Digging beneath the surface: Transposition, implementation and evaluation of European environmental law

Abstract

Transposition and implementation of European environmental law by the Member States remains a significant concern, with both serious breaches in individual cases and general failures across the Member States to comply fully with obligations under directives. There are a wide range of reasons why Member States cannot, or will not comply fully with some obligations. These may result from the nature of the specific policy instrument that is generally preferred, the nature of the specific obligations, but also more general factors, which help to explain differences in compliance with obligations between, and within, Member States. Assessing compliance with obligations is a challenging task and there are some features of environmental policy which raise additional complexities. Whilst compliance with transposition and implementation obligations will remain a vital element in the effectiveness of policy interventions, over recent years there has been an increased focus on evaluating whether the obligations imposed are themselves a sufficient response to the relevant situation, and whether the effects of these have had the anticipated results. Understanding better why Member States fail to comply with some obligations, together with increasing attempts to evaluate the actual impacts of policy interventions, should help to improve the quality of European environmental regulation.

Keywords:

• European law
• directives
• transposition
• implementation
• compliance
• evaluation

Acknowledgement

The author is very grateful for the advice on earlier drafts of this article provided by Professor Stuart Bell of Nottingham Law School, Professor Robert G. Lee of Cardiff Law School, and Donald McGillivray of Kent Law School, and for the very helpful comments of the anonymous referees. Any errors remain, of course, the author's.

Notes

1. Former Commissioner for the Environment, Margot Wallström when presenting the Commission's proposal for a 6th Environment Action Programme in 2001 (europa.eu.int/comm/environ ment/newprg/, accessed 16 December 2005).

2. From a Treaty with no provision regarding the environment, to a Community action programme on the environment and the first legally binding instruments on environmental issues in the early 1970s, a specific legal basis for environmental measures in the late 1980s, to the increasing centrality of environmental policy as one of the main pillars of EU law. See, for example, Krämer (2000).

3. Such as the development of the European Environment Agency (albeit one without enforcement powers of its own), the exchange of information held by national agencies through IMPEL, powers for the ECJ to impose fines under the Maastricht Treaty, increased access to environmental information, and the gathering of information on implementation through the 1991 Standard Reporting Directive.

4. Council Directive 75/442/EEC of 15 July 1975 on waste (amended by Council Directive 91/156/EEC of 18 March 1991).

5. Commission v. Ireland (Case C-494/01) ECJ (Grand Chamber), April 26, 2005.

6. Though the many cases of serious failures to fulfil a variety of important obligations, albeit limited to specific areas or projects, suggest that this is unlikely.

7. Examples of attempts to improve compliance include: making compliance a pre-condition for access to certain EU funds, an example being compliance with the Nitrates Directive a prerequisite for grants under the Agri-Environment Programme; examination of the ‘regulatory chain’ with a view to the ‘designing in’ of compliance; and the use of new instruments for regulation, such as economic instruments (see Bell & McGillivray, 2005).

8. 91/271/EEC (as amended).

9. Directive 79/409/EEC and 92/43/EEC respectively. The figures are from the Fifth Annual Survey on the Implementation and Enforcement of Community Environmental Law (SEC (2004) 1025), referred to in Reid & Woods (2006).

10. The others being Denmark, Spain, Ireland and Finland.

11. Identifying the proportion of legislation which originates in Europe is very difficult, however. The proportions vary greatly between different policy sectors, of course, and conflicting figures have been proffered. For example, Bellis (2003) stated that more than 60 per cent of national legislation is of EU origin, whilst Clerk of the Delegated Legislation Committee (2005) stated that in 2004 only 16 per cent of Statutory Instruments were made under section 2(2) of the European Communities Act 1972. In the environment sector, estimates of 80 per cent have been used.

12. Though this finding is based on a European Commission Report from 1996.

13. The House of Lords noted in 1992 that implementation and enforcement of environmental legislation go to the heart of EU policy, but considered that European environmental law was being widely disregarded (House of Lords, 1992).

14. Although clearly of great importance to implementation, the mechanisms for enforcing the Member States' obligations is beyond the scope of this article.

