ENFORCEMENT OF EEC ENVIRONMENTAL LEGISLATION: THE ROLE OF CITIZENS AND CITIZENS' GROUPS
ERNST R. KLATTE
Directorate-General Environment, Nuclear Safety and Civil Protection, Commission of the European Communities, Rue de la Loi 200, B-1049 Brussels, Belgium.
SUMMARY
EC environmental policy dates back to the early '70s. Despite the lack of an explicit legal basis for environment policy in the Treaty of Rome (1957), about 200 legal instruments (Directives, Regulations and Decisions) in the field of the environment have since been adopted by the Council of Ministers. A clear success story one would say. However, this formal record contrasts sharply with the marked lack of implementation and enforcement of EC environmental legislation by the Twelve Member States.
This paper will examine the importance of the role of citizens and citizens' groups in the enforcement of EC environmental legislation. In this context, particular attention will be paid to the right of complaint to the Commission, the right to petition the European Parliament, as well as to Directive 90/313/EEC on the freedom of access to information on the environment. Finally, it will look at the possibility for NGO's to participate in EC decision-making on environmental protection, as well as at the (im)possibility to have standing in the European Court of Justice.
1 ENFORCEMENT OF EC ENVIRONMENTAL LEGISLATION
1.1 Scope of the problem
The Ninth Annual Report on Commission monitoring of the application of Community law (1991) (1) states, that:
"The conclusions to be drawn from monitoring the application of Community environmental law in 1991 do not differ substantially from those set forth in the Eight Report.(2)
Whereas the body of Community law is growing larger and more elaborate, (...), the Member States' application of the existing law is still unsatisfactory on the whole.
Admittedly, several Member States are making a great effort, despite real difficulties, to make up the ground lost over a number of years. There is also a clear tendency away from legally questionable methods of transposal such as circulars.
Even so, a number of Member States continue to see the deadlines for transposal as optional or indicative. It is not unusual for implementing measures to provide for derogations which have no basis in the Directive transposed or for derogations strictly defined by the Community rules to be written into national law in the most flexible terms. Certain provisions of Directives adopted more than ten years ago are still a dead letter. Measures to implement Court rulings are by no means taken in every case, even after a second judgment based on Article 171 of the EEC Treaty.
It is the exception rather than the rule for the Commission to receive the reports provided for in many Directives, although this requirement has been met in the case of the Directive on bathing water.(3)
In this context, the Commission hopes that the new Directive on reports adopted towards the end of 1991 (4) will bring about a significant quantitative and qualitative increase in the environmental information available at Community level in the medium term.
Since most of the new-style reports will not be available until 1996-97 at the earliest, however, Member States will have to continue for the time being to supply the Commission with information under the arrangements currently in force, as stipulated in Article 7(2) of the Directive on reports.
In the medium term the Commission also expects a positive contribution from the measures which it is likely to adopt as a result of its research into the question of liability for environmental damage (5) and its discussions on the availability of legal remedies (6).
To improve efficiency in the application of Community law, possibilities for strengthening cooperation between the Commission and the Member States and for streamlining the Commission's monitoring activities will be explored.
Lastly, the Commission would stress that developments relating to environmental law, unlike other branches of Community law, are of considerable and ever-increasing interest to the public at large."
1.2 Enforcement of EC environmental Directives
1.2.1 Introduction
Most EC environmental legislation consists of "Directives".(7) Compared with the "Regulation", which has only been used a few times in EC environmental legislation (8), the Directive has inherent weaknesses. A Directive has to be transposed into national law in order to become effective; a Regulation is directly applicable in all Member States. Moreover, a Regulation has "direct effect", i.e. directly confers rights to citizens which the national courts have a duty to protect, while a Directive - generally speaking - has no "direct effect" (9).
Why then, has the Community not made more use of Regulations in the environmental field? The answer is simple, in principle: before the entry into force of the Single European Act (SEA) in 1987 (10), EC environmental legislation was mostly based on Article 100 EEC, Article 235 EEC, or a combination of the two. Article 100 EEC only speaks about "Directives" and does not offer the Commission the possibility to use a Regulation as a legal instrument under the circumstances.
Although the Regulation has marked advantages compared with the Directive, in particular as far as uniformity of application and enforcement are concerned, there are also "drawbacks". A Regulation is binding in its entirety and directly applicable, a Directive is binding as to the result to be achieved, but leaves to the national authorities the choice of form and methods. Member States tend to prefer Directives to Regulations in the environmental field, because the former leave them more "flexibility" than the latter. Moreover, as the Regulation is directly applicable, Member States tend to have an even closer look at the text of a Commission-proposal for a Regulation than they do in the case of a proposal for a Directive. Negotiations in the Council of Ministers about Regulations therefore risk to be even longer than about proposals for Directives.
Although, since the entry into force of the Single European Act in 1987, neither Article 100a EEC nor Article 130s EEC restrains the Commission to the use of Directives in the environmental field, the Commission continues to show a preference for the use of these instruments rather than of Regulations (11).
1.2.2 Implementation and enforcement of EC environmental Directives: the role of Member States
Article 189 EEC provides, that: "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". Moreover, Article 5 EEC stipulates, that: "Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty".
This implies, that: a) Member States have a duty to transpose a Directive into their national laws, after which the Directive becomes part of the national legislation of that Member State (formal implementation), and also that: b) Member States have to ensure that the objectives of the Directive are met in practice (practical implementation). It can therefore be concluded, that not only the formal implementation of Directives is incumbent on Member States, but also the (primary) enforcement of EC environmental Directives.
1.2.3 Enforcement of EC environmental Directives: the role of the Commission
According to Article 155 EEC, it is part of the tasks of the Commission "to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied".
The control of the implementation, in due time and correctly, of EC environmental Directives by the Member States 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 of Ministers nor to the European Parliament.(12) Moreover, this task is indivisible: the Commission is not allowed to delegate this power partially or totally, be it to another EC institution, or be it to any new authority which might be created.(13)
The Commission takes its task of monitoring the implementation of Directives very seriously. It controls whether the deadline for implementation (which is mentioned at the end of the text of each Directive, and which - normally - is 18 months after the date of notification of the Directive to the Member States) is respected, and whether the measures adopted comply with the terms of the Directive. Moreover, it verifies whether the national provisions are a correct and complete implementation of each Directive (formal compliance).
As the Commission lacks an environment inspectorate, it has to rely on information from citizens and citizens' groups (14) as well as on assistance from third parties (15), in order to be able to assess, if in practice, Member States have taken all the necessary measures "as to the result to be achieved" (16) (practical compliance).
Increasingly, the Commission receives relevant information pertaining to not correct/a lack of implementation of EC environmental Directives through complaints of citizens' or citizens' groups, or via Parliamentary questions (17). This information is extremely valuable to the Commission, as it often provides the Commission, and specifically its Directorate-General for Environment, Nuclear Safety and Civil Protection, with new information not previously gathered through the Community monitoring system which relies mainly on information from governments. It also forces the Commission to take action. Submitting a complaint to the Commission, may lead the Commission to open "infringement proceedings", which implies, that the Commission may eventually decide to take the offending Member State to the EC's Court of Justice in Luxembourg.
Infringement proceedings may be instituted in any of the following cases:
(a) If a Member State has not notified the Commission of the measures it has taken at national level to put EC environmental legislation into effect;
(b) If the national legislation of a Member State has been improperly harmonized with the provisions of EC environmental legislation;
(c) If the national legislation of a Member State has been properly harmonized with the provisions of EC environmental legislation but is not being properly applied.(18)
According to Article 169 EEC, infringement proceedings are instituted in three steps:
First, the Commission sends a "letter of formal notice", requesting the Member State in question to submit its comments on the presumed infringement of EC legislation, within a specified time limit (normally two months).
If the Member State fails to respond and persists in the infringement, the Commission sends a second letter, called a "reasoned opinion", setting a time limit for compliance with the Directive in question.
Finally, if the second step also fails to produce the desired results, the Commission may decide to take the case to the Court of Justice.
