Opinion of the European Economic and Social Committee on ‘Implementation of EU environmental legislation: air quality, water and waste’

(exploratory opinion)

(2019/C 110/06)

Rapporteur: Arnaud SCHWARTZ

Referral European Parliament, 3.5.2018 Legal basis: Article 304 of the Treaty on the Functioning of the European Union Exploratory opinion Bureau decision 17.4.2018 (in anticipation of the referral) Section responsible Section for Agriculture, Rural Development and the Environment Adopted in section 27.11.2018 Adopted at plenary 12.12.2018 Plenary session No 539 Outcome of vote (for/against/abstentions) 117/2/6

1. Conclusions and recommendations

1.1. The EESC welcomes the purpose of the Environmental Implementation Review (EIR), which is to provide an informed picture of where each Member State stands, identifying their main shortcomings in implementing EU environmental legislation, as well as to recommend remedial measures and to provide support to those Member States lagging behind in terms of implementation, in particular through a new peer-to-peer tool for technical assistance.

1.2. acquis is in the interest of European citizens and has real economic and social benefits. In its opinion ( 1 ) on this subject however, the EESC considers that the EU EIR reveals that poor, fragmented and uneven implementation of the EU environmental legislation is a serious problem in many EU Member States. Both now as in the past, behind the root causes of poor implementation identified in the EIR there still appears to be a lack of political will on the part of many Member State governments to make substantial improvement a political priority and to provide sufficient resources (e.g. through the multiannual financial framework — MFF). The EESC therefore recalls that proper implementation of the EU’s environmentalis in the interest of European citizens and has real economic and social benefits.

1.3. Similarly, as argued in the above-mentioned opinion ( 2 ) , the EESC reiterates that effective implementation of environmental protection measures hinges partly on civil society — employers, workers and other representatives of society — being granted an active role. The EESC consequently repeats its call for stronger and structured involvement of civil society, which would have the potential to strengthen EIRs. For the EESC, civil society organisations at national level must be given the opportunity to contribute their expertise and insight to the country reports as well as to the structured country dialogues and the follow-up to them. For this reason, the EESC is ready to facilitate civil society dialogue at EU level in the framework of a truly sustainable and circular economy.

1.4. In its opinion on the EU action plan to improve environmental compliance and governance ( 3 ) , the EESC again stresses that current shortcomings are undermining people’s trust in the effectiveness of EU legislation, and renews its call for the Member States and the Commission to mobilise substantial funding for the recruitment of additional staff, in order to monitor the implementation of environmental governance and legislation.

1.5. The EESC underlines that in some cases, environmental investments, awareness raising of the public or strong enforcement chains are also needed and that even if environmental inspectors already exist, Europe and its Member States also need specialised judges and prosecutors.

1.6. The EESC also points out that, as indicated in its opinion ( 4 ) , in addition to action with regard to the relevant Member States and public, aimed at communicating and raising awareness of the rules to be complied with, measures must be taken relating to monitoring and enforcement at EU level by the Commission as ‘guardian of the treaty’. The action plan ( 5 ) fails to address reasons for non-compliance with the rules such as opportunism or lack of political will. While it is necessary to support the Member States, the EESC once again points out that the soft measures of this action plan cannot be the sole strategy for improving environmental compliance.

1.7. Both the EIR and the action plan follow a two-year cycle. The EESC emphasises that it should play an active role in monitoring and developing their content, so that the voice of civil society is heard in the ongoing process of improving the EU’s environmental policies.

1.8. Moreover, since a number of European Commission documents show that many shortcomings are due to a lack of cooperation between different governance levels (national, regional, local) response for implementing environmental legislation, the EESC also urges the EU to involve civil society in the ongoing monitoring and evaluating of this implementation.

1.9. EU citizens consider environmental protection to be of crucial importance. The majority of citizens however think that the EU and national governments are not doing enough to protect the environment. The Council, Parliament and Commission should consequently work together more closely with the EESC’s help to meet people’s expectations. More specifically, this ambition could take the form of requesting the EESC to draw up an exploratory opinion on how civil society could contribute more to drafting and applying EU environmental legislation.

