Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions - Environmental Agreements at Community Level - Within the Framework of the Action Plan on the Simplification and Improvement of the Regulatory Environment
Date: 2002-07-17
Institutions: European Commission
Subjects: action programme, drafting of EU law, regulation, simplification of legislation

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 17.7.2002
COM(2002) 412 final

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT, THE COUNCIL, THE ECONOMIC AND SOCIAL COMMITTEE
AND THE COMMITTEE OF THE REGIONS

Environmental Agreements at Community Level
Within the Framework of the Action Plan on the Simplification and Improvement of the
Regulatory Environment

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT, THE COUNCIL, THE ECONOMIC AND SOCIAL COMMITTEE
AND THE COMMITTEE OF THE REGIONS

Environmental Agreements at Community Level
Within the Framework of the Action Plan on the Simplification and Improvement of the
Regulatory Environment

Table of Contents

1.

2.

3.

4.

4.1.

4.2.

5.

6.

7.

7.1.

7.2.

8.

Introduction.................................................................................................................. 3

The General Context .................................................................................................... 4

The 1996 Communication on Environmental Agreements and its Follow-up ............ 5

Self-Regulation and Coregulation in the Field of Environmental Policy .................... 7

Self-Regulation ............................................................................................................ 7

Coregulation................................................................................................................. 8

Basic Legal Conditions for the Use of Environmental Agreements ............................ 9

Assessment Criteria for Environmental Agreements................................................. 10

Procedural Requirements ........................................................................................... 12

Environmental Agreements as an Instrument of Self-Regulation.............................. 12

Environmental Agreements as an Instrument of Coregulation .................................. 13

Conclusion : The Next Steps...................................................................................... 13

2

1.

INTRODUCTION

On  5th  June  2002  the  European  Commission  adopted  the  Action  Plan  “Simplifying  and
Improving  the  Regulatory  Environment”1  in  accordance  with  the  mandate  issued  by  the
European Council at Lisbon and confirmed at the Stockholm, Laeken and Barcelona summits.
In  accordance    with  the  Conclusions  of  the  Seville  European  Council,  an  inter-institutional
agreement  on  this  proposal  is  expected  before  the  end  2002.  The  aim  of  simplifying  and
improving the regulatory environment is to ensure, in the interests of members of the public,
that  Community  legislation  is  more  attuned  to  the  problems  posed,  to  the  challenge  of
enlargement and to technical and local conditions. The  aim is also  to  ensure  a high level of
legal certainty across the EU and enable economic and social operators to be more dynamic
and thus help to strengthen the Community’s credibility.

The Commission stressed in the Action Plan that appropriate use can be made of alternatives
to  legislation  without  undermining  the  provisions  of  the  Treaty  or  the  prerogatives  of  the
legislator. There are several tools which can be used to achieve the objectives of the Treaty
while  simplifying  lawmaking  activities  and  legislation  itself  (coregulation,  self-regulation,
voluntary  sectoral  agreements,  open  co-ordination  method, 
interventions,
information campaign). A variety of approaches are possible under the self-regulation and the
coregulation  instruments.  The  overall  aim  should  be  to  seek  the  least  burdensome  option
consistent with the achievement of the goals pursued. While the Commission will be rigorous
in setting ambitious objectives and in strictly monitoring the results, it will also be supportive
of genuine efforts to achieve worthwhile progress by way of voluntary agreements. However,
the  Commission  should  remain  free  to  exercise  its  right  of  initiative  and  the  co-legislators
their right of control.

financial 

The environment is a policy field  with considerable recent experience of self-regulation and
voluntary  sectoral  agreements.  In  1996  the  Commission  issued  a  Communication  on
environmental  agreements  (see  Section  3  below)  at  national  level  but  which  did  not  deal
primarily with such agreements at Community level. Now that the Commission has adopted
the Action Plan on “Simplifying and Improving the Regulatory Environment” it is possible to
explain how the proposals of the Action Plan with regard to coregulation, self-regulation and
voluntary sectoral  agreements can be applied  in  the  context  of  environmental agreements at
Community level.  This Communication does not prejudice  the application of the Action Plan
in other policy sectors. It is also intended to give effect to the goal established under the 6th
Environmental  Action  Programme  (6th  EAP)  to  achieve  environmental  improvements  in  a
more cost effective and rapid way.

