MEMBERSHIP IN THE EUROPEAN ECONOMIC COMMUNITY: WHAT IT MEANS FOR

ENVIRONMENTAL REQUIREMENTS AND ENFORCEMENT

 

RICHARD MACRORY

 

Denton Hall Professor of Environmental Law, Imperial College, London

 

 

"Community environmental legislation will only be effective if it is fully

implemented and enforced by Member States"(1)

 

 

 

1       THE POLITICAL SIGNIFICANCE OF ENFORCEMENT

 

Political attitudes among Member States towards the implementation and enforcement of Community environmental legislation currently present a somewhat confusing and contradictory picture.  In theory, the implementation of Community obligations should present no greater difficulties than those experienced with any set of national or regional laws.  Community laws are not imposed "top-down" on unwilling or reluctant national governments.  The governments of Member States continue to play the critical legislative role in agreeing to proposed Community legislation through the Council of Ministers, and nearly all Community legislation in the field of the environment to date has been agreed by unanimous voting by Member States.  In legal theory, Community legislation, once agreed, is supreme over national law, and national courts and public administrations are obliged under Community law to resolve any discrepancies between national and Community law in favor of the latter, even to the extent of ignoring national law which is clearly incompatible (2).  Yet it is clear that the implementation of Community environmental obligations within Member States falls well short of perfection.  Increasingly in recent years the European Parliament (3) and the Council of Ministers have stressed the importance of ensuring that Community law is fully implemented within Member States (4).  The Treaty of Rome provides for particular procedures aimed at ensuring full implementation by Member States of Community obligations which are described later in this paper, while the European Court of Justice has developed its own legal principles aimed at achieving greater integration of Community law into national legal systems.  Various new institutional and procedural arrangements in the environmental field are now under active discussion at political level, pushed as much by individual Member States as by Community institutions.  The motivation for these proposals cannot always be attributed purely to altruistic desires to secure environmental improvements within the Community - the perception (right or wrong) by one Member State that it is complying with Community law while others are not thus leading to possible competitive disadvantages provides a compelling motive to push for more effective arrangements to secure compliance throughout the Community.

Yet there are contradictions apparent at present.  Member States may subscribe to the concept of the supremacy of Community law and the need for improved machinery to ensure implementation, but are often resistant if this implies interference with national administrative arrangements for enforcement.  Community enforcement proceedings taken against Member States in some areas have been characterized as interfering with the "nooks and crannies" of decision-making at national level.  The Danish referendum result on the Maastricht Treaty this year and the apparent incompatibility between those Member States who wish to speed up the expansion of the Community to include other European countries and those who aspire to a deeper union among existing Members is causing something of a re-assessment of the role of Community law and policy.  Under the current Treaty the only explicit reference to "subsidiarity" as a principle upon which to delineate the boundaries of Community and national competence appears in those provisions dealing with the environment (5), while the proposed amendments under the Maastrict agreement would apply this principle to all areas of Community policy but in a stricter form (6).  In recent months, the environment has been singled out in some circles as an area ripe for firmer application of this principle, and there has been discussion in political circles by some Member States, aided apparently by some quarters of the European Commission, of the need to repeal a number of existing Community environmental laws, including those relating to drinking water standards and environmental assessment.  Interestingly, these two examples are precisely areas where there have been some especially rigorous enforcement proceedings taken against Member States by the Commission.

 

2        THE NATURE OF COMMUNITY ENVIRONMENTAL LEGISLATION

 

         The development of explicit Community environmental policies begun only in 1972 following the Stockholm Conference on the Environment, and the decision of the then Heads of Government of Member States that the Community must develop an environmental dimension.  Since that time, a large body of Community laws and policies have been agreed (around 300 individual items), and in terms of the sheer amount of legislation that now exists the programme must be considered one of the success stories of the Community.  Until amendments were made to the Treaty of Rome following the Single European Act, the Treaty possessed no specific provisions relating to the environment, and since all Community legislation must derive its authority from the Treaty pre-1987 environmental legislation was based either on Art 100 (approximation of national   provisions directly affecting the common market) and/or Art 235 (residual power to take measures to achieve one of the objectives of the Community) (7).  Despite the specific Articles relating to the environment inserted into the Treaty in 1987, the choice of legal basis for new measures continues to be a significant issue and a source of tension between the Commission and the Council of Ministers in certain areas, since there are now critical differences in the legislative process between measures based on Art. 130s (environment ­unanimous voting at Council level) and Art 100A (approximation of provisions to achieve internal market - qualified majority at Council level) (8).

