UPGRADING ENVIRONMENTAL LAWS IN FRANCE ACCORDING TO THE REQUIREMENTS OF THE EEC
P. KROMAREK
Director of Environment, Elf Aquitaine, Tour Elf Cedex 45, 92078 Paris, France
1 INTRODUCTION
The EC directives set forth obligations to the member States to be met through their governments. These governments must enact regulations for their citizens in order to provide, for example, the protection of bird species within a designated area, or to guarantee that waste disposal will not cause harm to the environment, or to ensure that waste producers will observe the applicable environmental requirements. Governments must also establish mandatory limits on maximum concentrations of pollutants emitted into the water or the air. They must appoint qualified authorities to oversee the practical application of the rules. They must establish administrative procedures, measurements, analysis methods, etc...
The enforcement of EC measures takes place through German, English, French, Dutch and the other countries' regulations. These national regulations must be followed by the people to whom they apply. The means of enforcement are therefore different from country to country, with some similar characteristics.
2 EFFECT OF EC LEGISLATION ON NATIONAL REGULATIONS
From a legal point of view, it is quite obvious that EC legislation has had an important effect on national regulations:
1. When no national legislation is applicable - when an EC directive regulates an issue which is not regulated internally by a member State - the relevant regulations must be created. In France, for example, it was necessary to establish rules about the prevention of major industrial accidents in order to implement the strict EC directive on accident prevention. Also many countries such as Greece, Spain, Portugal, and even Germany and Britain had to establish a procedure for environmental impact statements.
When a directive is passed and member States already have relevant legislation, the case is more complicated. It has been pointed out several times that it is much more difficult to change existing legislation and practices than to introduce new EC legislation where no national laws have been adopted.
2. The implementation of the directive on environmental impact assessments illustrates this situation very well. When the EC decided to propose to the Council a directive on environmental impact assessment, France already had a decree on this subject. The French system obviously served as a model for the community directive. The final version of the directive was adopted in 1985 and the general opinion was that it corresponded in many ways to the French regulations. However, some elements of the directive were not fully transcribed into the French decree, such as the requirement for a trans-border consultation when projects submitted to an impact study could have an impact on another country. The requirement of submitting a written non-technical summary of each study was not applied in France. Other small differences appeared after an in-depth examination and comparison of the two regulations.
3. Another example of a problem with compliance is the directive on free access to environmental information, which was adopted in June 1990. The French law on free access to administrative documents passed in 1977 contains many points which are in line with the requirements of the EC directive. It makes information from government authorities - including environmental information - available to the public. But the French meaning of "free access" to information depends on the nature of "administrative documents". The Courts and a specific legal body called the "Commission of Access to Administrative Documents" interpret the meaning of "documents". If information held by government authorities is not recognized as having the required characteristics of a document, it is not covered by the free access regulation. On the other hand, the directives give a wide margin for the administrative authorities to refuse information requests on the grounds of confidentiality for business reasons. The French meaning of confidentiality is not clearly defined and is often subjected to legal interpretation. This ambiguity makes the implementation of the directive uncertain and difficult.
4. I would like to emphasize this problem of wording in the EC environmental regulations. It often causes problems in implementation because the member states often do not have the corresponding tool - the appropriate legal institution - or do not know the concepts. One of the more glaring examples is the problem of liability. The concept of responsibility varies from state to state. Liability based on fault is of course established in every country. Liability for risk, or even objective liability, is recognized in certain states. The proposed directive on liability related to waste introduced a concept of liability without fault. Facing opposition from the industries, ranging from waste producers to waste-elimination industries and insurance companies, and also responding to objections from the European Parliament, the Commission has established numerous exceptions to this proposal. Even with these exceptions, if the directive were to be adopted, the inclusion of this form of liability will pose serious problems to most of the states. One can imagine that the same difficulties will arise in applying the directive on liability for defective products, because of the differences between liability and substantiating facts.