1.2.4 Enforcement of EC environmental Directives: the role of the Court of Justice
According to Article 173, paragraph 1 EEC, the role of the Court of Justice is "to review the legality of acts of the Council and the Commission other than recommendations or opinions. It shall for this purpose have jurisdiction in actions brought by a Member State (19), the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers".
Member States are obliged to take measures to comply with the judgments of the Court of Justice (Article 171 EEC). Until recently, there were no sanctions. The Treaty on European Union (Maastricht, 1992), however, provides in Article 171 (new) the possibility for the Court to impose a lump sum or penalty payment on a Member State which fails to take the necessary measures to comply with the Court's judgment within the time-limit laid down by the Commission, after the latter has brought the case before the Court again. It is hoped, that this possibility will impress Member States more than the negative publicity due to a Court verdict in an infringement case (the only "sanction" in the past), and thereby improve Member States' record of implementation and enforcement of EC environmental legislation.
2 ENFORCEMENT OF EC ENVIRONMENTAL LEGISLATION: THE ROLE OF CITIZENS AND CITIZENS' GROUPS
2.1 Introduction
EC legislation does not recognize an individual right to the environment.(20) However, only recently, the EC's Heads of State or Government declared: "The development of higher levels of knowledge and understanding of environmental issues will facilitate more effective action by the Community and its Member States to protect the environment. The objective of such action must be to guarantee citizens the right to a clean and healthy environment, (...)".(21)
Although the EC is not yet able to guarantee its citizens the right to a clean environment, there are, on the other hand, two rights accorded to every citizen of the Community, enabling her/him to contribute to the implementation and enforcement of EC legislation in general, and of EC environmental legislation in particular. These rights are:
(1) the right of complaint to the Commission;(22)
(2) the right to petition the European Parliament.(23)
These two rights will be presented in more detail below. Apart from these two rights, this chapter will deal with:
the right to have access to environmental information, the right to participate in decision-making regarding environmental protection, as well as the right to be a party to actions before the Court of Justice.
2.2 The right of complaint to the Commission
2.2.1 The concept of the right and its legal basis
Any EC citizen has the right to lay a written complaint before the Commission concerning the adoption by any Member State of measures or practices contrary to the environmental legislation of the Community. The complaint is addressed to the Commission, because according to Article 155 EEC, the Commission is the "Guardian of the Treaty", i.e. the Commission is responsible for ensuring that the measures adopted by Community institutions are applied. As most EC environmental legislation consists of Directives, the exceptions being Regulations and Decisions (24), citizens' complaints refer to the non-implementation of existing Directives or - exceptionally - Regulations. It should be noted, that complaints may only be laid before the Commission, and not before national authorities (25); moreover, the right of complaint applies only to the implementation of existing legislation, not to the participation of citizens in the process of enacting legislation.(26)
2.2.2 Method of exercising the right of complaint
The right of complaint is exercised by sending a simple letter to the Commission. For the convenience of EC citizens who wish to exercise their right, the Commission has had complaint forms printed in all nine official languages of the Community (27), which are distributed free. The complaint form lists all the particulars that must be filled in and the documents that must be submitted (such as the complainant's personal particulars and evidence supporting the complaint of non-implementation of Community legislation), as well as the citizen's right to be kept informed after the complaint has been laid. The forms are distributed by the Commission's Directorate-General Environment, Nuclear Safety and Civil Protection in Brussels, and through the Commission's Information Offices in the Member States. A specimen of the form is attached as Annex 1. A particularly important characteristic of this right is, that its exercise involves no expense to the complainant (except from buying a stamp), so that it is accessible to everybody.
A special characteristic of the right of complaint is its "Community" nature. That is to say, that any EC citizen may make a complaint to the Commission about non-compliance with EC environmental legislation not only by her/his own country, but also by any other Member State (28). For instance, Greece's failure to comply with the Directive on the conservation of wild birds (29) by permitting the hunting of turtle-doves in spring (30) has been repeatedly denounced to the Commission by environmental organizations and citizens of other Member States.(31)
2.2.3 Results of exercising the right of complaint
The laying of a complaint before the Commission concerning the adoption by Member States of measures or practices contrary to the provisions of EC environmental legislation, may provide the Commission with data that had not previously been gathered through the Commission monitoring system, which relies mainly on information given by the governments of Member States. Thus the laying of a complaint may lead to the institution of infringement proceedings under Article 169 EEC. (32) If the Commission refers the case to the European Court and the Court finds that a Member State has failed to fulfil an obligation under the Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court.(33)
According to the Ninth Annual Report on Commission monitoring of the application of Community law (1991)(34), the number of complaints on environment laid per year per country, which led to the initiation by the Commission of infringement proceedings under Article 169 EEC, was as follows:
Table 1. Number of complaints on non-compliance with EC environmental legislation per Member State/per year, having led to the opening of infringement procedures by the Commission
The Commission is also detecting more and more infringements of EC environmental legislation through its own services. The following table shows the number of infringements detected by the Commission's own inquiries (35):
Table 2. Number of infringements of EC environmental legislation per Member State/per year, detected by the Commission
2.2.4 Conclusions
The number of complaints brought before the Commission is high and steadily increasing. Spectacular increases in the number of complaints on environmental issues took place in the years 1986: 165 complaints (compared with 37 during 1985) and 1989: 465 (compared with 216 during 1988). There is no clear explanation for this. At least not for the increase in 1986. A possible explanation for the increase in complaints during 1989 might be, that the European Environmental Bureau (EEB) launched quite a campaign on implementation and enforcement of EC environmental legislation during the European Year of the Environment (1987-88), involving its member-organizations in all EC Member States.(36)
There is considerable variation from one Member State to another in the number of complaints. In view of the "Community" nature of the right of complaint, this right offers a challenge to citizens and citizens' groups in the Community to co-operate with each other, to exchange information and experiences, especially in view of the vast number and experience of non-governmental organizations (NGO's) in some Member States, compared to others.
As far as the Commission is concerned, it considers complaints a resource rather than a nuisance.(37)
2.3 The right to petition the European Parliament (38)
2.3.1 The concept of the right and its legal basis
The second right, by which any EC citizen can play an active part in monitoring the implementation of EC environmental legislation, is the right to petition the European Parliament. This right is conferred upon all EC citizens by Rule 128 of the Rules of Procedure of the European Parliament. Rule 128, paragraph 1 (39) reads:
"Every citizen of the European Community shall have the right, individually or jointly with others, to address written requests or complaints (petitions) to the European Parliament".
2.3.2 Method of exercising the right to petition
The right to petition is exercised by simply sending a letter to the European Parliament.
Petitions should include personal particulars of each of the signatories, i.e. name, occupation, nationality and permanent address. Like complaints, petitions are registered (40). Like the exercise of the right to petition, the exercise of the right of complaint entails no cost to the petitioner(s). There are more similarities: the right to petition has also a "Community" nature.
The Parliament has not made petition forms available so far, but some Member States have introduced measures to assist citizens in exercising their right. In Britain, for instance, posters have been printed giving the address of a center of access to the European Parliament, where any British citizen with a problem may write a letter to any (British) Member of the European Parliament (MEP).(41)
2.3.3 Results of exercising the right to petition
Petitions are first examined by the Parliamentary Committee on Petitions ("the Committee"), to see whether they are admissible, i.e. "whether the petitions registered fall within the sphere of activities of the Communities".(42)
In the case of admissible petitions, the Committee may decide to draw up a report or otherwise express its opinion on petitions it has declared admissible.(43) When considering petitions, the Committee may organize hearings or dispatch members to ascertain the facts of the situation in situ.(44)
With a view to preparing its opinions, the Committee may request the Commission to submit documents, to supply information and to grant it access to its facilities.(45) The Committee may submit motions for resolutions to Parliament on petitions which it has considered. The Committee may also request that its opinions be forwarded by the President of the Parliament to the European Commission or the Council of Ministers.(46)
Every six months, the Committee informs Parliament of the outcome of its deliberations, as well as of the measures taken by the Council or the Commission on petitions referred to them by Parliament.(47) The President of the European Parliament informs petitioners of the decisions taken and the underlying reasons.(48)
The number of petitions submitted by EC citizens to the European Parliament is rising steadily (49):
1983-84: 100 petitions
1984-85: 346 petitions.