1.10. In immediate terms, the EESC calls on the Commission to share the EIR’s list of all identified shortcomings per Member State in the implementation of EU environmental legislation regarding air quality, water and waste. The list should be based in part on indications made to the Commission, and on consultation with organised civil society. It also calls on the Commission to define and subsequently apply remedies to correct these failings. The EESC, to the extent of its means and expertise, is willing to contribute to this definition and to take part in evaluating the future implementation of such remedies.

1.11. The EESC considers that the Commission should not only propose legislation, but also facilitate and support the application of law, and also make existing texts more consistent with each other and bring them more into line with scientific advances and international commitments intended to protect public health and restore the proper functioning of ecosystems. Without these ecosystems neither economic development nor social justice is possible. In particular, the implementation of environmental legislation is essential for the achievement of the UN Sustainable Development Goals (SDGs) and to put climate agreements into practice. Consequently, the EESC draws the attention of the competent authorities to a number of examples of improvements to environmental legislation concerning air, water and waste in this opinion.

1.12. Lastly, in the light of the recent proposal for a directive on single-use plastics, it appears certain that the high level of acceptance of the proposed measures is due to the information and media measures on plastic pollution of the oceans, which have brought about greater citizens’ awareness of the problem. The EESC considers that the same applies for many other measures capable of providing people living in the EU with a healthy place to live and adaptation to climate disruption, and of halting the collapse in biodiversity. In this regard, the EESC restates the need for the committed participation of civil society in favour of population education and the expected redoubling of efforts by European, national and local authorities to making the public, together with public and private decision-makers (in particular in SMEs-SMIs), to these major challenges of the 21st century.

2. General comments

2.1. The European Economic and Social Committee (EESC) welcomes the European Parliament’s (EP) openness to collaboration represented by this request for an exploratory opinion on the implementation of EU environmental legislation in the areas of air quality, waste and water.

2.2. The implementation of EU environmental legislation in the areas of air quality, waste and water relates in particular to the protection of ecosystems; it also opens up new economic opportunities and developments benefiting the health of Europeans. Implementation not only raises the issue of transposing directives into domestic law — this is only the initial step — but also entails the establishment of the necessary public authorities or the provision of existing means in terms of human resources, skills and responsibilities, expertise and financial means. Environmental investment (public and/or private) is needed in many cases (e.g. for water and waste treatment) and, in others, activities having a negative environmental impact must be regulated (e.g. to safeguard air quality).

2.3. An improvement in implementation of EU environmental legislation should become a priority in all Member States, and the public authorities responsible for these matters should be reinforced. Many previous EESC opinions have made recommendations in this regard and, more broadly, concerning the implementation of existing EU environmental legislation in the areas of air quality, water and waste. The EESC therefore draws attention to these, covering individually air ( 6 ) , water ( 7 ) and waste ( 8 )

2.5. It is clearly necessary to implement existing law that facilitates the establishment of a single market that is conducive to free and undistorted competition and that merits the trust of citizens, be they producers or consumers — a law that can deliver high standards of quality and safety as regards the protection of populations and their environment. In addition to this, however, it seems essential to seek to mitigate the shortcomings of the existing legislation by also ensuring that the EU systematically secures, in bilateral or multilateral trade negotiations, the equivalence of its social and environmental legislation for imported products.

2.6. With this in mind, all the observations, conclusions and recommendations set out in this exploratory opinion must be seen not as a risk, but as an opportunity to steer our work in such a way as to create advantages, whether competitive or cooperative, that offer direction and a future in economic, social and environmental terms.

2.7. Finally, whether it concerns air, water or waste, disparities between Member States in the application of EU law must be avoided. If not, this will lead to distortions in competition, environmental and social inequalities or artificial barriers that hinder the management of resources that are shared and by their very nature cross-border. Therefore, to strengthen all existing and future measures, we should find ways to achieve harmonisation of taxes on pollution and resources and respond to the need to better calibrate the existing tools in line with the externalities to be covered. Environmental policies should no longer serve as an adjustment variable but become a key lever for a strategic shift of direction for human, craft, agricultural and industrial activities within the Union and, through positive spillover effects, also in other regions that are home to its political and trading partners.