Community environmental laws cover a broad range of subject areas, and have employed a variety of distinct policy approaches.  Detailed product standards are found in the field of air and noise pollution (vehicle emission standards, fuel standards, noise standards for motor vehicles, aircraft, construction plant etc.). Water pollution legislation has largely been based on three key approaches - minimum emission standards for discharges of certain dangerous substances and from specific types of work (e.g. municipal sewerage), environmental quality objectives for various categories of water and water use, and finally what is essentially a product standard for water intended for human consumption.  Air pollution legislation has similarly been based on both air quality standards for certain substances (including sulphur dioxide, lead, and nitrogen dioxide) and the establishment of minimum emission standards for certain classes of industry (including new large combustion plant, and municipal incinerators).  The 1988 Large Combustion Plant Directive (the result of a lengthy political struggle between Member States) contained an innovative approach dealing with emissions of sulphur dioxide and nitrogen dioxide from existinq power stations and other large combustion plant.  Member states resisted the Commission's initial favored policy to introduce phased emission standards for such plant, and eventually the Directive was based on national "bubbles" with a commitment by Member States to reduce overall ceilings from 1980 levels in three phrases until 2003 - but using whatever means they considered best (e.g. retrofitting abatement technology, fuel change, etc.). Significantly, and unusually for an international agreement of this nature, the reductions to be achieved were not equal for all Member States - in recognition of the need to take due account "of the need for comparable effort, whilst making allowance for the specific situation of Member States" (9).  In the field of waste disposal, a framework Directive, 75/442, established a broad requirement for the permitting of waste disposal facilities by Member States together with the production of waste disposal plans, but provided little in the way of detailed operational standards.  In 1991 the Commission proposed a Directive which would provide minimum, detailed standards for the disposal of waste by landfill, though this has yet to be agreed, and has caused some controversy.  Further Directives deal with procedures for the transfrontier shipment of wastes and disposal of named toxic wastes, and are essentially based on notification and manifestation requirements.  In the field of chemicals, early Community legislation, going back to 1967, provided for classification, packaging, and labeling requirements of dangerous substances, but in 1979 these provisions were supplemented by important new requirements requiring the detailed prior environmental testing and risk evaluation of new substances before they were placed on the market by manufacturers.  Reciprocal recognition is provided for, in that manufacturers need follow the notification procedures in only one Member State before being guaranteed access to throughout the common market without the need for undergo further national testing procedures.  This Directive applies only to new substances (i.e. those not on the market before 18/9/91) but in 1990 the Commission made proposals to extend the principles to pre-existing substances.  The 1980's saw two important Directives dealing with environmental information - the 1985 Environmental Assessment Directive requiring specific assessment procedures to be carried out in connection with national authorization procedures for proposed projects falling within defined categories, and the 1 982 "Seveso" Directive requiring on and off site emergency plan to be produced for specified hazardous industries.  Wildlife protection has been the subject of a number of Directives, dealing both with the control of trade in endangered species, the control and regulation of hunting, and the protection of specific habitats for wildlife.  An important new Directive on the protection of Community habitats in general has recently been agreed.

Recent initiatives have showed a greater reliance on new policy approaches in addition to the more conventional regulatory standard setting which underlay much of the early pollution legislation.  For example, two important new fields are based on voluntary, market-based approaches rather than mandatory standards (the 1991 Eco-Labeling Regulations, and the proposed "Eco-Audit" Regulation).  The success of these two initiatives rest on the assumption that industry will find the costs of compliance outweighed by the rewards of official Community endorsement in terms of marketing and corporate image.  Citizen "empowerment" underlies the Freedom of Access to Environmental Information Directive 1990 (to be implemented by Member States in 1993), and the principles of civil liability for environmental damage are the subject of recent studies and policy initiatives.  Some Community financial assistance towards environmental improvements has been available under various schemes and in specific areas, and the agreement in December 1991 to the principles of the Cohesion Fund and the Financial Instrument of the Environment (LIFE) implies a significant commitment to providing financial aid to Member States assist the implementation of Community environmental policies, including improving internal administrative machinery.  Nevertheless, the "polluter pays" principle continues to represent a key underlying policy and was written into the environmental provisions of the Treaty following the Single European Act.  Finally, the greater use of fiscal measures as a means of securing environmental policy aims is likely to form an important element of future initiatives in selected areas.