Environmental  agreements  can  come  from  a  variety  of  sources.  Firstly,  they  can  be  purely
spontaneous  decisions  initiated  by  stakeholders  in  a  broad  range  of  areas  in  which  the
Commission  has  neither  proposed  legislation  nor  expressed  an  intention  to  do  so.  The
Commission  encourages  stakeholders  to  be  proactive  in  developing  such  agreements.
Secondly,  they  can  be  a  response  by  stakeholders  to  an  expressed  intention  of  the
Commission to legislate. Thirdly,  they can be initiated by the Commission. The assessment
criteria  and  procedural  requirements  for  handling  environmental  agreements  will  depend  in
part on the source of the initiative.

1 

COM (2002) 278 final of 5.6.2002.

3

                                                
Policy makers have shown an increasing interest in environmental agreements in recent years.
The potential of such agreements between stakeholders – often representative associations of
business  –  to  contribute  to  environmental  policy  objectives  is  widely  recognised.  Member
States  and  the  Community  have  already  gained  some  experience  with  environmental
agreements,  and  the  results  so  far  are  encouraging.  While  such  agreements  are  not  an
environmental  panacea,  nor  will  they  be  the  optimal  instrument  in  all  circumstances,  they
have a potentially valuable role to play in complementing – but not replacing – other policy
instruments, notably legislation.

Clarity  of  definition  is  required  from  the  outset.  The  terms  “voluntary  agreement”,
“environmental agreement” or “long term agreement” are frequently used without distinction,
although  the  legal  form  and  content  of  these  instruments  may  differ  widely.  The  term
“agreement”  is  usually  also  applied  to  instruments  which,  in  legal  terms,  are  unilateral
commitments  from  industry  or  business.  In  the  interest  of  simplicity  and  clarity,  this
Communication only uses the term “environmental agreement”.

Environmental Agreements at Community level are those by which stakeholders undertake to
achieve pollution abatement, as defined in environmental law, or environmental objectives set
out in Article 174 of the Treaty. This Communication does not prejudge the dispositions to be
defined by the  inter-institutional  agreement  nor  the  modalities  and  criteria  to  be  applied  for
voluntary agreements in other fields than the environment, neither does it  concern the  “new
approach”  legislation.  Environmental  agreements  are  not  negotiated  with  the  Commission.
They  can  be  acknowledged  by  the  Commission  either  by  an  exchange  of  letters,  by  a
Recommendation  by  the  Commission,  by  a  Recommendation  accompanied  by  a  Parliament
and  Council  Decision  on  monitoring  or  under  coregulation  decided  by  the  Community
legislators. These environmental agreements should be distinguished from the environmental
agreements  entered  into  by  the  Member  States  as  a  national  implementation  measure  of  a
Community Directive.

2.

THE GENERAL CONTEXT

Since  the  late  1980s,  countries  both  within  and  outside  the  EU,  as  well  as  the  Community
itself, have made use of environmental agreements. The most comprehensive survey so far on
their  use  was  undertaken  by  the  OECD  in  a  Report  published  in  19992.  It  concludes  that
environmental  agreements  are  most  efficiently  used  as  part  of  a  policy  mix  alongside
legislative and economic instruments.

For the EU alone, the OECD Report lists a total of 312 environmental agreements concluded
in  the  Member  States  (based  on  a  1997  survey  conducted  by  the  European  Environment
Agency).  Some  Member  States  have  already  published  national  reports  on  their  approaches
towards  -  and  experiences  with  -  environmental  agreements.  The  OECD  Report  underlines
that  there  is  limited  quantitative  evidence  so  far  as  to  the  environmental  effectiveness  of
environmental agreements. Further research is needed in this field.  It  is clear, however, that
environmental agreements can bring qualitative benefits such as consensus building; broader
sharing of information;  awareness  raising  among  enterprises;  and,  improving  environmental
management  in  businesses.3  The  Commission  Proposal  for  the  6th  Environmental  Action

2

3

Voluntary Approaches for Environmental Policy – an Assessment. OECD 1999, ISBN 92-64-17131-2.
Environmental Agreements – Environmental Effectiveness, European Environment Agency, Environmental Issues
Series no. 3, 1997.

4

                                                
Programme  explicitly  highlights  the  need  to  achieve  such  qualitative  improvements  in
environmental policy design and implementation.

In  its  Communication  on  the  6th  Environmental  Action  Programme  (6th  EAP4),  the
Commission  explained  that,  partly  as  a  result  of  the  success  of  Community  environmental
legislation, “the sources of environmental pollution are no longer  concentrated in  individual
facilities  but  lie  in  manifold  economic  activities  and  consumer  behaviour.  This  limits  the
scope for solving them through simple  command-and-control.” As  a  consequence,  “in some
cases, non-regulatory methods will be the most appropriate and flexible means of addressing
environmental issues”. Alternatives to traditional regulation, such as voluntary commitments,
can also encourage enterprises to innovate and respond to environmental challenges.