3. Specific comments

3.1. The implementation of EU environmental legislation in the area of air quality

Together with water, nature and waste, air quality is one of the sectors with the highest number of infringement cases. In May 2018, the Commission stepped up enforcement against six Member States who breached EU rules on air quality, referring them to the Court of Justice (16). The EESC acknowledges that the Commission is currently undertaking a Fitness Check on the air quality directive, assessing the performance of the AAQ Directives in the period 2008-2018. In particular, efforts to improve the implementation of outdoor air quality legislation would contribute to SDG 11 on sustainable cities.

As far as air quality is concerned, we should also remember that atmospheric pollution has a threefold effect:

1) on health, to such an extent that air pollution inside and outside remains a major risk factor within the European Union (17) and elsewhere. It is even, in fact, the principal health and environmental risk in the world (18), with 6,5 million premature deaths a year and a high cost to society, health systems, the economy and all those whose health it affects. A recent report by the European Court of Auditors on air pollution estimated the number of premature deaths at some 400 000 annually, noting that the health of European citizens is not always sufficient protected and that EU action has not had the expected effects;

2) on biodiversity (effects on crops, forests, etc.);

3) on contemporary and, of course, historical buildings, themselves connected with tourism.

3.1.1. Indoor air

a) To improve the quality of indoor air, consumers should be made aware, through labelling, of the emissions of products purchased, be it, for example, construction materials, products for decoration, furnishing or household products. To this end, the EU should compare the laws of its Member States and adopt a coherent framework based on existing best practices.

b) Once a building has been finished and delivered, there should be an obligation to maintain and regularly monitor the quality of ventilation. This long-term monitoring of buildings would obviously have a beneficial impact not just on health, but also on energy.

c) In order to protect vulnerable sections of the population, including those whose respiratory systems are impaired or still developing and need better air quality, action plans should be implemented to this end in establishments frequented by the general public and especially young children.

d) Finally, it would be useful to harmonise practices in air purification. The EU should provide a definition of criteria for measuring their efficacy and safety, in order to avoid, for example, any commercial or health deviation in consequence of the relative lack of rules at this time.

3.1.2. Outdoor air

a) Achieving better air quality and increased trust between citizens and the European institutions requires not just that current regulations are applied more rigorously and their flouting more severely penalised, but also that the standards laid down in EU directives finally incorporate the missing recommendations of the World Health Organization (WHO) when these offer greater protection for people’s health.

b) Today, only PM10 and PM2,5 particles (micrometre scale) are monitored. However, in terms of health, some ultrafine particles (UFPs) have much greater effect (nanoscale) because they penetrate more deeply into the human body and can accumulate in the organs. European legislation would therefore need to take this reality on board and provide for these particles to be monitored so that their presence in the air is also gradually decreased.

c) The same should be done for polycyclic aromatic hydrocarbons (PAH) and various other pollutants that are not already monitored, including those linked to incinerators, ships, land vehicles, construction plant etc., especially since continued advances in scientific knowledge and technical capabilities would make it possible to achieve better health and ecosystem protection even now.

d) Here, the directive on national emission ceilings (NEC) (19) is essential in order for Member States to reduce their air pollutant emissions. However, it only proposes indicative measures according to the principle of subsidiarity in order for the Member States to comply with the emission reduction commitments. The implementation it provides for is so elastic as to make its regulatory effect far too weak.

e) There is also room for improvement insofar as the directive did not propose a methane emission reduction target, a source of air pollution that is essential, since it is an ozone precursor, as well as a very powerful greenhouse gas.

f) In order to ensure harmonisation across the different EU regulations, the Common Agricultural Policy (CAP) should introduce targets on air pollution from the agricultural sector. This sector is responsible, for instance, for over 95 % of ammonia emissions, a pollutant covered by the NEC directive. The CAP should provide adequate tools for the Member States to reach their reduction targets in this area.

g) Finally, it should be remembered that the quantification of pollutants is currently based on weight (μg/m3), even though, for many years now, toxicologists have argued strongly at scientific fora that it would be better to quantify them by number of particles. Such an approach makes all the more sense because we are dealing with ultrafine elements that we breathe (20).