One of the underlying difficulties associated with the implementation  and enforcement of Community environmental law is the differing structural character of much the legislation that has been agreed. For those Community laws dealing explicitly with standards for tradable products (e.g. motor vehicles, paint), the pressures of the market and the more visible means of verifying compliance means that implementation does not appear to be a major issue.    The main problem occurs with those Community policies which are dependent solely on national action taken within the confines of Member States, and do not involve products or services which are sold or traded across national boundaries.  Examples would include the protection of groundwaters, the carrying out of environmental assessment procedures in connection with a construction project, or the prohibition of hunting of protected species of birds.  These types of obligations, which form the majority of Community environmental measures, have generally take the form of Directives, implying that Member States are obliged to achieve the stated policy goals but are left with considerable administrative discretion as to how to achieve them.  Even within this broad category, there are considerable differences in the nature of obligations placed on Member States which compound the problem of securing implementation.  Some Directives prescribe explicit and precise goals that must be achieved in a given sector which in theory should be reasonably straightforward to monitor and enforce (10).  Another class contains similarly precise goals in specific sectors or areas but leave a large element of discretion to Member States in determining where they are to apply (11).  Examples of more recent legislation cut across conventional administrative boundaries and sectors, and impose obligations that reach deep into national decision-making at many levels.  This type of "horizontal" Directive, exemplified by the 1985 Environmental Assessment Directive (12), raises acute difficulties for both Member States and the Community institutions when it comes to ensuring full implementation.

 

3        THE ROLE OF THE COMMISSION AND ART. 169 PROCEDURES (13)

 

         A key function of the European Commission under the Treaty of Rome is to ensure the effective application of Community law (14).  The Commission's role in enforcement is therefore one of its institutional duties, but it was not until the early 1980's, a decade after the initiation of explicit Community environmental policies, that it began to take its role seriously in this field.  The European Parliament played an important part in the process of galvanizing concern.  The disappearance of toxic waste being transported from Seveso in 1983 revealed the extent of defective implementation of existing environmental Directives governing toxic and dangerous wastes, and the Parliament's subsequent inquiry and Resolution criticized both the Commission and Member States over their failure to ensure effective implementation of Community environmental legislation (15).  Since that date, the Commission, largely through its legal unit within Directorate-General XI, has concentrated efforts on improving its enforcement efforts, using both conventional legal processes available under Community law, and less formal methods.

The formal legal procedures available to the Commission in persuading a Member State to comply with Community obligations derive from Article 169 of the Treaty, and as such are common to all areas of Community policy.  The terms of Article 169 are interpreted to divide into three separate stages: (i) the sending of a formal Article 169 letter to the Member State (ii) the sending of a reasoned opinion and finally (iii) referral to the European Court.  Each of these decisions requires a collective decision of the whole Commission, making it an elaborate process, but one that carries considerable political authority.  The first two stages may, and often do, end in a settlement in that either the Member States complies with the Commission's requirements, or a mutually acceptable agreement is reached without the need for intervention by the Court.  As might be expected of any complex process of legal enforcement, these formal stages, and particularly the service of an Article 169 letter are not normally initiated without some considerable forewarning and correspondence between the Member State concerned and the Commission.

Three main categories of non-implementation exist:

(1)    A failure by a Member State to communicate to the Commission national laws and other national measures implementing the Community instruments in question; each Directives prescribe a time-limit (normally two or three years) by which date Member States must notify their national laws used or passed to implement the Directive.

(2)    Incomplete or incorrect transposition of Community obligations into national law, implying that a Member State has communicated the text of national implementing measures but that these fail to reflect fully the obligations under the relevant Directive.

(3)    The failure to apply the Community obligations in practice, whatever the state of the national law.

