Commission staff working document  accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on implementing European Community Environmental Law - Preventing breaches of and addressing specific challenges in implementing EC environmental law {COM(2008) 773 final} {SEC(2008) 2851} {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, 18.11.2008 
SEC(2008) 2876 

COMMISSION STAFF WORKING DOCUMENT 

accompanying the 

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

on implementing European Community Environmental Law 

PREVENTING BREACHES OF AND ADDRESSING SPECIFIC 
CHALLENGES IN IMPLEMENTING EC ENVIRONMENTAL LAW 

{COM(2008) 773 final} 
{SEC(2008) 2851} 
{SEC(2008) 2852} 

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PREVENTING BREACHES OF AND ADDRESSING SPECIFIC 
CHALLENGES IN IMPLEMENTING EC ENVIRONMENTAL LAW 

This  document  has  two  parts.  The  first  describes  some  of  the  general  means  and  methods 
whereby  the  Commission  tries  to  avoid  breaches  of  EC  environmental  law  arising.  The 
second looks at the different environmental sectors, describing specific challenges that need to 
be addressed. 

1. 

PREVENTION OF BREACHES  

The  Commission  seeks  to  prevent  breaches  of  environmental  law  throughout  the  legislative 
life  cycle  —  that  is,  through  all  the  stages  of  legislation  from  conception  and  design  to 
adoption, follow-up, review and revision.  

1.1 

Preparing EC legislation 

The  Commission  designs  its  new  environmental  policy  instruments  to  meet  environmental 
goals in ways that aim to avoid unnecessary administrative burdens and costs. It also reviews 
existing  policies  to  significantly  improve  their  implementation  in  the  light  of  experience; 
legislation on industrial emissions has recently been reviewed, and a review of legislation on 
waste  electronic  and  electrical  equipment  and  restrictions  on  hazardous  substances  will  be 
finished before the end of 2008. 

The drive for greater efficiency is reflected in the seven thematic strategies published in 2005 
and 2006 in key environmental policy areas1. It is also reflected in the use of in-depth internal 
impact  assessments2  of  potential  policy  options.  The  Commission  carries  out  wide,  detailed 
consultation,  including  over  the  internet,  and  welcomes  the  views  of  Member  State 
authorities,  expert  bodies  and  interested  parties.  For  example,  IMPEL3  has  provided  input 
from  the  perspective  of  enforcement  authorities  for  proposals  on  environmental  inspections 
and integrated pollution prevention and control (IPPC).  

As regards the types of proposed future legal act, the Commission does not exclude greater 
reliance  on  regulations,  the  regulation  known  as  REACH4  being  an  example.  However, 
because  of  the  need  to  take  account  of  local  and  regional  environmental  conditions  and 
administrative  arrangements,  the  directive  is  likely  to  remain  an  important  instrument.  This 

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2 

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4 

See  2005  working  paper  “Better  Regulation  and  the  Thematic  Strategies  for  the  Environment”, 
COM(2005) 466 final. 
Impact  assessment  of  Commission  policy  and  legislative  proposals  is not  to  be  confused  with  project 
and  plan  environmental  impact  assessments  under  Community  environmental  impact  assessment 
legislation, i.e. Directive 85/337/EEC and Directive 2001/42/EC. 
European Union network for the implementation and enforcement of environmental law. This network 
of national inspectors was formed in 1992.For more information see 
http://ec.europa.eu/environment/impel/index.htm.  
Regulation  (EC)  No 1907/2006 of  the  European Parliament  and  of  the Council  of 18 December  2006 
concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals  (REACH), 
establishing  a  European  Chemicals  Agency,  amending  Directive  1999/45/EC  and  repealing  Council 
Regulation  (EEC)  No 793/93  and  Commission  Regulation  (EC)  No 1488/94  as  well  as  Council 
Directive  76/769/EEC  and  Commission  Directives  91/155/EEC,  93/67/EEC,  93/105/EC  and 
2000/21/EC, OJ L 396, 30.12.2006. 

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means that, in many cases, choices made at Member State level will largely determine cost-
effectiveness  and  ease  of  implementation.  Use  of  impact  assessment  systems  can  help 
Member States make the best choices.  

In  general,  the  Commission  will,  through  dialogue  with  interested  parties,  seek  to  reduce 
bureaucracy and complexity when revising existing or drafting new legislation. 

1.2 Checking and ensuring the quality of national and regional implementing legislation 

This  is  an  important  challenge  because  of  the  high  number  of  environmental  directives 
already in force, the likelihood that directives will continue to be used in the future, and the 
tendency for the required national legislation to be often a regional responsibility, leading to a 
high  number  of  national  implementing  measures.  It  should  also  not  be  forgotten  that,  when 
regulations are used instead of directives, Member States will often still need to take certain 
measures, such as repealing existing incompatible national law. 

Given  the  extensive  patchwork  of  national  legislation  in  the  field  of  the  environment, 
correlation tables5 are a crucial means for seeing whether and how EU-derived rules are put in 
place by Member States. Commission efforts are therefore devoted to ensuring that they are 
systematically supplied.  

A major effort has been underway for some years to ensure good quality national and regional 
legislation.  The  effort  involves  systematically  checking  conformity,  relying  on  outsourced 
studies in a first phase of examination where appropriate. Studies have already been obtained 
for  most  of  the  principal  parts  of  the  acquis  and  follow-up  action  has  begun  for  key  waste, 
nature  conservation  and  water  directives.  A  risk-based  approach  is  being  applied  —  i.e.  the 
Commission identifies and puts particular emphasis on those non-conformity problems likely 
substantially  to  might  harm  or  impede  practical  compliance,  as  where  non-conformity 
significantly narrows a directive’s intended scope of application.  

1.3 Checking and supporting how tasks and obligations are met at national and regional 
level 

The Commission recognises the value of using a range of tools to help ensure that tasks set by 
environmental directives are successfully completed. The environment directorate-general has 
set  up  internal  task  forces  for  nature  conservation,  water,  air,  climate  change,  waste  and 
impact  assessment  to  ensure  the  coherent  and  co-ordinated  use  of  the  tools  available.  This 
initiative has helped ensure that preventive and enforcement actions are more closely linked 
and take greater account of broader policy considerations. It has also helped the environment 
directorate-general to be more proactive.  

1.3.1 Obtaining good information on how required results are being pursued and achieved  

Reliable information and data are crucial to assessing whether implementation is satisfactory. 
The Commission does not currently have a formal inspectorate to assess implementation first-
hand  and  is  reliant  on  the  information  that  Member  States  make  available,  often  through 
periodic  reports.  The  Commission  is  committed  to  ensuring  better  information  flow  and  in 
February  2008  presented  a  communication  “Towards  a  Shared  Environmental  Information 

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i.e.  Tables  showing  the  match  between  the  provisions  of  directives  and  the  corresponding  national 
provisions. 

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System (SEIS)”6 which aims at improving the quality of environmental data and information, 
and its management, use and dissemination across the EU. Better data and easier access to it 
can  help  prevent  infringements  by  allowing  problems  to  be  identified  more  quickly  and 
remedial action taken sooner. 

Member  State  reports  are  supplemented  by  information  received  from  the  European 
Environment  Agency,  interested  parties  and  implementation  networks  such  as  IMPEL  and 
GreenForce7.  The  Commission  seeks  to  make  the  best  use  of  these  sources  and,  where 
appropriate, commissions technical studies to look into particularly important implementation 
topics. For example, it has obtained studies on the effectiveness of Member State controls on 
the landfilling of waste and on how certain Member States have fulfilled duties to designate 
sensitive water bodies suffering from urban waste-water and agricultural pollution.  

1.3.2 Performance scoreboards 

Performance scoreboards involve showing the relative levels of compliance or performance of 
Member States at a given point in time by reference to a common performance indicator.  

The Commission has made use of such scoreboards for a number of pieces of environmental 
legislation,  notably  to  present  progress  in  implementing  designation  requirements  under  the 
Wild  Birds  and  Habitats  Directives  and  in  fulfilling  various  requirements  of  the  Water 
Framework  Directive.  The  scoreboards  assist  Member  States  by  allowing  them  to  compare 
how well they are doing by reference to other Member States. 

1.3.3 Community financial assistance  

Community  funds  underpin  the  goals  set  by  EC  environmental  law.  Major  environmental 
infrastructure such as urban waste-water collecting systems and treatment plants is supported 
by  the  Cohesion  Fund,  the  Structural  Funds  and  European  Investment  Bank  loans.  The 
coverage  of  these  funds  includes  transport,  environment,  regional,  economic  and  social 
development. The LIFE Fund, which is exclusively devoted to environmental projects, assists 
interventions  that  fall  outside  the  scope  of  the  main  funding  instruments,  for  example 
innovative  approaches  to  conserving  habitats  and  species.  The  European  Agricultural  Fund 
for  Rural  Development  co-finances,  amongst  other  things,  measures  targeted  towards 
encouraging the provision of environmental services on a voluntary basis (agri-environmental 
measures)  and  towards  compliance  with  compulsory  environmental  requirements  (for 
example,  under  the  Habitats  Directive  and  the  Water  Framework  Directive).  The  Regional 
Development and Cohesion Funds make explicit reference to clean transport 

At the same time, Community funding is subject to rules requiring compliance with EC law, 
including  environmental  obligations.  Plans,  programmes  and  projects  co-financed  by  the 
Community which are likely to have significant environmental effects should be assessed in 
accordance  to  the  SEA  Directive8  and  the  EIA  Directive9.  The  SEA  Directive  has  been 
applied  to  most  of  the  draft  Operational  Programmes  (OPs)  (2007-2013)  prior  to  their 

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COM(2008)46 final. 
The European Union network of Member States’ practitioners in both nature conservation and forestry. 
For more information see http://ec.europa.eu/environment/greenforce/index_en.htm.  
Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of 
certain plans and programmes on the environment, OJ L 197, 21.7.2001, p. 30. 
Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on 
the environment, OJ L 175, 5.7.1985, p. 40. 

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adoption by the Commission. This helps secure compliance upstream and eases the process of 
Community co-financing.  

Funding  of  non-compliant  projects  is  suspended  where  there  is  an  open  infringement 
procedure,  and  any  violation  of  cross-compliance  rules  linking  direct  payments  to  farmers 
under  the  Common  Agricultural  Policy  to  respect  for  certain  key  environmental  directives 
results  in  a  reduction  or  cancellation  of  direct  payments.  Waste  management  infrastructure 
may  only be funded  by the Cohesion Fund  and Structural  Funds  if  it  is  covered  by  a  waste 
management plan under Community waste legislation.  

The  ENEA  network10  provides  ongoing  input  to  the  integration  of  the  environment  and 
sustainable  development  policies  within  the  regional  policy  programmes  of  Member  States 
and  the  candidate  countries.  The  overall  network  activities  ensure  incorporation  of  good 
practice as regard compliance of the co-financed projects with the acquis.  

1.3.4 Pre-accession support activities 

As part of its enlargement policy, the Commission runs a broad range of practical measures 
supporting  transposition  and  implementation  of  the  acquis  by  candidate  and  potential 
candidate countries. Within accession negotiations, opening and closing benchmarks are set to 
guide  the  acquis  alignment  and  implementation.  In  addition,  the  Commission  holds 
explanatory  meetings  and  workshops  on  new  or  more  complex  parts  of  the  acquis  (for 
example,  REACH  or  the  Water  Framework  Directive)  and  provides  technical  assistance  for 
drafting  legislation.  Across  the  board,  EU  co-financed  new  investments  in  the  candidate 
countries are conditional on compliance with relevant provisions of the acquis, including the 
Environmental  Impact  Assessment  Directive,  the  Strategic  Environmental  Assessment 
Directive  and  the  Wild  Birds  and  Habitats  Directives.  The  Commission  encourages  the 
countries  concerned  to  ratify  and  implement  international  conventions  at  an  early  stage,  in 
particular  the  Aarhus11  and  Espoo12  Conventions,  and  the  Kyoto  Protocol.  The  inspection 
services  of  the  candidate  and  potential  candidate  countries  cooperate  within  IMPEL  and 
ECENA13.  The  Commission  regularly  consults  the  representatives  of  non-governmental 
organisations  (annual  NGO  forum)  and  follows  up  issues  highlighted  by  civil  society.  The 
overall  progress  made,  including  in  the  field  of  the  environment,  is  assessed  in  annual 
progress  reports  and  priorities  for  action  are  identified  in  the  accession  and  European 
partnerships. 

