Commission staff working document - Accompanying document to the Communication from the Commission to the European Parliament and the Council on implementing European Community Environmental Law - The impact assessment {COM(2008) 773} {SEC(2008) 2852}
Date: 2008-11-18
Institutions: European Commission
Subjects: drafting of EU law, environmental law, environmental protection, right to justice

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  
SEC(2008) 2851 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying document to the  

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

on implementing European Community Environmental Law 

THE IMPACT ASSESSMENT 

{COM(2008) 773} 
{SEC(2008) 2852} 

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COMMISSION STAFF WORKING DOCUMENT 

Impact Assessment 

Follow up on Commission Communication to Parliament and Council on 
Implementing EC Environmental Law 

1. Policy Background  

In accordance with Article 211 of the EC Treaty, the Commission is responsible for ensuring 
that  Member  States  observe  and  implement  Community  law  properly.  In  particular,  under 
Articles  226  and  228  of  the  Treaty,  the  Commission  can  initiate  infringement  proceedings 
against Member States for failure to meet their obligations under Community law. 

With  over  200  legal  acts  to  monitor,  this  is  a  major  task  in  the  environmental  field.  These 
legislative measures cover all environmental sectors, including water, air, nature, waste, and 
chemicals,  and  others  which  deal  with  cross-cutting  issues  such  as  access  to  environmental 
information, and public participation in environmental decision-making. 

There are a number of ways in which the Commission monitors the application of Community 
environment law. In addition to undertaking its own studies and assessments, the Commission 
also investigates complaints from European citizens, petitions from the European Parliament, 
and questions from MEPs. The Commission can also use reports submitted by Member States 
themselves (pursuant to reporting obligations under environmental Directives), as a means of 
detecting breaches of Community environment law. 

If,  after  the  initial  investigation,  the  Commission  considers  that  a  breach  of  Community 
environment  law  has  occurred,  it  will  instigate  formal  infringement  proceedings  against  the 
Member State concerned. 

There  are  three  categories  of  breaches  of  Community  law.  Firstly,  “non-communication” 
cases,  where  a  Member  State  has  failed  to  adopt  and  communicate  to  the  Commission 
national  legislation  implementing  a  directive,  after  the  deadline  for  implementation  has 
passed.  Secondly,  there  are  “non-conformity”  cases,  where  the  Member  State  has  failed  to 
implement  a  directive  correctly.  The  final  category  is  “bad  application”,  where  a  Member 
State is failing correctly to apply Community environment law in practice in a particular case.  

The infringement procedure comprises several stages and is set out formally in Article 226 of 
the Treaty establishing the European Community. If the Commission considers that a Member 
State is failing to comply with Community environment law, it will issue, to the government 
of that Member State, a letter of formal notice. In this letter, it will request the Member State 
concerned, within two months of receipt of the letter, to submit its observations on the case. 
Where the Member State fails to do so, or where the Commission considers the response of 
the Member State to be inadequate, it will then issue a reasoned opinion. If the Member State 
then fails to comply with the reasoned opinion, usually within two months of the date of its 
issue, the Commission can refer the case to  the  European Court of Justice. In that case, the 
Court  will  then  make  a  decision  as  to  whether  the  Member  State  is  complying  with 
Community environment law.  

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The Commission has discretion as to whether or not to refer a case to the Court. For example, 
it may consider that whilst there is sufficient evidence of a breach of Community environment 
law, such action may not be appropriate or necessary if the Member State has undertaken to 
remedy the breach. The Commission will, in exercising its discretion, have regard to the duty 
on the Member States, under Article 10 of the Treaty, to fulfil the obligations of the Treaty 
and abstain from jeopardising the attainment of the objectives of the Treaty.  

