•ir « 
-il <Ù COMMISSION OF THE FUROPEAN COMMUNITIES 
Brussels, 22 10.1996 
COM(96) 500 final 
COMMUNICATION FROM THE COMMISSION 
IMPLEMENTING COMMUNITY ENVIRONMENTAL LAW 

COMMUNICATION ON IMPLEMENTING COMMUNITY 
ENVIRONMENTAL LAW 
Part I: Introduction 
Background 
Current position on implementation of Community environmental law 
Specific character of Community environmental law 
Implementation powers 
Scope and objectives 
Structure of the Communication 
Part II: New areas for action 
Member State inspection tasks 
Member State environmental complaints and investigation procedure 
Access to Justice 
Part III: Reinforcing existing systems 
Quality of legislative proposals 
The legislative process 
Sanctions at Member State level 
Transparency 
Consultations by the Commission 
Consultations by Member States 
Information strategy for Community environmental policy and law 
Improving cooperation 
Reporting, monitoring and evaluation 
Evaluation of effectiveness of measures 
European Environment Agency 
Promoting knowledge of Community environmental law 
Community funding and implementation of Community environmental law 
Part IV: Conclusion 
Annex I Definitions 
Annex II: Implementation Problems by Sector 
Att 
PART I: INTRODUCTION 
Background 
1. The Community is at a crucial point in its environmental policy. I he first stage of ils 
policy, that of legislating for the major environmental problems facing the Community, 
has developed substantially as a result of the Community's work during the last two 
decades to create a legal framework designed to ensure a high level of protection for the 
environment in all its aspects. More than 200 pieces of Community environmental 
legislation have been adopted. Most of these are directives and therefore raised 
transposition2 and conformity issues initially and now, given the fact that most have been 
transposed, give rise to questions of practical application3 and enforcement4, whereas 
Regulations raise only questions of practical application and enforcement. 
2. We are now moving into a second stage of strengthening and consolidating the acquis 
communautaire through bringing about changes in current trends, practices and attitudes. 
The Fifth Community Environmental Action Programme on the environment and 
sustainable development, which was reviewed recently and on which the Commission has 
made a proposal to speed up its implementation5, set out a number of priorities for this 
work. Implementation and enforcement through shared responsibility is one of these key 
elements, together with the review and/or simplification of some existing legislation and 
the broadening of the mix of instruments through Community initiatives on voluntary 
agreements and on fiscal and economic instruments. 
3. Achieving the goal of a high level of environmental protection is only possible if our 
legal framework is being properly implemented. If the strong acquis communautaire on 
the environment is not properly complied with and equally enforced in all Member 
States, the Community's future environmental policies cannot be effective and its Treaty 
objectives cannot be fully and constantly met. The environment will either remain 
unprotected or the level of protection in different Member States and regions of the 
Community will be uneven and might, inter alia, lead to distortions of competition. 
4. In this respect, it is also important to note that in preparation for the enlargement of the 
Union, the Commission is working closely with the authorities of the applicant countries 
to assist them in the adoption and implementation of Community law in the field of the 
A definition is given in the Annex. 
A definition is given in the Annex. 
A definition is given in the Annex 
5 Progress Report from the Commission on the Implementation of the European Community 
Programme of Policy and Action in relation to the Environment and Sustainable Development 
"Towards Sustainability" COM (95) 624 final and the proposal for a European Parliament and 
Council Decision on its review COM 95 647 of 24.1.1996. 
Al 
environment. 
Current position on implementation of Community environmental law 
5. Within this context, there are weaknesses in the current state of implementation of 
Community environmental law in most parts of the Community, and more action is 
needed in order to improve the situation. The Commission's own statistics on 
implementation show the following: In 1995, Member States had notified implementing 
measures for only 91% of the Community's environmental directives, leaving as many 
as 20 or 22 directives not transposed in some Member States7. In the same year the 
Commission registered a total of 265 suspected breaches of Community environmental 
law, based on complaints from the public, Parliamentary questions and petitions and 
cases detected by the Commission: this is over 20% of all the infringements registered 
by the Commission in that year.8 In October 1996 over 600 environmental complaints 
and infringement cases were outstanding against Member States, with eighty five of the 
latter awaiting determination by the Court of Justice. 
6. The Commission's infringement procedures demonstrate the ways in which problems of 
implementation arise within the Community. Some legislation causes similar difficulties 
in most Member States: the Commission has had to begin "horizontal" actions against 
most Member States in relation to the notification of habitat sites under Directive 
92/43/EEC9 and in relation to Directive 91/676/EEC on agricultural nitrates in water10. 
Other infraction procedures show the variety of environmental problems within the 
Community: although waste disposal is a major concern to European Union citizens and 
leads to many complaints to the Commission, in some Member States the main concern 
is illegal waste dumps while in others it is emissions from waste incinerators. Infraction 
proceedings also show the intractable nature of some environmental problems: many 
current cases relate to directives adopted in the 1970s: Directive 76/160/EEC on bathing 
7 
10 Through the Phare programme, approximately 100 million ECU a year is allocated to environmental 
projects in central and eastern Europe which help national and local authorities to take on and 
implement Community environmental law, through training programmes and the provision of 
infrastructure. As far as Cyprus and Malta are concerned, the Commission will continue to support 
the harmonisation of legislation in the field of the environment in the framework of the acquis 
Communautaire and preparations for their accession to the Union. 
Thirteenth Annual Report on Monitoring the Application of Community law (1995), Brussels, 
29.05.1996 COM (96) 600 Final. 
Figures for 1994 and 1993 are 359 and 383 suspected breaches registered, representing 25% and 
28.5% respectively of total suspected infringements registered. Source: Twelfth Annual Report on 
Monitoring of Community Law (1994), Brussels, 07.06.1995 COM(95) 500 Final. 
OJ L 206/7, 22.7.92. 
OJL 375/1, 31.12.91. 
water" and Directive 76/464/EEC on dangerous substances in surface water12 are two 
examples where there are continuing problems of compliance in some Member States. 
More detailed examples of implementation problems by sector are set out in Annex II 
to this Communication. 
Specific character of Community environmental law 
7. The very nature of environmental protection creates challenges which are particular to 
environmental law as distinct from other fields of law. Environmental protection has to 
« take account of complex inter-dependencies and inter-relationships between the 
environmental media (air, water, soil) and biodiversity: unless care is taken, action to 
protect one medium can adversely affect another. It has to bear in mind climatic, 
seasonal and geographical variations in environmental conditions13 (an approach which 
may be sound in one part of the Community may not be sound in another). It has to 
reflect a constantly changing state of knowledge (often implying a need for significant 
and urgent innovations, adaptations and changes of approach). Because of the 
potentially very serious consequences of a lack of foresight, it has to an important extent 
to be based, both in formulation and interpretation, on the preventive and precautionary 
principles14 rather than on a curative approach. Because it touches everyone, it has to 
involve a comprehensive set of actors, from government, industry and enterprise to the 
general public, implying often very difficult balancing exercises. Because it relates to 
general interests in which there is often not a proprietary stake (clean air and water, a 
healthy biodiversity), it has to envisage methods of ensuring its effectiveness other than 
methods which are adequate in other fields of law. 
8. These characteristics help explain why the implementation and enforcement of 
Community environmental law is complex and often unsatisfactory. These characteristics 
could also be found in other sectors of Community law but are particularly salient in the 
environment field. They are mainly connected with the legal and technical complexity 
of the matter, which gives rise to numerous questions of interpretation and issues of 
technical application, as well as difficulties in ensuring the proper coordination of the 
different national authorities involved in the transposition, practical application and 
enforcement stages. 
9. Indeed, most Community legislation on environmental protection is adopted in the form 
of directives which must be transposed into national laws, giving Member States the 
11 OJ L 31/1, 5.2.76. 
12 OJL 129/23, 18.5.76. 
13 
14 See Article 130r § 2 and 3 of the Treaty: "Community policy on the environment shall aim at a 
high level of protection taking into account the diversity of situations in the various regions." "In 
preparing its policy on the environment, the Community shall take account of environmental 
conditions in the various regions". 
