COMMUNICATION FROM THE COMMISSION - IMPLEMENTING COMMUNITY ENVIRONMENTAL LAW
Date: 1996-10-22
Institutions: European Commission
Subjects: EU financing, EU law, access to the courts, environmental law, sanction (EU)

COMMISSION  OF  THE  FUROPEAN  COMMUNITIES 

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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  9 1% 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 

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. 

7 

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. 

10 

O JL  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 
adaptations  and  changes  of  approach).  Because  of  the 
and  urgent  innovations, 
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 

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". 

14 

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 
the  application  of 
States:  the  Commission  is  -unable  tc  oversee,  on  the  ground, 
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". 

the  "shared 
industry,  citizens  and  non-governmental  organisations)  bear 
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. 

in 

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 
the 
law  of  Community  origin.  Consequently, 
Community 
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. 

that 
in  all  Member  States  more  or 

law  becomes  applicable 

transposition  ensures 

timely 

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 
the  environment,  to  request  information  from 
administrative  decisions  affecting 
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 
It  is 
the  need  to  protect  the  environment  may  be  limited  by  any  of  these  factors. 
therefore 
improving  enforcement  of 
that  supplementary  avenues  for 
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. 

important 

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 
It  varies 
Community  environmental  laws  differs  widely  throughout  the  Community. 
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 

For example the report on implementation of Directive 85/337/EEC, Article  11(3). 

29 

Judgment of 21.09.1989, Case 68/88, [1989] ECR 2965, points 23 and 24. 

30 

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, 
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. 

industry,  etc.)  when  elaborating  proposals  should 

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 

information  concerning 

and  infringement  proceedings  in all  sectors covered  by Community  law.  To  complete 
the  monitoring  of  the  application  of  Community 
the 
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 
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. 

in  the  first  place  on  information  regarding 

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 

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). 

41 

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. 
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  situation  is,  however,  different 

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 

to 

"Life" 

the  development  and 

contributes  exclusively 

the 
funding  under 
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. 

•n 

44 

4 S 

46 

47 

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. 

48 

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 
speedy  and  appropriate  for  protection  of  the  environment 
proved  to  be  insufficiently 
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 
In  some  Member  States, 
law  as  a  whole  properly .reflects  the  provisions  of  a  directive. 
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 
legislation  and 
should  normally  be  processed 
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 

in  accordance  with  Community  waste 

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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 

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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 

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