3.2. The implementation of EU environmental legislation in the field of water policy

As regards water, it should be pointed out that, while the Framework Directive is generally satisfactory, its implementation remains weak and most Member States have failed to establish the good environmental status expected in 2015. The same can be said in respect of Natura 2000, as a result of the widespread failure of the contractual instrument. Various improvements and new features could be introduced, particularly given scientific progress on soil functioning, on the one hand, and the dispersion and interaction of certain pollutants, on the other. This will be examined below. Progress in implementation of EU legislation on water would help achieve several targets related to SDG 6 on clean water and sanitation.

One of the most critical areas related to water is the implementation of the Urban Waste Water Treatment Directive, where there are strong differences in compliance among Member States, due to a combination of governance issues and funding. Although the Commission has made major efforts in the current mandate, there are still considerable financing needs in this area, as well as governance-related problems to solve. Based on the proven experience of solid waste management, new ways of making producers responsible for financing supplementary waste water treatment aiming at capturing emerging pollutants — such as pharmaceuticals and micro plastics — should be developed.

3.2.1. Surface water

a) To improve the state of surface waters, and also to avoid reversals in environmental law and governance, it would be better to define certain concepts such as ‘ecological continuity’, ‘watercourses’ and ‘wetland’. It is essential, for example, that the rules defining wetlands are specified at European level, since an approach based solely on the purpose of protection is too complex to be effectively transposed into national law, at least in some Member States.

b) Similarly, it would be useful to have a unified framework for conducting assessments that is clear and shared by all the stakeholders involved in the implementation of the relevant legislation.

c) Whether we are talking about nanoparticles — for example, from the textile and agri-food industries — or endocrine disruptors — such as those from the pharmaceutical industry and agriculture –, their dissemination in the environment should be reduced at source and limits established that are not to be exceeded in surface waters and groundwater in the light of their impact on ecosystems, and in particular on food chains that include humans. To this end, the means should finally be adopted of determining, including over the longer term, the cocktail effect thresholds between these substances, the various substances already monitored and their degradation by-products.

3.2.2. Groundwater

a) Regarding the legislation on water, the provisions on the recovery of the costs incurred by the various categories of users, the internalisation of external costs and a charging scheme in line with costs — as set out in the Directive establishing a framework for Community action in the field of water (21) — are neither sufficiently binding nor sufficiently detailed to be effective enough.

b) With climate change, groundwater recharging may become all the more problematic. This is because in some places urban design or agricultural practices are leading to an undesirable rupture in the water cycle because of sealed soils or soils with insufficient biological activity which promote surface run-off, erosion and mud slides, rather than infiltration, purification and natural storage. To stop these phenomena getting worse, the Union must adopt regulation to promote living soils. This would also have the advantage of addressing problems of quality and quantity of water available for both ecosystems and human consumption, and for agricultural and industrial activities.

c) Given their role in triggering rain by evapotranspiration, as well as in filtering, purifying and storing water in soil and water tables, far more attention should be paid to forests and hedges, and also, to a lesser extent, permanent grassland and arable land left unploughed over the long term. These should also, where feasible, be present and spread throughout Europe — all the more so because they are also a considerable help to other living creatures, including many crop auxiliaries, in dealing with temperature spikes and other extreme weather events that are becoming increasingly common.

3.2.3. Directive establishing a framework for Community action in the field of water policy

With a view to better implementation of the Water Framework Directive, it would be expedient to change this regarding certain aspects touched on above and bearing on the following points:

a) The status of water in the preamble — ‘Water is not a commercial product like any other’ — should be replaced with ‘Water is not a commercial product’.

b) Given the status of water in Europe, application of the principles of prevention and precaution requires the repeal of all exemptions — those set out in Article 4(5) and Article 7(4), for example.

c) Because of the status of water, an environmental assessment must be required for all projects that are likely to affect water and aquatic environments. The ‘simplified assessment procedure’ (Article 16) should be removed.