5. The same problems of interpretation occur for the "best available technologies" (B.A.T.) mentioned in several directives but left undefined. Does the word "available" include economic aspects? Does it refer to specific legal procedures, such as patents? What does "best" mean? In relation to what is it evaluated? A certain consensus has existed until now, but in fact the interpretation of these concepts varies from state to state.
Since the B.A.T. is a condition imposed by the directive on the granting of authorizations, it is the administrations responsible for these authorizations which, de facto, define these technologies. There are many more examples. Only through the coordination among the administrations can there be a common concept, if the ministries concerned do not themselves decide on the best available technology. But it is clear that a definition of the concept interferes with adaptation to technological progress. If the best available technologies are defined for each industry, the companies will make it their goal to acquire these prescribed technologies and make the best use of them, but they have no incentive to seek superior technologies or to use new technologies which might be more efficient.
6. All these problems of interpretation are difficult to solve especially with 12 states having different legal, technical and economic practices. However, help can be given before the legislative process, during the drafting of the regulations. This point will be discussed in later sessions of this conference. Still, I must emphasize now the importance of an exchange between the Commission officials, especially the General Directorate XI, and the economic and industrial parties concerned. Such an exchange has already taken place, but - without going into too much detail - it needs a great deal of improvement. It needs to be more extensive and take place on a more regular basis. For example, the problems of practical implementation must be discussed, also the difficulties of interpretation of terms, and thus the legal transposition once the regulations are drafted.
7. Another enforcement difficulty arises when a state is reluctant to comply with a Court decision. Some member states like Belgium have been found guilty twice before they obeyed a court decision. It happened once in France with the directive on bird protection. The Court handed down its decision in 1988 (Case 252185), but some of the corrective measures have not yet been carried out. The lack of EC policy governing the compliance with Court decisions is obviously an obstacle to the proper execution of these decisions. Only the legal and political conscience of the individual governments compels them to comply with the courts and take the necessary measures. But in some cases, there is a psychological effect which must be mentioned, although it is not an excuse for breaking the law. The directive on the protection of wild birds requires governments to designate protected areas for bird habitats and ban certain activities which can endanger the life or reproduction of the birds. Certain forms of hunting are completely banned. The concept of "traditional hunting", meaning an ancestral way of hunting involving only certain categories of birds in specified regions, is not included in the directive. On one of the points of criticism of the Court, hunters in France consider that this concept justifies the practice in the southern region of capturing certain birds, and that this type of hunting is so limited that it does not jeopardize the survival of the species. No solution has yet been found for this conflict. This is a good example of how national or regional culture and mentality play a role in the successful enforcement of European Community environmental legislation.
8. The environmental legislation of the European Community has had considerable impact on the French legislation on environmental protection, especially from a strictly legal point of view. It is quite obvious in the light of three recent Court of Justice decisions in Luxembourg. A brief summary of the legal framework in France is needed in order to understand the case. Following the standard European model, a law is adopted by the Parliament. It becomes more precisely defined through a series of implementation measures taken by the government and the administrative branch. "Decrees" are passed by the government, and "orders" are given by one or several ministries or by a prefect (the head of the local or regional government). Both decrees and orders specify the rights and duties of the citizens or the parties involved. Memos are issued by the ministries or the prefects to advise their administration how to implement the decrees and orders. They are not usually legally binding for third parties.
In the matter of environmental protection, the main legal framework is provided by five major acts concerning:
(1) Industrial installations which can cause environmental damage, 19 July 1976,
(2) Water management, 16 December 1964, modified 3 January 1992,
(3) Prevention and treatment of waste, 15 July 1976, modified 13 July 1992,
(4) the Nature Protection Act, 16 July 1976 and
(5) the Chemical Law, 12 July 1977.
There are specific decrees for the application of each of these laws, and memos advising the administrative bodies how to apply them.
