Rolf W?GENBAUR
European
Economic Community
Wetstraat
200
1049
BRUSSEL - BelgiN
Let me
start by saying how much the EEC-Commission welcomes the initiative of the
United States Environmental Protection Agency and the Dutch Ministry of
Housing, Physical Planning and Environment establishing this International
Enforcement Workshop. This opportunity
enables us to discuss important issues on environment legislation. These issues may have different features in
different states or communities, but they do all have a number of points in
common. As concerns the European
Community I can assure you that we do have serious problems with the
implementation of Community law and we are prepared to discuss them, even if we
are perhaps more conscious of the problems than of suitable solutions which
might help to solve the problems. But
we can all learn from other countries’ experiences, and perhaps adequate
solutions for the Community’s problems will emerge from today’s session. Therefore, in the name of the EEC-Commission
to which the EEC-Treaty entrusted the enforcement of all Community legislation
I would like to express my gratitude to the organizers for the opportunity to
have this exchange of views.
As my own
contribution I am glad to give you an outline of our experiences with the
enforcement of the Community’s environment directives. I will start with some general remarks on
this legally binding instrument; I will turn then to the necessity of the
Commission and the Court of justice.
The final remarks will outline a series of initiatives which might be
envisaged to improve the Community’s performance.
I. The
EEC-Directive as a legal instrument of the Community’s Environment legislation.
The
Directive is – besides the Regulation – one of the most widely used legal
instruments of the EEC. As far as
Environment protection is concerned, it has become the most important
instrument from the outset, that is since the Community took an interest in this
field of activity. You will be aware of
the fact that the Single European Act (SEA) modified the legal basis of the
treaty so far. Perhaps I should add
that the Community has no general power to legislate. Instead the EEC works under the principle of limited powers which
are conferred upon it. This means that
for all legislative acts there must be a legal basis in the Treaty. For quite a long time, under the original
Treaty in the field of environment, we could only rely upon articles 100 and
235. The situation changed under the
SEA. It introduced two new
provisions. One is article 100a, a
provision which enables the Community to adopt measures of approximation of
laws also in the field of environment protection under simplified conditions,
as compared with article 100. In
addition, Article 130s provides the Community with a totally new basis for
measures in the field of Environment protection. Whilst Article 100 gives only the possibility to adopt
directives, neither Article 100a nor Article 103s mention the legal acts which
can be adopted. This means that in
principle it will not be impossible to foresee the adoption of Regulations
instead of Directives. Nevertheless,
there are indications that nevertheless the Directive will keep its privileged
position, unless the Community’s policy undergoes a thorough change.
Even if
statistics are sometimes difficult to handle, I would like to mention at least
two figures in order to show the Community’s current practice. So far, the number of Directives adopted in
the field of Environment protection amounts to a total of about 140, as
compared with about 20 Regulations and 50 Decisions.
These
figures show that it is greatly in the Community’s interest and indeed a
necessity that Directives become an efficient legal instrument.
II. The Directive and the necessity of
implementation
Article 189
of the EEC-treaty provides the following with regard to the legal nature of the
Directive:
“A directive shall be binding, as to the result to be
achieved, upon each Member State to which it is addressed but shall leave to
the national authorities the choice of form and methods.”
This is to
say that the Directive normally implies that legislation takes place in two
steps. As a first step, the competent
Community institution adopts a Directive following the procedure indicated in
the relevant legal basis. In the field
of Environment protection, this institution is always the Council of Ministers,
acting on a proposal of the Commission.
The Directive is notified to the Member States (Art. 191 par. 2). In principle, one of the final articles of
the Directive states the date or the time available to Member States for
implementation into national law. This
is to be the second step. Member States
are bound to implement the contents of the Directive in such a way as to
guarantee that the contents of the Directive be enforced for the territory of
each Member State and the existing law modified in consequence. The manner in which Member States will
achieve this result is up to them to choose:
they decide on the choice of “forms and methods.”
Even if the
Directive has been implemented in national law under this two-step procedure,
it would be wrong to conclude that the rights of private parties could never be
affected under the first step. The
Directive might be called a chameleon (W@genbaur, Die Umsetzung vom EG-Recht in deutsches Recht und
ihre gesetzgeberische Problematik, in:
Zeitschrift fár Gesetzgebung, 1988, p.303). It has been held that if a Member State did
not implement a Directive in due time (Case 148/78, Ratti, ECR 1979, p.1629,
1642) or as required (Case 102/79, Belgium, ECR 1980, p.1473, 1487), or if the
national law establishes discretionary measures the application of which could
give rise to conflicts with the Directive (Case 41/74, Van Duyn, ECR 1974,
p.1137, 1349), this Directive may under certain conditions produce legal
effects in favor of private parties who may rely upon these effects before the
national Courts and administrative bodies.