If  the  Court  finds  a  Member  State  to  be  in  breach  of  Community  environment  law,  the 
Member  State  concerned  must  then  take  the  measures  necessary  to  comply  with  the 
judgement of the Court. If it fails to do so, it is open to the Commission to take further action 
against  that  Member  State  under  Article  228  of  the  Treaty.  The  Commission  can  issue  a 
further letter of formal notice and reasoned opinion, as under Article 226, on the basis of the 
failure  of  that  Member  State  to  comply  with  the  judgement  of  the  Court.  If  thereafter,  the 
matter is referred to the Court, and the Court finds that the Member State has not complied 
with its initial judgement, it may impose a fine on the Member State, in the form of a lump 
sum or penalty payment or both. 

2. Procedural issues and consultation of interested parties 

Questions concerning the implementation and enforcement of Community environmental law 
are a regular item for discussion with all key stakeholders. The European Parliament takes a 
particular interest in these questions, and the Commission has regularly discussed the need to 
improve  implementation  and  enforcement  work  in  the  environmental  sector  in  the 
Environment  Committee,  but  also  in  the  Petitions  Committee  and  the  Legal  Affairs 
Committee.  Discussions  are  also  held  on  a  regular  basis  with  national  authorities  through 
package  meetings  where,  in  the  most  recent  meetings,  the  Horizontal  Communication  has 
been  presented  and  the  idea  of  a  sectoral  Communication  on  the  implementation  of  EC 
environmental  law  has  been  outlined.  The  same  dialogue  has  also  been  held  with 
environmental  groups,  both  at  regular  meetings  which  take  place  in  Brussels  and  those  that 
now  take  place  in  conjunction  with  package  meetings  in  the  Member  States.  Questions  on 
environmental  enforcement  and  the  potential  for  improvements  in  the  implementation  of 
environmental  laws  have  also  been  regularly  discussed  with  environmental  inspectors  in 
IMPEL.1 

One  of  the  main  aims  of  the  Communication  on  implementing  EC  environmental  law  is  to 
update a wider audience as to the work being undertaken by the Commission, and to launch a 
debate  as  to  whether  the  priority  setting  proposals  and  idea  of  setting  up  a  pilot  project  for 
environmental front offices in the Commission delegations in two or three Member States are 
the best way forward. This Communication is therefore the starting point for a wider debate 
on  how  the  limited  resources  of  the  Commission  can  best  be  used  to  ensure  that  the 
environment is protected. 

1 

European Union network for the implementation and enforcement of environmental law. This network 
of national inspectors was formed in 1992. 

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3. The problem definition 

Citizens'  concern  about  the  environment  and  support  for  action  at  the  Community  level  has 
always  been  high2.  The  Commission  is  very  much  aware  of  the  concern  that  exists  for 
protecting the environment throughout the European Community. Significant correspondence 
is  received  from  citizens  and  environmental  groups,  bringing  these  concerns  to  the 
Commission’s  attention.  It  is  therefore  not  surprising,  when  it  comes  to  the  enforcement  of 
Community  law,  that  the  largest  caseload  is  consistently  that  handled  by  the  Environment 
Directorate General of the Commission.  

Open Cases in the Commission 
(as assessed in October 2007)

880

698

565

420

336

356

291

230

95

42

48

1000

900

800

700

600

500

400

300

200

100

0

Agriculture 

Competition

Enterprise & Industry
Employment

Information Society 
Environment

Internal Market 
Justice

Health 

Taxation 
Transport & Energy

The European Parliament is also increasingly active in its support  for  better  enforcement  of 
Community environmental law and regularly brings environmental concerns to the attention 
of the Commission through its Petitions Committee. As can be seen from the following table, 
environmental petitions in the Parliament regularly form a significant part of the work of the 
Commission, which assesses these, providing the Petitions Committee with its conclusions. 

2 

See  Eurobarometer  66,  published  in  September  2007,  which  found  that  on  average  almost  3  out  of  4 
respondents believe that priority should be given in their country to protecting the environment even if 
it affects economic growth. 