See Article 130r § 2 of the Treaty. These principles are evolving in the light of circumstances and 
new multi-disciplinary insights. 
freedom to enact transposing legislation in the form most appropriate to its national 
conditions. Moreover, whether or not the Community legislation is adopted in the form 
of directives, competent bodies and institutions within national administrations are 
primarily responsible for the actual and daily application, in all its aspects, of both 
directly applicable Community measures (ie. regulations) and national transposing 
legislation. Within Member States, whether unitary or federal, competence in relation 
to the practical application and enforcement of Community environment law is frequently 
shared between or devolved to different levels of the public administration. This 
decentralisation of the implementation process adds considerably to the complexity of 
the implementation of Community environmental policy, and thus co-ordination through 
the "regulatory chain"15 is required in order to achieve full and correct implementation. 
Furthermore, the complexity of the inspection and enforcement functions involving the 
monitoring of a multitude of individual cases requires sufficient numbers of staff with 
the appropriate professional qualifications and adequately resourced. This is not always 
the situation in all Member Slates. 
Implementation powers 
10. The Commission, as guardian of the European Community Treaty, has the responsibility 
of ensuring that Community legislation is applied.16 It exercises this responsibility 
mainly through exercising the power to bring infringement proceedings against Member 
States under Article 169 of the Treaty. This power is a very important and necessary 
tool for the Commission with respect to enforcement, as shown by the statistics on 
infringements given above. The Commission intends to continue to make full use of its 
enforcement powers based on Article 169. 
11. An attempt to improve the effectiveness of the Article 169 procedure was made through 
the Maastricht Treaty by introducing fines against the Member States under Article 171, 
and this provision is now beginning to be applied. The Commission will also make full 
use of Article 171 in ensuring full compliance by the Member Stales with their 
environmental obligations as defined by the Court of Justice in its judgments in relation 
to cases brought under Article 169, in order to achieve a strong deterrent effect. Further 
improvements in the use of Article 169 should arise from the proposals contained in the 
Commission's recent review of its internal rules on the way in which Articles 169 and 
171 are being used17. This major review of Commission practice and procedure should 
considerably enhance the speed and effectiveness with which it can make use of its 
powers under those Articles. 
15 See definition in the Annex. 
6 Article 155: " In order to ensure the proper functioning and development of the common market, 
the Commission shall ... ensure that the provisions of this Treaty and the measures taken by the 
institutions pursuant thereto are applied ...". 
7 See also the communication concerning the operation of Article 171 of the Treaty, () .1 No. C 242, 
21.8.96, p. 6. 
12. However, it must be recognised that the procedure under Article 169 may be both 
lengthy and formai, and was not particularly designed with environmental law cases in 
mind. Because it operates on decisions and actions edter they have been taksn, even if 
Community law is applied as a result, it is not always the best way to prevent 
degradation or damage to the environment torn taking place. 
13. There are further fundamental problems with the use of Article 169 and Article 171 as 
the sole means of enforcing Community environmental law apart fretin the limitations 
mentioned above. Many environmental regulations .and directives have to be applied on 
a daily basis by large numbers of people throughout the Member States. It would be 
neither possible nor practical for all tiç legal actions which could arise from these cases 
to be channelled through one enforcing authority» the Commission, and one court of law. 
the Court of Justice. In addition, Article 169 creates a Community "enforcement 
mechanism" which is directed only against the central governments of the Member 
States: the Commission is -unable tc oversee, on the ground, the application of 
individual decisions (either voluntary or binding) necessary to comply with Coinmunity 
legislation. 
14. Nor is it possible for a single. Community wide, judicial enforcement system to take into 
account the legal and administrative structures at national, regional and local levels 
within the Member States through which Community environmental measures are 
applied. The use of such structures is essential to the incorporation of Community 
environmental law into national systems and to their practical application. Consequently, 
alternative methods of enforcement which can give full effect to these national and local 
conditions, which are vital to the proper protection of the environment, are required. 
More ambitious solutions than can be achieved through changes tc practices and 
procedures under Articles 169 and 171 are therefore required in order to ensure fee 
proper implementation of Community environmental measures. 
15. Finally, there is a wide disparity in environmental inspection mechanisms among the 
Member States. Although the Commission, as the guardian of the Treaty, has the role 
of ensuring that Member States comply with Community environmental laws, there are 
no generally applicable Community level mechanisms for the monitoring of the practical 
application of those laws within the Member States. Thus the Commission has only 
limited powers to monitor the correct application of Community environmental law. It 
is almost entirely dependent on inferrration supplied to it on an ad hoc basis by 
complaints, by petitions to and written and oral questions from the European Parliament, 
by non-governmental organisations, by me media and by the Member States themselves. 
Although this information is very valuable to the Commission at the current stage, sole 
reliance on such ad hoc and un verifiable reporting systems and sources of information 
could have severely detrimental consequences for the environment in the longer term. 
Scope and objectives 
16. As it has already been illustrated above18 and will be shown in detail in Parts II and III 
of this Communication, the specificities of Community environmental law give rise to 
18 See paragraphs 7 to 9 above. 
particular difficulties and challenges in implementation and therefore it is necessary for 
special consideration to be given to the solutions which should be applied to meet these 
difficulties and challenges. The Commission considers that an effective implementation 
of its environmental laws is crucial since failure is likely to put at risk the credibility of 
the Community with its citizens in creating and putting in place its future environmental 
policy. 
17. Furthermore, on the international stage, implementation of environmental laws and policy 
will be an important area for discussion in the review of Agenda 21 which will take 
place as part of the follow up in 1997 to the Rio "Earth Summit". If it is to make an 
effective contribution to this debate, the Community must have its own implementation 
policies firmly in place by that time. 
18. This Communication is the Commission's initial contribution to taking forward the aims 
of the Community in this area. It seeks to ensure that environmental laws are fully and 
correctly transposed within the Community at all relevant levels and that they are applied 
and enforced in an even way throughout the Community and thus safeguard Europe's 
environment. The Commission's task, as a guardian of the Treaty under Article 155, is, 
taking a comprehensive approach, to improve implementation and enforcement and make 
proposals for improvements at all appropriate levels, and this Communication responds 
to the demands of political and public opinion that it does so19. The European 
Parliament, in particular, has always been very supportive of a strengthening of the 
effectiveness of the Commission's action in that respect; this commitment was once more 
evidenced at the Joint Hearing "Challenges to Environmental Protection: Making the 
Legislation Work", co-organized by the Parliament and the Commission, and held on 30 
May 1996. The approach of the Communication is broad. It presents the "global picture" 
of the implementation, practical application and enforcement issues of Community 
environmental law. The approach adopted by this Communication also takes into account 
the methodology of the "regulatory chain" which demonstrates in successive stages all 
the problems related to implementation (legislation, transposition, practical application, 
enforcement and review). 
19. The objective is to present a clear analysis of the issues covered by this broad approach 
and to raise awareness of them (at all levels - citizens, NGOs, regional authorities, 
Member State governments and Community institutions). In the light of this analysis the 
purpose of the Communication is to reinforce the obligations which different actors in 
the regulatory chain (the Commission, Member States, regional and local authorities, 
The importance of implementation of Community law has been emphasized by the Member States 
in the 19th Declaration to the Treaty on European Union and by President Santer in his investiture 
address to the European Parliament, as well as in the Commission's own proposal for a European 
Parliament and Council Decision on the review of the European Community Programme of policy 
and action in relation to the environment and sustainable development: "Towards Sustainability". 
industry, citizens and non-governmental organisations) bear in the "shared 
responsibility"20 for the application of Community environmental law, in order to 
increase the effectiveness and efficiency of environmental policy and law with 
consequent improvements for the European environment. The remainder of this 
Communication sets out orientations for achieving those solutions, which will bring 
improvements to the implementation and enforcement of Community environmental law 
at ail relevant levels and enable the environmental objectives assigned to the Community 
by the Treaty to be achieved. 