The Internal Market, Consumer Affairs and Tourism Council also stated in its Strategy for the
integration  of  environmental  protection  and  sustainable  development  into  Internal  Market
policy that the adoption of transparent and effective environmental agreements by industry to
achieve  clear  environmental  objectives  should  be  encouraged  by  Member  States  and  by  the
Commission.5

The Industry Council, in its Conclusions adopted in May 20016, pointed out that “in a strategy
for the integration of sustainable development into Enterprise Policy,  within a balanced mix
of  policy  instruments  and  bearing  in  mind  that  such  a  strategy  cannot  rely  mainly  on
regulatory  instruments,  priority  should  be  given  to  market  based  as  well  as  voluntary
approaches”.

In  its  Communication  on  “Corporate  Social  Responsibility:  A  Business  Contribution  to
Sustainable  Development”7,  the  Commission  has  indicated  its  support  for  a  partnership
approach  which  aims  at  reaching  agreements  between  business  and  other  stakeholders  on
guiding principles for corporate social responsibility practices and instruments. This is  in line
with the approach set out in this Communication.

3.

THE 1996 COMMUNICATION ON ENVIRONMENTAL AGREEMENTS AND FOLLOW-UP

In  1996,  the  Commission  adopted  a  Communication  to  the  Council  and  the  European
Parliament on environmental agreements8. Environmental agreements were at that time a new
policy  instrument  to  supplement  regulatory  measures.  The  Communication  recognised  that
environmental agreements held a number of potential benefits, including:

– 

– 

– 

4

5

6

7 
8

a pro-active approach by industry;

cost-effectiveness and tailor-made solutions; and

faster achievement of environmental objectives.

COM(2001)31final of 24.1.2001.
Report  to  the  Göteborg  European  Council  of  15  and  16  June  2001.  See  also  the  Communication  from  the
Commission  to  the  European  Parliament  and  the  Council  "Single  Market  and  Environment"  of  08.06.1999,
COM(1999)263 final.
“Integration of Sustainable Development into Enterprise Policy”, Council Conclusions, 2347th Council
Meeting (Energy/Industry), Brussels, 14/15 May 2001; Council doc. 8763/01 of 29.5.2001
COM(2002)347 final of 2.7.2002
COM(96)561 final of 27.11.1996.

5

                                                
The  Communication  noted  that  achieving  these  outcomes  requires  agreements  to  have  well
defined environmental objectives, to be transparent to guarantee against “business as usual”,
to include enforcement mechanisms such as fines or other penalties, as well as approaches to
avoid “free-riding”. These and other requirements are considered in Section 5 below.

With  regard  to  environmental  agreements  at  Community  level  the  1996  Communication
observed, inter alia, that “for the time being, the Commission has … to resort to non-binding
agreements as the available instrument to encourage a pro-active approach from industry and
as  an  incentive  for  effective  environmental  action”.  Consequently,  the  Commission  has
proceeded on a case-by-case basis with this type of agreement.

The  best  known  examples  of  environmental  agreements  at  Community  level  are  the
agreements of the European, Japanese and Korean carmaker associations on the reduction of
CO²  emissions  from  passenger  cars.  These  were  acknowledged  through  Commission
Recommendations9. A Decision of the European Parliament and of the Council establishing a
scheme  to  monitor  the  average  specific  emissions  of  CO2  from  new  passenger  cars10
supplements  these  agreements.  No  final  assessment  of  the  success  of  these  agreements  is
possible so far, as they have not yet reached the end of their lifetime, but civil society, NGOs,
the  social  partners  and  the  public  in  the  broader  sense  should  be  involved,  in  light  of  their
respective roles, in future environmental agreements to a greater extent than was the case in
the past.

The  European  Parliament  and  the  Council  have  both  expressed  their  interest  in  a  clearer
definition of the procedures for reaching environmental agreements:

– 

– 

– 

In response to the 1996 Communication, the European Parliament, in a Resolution
of  17  July  199711,  called  on  the  Commission  “to  draw  up  proposals  for  a  possible
procedure  for  granting  a  negotiating  mandate  for  any  Environmental  Agreement  at
Community  level,  ensuring  when  it  does  so  that  Parliament  is  involved,  in
accordance with Article 130s(3) of the Treaty, both in the granting of the negotiating
mandate and during the negotiations”.

In its resolution on the Commission Green Paper on Environmental Issues of PVC,
the  European  Parliament  again  called  on  the  Commission  “to  present  as  soon  as
possible  a  proposal  for  framework  legislation  on  environmental  agreements,  which
lays  down  the  relevant  criteria  with  regard  to  conditions,  monitoring  arrangements
and penalties”12.