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The task of handling environmental enforcement and implementation questions comes with a 
special  set  of  needs.  The  significant  numbers  of  complaints  and  petitions  received  by  the 
Commission  from  concerned  citizens,  environmental  groups  and  industry  reflect  the  high 
expectations  people  have  that  the  Commission  will  ensure  the  timely  and  effective 
enforcement of the legislation adopted in this sector. The cases raised are in themselves often 
very  complex,  requiring  fine  judgement,  frequently  with  the  support  of  scientific  and  other 
technical  expertise.  In  the  environmental  sector,  over  57%  of  the  cases  registered  with  the 
Commission for investigation concern the application of the nature protection directives3, the 
directive on environmental impact assessment4 and directives in the waste sector. This is not 
surprising given that these are the directives that most come into play when proposals for new 
infrastructure  developments  are  made.  The  other  sectors  that  generate  sizeable  caseloads 
concern Community legislation on water protection and air quality, all of which have direct 
and tangible effects on people's quality of life.  

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Council  Directive  92/43/EEC  on  the  conservation of natural  habitats  and  of  wild fauna  and  flora  and 
Council Directive 79/409/EEC on the conservation of wild birds. 
Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on 
the environment as amended by Directive 97/11/EC. 

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Questions  are  frequently  asked  as  to  why  there  are  so  many  complaints  to  the  Commission 
about the implementation of EC environmental legislation. The answer is that the protection 
of the environment is a matter close to the heart of most European citizens. This high level of 
interest  translates  into  a  high  number  of  questions  and  complaints  being  sent  to  the 
Commission. Furthermore, the legislation being applied in this sector is often of a technical 
nature,  requiring  Member  States  to  make  a  judgement  call  when  deciding  to  give  the  green 
light  to  a  new  infrastructure  development  such  as  a  new  road,  landfill  or  shopping  centre. 
Much  of  the  legislation  adopted  at  the  EC  level  provides  a  mechanism  for  more  open  and 
considered decision making processes, providing Member State authorities with checklists of 
requirements  that  they  must  ensure  are  met  before  giving  development  consent  or  issuing 
permits. This may include an assessment as to whether a proposed development is likely to 
impact  on  a  nearby  area  designated  as  sensitive  for  its  nature  interest  or  to  increase  air 
pollution in an area already under pressure. Unlike legislation aimed at regulating products or 
markets,  this  kind  of  legislation  is  concerned  more  directly  with  matters  impacting  on  the 
daily lives of citizens. The technical nature of the questions raised, and the fact that many of 
the decisions being challenged before the Commission are decisions of judgement by national 
authorities, also explains why providing a suitable response to such complaints and petitions 
can  take  time.  Assessing  whether  a  particular  landfill  is  in  compliance  with  all  technical 
requirements or whether the decision to build near a protected nature site will or will not have 
negative impacts requires considerable technical input, frequently accompanied by numerous 
exchanges of mail or meetings with the national authorities concerned.  

Against this background, account also needs to be taken of the fact that the Community has 
undergone considerable and rapid expansion over the last few years to twenty-seven Member 

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States.  This  has  increased  not  only  the  population  of  the  Community  to  over  five  hundred 
million  people,  but  also  the  number  of  official  languages  in  which  the  Commission  must 
engage. It has not surprisingly increased the Commission’s workload with regard to ensuring 
the correct application of the law throughout the enlarged Community. The internal resources 
of the Commission are in the process of adapting to this enlargement, but resource shortfalls 
still exist with regard to ensuring that the situation in the newer Member States can be fully 
investigated by staff with the requisite language skills.  

The  body  of  environmental  law  at  the  Community level  has  also  increased,  in  certain  cases 
tackling new and complex areas such as emissions trading. Their application to an enlarged 
Community has generated new challenges requiring internal legal expertise to be significantly 
supported at a technical level.  

The adoption of the Aarhus Convention5 in 1998 and the subsequent development of a more 
coherent policy within the Commission on good governance and improved transparency6 have 
also  led  to  a  reorganisation  of  working  methods  within  the  Commission.  Correspondence 
from the public is required to be answered within 15 working days, and information requests 
also require prompt handling, with the emphasis shifting towards a presumption of openness, 
and much of the infringement work of the Commission is now press-released once decisions 
reach a certain stage of maturity within the system.  

