 17 the Common Position recognises the importance of keeping the European Parliament regularly informed about experience gained in the operation of the Proposal and recital 21 acknowledges that the Commission always retains a right of initiative with respect to future proposals, including as to whether it is appropriate to make a proposal for a directive. In the Commission's view the inclusion of recital 21 will act as a spur to Member States to give proper effect to the detailed provisions of the Recommendation.

Point I (Purpose)

The reference in the amended Proposal to a 'more even implementation' has, in the interests of clarity and to assist better translation, been changed in the Common Position to a 'more consistent implementation'.

Point II (Scope)

Paragraph (1)(a) of this Point has been changed to clarify the environmental inspections to which the Proposal applies. First, a more specific description of the industrial installations is given by reference to the kinds of emissions, discharges and activities which are subject to authorisation requirements under EC law. The Commission proposed this change as an improvement to the text.

Secondly, the Common Position removes all references to inspections of nuclear installations from the scope of the Proposal. The Commission agreed that the provision for nuclear inspections in its amended Proposal was too widely drafted and needed clarifying but still considered it appropriate to include those nuclear installations which are covered by the Euratom Basic Safety Standards Directive 1996. Nonetheless, in the light of the Council statement inviting the Commission to make a separate proposal for environmental controls of nuclear installations and of the Commission's statement of its understanding of that invitation, the Commission can accept the omission of nuclear installations from the scope of this Proposal. The Commission will be able, in a separate proposal, to recommend guidelines which are more particularly appropriate for inspections of nuclear installations.

Modifications have been made in paragraphs (2)(a) (b) and (c) and (4)(a) which the Commission considers to be improvements which aid clarity.

Point III (organisation and carrying out of environmental inspections)

The Common Position substitutes, at Point III(3), a new provision for European Parliament Amendment 10 which was included in the Commission's amended Proposal. The Commission considers that this new provision is clearer in its purpose than Amendment 10, helps better to fulfil the purpose of the Proposal as stated in Point I and foresees an appropriate and useful role for IMPEL.

Point IV (plans for environmental inspections)

Minor drafting changes have been made in the Common Position affecting Point IV(3)(d), (4)(b) and (5)(b) and (e). A new sub-paragraph (g) has been added to Point IV(5). In the Commission's view these are all helpful in improving clarity.

Point V (site visits)

Minor drafting changes have been made in the Common Position affecting Point V(1)(a), (2)(a) and (3)(c). In the Commission's view these do not alter the substance of the provisions in question and, in the case of the words added to Point V(3)(c), are an improvement.

Point VI (reports and conclusions following site visits)

Point VI(2) of the Common Position provides for the conclusions of site visit reports to be communicated to the operator of the controlled installation in question wherever it is not practicable to communicate the full report. This modifies the Commission's Proposal which provided for reports to be communicated to the operator without exception. The Commission would prefer that reports are always sent to the operators concerned but considers that a public authority will have to justify by objective circumstances the reasons making it impracticable to communicate the full report. It also notes that the full report will be available to an operator on the same basis as to a member of the public under Directive 90/313.

Point VII (investigations of serious accidents, incidents and occurrences of non-compliance)

The Common Position omits paragraph (2) of this Point in the Commission's Proposal but incorporates the substance of the recommendation in a new sub-paragraph (e) in paragraph (1). The Commission is content with this approach.

Point VIII (reporting on environmental inspection activities in general)

A drafting change is made in paragraph (1) linked to a change in Point X requiring publication in the Official Journal. The substance of the provision remains the same.

The Common Position makes a small number of drafting and other modifications in paragraph (2). In the Commission's view these do not affect the substance of the guidelines here nor the utility of the Member States' reports and so the changes are acceptable to the Commission.

Point X (implementation)

The Common Position modifies this point in accordance with the standard formulation for this kind of provision. The Commission is content.

4. CONCLUSION

The changes made by the Council do not, in general, affect the substance of the Proposal and are often helpful in clarifying its terms. The exclusion of nuclear inspections from the scope of the Proposal is a significant modification but the Council and Commission statements are a sufficient response to enable new and more specific guidelines for nuclear installations to be proposed. Taking everything into account, the Commission supports the Common Position.