The following environmental issues were - inter alia - covered by petitions submitted to Parliament during its 1984-85 session: inclusion of environmental provisions in the EC Treaties; sabotage of the Greenpeace ship in New Zealand; European legislation on the management of marine resources; trapping of songbirds; protection of the countryside; hunting of birds; sound levels of aircraft.(50)
2.3.4 Prospects for improvement
In view of the fact, that the citizen's right to petition the European Parliament used to be based on the Rules of Procedure of the Parliament only, Parliament felt handicapped in its efforts to investigate citizens' petitions properly and to offer solutions. Therefore, Parliament has tried, on several occasions, to strengthen its position in this area. (51)
Recently, the Treaty on European Union (Maastricht, 1992) provided a legal basis in the Treaty for EC citizens wishing to petition the European Parliament (Article 138d). Although there is now a legal basis for the right to petition the European Parliament in the Treaty, Article 138d restricts this right to matters which affect the petitioner(s) directly.(52)
The Treaty on European Union also added Articles on a temporary Committee of Inquiry (Article 138c), and on an Ombudsman (Article 138e) to the Treaty.
Article 138c provides, that the European Parliament may, at the request of a quarter of its members, set up a temporary Committee of Inquiry to investigate alleged contraventions or maladministrations in the implementation of Community law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings. The temporary Committee of Inquiry ceases to exist on the submission of its report.
Article 138e stipulates, that the Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of the Union, or any natural or legal person residing or having his registered office in a member State, concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.
The Ombudsman will have as his task to conduct inquiries, either on his own initiative or on the basis of complaints submitted to him direct or through a member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where he establishes an instance of maladministration, he will have to refer the matter to the institution concerned, which shall have a period of three months to inform him of its views. The Ombudsman will then forward a report to the European Parliament and the institution concerned. The person lodging the complaint will be informed of the outcome of such inquiries.
The Ombudsman has to submit an annual report to the European Parliament on the outcome of his inquiries. He will be appointed after each election of the Parliament, for the duration of its term of office. He is eligible for reappointment.
The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament, if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.
The Ombudsman shall be completely independent in the performance of his duties. He may not seek nor take instructions from anybody. Also, he may not, during his term of office, engage in any other occupation, whether gainful or not.
2.3.5 Conclusions
Both the right of complaint to the Commission and the right to petition the European Parliament give EC citizens the possibility to play an active role in the effective protection of the European environment. The provision of assistance to citizens wishing to exercise these rights - be it by printing and distributing complaint forms or by showing them the way how to petition the Parliament - is vital.(53) Not only for the citizens in order to be able to exercise their rights to the full extent, but also for the Community, as it will help the EC institutions to strengthen their monitoring capacity of the implementation and enforcement of EC legislation in general and EC environmental legislation in particular.
As far as the Parliament is concerned, it is hoped, that the new Treaty provisions regarding the temporary Committee of Inquiry, the right of complaint and the Ombudsman will reinforce its position vis-à-vis the other Community institutions and through a more effective parliamentary control will lead to a more democratic Community.
2.4 The right to have access to environmental information
2.4.1 Introduction and historical background
As of December 31, 1992 any natural or legal person is entitled to have free access to environmental information held by public authorities in EC Member States. The legal basis for this right is Council Directive 90/313/EEC, of 7 June 1990, on the freedom of access to information on the environment.(54)
The basis for Directive 90/313/EEC was laid in 1985, by a draft-resolution of the European Parliament, tabled by MEPs Ken Collins (UK) and Beate Weber (FRG).(55) In this draft, the Commission was invited to prepare a proposal for legislation concerning the right of the public to have freedom of access to environmental information.(56)
Parliament also asked its Committee on Environment, Public Health and Consumer Protection to prepare a report and a draft-resolution on the matter. Bram van der Lek (NL) was appointed rapporteur. Although the Committee on Environment, Public Health and Consumer Protection accepted the Van der Lek-report, many proposals in it were rejected by the plenary as being "too radical". Finally, the rapporteur advised the plenary to vote against what was left of his proposals, as so many essential parts of his report had already been rejected.(57) This was accepted.
The European Parliament also decided, in 1985, to prepare an own initiative report on information concerning the activities of the EC. Pol Marck (B) was appointed rapporteur on this issue. He submitted his report to Parliament in 1987 (58). Parliament adopted his report by a Resolution, in which it asked that the public be given access to information held by the EC institutions (59).
As far as the Commission is concerned, it presented a draft for a Fourth Environment Action Programme of the European Communities (1987-1992) to the Council and Parliament on 15 October 1986. In the draft-Programme, it proposed, that "The Commission will study the need for, and desirability of, a Community "Freedom of Environmental Information Act" and will make appropriate proposals".(60)
Parliament stressed, in its Opinion on the Commission proposal for a Fourth Action Programme, that "access to information for all must be made possible by a specific Community Programme".(61) The Council, when adopting the Fourth Environment Action Programme, assigned priority - inter alia - to "improved access to information on the environment".(62)
2.4.2 The legal situation in the Member States
One of the important reasons for the Commission to present a proposal for a Community legal instrument on freedom of access to information on the environment to the Council and Parliament was, that only a minority of EC Member States (Denmark, France, Italy, Luxembourg and The Netherlands) had specific legislation on this subject. Further, three Member States (Greece, Portugal and Spain) had general provisions in their Constitutions governing citizens' right to have access to information. Finally, Belgium, Germany, Ireland and the United Kingdom had no specific legislation governing public access to information.(63)
2.4.3 The form of the Community legal instrument
As on the one hand, the situation in the various Member States was so diverse, and on the other hand political pressure was building up calling for action on this issue (64), the Commission decided to present a proposal for a Community legal instrument on freedom of access to information on the environment to the Council and Parliament.(65)
As Article 130s EEC was chosen as a legal basis (66), there were two possibilities for the Commission: a Regulation or a Directive. The Commission chose the latter.(67)(68)
2.4.4 A general legal instrument or a specific one?
Before answering the question which type of Community legal instrument the Commission was going to propose, it also had to decide whether its proposal would be of a general nature, as Parliament had asked for in its Resolution of 22 January 1988 (69), or whether it would be limited to environmental information alone.
The Commission chose to restrict its proposal to environmental information, for the following reasons: first, there was no clear Community competence to propose an instrument of a general nature; secondly, Article 235 EEC as a legal basis for such an instrument was less justified than Article 130s; thirdly, a Community legal instrument on freedom of access to information in general has more to do with human rights, a field in which the Community operates with great caution; fourthly, there was a clear political demand for a Community legal instrument regarding freedom of access to information on the environment, the need for a Community legal instrument of a general nature was less obvious. Moreover, there was fear, that a Commission proposal of a general nature was likely to meet more criticism in the Council, than a proposal of a more restricted nature.
As neither the European Parliament, nor the Economic and Social Committee, nor the Council objected to the more limited scope of the Commission proposal, the Commission felt reassured in having opted for a Community legal instrument on freedom of access to environmental information alone.(70)
2.4.5 Addressed only to the Member States or also to the EC institutions?
Although the text of Article 1 of Directive 90/313/EEC on the freedom of access to information on the environment leaves open the possibility for a wide interpretation, Article 2 and following of the Directive make clear that it is addressed to the Member States only.