 

The first two categories are, by their nature, confined to the implementation of Directives, and are concerned with what might described as the formal aspect of implementation, ensuring at the very least that the "black letter" national law is in place.  Monitoring the failure to communicate national measures within the time-scale specified in the Directive is a reasonable straightforward, and quasi-mechanical process; either communication has been made by the specified date or it has not.  In the early 1980s, the Commission standardized the enforcement machinery relating to non-communication across all sectors of Community law, and following advance warnings, if no notification has been made by the date required, the Commission will generally move straight into Art. 169 proceedings.  The rise in the volume of legal proceedings for non-communication has been dramatic with in 1982 just 15 proceedings begun for non-communication in the environmental sector rising to 131 in 1990.  Indeed in 1990, proceedings for non-communication represented almost 60% of the total commenced in the environmental sector.  This represents a higher proportion of the three classes of actions than for the previous three years, and may in part simply attributable to a higher volume of legislation agreed in previous years.

Determining an infringement of the second type, incomplete or incorrect transposition, is a task that is intellectually more demanding.  Communication of national laws has taken place with the required time limits but it is argued that they fail to reflect the obligations under the Directive in question.  This requires both an understanding of the legal meaning of the provisions of the Directive, itself not always an easy matter, together with the ability and expertise to interpret the meaning of national legislation in the light of the Member State's own legal and administrative practice.  The position is made more complex because Member States may have relied upon pre­existing legislation to meet the aims of the Directive in which case its detailed terminology is unlikely to be closely aligned with that of the Directive.  Furthermore, some of more recent environmental Directives which cut across conventionally drawn boundaries of administrative and legal responsibility may as a result prevent the Member State from relying upon a single item of legislation as its means of implementation.  Examples exist where a Member State has submitted something in the order of twenty items of national law to implement a single Directive, and in communicating the text of these measures to the Commission, a Member State is unlikely to mark for attention detailed and sometimes obscurely positioned deficiencies that may exist.

 

4        FAILURE TO IMPLEMENT IN PRACTICE

 

         The need to ensure that laws are implemented in practice as well as in formal terms has been endorsed by Member States, and in recent years the Commission has been increasingly concerned with the failures of this category.  This represents the most difficult and controversial area of enforcement for the Commission, and certainly one that can touch a raw nerve of the sensibilities of Member States who wish to preserve that national boundaries of discretion.  Examples of this category include the failure of local drinking water supplies or particular stretches of bathing waters to meet prescribed Community standards, the failure of a waste disposal license to meet the prohibitions contained in the Groundwater Directive, and failure to carry out an environmental assessment for a project falling within mandatory classes of the Environmental Assessment.  This illustrates a further difficulty with this type of infringement proceedings.  Assuming that the national legislation is in place, failure to implement in practice may well be due to the action or inaction of a local or regional public authority, or even a local court.  All such bodies fall within the overarching concept of the "Member State", yet in practice it is the central Governments of Member State who must assume the responsibility for being at the receiving end of infringement proceedings, though in some countries, depending on the degree of decentralization that exists (and which varies considerably within the Community) they will possess very little legal influence over the way that internal administrative bodies behave.  The theory and practice of Community law enforcement largely ignores these complexities at present.

One reason that may underlie the failure of a Member State to implement Directives in practice may simply be a question of economic costs.  Some environmental directives expressly incorporate an economic criterion such as "best available technology not entailing excessive costs,"(16) but others do not.  An important case before the European Court of Justice in 1990 concerned the failure to implement the standards contained in the Drinking Water Directive (17) in local supplies, and the Court held that the practical and economic difficulties of ensuring that water supplies met the required standards provided no defense to a Member State charged with failure to implement the Directive (18).  This decision illustrates the very strict approach that the European Court has generally shown in issues of non-implementation, though it must be stressed that at present the European Court possesses no powers of sanction, relying instead upon its moral authority if its judgments are to be complied with by Member States.  The political response to a apparently disturbing increase in examples of Member States failing to comply with judgments of the Court is contained in the Maastricht Treaty which proposes to give power to the Court to fine Member States which do not comply with a judgment.

