Opinion of the Economic and Social Committee on the 'Communication from the Commission: implementing Community environmental law` (97/C 206/02)

On 5 November 1996 the Commission decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for Protection of the Environment, Public Health and Consumer Affairs, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 1 April 1997. The rapporteur was Mrs Sánchez Miguel.

At its 345th plenary session (meeting of 23 April 1997) the Economic and Social Committee adopted the following opinion by 106 votes to three with six abstentions.

1. Introduction

1.1. With the adoption of more than 200 legislative instruments, Community environmental legislation now forms a major part of the acquis communautaire. Many of these instruments are directives which have been transposed differently in the Member States, leading the Commission to pay closer attention to how the transposition and observance of this legislation can be enforced more effectively.

1.2. The purpose of enforcing the observance of environmental legislation must be to ensure that the environment is protected effectively in all the Member States and regions of the EU, so that future strategies can be developed on a level playing field; otherwise the differences which exist today could mean a distortion of competition preventing the single market from operating properly.

1.3. In this new stage the Commission proposes a series of measures which, while not losing sight of the fact that the Member States must retain their sovereignty in this area, are aimed at making environmental legislation more effective by establishing new areas for action and in particular by reinforcing existing systems. The ultimate objective is to improve the operation of European environmental legislation.

1.4. The Commission must, however, take into account the actions undertaken in the fifth Community environmental action programme (), recently revised (), in order to integrate all these measures in the interests of sustainable development.

1.5. By the same token it should be pointed out that the Commission is preparing for enlargement of the Community through cooperation with the authorities of the countries concerned and that the implementation of environmental legislation is, in the ESC's view, a key issue for future integration. Similarly the Commission is urged to adopt, within its terms of reference, environmental measures which can be used by other European countries.

2. General comments

2.1. Under Articles 169 and 171 of the Treaty, the Commission is responsible for ensuring that Community legislation is applied, although it must be pointed out that these articles (Article 169 especially) were not adopted specifically to protect the environment; their formal and lengthy procedure means that decisions take a long time and are consequently less effective in an area where measures are required to prevent further damage.

2.2. It should not be forgotten that the application of Community environmental legislation varies considerably from one country to another, in some cases because of the diversity of climatic, geographical and environmental conditions, in others because of the relationship between the proposed measures and economic realities (population, income, etc.). At all events, none of these reasons justifies failure to comply with the environmental regulations, unless it be that, in accordance with the subsidiarity principle, the competent authorities may adapt them to local differences.

2.3. Furthermore, the fact that different authorities are responsible for the environment, from national government down to local bodies, complicates the implementation of legislation; since there is no uniform political model in the Member States, it is difficult to establish a single system for monitoring the enforcement of environmental legislation.

2.4. To judge from the complexity of environmental legislation, it is clear that the rules need to be redrafted clearly and precisely; the aim must be to simplify and consolidate the rules as necessary, and then to compile them thematically, at all times bearing in mind the principles of prevention and precaution as called for in Treaty Article 130r(2). This should improve compliance.

2.5. At all events, the content of international treaties and conventions signed by the EU must be reflected in all EU environmental policies.

3. Measures proposed for the implementation of environmental legislation

3.1. The measures contained in the Commission's communication fall into two parts; firstly, measures affecting the Member States, based on the establishment of guidelines to facilitate environmental inspection and the creation of a procedure for complaints and access to justice; secondly, reinforcing the existing Community system.

3.2. Measures affecting the Member States

3.2.1. Regarding the measures affecting the Member States, it should be pointed out that since the directive is the most widely used legislative instrument, their transposition into national law may vary considerably. In practice this creates real differences from one country to another, though not necessarily a failure to comply with the directives. Under Treaty Article 155 the Commission is entrusted in general terms with the task of ensuring that the provisions are applied.

3.2.2. The first guideline which it is proposed that the Member States follow is that they use the powers conferred on them by Treaty Article 5 (adoption of all appropriate measures to ensure fulfilment of Community obligations) to set up an environmental inspectorate with general powers to ensure that the rules are respected, with special emphasis on checking industrial emissions and environmental quality standards.

3.2.3. The justification for this measure is that the existing systems face difficulties in enforcing environmental legislation effectively. Nevertheless, it will be the Member States who decide whether the present systems - where they exist - are adequate or not for implementing this measure, in accordance with rules adopted at Community level.

3.2.4. The Committee welcomes the Commission's proposal to draw up recommendations for a harmonized environmental inspection system. For it to be really effective however, the present situation needs to be studied first, a task best entrusted to IMPEL () and the Environment Agency.

3.2.5. The Committee thinks that for the proposed inspection measures to be effective, the Commission must reinforce its monitoring and inspection powers in the Member States on the basis of Treaty Article 155 and even, if necessary, provide itself with the means of doing this.