d) The polluter pays principle, and especially its implementing rules, should be reviewed, with: — a reformulation of Article 9: the wording ‘Member States shall take account of the principle of recovery of the costs of water services, including environmental and resource costs, having regard to the economic analysis conducted according to Annex III, and in accordance in particular with the polluter pays principle’ should be replaced with ‘Member States shall implement the recovery of the direct and indirect costs of the impact of human activities on water in accordance with the polluter pays principle’; — deletion of the exceptions referred to in Article 9(4); — addition of all the sectors, indicating the three areas (agriculture, industry, households) for which Member States must draw up rules to eliminate the externalisation of costs. An annual report would set out, by sector, how to implement this process.

e) It would also be necessary to replace all expressions of the type ‘ensure that’ with a real obligation (for example, in Article 11, paragraph 5 or Article 14, first paragraph).

f) Similarly, it would appear necessary to lower the threshold values of pollutants, including in combination with other directives (on nitrates, chemicals, etc.), and to update the priority substances (for example by including perfluorinated compounds, nanotechnologies, etc.).

g) Public participation (Article 14) needs to be improved, primarily with regard to planning. It should be extended to programmes of basic and supplementary measures as well as all prior administrative checks.

h) Concerning litigation (Article 23), it should be added that, in accordance with the Aarhus Convention, the Member States must introduce rules and procedures on public access to litigation concerning water.

3.3. The implementation of EU environmental legislation in the field of waste

The Impact Assessment underlying the recently-adopted waste legislation identified several problems with implementation: legal/regulatory, as well as issues related to governance and awareness-raising. Shortcomings in implementation of the Waste Framework Directive are often due to the lack of economic instruments, e.g. those making recycling more attractive than landfilling. However, setting up such economic instruments can be problematic for municipalities. Local authorities often do not have the capacity to translate EU measures and instruments at local level, which points to an issue of governance. Enforcement is also a major problem in several Member States. The EESC acknowledges that the Commission has worked in recent years with Member States to address such shortcomings in implementation, for example providing technical support and specific guidelines on what needs to change through the two compliance promotion exercises undertaken in 2012 and 2015.

The newly adopted legislative proposals on waste should solve some of the problems with implementation and help contribute to SDG 12 on sustainable consumption and production, but issues related to governance and enforcement still have to be dealt with at national level. Together with the Commission, the EESC has set up a European Circular Economy Stakeholder Platform which has already achieved significant results, facilitating collection, exchange and dissemination of expertise and good practices existing among the various stakeholders. This platform is a key tool which deserves to be more widely used to encourage the implementation of EU legislation in this area.

3.3.1. Waste prevention

a) The recent review of waste policy (22) is an opportunity to give strong backing to measures to reduce our needs at source (including our demand for raw materials and secondary raw materials), as well as the creation of future waste, in particular that hazardous for ecosystems and human health. This means that we have to question our needs and the things we produce and how we design them, to make them last longer and then transform them with the least possible loss in material, which will have an impact generally on the environment, energy sovereignty and economic sustainability.

b) So that we can talk of ‘sustainable materials’ instead of ‘waste’ and of a circular economy, we must, from the very product design stage, remove toxic and dangerous components that will complicate any future recycling phase.

c) When it comes to packaging, sobriety should prevail and further progress should be as great as possible, gradual and mandatory in order to avoid any distortion of competition towards different take-back and re-use schemes, existing and to be developed.

d) The ability of our societies to re-use and repair our products is itself one of the ways of preventing waste. To achieve this, there should be ambitious legislation with mandatory targets that must be achieved rather than just voluntary measures.

e) In order to decouple economic development from the consumption of natural resources and environmental impacts, the EU needs to set itself more ambitious targets in order to increase resource efficiency in our production systems.