1.3.5 Commission guidance documents and other support for Member States and interested 
parties 

Member States and interested parties  can be assisted by guidance documents  explaining the 
implications  of  key  environmental  legislation  or  recommendations  on  advisable  actions  and 

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13 

The  European  Network  of  Environmental  Authorities  (ENEA)  for  the  Cohesion  Policy  was  set  up  in  September 
2004,  following  the  seminars  on  environment  and  Structural  Funds  held  at  Santander  (Spanish  Network,  March 
2003), Brussels (DG-Env, December 2003) and Szentendre (REC, May 2004). 
Convention on Access to Information, Public Participation in Decision-making and Access to Justice in 
Environmental Matters. 
Convention on environmental impact assessment in a transboundary context. 
The  Environmental  Compliance  and  Enforcement  Network  for  Accession.  This  was  established  by 
high-level officials from the environment ministries of South Eastern Europe (SEE) in Sofia, Bulgaria 
in March 2005. 

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approaches14.  The  practical  arrangements  for  preparing  such  documents  can  be  refined  to 
ensure that, where possible, preparatory work involves a broader base of expertise drawn from 
Member States, sectoral interest groups and interest groups with a cross-cutting interest such 
as those representing regional and local government. An environmental compliance assistance 
programme  (ECAP)15 has been  prepared to help improve the environmental performance of 
small  and  medium-sized  enterprises  (SMES),  which  account  for  a  large  share  of  industrial 
pollution. 

1.3.6  Dialogue  with  authorities,  institutions  and  interested  parties  with  key  roles  in 
implementation, legal review and enforcement 

Apart from being involved in guidance preparation, external experts can play a valuable role 
in  the  collaborative  stages  of  implementation  that  follow  the  adoption  of  legislation.  For 
example, the European Habitats Forum, made up of both nature conservation and landowner 
representative groups, has been constructively involved in the process of ensuring that there 
are  satisfactory  Member  State  contributions  to  the  ambitious  Natura  2000  network  of  key 
nature sites. An array of interested parties is helping to ensure the effective implementation of 
the Water Framework Directive.  

By  promoting  a  common  understanding  of  problems  and  securing  appropriate  and  timely 
solutions,  regular  dialogue  with  those  having  an  official  or  professional  involvement  in  the 
legal  aspects  of  implementation  and  enforcement  offers  a  means  of  avoiding  or  reducing 
infringements. “Package” meetings are held with officials in the national capitals with a view 
to achieving early resolution of compliance problems. Where appropriate, these meetings are 
supplemented  with  training  or  awareness-raising  seminars  focused  on  particular  problem 
areas.  Regular  dialogue  and  exchanges  of  experiences  take  place  with  Member  State 
environmental inspectors within IMPEL and Greenforce on such issues as  waste shipments. 
The  Commission  is  promoting  effective  inspection  systems  in  the  Member  States  in  the 
context  of  a  recommendation  on  inspections16.The  Commission  will  also  co-operate  with 
bodies  such  as  NEEL17  which  can  promote  greater  awareness  of  EC  environmental  law 
amongst legal practitioners working in Member State public administrations.  

2. SPECIFIC CHALLENGES IN IMPLEMENTING EC ENVIRONMENTAL LAW 

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17 

By way of 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;  several  guidance  documents  on  the  Wild  Birds  and  Habitats 
Directives,  79/409/EEC  and  92/43/EEC,  and  a  recommendation  aimed  at  increasing  co-operation  and 
effective enforcement of EC wildlife trade regulations. There have also been several communications 
and  decisions  establishing  guidance  and  guidelines  on  the  emission  trading  scheme.  In  the  field  of 
waste,  guidance  documents  have  been  prepared  on  the  Waste  Electronic  and  Electronic  Equipment 
(WEEE)  Directive,  2002/96/EC,  the  Batteries  Directive,  2006/66/EC  and  the  End  of  Life  Vehicle 
(ELV) Directive, 2000/53/EC. 
See  Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European 
Economic and Social Committee and the Committee of the Regions, Small, clean and competitive, A 
programme  to  help  small  and  medium-sized  enterprises  comply  with  environmental  legislation, 
COM(2007) 379 final. 
European  Parliament  and  Council  Recommendation  2001/331/EC  providing  for  minimum  criteria  for 
environmental  inspections  in  the  Member  States,  OJL,  27/4/2001.  See  also  Communication  from  the 
Commission on the review of Recommendation 2001/331/EC, COM(2007)707 final. 
Network of European Environmental Lawyers. 

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This section of the document looks at implementation in the different sectors that make up EC 
environmental  law.  For  each  sector,  the  main  pieces  of  legislation  are  set  out,  the  current 
position  on  implementation  is  evaluated,  further  challenges  are  described  and  there  is  a 
presentation of the main priorities in terms of Commission enforcement action.  

2.1 

Nature Conservation 

2.1.1  Legislative Framework 

The  most  important  pieces  of  nature  conservation  legislation  are  the  Birds  Directive, 
79/409/EEC18  and  Habitats  Directive,  92/43/EEC19.  The  former  sets  out  measures  for  the 
protection, management and control of all species of naturally occurring European wild birds, 
as  well  as  introducing  rules  to  protect  their  habitats.  The  latter  protects  natural  habitats  and 
wild  flora  and  fauna  throughout  the  European  Union  and  establishes  a  European  ecological 
network known as “Natura 2000”. 

2.1.2  State of Law 

Nature conservation legislation constitutes a fairly stable part of the EC environmental acquis. 
Developments in this sector mainly concern the annexes to the Birds and Habitats Directives 
that  have  been  adapted  on  a  number  of  occasions  in  response  to  scientific  and  technical 
progress  and  to  the  successive  enlargements  of  the  European  Union.  The  most  recent 
adaptation is in response to the accession of Bulgaria and Romania to the European Union on 
1 January 2007. 

2.1.3  Evaluation of the current position in terms of implementation 

Despite  the  small  number  of  legal  instruments  in  this  field,  nature  conservation  legislation 
accounts  for  between  a  fifth  and  a  quarter  of  environmental  infringements,  i.e.  the  highest 
number  of  open  environmental  cases.  The  high  number  of  cases  in  the  nature  sector  is  due 
mainly to the extent of the network, which now includes around 25 000 sites: there are Natura 
2000 sites in the vicinity of every EU citizen. This is positive in as much as it brings the EU 
close to its citizens but it also means that the Commission receives a lot of complaints about 
threats  to  these  sites.  Although  the  demand  from  citizens,  specialised  and  active  NGOs  and 
the European Parliament is high, the complaint and legal enforcement mechanisms for nature 
conservation in the Member States are often weak or inappropriate. The effectiveness of the 
Commission’s  infringement  procedure  and  the  active  role  played  by  the  Commission  in  the 
implementation of the nature directives contribute to the high numbers of cases. 

In  order  to  rationalise  the  handling  of  this  high  number  of  cases  and  ensure  the  effective 
implementation of the nature directives, the Commission has taken several initiatives, which 
can be divided into three categories: 

•  Focus on the main implementation priorities: the core obligations of the directives 
have been addressed (i.e. correct and complete transposition and establishment of 

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Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds OJ L 103, 25.4.1979, 
p. 1-18. 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna 
and flora OJ L 206, 22.7.1992, p. 7–50. 

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the Natura 2000 network), while systemic problems of bad implementation have 
been tackled (e.g. hunting derogations). 

•  Proactive  cooperation  with  Member  States:  this  includes  the  drafting  of 
interpretative guidance documents for the main provisions of the nature directives; 
the development of targeted guidance for economic sectors such as the port sector 
and  the  non-energy  extractive  industry,  which  have  particular  challenges  in 
relation  to  the  legislation;  training  of  the  competent  authorities;  regular  contacts 
with  the  national,  regional  and  local  authorities,  and  establishment  of  the 
“Greenforce Network”. 

•  Improvements  in  the  handling  of  complaints:  specific  methods  were  developed 
with  the  purpose  of  helping  the  complainants  (i.e.  ad  hoc  nature  supplementary 
information  form,  which  guides  the  complainants  as  regards  the  information 
needed to evaluate a complaint) and making more effective use of complaints (i.e. 
grouping of complaints in order to focus on systemic breaches). 

Those  measures  have  had  a  significant  effect,  as  they  resulted  in  the  reduction  of  the 
implementation deficit. This is also confirmed by the number of open cases, which has been 
significantly  reduced,  despite  the  accession  of  10  new  Member  States.  At  the  end  of  2003, 
589 open cases were related to the nature conservation directives while, at the end of 2007, 
the number of open nature cases was 235. 

2.1.4  Further challenges in implementing nature conservation legislation 

•  Completing  the  establishment  stage  of  the  Natura  2000  network.  The  terrestrial 
part of the Natura 2000 network is either established or close to establishment in 
accordance with the Birds and Habitats Directives. Habitats and species coverage 
still needs to be extended in places, mainly in the EU-12 Member States, and legal 
action  will  be  pursued  against  Member  States  when  necessary.  The  exercise  is 
expected  to  be  finalised  in  the  short  term.  In  the  medium  term,  the  Commission 
will  tackle  the  issue  of  marine  sites.  Since  the  scientific  knowledge  and 
information  available  on  the  existence  and  distribution  of  marine  habitat  and 
species  remains  incomplete,  the  Member  States  are  expected  to  submit  their 
proposals  by  end  2008,  based  on  existing  knowledge.  In  order  to  facilitate  the 
process,  a  guidance  document  has  already  been  prepared  by 
the 
Commissionservices.  

•  Ensuring  a  systematically  correct  approach  to  Natura  2000  site  protection.  To 
enable the Natura 2000 network to achieve its goal of conserving key elements of 
Europe’s biodiversity, there needs to be proper scrutiny and minimisation of, the 
impacts  of  potentially  damaging  plans  and  projects  in  line  with  ECJ  case-law. 
Ensuring  application  of  best  scientific  knowledge,  examination  of  alternatives 
and,  where  appropriate,  provision  of  compensatory  habitats  are  all  major 
challenges.  In  this  regard,  the  Commission  services  issued  a  guidance  document 
on Article 6(4) of the Habitats Directive, a key provision for the implementation 
of  the  Nature  Directives.  In  addition,  the  Commission  intends  to  promote  best 
practice  within  specific  economic  sectors,  such  as  European  ports,  wind  energy 

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and  non-extractive  industries.  Mention  may also  be  made  of  the  value  of  broad-
based analysis and follow-up of problematical implementation20. 

•  Ensuring  overall  positive  management  of  Natura  2000  network.  Apart  from 
vetting  potentially  damaging  plans  and  projects,  Member  States  need  to  set  up 
effective management systems for Natura 2000, supporting human activities such 
as  conservation-sensitive  farming  that  are  beneficial  to  conservation  objectives 
while also meeting socio-economic needs.  

2.1.5  Prioritisation of Commission’s legal enforcement work  

In the coming years, the Commission will continue to pursue its legal enforcement action to 
help  meet  the  main  objectives  of  the  nature  conservation  legislation.  To  this  effect,  high 
priority will continue to be given to pursuing infringement cases concerning significant non-
conformity  of  national  implementing  legislation  with  the  Birds  and  the  Habitats  Directives, 
insufficient site designations (mainly in the EU-12 Member States) and the lack of adequate 
legal  protection  and  management  regimes  for  the  Natura  2000  sites.  Focus  will  also  be  on 
addressing  breaches  concerning  big  infrastructure  projects  or  interventions  involving  EU 
funding  that  have  significant  adverse  impacts  on  Natura  2000  sites.  In  this  context,  the 
Commission will take into account considerations such as irreversible ecological damage and, 
where appropriate, seek interim measures from the European Court of Justice21. Infringements 
concerning unsustainable hunting practices in some Member States will also be followed up 
closely.  In  order  to  better  handle  individual  complaints  pointing  to  widespread  problems  of 
bad implementation, the established practice of launching horizontal infringement cases will 
continue to be followed.  