When the air quality directives were adopted, in 1979 for SO2, 1982 for NOx and 1983 for lead , these directives had to be transcribed into French law. The Act on industrial installations provided the necessary legal and administrative framework to comply with the regulations, but it established no limits for SO2 or lead in the air. This oversight was perpetuated through the memos. The Commission issued infringement procedures against France - as it also did against Germany for the same reason - arguing that ministry memos are not legally binding and should not be used. The Court decided in favor of the Commission. The obligation of member states to set maximum limits of emissions into the air "is established in order to protect the public health". The directives "aim to define the rights and obligations of individual citizens". In order to exercise their rights, the citizens must have knowledge of them. "The steps taken on the national level must therefore create precise, clear and transparent situations". Since a ministry memo does not have a legally binding effect, the legal situation it creates does not meet the defined criteria (Cases C13/90, C14/90, C64/90, 1 October 1991).
France was therefore made to replace the contested ministry memos with decrees. Germany faced the same problem after being found guilty on 30 May 1991 (Cases 54/89 and 361/88).
9. So far we have discussed cases in which a member state is faced with EC legislation more strict than its own national legislation. But what about the opposite? Can a member state be forced to give up a high protection level if the Community standard is less stringent? The EC is a common, single interior market without borders among 12 states, and no trade restriction is admitted. Therefore, there must not be any product specifications or requirements which might hinder the free movement of goods within the EC. When France decided on environmental grounds to oblige waste oil producers to recycle the oil or burn it only in very specific cases, this was not considered to be contrary to the waste oil directive that made no distinction between the treatments of waste oil. At the same time France forbade the exporting of waste oil, arguing that oil burning might not be done elsewhere in an environmentally-friendly way. The Luxembourg court considered this ban to be a violation of the principle of free movement of goods (Case 240/83, AD BHU, 7 July 1985, p531).
Environmental requirements have priority over the principle of free movement of goods under certain circumstances. This was shown in the Danish case on beverage packaging (Case 302/86, commission of Denmark, 20 September 1988, p4607). The court decision had officially recognized that environmental protection is a matter of general interest, an "imperative requirement", and must be considered as having the same priority as freedom of movement.
The European Single Act confirmed this opinion by introducing the principle that member states may adopt more protective measures than required by the EC but that they must respect the Treaty. This refers to the general principles of the Treaty of Rome and the Single Act. Consequently, stronger regulations in the member states must not be discriminatory against any other member state or disproportionate to their goal.
For rules concerning industrial installations and not products, there is no known Court case. The same principles must obviously apply, but the free movement of goods would be less affected by stronger environmental rules than the free competition among companies, which is also a basic principle of the EC. Demonstrating a violation of this principle is much more difficult than proving an obstacle to commerce, which probably explains why there is no litigation on record. The French legislation on major industrial accidents is very strict and goes beyond the EC directive's requirements, but it remains uncertain whether the situation leads to an imbalance of competition.
10. Let us now take a look at the practical impact of the EC regulations on the environment. It is clear that the consequences have been felt in terms of actions and policies.
The directives have not changed the French administrative framework, nor have they led to the creation of new authorities, unlike what happened in countries which did not yet have advanced environmental regulations. But the directives have led to changes of administrative procedures in relation to impact studies, hazard studies, and freedom of information. These changes have been more or less far-reaching depending on whether the French regulations already complied with the corresponding EC requirements.
The EC directives have had a greater effect on the extent of the controls required of administrative authorities and industrial users. These requirements involve the monitoring of emissions and the analysis of environmental quality. It goes without saying that these obligations have led to better information on the immediate environment by requiring that more parameters be analyzed than before, more frequently than before. The quality of bathing water has become better known, and subsequently improved, due to directive 76/160 on bathing water quality.
Similarly, by obliging the states to draft quality improvement plans for air and water, by reducing emissions of dangerous substances into water or air, through plans to eliminate wastes, by determining reinforced protection areas for certain wildlife species, or for regions with more heavily-polluted air than elsewhere, the various directives have also contributed to an awareness of the necessity of global environmental management in time and in space, on a longer term basis.
3 CONCLUSION
In conclusion, it must be stressed that enforcement of EC environmental laws is not an exercise for its own sake. It goes beyond complying with limit values, staying within maximum concentrations and so on - it is a means to protect the environment as a common interest, while protecting individual rights.