3.3.2. Waste management

a) In order to gain and maintain the confidence of the population — producers as well as consumers —, the circular economy must regularly take on board the latest scientific knowledge and so insure itself against any future scandals, including public health scandals, arising from the concentration or dispersion of pollutants in recycled materials (bromine or endocrine disruptors, for example) or the environment (nano- or microplastics).

b) This will be all the more credible and effective if, to improve recycling rates for all types of materials, traceability of their components has been put in place at the production stage and if the greatest possible transparency has been ensured up to the point where they reach the consumer.

c) The same level of protection for human health and the environment should therefore apply to recycled or virgin materials within the European Union. The use of recyclable materials should not allow the use of dangerous chemicals in higher concentrations to continue. As a result, when restrictions and limits for chemicals under the REACH regulation (23) are set, the European Chemicals Agency should lay down the same limits for recycled materials. Materials that do not comply with these limits must be processed so that the substance is withdrawn or rendered ineligible for re-use or recycling.

d) Above and beyond eco-design, to which smartphones and other electrical and electronic products should be subject, the EU should frame and carry out a waste management policy worthy of the name within its borders rather than sending waste abroad.

e) It is clear from the life-cycle analysis (LCA) that all recycling options are better than incineration (in particular because of the embodied energy, in plastics for example) except for wood in some special cases, and also for some hazardous waste products/materials. This, like landfilling, must gradually disappear and ambitious targets must be set to this end.

Brussels, 12 December 2018. The President of the European Economic and Social Committee Luca JAHIER

(1) Opinion on the EU Environmental Implementation Review (OJ C 345, 13.10.2017, p. 114).

(2) See footnote 1.

(3) Opinion on EU actions to improve environmental compliance and governance (OJ C 283, 10.8.2018, p. 83).

(4) See footnote 3.

(5) COM(2018) 10 final.

(6) Opinion on A Clear Air Programme for Europe (OJ C 451, 16.12.2014, p. 134) and on Freeing the EU from asbestos (OJ C 251, 31.7.2015, p. 13).

(7) Opinion on An Action Plan for nature, people and the economy (OJ C 129, 11.4.2018, p. 90); on International ocean governance: an agenda for the future of our oceans (OJ C 209, 30.6.2017, p. 60) and on Quality of water for human consumption (OJ C 367, 10.10.2018, p. 107).

(8) Opinion on Restrictions on hazardous substance (RoHS) (OJ C 345, 13.10.2017, p. 110); on Options to address the interface between chemical, product and waste legislation (OJ C 283, 10.8.2018, p. 56); on A Strategy for plastics in a circular economy (including the treatment of waste from ships) (OJ C 283, 10.8.2018, p. 61); on The role of waste-to-energy in the circular economy (OJ C 345, 13.10.2017, p. 102); on the Circular Economy Package (OJ C 264, 20.7.2016, p. 98).

(9) Opinion on Access to justice in environmental matters (OJ C 129, 11.4.2018, p. 65).

(10) See footnote 1 and footnote 3.

(11) Opinion on a New Deal for Consumers (OJ C 440, 6.12.2018, p. 66).

(12) Opinion on The transition towards a more sustainable European future (OJ C 81, 2.3.2018, p. 44) and on New sustainable economic models (OJ C 81, 2.3.2018, p. 57).

(13) Opinion on the 2030 Agenda — a European Union committed to sustainable development globally, adopted 20 October 2016 (OJ C 34, 2.2.2017, p. 58) and on the core role of trade and investment in meeting and implementing the SDGs (OJ C 129, 11.4.2018, p. 27).

(14) Opinion on Trade and sustainable development chapters in EU Free Trade Agreements (OJ C 227, 28.6.2018, p. 27).

(15) Opinion on The Paris Protocol — A blueprint for tackling global climate change beyond 2020 (OJ C 383, 17.11.2015, p. 74) and on Climate Justice (OJ C 81, 2.3.2018, p. 22).

(16) http://europa.eu/rapid/press-release_IP-18-3450_en.htm.

(17) According to the European Environment Agency.

(18) According to the WHO.

(19) NEC Directive.

(20) https://www.sciencedirect.com/science/article/pii/S0048969711005730?via%3Dihub

(21) Water Framework Directive.

(22) http://ec.europa.eu/environment/waste/target_review.htm.

(23) REACH regulation — Regulation (EC) No 1907/2006 of the European Parliament and of the Council (OJ L 396, 30.12.2006, p. 1, as amended in OJ L 136, 29.5.2007, p. 3).