2.2  Waste Management 

2.2.1  Legislative Framework 

The  basic  requirements  for  Member  States  regarding  the  management  of  waste  and  a 
definition of the term ‘waste’ are set out in Directive 2006/12/EC of the European Parliament 
and  of  the  Council  of  5  April  2006  on  waste  (the  Waste  Framework  Directive22):  More 
specifically,  this  Directive  requires  Member  States  to  create  and  maintain  an  adequate 
network of waste disposal installations to enable the Community as a whole and the Member 
States  individually  to  become  self-sufficient  in  waste  disposal.  In  order  to  achieve  this 
objective,  waste  management  plans  have  to  be  drawn  up.  It  also  established  the  waste 
hierarchy. This means that, ideally, waste should be prevented and what cannot be prevented 
should  be  re-used,  recycled  and  recovered  as  much  as  feasible,  with  landfill  being  used  as 
little as possible. The general framework directive is complemented by specific legislation to 
address particular environmental threats associated with waste. These include: 

20 

21 

22 

Case C-418/04, Commission v Ireland, the subject of decision of 13 December 2007, illustrates how, by 
examining  and  analysing  site  protection  problems  across  a  whole  economic  sector,  in  this  case 
aquaculture,  a  non-governmental  organisation  can  lay  the  basis  for  a  more  effective  and  significant 
Commission intervention than if it had limited its examination to isolated cases in that sector. 
In  the  last  two  years  the  Commission  has  three  times  sought  interim  measures  in  nature  protection 
cases. In cases C-503/06, Commission v. Italy and C-76/08, Commission v. Malta, the Court ordered the 
Member States to halt illegal hunting activities on 19 December 2007 and 24 April 2008 respectively. 
In  case  C-193/07,  Commission  v.  Poland,  the  Commission  sought  interim  measures  from  the  ECJ  to 
prevent  a  Polish  motorway  project  causing  serious  habitat  damage:  the  request  was  dropped  when 
Poland agreed to halt the relevant works pending an ECJ judgment. 
OJ L 114, 27.4.2006, p. 9–21. 

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•  Harmonised  rules  on  waste  management  practices,  including  strict  emission  limits  and 
operating  requirements  for  the  incineration23  and  landfill  of  waste.  Council  Directive 
1999/31/EC of 26 April 1999 on the landfill of waste (the Landfill Directive24) establishes 
a set of detailed, technical rules landfills must comply with. The objective is to prevent or 
minimise the negative effects that landfills can have, such as pollution of water, soil and 
air, and also gas emissions, notably emissions of methane, which is a powerful greenhouse 
gas. The Landfill Directive also helps to promote the recovery and recycling of waste, in 
particular by banning whole used tyres from landfills and by requiring waste to be treated 
prior  to  landfilling.  Best  available  techniques  were  chosen  as  the  benchmark  for  the 
management of hazardous waste25; 

•  Harmonised rules on the shipment of waste, both inside the EU and to third countries, set 
by  the  Waste  Shipment  Regulation.  This  Regulation  sets  out  rules  for  the  trans-frontier 
movement  of  waste  to  ensure  that  waste  is  handled  in  an  environmentally  sound  manner 
throughout  the  shipment  process,  including  recovery  or  disposal  in  the  country  of 
destination. 

Product  specific  recycling  legislation,  setting  targets  for  the  collection  and  recycling  and 
introducing producer responsibility principles for specific waste streamsfrom consumer goods 
(including  packaging  waste26,  end  of  life  vehicles27  and  waste  electrical  and  electronic 
equipment28)  Examples  of  recently  adopted  legislative  measures  in  the  sector  of  waste 
management  include  Directive  2006/21/EC  on  the  management  of  waste  from  extractive 
industries  and  amending  Directive  2004/35/EC29  (transposition  deadline:  1  May  2008)  and 
Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators and 
repealing Directive 91/157/EEC30 (transposition deadline: 26 September 2008).  

2.2.2  State of Law 

EU waste management legislation is characterised  by several  consolidated legal instruments 
as  well  as  important  new  pieces  of  legislation.  The  waste  management  legislation  is 
underpinned  by  the  Thematic  Strategy  on  the  Waste  Prevention  and  Recycling31.  It  sets  as 
long term objective for the EU to become a recycling society, that seeks to avoid waste and 

23 

24 
25 

26 

27 

28 

29 

30 

31 

Directive  2000/76/EC  of  the  European  Parliament  and  of  the  Council  of  4  December  2000  on  the 
incineration of waste(OJ L 332, 28.12.2000, p. 91–111). 
OJ L 182, 16.7.1999, p. 1–19. 
Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ L 377, 31.12.1991, p. 20-
27). 
European  Parliament  and  Council  Directive  94/62/EC  of  20  December  1994  on  packaging  and 
packaging waste (OJ L 365, 31.12.1994, p. 10–23). 
Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-
life vehicles (OJ L 269, 21.10.2000, p. 34–43). 
Directive  2002/95/EC  of  the  European  Parliament  and  of  the  Council  of  27  January  2003  on  the 
restriction of the use of certain hazardous substances in electrical and electronic equipment ((OJ L 37, 
13.2.2003, p. 19–23), and Directive 2002/96/EC of the European Parliament and of the Council of 27 
January 2003 on waste electrical and electronic equipment (OJ L 37, 13.2.2003, p. 24–39). 
This Directive introduces measures to prevent or minimise any adverse effects on the environment and 
resultant risks to health resulting from the management of waste from the extractive industries, such as 
tailings and displaced material (OJ L 102 of 11.04.2006). 
This  Directive  prohibits  the  placing  on  the  market  of  most  batteries  and  accumulators  with  a  certain 
mercury or cadmium content and establishes rules for the collection, recycling, treatment and disposal 
of batteries and accumulators. (OJ L 266 of 26.9.2006). 
COM(2005)666. 

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uses waste as a resource. Following the Thematic Strategy, the Waste Framework Directive 
has been modernised, introducing a new approach to waste management that encourages the 
prevention  of  waste.  The  revised  Directive  clarifies  that  the  waste  hierarchy  should  not  be 
seen as a hard-and-fast rule but that deviations from the hierarchy are possible based on a life-
cycle  analysis  of  environmental  impacts.  The  revised  Directive  also  sets  energy-efficiency 
criteria on the basis of which waste incineration can be considered as a recovery operation to 
promote  resource  efficiency,  thus  reducing  the  consumption  of  fossil  fuels.  It  also  sets  new 
recycling targets: By 2020, Member States must recycle 50% of their household and similar 
waste and 70% of their construction and demolition waste.  

2.2.3  Evaluation of the current position in terms of implementation 

The  overall  situation  of  waste  management  has  to  be  seen  as  critical.  By  far  the  biggest 
challenge  concerns  the  implementation  of  the  Waste  Framework  Directive,  the  Landfill 
Directive  and  the  Waste  Shipment  Regulation.  The  lack  of  adequate  waste  management 
infrastructure,  the  persistently  high  number  of  illegal  landfills  in  a  significant  number  of 
Member  States  and  the  significant  number  of  illegal  shipments  of  waste,  notably  electronic 
waste and end-of-life vehicles, threaten human health and the environment. The chronic waste 
crisis affecting Naples and the rest of the Campania region in Italy is a striking example. In 
Member States where this phenomenon exists, efforts, particularly in terms of investment in 
waste  infrastructure,  will  have  to  be  stepped  up  considerably.  Implementation  of  separate 
waste  collection,  notably  for  packaging  waste  and  biodegradable  waste,  as  well  as  effective 
pre-treatment of waste before disposal are a prerequisite for boosting recycling and reducing 
the  rate  of  landfilling,  in  particular  in  the  EU-12  Member  States,  where  this  still  oscillates 
around 90%. Specific aspects of landfilling have received higher attention under the present 
climate change discussion. Insufficient methane collection from landfills and alternative waste 
management  options  addressed  under  the  label  “waste  to  energy”  will  fuel  the  discussion 
about improving waste management in the near future. 

2.2.4  Further challenges in implementing waste management legislation 

• Ensuring  an  adequate  network  of  safe  and  legal  waste  disposal  and  recovery 
facilities.  Matching  the  capacity  of  waste  infrastructure  to  the  volume  of  waste 
generated  is  fundamental  to  good  waste  management.  Waste  management  plans 
can  help  ensure  the  necessary  capacity,  but  only  if  they  are  effectively 
implemented. 

•  Reducing  and  managing  certain  waste  streams.  The  achievement  of  certain  EC 
waste  reduction  and  management  goals  such  as  the  diversion  of  biodegradable 
waste  from  landfills  and  the  collection  and  handling  of  end-of-life  vehicles  and 
waste  electrical  and  electronic  equipment  (WEEE)  also  depends  on  adequate 
forward  planning  and  development  of  organisational  arrangements  and  recovery 
facilities.  

•  Combating the illegal waste trade and illegal waste disposal. Tackling the use of 
thousands of illegal landfills in several Member States requires strategic action on 
several  fronts  to  comply  with  the  Waste  Framework  Directive  and  the  Landfill 
Directive:  investments  in  legal  facilities,  better  systems  of  national  detection, 
enforcement  and  deterrence  and  adequate  site  clean-up.  Adequate  controls  on 
transfrontier  waste  shipments  are  also  essential.  The  Commission  has  taken 

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horizontal legal action for lack of controls on illegal landfills, and there have been 
several important ECJ rulings. 

2.2.5  Prioritisation of Commission’s legal enforcement work  

In the coming years, the Commission will pursue its legal enforcement action to help meet the 
objectives  of  waste  management  legislation,  i.e.  to  reduce  the  negative  impact  on  the 
environment  and  human  health  that  is  caused  by  waste  throughout  its  life-span,  from 
production to disposal, via recycling.  

To this end, high priority will continue to be given to “horizontalising” infringement action, 
i.e.  tackling  widespread  problems  of  bad  implementation  at  a  more  strategic  level.  This 
approach allows the Commission to address the lack of adequate waste management capacity 
and infrastructure and the presence of illegal landfills in a far higher number of places than 
would  have  been  possible  if  it  had  only  focused  on  individual  failures  and  to  ensure 
consistency and coherence in the actions taken.. 

In  addition,  since  the  completeness  and  correctness  of  implementing  legislation  within  the 
Member  States  are  important  determinants  of  good  implementation  in  practice,  the 
Commission  will  continue  to  systematically  pursue  infringements  concerning  the  non-
compliant  transposition  of  the  most  important  pieces  of  waste  management  legislation  (for 
example, the Landfill Directive, the WEEE Directive, and the End-of–life vehicles Directive) 
likely to affect the attainment of the legislative objectives..  

As for other new proposals for directives, to ensure timely and correct transposition of new 
waste management directives, primarily the new Waste Framework Directive, the responsible 
units within DG Environment will prepare risk-based implementation action plans.  

By  way  of  preventive  action,  the  Commission  will  continue  to  carry  out  awareness-raising 
campaigns  and  information  exchange  in  most  Member  States.  Particular  emphasis  will  be 
placed  on  two  implementation  gaps,  illegal  and  mismanaged  landfills  and  illegal  waste 
shipments, and waste management plans and prevention programmes. It is hoped that this will 
increase  understanding  of  Community  legal  requirements,  identify  bottlenecks  and  promote 
best practice. 

Furthermore,  bilateral  and  multilateral  meetings  will  take  place  with  Member  States  and 
stakeholders.  