15. The example given by Knill and Lehmkuhl is that of the Community's railway policy.

16. The examples given of each of these include: the Drinking Water Directive (80/778/EEC), precise; the Bathing Waters Directive (76/160/EEC), precise but with discretion; and the Environmental Assessment Directive (85/337/EEC), as ‘horizontal’.

17. Scott focuses upon the Integrated Pollution Prevention and Control Directive (96/61/EC). A further example is the Water Framework Directive (2000/60/EC).

18. Although the fact that the equal application of the three principles was not always apparent, but has emerged gradually through decisions by the ECJ, has itself caused problems.

19. Through the ‘Simplification’ initiative (discussed later).

20. Civil code drafters tend to draft more in terms of principle, or broad intention, than their UK counterparts, and the wording is then given a ‘purposive’ interpretation by the courts, rather than the ‘literal’ approach traditionally taken by common law courts. An example of such drafting is obligations to follow the ‘Precautionary Principle’ (Soriano, 2001).

21. Such as the agreement of BAT Reference, or ‘BREF’, Notes under the IPPC Directive (96/61/EC).

22. For example, some authors (such as, Bursens, 2002) include in ‘transposition’ all of the actions exercised to effect the relevant European law, leaving only ‘final implementation’ (which is the conforming behaviour of relevant actors).

23. Earlier actions can be unlawful, such as the taking of measures liable seriously to compromise the result prescribed by a directive, before the expiry of a transposition deadline (Inter-Environnement Wallonie (Case C-129/96) 1997 ECR I-7411).

24. Although relatively easily picked up, the stages in the process of enforcement mean that Member States will generally have at least a year beyond the initial deadline before proceedings are brought in the ECJ. Thus, ECJ declarations will result in only the most serious, or long-standing cases. There is also an issue of paper transposition and actual implementation, which is discussed below.

25. Such as the Commission v. Ireland case (above).

26. Such as drinking water standards.

27. These might be in the form of ‘target’ standards, where the standard is clear, but achieving this is not mandatory (an example being Directive 2002/3/EC relating to ozone in ambient air, which sets out standards considered to be non-mandatory by Defra, so there is an option to not transpose into domestic law; see DEFRA, 2003), or more generally aspirational, or otherwise unclear, so that the objective is not so clearly defined (an example of lack of clarity being the requirement not to issue authorizations “until it has been checked that the groundwater, and in particular its quality, will undergo the requisite surveillance”, under Art.8 of the Groundwater Directive (80/68/EEC), and an example of aspirational obligations being the requirement under Art.10(1) of the Wild Birds Directive (79/409/EEC) “to encourage research and any work required as a basis for the protection, management and use of the population of all species of bird referred to in Article 1”). With the former, the extent to which the obligation ‘bites’ is unclear, whilst with the latter, the content of the obligation is unclear.

28. See Commission v. UK (Case C-6/04) paras. 61–70, where the ECJ held that the ‘surveillance’ obligations contained in Articles 11 & 14(2) of the Habitats Directive (92/43/EEC) had to be transposed in a detailed, clear and precise manner, and re-stated the position that practice in conformity with the requirements of a directive which concerned protection could not constitute a reason for not transposing that directive into domestic law, so that the imposition of statutory duties were required to remove legal uncertainty and ensure that the obligation was complied with on a systematic and permanent basis.

29. The specific example referred to by Davies is the abandonment of infringement proceedings against the UK in relation to compliance of road projects, including Twyford Down, with the Environmental Impact Assessment Directive (85/337/EEC). Davies referred to Kunzlik's (1995) article considering this and to Scott's (1998, p. 151) note that Commissioner Ripa de Meana spoke out regarding political pressure in this case (at the time of critical negotiations on the Maastricht Treaty), following his resignation.

30. For a detailed consideration of the (lack of) accountability of the Commission, see Williams (2002).

31. Most notably in the rejection of the proposed EU Constitution.

32. Beginning with the Single European Act 1986.

33. An example of lack of clarity or certainty is the use of the phrase “good status” in the Water Framework Directive (2000/60/EC).

34. As noted above, whilst a European Environment Agency has been formed, this does not have enforcement powers, so that such actions are undertaken by national agencies.

35. Geographical—whether a Member State has a coastline, for example; geological—such as the nature and extent of groundwater within a Member State; political—relative importance of various political issues and values within a Member State, or the structure of political institutions and influence of political actors; social—such as the degree of urbanization; other aspects—such as the existence and relative importance of different industries.