The Council stated in its resolution of 7 October 1997 on environmental agreements
“that  …  environmental  agreements  should  be  negotiated  in  accordance  with
procedures to be agreed”13.

The  Commission  recognises  the  need  for  a  clear  explanation  of  how  environmental
agreements  should  be  encouraged  and  handled  at  Community  level.  The  Action  Plan
“Simplifying and improving the regulatory environment”, and in particular chapter 2.1 thereof
“Making more appropriate use of legislative instruments”, already proposes a general answer

9

10

11

12

13

Recommendations 1999/125/EC, 2000/303/EC and 2000/304/EC.
Decision N° 1753/2000/EC of 22 June 2000, OJ L 202 of 10.8.2000, p. 1
OJ C 286 of 22.9.1997, p. 254.
PE 303.049, 3.4.2001, point 25.
OJ C 321 of 22.10.1997, p. 6.

6

                                                
to  this  call  which  is  to  be  discussed  between  the  three  Institutions.  This  Communication
specifies how environmental agreements should fit into this framework.

4.

SELF-REGULATION  AND  COREGULATION  IN  THE  FIELD  OF  ENVIRONMENTAL
POLICY

Environmental  agreements,  by  their  very  nature,  are  self-regulatory  practices  since  they  do
not  have  legally  binding  effects  at  Community  level.  Many  agreements  are  spontaneous.
However, according to its proposals in the Action Plan, the Commission may also encourage
or  acknowledge  them  (under  self-regulation)  or  propose  to  the  legislator  to  use  them  when
appropriate (coregulation).

It  should  be  underlined  that,  in  the  case  of  purely  spontaneous  decisions  initiated  by
stakeholders in areas in which the Commission has neither proposed legislation nor expressed
an  intention  to  do  so,  it  may  be  that  no  action  will  be  necessary  on  the  part  of  the
Commission.

4.1.

Self-Regulation

According to the Action Plan “Simplifying and Improving the Regulatory Environment”, self-
regulation  concerns  a  large  number  of  practices,  common  rules,  codes  of  conduct  and,  in
particular, voluntary agreements which economic actors, social players, NGOs and organised
groups  establish  themselves  on  a  voluntary  basis  in  order  to  regulate  and  organise  their
activities.  Unlike  coregulation,  self-regulation  does  not  involve  a  legislative  act.  Self-
regulation is usually initiated by stakeholders.

The  Commission  can  consider  it  preferable  not  to  make  a  legislative  proposal  where
agreements of this kind already exist and can be useful to achieve the objectives set out in the
Treaty. It could, however, propose that a formal process be introduced to enable it to closely
monitor progress on particular agreements.

4.1.1

Acknowledgement  of  the  environmental  agreement  by  an  exchange  of  letters  or
Commission Recommendation

In  the  environmental  field,  the  modalities  used  so  far  at  Community  level  to  acknowledge
self-regulation  include  Commission  Recommendations  and,  in  some  instances,  a  simple
exchange  of  letters.  In  other  words,  the  Commission  may  stimulate  or  incite  an
environmental  agreement  by  means  of  a  Recommendation  or  recognise  it  by  means  of  an
exchange of letters with the relevant industry’s  representatives, provided that the criteria set
out in section 6 below are met.

It  should  be  noted  that  a  Recommendation,  a  non-binding  act  by  its  very  nature,  can  only
encourage  economic  operators  that  have  chosen  to  engage  themselves  to  reach  an
environmental objective in line with Article 174 of the Treaty. The Commission can never, by
“acknowledging”  such  an  engagement,  forgo  its  right  of  initiative.  In  a  similar  way,  no
“acknowledgement” of an operators’ engagement by means of an exchange of letters can ever
constitute any kind of engagement from the Commission’s side.

7

4.1.2.

Acknowledgement  of 
the 
Recommendation accompanied by a monitoring Decision

environmental  agreement  by  a  Commission

In certain cases  the Commission  and the  legislator  may  have  an  interest in  the results of an
environmental  agreement  and  may  therefore  wish  to  monitor  it  closely,  for  example  by
combining  a  Commission  Recommendation  with  a  Parliament  and  Council  Decision  on
monitoring.

4.2.