2.3 

Environmental Impact Assessment & Strategic Environmental Assessment 

2.3.1  Legislative Framework 

The  most  important  pieces  of  legislation  in  this  sector  are  the  Environmental  Impact 
Assessment  Directive  and  the  Strategic  Environmental  Assessment  Directive.  Council 
Directive 85/337/EEC on the assessment of the effects of certain public and private projects 
on the environment as amended by Directives 97/11/EC and 2003/35/EC (the Environmental 
Impact  Assessment  or  EIA  Directive)32  obliges  Member  States  to  carry  out  environmental 
impact assessments before certain types of public and private projects which are likely to have 
a significant impact on the environment are authorised. Directive 2001/42/EC of the European 

32 

OJ L 175, 5.7.1985, p. 40. 

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Parliament  and  of  the  Council  on  the  assessment  of  the  effects  of  certain  plans  and 
programmes  on  the  environment  (the  Strategic  Environmental  Assessment  or  SEA 
Directive)33 seeks to ensure that the environmental consequences of certain public plans and 
programmes  that  are  likely  to  have  significant  environmental  effects  are  identified  and 
assessed while they are being prepared and before they are approved. 

2.3.2  State of Law   

The  application  and  effectiveness  of  environmental  impact  assessment  legislation,  in 
particular the EIA Directive, has been subject to regular reviews in the past. On the basis of 
such  reviews,  the  EIA  Directive  was  subsequently  amended  in  1997.  Directive  97/11/EC34 
widened  the  scope  of  the  EIA  Directive  by  increasing  the  types  of  project  covered,  and  the 
number of projects requiring mandatory environmental impact assessment (Annex I). It also 
strengthened  the  procedural  basis  of  the  EIA  Directive  by  providing  for  new  screening 
arrangements,  including  new  screening  criteria  (at  Annex  III)  for  Annex  II  projects,  and 
providing minimum information requirements. Following this first amendment, the Directive 
was  later  modified  in  2003  by  Directive  2003/35/EC35,  seeking  to  align  the  provisions  on 
public  participation  with  the  Aarhus  Convention  on  public  participation  in  decision-making 
and access to justice in environmental matters. Depending on the results of future reports on 
their  application,  further  amendments  and  changes  to  both  the  EIA  and  the  SEA  Directive 
cannot be excluded.  

2.3.3  Evaluation of the current position in terms of implementation 

The EIA Directive has been the subject of several cases brought before the European Court of 
Justice,  and  the  case-law  of  the  Court  has  contributed  to  a  better  understanding  of  certain 
provisions of the Directive. In the interests of better implementation of the EIA and the SEA 
Directive,  the  Commission  services  have  developed  in  recent  years  a  number  of  guidance 
documents on particularly important aspects of both directives36.  

Although the Environmental Impact Assessment sector continues to generate a high number 
of complaints, its contribution to the overall number of open cases has decreased, so that at 
the end of 2007 this sector ranked only fifth in terms of the number of infringements. Most 
open  cases  in  the  sector  still  relate  to  the  EIA  Directive,  but  cases  relating  to  the  SEA 
Directive  are  on  the  increase.  The  deadline  for  transposing  the  latter  directive  was  21  July 
2004,  but  significant  delays  in  transposition  have  occurred  in  many  Member  States,  which 
means that experience of the actual application of the directive is still somewhat limited. In 
addition, the conformity of Member States' legislation cannot yet be considered to have been 
secured. Given the similar nature of the obligations in the two instruments, it is to be expected 
that  problems  in  the  correct  application  of  the  SEA  Directive  will  be  similar  to  those 
encountered  in  applying  the  EIA  Directive.  In  terms  of  enforcement,  early  signs  are  that 
decisions as to whether smaller plans and programmes or modifications require an SEA (so-
called “screening” decisions) could pose problems of bad application. However, forthcoming 

33 
34 
35 
36 

OJ L 197, 21.7.2001, p. 30. 
OJ L 73, 14.03.1997. 
OJ L 56, 25.06.2003. 
Examples  for  the  EIA  Directive  include  guidance  documents  on  screening,  scoping,  assessment  of 
indirect  and  cumulative  impacts,  or  most  recently,  on  the  interpretation  of  the  different  project 
categories. 

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reports on the application of both the EIA and the SEA Directives will clarify this and form 
the basis for future Commission’s action in the sector. 

Article  2(3)  of  the  EIA  Directive  allows  Member  States  to  exempt  specific  projects  in 
exceptional circumstances (e.g. for unforeseen civil emergencies; threats to human health and 
the environment; security risks) from the provisions of the Directive in whole or in part, and 
to notify the Commission. This provision has been used by Italy three times in 2006 and twice 
so far in 2008.  

In 2006, two  notifications concerned  the building of  port infrastructure in  Sicily: one in the 
Eolie  islands  after  damage  by  a  tsunami  and  the  other  in  Lampedusa  due  to  the  lack  of 
facilities  to  receive  a  high  number  of  immigrants.  The  third  2006  notification  was  for  the 
temporary use of an existing waste disposal facility for special waste in Lecce in Puglia due to 
the  waste  emergency  in  the  region  at  the  time.  In  2008,  both  notifications  concerned  new 
landfills in Campania needed due to the waste emergency there.  

2.3.4 Further challenges in implementing Environmental Impact Assessment legislation 

•  Ensuring  that  citizens  and  NGOs  can  seek  reviews  at  Member  States  level.  Every  year, 
thousands of projects are proposed across the Community. A key challenge arises from the 
fact  that,  when  citizens  are  aggrieved  or  concerned  about  proposed  new  infrastructure, 
industrial  and  other  projects,  they  look  to  environmental  impact  assessment  provisions 
contained  in  the  EIA  Directive  when  formulating  their  objections  and  concerns.  The 
provisions are therefore frequently invoked in relation to controversies about proposed new 
development  and  in  relation  to  complaints  and  petitions.  In  line  with  the  Aarhus 
Convention, the last revision of the EIA Directive in 2003 seeks to give citizens and NGOs 
a  right  of  review  of  decisions  that  concern  rights  of  public  participation.  Making  this 
effective is a way of better addressing nationally the many EIA concerns that are expressed 
by citizens about individual projects across the Community. 

•  Developing  capabilities  in  Member  States  to  ensure  effective  implementation  of  the  EIA 
and SEA Directives. For the effective application of the EIA and SEA Directives, capacity 
building must be strongly encouraged within institutions having critical responsibilities in 
planning and environmental decision-making, notably through targeted campaigns for the 
recruitment  and  training  of  EIA  and  SEA  experts.  In  this  context,  training  programmes 
offered  and  guidance  documents  prepared  by  the  Commission  are  contributing  to  the 
capacity building efforts of the Member States. 

•  Taking  into  account  the  horizontal  character  of  the  EIA  and  SEA  Directives,  there  are 
possible  overlaps  between  these  two  Directives  and  certain  other  EC  environmental 
legislation  and  policies.  This  may  require  co-ordinated  or  joint  procedures  to  avoid 
duplication  of  assessment.  Overlaps  may  occur  between  the  EIA  and  SEA  Directives 
themselves,  as  well  as  with  the  Water  Framework  Directive  (Directive  2000/60/EC),  the 
Nitrates  Directive  (91/676/EC),  the  Waste  Framework  Directive  (Directive  2006/12/EC), 
the  Air  Quality  Directive  (2008/50/EC)  and 
the  Habitats  Directive  (92/43/EC). 
Furthermore, the SEA Directive also applies to plans and programmes co-financed by the 
EC,  and  the  environmental  assessment  is  carried  out  in  conformity  with  the  specific 
provisions in relevant Community legislation. 

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2.3.5  Prioritisation of Commission’s legal enforcement work 

High  priority  will  continue  to  be  given  to  legal  action  addressing  non-conformity  of 
transposing  measures  for  the  EIA  Directive  likely  to  affect  the  attainment  of  the  legislative 
objectives.  These  cases  now  mainly  concern  the  EU-12  Member  States.  Similarly,  the 
Commission will continue to pursue infringement procedures against Member States that have 
failed  to  correctly  and/or  completely  transpose  the  SEA  Directive.  Since  these  directives 
contain  mainly  procedural  requirements  which  figure  in  many  complaints  and  petitions,  the 
Commission  will  continue  to  seek  improved  national  legislation  to  implement  these 
requirements. By doing so, the Commission seeks to avoid at least some procedural problems 
at the level of individual plans and projects. 

In addition to the emphasis on pursuing non-conformity cases and work aimed at improving 
national  legislation  which  implements  the  procedural  requirements  of  the  environmental 
impact  assessment  legislation,  the  following  types  of  bad  implementation  cases  will  be 
followed up more closely by the Commission: 

•  breaches  concerning  big  infrastructure  projects  or  interventions  involving  EU 

funding; 

•  breaches  linked  to  bad  transposition  of  certain  provisions  of  the  environmental 
impact  assessment  legislation  likely  to  affect  the  attainment  of  the  legislative 
objectives; 

•  breaches that reveal interpretation problems concerning certain provisions of the 
environmental  impact  assessment  legislation  which  could  have  a  significant 
influence on the impact of the legislation that would justify seeking clarification 
from the Court of Justice. 

Apart  from  the  above  cases  where  the  Commission  legal  enforcement  action  might  be 
indispensable,  individual  breaches  of  certain  provisions  of  the  environmental  impact 
assessment legislation should primarily be addressed through the existing review mechanisms 
at Member State level.  

2.4 

Protecting Water Resources 

2.4.1  Legislative Framework 

The  most  important  piece  of  legislation  in  this  area  is  the  Water  Framework  Directive37, 
which  establishes  a  strategic  framework  for  the  protection  of  all  water  bodies,  i.e.  rivers, 
lakes,  coastal  waters  and  groundwater,  in  the  European  Union.  The  Urban  Waste  Water 
Treatment Directive38 is another key instrument for reducing water pollution: it addresses the 
waste  water  discharges  of  cities  and  towns.  Complementing  it  is  the  Nitrates  Directive39, 
designed to protect the Community’s waters against nitrates from agricultural sources, one of 
the  chief  causes  of  diffuse  pollution.  Aimed  at  ensuring  that  drinking  water  is  kept  free  of 

37 

38 
39 

Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a 
framework for Community action in the field of water policy (OJ L 327, 22.12.2000, p. 1–73). 
Council 91/271/EEC concerning urban waste water treatment (OJ L 135, 30.5.1991, p. 40–52). 
Council  Directive  91/676/EEC  of  12  December  1991  concerning  the  protection  of  waters  against 
pollution caused by nitrates from agricultural sources (OJ L 375, 31.12.1991). 

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contamination,  the  Drinking  Water  Directive40  is  important  for  public  health.  Besides  the 
above-mentioned  key  directives,  European  water  legislation  also  covers  specific  uses  of 
water,  including  rules  for  the  monitoring,  assessment  and  management  of  the  quality  of 
bathing  water41.  Moreover,  various  pieces  of  legislation  cover  rules  for  preventing  and 
reducing the discharges of substances into water bodies42. 

2.4.2  State of Law 

European  water  legislation  consists  of  a  number  of  fairly  stable,  consolidated  legal 
instruments,  but  there  are  also  important  new  developments  in  this  domain.  Examples  of 
recently  adopted  measures  include  a  new  Bathing  Water  Directive43,  a  new  Groundwater 
Directive44, which supports the Water Framework Directive, and a directive on flood risks45. 
The  new  Marine  Strategy  Framework  Directive46,  which  extends  the  application  of  the 
principles of the Water Framework Directive to European seas, has recently been adopted. In 
addition,  a  proposal  for  a  directive  relating  to  priority  hazardous  substances47  which  also 
supports the Water Framework Directive is currently in the adoption pipeline.  