36. For example, acceding states with problems in meeting the obligations imposed under the Nitrates and Urban Waste Water Treatment Directives were given extended time periods for doing so in the 2004 accession agreements.

37. Payments can be made under Cohesion Funds to the least prosperous Member States, and under Structural Funds (including Regional Development Funds) to all Member States.

38. As well as the numerous examples of public consultation exercises on drafts of primary and secondary legislation, and on policy guidance, which special interests may utilize, those particularly affected by a policy initiative may be consulted directly. One example of this is the circulation of a ‘revised draft Statutory Guidance’ on Part IIA of the Environmental Protection Act 1990 to persons and bodies invited to sit at a ‘Round Table’ meeting with the DETR in December 1998.

39. In the UK, a ‘compliance’ approach to enforcement is followed in general, with regulators seeking to achieve compliance through engagement with operators, with a preference for problem-solving approaches over formal sanctions (see, for example, Chapter 8 of Bell & McGillivray (2005)).

40. See the second section (above). That being despite the ‘lukewarm’ support for EU integration within the UK—examples of this approach being the decisions not to join the ‘Schengen’ arrangements and the Euro, and the electoral performance of anti-EU political parties.

41. That performance of obligations is through national constitutional rules.

42. See, for example, Transparency International (2005), which ranks the UK joint 11th out of 158 states surveyed.

43. An example of regional action resulting in enforcement action against a Member State for failure to fulfil its obligations is the case of Commission v. Spain (Case C-79/03), where a regional decree providing for hunting licences in Valencia comprised a breach of obligations under the Wild Birds Directive (79/409/EEC).

44. The main example being the relative tardiness of implementation within Northern Ireland.

45. One example is the proportion of land comprising nature conservation sites within different territories, with Scotland having a much higher proportion than England (see Bell & McGillivray, 2005).

46. Uncorrected transcript of evidence given by Defra to the House of Commons Public Accounts Committee October 19, 2005.

47. Relevant aspects of this ‘core’ include: Regulatory Styles—interventionist or mediating; and Regulatory Structures—vertical (centralized or de-centralized) & horizontal (concentrated or fragmented).

48. See the examples of failures set out in the Introduction to this article.

49. Though Accession States ‘shadow’ the ‘Acqis Communitaire’ for a number of years before becoming full members, and so have some familiarity and are required to comply with it in a general sense.

50. Bellis (2003) and Xanthaki (2001) discuss examples of poor drafting, including: pointlessly long, or misleading titles; overly long preambles, which sometimes repeat content (but with different terminology), or set out political objectives which are not reflected in the actual provisions; the use of ambiguous phrases; complex and sometimes unclear commencement provisions; and apparently contradictory provisions.

51. Uncorrected transcript of evidence given by Defra to the House of Commons Public Accounts Committee October 19, 2005, where the view that such problems were just facts of life and not specific to directives was also noted.

52. One example of the type of error which can happen is identified in the case of Cindu Chemicals (Joined Cases C-281/03 & C-282/03), where there was a potentially significant error in the English, French and German language versions of the Biocidal Products Directive (98/8/EC).

53. Uncorrected transcript of evidence given by Defra to the House of Commons Public Accounts Committee October 19, 2005. Whilst civil law systems may seem to place a premium on certainty in one sense—the primacy of written laws over judge-made laws—the main difference between the two types of legal system with regard to legislation is that the civil law tradition tends to utilize abstract concepts and general principles which are applied by the courts in individual cases through deductive interpretation. Common law systems tend to strive for greater ‘certainty’through detailed definitions in legislative drafting. These approaches reflect the traditional approaches of the two systems and there have been suggestions that these approaches are converging. The detailed approach of drafting in the UK is also a product of the principle of Parliamentary Sovereignty (Soriano, 2001).

54. Although, in the UK, primary legislation is needed where the limitations on use of s.2(2) of the European Communities Act 1972 require it.

55. Where domestic legislation has been the result of a lengthy and controversial legislative process (such as with the Wildlife and Countryside Act 1981), the temptation not to readjust and codify existing domestic law is particularly understandable (Reid & Woods, 2006).