In  addition  to  this,  increased  focus  and  attention  has  been  given  to  action  on  preventing 
breaches.  In  the  environmental  sector,  this  has  been  translated  into  action  on  a  number  of 
fronts described in the Communication on implementing EC environmental law.  

Conformity  checks  on  adopted  legislation  are  also  outsourced  to  provide  support  for  the 
internal checking of compliance. This has in itself generated a considerable workload for the 
Commission. Conformity checking needs to be speeded up, and completed studies need to be 
given efficient and effective follow-up to ensure that the legislation adopted in each Member 
State provides an effective framework within which all players can exercise their rights to an 
improved environment in accordance with Community rules.  

Work on the prevention of breaches, often before the adoption of legislation, but also in the 
period before directives are required to be transposed into national law by Member States, is 
essential,  albeit  time-  and  resource-intensive.  The  Commission  therefore  needs  to  strike  the 
right balance with its limited resources in ensuring that additional work on the prevention of 
breaches does not eat into enforcement work.  

4. Objectives of the Communication  

The  overall  objective  of  the  Commission  is  to  protect  and  improve  the  environment  by 
improving the way environmental legislation is implemented. Meeting this overall objective 
requires  action  on  a  variety  of  fronts  and  involving  a  wide  range  of  players:  the  other 
institutions, in particular the European Parliament, national authorities, environmental groups, 
industry bodies and, of course, individual citizens. It will also require the Commission to be 

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Convention on  access  to  information,  public  participation  in  decision-making  and  access  to  justice  in 
environmental matters. 
The  2002  Communication  on  Better  Monitoring  of 
law, 
COM(2002)725;  Regulation  (EC)  No  1049/2001  of  the  European  Parliament  and  of  the  Council 
regarding  public  access  to  European  Parliament,  Council  and  Commission  documents  which  is 
implemented by Decision No C(2001) 3714/9. 

the  Application  of  Community 

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more strategic in its thinking on implementation, to make the best possible use of its limited 
resources in meeting this overall objective.  

4.1 Specific objectives 

4.1.1 More efficient handling of infringements 

The  objective  of  the  Horizontal  Communication  is  to  identify  improvements  in  current 
working practices so that infringement files can be handled more efficiently. As indicated in 
the Horizontal Communication, there are many reasons why infringement files are opened. In 
the end, relatively few issues are judged to require a ruling from the Court of Justice. Around 
70%  of  complaints  are  closed  before  a  letter  of  formal  notice  is  sent,  and  around  93%  are 
closed before a ruling from the Court. However, the process of resolving these cases is often 
lengthy: it takes an average of nineteen months to close a complaint before a letter of formal 
notice is sent and fifty months on average for a case to be closed after a reasoned opinion is 
sent but before its referral to the Court.  

The  objective  of  the  Commission  is  to  resolve  implementation  questions  as  quickly  and 
efficiently  as  possible,  in  particular  in  key  areas  such  as  the  timely  adoption  and 
communication of national implementing legislation and checking that what has been adopted 
is  correct.  Ensuring  that  the  framework  for  compliance  is  right  is  essential  and  will  often 
resolve difficulties downstream when it comes to the application of the law in practice.  

4.1.2  Meeting  expectations  of  the  public:  citizens,  environmental  groups  and  the 
European Parliament 

Living in a healthy environment is at the heart of people's concerns. Citizens thus take a keen 
interest in environmental legislation and its implementation by national authorities. In many 
cases citizens do not fully accept that environmental legislation is being correctly applied in 
their country and turn to the Commission to resolve any problems. The Commission receives 
a high number of complaints from citizens. Members of Parliament are also very interested in 
ensuring good implementation of environmental legislation. It is thus essential to ensure that 
everyone's concerns are dealt with in a transparent and efficient way and that the Commission 
finds a way of becoming more open and accessible in addressing these concerns 

The  aim  should  be  for  the  Commission  to  find  ways  to  engage  more  directly  with  citizens, 
taking into account their concerns and also explaining as clearly as possible how these often 
technical  rules  apply  in  practice  to  the  specific  situations  in  which  individuals  find 
themselves. Generating more direct contacts with national and local authorities in the Member 
States  may  also  help  to  provide  clarification  and  improve  implementation.  Where  the 
implementation framework is correct, the decisions taken are more likely to be in compliance 
with  Community  law.  Making  the  Commission  more  accessible  to  interested  parties  in  the 
Member States could help to resolve questions and disputes more quickly. It could also serve 
to  provide  the  Commission  in  Brussels  with  better  information  about  the  state  of 
implementation on the ground.  