 

5        INFORMATION GAPS AND THE COMPLAINT PROCEDURE

 

         In the environmental sector, the Commission has no real powers of investigation comparable in any way to those it has been possesses in the competition field (1 9).  There are as yet no Community environmental inspectors, although the idea has been suggested in the past, and in 1991 the UK Government called for the setting up of a Community "audit" inspectorate to work alongside and monitor the performance of existing national inspectorates.  In 1 990, the Council of Ministers agreed a Regulation establishing a European Environmental Agency, though as yet no location for the Agency has been agreed due to political disputes between Member States (20), and initially at any rate the functions of the Agency would be largely confined to data collection and analysis in conjunction with similar bodies within Member States.  Against this background, the Commission has been peculiarly dependent on its own complaint system to enable it to be alerted to possible infringements in practice.  The procedures, governed by the Commission's internal rules of administration, permit any member of the public, including environmental groups and industries, to notify the Commission of alleged infringements.  No legal interest in the matter complained of need be shown, and no costs are involved.

The system is common to all areas of Community law, and was first developed in the 1960's in the context of the internal market.  But it is the environmental field that have given rise to a spectacular growth in the numbers of complaints received, and they now represent almost half of all total number received annually by the Commission.  A number of criticisms can be made about the current system.  It means that the Commission is initially at any rate playing a largely reactive role to the type of issues and subject matter raised, and its stated commitment to investigate every complaint received, while a laudable goal of an administration exercising enforcement powers, leaves little room for strategic decision-making, especially given the current limited man-power involved (21).  Various suggestions have been made to improve the efficiency of the system, including the establishment of Commission offices within Member States to act as a first point of referral, or the requirement that complaints are initially made and filtered through Members of the European Parliament.  Yet the ability and right of citizens to by-pass national governments and bodies and make representations direct to a supra-national enforcement body marks a bold institutional initiative, particularly for those countries where access to domestic courts and tribunals is not simple, or where traditions in open and responsive administrations are not well developed.  Certainly, in its recent study of the implementation and enforcement of Community legislation, the UK House of Lords Select Committee recommended against intro­ducing radical new filter or other similar mechanisms:

 

"...the complaints procedure remains a vital means for individual citizens to bring pressure on regulatory authorities to comply with Community law.  The sheer numbers of complaints made and of consequent referrals to the Court of Justice are sufficient testament to the need for such a mechanism." (22)

 

The Committee went on to suggest a number of administrative reforms to improve the handling of complaint investigations, including increased staffing level within DGXI, a clearer sense of priorities, greater powers of direct inspection, speeding up of decision-making, and more openness in the procedures -the initial stages, at least until the sending of a Reasoned Opinion, are still dominated by conventions of confidentiality associated with international diplomacy.  Despite the criticisms, it is clear that in a number of sectors the Commission's activities have created considerable pressure on the governments of Member States, and non-governmental organizations have become adept at using the procedures in a sophisticated manner, though experience in this respect still varies considerably between Member States.  In 1990 the Commission took the bold step of releasing publicly figures on a country by country basis of the numbers of Article 169 letters that had been issued in the environmental sector, a deliberate political move to highlight the issue of implementation and one that caused considerable disquiet among some Member States at the time.  An annual report is now promised from the Commission.

 

6        INTERNALIZING COMMUNITY OBLIGATIONS - DOCTRINES OF THE EUROPEAN COURT OF JUSTICE

 

Although a primary function of the European Court of Justice is to determine the meaning of Community legislation, it has never confined itself to a role of mechanical interpretation, but has over the years developed independent legal principles in an effort to ensure the supremacy of Community law and its effective application by national courts.  Two key doctrines can be mentioned in the context of implementation, though it should be emphasized that these were not developed with environmental policies in mind but are applicable to all areas of Community law.  The first, developed in the mid-1970's at a time when national governments appeared to have lost some momentum in developing the Community, concerned Directives.  Under this doctrine, the Court held that, even in the absence of national implementing legislation or where such legislation was defective, the sole legal remedy should not lie in Article 169 proceedings brought by the Commission.  For those obligations under Directives which could be described as precise and certain, individual citizens should be entitled to rely upon them in proceedings before national courts.  But there was an important limitation in that such proceedings must involve governments or other "emanations of the State", a broad concept that encompasses local government bodies, public agencies, and many other bodies considered to be under the control of the State.  The rationale which has limited the application of the doctrine to the public rather than the private sector is that it is the Member State which has failed to implement Community law, and it is therefore the Member State (and all that this concept entails) which should not be entitled to benefit from their own failings.  In the environmental field it is still quite rare for the doctrine to be raised before national courts, though in some countries, notably the Netherlands, there are now a fair number of reported cases on the subject.