Structure of the Communication 
20. Issues of implementation, application and enforcement have been examined against the 
framework provided by the regulatory chain. That analysis has shown that there is a 
need for a broader range of actions which include aspects which can be considered 
innovative, aiming to ensure the achievement of specific objectives for which the existing 
mechanisms seem not to be fully appropriate or efficient, as well as on the existing 
mechanisms and procedures in order to reinforce and make them even more effective. 
Parts II and III of the Communication deal respectively with the "innovative approach" 
and the "reinforcing" one, the two being closely linked in achieving the general objective 
foreseen, that is to say, good implementation and enforcement of environmental 
community law. 
21. The new areas covered in Part il need to be examined and, if retained, made effective 
by appropriate procedures to be decided upon at a later stage as they deal with: 
- the development of Community-wide minimum criteria for the carrying out of 
inspection tasks by Member State authorities; 
- the operation of environmental complaints and investigations procedures within the 
Member States which will receive and examine complaints from the public about the 
implementation of Community environmental law; 
- increase the opportunities for environmental cases to be dealt with by national courts, 
through broader access to justice on Community environmental law issues. 
22. Action on these three areas will represent important progress towards an even application 
of Community environmental law throughout the Member States and give European 
citizens better sources of information and ways of dealing with the concerns they may 
have in the field of environmental protection. In a sense, it will also make Member 
States more conscious of their responsibility in ensuring environmental protection by 
effective application and enforcement of environmental law on the ground. 
20 European Community Programme of policy and action in relation to the environment and 
sustainable development "Towards sustainability"; O.J. No C 138/1, 17.5.93. See also Progress 
Report from the Commission on the implementation of this 5th Action Programme COM(95) 624 
final 10.1.1996: 
23. Reinforcing the actual system, in particular (he issues covered in Part III, is an equal 
priority issue as it is the very basis of obtaining timely and correct implementation and 
enforcement. A large part of the actions which are needed in that respect can be dealt 
with by the Commission and/or Member States without a need for formal measures to 
be approved. The Commission will take all appropriate initiatives in order to make them 
effective as quickly as possible. 
oooooOooooo 
PART II: NKW AUK AS FOR ACTION 
24. Transposition is an extremely important stage in the implementation process when 
dealing with Directives. The majority of EC environmental legislation consists of 
Directives which are not in principle directly applicable in the Member States and 
therefore require additional implementing measures which are only applicable as national 
law of Community origin. Consequently, timely transposition ensures that the 
Community law becomes applicable in all Member States more or less 
contemporaneously and proper transposition (conformity) ensures that national legislation 
has more or less the same content and achieves the results required by the Community 
directives. 
25. The Commission under Article 155 has the duty to ensure timely and correct 
transposition by the Member States, by using political pressures and, if necessary, court 
action under Articles 169 and 171 of the Treaty. It may also need to generally keep 
under review the practical application of the legislation and its enforcement in order to 
ensure that they are carried out in a satisfactory manner. I lowever, this is a Community 
enforcement mechanism directed only towards Member State central governments. The 
Commission simply cannot monitor the thousands of individual decisions taken each year 
in accordance with the transposed or directly applicable environmental legislation, in the 
different parts and levels of authority within the Member States. The daily application 
and enforcement of those laws in specific cases must be fully ensured by the authorities 
in the Member States through mechanisms which will strengthen enforcement and, at the 
same time, ease the control of Member States by the Commission. 
Member State inspection tasks 
26. Article 5 of the Treaty, as interpreted by the Court of Justice in Case 68/8821, binds 
Member States to make whatever provision for enforcement is effective, proportionate, 
and equivalent to that for Member State's national laws. This general principle of 
Community law, although fundamental, has resulted in a wide disparity in enforcement 
agencies or mechanisms among the Member States, with some putting considerable 
resources into well-supported inspectorates or other agencies which monitor the practical 
application of Community environmental law and other making lesser provision or none 
Judgment of 21.09.89, case 68/88 (1989) ECR 2965, points 23 and 24 
at all. Moreover, where provision is made, it is varied: inspection competencies are not 
always exercised by a single national body, but are often decentralised or shared among 
several layers of authority (local, regional, national, etc.). In a number of cases, 
environmental inspections form only a part of the responsibilities of the relevant 
competent authorities. In some Member States, such as Denmark or the UK, the 
competent authority, in addition to inspecting for compliance, also makes decisions on 
the grant of permits or bringing of court actions for enforcement, while in other Member 
States (such as the Netherlands) these tasks are separated. 
27. This wide disparity cannot be considered as satisfactory with reference to the objective 
of correct and level enforcement at the Community level. The need exists to ensure that 
minimum inspections tasks are carried out, such as the process of monitoring whether 
the requirements of Community environmental laws, in particular those relating to 
industrial emissions and environmental quality standards, are in practice being applied. 
The need exists also to ensure that this is the case in all Member States. 
28. Given the variety of existing situations described above between the Member States, the 
achievement of that objective can be obtained by the definition of guidelines which leave 
to the Member States the choice of the structures/mechanisms they will use to meet it. 
The Commission would be able to define, in cooperation with the Member States, those 
guidelines and issue recommendations to that effect. The IMPEL network described 
below could also assist in defining minimum criteria for inspections, and help in capacity 
building, for instance as to the necessary competencies for the carrying out of inspection 
tasks. 
On that basis, where inspectorates or equivalent bodies exist and are already operating, 
in the way foreseen by those guidelines, there will be no need to alter the existing 
structures. Where inspectorates do not exist, the Commission would consider possible 
means, if available, for providing capacity-building assistance to help reach them. 
29. Such inspection authorities could produce and publish annual reports on the experience 
acquired during the carrying out of their tasks. These will give useful information on 
the problems met and addressed, improvements obtained, and could form a very 
important basis for future action. 
In fact, those annual reports, of which the Commission would be informed, could be 
used by the Commission in order to ascertain if the objective of even application is being 
met and to judge whether further action is needed. This further action couid, for 
instance, be the establishment in the future, at Community level, of a limited body 
carrying out auditing competencies with respect to the fulfilling by the national bodies 
of their inspection tasks. 
The Commission will consider making recommendations in order to assist Member 
States in carrying out inspection tasks, by the establishment of guidelines, thereby 
reducing the currently existing wide disparity among Member State inspections. 
Further consideration would be given as to whether there might be a need for a 
limited Community body with auditing competencies. 
Member State environmental complaints and investigation procedure 
30. Experience at Community level of concerns about the application and enforcement of 
Community environmental law has been gained in a number of ways. Considerable 
numbers of complaints are made to the Commission by citizens and environmental non­
governmental organisations. The European Parliament is also considerably involved in 
such problems: petitions are made to its Petitions Committee, and more and more written 
and oral questions by Members of the European Parliament raise complaints about 
environmental matters. Complaints are also made to the European Ombudsman, often 
about matters which have already been the subject not only of Commission consideration 
but have also been referred to the Parliament. Many of the environmental problems 
referred to the Community institutions in this way arise from a lack of information or 
from misunderstandings (by either citizens or administrative bodies) about mainly 
procedural matters. The mechanisms available to the Community institutions for dealing 
with such complaints are not necessarily those which are most appropriate to the 
problem. These complaints might also be dealt with in a more efficient way within 
Member States, at the local level where they arise and where facts are more easily 
obtained. 
31. Court action to enforce Community environmental law within the Member States also 
has a number of disadvantages which prevent its being used effectively to protect the 
environment in such cases. Some of these problems arise in relation to issues of access 
to justice which are discussed in the next section. However, even apart from questions 
of access, there are inherent problems within legal systems, including eg. costs and 
delays, which can make it unhelpful as a means for individuals to enforce Community 
environmental law: litigation should be the solution of last resort. A non-judicial 
complaint investigation procedure could have the advantage of avoiding these inherent 
problems: it could contribute to a quick and low cost settlement of an issue more 
accessible to the citizen without any need for legal assistance. 
32. The advantages of considering environmental concerns at a local rather than Community 
level, coupled with the characteristics of speed, low cost and ease of use by citizens and 
environmental organisations, if applied across the Community, could lead to significant 
improvements in ensuring the proper implementation of Community environmental law. 