During the preparation of the Commission-proposal, the prevailing view within the Commission was, that an obligation laid down in an EC Directive could not address the EC institutions, as a Directive was addressed to the Member States.(71) That's why the Commission announced in the explanatory memorandum to the proposal for a Directive, that it would undertake other initiatives in order to apply the same principle to the EC institutions.(72)
Article 214 EEC stipulates, that Community officials are required not to disclose information of the kind covered by professional secrecy. It follows from Article 3, paragraph 2 of Directive 90/313/EEC, which enumerates in an exhaustive way the reasons for refusal of a request for environmental information, that professional secrecy as such is not a valid reason for refusal (73); the right to have access to environmental information held by public authorities applies, notwithstanding the fact that the principle of professional secrecy exists in all Member States. Thus, the conclusion is, that environmental information held by national administrations does not fall under the general principle of professional secrecy, provided it does not fall under one of the categories listed in Article 3, paragraph 2 of Directive 90/313/EEC. The same reasoning is applicable to the interpretation of Article 214 EEC, which, thus, does not oppose the application of the provisions of the Directive to the EC institutions.(74)
2.4.6 The text of Directive 90/313/EEC
According to Article 1, the object of Directive 90/313/EEC is to ensure freedom of access to, and dissemination of, information on the environment held by public authorities and to set out the basic terms and conditions on which such information should be made available. Not only does Directive 90/313/EEC create a citizens' right to have access to environmental information held by public authorities, but the authorities also have to ensure the "freedom" to have access to this information. Thereby the Directive puts this right in the context of a human right.(75)
"Information relating to the environment" (76) means "any available information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (including those which give rise to nuisances such as noise) or measures adversely affecting, or likely so to affect these, and on activities or measures designed to protect these, including administrative measures and environmental management programs".(77)
It is interesting to note, that the definition of "information relating to the environment", the notion that is used throughout Directive 90/313/EEC, is not limited to the state of the environment of the Community. Information about exports of dangerous products or installations fall within the scope of this definition, as well as, for instance, data concerning the state of the ozone layer, world climate or tropical forests.(78)
"Public authorities" are defined as any public administration at national, regional or local level with responsibilities, and possessing information, relating to the environment with the exception of bodies acting in a judicial or legislative capacity.(79)
The text of Article 3 of the Directive makes it even more clear, that the right to have freedom of access to information on the environment held by public authorities is a fundamental right, and not just a possibility.(80) It reads as follows:
"Save as provided in this Article, Member States shall ensure that public authorities are required to make available information relating to the environment to any natural or legal person at his request and without his having to prove an interest".
The reference to "any natural or legal person" does not contain any geographical limitation. This implies, that also people living in another Member State, or even outside the Community can invoke this right.(81) Moreover, it is not necessary to prove an interest. The character of a fundamental right is enhanced by the limited, exhaustive list of reasons for refusal in Article 3, paragraph 2 (82), and the possibility for appeal laid down in Article 4 of the Directive.
A public authority has to respond to a person requesting information as soon as possible and at the latest within two months. The reasons for a refusal to provide the information requested must be given.(83) A person who considers that his request for information has been unreasonably refused/ignored/inadequately answered by a public authority, can seek judicial or administrative review of the decision in accordance with the relevant national legal system.(84)
Member States may charge the person who has made a request for environmental information for supplying her/him with this information, but such a charge may not exceed a reasonable cost.(85)
Bodies with public responsibilities for the environment and under the control of public authorities have to make available information relating to the environment on the same terms and conditions as public authorities.(86)
Member States will have to provide general information to the public on the state of the environment through - inter alia - the periodic publication of state of the environment reports. (87)
Finally, Member States have to report to the Commission by the end of 1996 at the latest, on the experience gained with the application of Directive 90/313/EEC. In this light, the Commission will make a report to the European Parliament and the Council of Ministers together with any proposal for revision, which it deems appropriate.(88)
2.4.7 Conclusion
Directive 90/313/EEC has created a third citizens' right relating to the environment: the right to have freedom of access to information relating to the environment held by public authorities in the Community. In fact, this is not just another right for EC citizens alone: it is an universal human right in the sense that any natural or legal person, irrespective of the place where he/she lives, and without having to prove an interest, can invoke this right in order to obtain information relating to the environment from public authorities within the Community. This information is not confined to information relating to the environment within the Community. It might very well be information relating to the state of the environment in Eastern Europe or concerning the state of the ozone layer.(89)
2.5 The right of citizens to participate in EC decision-making relating to environmental protection
2.5.1 Introduction
There is no right for EC citizens or citizens' groups to participate in EC decision-making relating to the protection of the environment.
The Commission has the exclusive right to make proposals to the Council of Ministers and the European Parliament, and decisions at EC level are generally taken by the Council. The Council of Ministers, which consists of one representative per Member State, and whose composition changes depending on the subjects being discussed, always meets behind closed doors and its minutes are confidential.
Although the Commission has set up an important number of committees to assist it in its tasks and/or to take decisions which need the involvement of Member States, there does not seem to be any representative of any national, European or international environmental organization in any advisory committee existing with the Commission.(90)
Plenary sessions of the European Parliament, which are normally held each month in Strasbourg, are open to the public, and so are the sessions of its Committee on the Environment, Public Health and Consumer Protection, which are held in Brussels. The Environment Committee of the European Parliament sometimes organizes public hearings on environmental matters, to which environmental organizations are regularly invited.
Despite a reinforcement by the Single European Act (1987) and the Treaty on European Union (Maastricht, 1992) of its role in the EC's legislative process, the European Parliament, contrary to national parliaments in the Member States, still has largely only an advisory role regarding draft-EC legislation, except where the co-decision procedure of Article 189b of the Treaty on European Union applies.
2.5.2 Recent developments and future prospects
Although the present situation as far as citizens' participation in EC decision-making on the environment leaves much to be desired, an improvement of the situation is imminent.
Recently, the Commission presented to the Council and Parliament a proposal for a Fifth Environment Action Programme of the European Communities (1993-2000), entitled "Towards Sustainability".(91) The approach adopted in drawing up this new policy Programme differs from that which applied in previous EC environmental action programs:
It focuses on the agents and activities which deplete natural resources and otherwise damage the environment, rather than wait for problems to emerge;
It endeavors to initiate changes in current trends and practices which are detrimental to the environment, so as to provide optimal conditions for socio-economic wellbeing and growth for the present and future generations;
It aims to achieve such changes in society's patterns of behavior through the optimum involvement of all sectors of society in a spirit of shared responsibility, including public administration, public and private enterprise, and the general public (as both individual citizens and consumers);
Responsibility will be shared through a significant broadening of the range of instruments to be applied contemporaneously to the resolution of particular issues or problems.
Keywords of the Fifth Action Programme are "subsidiarity" (92) and "shared responsibility". In Chapter 9 (Implementation and Enforcement) of its proposal for a Fifth Environment Action Programme, the Commission notes, that:
"Satisfactory implementation and enforcement of the policy, strategy and measures set out in this Programme at all levels of society will be imperative if the objectives of environmental protection, sustainability of socio-economic activity and development and the integrity of the Internal Market are to be achieved. Ultimately, measures designed to facilitate sustainable development and involving all economic actors through the application of a broad range of instruments should be self-enforcing. For the foreseeable future, however, the likelihood is that the effectiveness of implementation will be closely related to the quality of the measures themselves and of the arrangements for their enforcement.
In the past, a number of factors has contributed to problems of implementation, including
a lack of overall policy coherence, partly due to an evolving, sometimes shifting, agenda as the scope of environmental policy grew, and partly because much of the environmental legislation was developed in an ad hoc manner;
the narrow choice of instruments, whereby perhaps too great a reliance was placed on legislation of the "command and control" type;
the need for unanimous agreement within the Council of Ministers, frequently necessitating political compromise, has resulted in some cases in measures which are difficult to put into practical operation;
the preponderant recourse to Directives as the form of legal instrument has often given rise to difficulties in their incorporation into quite widely differing national statutory codes and administrative procedures with consequential problems of interpretation and practical implementation;
management inadequacies at all administrative levels, from Community down to local authorities."(93)
According to the Commission, it is important to learn from these past experiences and to take appropriate steps to improve this particular aspect of policy. Among the reforms which are required are better preparation of measures, including improved consultation arrangements, more effective integration with complementary measures, better practical follow-up to legislative measures, both administrative and operative, and stricter compliance checking and enforcement.
In order to institute these reforms, the Commission intends to set up the following ad hoc dialogue groups: (a) a Consultative Forum, (b) an Implementation Network (94), and (c) an Environment Policy Review Group (95).