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5. Policy options and initial analysis of individual options 

5.1 No action 

The no-action scenario would entail the Commission continuing to follow up all complaints 
and petitions in an equal manner, without any special emphasis being given to certain groups 
of  cases.  The  focus  would  remain  on  assessments  carried  out  in  Brussels.  The  no-action 
scenario  would  still  require  the  Commission  to  find  additional  internal  resources  to  equip 
itself with the language skills necessary to answer questions from all Member States and to 
assess  their  national  transposing  legislation.  A  negative  effect  of  continuing  to  work  along 
these lines is that the important work of establishing an equal implementation baseline in all 
Member States may be disrupted by the need to handle numerous ad hoc complaints as and 
when these are registered. This baseline work will be particularly skewed for those Member 
States  which  receive  higher  numbers  of  complaints  than  others.  As  can  be  seen  from  the 
snapshot of case numbers below, numbers vary considerably between Member States.  

The numbers of cases registered with regard to individual Member States does not necessarily 
translate  into  an  equivalent  number  of  actual  infringement  cases  being  opened  against  that 
Member State. 

Continuing  to  work  along  these  existing  lines  has  a  number  of  disadvantages.  An  approach 
whereby  case  handling  merely  follows  up  complaints  registered  with  the  Commission, 
thereby swamping its limited resources, fails to tackle some of the more strategic enforcement 
goals such as ensuring that national transposing legislation is adopted in a timely and correct 
manner and providing an improved baseline for the application of the law in individual cases. 
This  is  particularly  the  case  for  those  Member  States  with  high  numbers  of  complaints  and 

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petitions.  The  no-action  scenario  also  fails  to  take  account  of  the  need  to  bring  the 
Commission in Brussels closer to citizens and national authorities in the Member States. The 
difficulties entailed in continuing to work along existing lines without additional focus in key 
priority areas in an enlarged Union therefore leads to the conclusion that the no-action policy 
option  is  not  a  viable  one.  This  option  should  therefore  be  discarded  from  further 
consideration.  

5.2. Increasing emphasis on the prevention of breaches.  

Over  the  last  decade,  increasing  emphasis  has  been  placed  on  the  need  to  take  action  to 
prevent  breaches  of  Community  environmental  law.  Action  has  been  taken  on  numerous 
fronts:  

Various  thematic  strategies  have  been  used  to  try  to  bring  about  improved  coherence, 
resulting sometimes in the simplification of legislation.  
Advice  is  given  to  Member  States  after  adoption  of  Community  legislation,  but  before  the 
transposition deadline has expired.  
Conformity-checking studies have been carried out for many environmental directives. 
Environmental reporting systems are being rationalised. 
Own-initiative technical studies have been commissioned. 
The  need  for  cross-compliance,  in  particular  where  projects  receive  EU  funding,  has  been 
emphasised. 
The Commission has drafted numerous guidance documents on the application of Community 
environmental law, in particular in the nature and water sectors7.  
Dialogue  with  authorities  through  package  meetings  is  now  frequently  supplemented  by 
training and awareness-raising seminars. 
Dialogue  with  IMPEL  and  with  stakeholder  groups  increasingly  informs  the  work  of  the 
Commission on environmental implementation and enforcement. 

The  aim  of  this  policy  is  to  continue  with  these  efforts  and  to  make  them  even  more  of  a 
priority in the coming years. Furthermore, the idea is that these preventative measures will be 
reinforced by the following additional actions: 

The creation of permanent networks of Member State experts to work with the Commission to 
help  smooth  the  implementation  of  new  directives  through  the  exchange  of  experience  and 
early identification of problem areas. 
An  increased  emphasis  on  Member  States  being  required  to  provide  correlation  tables, 
showing  the  match  between  the  provisions  of  directives  and  the  corresponding  national 
provisions.  
Further  emphasis  on  the  production  of  guidance  documents,  explaining  the  implications  of 
key environmental legislation or recommending certain action or approaches to be taken.  
The  setting-up  of  a  working  group  with  Member  States  on  improving  compliance  with  EC 
environmental law. 