The second doctrine which has been developed by the Court and sometimes known as the doctrine of sympathetic interpretation requires national courts to interpret as far as possible national laws in such a way as to be consistent with Community obligations, including Directives.  This doctrine can be raised in any proceedings, whether or not involving emanations of the State, though again its application in the environmental sector does not yet appear wide-spread.  Both these doctrines can be seen as a mechanism to internalize Community obligations even where the government of a Member State has failed to implement, and as the Court's own contribution towards the issue.  The doctrines are not intended to supplant the Art. 169 proceedings, and it is irrelevant to their application that the Commission may also be bringing Art. 169 proceedings on the same point.  While in theory extremely powerful mechanisms, their practical effectiveness depends crucially on a number of factors.  First, the acceptance by national courts and judges of their own obligation to apply the doctrines, even in the face of conflicting national law, and this is by no means guaranteed in all countries, or at all levels of court.  Second, citizens or others whose environmental interests are threatened must have the legal right to raise such issues before their national courts, and again the picture throughout the Community is by no means consistent.  Substantive rules on standing, particularly as they relate to non-governmental organizations, differ in many countries, as too do the costs of bringing actions, and the expertise of lawyers in what is still seen within some Member States as a specialized and somewhat esoteric field of law.

 

7        SANCTIONS AND REMEDIES

 

         As a matter of general principle, Community legislation has not normally prescribed forms of sanction whether criminal or civil which Member States must implement in order to ensure that Community policy is achieved.  Most environmental legislation to date has taken the form of Directives which, as described above, may contain obligations involving product standards, environmental standards of various sorts, licensing and procedural requirements, and while Member States have an obligation under Community law to achieve the aims of Directives, they retain a discretion to determine the appropriate national legal and administrative means which will be necessary to ensure these goals are attained.  Whether they employ criminal sanctions, strict or fault based liability offences, civil remedies, or administrative measures is left to their discretion, and the traditions of their own legal and administrative culture.

While the European Court of Justice has developed doctrines creating protective rights for individuals, notably the direct effective doctrine, they have to date largely left matters of procedural remedies, including the question of standing, to national courts:

 

"it is for the national courts in application of the principle of cooperation laid down in Article 5 of the EEC Treaty to ensure the legal protection which persons derive from the direct effect of provisions of Community law-"

 

R v Sec. of State for Transport ex p Factortame and Others C213/89 1991 1 AC 603

 

Nevertheless, according to case-law (23) of the European Court the discretion of national courts and legislation in this context is subject to two limitations:

-     procedural conditions relating to rights under Community law must not be less favorable than conditions relating to equivalent procedures for national remedies;

-     such national conditions must not make it impossible to exercise those rights derived from Community law.

As to sanctions or remedies introduced under national law, the European Court of Justice has hinted in at least one case that while Member States may have considerable discretion, they cannot abuse this.  For example, where a Member State had a discretion to choose a sanction under a Directive and chose an award of compensation,

 

"..then in order to ensure that it is effective in relation to the damage suffered and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained."

 

Case 14/83 Van Colson (1984) ECR 1891

 

The implications of this doctrine in likely to tested before the British courts in the context of current legal proceedings taken by Friends of the Earth against the Secretary of State for the Environment, challenging the validity of undertakings accepted by him from private sector water undertakers who had failed to comply with existing Community standards on Drinking Water.  It is likely to be argued that in the context of Community principles, such undertakings (which essentially represent a form of agreement to upgrade standards over a time period but one which is on the public record and can ultimately be enforced by administrative remedies leading to the removal of the undertaker's license to provide water supplies) are not a sufficiently rigorous form of sanction to ensure compliance.