The Commission will therefore consider whether there is a need to establish minimum 
criteria for a procedural mechanism for handling environmental complaints and carrying 
out of investigations (a function which could also be similar to the functions of an 
ombudsman) in cases where problems arise in relation to the practical application and 
enforcement of Community environmental legislation by public authorities. These tasks 
could be carried out either within Member State's existing structures, or by the setting 
up of ad-hoc bodies. 
33. Guidelines setting up such minimum criteria would need to be carefully considered: they 
could for instance cover the power to receive complaints (eg. both from individuals and 
from environmental non-governmental organisations) regarding the procedures for 
administrative decisions affecting the environment, to request information from 
administrative bodies in response to such complaints, and to issue recommendations 
(which would be persuasive rather than of a legally binding nature). It would not be 
necessary for such a mechanism to rule on questions of substance, which are more 
appropriately considered either by administrative bodies or the courts, according to the 
administrative and legal systems within the Member States. 
34. Procedures similar to this concept already exist in a number of Member States, and can 
take very different forms. The two main models for such systems which can be found 
in the Member States are the institution of the independent "ombudsman" and systems 
for the review of decisions within administrative structures: Member States operating 
these systems should not in principle have to make changes. Only in Member States 
where such mechanisms are lacking would there be a need to establish equivalent models 
following the minimum criteria set up under guidelines in order to fill the gap. 
35. Such environmental complaints and investigation mechanisms might also be entrusted 
with the power of issuing recommendations aiming at solving problems or improving the 
functioning of the administration in relation to the application of Community 
environmental legislation. Again, such recommendations would not be binding but 
would have a strong moral authority and thus generally followed. 
The Commission will consider making recommendations for the establishment of 
minimum criteria for the handling of complaints and carrying out of environmental 
investigations in Member States where such mechanisms/procedures are lacking. 
Access to Justice 
36. Judicial litigation is a last resort to solve problems. However, a Community based on 
the rule of law has to ensure that laws arc respected and if necessary enforced. The role 
of the courts is crucial in that respect, especially for environmental matters where the 
source of a problem or damage is geographically confined but the effects may be 
widespread. Access to justice is, in general, sufficiently ensured if economic interests 
are at stake. Enforcement of legislation designed to create the framework for prosperous 
business, for instance in the industrial, commercial or agricultural sector, is likely to be 
encouraged by economic operators with sufficient resources to fight for enforcement. 
This is not necessarily the case for ecological interests. Economic operators do not 
perceive their role as being one of supervising other business' compliance with 
environmental legislation. 
37. Enforcement of environmental law, in contrast to other areas of Community law such as 
the internal market and competition, therefore mainly rests with public authorities, and 
is dependent on their powers, resources and goodwill. Their ability to take into account 
the need to protect the environment may be limited by any of these factors. It is 
therefore important that supplementary avenues for improving enforcement of 
Community environmental law arc available. In particular, actions by non-governmental 
organisations and/or citizens in relation to the application and enforcement of 
environmental laws (in administrative, civil or criminal courts, as appropriate to the 
structures of the Member State concerned) would assist in the protection of the 
environment. 
38. As already mentioned, an important characteristic of environmental law is the frequent 
lack of a private interest as an enforcement driving force. The environment is often 
characterised as our "common heritage". This also implies that more often than not there 
is no private appropriation of many parts of it, such as air, seas, wild flora and fauna. 
Therefore, it is often the case that deterioration of the environment does not cause 
immediate reaction, and that even if a problem does arise, there is no means by which 
individuals can use the law to remedy the problem, or there are no appropriate legal 
remedies available. Even for Community environmental law, it can be the case that 
important general principles cannot be enforced by individuals (e.g. polluter pays, 
preventive and precautionary principles). 
39. The importance of wider public participation in shaping environmental policy as a whole 
is widely recognized22 and all Member States have non-governmental organisations which 
enjoy some rights of participation in environmental matters. However, the ability of the 
public, as such, to take pari in legal actions regarding application and enforcement of 
Community environmental laws differs widely throughout the Community. It varies 
from participation in certain authorization procedures, through the right of recognised 
organisations to appeal for the annulment of administrative decisions, to the "actio 
popuiaris" for environmental purposes. It can however be stated that the public and 
public interest groups do not as a general rule have sufficient access to the national 
courts of the Member States in environmental matters. 
40. Better access to courts for non-governmental organisations and individuals would have 
a number of helpful effects in relation to the implementation of Community 
environmental law. First, it will make it more likely that, where necessary, individual 
cases concerning problems of implementation of Community law are resolved in 
accordance with the requirements of Community law. Second, and probably more 
important, it will have a general effect of improving practical application and 
enforcement of Community environmental law, since potentially liable actors will tend 
to comply with its requirements in order to avoid the greater likelihood of litigation. 
41. Finally, access to Member States' courts would have the desirable effect of channelling 
litigation on the enforcement of Community environmental law to the most appropriate 
level, i.e. regional and national. The use of courts within the Member States for the 
enforcement of Community environmental measures is desirable for various reasons. One 
is that there is no possibility that the resources in time and personnel which are available 
to the Commission and to the Court of Justice in Luxembourg will ever be sufficient for, 
not even a majority, of environmental cases arising in all Member States to be dealt with 
through direct actions brought by the Commission in the Court of Justice. In addition, 
the courts of the Member States are better placed than the Court of Justice to take into 
account during the proceedings the particular legal, administrative and environmental 
context of the environmental measure as it applies in each Member State, and to get a 
22 Principle 10 of The Rio Declaration on Environment and Development proclaimed inter alia that: 
"Environmental issues are best handled with the participation of all concerned citizens, at the 
relevant level Effective access to judicial and administrative proceedings, including redress and 
remedy, shall be provided." 
12 
clearer picture of the facts through the evidence of witnesses and the appointment of 
experts. Moreover they are better placed to grant interim measures which arc an 
extremely useful instrument for preventing damage to the environment. 
42. Restrictions on access to the courts arise in two main ways. Firstly, because legal 
procedures in the Member States create obstacles to the bringing of enforcement actions 
in relation to environmental law. For example, a special interest may have to be proven 
in order to bring a case. For reasons of legal history, such special interests are usually 
of a type which is easy for a property owner or economic operator to satisfy but less 
easy for environmental interest groups to satisfy. A further example is that appropriate 
court procedures may not exist to enable environmental interests to be protected: court 
procedures which arc mainly designed to protect economic interests may not provide 
appropriate forms of action and remedies for environmental problems. Secondly, the 
cost of bringing enforcement actions in relation to environmental interests may be 
prohibitive. 
43. A number of options are available to the Commission for taking forward action on these 
matters, including "soft-law" approaches as a first step. Similar issues of access to 
. justice are being considered in the context of the Community action in relation to access 
to justice for consumers.23 The Commission has also included provisions on access to 
justice in various proposals for Community directives.24 In the context of securing more 
effective enforcement of Community environmental law25 it is necessary to look wider 
than individuals directly affected and include representative organisations seeking to 
protect the environment. Therefore a possible way towards achieving improved 
application and enforcement of Community environmental law would be to ensure that 
environmental NGÔs recognised by Member States are given the necessary locus standi 
to bring judicial review actions, which would be against public authorities in the Member 
States. If such a scheme proves desirable, a first step towards this direction could be a 
recommendation encouraging Member States to broaden access to justice for non­
governmental organisations. 
The Commission will examine me raced for guidelines on tfce access to aatfctnaK courts-
by representative organisations with a view to encouraging the apf)lkati&R Z-;M 
enforcement of Community environmental legislation m tffce light of the mMk&^iP: 
principle, taking into account &e different legal systems of fee Member SMes, 
——00000O00000 
23 COM(95) 712 Final OJ No C 107, 13,4.96, p.3. 
24 See for instance Article 4 of Directive 90/3I3/EEC on the freedom of access to information on the 
environment (OJ L 158/56, 23.6.90). 