7 

For  example,  the  Commission  has  produced  twenty-four  guidance  documents  on  key  aspects  of  the 
Water Framework Directive, 2000/60/EC; six guidance documents on the Seveso II or Major-Accident 
Hazard Directive, 96/82/EC and several guidance documents on the Wild Birds and Habitats Directives, 
79/409/EEC and 92/43/EEC. 

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5.3.  Assuring  a  local  physical  presence  in  the  Commission  representation  offices  of 
selected Member States.  

The  Communication  on  Implementing  European  Community  Environmental  Law  suggests 
that the Commission’s role in dealing directly with information requests and complaints from 
the  public  might  be  supported  by  having  a  local  physical  presence  in  the  Commission 
representation  offices  of  four  Member  States  as  a  pilot  project.  The  aim  of  this  new  policy 
initiative would be to bring the Commission in closer contact with citizens in these Member 
State,  enabling  complaints  and  concerns  to  be  resolved  more  efficiently  and  effectively.  It 
would  also  provide  a  mechanism  for  keeping  the  Commission  more  directly  informed  of 
environmental concerns on the ground. Contacts with environmental groups, industry bodies 
and  national  authorities  at  the  various  regional  levels  would  also  benefit.  In  practice  this 
would  involve  three  or  four  Member  States  being  selected  on  the  basis  that  their  language 
requirements  are  not  easily  addressed  by  Commission  staff  in  Brussels,  whose  official 
working  languages  are  English,  French  and  German.  A  further  criterion  would  be  that  the 
Member States chosen generate a considerable number of questions and complaints from their 
citizens to the Commission. The aim would be to set up this pilot project in 2008 and to assess 
its success in reaching out to citizens, environmental groups, business groups and national and 
local administrations to provide more direct answers to questions and to provide feedback on 
the implementation of EC environmental law to the Commission in Brussels.  

This  scheme  will  involve  the  deployment  of  some  limited  new  internal  resources.  To  be 
effective, staff will need to be versed in both their national environmental legislation and the 
Community’s  environmental  acquis.  The  idea  is  that  initially  one  staff  member  will  be 
deployed in four selected Member States.  

5.4.  The  Commission  to  become  more  focused 
environmental cases 

in 

its  handling  of 

important 

The  Commission’s  Horizontal  Communication  suggests  that  priority  areas  will  include 
breaches  consisting  of  a  failure  to  adopt  and  notify  required  national  laws  and  a  failure  to 
comply  with  rulings  of  the  European  Court  of  Justice.  In  the  environmental  sector,  both 
categories are already a priority. Priority is also given to ensuring that national legislation is 
comprehensive  and  correct.  The  Communication  on  implementing  European  Community 
environmental  law  suggests  that,  in  the  environmental  sector,  the  focus  should  in  future 
extend  to  systemic  breaches  where  contravention  is  geographically  widespread  or  repeated, 
despite  having  been  drawn  to  the  attention  of  the  national  authorities.  Furthermore,  priority 
cases  will  include  breaches  of  core  responsibilities  such  as  the  designation  of  nature 
protection  sites,  breaches  concerning  big  infrastructure  projects,  and  interventions  involving 
EU funding or a trans-frontier dimension. These cases will be handled in a more intensive and 
immediate manner. 

Whilst  focusing  on  these  important  priority  cases,  the  Commission  will  continue  to  handle 
cases which do not fall into one of the above categories of important cases.  