The Consultative Forum will be established to provide for consultation and information exchange between the industrial/ production sectors, the business world, regional and local authorities, professional associations, trade unions, environmental and consumer organizations and relevant Directorates-General of the Commission. It is envisaged, that this Forum will act as an umbrella organization, with specialist subgroups set up as necessary to deal with specific topics or issues. The common interest in moving towards sustainability and the need to increase levels of awareness and consensus in the application of shared responsibility underline the importance of this Forum.
Citizens' groups representing environmental interests at EC level, e.g. the European Environmental Bureau (EEB), World Wide Fund for Nature-EC office, Friends of the Earth-EC coordination office and Greenpeace's EC-Unit will be invited to sit on the Consultative Forum and participate actively in it.
The Consultative Forum, the Implementation Network and the Environment Policy Review Group are meant to serve, in a special way, the promotion of a greater sense of responsibility among the principal actors in the partenariat (public authorities, public and private enterprise, the general public), and to ensure effective and transparent application of measures.
2.5.3 Conclusion
There is no citizens' right to participate in EC decision-making relating to environmental protection. However, it is hoped that citizens' groups representing environmental interests at EC level, will participate actively in the Consultative Forum on the environment, which is about to be set up and whose task it will be to advise the Commission on the future course of EC environmental policy.
2.6 The right of citizens or citizens' groups to initiate proceedings on environmental matters before the European Court of Justice
2.6.1 Introduction
According to Article 173, paragraph 2 of the Treaty, any natural or legal person may institute proceedings against an act of the Commission or the Council which is of direct and individual concern to him. However, according to the jurisprudence of the European Court of Justice (ECJ), and except in those cases in which a decision addressed to an individual has been wrongly adopted in the form of a Regulation, Directives and Regulations are Community legal instruments which do not affect persons directly or individually, but only indirectly and collectively. In principle therefore, private persons cannot institute proceedings against Directives or Regulations. Moreover, Article 173, paragraph 1, second sentence, limits the right for natural or legal persons to initiate proceedings to the lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or secondary Community law, or misuse of power. These limitations, together with the narrow interpretation by the Court of "direct and individual" concern has resulted in the past in the dismissal of all actions brought by citizens on the basis of Article 173 EEC. Citizens' groups are in no better position, since they are also not "directly" affected by Directives or Regulations.(96)
According to Article 175 EEC, any natural or legal person may complain to the European Court of Justice that an institution of the Community has failed to address to that person any act other than a Recommendation or an Opinion. However, EC Directives or Regulations are addressed to the Member States or the general public collectively, and never to citizens' groups or citizens individually. Therefore they cannot - in practice - initiate proceedings for failure to act either.(97)
It can be concluded, therefore, that neither Article 173 EEC nor Article 175 EEC provide practicable grounds for citizens or citizens' groups to institute proceedings on environmental matters before the European Court of Justice.(98)
2.6.2 Third party intervention on environmental issues
According to Article 37, paragraph 2 of the Statutes of the European Court of Justice, persons establishing "an interest" in the result of any case submitted to the Court can intervene in the case to support the submissions of one of the parties. Further details are regulated by Article 93 of the Rules of Procedure of the ECJ.
Until now, no third party intervention has taken place in an environmental case, neither by an individual citizen nor by an environmental organization, though a number of cases might have been appropriate for such intervention. Therefore it is hard to say whether such a request would stand a chance.(99)
There are, however, precedents in the field of consumer protection. On June 1, 1984, BEUC (100) applied to the Registrar of the ECJ for leave to intervene in two cases brought by Ford Motor Company against the Commission concerning the application of Articles 85,86 EEC (rules on competition), in order to support the submissions of the defendant. The Court, in its decision of July 4, 1984 gave leave to BEUC to intervene in the proceedings, on the following grounds:
BEUC is a member of the EC's Consumers' Consultative Committee established by Commission Decision 73/306 of September 25, 1973. In view of its objectives, BEUC is deemed to have a legitimate interest in intervening in these proceedings;
The Commission, as defendant, takes the view that BEUC should be allowed to intervene.
Moreover, in answer to earlier applications by BEUC for leave to intervene in Joined Cases 228 and 229/82 involving the same litigants (i.e. Ford v. the Commission), the Court had granted leave to intervene by its Decisions of September 21, 1982 (164446) and of December 1, 1982 (168845), on the grounds that BEUC had sufficient interest for it to be allowed to intervene.(101)
The European Environmental Bureau (EEB)(102), engages in similar activities as BEUC, but in the field of nature conservation and environmental protection. In view of the similarities between the EEB and BEUC in their aims, their mode of operation and their links with the EEC, it seems reasonable that in cases relating to nature conservation or environmental protection, the EEB should be allowed to appear before the European Court of Justice on similar grounds as BEUC.(102)
The European Parliament, too, has declared to be in favor of the right of non-governmental organizations (NGO's) to bring cases before the European Court of Justice. According to Parliament, consumers' associations and environmental organizations should be granted the right to freely pursue the achievement of their aims; therefore, they should be able to apply to the Court or to initiate administrative proceedings whenever the collective interest of consumers or the environment is affected or in danger of being affected. Parliament has asked the Commission to submit proposals to this effect to the Council of Ministers.(103)
2.6.3 Legal aid to citizens' groups for actions in the ECJ
According to Article 76 of the Rules of Procedure of the European Court of Justice, any party who is wholly or in part unable to meet the costs of proceedings, may at any time apply for legal aid. The application for legal aid need not be made through a lawyer. The application must be accompanied by evidence of the applicant's need of assistance, in particular by a document from the competent authority certifying the lack of financial means of the applicant.
The Chamber of the Court to which the Rapporteur belongs has to decide, after considering the written observations of the opposite party and after hearing the Advocate-General, whether legal aid should be granted in full or in part, or whether it should be refused. Next, the Chamber will make an order, against which no appeal is possible.
The Chamber may, at any time, either on its own initiative or on application, withdraw legal aid if the circumstances which led to its being granted alter during the proceedings.
Where legal aid is granted, the cashier of the Court shall advance the funds necessary to meet the expenses.
The fore-mentioned Rules of Procedure of the European Court of Justice may prove of invaluable help to environmental organizations that wish to intervene as a party in a case before the Court relating to nature conservation or environmental protection, but lack the necessary financial resources to do so. Legal aid may be granted by the Court to European NGO's, such as the EEB, as well as to national NGO's.(104)
2.6.4 Conclusion
Although Article 173 EEC and Article 175 EEC provide in principle a right for citizens or citizens' groups to initiate proceedings against an act of the Commission or the Council which is of direct and individual concern to them, in practice all actions brought by individuals on the grounds of either Article 173 EEC or Article 175 EEC have been dismissed by the European Court of Justice.
Although environmental NGO's have never in the past intervened as a third party in a case before the European Court of Justice, precedents involving BEUC, make it more likely that such a request, made on the basis of Article 37, paragraph 2 of the Statutes of the Court of Justice, will be accepted by the Court. Such action can be facilitated by applying for legal aid.
3 FINAL CONCLUSIONS
Within the Community, there is a right for citizens and citizens' groups to send a written complaint to the Commission, if a Member State adopts measures or practices contrary to Community legislation in general, and Community environmental legislation in particular. This may lead to "infringement proceedings" by the Commission against the offending Member State, which could eventually result in the situation that the offending Member State is taken to the European Court of Justice.
There is also an EC citizens' right to petition the European Parliament.
As from December 31, 1992, there will be a right for every natural or legal person at his request and without his having to prove an interest, to have freedom of access to environmental information held by public authorities in the Community. This right is neither limited to EC citizens, nor geographically limited.
Although, there is currently no citizens' right to participate in EC decision-making relating to nature conservation or environmental protection, the Commission is about to set up a Consultative Forum on the environment, involving representatives from industry, trade-unions, regional- and local authorities, as well as from consumer- and environmental organizations. The Consultative Forum will advise the Commission about the future course of EC environmental policy.(105)
There is no citizens' right to have standing in the European Court of Justice, despite the theoretical possibilities mentioned in Articles 173 EEC and 175 EEC. However, there is a fair chance that environmental NGO's might be granted the right to intervene as a third-party in a case in the result of which they have an interest, considering the precedents involving BEUC.