Finally, in the Frankovitch decision last year (Frankovitch v Italian Republic, Case C­6/90,C-9/90 Times European Law Report), the European Court held that in certain circumstances a remedy in damages to individuals should be available against Governments where loss had resulted due to their failure to implement an EC Directive.  The Court held that if no such system existed under national courts it was up to the courts to create such remedies.  Again, this can be seen as an example of the Court trying to introduce legal remedies into national systems which ultimately aim to bring pressure on national governments to comply with Community obligations.  As the Court stated in its judgment,

 

"The full effectiveness of Community rules might be called Into question and the protection of the rights which they conferred would be weakened if individuals could not obtain compensation where their rights were infringed by a breach of Community law for which a Member State Is responsible"

 

8        IMPACT AND APPLICATION OF COMMUNITY ENVIRONMENTAL LAW ON MEMBER STATES

 

Judging the impact of Community environmental laws within Member States is not an easy exercise.  One is faced with twelve different countries, often with quite distinct national legal and administrative cultures, and with distinctive experiences in the development of national environmental law.  A simple dichotomy between those countries with a Roman law tradition and those with a common law system (the UK and Ireland) does not do justice to the range of differences that exist, and national experts in each country could point to a wide range of different impacts which Community environmental law has had on their own national systems.  The position is made more complex because Community laws do not originate from a straightforward "top­down" political process, but may often be influenced by existing developments in particular Member States, and during negotiations amendments may be sought seeking to minimize the disruptive effect of proposed new Community provisions on existing national procedures.  This means that for some countries, a particular Directive may have little impact on its national laws while the same Directive may be a significant innovation for other countries.

The conventional wisdom is that for those Member States which already possessed a reasonably developed set of environmental laws prior to the development of Community environmental law (e.g. Germany, Denmark, Netherlands, the United Kingdom, and France), the Community dimension has not brought about major changes, while the most dramatic effects have been felt in those countries with little in the way of sophisticated national controls (e.g. Spain, Portugal, Greece, Italy).  There is some truth in this, but on closer examination, the "North­-South" division is not wholly convincing.  To take one example, before the introduction of Community legislation prescribing air quality standards, the only country in the Community which possessed legally binding air quality standards was what was then the Federal Republic of Germany.  The introduction of legal air quality standards in countries such as Denmark, France, and the Netherlands and the United Kingdom, can be directly attributable to the need to comply with Community legislation (24).  Certainly, for a United Kingdom lawyer in both the field of air pollution and other areas of Community environmental law, a major structural influence of Community law has been the extent to which it has proved necessary to formalize into legislation and regulations detailed environmental standards - a complete reversal of what had hitherto been the dominant practice of allowing a large degree of administrative discretion within a broadly drafted legal framework, coupled with a reliance upon administrative circulars to transmit detailed policy intentions (25).  This in turn is influencing the way that internal interests, including regulators, lawyers, and industry, are approaching the subject of environmental policy in the United Kingdom.

Two concluding general points can be made on the subject of implementation.  First, full and effective implementation of Community law is unlikely ever to be achieved solely by the institutional mechanisms implicit in the Article 169 procedure, involving both the Commission and the European Court.  In the long run, it requires a genuine internal political will by Member States to ensure that Community policies are implemented within their countries, and this in turn will require improved education and understanding by national officials of the nature of Community law, together with the development of more effective national for allowing oversight of decision making.

Second, judging both the effectiveness of Community policies in improvement environ­mental protection and the extent and nature of deficiencies that exist requires much greater investment in reliable and comparable environmental data sources.  As the UK House of Lords Report (22) put it: "Without information it is impossible to assess whether compliance has taken place, the effectiveness of the legislation, or to gauge what further action needs to be taken"(para 34).  In this context, the continued failure of Member States to agree a location for the proposed Community Environmental Agency is a unfortunate reflection on the extent to which national political interests can override those of the environment.  The speed and manner in which this issue is resolved will provide some signal of the extent to which Member States are truly committed to improving implementation of Community environmental policies.

 

 

 

REFERENCES

 

(1)      Statement of European Council, Bulletin of the European Communities 6-1990, 18-21, note

4.

 

(2)      This principle may even extend to a national court granting interim relief to suspend the operation of a piece of national legislation until full proceedings take place : Case 246/89 R v Secretary of State for Transport ex parte Factortame (1 989) ECR 312.

 

(3)      see, for example, Resolutions of the European Parliament of 11/4/84 OJ 1984 C 127/67, and of 19/3/90, OJ 1990 C 68/172.