Coregulation

Environmental  agreements can also be concluded in the framework of a legislative act i.e. in
a more binding and formal manner in the  context of regulation, thereby  enabling the parties
concerned  to  implement  a  specific  piece  of  Community  legislation.  Within  this  regulatory
framework, the legislator establishes the essential aspects of the legislation: the objectives to
achieve; the deadlines and mechanisms relating to its implementation; methods of monitoring
the application of the legislation and any sanctions which are necessary to guarantee the legal
certainty of the legislation. Coregulation is usually initiated by the Commission, either on its
own initiative or in response to voluntary action on the part of industry.

Coregulation can  therefore offer the  advantages of environmental agreements with  the  legal
guarantees  provided  through  a  legislative  approach.  The  Commission  proposes  to  the
legislator that coregulation be used on the basis of a legislative act. Thus, all proposals on the
subject concerned will be referred to the legislator.

Under  coregulation  arrangements,  the  European  Parliament  and  the  Council  would  adopt,
upon  a  Proposal  from  the  Commission,  a  Directive.  This  legal  act  would  stipulate  that  a
precise, well-defined environmental objective must be reached on a given target date. It would
also  set  the  conditions  for  monitoring  compliance  and  introduce  enforcement  and  appeal
mechanisms.  It  need  not  contain  detailed  provisions  on  how  to  reach  the  objective.  The
legislator determines to what extent defining and implementing the measures can be left to the
parties  concerned  because  of  the  experience  they  are  acknowledged  to  have  gained  in  the
field. These provisions must be compatible with European competition law.

Coregulation may also provide modalities for implementation. This means that in addition to
defining  the  “what”  and  “when”  only  until  the  target  date  is  reached,  procedures  including
review  clauses  foreseen  in  the  event  that  the  objective  is  not  met  at  the  target  date.  In  any
event,  in  cases  where  using  the  coregulation  mechanism  does  not  produce  the  expected
results, the Commission can exercise its right to make a traditional legislative proposal to the
legislator.

The legal act could therefore include intermediate targets which would allow an assessment of
whether  the  agreement  is  likely  to  achieve  its  objectives.  In  case  of  failure  to  meet  these
intermediate targets, coregulation could define the conditions under which the Member States
have to  apply  supplementary  provisions  defining  how  the  objectives  are  to  be  reached.  The
appropriate mechanisms should be carefully designed on a case-by-case basis.

This  approach  can  be  illustrated  by  a  hypothetical  example.  If  a  recycling  rate  of  60%  is
sought for a particular product or material, in a simple coregulation approach, the legal act – a
Directive–  would  set  the  objective  and  the  deadline  for  meeting  the  target  as  well  as
provisions on monitoring. The legal act could also foresee interim steps with lower recycling
targets at earlier dates.  If monitoring shows that these interim targets are not being  met and

8

the final objective is likely to be missed, additional measures could come into play, if they are
included in the initial legal act.

As  illustrated  by  the  debates  in  the  European  Parliament,  coregulation  is  one  of  the  most
sensitive issues faced not only by operators and organisations representing particular sectors
but also by the institutions. Within the framework of a legislative act, coregulation makes it
possible  to  ensure  that  the  objectives  defined  by  the  legislator  can  be  implemented  in  the
context of measures carried out by parties recognised as being active in the field concerned.
With a view to simplifying legislation, the Commission remains convinced that it is a method
whose  implementation  --  circumscribed  by  criteria  laid  down  in  a  joint  interinstitutional
agreement -- can prove to be a relevant option when it comes to adjusting legislation to the
problems and sectors concerned, reducing the burden of legislative work by focusing on the
essential  aspects  of  legislation,  and  drawing  on  the  experience  of  interested  parties,
particularly operators and social partners.

5.

BASIC LEGAL CONDITIONS FOR THE USE OF ENVIRONMENTAL AGREEMENTS

The EC Treaty does not contain any specific provision related to environmental agreements.
Nevertheless,  such  agreements  must  be  in  compliance  with  the  totality  of  the  Treaty
provisions, as well as with the international engagements of the Community.

(cid:1)  According to Article 175, decisions as to what action is to be taken by the Community in
environmental  policy  in  order  to  achieve  the  objectives  referred  to  in  Article  174  falls
within the competence of the Council and the European Parliament under the co-decision
procedure, upon a proposal from the Commission and after consulting the  Economic and
Social  Committee  and  the  Committee  of  the  Regions.  The  institutional  balance  in
decision-making must be respected when it comes to the use of environmental agreements
as an instrument of regulation.

(cid:1)  Environmental  agreements  have  to  comply  with  the  provisions  of  the  EC  Treaty  on
internal market and competition rules, including the Guidelines on state aids for the
environment.  They  should  therefore  be  in  compliance  with  Article  81  of  the  Treaty.
Section 7 of the Commission Notice on guidelines on the applicability of Article 81 of the
EC  Treaty  to  horizontal  co-operation  agreements14  specifically  addresses  environmental
agreements.