This takes place when the Directive contains provisions which –
following their structure and wording – are in principle appropriate to
establish direct legal relations between Member States and their citizens. This can only be the case if the relevant
provision is drafted in a clear and unequivocal manner and if not supplementary
measures of a discretionary nature are necessary under Community or national
law (Case 102/79, quoted above). In
cases where this condition appears to be fulfilled, the EC-Commission
frequently requires national authorities to obey to the relevant
Directives. I would like to add that
meanwhile the Courts of all Member States accept the principle of direct
effects of Directives as a consequence of supremacy of Community law, with the
sole exception of the French Conseil d’Etat, which continues to stick to the
attitude it adopted in the well-known Cohn-Bendit-case (judgment of 22.12.1978,
Rec. Lebon 1978, p.525). It is hoped
that this has now changed since the Nicolo judgment but this case did concern,
it is true, a provision of the Treaty itself and not subordinate legislation
such as a Directive. Notwithstanding
this general approval of national courts, one cannot help the feeling that the
direct effect of Directives is not taken into account very seriously by a
number of administrative bodies in all our Member States. It is only to a very limited extent that
this principle means therefore a practical improvement of the enforcement of
Directives in the field of Environment protection.
The case
law of the Court of Justice provides us with very interesting clarifications as
to Member States’ obligation to implement Directives.
Case law
concerning the “forms and methods” of implementation.
On several
occasions, the Court had to address the question which regional entity of
Member State is competent for implementing directives. These occasions occurred in general, when
the Member State objected that under national constitutional law implementation
had to be accomplished by regional or local entities. The answer of the Court to this objection was without
ambiguity: “Each Member State is free to
delegate powers to its domestic authorities as it considers fit and to implement
the directive by means of measures adopted by regional or local authorities”
(Case 96/81, Netherlands, ECR 1982, p.1791, 1804; Case 97/81, Netherlands, ECR
1982, p.1819, 1833; Cases 227, 228, 229, and 230/85, Belgium, ECR 1988, p.1;
p.11).
It is obvious
that this is of particular relevance for Member States with a federal structure
or with decentralized legislative competences.
This means that the Commission has always to dialogue with the Member
States’ central authority, notwithstanding the question of which authority is
competent for the implementation of the directive under national constitutional
law.
The Court
of Justice has clarified to a large extent in which way the implementation has
to be accomplished. For instance, it
has been clearly stated that the implementation has to take place through
national provisions having the same legal status, as those which regulated the
particular subject beforehand (Case 102/79 quoted above, p.1486).
It has also
been held that “each Member State should implement the directives in question
in a way which fully meets the requirements of clarity and certainty in legal
situations” (Case 102/79, quoted above, p.1486; case 96/81, quoted above,
p.1804 f.). The Court followed that
“these administrative practices, which by their nature can be changed as and
when the authorities please and which are not publicized widely enough cannot
be regarded as a proper fulfillment of the obligation imposed by Article 189 on
Member States (Case 102/79, quoted above, p.1486; case 96/91, quoted above,
p.1804). The Court in general considers
as the first guideline “that according to the consistent case-law of the court,
each Member State must implement directives in a manner which fully meets the
requirement of legal certainty and must consequently transpose their terms into
national law as binding provisions” (Case 239/85, Belgium, ECR 1986, p.3645,
3659; with conclusions by Adv. Gen. Da Cruz VilaHa, p.3652; Case 96/81, quoted above,
p.1804).
b) The “binding nature” of the directive
Quite
rightly, the Court has underlined on several occasions the fact that the
“correct application” of directives is particularly important since the
implementing measures are left to the discretion of the Member States. If implementation is delayed, the directive
would remain without effect besides the fact that the existence of differences
in the rules applied in the Member States after the periods allowed for implementation
have expired might result in discrimination (Case 52/75, ECR 1976, p.277,
284). In this context, it is not
surprising that the Court rejected a great number of justifications which
Member States tried to put forward for their defense when accused before the
Court of non-implementation of directives.