2.4. 3  Evaluation of the current position in terms of implementation 

40 

41 

42 

43 

44 

45 

46 

47 

Council 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ L 
330, 05.12.1998, p. 32-54). 
Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ L 31, 
5.2.1976, p. 1–7). 
The  following  directives  can  be  mentioned  as  examples  of  such  legislation:  Council  Directive 
76/464/EEC  of  4  May  1976  on  pollution  caused  by  certain  dangerous  substances  discharged  into  the 
aquatic environment of the Community(OJ L 129, 18.5.1976); and Council Directive 80/68/EEC of 17 
December  1979  on  the  protection  of  groundwater  against  pollution  caused  by  certain  dangerous 
substances(OJ L 20, 26.1.1980, p. 43–48). 
Directive  2006/7/EC  of  15  February  2006  concerning  the  management  of  bathing  water  quality  and 
repealing  Directive  76/160/EEC  (transposition  deadline  24  March  2008)  (OJ  L  64  of  4.3.2006). 
Directive  76/160/EEC  is  repealed  by  this  new  Directive  with  effect  from  31  December  2014.  It  is 
designed  to  ensure  consistency  with  the  Water  Framework  Directive  and  is  also  intended  to  simplify 
procedures  in  the  light  of  scientific  developments  and  improve  participatory  processes  for  the  actors 
concerned and the information given to the public. 
Directive  2006/118/EC  of  12  December  2006  on  the  protection  of  groundwater  against  pollution  and 
deterioration  (transposition  deadline  16  January  2009)  (OJ  L  372,  27.12.2006).  This  Directive  is 
designed to prevent and combat groundwater pollution. Its provisions include: criteria for assessing the 
chemical  status  of  groundwater;  criteria  for  identifying  significant  and  sustained  upward  trends  in 
groundwater pollution levels, and for defining starting points for reversing these trends; and preventing 
and  limiting  indirect  discharges  (after  percolation  through  soil  or  subsoil)  of  pollutants  into 
groundwater. 
Directive  2007/60/EC  of  the  European  Parliament  and  of  the  Council  of  23  October  2007  on  the 
assessment  and  management  of  flood  risks  (transposition  deadline  26  November  2009)  (OJ  L  288, 
6.11.2007). This Directive aims to establish a common framework for assessing and reducing the risk 
that floods within the European Union pose to human health, the environment, property and economic 
activity.  The  purpose  of  this  Directive  is  to  manage  and  reduce  the  risk  of  floods,  particularly  along 
rivers and in coastal areas. It provides for assessment of the risk of flooding in river basins, the mapping 
of flood risks in all regions where there is a serious risk of flooding and the drawing up of flood risk 
management plans based on close cooperation between and the broad participation of Member States. 
Directive  2008/56/EC  of  the  European  Parliament  and  of  the  Council  of  17  June  2008  establishing  a 
Framework  for  Community  Action  in  the  field  of  Marine  Environmental  Policy  (Marine  Strategy 
Framework Directive)(OJ L 164, 25.6.2008, p. 19–40). 
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  environmental  quality 
standards in the field of water policy and amending Directive 2000/60/EC (COM(2006)397). 

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The  strong  stakeholder  processes  that  have  been  put  in  place,  combined  with  Commission 
enforcement  action,  have  helped  to  ensure  a  broad  degree  of  compliance  with  the  first 
implementation  deadlines  under  the  Water  Framework  Directive.  These  comprise  the 
deadlines for transposing the directive into national law (December 2003), the setting up and 
notification of river basin districts (June 2004), the analysis and notification of pressures on 
river basin districts (March 2005) and the organisation and notification of monitoring (March 
2007). However, studies have identified problems with the quality of national implementing 
legislation, and the Commission faces the challenge of securing from Member States clearer 
and more complete national implementing provisions.  

In the EU-15, i.e. those Member States that joined the EU in the period before 2004-2007, the 
implementation of the Urban Waste Water Treatment Directive presents a mixed picture. On 
the  one  hand,  key  infrastructure  is  in  place  in  several  Member  States  and  significant 
investments  have  been  made  elsewhere.  This  serves  not  only  the  immediate  goals  of  the 
Urban  Waste  Water  Treatment  Directive  but  also  supports  the  achievement  of  wider  water 
policy objectives,  including  those  of  the  Water  Framework  Directive. On the other hand, in 
the  EU-15,  there  are  infrastructure  deficits  in  up  to  a  quarter  of  the  8000  larger  cities  and 
settlements  that  were  subject  to  1998  and  2000  collection  and  treatment  deadlines.  The 
deficits  are  the  subject  of  ongoing  Commission  infringement  procedures  that  have  already 
resulted  in  several  important  ECJ  rulings.  These  in  turn  are  helping  to  secure  the  necessary 
implementation work in the Member States concerned, and a steady narrowing of the deficits 
is  to  be  expected.  However,  several  factors  —  such  as  slippage  of  expected  infrastructure 
completion dates — make it difficult to forecast when full compliance will be achieved. 

2.4.4  Further challenges in implementing European water legislation 

•  Making the Water Framework Directive fully operational. Momentum must be maintained 
to ensure that critical upcoming deadlines are respected and that in the crucial period 2009-
2015, effective action is taken at the level of each European river basin district to prevent 
and reduce water pollution and avoid the unsound use of water resources.  

•  Implementing  the  Urban  Waste  Water  Treatment  Directive:  It  is  important  to  ensure 
effective implementation of the Urban Waste Water Treatment Directive in the EU-12 and 
continue to ensure effective implementation in the EU-15. For the EU-12, legal deadlines 
are  later  but  it  is  clear  that  many  cities  and  settlements  require  upgrades  and  the 
Commission  will  need  to  follow  progress  closely.  The  Commission  will  also  need  to 
monitor  closely  compliance  in  the  EU-15,  for  example  to  ensure  that  collecting  systems 
and treatment match urban growth. 

2.4.5  Prioritisation of Commission’s legal enforcement work 

Horizontal legal actions addressing systemic breaches, such as widespread contraventions of 
obligations for the development of environmental infrastructure under the Urban Waste Water 
Directive, will continue to be pursued as priorities. This approach means that a single case can 
encompass  significant  numbers  of  non-compliant  cities  and  towns,  bringing  much  more 
pressure to bear than would be possible through a policy of pursuing individual failures. 

An important focus of the Commission’s enforcement work as regards water is to make sure 
that the various deadlines of the Water Framework Directive are respected. To this effect, the 
Commission  will  continue  to  take  concerted  legal  action  to  address  missed  deadlines  in  the 
upcoming crucial period 2009-2015. 

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The Commission will continue to take infringement action against Member States that have 
not  correctly  or  completely  transposed  into  their  national  legislation  the  provisions  of  the 
Water  Framework  Directive  in  ways  likely  to  affect  the  attainment  of  the  legislative 
objectives. 

Similar  action  will  be  taken  to  secure  from  Member  States  (mainly  from  EU-12  countries) 
clearer  and  more  complete  national  implementing  provisions  for  the  Drinking  Water 
Directive. 

As  regards  important  new  legal  instruments,  DG  Environment  will  prepare  risk-based 
implementation  action  plans  for  the  Marine  Strategy  Directive  and  the  new  Groundwater 
Directive.  This  will  involve  forward  planning  of  work  to  encourage  correct  and  timely 
transposition. 

2.5 

Air Quality 

2.5.1  Legislative Framework 

The new Directive 2008/50/EC of the European Parliament and of the Council of 21 
May  2008  on  ambient  air  quality  and  cleaner  air  for  Europe  is  the  key  legal 
instrument in this sector48. This merges four directives49 and one Council decision50 
into a single air quality instrument. Other important legal instruments contributing to 
ensuring  adequate  air  quality  are  the  two  fuel  quality  directives,  i.e.  Directive 
98/70/EC relating to the quality of petrol and diesel fuels51 and Directive 1999/32/EC 
relating  to  a  reduction  in  the  sulphur  content  of  certain  liquid  fuels52.  Furthermore, 
mention  must  also  be  made  of  the  Noise  Directive53  which  lays  down  a  common 
approach  to  avoiding,  preventing  or  reducing  on  a  prioritised  basis  the  harmful 
effects of exposure to environmental noise. 

2.5.2  State of Law 

This domain of EC environmental law is characterised by important new developments. The 
most significant recent legal instrument is the new Air Quality Directive, 2008/50/EC, which 
entered into force on 11 June 2008. It introduces new objectives for fine particles PM2.5 but 
does not change existing air quality standards. It does, however, under certain conditions give 

48 
49 

50 

51 

52 

53 

OJ L 152, 11.6.2008, p. 1-44. 
The  four  directives  merged  into  the  new  directive  are:  Council  Directive  96/62/EC  of  27  September 
1996  on  ambient  air  quality  assessment  and  management;  Council  Directive  1999/30/EC  of  22  April 
1999  relating  to  limit  values  for  sulphur  dioxide,  nitrogen  dioxide  and  oxides  of  nitrogen,  particulate 
matter  and  lead  in  ambient  air; Directive 2000/69/EC of the  European Parliament  and  of  the  Council 
relating to limit values for benzene and carbon monoxide in ambient air; and Directive 2002/3/EC of 
the European Parliament and of the Council relating to ozone in ambient air. These acts will be repealed 
two years from the entry into force of the new Directive. 
Council Decision 97/101/EC establishing a reciprocal exchange of information and data from networks 
and individual stations measuring ambient air pollution within the Member States. 
Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the 
quality of petrol and diesel fuels and amending Council Directive 93/12/EEC (OJ L 350, 28.12.1998, p. 
58–68). 
Council Directive 1999/32/EC of 26 April 1999 relating to a reduction int he sulphur content of certain 
liquid fuels and amending Directive 93/12/EEC (OJ L 121, 11.5.1999, p. 13–18). 
Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the 
assessment and management of environmental noise (OJ L 189, 18.7.2002, p. 12–25). 

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Member States greater flexibility in meeting some of these standards in areas where they have 
difficulty  complying.  Another  important  legal  instrument  that  is  currently  in  the  legislative 
procedure is the revision of the Fuel Quality Directive54. This will contribute to reducing air 
pollutant  and  greenhouse  gas  emissions  from  road  and  non-road  fuel  use  and  help  to 
implement the Community strategies on air quality and on climate change. The main reasons 
for reviewing the Fuel Quality Directive stem from evolving fuel and engine technology and 
the growth in biofuel use. 

2.5.3  Evaluation of the current position in terms of implementation 

Available  evidence  points  to  serious  problems  in  complying  with  air  quality  limit  values  in 
many European air quality zones. The Commission has been following closely the situation in 
all Member States and, so far, has taken the following action in this field: 

•  Action  on  SO2  levels:  The  Commission  has  already  launched  infringement 
procedures  against  several  Member  States 
that  have  shown  widespread 
exceedances of sulphur-dioxide (SO2) limit values that have been in force since 1 
January 2005.  

•  Action  on  PM10  levels:  The  binding  limit  values  for  particulate  matter  (PM10) 
have also been in force since 1 January 2005. It is clear from official reports that 
most of the Member States have experienced significant difficulties in achieving 
compliance  with  these  limit  values.  For  2006,  around  400  zones  in  23  Member 
States were reported as being in non-compliance. It is expected that Bulgaria and 
Romania,  which  were  not  under  an  obligation  to  report  for  that  year,  are  also 
facing serious compliance problems. In this context, it must be noted that PM10 
compliance  problems  were  recognised  well  in  advance  by  the  Commission. 
Hence, it proposed a revision of the legislation aimed at maintaining standards but 
allowing extra time and greater flexibility to address the most serious difficulties 
under certain conditions. The dilemma was how to treat the breaches of existing 
Community law in the intervening period before the new directive was adopted. 
The  Commission  took  the  option  of  not  initiating  immediate  legal  action,  and 
instead,  required  the  Member  States  to  implement  the  pollution-abatement 
measures  necessary  to  improve  the  situation.  It  warned  Member  States  that  this 
would  be  a  condition  for  any  time  extension  for  compliance  under  the  new  Air 
Quality Directive. 

•  Action  concerning  non-communication  of  plans  and  programmes  aimed  at 
achieving compliance with other limit values: The Commission has pursued legal 
enforcement  action  against  a  number  of  Member  States  which  had  failed  to 
communicate  their  plans  and  programmes  for  complying  by  the  end  of  the 
transitional  periods  with  the  other  limit  values  set  under  EC  air  quality 
legislation55.  