25 Community law already ensures that those directly and individuaily affected by a decision of a 
Community institution can take action in the European Court of Justice, but in the environment 
there are often difficulties in identifying such persons. 
' • ' B 
PART III: REINFORCING EXISTING SYSTEMS 
44. The proposals made in the remainder of this Communication aim at improving a number 
of areas in Community environmental law and policy where current practices fall short 
of the high standards required for effective environmental protection: the quality of 
legislation, transparency, co-operation at Community and Member State level, monitoring 
and evaluation of the effects of legislation, knowledge of Community environmental law 
among practitioners, and the integration of Community funding into the implementation 
of Community environmental legislation. 
Quality of Community legislation 
The legislative process 
45. Clear drafting of legislation is a prerequisite for a timely and conforming transposition, 
in the sense that clear obligations may easily and correctly be transposed. Ambiguous, 
unclear or complicated provisions will cause delays, problems of conformity and 
problems of practical application which lead to incomplete or uneven implementation 
throughout the Community. Because the Commission has the exclusive right of initiative 
on Community environmental legislation it is in a position to take into account the 
potential difficulties which Member States might have in transposing the resulting 
Community measure. Drafting of the proposals in such a way, and with a transparent 
approach, makes the process of transposition an easier one for Member States. For 
instance, it can ensure that legislation which depends on the subsequent adoption of 
technical measures is drafted in such a way that delays in adopting those technical 
measures do not impose impossible implementation deadlines on the Member States, as 
occurred recently in relation to technical provisions relating to genetically modified 
organisms26. The new General Guidelines on Regulatory Policy, adopted by the 
Commission in January 1996, which supplement the Commission's Rules on Legislative 
Drafting ("Règles de technique législative"), should improve coherence in drafting within 
the Commission. Rigorous application of those rules and guidelines is crucial. 
46. It is especially important that when proposals are made the initial text is as clear as 
possible. Complicated or unclear drafting is likely to make negotiations of the proposal 
more difficult and to make it more likely that the final legislation will lack clarity and 
create difficulties for Member States' implementation. This is true both for the 
negotiations in Council and for amendments proposed by the European Parliament. 
Although responsibility for drafting and proposing a new directive lies with the European 
Commission, subsequent developments occur throughout the legislative process in both 
Council of the European Union and the European Parliament. Unclear and ambiguous 
drafting of environmental legislation is very often the result of compromises needed at 
26 Commission Guidance on classification adopted under Directive 94/51/EC on the contained use of 
genetically modified organisms . 
14 
the Council level or following the readings of the European Parliament27. Even at these 
later stages the Commission should ensure the coherence, efficiency and practicality of 
proposals if necessary by amending its own proposals or by withdrawing proposals which 
will no longer achieve the desired aims. 
47. A fmal point of importance is that legislative texts themselves should contribute to the 
transparency of the implementation process. This can be done by including in 
Community legislative texts provisions ensuring that information on implementation will 
be published, either by the Member States or by the Commission. Some provisions of 
this nature are already included, for instance as to the publication of reports or as to the 
public availability of information on the application of the measure28. It may however 
be appropriate, in order to achieve maximum transparency in the implementation of 
Community environmental legislation for such texts to include provisions requiring the 
publication by the Member States of additional information on implementation, such as 
tables of transposition indicating the provision of national law implementing the 
corresponding provisions of the directives. 
The Commission will ensure that all proposals for new Community environmental 
measures or amendments of existing measures are drafted in accordance wc^i the 
principles of achieving maximum clarity, transparency and certainty, in order to 
make the implementation process simpler and quicker. During the legislative 
process the Commission will seek to cooperate with the Council of the European 
Union and the European Parliament on issues of drafting and will propose its ewa 
drafting amendments where these become necessary as a result of puants raised ©r 
alterations to its original text made during negotiations. 
Sanctions at Member State level 
48. Article 5 of the EC Treaty, as interpreted by the Court of Justice, requires Member States 
to introduce effective, proportionate and dissuasive sanctions which ensure compliance 
with provisions of Community law. Although this permits Member States discretion to 
decide upon the sanctions for which they make provision, such sanctions must be 
equivalent to those used to dissuade breaches of equivalent national legislation29. As the 
Commission has outlined in its Communication to Council and Parliament on the role 
of penalties in implementing Community internal market legislation30, the national 
systems of penalties for the non-fulfilment of obligations under Community law have to 
be transparent. Transparency is not only the key to mutual confidence but also allows 
27 These problems are compounded by the need for Community legislation to be available, and equally 
valid, in all eleven Community languages: compromises brokered in one language can be difficult 
to translate satisfactorily into all the other languages. 
28 
29 
30 For example the report on implementation of Directive 85/337/EEC, Article 11(3). 
Judgment of 21.09.1989, Case 68/88, [1989] ECR 2965, points 23 and 24. 
COM(95) 162 of 03.05.1995. 
15 
the Commission to evaluate the systems and confine Community action in that respect 
to what is strictly necessary. 
49. The Commission therefore decided to insert in its legislative proposals, in respect of the 
internal market, explicit provisions stipulating that national implementing measures have 
to foresee sanctions to be imposed by Member States in case of non-compliance with the 
provisions of the Directive by individuals or legal persons, and that the legislation related 
to these sanctions have to be notified to the Commission. Such obligations should be 
extended to the environment. The objective should be that appropriate sanctions, be they 
administrative, civil or penal, or a combination of those, according to the choice of 
national authorities, are available in all Member States and that they are applied in 
practice so that an even enforcement of Community environmental law is ensured. 
Publicity for the application of such sanctions in the Member States and at Community 
level would assist their deterrent effect. 
50. General requirements for the imposition of sanctions have already been inserted in 
Community environmental legislation as in the case of the regulations implementing the 
CITES Convention on trade in endangered species and the Basel Convention on 
transboundary movements of hazardous waste. More specific provisions, for example 
the imposition of administrative penalties such as the withdrawal of permits, could also 
be included in Community environmental measures where appropriate. 
The Commission may include in its proposals for environmental measures a 
provision requiring national implementing measures to include appropriately 
deterrent sanctions for non-compliance with the requirements of the relevant 
directive. 
Transparency 
Consultations by the Commission 
51. The Commission is aware of the need, when formulating environmental legislation, for 
an open and consultative process in the pre-proposal and drafting stages. Different ways 
of achieving this are by the use of green papers, for example, the Green Paper on 
remedying environmental damage;31 the consultation of formal and informal networks, 
for example the Consultative Forum on the Environment,32 the Environment Policy 
Review Group,33 IMPEL,34 meetings with Member State experts and NGOs to discuss 
policy developments; the publication of the work programme and the holding of public 
31 COM(93) 47 Final: 14.5.1993. 
32 See Chapter 9 of the 5th Action Programme (footnote 20 above). 
33 See Chapter 9 of the 5th Action Programme (footnote 20 above). 
34 See paragraph 55 below. 
16 
hearings, either on its own, for example, on the Commission's future water policy on 28 
and 29 May 1996 or jointly with the Parliament, as with "Challenges to environmental 
protection: Making the legislation work" on 30 May 1996. The Commission needs to 
ensure that such consultations will be carried out on a more systematic basis with all the 
persons and organisations with an interest in a particular proposal. It will be important 
for the Commission to involve in its consultations the European Environment Agency, 
which is able to provide invaluable information and technical advice on the state of the 
environment in Europe and the effects of the Community measures taken to protect the 
environment. 
The Commission will consult as widely as possible on the formulation of new 
proposals for Community environmental measures. Consultations will include the 
full range of actors who will be concerned with a particular measure. 