3.2.6. The second measure proposed, a complaints and investigation procedure, concerns the minimum criteria which the Commission considers should govern the systems established in the Member States.

3.2.7. The current systems range from an ombudsman, parliamentary commissioner, attorney, etc., to countries with no specific body. Their effectiveness is uneven since it depends on the powers conferred on them by national legislation.

3.2.8. A non-judicial procedure for environmental complaints would mean that, through the environmental recommendations, some minimum criteria would be established for resolving complaints and for the investigations needed to enforce the rules. In this way the bodies set up would be recognized by the public and their rulings respected by the parties.

3.2.9. It is necessary to point out that, while for consumers the effectiveness of action by complaints bodies has been demonstrated, in the case of the environment it is difficult to predict the outcome, taking into account the scale of the damage, the dispersion of those affected and, above all, the lack of Community rules to regulate environmental damage compensation.

3.2.10. The third measure proposed is to facilitate access to justice for environmental complaints as a last resort to solve problems; this is difficult nowadays as the procedure is cumbersome and lengthy.

3.2.10.1. For access to justice to be effective, certain reforms should be considered: first of all, the right to bring an action must be broadened along the lines of a class action before an administrative court or the Court of Justice in Luxembourg, so that an action may be brought not only by those directly involved but also by any representative socio-economic environmental organization.

3.2.11. Furthermore, and so that the action is effective, some provision should be made for reducing the legal costs which are frequently so high as to dissuade organizations which do not have a sufficient budget, such as NGOs, neighbourhood associations, etc., from bringing a complaint (). To this same end, the length of the proceedings should be limited, provided that this does not render any of the parties defenceless.

3.3. Measures to reinforce existing Community systems

3.3.1. The communication puts forward six measures aimed at reinforcing the Community's environmental systems as regards:

- the quality of Community legislation;

- transparency;

- improving cooperation;

- reporting, monitoring and evaluation;

- promoting knowledge of Community environmental law;

- funding.

3.3.2. All these measures are intended to improve the application of Community environmental law on the basis of cooperation between the Member State authorities and the Commission and, in particular, by involving all EU citizens more closely in the framing and monitoring of such legislation.

3.3.3. The first measure proposed, the quality of environmental legislation, is divided into two actions, one concerning the legislative process and the other sanctions at national level.

3.3.4. Regarding the former, the Commission proposes greater involvement of existing bodies, including the Parliament, but does not mention the ESC as provided for in Treaty Article 130s(2). The Committee therefore calls for an express reference to the ESC in the text. It also calls for recognition of the need to consult national and international organizations involved with the environment at European level.

3.3.5. The quality of environmental legislation will be improved by clear and simple rules which can be understood by all interested parties and by simplification of their content (without making them less scientific and rigorous), so as to reduce the number of provisions by using framework directives wherever possible.

3.3.6. As regards national sanctions, the Committee would reaffirm the relevant general principles, especially the 'polluter pays` principle; financial penalties should, however, be backed by other measures to reinforce the sanction (), such as suspension of administrative authorizations for firms and organizations infringing environmental legislation. To the same ends, consideration should be given to suspending Community financial assistance, whether the transgressors be administrative authorities or private companies.

3.3.7. On the subject of sanctions at EU level, consideration could be given to creating a register of firms and organizations infringing Community environmental rules which would disbar them from receiving EU aid for a certain period of time, depending on the seriousness of the infringement.

3.3.8. The Committee also calls on the Commission to firm up its ideas on the question of compensation. This applies both to the liability of the state for the non-implementation or inadequate implementation of directives and to the liability of polluters (environmental liability law).

3.3.9. The ESC approves the measure for strengthening transparency in the application of legislation - as well as any measures aimed at increasing the participation of all interested parties and not just official bodies - since this will help to improve the quality of the legislation and, above all, cooperation with the Commission.

3.3.10. The use of existing networks is another way of improving cooperation; for this it would seem appropriate to use IMPEL as a coordination network between countries and, in particular, as an information and consultation body for environmental topics.

3.3.11. The European Environment Agency is also very important where coordination, information and consultation are concerned; the ESC therefore thinks that the duties of this body should be upgraded, not only in its relations with the Commission, but also with the Member States and environmental organizations.

Brussels, 23 April 1997.

The President of the Economic and Social Committee

Tom JENKINS

() OJ No C 138, 17. 5. 1993; OJ No C 287, 4. 11. 1992.

() OJ No C 140, 11. 5. 1996; OJ No C 212, 22. 7. 1996.

() Informal EU Network for the Implementation and Enforcement of Environmental Law.

() In this connection see the ESC Opinion on the Community action programme promoting non-governmental organizations primarily active in the field of environmental protection, OJ No C 204, 15. 7. 1996.

() Account will be taken of the Council of Europe's draft convention on the protection of the environment by means of penal legislation.