The overall conclusion is, that citizens and citizens' groups can play, and are in effect playing, an important role in the enforcement of EC environmental legislation, particularly in a situation where there is no EC inspectorate on the environment.
REFERENCES
(1) Ninth Annual Report on Commission monitoring of the application of Community law (1991), COM (92) 136 final of 12 May 1992, pp.245-246.
The Commission has published reports on the monitoring of the application of Community law ever since 1984:
First Annual Report COM (84) 181 final, 20.4.1984;
Second Annual Report COM (85) 149 final, 23.4.1985;
Third Annual Report COM (86) 204 final, 3.6.1986, published in OJ No C 220, 1.9.1986;
Fourth Annual Report COM (87) 250 final, 24.8.1987, published in OJ No C 338, 16.12.1987;
Fifth Annual Report COM (88) 425 final, 13.9.1988, published in OJ No C 310, 5.12.1988;
Sixth Annual Report COM (89) 411 final, 22.12.1989, published in OJ No C 330, 30.12.1989;
Seventh Annual Report COM (90) 288 final, 22.5.1990, published in OJ No C 232, 17.9.1990;
Eight Annual Report COM (91) 231 final, 31.7.1991, published in OJ No C 338, 31.12.1991.
(2) The Eight Annual Report on Commission monitoring of the application of Community law (1990), COM (91) 231 final of 31.7.1991, concludes - inter alia - on page 305:
"It must be noted that Community directives are seldom transposed in the national law of the Member States within the period they describe. The situation is made worse by the fact that in most Member States management of the environment law is considered to be an administrative question and that numerous circulars, administrative rules and other instruments obscure the transparency of this area of the law.(...)
Cases of non-conformity of national provisions with Community environment measures are relatively numerous. (...)
The most pressing problem concerns the practical application of environmental provisions by the Member States and the Commission's obligation to ensure that it happens".
(3) Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ L31 of 05.02.76, p.1).
(4) Council Directive 91/692/EEC of 23 December 1991 concerning standardizing and rationalizing reports on the implementation of certain Directives relating to the environment (OJ L377 of 31.12.91, p.48).
(5) On 15 September 1989, the Commission sent a proposal to the Council of Ministers and the European Parliament, for a Council Directive on civil liability for damage caused by waste, COM (89) 282 final - SYN 217 (OJ C251 of 4.10.89).
The Commission intends to present a Communication to the Council and Parliament on environmental liability, in the near future.
(6) The Commission proposal for a Fifth Environment Action Programme, "Towards Sustainability", COM (92) 23 final - VOL.II, of 27 March 1992, states on this issue:
"Individuals and public interest groups should have practicable access to the courts in order to ensure that their legitimate interests are protected and that prescribed environmental measures are effectively enforced and illegal practices stopped" ("Towards Sustainability", pp.76-77).
The Commission is currently preparing a proposal for a Directive harmonizing the conditions for standing of citizens and citizens' groups in the national courts on environmental issues. The Commission proposal will be sent to the Council and Parliament before the end of this year.
(7) EC legislation knows three legally binding instruments: the regulation, the directive and the decision.
According to Article 189 EEC:
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
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.
A decision shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions shall have no binding force.
(8) EC environmental regulations are the exception, rather than the rule. They have mostly been used to implement international conventions within the Community (see for instance: Regulation 88/3322 on CFC's, OJ 1988, nE L297, p.1; Regulation 88/1734 concerning export from and import into the Community of certain dangerous chemicals, OJ 1988, nE L155, p.2 and Regulation 82/3626 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora, OJ 1982, nE L384, p.1), or in the case of the proposal for a Regulation on existing chemicals (OJ 1990, nE C276, p.1) or in the case of the proposal for a Regulation on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1990, nE C189, p.9).
(9) "Direct effect" of a provision of Community law means that the provision is directly applicable in Member States without the adoption of any other national legislation thus directly conferring to citizens rights which the national courts have a duty to protect.
Regulations have "direct effect" according to Article 189 EEC, which states that Regulations are directly applicable in all Member States. Directives have "direct effect" only in some cases arising from the case law of the EC's Court of Justice. They have "direct effect" only if:
a) The Member State's obligation is unconditional and sufficiently clear and precise;
b) The provisions do not leave any substantial latitude or discretion to the national authorities;
c) The provisions are capable of being enforced as a rule of law by the courts.
(10) The Single European Act (1987) provided EC environmental policy for the first time in its history since 1973 with a solid legal basis in its Title VII (Environment), the Articles 130r-130t. The environment provisions in the Treaty have been reinforced by the Treaty on European Union (Maastricht, 1992), notably by its Articles B, 2, 3k and 130r-130t (new).
(11) Since the entry into force of the Single European Act in 1987, the Commission made only use three times of a Regulation, i.e. in the case of the proposal for a Regulation on the establishment of the European Environment Agency and the European Environment Monitoring and Information Network (OJ 1989, nE C217, p.7), in the case of the proposal for a Regulation on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1990, nE C189, p.9), and regarding the proposal for a Regulation on existing chemicals (OJ 1990, nE C276, p.1). See also: note (8) supra.
(12) See also: Rolf Wägenbauer, "European Community's prospects for enforcement of Directives", in: Proceedings (Volumes I and II) of the International Enforcement Workshop (May 8-10, 1990; Utrecht, The Netherlands), p.180.
(13) In its Report on the Proposal from the Commission for a Council Regulation on the establishment of the European Environment Agency and the European Environment Monitoring and Information Network (Document A 3-0027/90 of 5 February 1990; rapporteur: Mrs.Beate Weber) the Committee on the Environment, Public Health and Consumer Protection of the European Parliament tabled an amendment (No.18) to Article 2 of the draft-Regulation, suggesting the addition of a monitoring and inspection task to the proposed data-collection task of the Agency. The Commission and the Council rejected this amendment, with the argument that the enforcement task of the Commission is indivisible. It cannot be delegated to any other institution, be it within- or outside the Community framework. A compromise was finally found in Article 20 of Council Regulation (EEC) No 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European environment information and observation network (OJ 1990, L120, p.1), which specifies - inter alia:
"No later than two years after the entry into force of this Regulation, and after having consulted the European Parliament, the Council shall, on the same basis as this Regulation and on the basis of a report from the Commission with appropriate proposals, 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; (...)".
It has to be noted, that the terminology has been very carefully chosen: "associating in the monitoring of ... (etc.)", and not "monitoring of ...".
(14) See for details about the role of citizens and citizens' groups in the enforcement of EC environmental legislation: Chapter II below.
(15) E.g.: N.Haigh with G.Bennett, P.Kromarek and Th.Lavoux: "European Community Environmental Policy in Practice". Vol I Comparative Report: Water and Waste in Four Countries (A Study of the Implementation of the EEC Directives in France, Germany, Netherlands and United Kingdom), 1986, Graham and Trotman.
(16) Article 189 EEC.
(17) Statistics on complaints about infringements (C) and infringements of EC environmental legislation detected by the Commission's own inquiries (I):
TOTAL
C L 1985: 37 10 1986: 165 32 1987: 150 38 1988: 216 33 1989: 465 60 1990: 480 42 1991: 353 131
(Source: Ninth Annual Report on Commission monitoring of the application of Community law (1991), COM(92) 136 final of 12 May 1992, p.120).
(18) See: A. Kallia Antoniou: "Your Rights under European Community Environment Legislation", (1987), booklet prepared for the European Environmental Bureau (EEB), p.11.
(19) According to Article 170 EEC, a Member State which considers that another Member State has failed to fulfil an obligation under the Treaty, may bring the matter before the Court of Justice. However, it cannot directly go to the Court. First, it has to bring the matter before the Commission. Then, the Commission has to deliver a "reasoned opinion" after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party's case, both orally and in writing. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court of Justice.