Consultations by Member States 
52. The implementation of Community environmental legislation is particularly likely to 
affect a wide range of actors. Lack of consultation within Member States can mean that 
those affected by the proposal are either unaware of the measure or feel that it does not 
reflect their needs and concerns. They may thus be more likely to impede proper and 
timely transposition and application of the measure within the Member States. This can 
be relieved, in some part, by extensive consultation on the measures by the Member 
States soon after adoption of the Community measure. Where such consultations do not 
take place, or are insufficient, the transposing legislative process at national level can be 
made more difficult by protests which only arise at a late stage. More systematic 
preliminary contacts by the Commission with the interested parties (Member States, 
IMPEL, NGOs, industry, etc.) when elaborating proposals should facilitate 
implementation by reducing these problems, but consultations at the Member State level 
are still likely to be necessary on the text as finally adopted. The addition of details on 
the likely scope and impact of a proposal in the explanatory memorandum which already 
accompanies Commission proposals for legislation, should assist Member States in 
handling these subsequent consultations. 
Member States should ensure that they have coordination mechanisms which enable 
proper consultation prior to the adoption of national transposing measures. To 
assist Member States in their task, the Commission will incorporate in Explanatory 
Memoranda accompanying its legislative proposals, references to the potential scope 
of the proposed measure and to its impact within the Member States. 
Information strategy for Community environment policy and law 
53. A considerable amount of information on the Community's diplomatic, political and 
regulatory activities as a whole is given to the public by the General Report on the 
Activities of the European Union and the Annual Report on Monitoring the Application 
of Community Law. Sectoral reports are published by the Commission on competition 
policy and on the internal market; the latter is particularly relevant since it also deals 
with environmental matters in so far as they are closely related to the achievement of the 
internal market. The monthly Bulletin gives inter alia information on new legislation 
17 
and infringement proceedings in all sectors covered by Community law. To complete 
the information concerning the monitoring of the application of Community 
environmental law given by the Commission's Annual Report on Monitoring the 
Application of Community Law, this report would contain, beginning with its fourteenth 
edition (concerning 1996) the following data: 
- Details of the legislation notified by Member States as transposing Community 
environmental directives, including implementation tables showing how that legislation 
transposes the requirements of directives on the basis of information supplied by 
Member States. 
- Details of action taken by Member States to apply Community environmental law, 
including such matters as notifications of competent authorities, the creation and 
notification of programmes under Community environmental legislation and the results 
achieved. 
The Commission's Annual Report on Monitoring the Application of Community 
Law will (from its fourteenth edition concerning 1996) be expanded to contain 
details of the legislation notified by Member States as transposing Community 
environmental law and the actions taken by the Member States to apply those laws. 
The points covered in this Communication which do not concern the monitoring of 
Community law and infringement procedures, such as the points on questions of 
policy and procedure, could be the subject of a follow-up in an "Annual Survey." 
Improving cooperation 
54. Good cooperation between the Commission and the Member States is essential in order 
to achieve the ambitious goals pursued by the Community environment policy. At a 
national level law-making bodies should work closely with the application and 
enforcement agencies if the whole system is to be workable and efficient. The same is 
true with regard to the Commission and national competent authorities which should 
improve their cooperation in order to increase their effectiveness in the shared 
responsibility of implementation. Direct cooperation between national authorities of 
different Member States should also be welcomed in relation to cross-boundary 
environmental enforcement problems such as the detection of illegal traffic in hazardous 
waste or endangered species. 
55. Member States' concern as to the comparability of standards of application and 
enforcement of Community environmental legislation in different countries led to the 
creation in 1992 of an informal network of national environmental agencies called the 
Chester network. In parallel, the Fifth Environmental Action Programme recognised the 
unsatisfied need for a proper follow up of the application of Community environmental 
legislation by announcing the setting up of an implementation network comprising 
representatives of relevant national authorities and of the Commission in the field of 
18 
practical implementation of Community measures35. The Chester Network v/as then 
modified to create the informal EU Network for the Implementation and Enforcement 
of Environmental Law (IMPEL). Composed of appropriate representatives of the 
Member States and jointly chaired by the Commission and the Member State holding the 
Presidency of the Council of the European Union, IMPEL has a rather wide mandate to 
consider the implementation of environmental legislation, including mainly questions 
of how to ensure better enforcement by national, regional and local bodies. The present 
focus on enforcement could be broadened to include implementation and legal policy 
issues. The work carried out so far has included the following matters36: 
- A comparison of technical standards and pollution control technology for various types 
of facility in each of the Member States, resulting in technical guidelines for 
regulatory bodies for a number of industries, for example, power plants, incinerators, 
refineries, cement, glass and chip board production. 
- Exchange of information and comparison of experience on the permitting of industrial 
installations in the Member States and examination of the application of EC legislation 
in Member States and the practical aspects of the regulatory process, for example, 
reports on the cross-media evaluation of environmental impacts from industrial 
installations, and on the application of EC! Directives on municipal waste incinerators 
and on large combustion plants. 
- Comparison of enforcement arrangements within Member States, dealing with 
compliance assessment and inspection, for example, a report is to be published in the 
second half of 1996 outlining the Member States' legislation, organisations and 
mechanisms for inspection, monitoring and enforcement, including statistics, inspection 
visits and enforcement actions. 
- Exchange programmes for inspectors, providing in-depth understanding of the 
regulatory systems in each country and, facilitating the future exchange of information 
between inspectorates, and preparation of "skills and management" manuals for 
inspectors, covering both the regulatory process and facility inspections. 
- Examination and publication, of a report on the monitoring and enforcement 
mechanisms for the transfrontier shipment of hazardous waste within the EU. 
56. IMPEL can play an important role in improving cooperation in implementation matters 
between the Commission and the Member States and between and within the Member 
States, but it may also improve coordination between different enforcement agencies 
within each Member State through internal coordination in preparation of Member States' 
positions within IMPEL. Just as there is a need for a coordination at the level of the 
Community and the Member States, there is often also a need for coordination within 
35 
36 m m c 13$, n.s.199$, p. m. 
The papers produced by IMPEL are disseminated tftiomgfc the IMPEL Secretarial, which is hosted 
by DGXI m the European Commission. 
19 
the Member States. Networks could help diminish the problems which arise from (he 
decentralised implementation and enforcement of Community environmental legislation 
mentioned earlier37. If such networks38 existed or were established in every Member State 
by the national governments acting with the competent national and regional authorities, 
IMPEL could (hen serve to coordinate these Member Stale networks at ;i Community 
level, the purpose being to most usefully exploit the resources available at every relevant 
level of the Member States. Given the almost complete reliance on publicly funded 
authorities for environmental enforcement, such co-ordination would lead to economies 
of scale and help to maximise the return gained from experience in any particular 
Member State. In addition, the designation of focal points in these national networks 
could be expected to improve the communication between the Commission and the 
various relevant national authorities. 
The Commission will consider the existing position of the informal IMPEL network 
as a useful instrument of cooperation and capacity building, and will make 
proposals for improving, developing and reorganising its tasks. It will encourage the 
creation of national coordination networks to be linked with IMPEL through the 
national coordinators. 
Reporting, monitoring and evaluation 
Evaluation of effectiveness of measures 
57. It is noticeable that, despite the large quantity of environmental measures which have 
been enacted by the Community, in some respects improvements to the environment have 
not been forthcoming at a desirable rate, and in other respects environmental conditions 
may in fact have worsened. Past efforts to monitor the effectiveness of Community 
measures have been hampered by the lack of information on proper implementation: it 
can be difficult to know whether lack of progress in a particular area is due to the 
ineffectiveness of Member State's implementation or to the ineffectiveness of the 
provision made by the directive. Any evaluation of the practical effectiveness of a 
measure is therefore dependent in the first place on information regarding the 
implementation of that measure. Once that information has been obtained, it can be 
ascertained whether the provisions contained in the measure are effective and, if not, 
whether existing provisions need to be strengthened or whether an alternative approach 
to the problem is indicated. 
58. A review clause is more and more often inserted in Community environmental 
legislation, and much can be drawn from this exercise in terms of experience and 
improvement of the legislative framework. It remains to be seen on the basis of the 
experience to be gained in the application of the reporting requirements, for instance the 
37 See paragraphs 13 and 14 above. 
38 In this context, it should be explored whether the EIONET telematics network under the European 
Environment Agency could play a useful role as regards implementation. 