(cid:1)  Judicial  control  of  compliance  with  the  obligations  and  commitments  resulting  from  an
environmental  agreement  should  be  ensured  at  national  and,  in  accordance  with  the  EC
Treaty, at community level. The identification of individual and collective responsibilities
should also be ensured in order to allow for any sanctions which may be necessary.

(cid:1)  When 

to 

the 

it  comes 

implementation  of 

legal  obligations  under  multilateral
environmental  agreements  (MEAs),  the  Community  is  responsible  under  international
law, to the extent of its competence, for the implementation of all international agreements
it has concluded. This responsibility  cannot be transferred to other  actors such as private
parties  to  environmental  agreements  alone.  This  could  give  rise  to  problems  if

14

OJ C 3 of 6.1.2001, p.2.

9

                                                
environmental  agreements,  without  effective  safeguards  to  address  situations  of  non-
compliance, were the only instruments used to implement commitments under MEAs.

(cid:1)  Multilateral trade rules need to be taken into account in the design and implementation of
environmental agreements. In order to avoid discriminatory effects, it is essential to ensure
that environmental agreements are open to the participation of third country operators, both
in  the  preparatory  and  in  the  implementation  phase.  In  addition,  benefits  (e.g.  tax
exemptions)  granted  to  operators  participating  in  an  environmental  agreement  may  fall
under the scope of the WTO Agreement on Subsidies and Countervailing Measures. Hence
proposed  environmental  agreements  will  have  to  be  checked  also  in  the  light  of  full
consistency with WTO rules.

(cid:1)  The  UN-ECE  Convention  on  access  to  information,  public  participation  in  decision-
making and access to justice in environmental matters15 strengthens the “right to know”
of the public in the broad sense. Environmental agreements are explicitly listed under the
definition  of  “environmental  information”  in  Article  2  of  the  Convention.  It  is  therefore
necessary  to  ensure  that  information  on  environmental  agreements  is  made  accessible  to
the  public  in  accordance  with  the  provisions  of  the  Convention.  Beyond  legal
considerations,  transparency  in  both  the  “design”  and  the  “delivery”  phases  could  be  an
important element for the success of environmental agreements.

6.

ASSESSMENT CRITERIA FOR ENVIRONMENTAL AGREEMENTS

The  1996  Communication  already  identified  a  set  of  criteria  considered  necessary  for  the
appropriate use (and success) of environmental agreements. It listed “prior consultation with
interested parties, a binding form, quantified and staged objectives, the monitoring of results
as well as the publication of the agreement and of the results obtained. These criteria should
make it possible to avoid the stipulation of merely vague objectives, lack of transparency and
possible distortion of competition caused by free-riders”(p.3).

An environmental agreement must deliver added value in terms of a high level of protection
of the environment. Community policy on the environment shall always aim at a high level of
protection. Before acknowledging an environmental agreement, the Commission must make
sure that it also fulfils this condition. Its objectives should be derived in the first instance from
the  6th  Environmental  Action  Programme,  other  key  policy  documents  or  from  multilateral
environmental  agreements.  This  should  ensure  that  the  agreement  delivers  more  than
“business as usual”.

In addition, the Commission will give due attention to the following criteria under both self-
regulation and regulation.

i.

Cost-effectiveness of Administration

The  1996  Communication  already  underlined 
the  potential  cost-effectiveness  of
environmental  agreements  for  industry.  Beyond  the  general  arguments  put  forward  in  this
context – greater freedom for  business  on  how  to  reach  environmental  objectives  and  room
for  creative  tailor-made  solutions  -  agreements  must  also  be  assessed  in  terms  of  the
comparative administrative costs for the Community institutions.  The costs  of administering
environmental agreements could be particularly significant when it comes to monitoring and

15

“Aarhus Convention”, signed on behalf of the Community on 25.6.1998. Not yet approved.

10

                                                
compliance assessment in the enforcement phase. Environmental agreements should not lead
to  a  disproportionate  administrative  burden,  as  compared  to  their  objectives  and  to  other
available policy instruments.

ii.