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5.5.  The  Commission  to  take  on  an  enhanced  role  which  focuses  on  its  own  powers  of 
investigating and prosecuting environmental cases before the Court of Justice  

One option open to the Commission would be to focus its resources on bringing more actions 
before the European Court of Justice, pursuing these cases as quickly as possible through the 
pre-litigation steps. Currently only about 10% of cases registered with the Commission result 
in  a  case  being  lodged  with  the  European  Court  of  Justice.  This  idea  has  received  some 
support in the European Parliament and also from sectors of the NGO community.  

6. Comparing positive and negative effects of the different policy options 

The first option, the no-action option, was discarded at the initial phase of analysis, and so this 
comparison will focus on the remaining four options outlined above.  

Option 2 — Increasing emphasis on the prevention of breaches 

Positive effects 

Negative effects 

The  creation  of  a  good  baseline,  with  timely 
adoption  of  correct  national  implementing 
reducing 
legislation, 
difficulties 
its 
application downstream. 

assist 
complaints 

should 
and 

about 

in 

A potential negative effect of these activities 
is that they could distract resources and focus 
from  other  important  objectives  such  as 
the  various 
increasing  dialogue  with 
stakeholders  and 
important 
priority cases that need to be moved forward 
rapidly. 

focusing  on 

a  wide 

Measures  such  as  internet-based  guidance 
audience  with  key 
provide 
interpretative tools for questions which might 
otherwise 
attention, 
potentially  warding  off  complaints  and 
petitions. 

individual 

require 

Increased  dialogue  with  Member  States  at 
focused 
package  meetings  and 
awareness-raising  events  should  help 
to 
reduce areas of confusion and conflict. 

through 

to  a  wider  group  of 
Reaching  out 
stakeholders to draft guidance and increasing 
contact with Member State experts at an early 
stage in the transposition process should help 
to  identify  points  of  difficulty  more  quickly 
and provide clarification. 

An  increased  insistence  on  the  provision  of 
tables  should  focus  Member 
conformity 
States'  minds 
of 
implementation and improve the transparency 
the 
of  what  has  been 
Commission, and for the wider public. 

adopted 

details 

the 

for 

on 

EN 

12 

   EN 

 
 
 
 
fruit,  potentially 

In the long term, the creation of an improved 
compliance  baseline  in  all  Member  States 
reducing 
should  bear 
citizens' 
allowing 
questions to be resolved at the national level 
without  recourse  to  the  Commission  being 
deemed necessary. 

complaints 

and/or 

Option  3  —  Having  a  local  physical  presence  in  Commission  representation  offices  of 
selected Member States 

Positive effects 

Negative effects 

This  policy  option  should  provide  citizens, 
local  authorities  and  industry  with  a  focal 
point for questions.  

This  option  will  initially  result  in  additional 
work  for  the  Commission  in  Brussels  in  the 
start-up phase.  

currently  being  directed 

Questions 
to 
Brussels,  whether  to  the  Commission  or  the 
initially  be 
European  Parliament, 
answered closer to home, hopefully providing 
a  more  accessible  face  of  the  Commission 
and speedier responses. 

can 

is  essential 

that  work  between 

It 
the 
Commission  in  Brussels  and  the  offices  in 
Member  States  be  closely  coordinated  to 
avoid  duplication  and/or  contradiction  in 
positions taken. 

In  the  long  term,  this  approach  should  result 
in fewer questions having to be answered by 
the Commission in Brussels. 

Information  form  the  Member  State  on  the 
state of implementation in the environmental 
sector can be filtered back better to Brussels. 

The  need  to  find  additional  resources  at  a 
time when such resources are limited. 

increased 

should  be 

There 
for 
identifying country-specific needs for training 
and workshops to improve understanding and 
implementation  of  environmental  legislation 
focused on specific problem areas. 

scope 

The presence of new staff in the Commission 
representation  offices  will  also  be  able  to 
assist  fact-finding  missions  of  the  European 
Parliament. 