(20) Ludwig Krämer, "Le droit à l'environnement et le droit communautaire", in: Proceedings of the International Conference Guaranteeing the Right to the Environment (Lisbon, 4-6 February 1988), Fundaçao Calouste Gulben kian, p.125.
(21) "The Environmental Imperative", Declaration on the Environment by the European Council (Dublin, 25-26 June 1990), p.9.
(22) The right of complaint to the Commission of the European Communities has been derived from the founding treaty of the European Economic Community, the Treaty of Rome (1957), and the practice adopted in its application.
(23) The right to petition the European Parliament is derived from Chapter XIV (Petitions), Rule 128 of the Rules of Procedure of the European Parliament.
(24) See: note (8) supra.
(25) However, the Commission proposal for a Fifth Environment Action Programme, "Towards Sustainability", COM(92) 23 final - VOL.II of 27 March 1992, proposes on page 76 that:
"An accessible and efficient complaints facility should be developed at local, regional and national level to improve confidence between public, competent authorities and industrial or business establishments. In this context, complaints should be considered less a nuisance than a resource. They are an indication to enforcement agencies of something amiss and can keep the competent authorities in touch with the realities of situations from which they may be geographically remote or which they are not in a position to monitor on a continuing basis".
(26) A. Kallia-Antoniou: "The Rights of Citizens and Non-Governmental Organizations arising from Community Environmental Legislation", overview prepared for the European Environmental Bureau (EEB), June 1987, p.15.
(27) Danish, Dutch, English, French, German, Greek, Italian, Portuguese and Spanish.
(28) See: A.Kallia-Antoniou, note (26) supra, p.16.
(29) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended.
(30) Minister of Agriculture, ministerial order 161377/1247/1985, Govt.Gazette No.214 Part II, and earlier orders on the same subject. See also: A.Kallia-Antoniou, note (26) supra, p.16.
(31) E.g. the Royal Society for the Protection of Birds (RSPB) in the United Kingdom.
(32) See: section I.2.3 supra.
(33) Article 171 EEC; see also section I.2.4 supra.
(34) See: note (1) supra, p.120.
(35) See: note (1) supra, p.120.
(36) During the European Year of the Environment (1987-88), the EEB launched quite an extensive campaign among its member-organisations to make them aware of the problems of implementation an enforcement of EC environmental legislation. This campaign consisted - inter alia - of:
the publication and distribution of a booklet on the right of complaint, called "Your rights under EC environmental legislation" (in French and English); the publication of a more extensive paper entitled: "The rights of citizens and non-governmental organizations arising from Community environmental legislation" (in French and English); the preparation of a paper on "Enforcement and compliance with EC environmental law" and the organisation - with help from the Commission - of a conference on this theme in London; and, last but not least, the organisation of an enforcement campaign in the Twelve Member States concerning three environmental Directives: the Bathing Water Directive, the Birds Directive and the Seveso Directive.
For each Directive, a manual was prepared in all nine official languages of the Community, and selected non-governmental organisations (NGO's) worked with this manual for about nine months in order to get an idea and an overview of the problems of implementation and enforcement of these three Directives in all Member States. All in all 36 different NGO's were involved in this campaign in the twelve EC Member States.
The results of the campaign were mixed, which is no surprise as it was the first time for most NGO's that they got involved in such a campaign. However, the campaign created a clear awareness on the side of the NGO's about the serious problems of implementation and enforcement of EC environmental legislation and about the role citizens and citizens' groups can play to improve the situation.
(37) See: note (25) supra.
(38) Petitions to the European Parliament are governed by Chapter XIV (Petitions), Rules 128-130, of the Rules of Procedure of the European Parliament. Rule 128 deals with "submission and referral of petitions"; Rule 129 concerns "examination of petitions", and Rule 130 regards "notice of petitions".
(39) European Parliament, Rules of Procedure (5th edition), July 1989, p.91.
(40) "Petitions shall be entered in a register in the order in which they are received if they comply with the conditions laid down in paragraph 2 (name, occupation,...,etc.); those that do not shall be filed without further action, and the petitioner shall be informed of the reasons therefor" (Rule 128, paragraph 3).
(41) See: A.Kallia-Antoniou, note (26) supra, p.19.
(42) Rule 128, paragraph 4.
(43) Rule 129, paragraph 1.
(44) Rule 129, paragraph 2.
(45) Rule 129, paragraph 3.
(46) Rule 129, paragraph 4.
(47) Rule 129, paragraph 5.
(48) Rule 129, paragraph 6.
(49) According to the summary minutes of the sitting of the European Parliament on 3.1.1986, PE 102.901, PE 50, Appendix I; see: A.Kallia-Antoniou, note (26) supra, p.20.
(50) See: A.Kallia-Antoniou, note (26) supra, p.21.
(51) See: A.Kallia-Antoniou, note (26) supra, pp.21-22 for examples of this.
(52) Rule 128, paragraph 4 of the Rules of Procedure of the European Parliament, on the other hand, does not make this restriction. It only stipulates, that petitions have to "fall within the sphere of activities of the Communities" in order to be admissible.
(53) Starting from the premise, that "everybody should know the law", the European Commission's Directorate-General Environment, Nuclear Safety and Civil Protection has just published a collection of texts of all EC environmental legislation up to 1 September 1991, in seven volumes, in English. It is the intention to publish this collection of texts in all other official Community languages by the end of 1992 in order to facilitate access of EC citizens to the texts of EC environmental legislation.
(54) OJ L158/56 of 23.6.90.
(55) European Parliament, document B2-736/85 of 16.07.1985.
(56) See: L.Krämer, "La Directive 90/313/CEE sur l'accès à l'information en matière d'environnement: genèse et perspectives d'application" dans: "L'économie et le social dans le marché commun", p.866.
(57) See: Bram van der Lek, "Democracy and the right to know", in: Proceedings of the International Conference Guaranteeing the Right to the Environment, (Lisbon, 4-6 February, 1988), Fundaçao Calouste Gulbenkian, p.173.
(58) European Parliament, document A2-208/87 of 10.11.1987; see also: L.Krämer, note (56) supra, p.867.
(59) European Parliament, Resolution of 22.01.1988, OJ 1988, nE C49, p.175; see also: L.Krämer, note (56) supra, p.867.
(60) OJ 1987, nE C70/1, paragraph 2.6.2; see also: L.Krämer, note (56) supra, p.867.
(61) OJ No C156 of 15.6.1987, p.138.
(62) OJ C328/1 of 7.12.1987, p.4, item (u).
(63) See: L.Krämer: note (56) supra, p.867.
(64) It was the aftermath of the accident with the nuclear reactor in Tchernobyl, and the public at large throughout Europe was calling for more openness regarding data on environmental pollution held by public authorities; see also: L.Krämer, note (56) supra, p.867.
(65) Originally, there was some discussion within the Commission about a "White Paper" on the issue, but this idea was almost immediately discarded, as the Commission felt very strongly that the time for lengthy studies and debate was over, and the time to act was there. Equally, the possibility of a Resolution was dismissed, as it is not a legally binding instrument. The Commission feared, that a Resolution would not change anything in the actual situation in the Member States. (See: L.Krämer: note (56) supra, p.868.)
(66) According to L.Krämer (see: note (56) supra, p.868), the Commission proposal should have been based on Article 100, Article 100a or Article 235 EEC, when looking at the objective and the contents of the proposal.
(67) See for the preference of the Commission for Directives in the environmental field: paragraph I.2.1 and notes (7) and (11) supra.
(68) A Regulation would have been preferable to a Directive, as it would have had the advantage of being able to guarantee the same right of freedom of access to environmental information to all EC citizens, in a uniform way, and (contrary to a Directive) directly applicable in all EC Member States. See in the same sense: L.Krämer, note (56) supra, p.868.
(69) See: note (59) supra.
(70) See: L.Krämer, note (56) supra, p.869.