This is for instance the case of the following arguments:
As I said,
none of these points have ever been accepted by the Court of Justice. This means, in other words, that Member
States have the obligation to adopt the measures which are fit to give full
effect (“effet utile”) to the Directive following the aims pursued (Case 48/75,
Royer, ECR 1976, p.497, 516; case 14/83, von Colson, ECR 1984, p.1891). It would be inconsistent with this principle
to refer to “provisions, practices or circumstances” existing in a Member
State’s legal system in order to justify a failure to comply with the
obligations and time-limits under Community directives (Case 52/75, ECR 1976,
p.277, 285). This does not exclude,
however, that “general principles of constitutional or administrative law” can
render superfluous implementation by specific legislation (Case 29/84, ECR
1985, 1661; case 363/85, Italy, ECR 1987, p.1737, p.1742; case 247/85, Belgium,
ECR 1987, p.3029, p.3060; case 262/85, Italy, ECR 1987, p.3097; case 236/85,
Netherlands, ECR 1987, p.3989, p.4007).
III. The enforcement of Directives
As compared
with the “Regulation” – which plays a very minor role in Environment protection
law – the “Directive” has decisive weaknesses.
A regulation implies the adoption of truly Community law with direct
effect. Its purpose is to grant direct
rights and impose charges to private parties without any interference of
national law (Art. 189 par. 2 EEC-Treaty).
The feature which the Directive has in common with the Regulation is
that it imposes binding law. However,
as already mentioned, the Directive must be implemented and the national law
has to be changed accordingly. We will
try to explain which institutions intervene in order to check if the
implementation has duly taken place and which are the achievements of the
Community so far.
The control of the implementation, in due time and correct
in substance, of Directives forms part of this activity. The attribution of this competence to the
Commission is an exclusive one: the
Treaty gave a comparable mandate neither to the Council nor to the European
Parliament. Besides, this attribution
of competence is strictly reserved to it:
the Commission is not allowed to delegate this power partially or
totally be it to another institution of the Community, or be it to any new
authority which might be created. We
will examine later how far it could be envisaged to entrust auxiliary functions
to other institutions.
The Commission takes very seriously its duty of monitoring
the implementation of Directives. It
controls whether the deadline for implementation is respected and whether the
measures adopted comply with the terms of the Directives. It also verifies whether the national
provisions are a correct and complete implementation of each Directive.
The Commission needs information and assistance from third
parties in order to be in a position to control if, in practice, Member
States stick to the provisions of the Directives after or before implementation,
if the time given to them has already expired and provided the text or parts of
it deploy direct effect. It is well
known that the Commission has no administrative structure in the Member States
which would enable her to make systematic checks. Increasingly, the Commission receives relevant information from
private complainants (private parties or Environment protection associations)
or via questions put to it by members of the European Parliament. The complaints received from all parts represent
a precious source of information. The
number of these complaints has been rising considerably: in 1984, for instance, the Commission
received a total of 9 complaints; it received 460 in 1989. Let me add that most of these complaints
concerned the quality of drinking water (Directive 80/778/EEC), the environment
impact assessment (Directive 85/337/EEC) and the protection of wild life birds
(Directive 79/409/EEC).
2. In
the case of an infringement – be it the non-implementation of a Directive in
the time which had been foreseen, be it an incorrect implementation or an
incorrect application, the infringement procedure under Article 169 EEC Treaty
may be decided by the Commission. This
procedure comprises three stages.
During the first stage, the Commission puts down in writing the
allegation that the Directive may be infringed – without indicating its sources
in the case of a complaint – and gives the Member State the opportunity to
express its views normally within a period of two months. This is the subject of the so-called letter
of formal notice. After having received
the answer – or in case the time has run out without result – the Commission is
to decide as to the next step. If it
remains convinced that there is an infringement, it may decide to deliver what
is called a “reasoned opinion”. This
means that it prepares a somewhat more detailed analysis of the facts and
concludes that in legal terms the Member State has committed an infringement,
requiring the Member State to remedy this within a given time. Only after expiration of this deadline
without a remedy – as a rule another two months – has the Commission the
possibility to go ahead and send an application to the Court of Justice
(art.169 par.2 EEC-Treaty).
3. This
is not the appropriate moment to go into the details of the rules of procedure
before the Court. It may be enough to
say that the Member State concerned is given sufficient possibility to express
its views on the matter, in writing as well as during the oral hearing.
If the court reaches this conclusion, after having heard its
Advocate general, that the application of the Commission is well founded, the
procedure finishes with a declaratory judgment. The Court usually decides along the following wording: “The Court hereby declares that by not
bringing into force within the periods prescribed the provisions needed to
ensure the full implementation of Council Directive N …., the [Federal Republic
of Germany] has failed to fulfill its obligations under the Treaty.”
The consequences resulting from such a statement are
limited: according to article 171
EEC-Treaty, the Member State “shall be required to take the necessary measures
to comply with the judgment of the Court of Justice.”