54 

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Proposal for a Directive of the European Parliament and of the Council amending Directive 98/70/EC 
as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and the 
introduction  of  a  mechanism  to  monitor  and  reduce  greenhouse  gas  emissions  from  the  use  of  road 
transport fuels and amending Council Directive 1999/32/EC, as regards the specification of fuel used by 
inland waterway vessels and repealing Directive 93/12/EEC (COM (2007) 18). 
In addition to sulphur dioxide and particulate matter for which binding limit values have been in force 
since  1  January  2005,  EC  legislation  sets  limit  values  that  are  not  yet  in  force  for  the  following 

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Actions  concerning  noise  Under  the  Noise  Directive,  Member  States  had  to  send  to  the 
Commission by 30 December 2007 information from the strategic noise maps which had to be 
drawn  up  by  30  June  2007.  Strategic  noise  maps  are  required  to  be  drawn  up  in  order  to 
monitor the extent of noise pollution, to inform and consult the public about noise exposure, 
its effects, and the measures considered necessary to address noise. The Commission prepared 
guidance  and  electronic  templates  (so-called  'electronic  reporting  mechanisms')  designed  to 
support  and  assist  the  Member  States  in  fulfilling  their  reporting  requirements.  The 
Commission,  together  with  the  European  Environmental  Agency,  is  currently  assessing  the 
information received and carrying out a quality checking of the noise maps. It is to be noted 
that  there  are  still  some  Member  States  who  have  not  yet  submitted  their  report.  The 
Commission  has requested all  Member States to provide information on the current state of 
play concerning their noise maps. 

2.5.4  Further challenges in implementing Air Quality legislation 

•  Ensuring  compliance  with  air  quality  limit  values:  Air  pollution  has  long  been 
recognised as posing a significant risk to human health and the environment. On 
the  basis  of  past  experience,  it  is  likely  that  ensuring  compliance  with  binding 
limit values will remain a difficult issue in several Member States. In the coming 
period,  it  will  be  crucial  to  ensure  that  measures  aimed  at  bringing  about 
compliance with limit values are systematically put in place and implemented. 

•  Implementing the mechanisms of the new Air Quality Directive — postponement 
of attainment deadlines: The new Air Quality Directive provides Member States 
with  the  possibility  to  obtain,  under  certain  conditions,  time  extensions  for 
compliance with certain limit values. Most of the Member States are expected to 
apply  for  such  time  extensions.  Before  granting  its  final  agreement  to 
postponement,  the  Commission  will  have  to  assess  thoroughly  if  a  number  of 
conditions  are  fulfilled,  in  particular  if  Member  States  have  implemented 
appropriate pollution-abatement measures. 

• 

Effective 

implementation  of 

the  Environmental  Noise  Directive.  The 
Commission  efforts  need  to  continue  to  ensure  that  the  Noise  Directive  is  fully 
and correctly implemented. 

2.5.5  Prioritisation of Commission’s legal enforcement work 

In  the  coming  years,  the  Commission  will  continue  to  monitor  closely  the  situation  with 
regard  to  compliance  with  air  quality  limit  values  in  all  Member  States.  It  will  continue  to 
follow its "horizontal" approach, which allows air pollution problems to be addressed in a far 
higher  number  of  places  than  would  be  possible  if  it  only  focused  on  individual  cities  or 
regions. 

As  regards  excessive  SO2,  the  Commission  will  continue  to  pursue  the  legal  enforcement 
action it has already launched against several Member States. As for PM10, the Commission 
will assess closely whether time extension requests expected to be submitted by most of the 
Member States meet the relevant criteria. Infringement procedures are to be envisaged against 

pollutants:  nitrogen  dioxide,  oxides  of  nitrogen,  lead,  benzene,  carbon  monoxide,  ozone,  arsenic, 
cadmium, mercury and nickel. 

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Member States in breach of the limit values which do not apply for a time extension or do not 
meet the conditions for obtaining such extension.  

In addition, legal enforcement procedures will be pursued to ensure that Member States fulfil 
their reporting obligations under the air quality legislation. The Commission will continue its 
efforts to ensure that the Noise Directive is fully implemented. To this end, it will continue to 
carefully assess the information, i.e. the strategic noise maps and action plans, submitted by 
the Member States under the directive and will launch legal action should it identify breaches 
in the application of this legislation. 

For newly adopted directives, implementation action plans will be drawn up. This will involve 
forward planning of work to encourage correct and timely transposition.  

2.6 

Climate Change 

2.6.1  Legislative Framework 

The  most  important  cross-cutting  measures  in  this  domain  are  the  Emissions  Trading 
Directive56  and  Decisions  280/2004/EC57  and  2005/166/EC58.  With  the  adoption  of  the 
Emissions  Trading Directive,  the EU has established a scheme  for greenhouse gas emission 
allowance trading within the Community (EU ETS). This is a market-based instrument aimed 
at  gradually  reducing  emissions  in  selected  sectors.  It  should  help  the  Community  and  the 
Member  States  to  meet  their  Kyoto  Protocol  commitments  to  reduce  greenhouse  gas 
emissions  in  a  cost-efficient  way.  With  the  adoption  of  Decisions  280/2004/EC  and 
2005/166/EC, the EU established a mechanism for monitoring and reporting greenhouse gas 
emissions. This makes it possible to evaluate more accurately and more regularly the progress 
made  in  reducing  emissions  under  the  United  Nations  Framework  Convention  on  Climate 
Change (UNFCCC) and the Kyoto Protocol.  

2.6.2  State of Law 

Climate change legislation is an evolving part of EC environmental law. The Commission has 
taken many climate-related initiatives since 1991, when it issued the first Community strategy 
to limit carbon dioxide (CO2) emissions and improve energy efficiency. It became clear that 
action by both Member States and the European Community needed to be strengthened if the 
EU is to succeed in cutting its greenhouse gas emissions to 8% below 1990 levels by 2012, as 
required by the Kyoto  Protocol.  Decisions 280/2004/EC  and  2005/166/EC  make  it  easier  to 
gauge the EU’s progress towards meeting this target.  

In June 2000 the Commission launched the European Climate Change Programme (ECCP) as 
the  Commission’s  main  instrument  for  discussing  and  preparing  the  further  development  of 

56 

57 

58 

Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a 
scheme for greenhouse gas emission allowance trading within the Community and amending Council 
Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32–46). 
Decision 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning 
a  mechanism  for  monitoring  Community  greenhouse  gas  emissions  and  for  implementing  the  Kyoto 
Protocol (OJ L 49, 19.2.2004, p. 1–8). 
Commission Decision 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 
280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring 
Community greenhouse gas emissions and for implementing the Kyoto Protocol (OJ L 55, 1.3.2005, p. 
57–91). 

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the  EU’s  climate  policy.  Under  the  first  ECCP,  an  extensive  range  of  policy  sectors  were 
examined and several instruments with potential for reducing greenhouse gas emissions were 
adopted.  One  of  the  most  important  and  innovative  initiatives  is  the  EU  Emissions  Trading 
Scheme,  under  Directive  2003/87/EC,  which  covers  carbon  dioxide  (CO2)  emissions  from 
some 10 500 installations in the energy and some industrial sectors. 

The second European Climate Change Programme (ECCP II) was launched in October 2005. 
It  has  several  working  groups  preparing  new  legislative  instruments  in  the  following  main 
fields: ECCP I review (transport, energy supply, energy demand, non-CO2 gases, agriculture), 
aviation, CO2 and cars, carbon capture and storage, adaptation and the EU ETS review. 

Examples of legislative proposals that are currently under adoption are: 

•  Revision  of  the  Emissions  Trading  Directive59:  The  main  objectives  are  (1)  full 
exploitation  of  the  potential  of  the  EU  ETS  to  contribute  to  the  EU’s  overall 
greenhouse gas reduction commitments in an economically efficient manner; (2) 
refinement  and  improvement  of  the  EU  ETS  in  the  light  of  experience;  and  (3) 
contribution to transforming Europe into a low greenhouse-gas-emitting economy 
and  creating  the  right  incentives  for  forward-looking  low  carbon  investment 
decisions by giving a clear, undistorted and long-term carbon price signal. 

•  Proposal  to  include  aviation  activities  in  the  EU  ETS60:  This  directive  provides 
for  aviation  to  be  brought  into  the  EU  ETS  so  as  to  limit  the  rapid  growth  in 
emissions of the sector. 

•  Proposal  on  the  geographical  storage  of  carbon  dioxide61:  This  directive 
establishes  a  legal  framework  for  the  geological  storage  of  carbon  dioxide,  the 
purpose  being  permanent  containment  of  CO2  in  such  a  way  as  to  prevent  or 
minimise  negative  effects  on  the  environment  and  any  resulting  risk  to  human 
health. 

•  Proposal  to  limit  the  CO2  emissions  from  cars62:  This  regulation  lays  down 
harmonised  rules  to  limit  the  average  CO2  emissions  from  new  cars  in  the 
Community.  It  thus  seeks  to  fight  climate  change,  reduce  fuel  costs  and  boost 
European competitiveness. 

59 

60 

61 

62 

Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/87/EC 
so as to improve and extend the greenhouse gas emission allowance trading system of the Community 
(COM (2008) 16). 
Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/87/EC 
so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within 
the Community (COM (2006) 818). 
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  the  geological  storage  of 
carbon  dioxide  and  amending  Council  Directives  85/337/EEC,  96/61/EC,  Directives  2000/60/EC, 
2001/80/EC, 2004/35/EC, 2006/12/EC and Regulation (EC) No 1013/2006 (COM (2008) 18). 
Proposal for a Regulation of the European Parliament and of the Council setting emission performance 
standards  for  new  passenger  cars  as  part  of  the  Community’s  integrated  approach  to  reduce  CO2 
emissions from light-duty vehicles (COM (2007) 856). 

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2.6.3  Evaluation of the current position in terms of implementation 

Under  Decisions  280/2004/EC  and  2005/166/EC,  Member  States  must  provide  the 
Commission  with  annual  reports  on  their  actual  emissions  of  greenhouse  gases  and  twice-
yearly  reports  on  domestic  climate  change  policies  and  measures  and  emission  projections. 
The  Commission  has  been  rigorously  checking  whether  national  reports  were  submitted  on 
time and whether they were correct and complete. As a result of enforcement action, reporting 
has  steadily  and  significantly  improved  in  terms  of  timing  and  content.  As  far  as  the 
Emissions  Trading  Directive  is  concerned,  following  Commission  enforcement  action,  all 
Member States have communicated their national implementing legislation.  

2.6.4  Further challenges in implementing Climate Change legislation 

•  Implementing the EU ETS. Launched in January 2005, the EU ETS is the world’s largest 
company-level  ‘cap-and-trade’  system  for  trading  in  emissions  of  carbon  dioxide  (CO2) 
and  has  quickly  become  the  main  driving  force  behind  the  expansion  of  the  emerging 
global  carbon  market.  Putting  this  system  into  effect  should  allow  the  EU  to  achieve  its 
greenhouse gas emission reduction targets under the Kyoto Protocol in a particularly cost-
effective way. 

•  Ensuring  provision  of  climate-relevant  data.  Accurate,  up-to-date  information  is  an 
essential basis for fighting climate change. One of the challenges for the Commission will 
therefore  be  to  ensure  that  the  reporting  of  national  greenhouse  gas  emissions  improves 
still further, so that all Member States communicate complete reports to deadline to ensure 
an  effective  follow-up  to  the  United  Nations  Framework  Convention  on  Climate  Change 
and the Kyoto Protocol. 

2.6.5  Prioritisation of Commission’s legal enforcement work 

The  Commission  has  assessed  the  national  allocation  plans  (NAPs)  of  all  the  27  Member 
States  for  the  second  trading  period  (2008-2012)  of  the  EU  ETS  and  has  adopted  decisions 
based  on  the  Emissions  Trading  Directive.  It  is  currently  checking  to  see  whether  the  way 
Member  States  implement  their  NAPs,  i.e.  how  they  allocate  the  accepted  total  quantity  of 
allowances to individual installations, is in conformity with its decisions.  

