ENFORCING ENVIRONMENTAL AGREEMENTS WITHIN THE EUROPEAN COMMUNITY

Robert H. Donkers, EC coordinator in the Ministry of Housing, Physical Planning and Environment, Director of the Brussels' Office

General Introduction

This paper will discuss the way in which environmental agreements within the European Community (EC) and those between the EC and other states or groups of states are implemented and enforced. Further, it will look at which difficulties arise in implementing and enforcing these agreements, and finally, the scope for improvement will be investigated.

First, the nature of EC environmental legislation should be addressed. In Article 189 of the Treaty of Rome, several types of Community legislation are set out. They are Regulations, which are directly applicable laws in the Member States; Directives which are binding as to the results to be achieved but leave Member States to choose the form and methods in which these are to be reflected in their national legislation, and Decisions, which are directly binding in their entirety upon those to whom the decision is addressed.

The vast majority of EC environmental legislation is in the form of Directives, enabling Member States to accommodate -if necessary- already existing legislation. To date, Regulations and Decisions have been used only rarely for environmental matters except for some measures in connection with international agreements. The Commission of the EC has, for example, recently tabled a draft regulation for the implementation of the Montreal Protocol in view of the possible revision in 1990. It is expected that later this year a draft Regulation will be tabled on the implementation of the Basel Convention on transboundary shipments of chemical and toxic waste.

If one compares the different types of EC legislation it becomes clear that Regulations and, if certain conditions are met, also Decisions have a self-executing character, where Directives, as such, are not self-executing. However jurisprudence of the European Court of Justice shows that the self-execution of a Directive can be invoked by the public in cases where a directive adequately implemented and/or not implemented within a set of time.

1. Formal and practical compliance with EC legislation

Formal compliance

As referred to above, Directives usually require Member States to implement them in national legislation. Directives indicate the period for implementation. This period varies from 1 to 3 years. Member States have to send to the Commission within a given period any (new) national legislation that gives formal effect to a Directive. As 'Guardian' of the Treaty, the Commission has the duty to control whether the measures adopted are adopted in time and whether they are adequate.

Recent reports of the Commission indicate that Member States seriously fail to (adequately) implement EC environmental legislation. In 60 cases Directives were not implemented at all; in 90 cases only partly and in 213 cases not adequately. Cases on legislation on water (104) and on nature protection (129) form the largest part of these cases. These figures seem very serious, but are very relative. As will be shown later, the Commission is unnecessarily strict in controlling the texts of national legislation. On the other hand these figures do not indicate how poor the practical implementation in Member States, actually is.

As the paper on the European Community's prospects for enforcement of directives already deals with the procedural steps in cases of no (adequate) formal compliance, it needs only to be stated here that the final step in the procedure is a verdict of the Court of Justice in Luxemburg stating that non-compliance has occurred and, in urgent cases, summoning a member state to immediately introduce the necessary (provisional) measures. If a member state continues to fail to adopt the legislation required, the Commission can only yet again bring the state before the European Court. At the present time no other sanctions are available.

In addition, no correspondence between the Commission and the Member States on the implementation of Directives is available to the public. However, the Commission has indicated in the 4th EC Action Programme that it will allow public access to its data base (CELEX) which stores information on the national legislation which formally implements Community law.

Practical compliance

Environmental quality does not improve as a result of formal compliance as demonstrated in the Public Journal. Indeed the interest of EC legislation goes beyond formal compliance.

Usually, however, Directives do not ask Member States to inform the Commission of any practical steps taken. Some Directives oblige Member States to set up programmes to reduce pollution and most Directives ask for regular report on the experiences in executing the obligations of the Directive. More specifically it may be asked to enumerate and evaluate any exemptions of the provisions granted (assuming a Directive introduces possibilities and criteria for granting exemptions). In some Directives it is stated that the Commission, on the basis of these reports will inform the Council of ministers and the European Parliament as to the results and effects of the legislation concerned and may put forward any proposals necessary to modify European legislation. Most Directives have set up a committee with representatives of the Member States and the Commission, which discuss the scope for any modifications of a Directive, necessary on the basis of scientific and technical progress. Some committees even have power to vote on these modifications. In these committees experience on the application of Directives is being exchanged.

It should be noted here, however, that the Commission has no inspectorate to monitor the practice in the Member States.

To date the Commission has put its limited available energy and manpower toward the control of the formal compliance of the legislation in spite of the fact that the 4th Action Programme has announced that more emphasis will be put on the control of practical implementation. Until now the Commission has only reacted to complaints put to the Commission by the public.

Problems experienced by Member States in the implementation process

As the texts of most Directives represent, in the final analysis, political compromises reached by 12 Member States, the usual occurrence is that certain obligations are intentionally not clearly formulated and therefore are not easy to implement. Further, the final legislation is a compromise in the sense that it is the result of 1000 years of Common Law practice and 150 years of the Napoleonic Code, which means that Directives are never easily implemented in the existing national legislative structure and culture of Member States.