Representativeness

The parties concerned must be considered to be representative, organised and responsible by
the  Commission,  Council  and  European  Parliament.  Industry  and  their  associations  taking
part in an agreement should represent the vast majority of the relevant economic sector, with
as  few  exceptions  as  possible.  Care  will  of  course  need  to  be  taken,  however,  to  ensure
respect for competition rules.

iii. Quantified and staged objectives

When  the  Commission  intends  to  issue  a  Recommendation  or  acknowledge  an  agreement
between  stakeholders  or  a  unilateral  commitment  of  stakeholders,  it  will  verify  that  the
objectives defined by the stakeholders are set in clear and unambiguous terms, starting from a
well-defined baseline.  If the  agreement  covers  a  long  time-span,  a  “road  map”  with  interim
targets  should  be  included.  It  must  be  possible  to  measure  compliance  with  objectives  and
(interim)  targets  in  an  affordable  and  credible  way  using  clear  and  reliable  indicators.
Research  information,  scientific  and  technological  background  data  should  facilitate  the
development of these indicators.

Under regulation, the objectives are already defined in the legal act. There is no need to repeat
them in the individual agreement.

iv.

Involvement of civil society

In the interest of transparency and in line with the 6th EAP as well as with the White Paper on
European Governance, all agreements should be widely publicised, including through the use
of the internet and other electronic means of disseminating information. The same holds true
for  interim  and  final  monitoring  reports.  All  stakeholders  –  industry,  environmental  NGOs
and  civil  society  in  a  broad  sense  -  should  be  informed  of  -  and  have  the  possibility  to
comment on - an environmental agreement.

v. Monitoring and reporting

When the Commission decides to acknowledge an environmental agreement by means of an
exchange  of  letters  or  to  formulate  a  Recommendation,  it  must  verify  that  the  agreement
contains  a  well-designed  monitoring  system,  with  clearly  identified  responsibilities  for
industry  and  independent  verifiers.  The  Commission,  in  partnership  with  the  parties  to  the
agreement, will monitor the achievement of the objectives.

Under  regulation,  the  monitoring  and  reporting  requirements  needed  for  checking  progress
towards the fulfilment of the environmental objectives should be integrated into the legal act
defining  these  objectives.  The  plan  for  monitoring  and  reporting  has  to  be  detailed,
transparent  and  objective.  To  this  end,  the  Commission  could  make  use  of  the  well-
established  system  of  environmental  verifiers  under  the  EMAS  Regulation.  The  final
assessment of whether the underlying environmental objective has been met will be made by
the Commission.

vi.

Sustainability

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Measures  in  favour  of  the  environment  should  be  consistent  with  the  economic  and  social
dimensions  of  sustainable  development.  The  protection  of  consumers’  interests  (health,
quality of life or economic interests) should  also be fully integrated.  Dependent on the scope
and content of the environmental agreement under regulation, an impact assessment might be
required, in line with the recent Communication of the Commission on impact assessment16.
The structure and depth of such an assessment might vary according to the characteristics of
the agreement.

vii.

Incentive compatibility

An  environmental  agreement  is  unlikely  to  deliver  the  expected  results  if  other  factors  and
incentives  –  market  pressure,  taxes,  and  legislation  at  national  level  –  send  contradictory
signals to participants in the agreement. Policy consistency is essential in this regard.

7.

PROCEDURAL REQUIREMENTS

The  Action  Plan  “Simplifying  and  Improving  the  Regulatory  Environment”  made  several
proposals to define the procedures to be followed by the three Institutions in the case of self-
regulation  and  coregulation.  This  Communication  proposes  procedures  in  line  with  this
framework but which should apply specifically to environmental agreements.

7.1.

Environmental Agreements as an Instrument of Self-Regulation

Once the Commission has completed its analysis of a proposed environmental agreement, it
may  inform    the  European  Parliament  and  the  Council  of  its  evaluation  and  conclusion,
indicating whether it considers that an agreement can be acknowledged. Such an intention to
acknowledge  an  environmental  agreement  could  be  included  in  the  Commission  work
programme or a broader paper, for example a sufficiently detailed White Paper or a Thematic
Strategy under  the 6th EAP. The European  Parliament  and the Council would  then  have  the
opportunity to organise information events or hearings on the subject at their discretion.

(cid:1)  The  Commission’s  evaluation  and  conclusion 

  as  to  the  appropriateness  of  an
environmental  agreement  will  be  made  publicly  available,  for  example  on 
the
Commission’s web site, in order to give the wider public a possibility to be informed of the
proposed agreement and to comment thereupon.

(cid:1)  After  considering  any  comments  received,  in  particular  those  from  the  European
Parliament  and  the  Council,  the  Commission  may  take  the  decision  to  proceed  by
recognising an environmental agreement.

(cid:1)  Any Recommendation referring to an environmental agreement should be published in the
Official Journal. The text of the environmental agreement itself should be published on the
Commission’s website.