Having  secured  the  transposition  of  the  Emissions  Trading  Directive,  the  Commission  will 
now  focus  on  assessing  the  correctness  and  completeness  of  the  national  implementing 
legislation in the Member States. Priority will be attached to the pursuit, through infringement 
proceedings if necessary, of any shortcomings likely to affect the attainment of the legislative 
objectives  

In the coming years, the Commission will continue to pursue legal enforcement action against 
Member States that fail to comply with their obligations under the climate change legislation, 
including in relation to reporting and monitoring the Community’s greenhouse gas emissions 
and implementing the Kyoto Protocol.  

For the new directives, the Commission will draw up implementation action plans. This will 
involve forward planning of work to encourage correct and timely transposition. 

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2.7 

Industrial Installations 

2.7.1  Legislative Framework 

The most important piece of legislation relating to industrial emissions is Directive 96/61/EC 
concerning integrated pollution prevention and control (IPPC Directive), which was codified 
by  Directive  2008/1/EC63.  It  sets  out  common  permit  rules  for  industrial  installations. 
Operators  of  installations  covered  by  the  IPPC  Directive  are  required  to  obtain  an 
authorisation  (integrated  permit)  from  the  authorities  of  the  Member  States.  The  Large 
Combustion Plant (or LCP) Directive64 aims to reduce emissions of sulphur dioxide, nitrogen 
oxides and dust from large combustion plants — i.e. plants whose rated thermal input is equal 
to or greater than 50 MW. The control of emissions from such plants plays an important role 
in the Community’s efforts to combat acidification, eutrophication and ground-level ozone as 
part  of  the  overall  strategy  to  reduce  air  pollution.  Further  important  legislation  relating  to 
industrial emissions includes the Waste Incineration Directive65 and the Solvents Directive66. 

The  Seveso  II  or  Major  Accident  Hazard  Directive67  applies  to  establishments  in  which 
certain  dangerous  substances  are  present  in  sufficiently  large  quantities  to  create  a  major 
accident  hazard.  It  contains  obligations  on  both  operators  and  Member  State  authorities  to 
take  measures  aimed  at  preventing  major  accidents  and  limiting  their  consequences.  One  of 
the  key  requirements  is  that  emergency  plans  must  be  drawn  up  for  areas  surrounding  so-
called “upper tier” establishments in order to properly protect the public should an emergency 
arise. 

2.7.2  State of Law 

Some  EC  environmental  legislation  in  this  domain  has  been  subject  to  an  important  review 
recently. This development is marked by the proposal for a directive on industrial emissions68 
that  the  Commission  adopted  in  December  2007.  It  aims  at  simplifying  the  existing  legal 
framework  in  the  field  of  industrial  emissions.  The  proposal  was  adopted  in  the  form  of  a 
recast  of  seven  existing  directives  in  the  field  (the  IPPC  Directive,  the  LCP  Directive,  the 
Waste  Incineration  Directive,  Solvents  Directive  and  three  directives  in  relation  to  titanium 
dioxide  78/176/EEC69,  82/883/EEC70  and  92/112/EEC71).  The  result  was  a  single  text 
combining  the  substantive  amendments  to  the  directives  and  the  original  provisions  which 

63 
64 

65 

66 

67 

68 
69 

70 

71 

OJ L 24, 29.01.2008, p. 8-29. 
Directive  2001/80/EC  on  the  limitation  of  emissions  of  certain  pollutants  into  the  air  from  large 
combustion plants OJ L 309, 27.11.2001, p. 1–21. 
Directive  2000/76/EC  of  the  European  Parliament  and  of  the  Council  of  4  December  2000  on  the 
incineration of waste (OJ L 332, 28.12.2000, p. 91–111). 
Council  Directive  1999/13/EC  of  11  March  1999  on  the  limitation  of  emissions  of  volatile  organic 
compounds due to the use of organic solvents in certain activities and installations (OJ L 85, 29.3.1999, 
p. 1). 
Council  Directive  96/82/EC on  the  control of  major-accident  hazards  involving dangerous  substances 
OJ L 10, 14.1.1997, p. 13–33. 
COM(2007) 844. 
Council Directive 78/176/EEC of 20 February 1978 on waste from the titanium dioxide industry (OJ L 
54, 25.2.1978, p. 19). 
Council Directive 82/883/EEC of 3 December 1982 on procedures for the surveillance and monitoring 
of environments concerned by waste from the titanium dioxide industry (OJ L378, 31.12.1982, p. 1). 
Council  Directive  92/112/EEC  of  15  December  1992 on procedures for  harmonising  the programmes 
for  the  reduction  and  eventual  elimination  of  pollution  caused  by  waste  from  the  titanium  dioxide 
industry (OJ L 409, 31.12.1992, p. 11). 

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remain  unchanged.  The  recast  technique  enables  existing  provisions  to  be  simplified  and 
streamlined:  redundant  provisions  and  unnecessary  obligations  can  be  repealed,  while 
reporting  and  monitoring  requirements  are  simplified.  This  should  help  Member  States  to 
reduce unnecessary administrative burdens. 

A  review  of  the  Seveso  II  Directive,  the  provisions  of  which  have  remained  essentially 
unchanged for over 10 years, is underway. 

2.7.3  Evaluation of the current position in terms of implementation 

The  IPPC  Directive  requires  some  52 000  existing  industrial  installations  to  operate  by  30 
October 2007 at the latest according to a permit issued in accordance with the IPPC Directive. 
The  Commission  has  drawn  the  attention  of  Member  States  to  this  deadline  on  several 
occasions. However, there are indications that, for about 10 000 installations, the deadline for 
issuing  the  permits  was  missed.  The  Commission  has  subsequently  launched  infringement 
procedures against the Member States with the highest number of missing permits.  

The Commission has developed an action plan for the implementation of existing legislation 
on  industrial  emissions  that  formed  part  of  the  Commission’s  Communication  ‘Towards  an 
improved policy on industrial emissions’72. This set out key actions over the timeframe 2008-
2010. The details of each action are set out within the Communication itself. The Commission 
will produce regular reports on the implementation of the action plan and will review the plan 
by  the  end  of  2010,  assessing  how  it  fits  in  with  the  Commission’s  proposal  on  the  new 
Directive on industrial emissions. 

2.7.4  Further challenges in implementing industrial installations legislation 

•  Lack  of  permits  for  existing  industrial  installations.  The  Commission  started  to 
analyse how effectively Member States have implemented the requirements of the 
IPPC  Directive  by  reference  to  installation-specific  case  studies,  in  particular 
those  related  to  the  permits;  and  to  identify  where  problems  in  implementation 
may have arisen.  

•  Achieving  uniform  interpretation  and  implementation  of  BAT  and  BREFs.  The 
IPPC Directive does not set standards or thresholds for the prevention and control 
of emissions, or for other environmental aspects, but leaves this responsibility to 
the  Member  States.  Member  States  must  ensure  that  IPPC  permits  include 
emission  limit  values  or  equivalent  measures  based  on  best  available  techniques 
(BAT).  In  determining  what  constitutes  BAT,  the  competent  authorities  have  to 
take into account the reference documents on BAT (BREFs). BREFs are adopted 
by  the  European  Commission  based  on  an  exchange  of  technical  information 
between experts from  industry, Member State authorities, research institutes and 
NGOs73
.  It  is  particularly  challenging  to  ensure  that  BREFs  are  interpreted  and 
implemented uniformly in all Member States. 

72 
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COM(2007) 843 final. 
This exchange of information is coordinated by the IPPC Bureau in Seville (http://eippcb.jrc.es/), which 
sets up a technical working group for each BREF. 

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•  Controlling major specific sources of air pollutants. Compliance with legislation 
aimed at limiting air pollutant emissions from specific sources, as for instance the 
Large  Combustion  Plants,  the  Waste  Incineration  and  the  National  Emissions 
Ceiling Directives74, will also be essential. 

•  Lack of emergency plans for Seveso “upper tier” installations. Plans are required 
for about 8 000 installations in all. They should have been in place since 2002 for 
the EU-15 Member States and 2004 for the EU-10, but a considerable number of 
installations  in  many  Member  States  are  still  not  covered.  The  Commission 
launched a "horizontal" legal action in 2007, that is a similar legal action against 
all Member States lacking emergency plans.  

2.7.5  Prioritisation of Commission’s legal enforcement work 

The  Commission  will  continue  to  pursue  the  infringement  procedures  launched  against 
Member  States  with  the  highest  number  of  missing  IPPC  permits.  Legal  action  are  also 
envisaged against Member States with fewer missing permits if no progress is forthcoming.  

The Commission will also take action against systematic breaches of the IPPC Directive, and 
will  ensure  that  Member  States  fulfil  their  reporting  obligations.  Legal  enforcement  action 
over lack of provision of relevant data by certain Member States has already been launched 
recently under the LCP Directive.  

With regard to guidance concerning the Commission’s proposal on industrial emissions, work 
is likely to be undertaken after 2010 in the context of the new Committee suggested within the 
proposal. The Commission has already begun preparations in this respect with a proposal to 
amend  the  remit  of  the  existing  IPPC  Experts  Group  (IEG)  to  consider  wider  industrial 
emissions  legislation  in  the  future  under  the  title  of  Industrial  Emissions  Experts  Group 
(IEEG). Transposition of the resulting directive will be confirmed, and the Commission will 
offer support to Member States in such transposition. The exact form of such support has not 
been  determined  at  this  early  stage  in  proceedings,  although  as  indicated  above,  it  is  likely 
that the measures that presently exist in the Commission’s Action Plan for implementation of 
the legislation on industrial emissions will continue into the implementation of the proposal. 

The  Commission  will  continue  to  press  for  external  emergency  plans  under  the  Seveso  II 
Directive.  

2.8 

Chemicals, Pesticides, Biocides and Biotechnology 

2.8.1  Legislative Framework 

The  REACH  Regulation  (1907/2006)75,  which  entered  into  force  on  1  June  2007,  is  the 
cornerstone of the EU’s new chemicals legislation. REACH, which is considerably more far-

74 

75 

Directive 2001/81/EC of the European Parliament and of the Council on national emission ceilings for 
certain atmospheric pollutants, (OJ L 309, 27.11.2001, p. 22–30). 
Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 
concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals  (REACH), 
establishing  a  European  Chemicals  Agency,  amending  Directive  1999/45/EC  and  repealing  Council 
Regulation  (EEC)  No  793/93  and  Commission  Regulation  (EC)  No  1488/94  as  well  as  Council 
Directive  76/769/EEC  and  Commission  Directives  91/155/EEC,  93/67/EEC,  93/105/EC  and 
2000/21/EC. 

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reaching  than  previous  legislation,  deals  with  the  registration,  evaluation,  authorisation  and 
restriction of chemicals. Registration means the process by which information on the safety of 
chemicals will need to be submitted for registration in a central database, managed by ECHA. 
Evaluation  includes  a  quality  check  of  the  registration  dossiers  and  examination  of  testing 
proposals  and  is  done  by  ECHA;  it  also  includes  a  more  thorough  examination  of  specific 
substances,  where  Member  States  play  an  important  role.  Substances  of  very  high  concern 
will require authorisation for use and before being placed on the market. There is a procedure 
for the regulation of Community-wide conditions for the manufacture, placing on the market 
or use of certain substances where there is an unacceptable risk to health or the environment. 

Separate legislation currently continues to govern the classification, packaging and labelling 
of dangerous substances and preparations. The main provisions in this regard are contained in 
Directive  67/548/EEC76  (for  substances)  and  Directive  1999/45/EC77  (for  preparations). 
Directive  76/769/EEC,  which  concerns  restrictions  on  the  marketing  and  use  of  certain 
dangerous substances, will remain in force until 1 June 2009, when it will be repealed by the 
REACH  Regulation.  Two  other  pieces  of  legislation  should  be  mentioned  here.  First, 
persistent  organic  pollutants  (“POPs”)  are  governed  by  Regulation  850/2004.  Second,  basic 
provisions concerning the protection of laboratory animals used in experiments are contained 
in Directive 86/609/EEC. 