 

(4)      At an informal meeting of the Council of Ministers on 11-13 October 1991, it was agreed that there was a need for both the "further development and enforcement of environmental legislation" within the Community and a need to "improve the compliance and enforcement structures concerning environmental legislation and its implementation within the Member States." The Council accepted, as one contribution to this process, recommendations contained in a report by Environmental Resources Ltd of the need to establish an informal network of national enforcement agencies responsible for the practical implementation of Community environmental policies.

 

(5)      Art 130r(4): "The Community shall take action relating to the environment to the extent to which the objectives referred to in paragraph 1 (of this Article) can be attained better at Community level than at the level of the individual Member States."

 

(6)      Proposed new Art. 3b: "in areas which do not fall within its exclusive competence the Community shall take action, in accordance with the principal of subsidiarity, only if and in so far as the objectives of the proposed action cannot sufficiently be achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community."

 

(7)      The vast majority of environmental Directives were based on both Articles.  Directive 79/409/EEC on the Conservation of Wild Birds is one of the few measures of substance solely based on Art. 235.

 

(8)      Although the Maastricht Treaty amendments would introduce qualified majority voting for most environmental measures, the legislative procedures for Art 100A remain different, making the distinction still one of importance.  Furthermore, the freedom for a Member State to introduce stricter national environmental controls is more restricted where the Community measure is based on Art 100A.  In Commission v Council, Case 300/89, (June 11 1991), the European Court held that given the distinctive legislative processes, measures had to be based on one or the other Articles, but that this choice was not a matter of discretion by Community institutions but was a legal question to be based on 1. objective elements".  In that case, the ECJ agreed with the Commission's contention that a measure harmonizing pollution standards in a particular industrial sector was, despite a strong environmental component, still correctly based on Art. 100A.

 

(9)      Preamble, Council Directive of 24 November 1988, 88/609/EEC.

 

(10)    for example, Directive 80/779 on air quality limit values and guide values for sulphur dioxide and suspended particulates; Directive 80/778 relating to the quality of water intended for human consumption.

 

(11)    for example, Directive 78/659 on the quality of waters for fish life; Directive 76/160 on the quality of bathing waters; Directive 79/409 on the conservation of wild birds.

 

(12)    Directive 85/337 on the assessment of the effects of certain public and private projects on the environment.  Directive 90/313 on access to environmental information is another good example of a "horizontal" measure.

 

(13)    The material for this section is drawn from a more detailed analysis in Macrory (1992) "The Enforcement of Community Environmental Laws : Some Critical Legal Issues." Common Market Law Review 29, 347-369.

 

(14)    Art 155 of the Treaty provides that the Commission shall "..ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereof are applied;"

 

(15)    European Parliament Resolution of 11 April 1984 OJ 1984 C 127/67.

 

(16)    see Directive 84/360 on combating of air pollution from large industrial plants.

 

(17)    Directive 80/778 relating to the quality of water intended for human consumption.

 

(18)    Case 42/89 Commission v Belgium, 5 July 1990.

 

(19)    see Council Regulation No 17 of 6 February 1962, OJ Special Edition 1959-62, 87

 

(20)    Regulation 1210/90 OJ 1990 L 120/1.  The European Parliament wished to give the Agency a more explicit inspection and enforcement function, but this was resisted by the Council.  Art 20, however, provides that two years after the location of the Agency has been agreed, the Council must decide upon further tasks for the Agency including,  associating in the monitoring of the implementation of Community environmental legislation in cooperation with the Commission and existing competent bodies in the Member States."

 

(21)    In 1991, the legal unit within DG XI had a staff of 10 lawyers, six of whom were on temporary secondment.

 

(22)    House of Lords Select Committee on the European Communities, 9th Report, Session 1991-92, March 1992, para 128.

 

(23)    see Geddes "Locus standi and EEC Environmental Measures." Journal of Environmental Law Vol 4 No 1 1992.

 

(24)    see Institute for European Environmental Policy (1989) Report for the European Commission , "The Implementation of the EEC Air Directives in the Twelve Member States." The Institute has conducted a large number of valuable country by country and comparative studies of the impact of Community environmental legislation within Member States.

 

(25)    Although some would argue that this is a characteristic of a common law country adapting to Roman law systems, the same formalizing influence of Community law can be seen in countries such as France; see Annex to the 8th Report to the European Parliament on monitoring the application of Community law 1991, OJ C 338, 31.12.91.