There is no kind of enforcement nor are there any financial
or other consequences liked with the judgment.
If the Member State does not comply with the obligation stated in
article 171 EEC treaty within appropriate time, it commits another violation of
the Treaty. This might lead to another
infringement procedure, another application to the Court of Justice and another
judgment, of a declaratory nature.
It may be mentioned at this point that in the field of
Environment protection there are practically no requests from national courts
for preliminary rulings under Article 177 EEC Treaty. This situation is most deplorable the more as in other areas of
Community action rulings under article 177 EEC-Treaty have proved very
important for the interpretation and enforcement of Community law.
4. The
Commission reports on the way it fulfills its obligation to check the
implementation of Directives in its annual Report as well as in special reports
to the European Parliament on the control of application of Community law
(Sixth annual report, 1988, cd. O.J.C. 330/1 of 30.12.1989). The latter are provided with statistical
annexes giving detailed information on the infringement procedures in different
sectors of activity. They also contain
information on the judgments of the Court which have not yet been executed by
Member States and on the implementation of the different Directives in the
Member States.
It
was because he considered the implementation of Environment protection
Directives and the execution of the relevant judgments of the Court to be most
unsatisfactory that the Member of the EEC Commission in charge of Environment
protection, Mr. RIPA DI MEANA, “went public” on 8th February
1990. In a press conference he stressed
the omissions and negligence of Member States.
He mentioned the pertinent figures and stated how many infringement
procedures the Commission has had to undertake so far. His declarations had considerable political
impact and raised criticism both as concerns the procedure adopted and the figures
which were thought incorrect. Via the
press, public opinion got a picture of the present situation, the Commissioner
insisting that the figures given proved correct:
Procedures
under article 169 decided up to 31.12.1989
State Letter of Reasoned
opinion Application Total
Formal notice to the Court
F.R. Germany 13 8 8 29
Belgium 27 8 7 (+4) 46
Denmark 5 - - 5
Spain 45 9 3 57
France 28 6 7 41
Greece 37 5 3 45
Ireland 16 5 - 21
Italy 17 16 7 40
Luxembourg 9 2 1 12
Netherlands 18 5 2 24
Portugal 10 4 - 14
UK 18 8 5 31
TOTAL 242 76 44 362
IV. How
to improve the present situation
Every
Directive constitutes a direct appeal to Member States and their authorities –
an appeal to fulfill their obligations under the EEC-Treaty. But as neither legal proceedings nor
political interventions achieved much so far, it is indeed necessary to ask –
as did Mr. RIPA DI MEANA in his press conference of 8th February
1990 – how the present situation could be improved.
1. A
first idea might be to avoid the problems of implementation in the future by
choosing Regulations as legal instruments, instead of directives, whenever
seems suitable.
In
other fields of Community activity, this idea has already produced good
results. The harmonization of customs
laws, for instance, has largely been accomplished through Directives, unless
the divergences on national level after implementation of these Directives gave
rise to too many difficulties. With
general consent of Member States, the Community started to produce uniform
customs law by way of regulations and even replaced existing Directives by
Regulations. As we explained a moment
ago, in the field of Environment protection, articles 100a and 130s do provide
the Community with legal basis allowing to act by way of Regulations. A short while ago, the Community missed a
good opportunity to try this approach.
The Council of Ministers has agreed during its March session on a
Directive on freedom of information in the field of environment. Instead of a Directive, the Council might
easily have adopted a Regulation. It is
not sure at all that Member States would have followed that line at the
time. It is more likely that such a
step will need a preliminary rethinking of the legislative activity of the
Community in the field of Environment protection. The aim to be reached might be that Commission and Council
examine closely every draft in order to check if a regulation can be envisaged
instead of a directive.
2. As
long as Directives remain the most important legal instrument of the Community
in the field of Environment Protection, one way of becoming more independent of
implementation in national law would be to emphasize direct effect. This implies that directives would have to
be drafted more closely in the style of Regulations. What is more, it could be necessary to inform public opinion that
one could claim that the competent authorities obey Directives once the delay
for implementation has expired. If this
idea were accepted, the problem would not be solved as such, but in practice
the situation would be improved.
3. Another
idea on the same line is that it might help the enforcement of directives if
Environment protection associations and the like were given standing as
plaintiffs before national courts with regard to matters related to environment
protection.
At
present, the legal possibilities differ widely from one Member State to another
and even within certain Member States.
This question should give rise to thorough investigation. Environment protection and the enforcement
of Directives might both benefit if these associations were given the
appropriate rights under national law.