In the case of the Netherlands the relatively long legislative process, including the consultation of a wide variety of interests, is a definite obstacle for the timely introduction of EC legislation. Furthermore in the Dutch situation, a vast amount of environmental legislation already exists. It has been shown that it is much more difficult to change existing legislation and practice than to introduce EC legislation where no national legislation has been adopted. Where national legislation is already in place, one often finds lack of political interest in giving priority to the timely implementation of EC legislation which would add little to national legislation. However, even where practical compliance with EC legislation already exists, for example, on the basis of permits granted on the basis of the not yet modified national legislation, the Commission regards any delay in implementing Community law to be a violation of the Treaty. To give an example: the Commission is considering taking the Netherlands to the European Court because formal legislation to implement a directive on the introduction of lead free petrol is not yet in place. The practical situation, however, is that, in advance of the necessary legislative measures, on the basis of voluntary agreements with industry a year before the Directive came into force, more than 6000 filling stations were supplying unleaded petrol. Another example is provided in the field of environmental impact assessment. On the basis of a complaint the Commission has sent the Dutch Government a letter asking to adapt the legislation on environmental impact assessment because of the fact that on some very minor points, the Dutch legislation differs from the EC Directive text. The Dutch government is of course willing to remedy this situation. However, it may be understood that since the Dutch law and practice with EIA are considered exemplary (particularly in the European context) and go far beyond the minimum requirements set out in the Directive, the political pressure to change the law quickly, is not existent. There are other priorities. The Netherlands may, therefore, be taken to the European Court by the Commission for non-compliance with the Directive, where at same time the European Commission takes use and advantage of the progressive nature of the Dutch legislation and practice in this field.

Another example: Luxemburg has officially adopted legislation to control the titaniumdioxide industry although no such industry is foreseen in that country. The Commission has considered in the past to take Ireland to the Court because it refused to implement the same Directive, even though such industries do not exist in Ireland either.

These examples show that it is possible to have formal compliance without practical compliance and vice versa.

Recently the Commission has started to call for meetings with national authorities responsible for the execution of the provisions of a Directive, with a view toward having experience exchanged on the problems raised in implementing these provisions into national law and on any practical experience.

2. Enforcement provisions in EC legislation

Article 5 of the Treaty of Rome states that Member States have the obligation to take all measures to ensure the compliance with the provisions of the Treaty and with the legislation based on the Treaty. They have to refrain from any measures which might jeopardize the realisation of the objectives of the Treaty. No sanctions are mentioned in case of non compliance.

On the basis of an overall analysis of EC legislation it can be concluded that apart from provisions with obligations for Member States to adopt legislation and take administrative measures to comply with the Community legislation and the obligation to report regularly to the Commission on the experiences with the execution of the Community legislation, no other enforcement provisions yet exist on the policing of the legislation adopted. The enforcement and policing are left completely to the Member States. The same is true for decisions on agreements in relation to third states or groups of states. So far the Commission has not acted to control the formal and practical compliance of Member States with international agreements which the EC and therefore directly or indirectly the Member States, are Party to. As was shown before in one of the preceding papers, only a few international agreements have included provisions on the control or the execution of the agreement, as in the case of the Conventions on the Protection of the Mediterranean Sea (Barcelona and Athens Conventions), where a system of permanent control is introduced on the basis of programmes or for example the Rhine Convention where a monitoring and warning system has been set up. The EC is Party to the Conventions mentioned. To date the Commission has not checked the compliance with these Conventions.

In the draft Regulation on the implementation of the Montreal Protocol a provision has been introduced on the inspection/monitoring on the execution of the Regulation. It includes inter alia, the assistance of EC officials to national officials, if the member state gives its consent, in cases involving the investigation of a company producing CFC'S, regarding the practical compliance with the Regulation.

3. Scope for improvements

Inclusion of enforcement provisions in EC legislation

It is recommended that, as far as possible, specific provisions be included in Directives and Regulations related to the practical enforcement of EC legislation. For example, the Council is currently considering is a Commission proposal on the adaptation of the European test cycle for passenger cars as part of the type approval procedure. This proposal also includes the setting of standards for exhaust emissions, specifically on CO, NOx, HC and particulates. In addition, some durability requirements are proposed. The Dutch delegation has proposed that requirements also include provisions for allowing authorities to introduce a callback system whereby random tests of cars already brought in circulation can be conducted to check whether the cars perform as they should perform on the basis of the type approval.

Furthermore a periodic technical control-system should be introduced in all Member States. (This already takes place in the Netherlands on an annual basis).

The creation of an Inspectorate

As was previously mentioned, the Commission has no inspectorate to monitor the practical compliance with EC environmental legislation. This is left to the member States. The Treaty prescribes the division of powers between the Community institutions themselves and between the EC and the Member States. Member States play a very crucial part: they have legislative capacity in the Council of ministers; they must execute the legislation and finally they have to control the practical implementation. The Commission can only control the formal implementation. Sanctions, other than a verdict on non- compliance by the Court of Luxemburg, are not existent.

In another Treaty of the Community, the Euratom Treaty, Article 77 and subsequent Articles give the Commission powers to control the compliance with the licenses granted to use nuclear material. The Commission may, for example, send a team of inspectors to a country with the consent of the government concerned.