(cid:1)  The Commission will verify, by appropriate monitoring  and reporting mechanisms, if the
underlying  environmental  objective  is  actually  reached.  The  monitoring  results  and  the
reports  will  be  communicated  to  the  European  Parliament  and  the  Council,  and  will  be
made accessible to the public by electronic means.

16

COM(2002)276 final of 5.6.2002.

12

                                                
(cid:1)  The  Commission  may  also  propose  monitoring  and  reporting  mechanisms  for  evaluating
the attainment of the environmental objective  in  the form of a Decision  by the European
Parliament and the Council.

(cid:1)  If an agreement considered in a Commission Recommendation or exchange of letters fails
to deliver the expected results, the Commission can make use of its right of initiative and
propose appropriate binding legislation.

7.2.

Environmental Agreements as an Instrument of Coregulation

(cid:1)  Under  coregulation,  key  elements  –  notably  the  environmental  objective  and  monitoring
requirements  -  and  potentially  also  a  follow-up  mechanism  in  case  of  failure  of  an
environmental  agreement  to  deliver,  are  integrated  into  the  legal  act  itself.  The  latter  is
subject  to  stakeholder  consultation  during  its  preparation,  in  line  with  the  Commission
Communication on minimum standards for consultation, and is adopted under normal co-
decision procedure. Given the above mentioned content of the  legal  act  itself, procedural
requirements for individual environmental agreements  submitted in the framework of the
legal act can be reduced.

(cid:1)  Where  the  Commission  decides  that  coregulation  is  the  best  means  of  achieving  an
environmental objective and where key elements of its proposal are based on an existing or
proposed voluntary agreement, which is satisfactory from the Commission’s point of view,
the Commission will include these elements in its proposal and pursue them in discussions
with the other institutions, making full use of the possibilities available to it in accordance
with  its  Communication  on  the  Action  Plan  “Simplifying  and  improving  the  regulatory
environment”.

(cid:1)  The  environmental  agreement  should  be  made  public  on  the  Commission’s  website.
Monitoring  results  and  associated  reports  should  also  be  made  available  by  electronic
means.

(cid:1)  Under  coregulation,  as  for  self-regulation,  the  Commission  can  always  make  use  of  its
right  of  initiative  and  propose  appropriate  binding  legislation  if  the  agreement  fails  to
deliver the expected results.

These  procedures  should  ensure  that  environmental  agreements  are  appropriately  used
wherever  they  are  considered  a  genuine  complement  to  existing  policy  tools.  At  the  same
time,  they  should  guarantee  the  involvement  of  European  institutions  in  the  process  as
appropriate.

8.

CONCLUSION: THE NEXT STEPS

The European  Commission wishes to encourage the preparation  of  voluntary  environmental
actions  as  well  as  environmental  agreements  at  Community  level,  over  a  wide  range  of
sectors,  going  beyond  those  where  the  Commission  has  announced  its  intention  to  propose
legislation.

For its part, the Commission intends to recognise and make use of environmental agreements
at  Community  level  on  a  selective  case-by-case  basis.  Since  the  instrument  will  not
necessarily  be  the  most  appropriate  in  all  circumstances,  it  is  helpful  to  identify  already  a

13

limited number of policy areas in which environmental agreements could offer an added value
or  in  which  parties  have  already  expressed  an  intention  to  present  agreements.  All  in  all,
leaving  aside  purely  spontaneous  decisions  initiated  by  stakeholders  in  areas  in  which  the
Commission  has  neither  proposed  legislation  nor  expressed  an  intention  to  do  so,  not  more
than  four  to  six  environmental  agreements  are  likely  to  be  considered  during  the  remaining
term of office of this Commission:

–  An early candidate would be the PVC Strategy.

–  Similarly,  environmental  agreements  might  be  considered  as  part  of  the  follow-up  to  the
Green  Paper  on  Integrated  Product  Policy17.  The  precise  identification  of  the  possible
scope of environmental agreements in this field will of course depend on the outcome of
the ongoing discussion of the Green Paper.

–  Other policy areas to be considered for the effective application of the instrument are in the
fields of waste management as well as climate change. The existing agreements on CO2
reductions  from  passenger  cars  might  be  complemented  by  similar  environmental
agreements  for  light  commercial  vehicles  (LVC).  In  addition,  the  Communication
“Towards  an  integrated  European  railway  area”18  proposes  voluntary  commitments
concerning the retrofitting of in-use rolling stock to meet the environmental requirements
applied to new rolling stock as a possible policy measure.

The Commission will continue to explore possibilities to develop other, additional modalities
that might complement the two models outlined above.

17

18

COM(2001)68 of 7 February 2001.
COM(2002)18 of 23 January 2002.

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