At first sight, it seems that such an initiative might be founded on
article 130s EEC-Treaty.
4. In
his press conference, Mr. RIPA DI MEANA rightly mentioned how the Commission
might assist Member States during the implementation process, contributing thus
to easing and accelerating this process.
Until now, the implementation was entirely in the hands of Member
States. The Commission intervened only
when it appeared that implementation did not take place in due time or was
incorrect. In the future, the
Commission should be involved more closely in the implementation process. A first step in this direction might be that
Member States and the Commission start discussion implementation problems and
possible solutions before the time set down has elapsed. Pursuing this dialogue – and as part of the
procedure – the Commission would have the possibility to give its opinion on
early drafts of national legislation.
This might help to stop erroneous developments which would later on lead
to infringement procedures.
5. Another
possibility for strong commitment to the Community – also mentioned by Mr. RIPA
DI MEANA – would be to create a Community Environment Fund allowing the model
of the existing Funds (Regional, Social and Agricultural Fund). In the past, European Parliament had claimed
several times that such a fund should be created. The fund would have the task to assist Member States financially
when implementing important EEC Directives.
Some of these Directives require very considerable expenditure. This is for instance the case of a recent
proposal of the Commission for a directive on waste water: It seems pretty certain that the adoption of
this draft directive by the Council would be greatly facilitated and
accelerated if such an Environment Fund were available for financing the heavy
expenditure which the directive will necessitate.
6. The
EEC has accomplished considerable progress on the road to better enforcement of
Directives when the Council agreed at its March session on the Regulation on
the European Environment Agency. In the
European Parliament, the rapporteur, Mrs. B. WEBER, criticized the tasks, too
restricted in her view, which the Commission wished to entrust to the
Agency. In her view, the new authority
should be entrusted the role of a kind of inspectorate in charge of having a
close scrutiny of the enforcement of Community directives.
However,
even the Resolution adopted by Parliament on 14th March 1990 claims only
that the field of activity of the Agency should be extended in such a manner
within the next two years. The
remarkable thing is that the Council at its March session has accepted this
amendment. Article 20 of the Regulation
states that “No later than two years after the entry into force of this
Regulation, and after having consulted the European Parliament, the Council
shall…decide on further tasks for the Agency in particular in the following
areas:
·
Associating
in the monitoring of the implementation of Community environmental legislation,
in cooperation with the Commission and existing competent bodies in the Member
States.”
The implementation of this provision would provide precious
assistance to the Commission with regard to its role of controlling the
enforcement of directives. The decision
adopted by the Council is therefore to be welcomed, even if it will take at
least two more years to make progress and despite the fact that it had not been
possible – as foreseen at a certain stage – to decide on these future tasks of
the Agency with qualified majority.
7. In
addition, one might consider the possibility of increasing the powers of the
Court of Justice in the context of the infringement procedure under article 169
EEC-Treaty. The possibility to launch a
second procedure for violation of article 171 EEC-Treaty – because the Member
State did not execute the first judgment – is not really of much help. Again the Court can only make a declaration
as to the violation of the Treaty. The
idea of going beyond this stage and to provide for real sanctions has already
been put into practice. Under the
ECSC-Treaty of 1951, the High Authority has in particularly the possibility, if
the State has not fulfilled its obligation by the time limit set by the High
Authority, or if it brings an action which is dismissed, with the assent of the
Council acting by a two-thirds majority, to suspend the payment of any sums
which it may be liable to pay to the State in question under this Treaty.
Should
equivalent possibilities be introduced in the EEC Treaty? This needs thorough examination. Especially the suspension of payments, for
instance due under the Environment Fund mentioned earlier, might well be
counterproductive to the Environment as such.
Another possibility to provide for adequate sanctions could be to give
the Court the right to impose fines if requested, by the Commission, if a
Member State does not put an end to an infringement within accepted time limits
after the judgment of the Court.
However, at all events, and what ever the merits of such a clause in the
EEC Treaty might be, one should bear in mind that Member States may not look at
such changes with great enthusiasm.
Their chances of adoption should therefore be regarded as rather
doubtful.
8. Finally,
and if all else fails, the Commission may always appeal to public opinion and
draw its attention to the situation. In
his press conference of 8th February 1990, Mr. RIPA DI MEANA has
already opted for this possibility. He
announced that the Commission would “go public” every year with a report on the
application of Community environment law.
This announcement shows that in the view of the Commission pressure
stemming from public opinion can perfectly help to improve the enforcement of
environment directives. What is more,
under pressure from public opinion our environment might improve in general.