EN 

13 

   EN 

 
 
 
 
 
Option  4  —  The  Commission  to  become  more  focused  in  its  handling  of  important 
environmental cases 

Positive effects 

Negative effects 

By  focusing  on  priority  areas  such  as  the 
correct transposition of legislation and similar 
breaches  across  the  Member  States,  it  is 
hoped that in the longer term the baseline for 
compliance 
the  Member  States  will 
improve, with a resultant drop in complaints. 
Such  a  forecast  is  however  difficult  to 
quantify.  

in 

In  the  short  term,  the  internal  effects  are 
likely  to  be  a  slightly  increased  workload, 
given  that  all  cases  will  continue  to  be 
the  Commission,  but  with 
handled  by 
increased  emphasis  on  the  priority  areas 
outlined. 

Option  5  —  The  Commission  to  take  on  an  enhanced  role  which  focuses  on  its  own 
powers of investigating and prosecuting environmental cases before the Court of Justice 

Positive effects 

Negative effects 

After  an  initial  shock,  Member  States  would 
learn that a swift response was required once 
the  pre-litigation  phase  of  action  under 
Article 226 of the EC Treaty was initiated. 

Court  judgements  may  be  obtained  more 
quickly, clarifying difficult legal questions. 

Member  State  may  be  quicker  to  adopt  a  set 
position, which is as likely to be a defensive 
one 
the 
as  one  of 
Commission’s arguments. 

submission 

to 

in 

Many  cases  are  currently  resolved  positively 
at  an  early  stage 
the  pre-litigation 
procedures  through  dialogue  between  the 
Member  State  and  the  Commission.  A  more 
aggressive  and  litigious  stance  is  likely  to 
impact  negatively  on  open  dialogue  where 
both  parties  are  focused  on  protecting  their 
legal positions. 

If  the  emphasis  is  on  speeding  up  litigation 
without  establishing  priorities  for  important 
cases,  the  results  may  not  address  the  most 
urgent environmental protection needs. 

6. Preferred policy option 

The  preferred  policy  option  is  a  mix  of  options  2,  3  and  4.  This  would  exclude  recourse  to 
options  1  and  5.  The  Commission  is  of  the  opinion  that  a  mixture  of  options  will  make  the 
best  use  of  its  resources  in  a  more  focused  way,  allowing  action  to  be  concentrated  on 
preventative measures and at the same time homing in on important cases which will have the 
widest  benefits  for  the  environment.  The  new  pilot  scheme  providing  for  a  local  physical 
presence  in  the  Commission  representation  offices  of  three  or  four  Member  States  will  also 
enable the Commission to be more in touch with the concerns of citizens and should provide 
quicker  responses  to  concerns  raised  at  a  local  level.  If  the  results  are  positive,  this  pilot 
scheme could be extended to other Member States.  

EN 

14 

   EN 

 
  
The option of focusing on bringing cases to the Court of Justice does not help in reaching out 
to citizens in this more direct way, and is likely to result in Member States quickly adopting a 
more entrenched position rather than seeking to resolve matters in a constructive manner. In 
the long run, increased recourse to formal legal action is unlikely to bring about more tangible 
benefits for the environment than the course of action preferred by the Commission which, in 
any case, maintains recourse to the Court of Justice as an option.  

The preferred policy option is therefore a combination of options 2, 3 and 4. 

7. Monitoring and evaluation 

The Communication on implementing European Community environmental law is a starting 
point  for  the  debate  on  how  best  the  Commission  should  tackle  the  challenge  of 
implementation  and  enforcement  of  Community  environmental  law  in  an  enlarged 
Community.  In  the  coming  year,  the  Commission  will  discuss  the  Communication  with  a 
wide audience, presenting it to the European Parliament, to Member States through package 
meetings and the environmental groups through its regular dialogues in Brussels, but also at 
its  now  regular  meetings 
the  Horizontal 
Communication,  the  Commission  will  be  presenting  an  annual  review  of  its  priority-setting 
focus in its Annual Reports. This will also be an opportunity to evaluate stated priority areas 
and  where  necessary  propose  amendments  to  the  existing  approach.  For  the  pilot  project 
creating  an  enhanced  presence  in  four  national  capitals,  this  wider  debate  will  feed  into  the 
evaluation of their success and potential for future expansion to other Member States.  

the  Member  States.  As  foreseen 

in 

in 

EN 

15 

   EN