(71) L.Krämer, (note (56) supra, p.869), however, points out quite rightly, that very often EC environmental Directives put obligations on EC institutions as well. The obligation on EC institutions that occurs most often, is the one requiring the Commission to prepare and publish a report on the implementation of the Directive.(See, for instance: Article 8 of Directive 90/313/EEC.)
(72) Commission, COM (88) final of 28 November 1988, nE 1b; see also: L.Krämer, note (56) supra, p.869, note (20).
(73) Article 3, paragraph 2 of Directive 90/313/EEC lists in an exhaustive way the reasons for refusal of a request for environmental information held by public authorities. These reasons are, when the request affects:
the confidentiality of the proceedings of public autho- rities, international relations and national defence,
public security,
matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation procee- dings,
commercial and industrial confidentiality, including intellectual property,
the confidentiality of personal data and/or files,
material supplied by a third party without that party being under a legal obligation to do so,
material, the disclosure of which would make it more likely that the environment to which such material related would be damaged.
Information held by public authorities shall be supplied in part where it is possible to separate out information on items concerning the interests referred to above.
(74) See: L.Krämer, note (56) supra, p.869.
(75) See: L.Krämer, note (56) supra, p.871..
(76) Article 1 refers to "information on the environment", while throughout Directive 90/313/EEC the notion "information relating to the environment" is used.
(77) Article 2(a) of Directive 90/313/EEC.
(78) See: L.Krämer, note (56) supra, p.872.
(79) Article 2(b) of Directive 90/313/EEC.
(80) See: note (75) supra.
(81) See: L.Krämer, note (56) supra, p.872.
(82) See: note (73) supra. Article 3, paragraph 3 adds two more formal reasons to the exhaustive list of reasons for refusal in Article 3, paragraph 2, i.e. where a request for information would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.
(83) Article 3, paragraph 4 of Directive 90/313/EEC.
(84) Article 4 of Directive 90/313/EEC.
(85) Article 5 of Directive 90/313/EEC.
(86) Article 6 of Directive 90/313/EEC.
(87) Article 7 of Directive 90/313/EEC.
(88) Article 8 of Directive 90/313/EEC.
As far as the Commission is concerned, it has committed itself to publish a "State of the Environment in the European Community"-report once every three years. The latest report in this series (COM (92) 23 final - VOL.III of 27 March 1992) was presented by the Commission to the Council and Parliament earlier this year. Moreover, EUROSTAT, the Community's office of statistics, is regularly publishing statistics on the environment.
The Community has also taken other initiatives to improve the gathering and dessimination of information relating to the environment. To this end, the Council adopted on 7 May 1990 Regulation (EEC) No 1210/90 on the establishment of the European Environment Agency and the European environment information and observation network (OJ 1990, L120/1 of 11.5.1990). The object of the European Environment Agency (EEA) and the monitoring and information network associated with it, is to provide both the Community and the Member States with objective, reliable and comparable information at European level on the basis of research and comparative studies to enable them to take the necessary measures to protect the environment, as well as to assess the results of such measures, and to ensure that the public is properly informed about the state of the environment. The monitoring and information network will involve as participants:
a national focal point nominated by each Member State;
elements from various national information networks; and
institutions which will be charged with cooperating with the Agency in specific topics of particular inte rest - these will be centres of excellence and are often referred to as the "thematic centres".
The European Environment Agency will be open also to countries outside the Community, which share the objectives of the Community and its Member States in relation to the environment. Already, there has been a very encouraging display of interest in participation on the part of a number of EFTA and Eastern and Central European countries.
(89) As a matter of fact, the Task Force European Environment Agency is currently preparing a state of the environment report regarding the "greater Europe", i.e. including the environment of Central and Eastern European countries, as part of the follow-up of the Dobris process.
(90) L.Krämer: "Participation of environmental organisations in the activities of the EC", in: "Participation Rights in European Perspective", Führ/Roller (Ed.), 1991, p.74.
(91) "Towards Sustainability", A European Community Programme of Policy and Action in relation to the Environment and Sustainable Development, COM (92) 23 final - VOL.II of 27 March 1992.
(92) "Subsidiarity" derives from Article 3b of the Treaty on European Union (Maastricht, 1992), which states:
"The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently 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.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty".
(93) See: note (91) supra, p.75.
(94) The Implementation Network comprises representatives of relevant national authorities and of the Commission in the field of practical implementation of Community measures; it will be aimed primarily at exchange of information and experience and at the development of common approaches at practical level, under the supervision of the Commission.
(95) The Environment Policy Review Group comprises representatives of the Commission and the Member States at Director-General level, and will be established to develop mutual understanding and exchange of views on environmental policies and measures.
(96) See: L.Krämer, note (90) supra, p.77.
(97) See also: L.Krämer, note (90) supra, p.77.
(98) See also: L.Krämer, note (90) supra, p.77.
(99) See: L.Krämer, note (90) supra, p.77.
(100) BEUC: "Bureau Européen des Unions des Consommateurs", was established in 1962. It is a European non-profit organisation representing some twenty consumers' associations in the EC Member States. Membership of BEUC is restricted to associations whose sole aim is to protect the interests of consumers and which are independent of governments, trade and industry. BEUC represents the interests of about 320 million consumers. Its objectives are to contribute to the proper observance of consumer legislation and to "hear and be heard" by the EC institutions.
(101) See: A.Kallia-Antoniou, note (26) supra, p.26.
(102) The European Environmental Bureau (EEB) was established in 1974. The EEB is a European non-profit organisation, regrouping at the EC level more than 120 non-governmental organisations working in the field of nature conservation and environmental protection from the twelve Member States of the Community, as well as from most EFTA countries. It thus represents about 30 million European citizens.
(103) Committee on Legal Affairs and Citizens' Rights, draft report on the award of damages to consumers, introduced by Mrs.Boot, Part II, Statement of Grounds, Appendix II, draft resolution tabled by Mrs.Dury, PE 104 304/B, 20.3.86. See also: A.Kallia-Antoniou, note (26) supra, p.27, note 44.
(104) See: A.Kallia-Antoniou, note (26) supra, pp.28-29.
(105) The creation by the Commission of the Consultative Forum, in order to implement the Fifth Environment Action Programme "Towards Sustainability", is completely in line with Chapter 27 (Strengthening the role of non-governmental organisations: partners for development) of Agenda 21, adopted last June in Rio de Janeiro, by about 160 countries in the world, as well as the European Community. Paragraph 27.5 of Agenda 21 reads as follows:
"Society, Governments and international bodies should develop mechanisms to allow non-governmental organisations to play their partnership role responsibly and effectively in the process of environmentally sound and sustainable development".
Annex 1
COMPLAINT TO THE COMMISSION OF THE EUROPEAN COMMUNITIES
against failure to comply with Community law
Name of complainant: *
Nationality:
Address or registered office:
Field of activity:
Member State, organization or firm which has not complied with Community law:
Alleged infringement and loss incurred (if any):
Approaches or representations made to national or Community authorities:
- Administrative action:
- Legal action (if any):
Documents and evidence substantiating the complaint:
----------------
* The complainant may, if he wishes, remain anonymous. But the author of an anonymous complaint will not enjoy the procedural advantages or follow-up described overleaf.
(Note to appear on back of form)
Under the Treaties the Commission of the European Communities is responsible for ensuring that the provisions of the Treaties themselves and the other measures taken by the Community institutions are correctly applied.
Any person may file a complaint with the Commission in respect of a practice or measure which he or she considers to be in breach of a provision of Community law.
The complaint may be filed by means of this form. It may be addressed direct to Brussels (Commission of the European Communities, rue de la Loi 200, B-1049 Bruxelles), or be lodged with one of the Commission's Information Offices.
The complainant enjoys the following procedural advantages:
- an acknowledgement of receipt will be sent immediately upon receipt of the complaint;
- the complainant will be kept informed of action taken, and particularly of representations made to the national autho- rities and business firms concerned;
- the complainant will be informed of any infringement proceedings commenced by the Commission against a Member State and of any proceedings against a business firm. The complainant will also be informed of any proceedings that may already have been commenced if they have a bearing on the subject of the complaint.