20 
first report to be published by the Commission in pursuance of the Reporting Directive, 
which concerns the water sector, is due only in June 1997, whether the practical 
arrangements to be taken by the Member States with a view to collect the relevant 
information are workable and the data collected reliable. In-depth assessment of the 
effects of a measure requires the collection of relevant information, data and experience. 
The Reporting Directive39 and the new network on environmental information set up at 
Community level under the coordination of the European Environment Agency40 could 
prove very helpful in this respect, especially considering the fact that scientific and 
technical assessment is of great importance when appraising the effectiveness and 
efficiency of environmental legislation. Other means of ensuring the feed-back from 
Member States and from those affected by the legislation to the Commission should also 
be explored. 
Through the most effective use of the Reporting Directive, and close cooperation 
with the European Environment Agency, the Commission will ensure that the best 
possible information is available on the effectiveness of Community environmental 
measures and can be used in the formulation of its policies on environmental 
protection. The Commission will launch and coordinate case studies to evaluate the 
transposition, application and enforcement of selected provisions of Community 
environmental law. It will aim to ensure a wide dissemination of the information 
resulting from those case studies. 
European Environment Agency 
59. The European Environment Agency was set up in 199041 to provide the Community and 
the Member States with objective, reliable and comparable information at the European 
level which will enable them to take the requisite measures to protect the environment, 
to assess the results of such measures and to ensure that the public is properly informed 
about the state of the environment. The Agency therefore has a crucial role to play in 
the provision of information which will enable the evaluation of the effectiveness of 
Community environmental measures. This role is equally important in relation to the 
Commission's work on the formulation and adoption of Community environmental 
legislation and on its implementation: the provision of information and technical advice 
on the Commission's new proposals for environmental protection. The Agency is 
therefore a vital link in the regulatory chain, in that its role links the end of the 
regulatory chain in relation to measures which have been adopted and implemented to 
the beginning of the regulatory chain in relation to the measures which follow on from 
the earlier legislation, amending it as necessary so that it can more effectively and 
39 
40 
41 Council Directive 91/692/EEC of 23 December 1991 standardizing and rationalizing reports on the 
implementation of certain directives relating to the environment (OJ No L 377 of 31.12.93, p. 48). 
Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European 
Environment Agency and the European environment information and observation network (OJ No 
L 120 of 11.5.1990, p. 1). 
Council Regulation (EEC) 1210/90 of 7 May 1990 (see previous footnote). 
21 
efficiently prolecl the environment. The EEA could also be more actively involved in 
the assessment and the follow up of the reports received under the Reporting Directive 
and other directives with specific reporting requirements (e.g. the Birds Directive). 
The Commission will closely involve the Agency on the evaluation of the effects of 
Community measures, and ensure that the information, knowledge and skills of the 
Agency are fully utilised in assisting the Commission in its role of formulating 
proposals for new Community environmental measures and reviewing existing 
legislation. 
Promoting knowledge of Community environmental law 
60. Implementation starts with knowledge of the provisions to be implemented. Community 
directives are usually applied on the basis of the transposing national act, which is 
usually sufficiently well known by the competent national authorities and in a form 
familiar to them. Timely and correct transposition is therefore crucial to the practical 
application of a directive, furthermore it should be ensured that the implementing 
national measures clearly refer to their Community origin, thus allowing the national 
judges to interpret them accordingly and to ensure primacy of Community measures vis­
a-vis any conflicting national provisions. The situation is, however, different if 
transposition is lacking, incomplete or wrong. As the Court stated in its judgment 
Costanzo/Milano42, not only national courts but every national authority has to apply 
directly applicable provisions of European law by putting aside incompatible provisions 
of national law. This is, in fact, a difficult task, as the Advocate General pointed out in 
his conclusions to the above mentioned case. Even if the competent authorities have 
knowledge of the relevant provisions, there might be the tendency to avoid their 
application. Although European law has primacy over national law and is part of the 
national legal orders, there may be resistance among practitioners to the application of 
laws which have a format which can be very different to that usually in place in the 
Member States. 
The Commission will consider initiatives for financial and technical assistance for 
increasing awareness in Community environmental law, in particular by judges, 
lawyers and officials of the Member States. Community finance in the framework 
of "Life 2" can also contribute to horizontal measures such as tclematic networks 
or training in relation to the improvement of the application and enforcement of 
environmental legislation. 
Community funding and the implementation of Community environmental law 
61. There are different sources and forms of Community funding relating to the environment. 
42 Judgment of 22.6.1989, C-103/88, [1989] ECR 1839 (1870). 
22 
•n 
44 
4 S 
46 
47 
48 funding under "Life" contributes exclusively to the development and the 
implementation of environmental policy, but other financial instruments provide for 
important funding for the environment even though they are not specific to the 
environment. Under the Cohesion Fund44, which provides assistance for environmental 
and transport infrastructure projects, eligible measures include projects which aim at full 
compliance with Community environmental legislation, in particular in three sectors: 
water supply and water quality, waste water treatment and solid waste. In the Member 
States eligible for assistance from this Fund, Community funding of environmental 
projects may be important in assisting them to apply and enforce Community 
environmental legislation. In addition, assistance under the Structural Funds,45 which 
principally consists in co-financing of operational programmes and national aid schemes, 
may include projects with environmental aspects to them. 
62. Community funding ' must, in accordance with the integration principle, take into 
consideration the environmental laws of the Community.47 Nor should the Commission 
co-finance projects which have a negative impact on environmental interests which are 
protected under Community legislation, such as special areas of conservation protected 
under the Habitats Directive, unless the project complies in principle and practice with 
the protective requirements of that legislation. It is also important that all Community 
funds are granted in an appropriate policy context. Not just Community environmental 
legislation, but also Community environmental policy, is to be taken into account in the 
grant and expenditure of Community funds48. Any proposal for Community funding 
should be assessed against and comply with Community environmental policy and 
legislation. 
Council Regulation (EEC) No 1973/92 of 21 May 1992 establishing a financial instrument for the 
environment, (OJ L 206 of 22.7.1992). 
Council Regulation (EC) No 566/94 of 16 May 1994 establishing a Cohesion Fund (OJ L 72 of 
16.3.94). Financial perspectives for environmental projects in 1996 amount to approximately 1.7 
billion ECU. 
Council Regulation (EEC) No 2081/93 of 20 July 1993 amending regulation (EEC) No 2052/88 
on the tasks of the Structural Funds and their effectiveness and on coordination of their activities 
between themselves and with the operations of the European Investment Bank and the other 
existing financial instruments (OJ L 193 of 3 1.7.1993). 
This reference also includes those EAGGF actions which relate to structural funding, ie the 
Guidance Section of the Fund. 
For instance, the Community should not in principle fund sewerage projects if the Member State 
which receives the funding has not transposed the Urban Waste Water Treatment Directive, since 
in such a case the legal framework defining the practical modalities for individual project is 
lacking. 
See eg. Article 8(1 ) of Council Regulation (EC) No. I 164/94 establishing a Cohesion Fund (OJ No 
L 130/1 of 25.5.94). 
23 
63. Once a decision to grant Community funding has been made, compliance with the 
requirements of the Community's environmental law and policy must be assured. 
Community regulations granting financial assistance to Member States require as a matter 
of principle that the competent authorities should ensure that the recipients of the aid will 
comply with the requirements of Community policy and law on the environment. This 
principle applies whether or not there are existing infringement proceedings in relation 
to the project benefitting from Community financing, since it is the Commission decision 
granting the funding itself that requires compliance with Community environmental law 
and policy. The possibility of suspending payments or requesting repayment is an 
important tool in ensuring compliance with Community environmental policy and law 
in relation to Community financing. The Commission should enhance its compliance 
checking and monitoring of Community funded projects. 
The Commission will consider additional measures to ensure that the Community's 
environmental objectives and the requirements of European Community 
environmental law are fully integrated into decisions to grant financial assistance 
to Member States and in the monitoring of projects financed by the Community. 
00000O00000 
PART IV: CONCLUSION 
64. The Commission considers that priority has to be accorded to measures to improve the 
implementation of Community law as the Community moves into an era of consolidating 
the acquis communautaire so far achieved in the environmental field. 