Directive 98/8/EC of the European Parliament and of the Council concerning the placing of 
biocidal  products  on  the  market78  (the  Biocides  Directive)  concerns  the  authorisation  and 
placing  on  the  market  of  biocidal  products  in  the  Member  States  and  the  establishment  at 
Community  level  of  a  list  of  active  substances  which  may  be  used  in  biocidal  products. 
Council  Directive  90/219/EEC79  lays  down  common  measures  for  the  contained  use  of 
genetically  modified  micro-organisms  for  the  purpose  of  protecting  human  health  and  the 
environment.  Directive  2001/18/EC  of  the  European  Parliament  and  of  the  Council  on  the 
deliberate  release  into  the  environment  of  genetically  modified  organisms  and  repealing 
Council Directive 90/220/EEC80 establishes a common methodology for risk assessment and 
a safety mechanism. It also introduces mandatory public consultation and GMO labelling. 

2.8.2  State of Law 

This  sector  of  EC  environmental  law  is  characterised  by  substantial  new  developments,  in 
particular in the chemicals and pesticides sectors.  

•  Firstly, REACH entered into force on 1 June 2007. This included the establishment of the 
European Chemicals Agency (ECHA) and the preparation of IT-systems to hold the new 
database. Registration of  chemicals manufactured or imported in quantities  of 1  tonne or 
more  per  year  started  on  1  June  2008.  Between  1  June  and  1  December  2008 
manufacturers  will  have  the  possibility  to  pre-register  their  phase-in  substances.  Pre-
registration,  as  its  name  suggests,  precedes  full  registration  and  provides  for  extended 
deadlines.  Depending  on  the  volumes  and  the  hazardous  properties  of  substances,  these 
extended  deadlines  are  2010,  2013  or  2018.  If  a  company  fails  to  pre-register,  from  1 

76 
77 
78 
79 
80 

OJ L 196, 16.08.1967, p. 1. 
OJ L 200, 30.07.1999, p. 1. 
OJ L 123, 24.4.1998, p. 1–63. 
OJ L 117, 8.5.1990, p. 1–14. 
OJ L 106, 17.4.2001, p. 1–39. 

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December  2008  it  can  no  longer  place  its  phase-in  substances  on  the  market  until  it  has 
completed registration.  

•  Furthermore,  the  Commission’s  Proposal  for  a  new  Regulation  dealing  with  the 
classification, labelling and packaging of substances and mixtures81 has almost completed 
the legislative procedure for adoption by the European Parliament and Council. This new 
proposal  incorporates  the  UN  GHS  (United  Nations  Globally  Harmonised  System)  into 
Community  law  and  replaces,  to  a  large  extent,  the  existing  legislation  on  classification, 
labelling and packaging. 

•  Secondly,  as  regards  pesticides,  the  Commission  adopted  in  June  2006  the  Thematic 
Strategy  on  the  Sustainable  Use  of  Pesticides  together  with  a  proposal  for  a  framework 
directive  on  the  sustainable  use  of  pesticides82  and  a  proposal  for  a  regulation  on  the 
placing  of  plant  protection  products  on  the  market,  revising  Directive  91/414/EEC.  The 
aim of the Thematic Strategy is to fill the current legislative gap regarding the use-phase of 
pesticides83  at  EU  level  by  setting  minimum  rules  for  the  use  of  pesticides  in  the 
Community,  so  as  to  reduce  risks  to  human  health  and  the  environment  from  the  use  of 
pesticides.  For  the  time  being,  the  Commission  has  proposed  to  restrict  the  scope  of  the 
framework  directive  to  plant  protection  products.  The  intention  is,  however,  to  include 
biocides within the scope as soon as possible.  

2.8.3  Evaluation of the current position in terms of implementation 

As the REACH Regulation entered into force on 1 June 2007 and its main obligations started 
applying on 1 June 2008, there is not yet sufficient information concerning its implementation 
in Member States. In order to ensure compliance, Member States should put in place effective 
monitoring and control measures. Every five years Member States must submit a report to the 
Commission  on  the  operation  of  the  Regulation  in  their  respective  territories,  including 
sections on evaluation and enforcement. Penalties for non-compliance must be notified to the 
Commission by 1 December 2008. 

The  Biocides  Directive  stipulates  that  Member  States  have  to  take  the  necessary  steps  to 
monitor  their  market  and  make  sure  it  complies  with  the  requirements  of  the  directive.  The 
first reporting covering the period of  May 2000 to November  2003 provided a lot  of  useful 
information and revealed a few points of concern. The second composite report prepared by 
the Commission in April 2008, covering the period December 2003 to November 2006, has 
found that Member States have made significant progress in implementing and enforcing the 
directive’s  provisions  by  taking  the  appropriate  measures.  In  this  regard,  mention  must  be 
made  of  a  number  of  guidance  documents  prepared  by  the  Commission  to  help  ensure 
effective implementation of the Biocides Directive.  

Concerning the biotechnology sector, studies obtained by the Commission revealed a number 
of  shortcomings  in  the  national  implementing  legislation  for  Directive  90/219/EEC  as 
amended  by  Directive  98/81/EC  (contained  use  of  GMOs)  in  several  Member  States.  Since 
the  completeness  and  correctness  of  implementing  legislation  within  the  Member  States  are 

81 
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83 

COM (2007) 0611. 
Proposal for  a  Directive  of  the  European  Parliament  and of  the  Council  establishing  a  framework  for 
Community action to achieve a sustainable use of pesticides (COM (2006) 373). 
The  current  legislative  framework  mainly  concentrates on  the  beginning  and  the  end of  life  stages  of 
pesticides. 

EN 

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important  determinants  of  good  implementation  in  practice,  the  Commission  has  launched 
legal  enforcement  action  against  several  (mainly  EU-15)  Member  States  that  have  not 
properly transposed this directive.  

2.8.4  Further  challenges  in  implementing  legislation  relating  to  the  Chemicals  and 
Biocides sector 

•  Effective implementation of REACH. The Chemicals Agency will play a key role 
in the effective implementation of REACH. It will coordinate, over a period of 11 
years,  the  registration  of  some  30 000  chemical  substances  in  use  today.  To 
exchange information on enforcement, the Forum for Exchange of Information on 
Enforcementcomposed of members nominated by the Member States, was set up 
within  ECHA.  The  Forum  coordinates  a  network  of  Member  State  authorities 
responsible for enforcement of the Regulation. Its main tasks include: proposing, 
coordinating  and  evaluating  harmonised  enforcement  projects  and 
joint 
inspections;  identifying  enforcement  strategies  and  best  practice  in  enforcement; 
and examining proposals for restrictions with a view to advising on enforceability.  

•  Delays in transposition of a large number of directives in the Biocides sector. The 
Biocides  Directive  provides  for  the  evaluation  and  inclusion  in  a  Community 
positive list (its Annex I, IA or IB) of active substances used in biocidal products 
that are found acceptable for a specific use (product-type) from the point of view 
of  health  and  the  environment.  Member  States  that  did  not  make  a  dynamic 
reference  to  Annex  I,  IA  or  IB  to  the  Biocides  Directive  have  to  transpose  the 
directives amending its annexes by adding the newly approved active substances. 
This takes a lot of time, in particular considering that there are hundreds of active 
substances currently scheduled for evaluation. The planned change of the Biocides 
Directive  into  a  Regulation  should  solve  this  problem  as  transposition  will  no 
longer be necessary – though it should not be forgotten that Member States may 
also  need  to  take  legislative  action  in  this  event,  for  example  repeal  existing 
incompatible national legislation.  

2.8.5  Prioritisation of Commission’s legal enforcement work 

Legal  enforcement  action  in  these  fields  does  not  constitute  a  significant  workload  for  the 
Commission.  In  the  coming  years,  the  main  priorities  in  terms  of  enforcement  work  can  be 
summarised as follows: 

•  The Commission will continue to work to enhance good cooperation, coordination 
and exchange of information with the Member States and the European Chemicals 
Agency  regarding  enforcement  so  that  the  system  established  by  the  REACH 
Regulation  can  operate  effectively.  The  Commission  will  work  closely  with  the 
Forum for Exchange of Information on Enforcement in this regard. 

•  The Commission will continue to pursue infringement procedures concerning the 
non-communication  of  the  national  implementing  measures  for  recently  adopted 
directives that update the relevant annexes to the Biocides Directive.  

•  Work will also be done on ensuring that the directive on contained use of GMOs 
is  correctly  transposed  in  all  Member  States.  To  this  end,  the  Commission  will 

EN 

29 

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extend  its  legal  action  to  cover  all  Member  States  that  have  failed  to  properly 
transpose this directive.  

After  the  adoption  of  the  new  framework  directive  on  the  sustainable  use  of  pesticides,  the 
Commission  will  carefully  monitor  its  transposition  into  the  Member  States’  national 
legislation on the basis of a risk-based implementation action plan. This will involve forward 
planning of work to encourage correct and timely transposition. 

2.9  Governance and Environmental Liability 

2.9.1 Legislative framework 

to 

the  public  upon  request  and  actively  disseminated 

Directive  2003/4/EC  of  the  European  Parliament  and  of  the  Council  on  public  access  to 
environmental  information  and  repealing  Council  Directive  90/313/EEC84  (Access  to 
Environmental  Information  Directive)  aims  to  ensure  that  environmental  information  is 
available 
through  computer 
telecommunication  or  electronic  technology.  Directive  2004/35/EC  of  the  European 
Parliament  and  of  the  Council  on  environmental  liability  with  regard  to  the  prevention  and 
remedying  of  environmental  damage  (Environmental  Liability  Directive)85  establishes  a 
framework for environmental liability based on the "polluter pays" principle, with a view to 
preventing and remedying environmental damage. 

2.9.2 State of law 

The  Access  to  Environmental  Information  Directive  and  the  Environmental  Liability 
Directive are both recent instruments. The former was adopted in order to fully comply with 
the  Aarhus  Convention.  While  modifications  cannot  be  excluded  in  the  future,  there  are  no 
current plans to change them. 

2.9.3  Evaluation of the current position in terms of implementation 

The  Commission  has  pursued  the  failure  to  transpose  the  Access  to  Environmental 
Information  Directive,  obtaining  two  ECJ  rulings  in  2007  (Case  C-391/06,  Commission  v 
Ireland, decision of 3 May 2007 and Case C-340/06, Commission v Austria, decision of 5 July 
2007). 

By  the  end  of  2007,  a  total  of  eleven  Member  States  had  notified  complete  transposing 
measures  for  the  Environmental  Liability  Directive:  Italy,  Lithuania,  Latvia,  Hungary, 
Germany, Romania, Slovakia, Sweden, Spain, Estonia and Cyprus. 

2.9.4.  Further challenges in implementing legislation 

Commission  efforts  need  to  continue  to  ensure  that  the  Environmental  Liability  Directive 
(ELD) is correctly transposed. Apart from the application of the significance criteria (Annex 
I) and the application of the appropriate measures to ensure the remedying of environmental 
damage  ('primary',  'complementary'  and  'compensatory'  remediation  according  to  Annex  II), 
the  proper  functioning  of  financial  security  instruments  will  be  significant  for  successful 
implementation  of  the  ELD  in  the  Member  States.  Based  on  various  information  sources 

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OJ L 41, 14.2.2003, p. 26–32 
OJ L 143, 30.4.2004, p. 56–75 

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(studies commissioned by the Commission, information drawn from national experts as well 
as from stakeholders such as the financial sector, industry and NGOs etc.), the Commission 
will have to present a report before 30 April 2010 on the effectiveness of the ELD in terms of 
actual remediation of environmental damages and on the availability at reasonable costs and 
on conditions of insurance and other types of financial security fort the activities covered by 
the scope of strict liability of the ELD. 

2.9.5  Prioritisation of Commission's legal enforcement work 

The Commission will continue its efforts to ensure that the Environmental Liability Directive 
is completely and correctly transposed in all Member States.  

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