56. Dimitrakopoulos based this upon an interview with a civil servant in 2000.

57. See the Government Response to the Bellis Report (found on p. 48 of the 2004 Pre-Budget Report), and National Audit Office (2005).

58. Defra has stated that it would normally take advantage of any derogation on offer in a directive in order to delay transposition (uncorrected transcript of evidence given to House of Commons Public Accounts Committee October 19, 2005).

59. Which suggest that the problem originates in Whitehall, rather than Brussels.

60. A good example of this is Commission v. UK (Case C-6/04) where the UK had transposed an obligation with regard to ‘deterioration’ of breeding sites or resting places by using the word ‘damage’. Although the Commission's case included inter alia a submission that this failed to transpose properly Article 12(1)(d) of the Habitats Directive (92/43/EEC), the ECJ noted that the domestic provisions comprised a strict liability offence, and found that the Commission had failed to prove that those provisions were limited to deliberate or intentional acts (see paras. 71–78).

61. Which might be inappropriate in any event. It can, however, provide non-binding guidance on interpretation, such as that published in relation to Article 6 of the Habitats Directive (92/43/EEC) (see European Commission (2000), which sets out clearly the nature of the guidance, together with its limitations in effect. Other examples of directives on which non-binding interpretive guidance has been provided are the RoHS and WEE Directives (2002/95/EC and 2002/96/EC), and “clarifying the application” of Article 2(3) of the EIA Directive (85/337/EEC).

62. An excellent example of this is the wording of the ‘Development Risks’ defence in the Consumer Protection Act 1987, where the House of Lords re-instated the Product Liability Directive (85/374/EEC) wording into the Bill, expressly stating compliance concerns, but the Government reverted to an alternative (more business-friendly) wording in the final stages. This wording was subsequently the subject of (unsuccessful) infringement proceedings in the ECJ. For a description of these events, see Howells & Mildred (1998).

63. One of many examples of guidance used in an attempt to provide additional certainty where wording in a directive and implementing legislation lacks certainty is that found in DoE (1994), which includes guidance on the definition of “Waste” (a term used in the Waste Framework Directive (75/442/EEC) and the source of great uncertainty) in Annex II.

64. This has not traditionally been the case for environmental directives, though there are examples of substantial copy out, such as the Groundwater Regulations 1998 (S.I. 1998/2746), transposing the Groundwater Directive (80/68/EEC), though dovetailing with existing provisions, so that waste operations are regulated under the Waste Management Licensing Regulations (S.I. 1994/1056) (following years of a more complex elaborative approach), and the Surface Waters (Shellfish) (Classification) Regulations 1997 (S.I. 1997/1332), transposing the mandatory provisions of the Shellfish Waters Directive (79/923/EEC).

65. An extreme example of this is the transposition in Gibraltar of obligations under the Groundwater Directive (80/68/EEC) where the reporting requirements imposed on the Commission were repeated in the domestic regulations.

66. See the announcement by EU Enterprise and Industry Commissioner Verheugen on November 25, 2005, and European Commission (2005). This shift of emphasis also happens to reflect citizens' concerns about a growing and more integrated EU and (more significantly) economic concerns regarding international competitiveness, and so there may be a large element of political expediency here as well.

67. ‘Encouraging the Market to Work for the Environment’ (section 2.3 of European Commission (2005)).

68. For a history of deregulation and attempts to provide ‘better’ regulation at national, EU and OECD levels, together with critical analysis of these efforts, see Baldwin (2005) and, as an example of the more recent steps taken with regard to simplification at EU level, see European Commission (2002).

69. This is to include repeal of national implementing measures, and even prohibition on national regulation of areas identified for de-regulation at the EU level.

70. With Waste one of the first sectors to undergo this process.

71. The Water Framework Directive (2000/60/EC), with Member States given a large amount of discretion in achieving the objectives set, could be an exemplar for this.

72. Where objectives are broad and non-quantifiable, such as those found in Article 4 of the Waste Framework Directive (75/442/EEC) (as amended).

73. Based very closely upon that of Weale's, reproduced in Jordan (2002).

74. As may often be the case with Framework Directives.

75. For example, if there has been a boom in one but recession in another, it should be possible to identify causal links between the state change and economic fortunes and so accommodate these in the evaluation.