65. Furthermore, the Commission concludes from experience, that the current means of 
ensuring implementation, which relies principally upon the use of the procedure under 
Articles 169 and 171 of the Treaty although important, powerful and necessary, have 
proved to be insufficiently speedy and appropriate for protection of the environment 
from breaches of Community law. Certainly, some of the problems which are related 
to the special features of environmental law can be reduced through broadening the mix 
of environmental instruments, but there is also a need for a greater diversity and 
decentralisation of control mechanisms. 
66. Consequently, the Commission, in this Communication introduces a new broad approach, 
encompassing the whole regulatory chain and all relevant actors. It suggests a number 
of new proposals aimed at improving the state of implementation of Community 
environmental law at all levels. 
67. The Commission expects to raise awareness on the overall picture of implementation and 
enforcement drawn by this Communication at all levels, and thereafter to exercise fully 
its right of initiative in the light of responses to the Communication and the debate about 
what should be done to improve the situation, by all actors concerned, at all different 
levels. 
oooooOooooo 
24 
ANNEX I: DEFINITIONS 
The "Regulatory chain'1 is the whole process through which legislation is designed, conceived, 
drafted, adopted, implemented and enforced until its efficiency is assessed. It is a 
methodological tool allowing for a "holistic" approach to address instruments of environmental 
policy. 
"Transposition" in this Communication means any legislative, regulatory or administrative 
binding measure taken by any competent authority of a Member State in order to incorporate 
into the national legal order the obligations, rights and duties enshrined in Community 
environmental directives. Transposition thus includes not merely the reproduction of the words 
of a directive in national law, but also any additional provisions, such as the amendment or 
repeal of conflicting national provisions, which are necessary in order to ensure that national 
law as a whole properly .reflects the provisions of a directive. In some Member States, 
transposition measures have to be adopted at national/central level only, while in some others, 
regional authorities have exclusive competence in certain fields of environment policy (e.g. 
nature conservation falls within the competence of the German and Austrian Lander). It may 
also happen that both levels have to take transposing measures in case of shared competencies. 
"Practical Application" is defined as the incorporation of Community law by the competent 
authorities into individual decisions, for instance when issuing a permit or devising executing 
a plan or programme. Community legislation is directly applied by national authorities in 
case of regulations and directly applicable provisions of directives. However, once a directive 
is correctly transposed, it is applied through the national transposing measures. It also includes 
providing the infrastructure and provisions needed in order to enable competent authorities 
to perform their obligations under Community law and to take the appropriate decisions. 
"Enforcement" is defined broadly as all approaches of the competent authorities to encourage 
or compel others to comply with existing legislation (eg. monitoring, on-the-spot controls, 
sanctions and compulsory corrective measures) in order to improve the performance of 
environmental policy with the final goal of improving the overall quality of the environment. 
25 
ANNEX II: IMPLEMENTATION PROBLEMS BY SECTOR 
Problems of implementation and enforcement arise in all sectors in relation to which the 
Community has adopted environmental laws. This Annex gives more details of the types of 
implementation and enforcement problems which arise in just four sectors: water, waste, 
nature protection and environmental impact assessment. 
Water 
In relation to the improvement of water quality, the size and the complexity of the obligations 
imposed by the traditional approach of the Community legislation in this area, which relies 
principally on fixing quality objectives, establishing clean up programmes and systems of 
prior authorisation and the compilation of reports, still creates considerable problems for the 
administrations of the Member States. Some of the Member States have major difficulties 
in satisfactorily applying the Community directives in this area. 
The case of Directive 76/464/EEC on dangerous substances discharged to surface water is a 
good example. The Commission is taking infraction proceedings against many Member States 
for non-notification of pollution reduction programmes for substances in List II of the Annex 
to the Directive. The application of Directive 76/160/EEC on bathing waters continues to 
raise problems in several Member States. 
In relation to Directive 91/676/EEC on agricultural nitrates, several Member States have still 
not notified their national transposing measures. Most Member States have problems in 
relation to the application of the Directive (lack of designation of vulnerable zones, absence 
of codes of good agricultural practice, failure to put in place surveillance programmes, non­
communication to the Commission of reports required by Article 10 of the Directive). The 
Commission is following closely the problems of the application of this Directive in the 
Member States, and is opening infraction proceedings in appropriate cases. 
The Commission also receives complaints on the quality of drinking water (Directive 
80/778/EEC): often the lack of adequate technical infrastructure is behind the complaints 
about this directive. The task of the Commission in ensuring compliance with Community 
standards is sometimes rendered more difficult by the methods used in some Member States 
to enforce water quality standards. 
Waste 
Community legislation on waste management applies to a great number of waste recovery and 
disposal operations carried out by economic operators; each and every of these operations 
should normally be processed in accordance with Community waste legislation and 
transposing national legislation; waste disposal facilities being subject to a permit system 
while waste recovery facilities should be at least registered. Even shipping waste between 
26 
Member States is covered by a Community Regulation. 
The whole system therefore relies to a very great extent on the performance by national, 
regional and/or local competent authorities of the different actions necessary with a view to 
processing the numerous permit applications, granting the permit under the conditions 
prescribed by the laws and regulations, monitoring the compliance by the economic operators 
with the permit and the conditions set out therein and, in case of non compliance, taking 
corrective measures and sanction the non compliance. Moreover, the competent authorities 
are also responsible for enforcing waste legislation with respect to activities which are illegal 
per se in the absence of any permit granted (e.g. illegal dumping of waste). 
Most of the more difficult problems of implementation in the waste sector relate to failures 
of application within the Member States: illegal dumping, bad disposal practices, and the 
pollution of water through the direct discharge of waste into water. To be effective, this 
whole system requires a decentralized network of competent authorities be in place and to 
actively fulfil their roles; decentralization constitutes a more cost effective response to the 
environmental challenge posed by waste since a very good knowledge of the actual situation 
on the spot is absolutely necessary in order to correctly and efficiently apply the law as the 
factual circumstances require it. 
Nature 
The most important Community instruments in the field of nature are Directive 79/409/EEC 
on the conservation of wild birds and Directive 92/43/EEC on the conservation of natural 
habitats and of wild flora and fauna. These directives give rise to considerable problems of 
implementation, and together they annually generate a significant number of complaints. 
The Commission is well placed to play an important role in ensuring the adoption and 
conformity of national legislation as well as the achievement of major Community goals such 
as the establishment of Natura 2000 (a Community network of protected sites). However, the 
majority of complaints made in relation to these two directives concern threats to individual 
sites, where the Commission faces considerable difficulties. Site-specific complaints often call 
for a consideration of complex and localised factors, and will also often also relate to quickly 
evolving circumstances (for example, they may concern damaging projects which are already 
being carried out). The centralised enforcement mechanism currently available to the 
Commission is unsuited to dealing with such complaints, particularly in terms of speed of 
response, use of experts with local knowledge, and site visits. 
Environmental Impact Assessment 
Directive 85/337/EEC on environmental impact assessment constitutes one of the most 
frequent legal basis for complaints, petitions, parliamentary questions and infringement 
procedures. 
Infringement procedures by the Commission mostly result from incorrect transposai into the 
national legal orders: conformity problems still subsist in several Member States, most notably 
27 
concerning the transposition into national law of the categories of projects listed in Annex II 
of the Directive. 
Complaints and petitions tend mostly to be about the quality of the impact assessment studies, 
the examination of alternatives, and the failure of competent authorities to act on opinions 
validly expressed at public inquiries. It is very difficult for the Commission to investigate and 
intervene in such cases, the Directive being primarily of a procedural nature and not giving 
to the Commission enforcement powers to investigate the quality of the assessments or to 
monitor the results of the assessment process. 
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ISSN 0254-1475 
COM(96) 500 final 
DOCUMENTS 
EN 14 06 
Catalogue number : CB-CO-96-540-EN-C 
ISBN 92-78-10642-9 
Office for Official Publications of the European Communities 
L-2985 Luxembourg