The system applied under the Euratom Treaty might, with certain modifications, be useful in the EC environment context as well.

At the same time the EC could help Member States to set up an adequate inspectorate themselves for the monitoring of compliance (This is already happening on a bilateral basis. For example, on the basis of a Memorandum of Understanding between the Ministries of the Environment of Portugal and the Netherlands, Dutch inspectors are assisting their Portuguese counterparts in setting up an inspectorate. The Commission should have an interest in promoting and supporting such initiatives).

The Provision of Country reports

A system of country reports, which for example already exists in the framework of the OECD, might be introduced on a voluntary basis to monitor, via an environmental audit, the state of the environment in a member state. The Commission and the member state concerned could then react on the basis of the recommendations of the audit team. More specifically, a pool of experts could be created at the EC level to help competent authorities to adequately formulate the conditions in permits and/or give a second opinion on the practical compliance by a certain branch of industry.

Making information available to the public

As was mentioned above, the Commission has, to date, only reacted on practical non-compliance on the basis of complaints from the public. This right of complaint is, in theory a powerful instrument. However, the public does not always have in every state the right of access to the information needed to check the compliance or noncompliance of for example, industry. At its meeting of 22 March 1990 the EC Council of Ministers adopted a Directive which introduces the right of access for the public. In certain circumstances this right can not be invoked, for example where information on national security, information on private persons or commercial information is concerned.

The Council of Ministers also recently decided on the creation of a European Environment Agency which will set up a network in the EC on the exchange of information, building further on the already existing CORINE programme and will assist the Commission and Member States in the gathering and scientific evaluation of data which are necessary for the development of environmental policy.

The European Parliament has, inter alia asked that an inspectorate be included as part of the new Agency. For the time being the Council has decided to return within two years after the creation of the Agency to consider other possible tasks of the Agency. In principle other European, non EC-states may become part of the Agency.

These new initiatives which come into force within a few years may play an important role in the practical enforcement of EC legislation.

Financial sanctions

It is clear that non-compliance with EC legislation might create considerable damage to the environment as well as to property both in the physical and in the financial sense. Non- compliance can also create distortions in competition between industries.

It is, therefore, suggested that in the environment field provisions used in other areas of Community policy also be applied. Such provisions would include those provisions based on the Coal and Steel Treaty, where industry has to pay considerable fines when, for example, they produce and sell more steel than they are allowed. If a company pollutes more than allowed and is not willing to take appropriate measures, a fine should be possible. In very serious cases a (temporary) shut down could be introduced. These economic sanctions already exist in Dutch legislation and could be introduced on the EC level.

The Community can grant some subsidies on the basis of the so called structural funds, for example the Regional Fund and the Agriculture Fund. One might consider the possibility of delaying certain payments or even introducing the possibility of penalties as long as a Member State is not willing to take the appropriate measures in the environment field. Certain types of projects which are subsidized under the structural funds can have significant impact on the environment such as the construction of roads, tunnels, ports etc. or the restructuring of industry.

It is difficult to understand why the EC is subsidizing projects which might increase pollution on the one hand and, on the other hand, is not using the same financial mechanism to enforce EC legislation in the environment field.

Cooperation between national police forces and the Courts

With the internal market and therefore the abolishment of frontiers near at hand, the necessity of cooperation between national police forces and the Courts is increasing.

On the basis of "the European Legal Assistance Convention" (Rechtshulpverdrag) of 1959 to which all Western European Countries are Party, the competences of and the coordination between the competent authorities in the EC countries could be improved and extended.

4. Final remarks

It is clear from the preceding paragraphs that politicians and lawyers have created an impressive amount of EC legislation without taking into account how it is actually implemented. It is like adopting a law to abolish the law of gravity without having considered how to enforce such legislation in practice.

If EC environment policy wants to maintain support from the public or even improve its credibility, it is time to commit much more manpower to the enforcement of EC and international agreements through the introduction of specific provisions and control to that end as in the case of disarmament control or the non-proliferation agreement. It is doubtful, however, whether politicians are prepared to provide for such provisions in the environment field. Most states do not yet appear to be ready to relinquish any of their sovereignty in this area. Losing some of their sovereignty, however, may be the price states have to pay for the maintenance of the planet earth.

The proof of the cake is in the eating not the recipe. The forthcoming discussions on the revision of the Montreal Protocol and the negotiations on a world climate convention are some test cases for politicians as well as for experts to take up their responsibility.

Literature

1 Hannequart, J.P., Enforcement of and compliance with EC environmental law, European Environment Bureau, Brussels, 1986

2. Pallemaerts, M. and A. Kallia-Antoniou, Report of the Seminar on the implementation and enforcement of EC environmental legislation, European Environment Bureau, Brussels, 1986

3. Haigh, N, EEC environmental policy and Britain, Longman, Harlow, Essex, 1984/1987

4. Donkers, R.H. in : Europees Milieurecht, Colloquium Asser Instituut, The Hague, 1987

5. 4th EEC Environmental Action Programme (1987-1992), Public Journal C 70, 1987

6. Donkers, R.H. e.a., De uitvoering van EG milieurichtlijnen, Tjeenk Willink, Zwolle, 1988.