Begegnungen
Schriftenreihe des Europa Institutes Budapest, Band 20:105–112.
GYULA BÁNDI
Implementation of the Requirements of the Environmental Acquis Communautaire
Shaping the environmental acquis of the EU into domestic law is approaching its completion. From the second half of 2000 onwards we have made dozens of legal norms expressly corresponding to Community law, with a reference regularly included in the closing provisions as follows:
“The order, in harmony with Article 3 of Act I of 1994, promulgating the Europe Agreement on the establishment of association between the Republic of Hungary and the European Communities and its Member States, signed on 16 December 1991 in Brussels, contains regulations that are compatible with the following legal rules of the European Communities ...”1
However, the question is not only whether a regulation can be harmonised with EC law, but also how far it is implemented in practice, and whether it is implemented at all. “The process of legal approximation is generally described as containing three elements: transposition, implementation, enforcement ... Effective transposition at first requires the understanding of the practices and abilities of implementation and enforcement, second, the legal text itself also considers implementation and enforcement...”2 One of the perhaps best known experts of environmental legislation has written the following about it: “The implementation of environmental legislation is the greatest problem facing environmental legal experts today. They maintain that the national, EU and global environments would be in a much better condition if all the regulations aiming at the protection of the environment were effectively implemented.”3
Consequently one may not be surprised at why the Sixth Community Environment Action Programme4 considers the implementation of the currently existing legal norms as one of the five strategic areas deserving special attention.5
For the sake of comparison it is worth mentioning that the Fifth Action Programme (1993-2000) had already dealt with the issue of the enforcement of Community law, grouping proposals related to the necessary changes under four major headings:
Tasks related to legislation itself were put into the first group in order to achieve the improvement of law making, as efficient law enforcement can only be expected on the basis of adequate legal norms. The Action Programme classified the following as such:
– A profound selection and preparation of the legal institutions;
– The need for adequate consultations before the acceptance of various legal instruments and standard regulations;
– During the course of legislation regulations related to law enforcement should be arranged for;
– Following legislation programmes serving also practical assertion directed towards the regulatory area in question should be developed, such as work sessions.
The enforcement of Community law would primarily require the following according to the Programme:
– Transposition to national law
– Programmes and control programmes for the reduction of pollution
– Development of organisations and processes of law enforcement
– A system of reporting on the implementation of Community law
– Supervision of penalties and other sanctions
– Transparency, particularly in the sphere of licensing.
The above sequence is an interesting mixture of legislative tasks, institutional development and practical issues hence it cannot be regarded as a uniform one. This is not surprising as the previous Action Programme was far less concentrated; in addition to a number of overly general questions it contained several details without a proper order of precedence.
Generally speaking the Sixth Action Programme is far more purposeful, it pays attention to a less number of areas and devotes less volume to individual issues.
It is the development of the complex system of legal institutions that figures in the first place among the issues of the implementation of law, and that too meeting the principle of the ‘polluter pays’ in a broad sense of the term. As the author of the present writing I have dealt with the principle and the complexity of the legal institutions, or the principle of responsibility in other terms, similarly and at several places,6 hence I consider the proposals of the Programme as eminently important. The complex system of legal institutions extends from prevention up to the development of systems of responsibility far more rigorous than the current one. If the Action Programme is scrutinized from this aspect it turns out that in fact not a single instrument can be left out, on the one side the voluntary means should be mentioned, whereas at the other end there are the strict rules of the penal code and of liability for damage. With the latter ones the Community has reached an area that has been consistently left out of its sphere of interest.
A broad scale of legal institutions, together with legislation comprising a significant area, also demand the establishment of the internally harmonised system of legislation. Eminent examples to it are offered by those areas of Community legislation that by themselves demanded the development of a system: framework rules and a series of detailed rules based on them such as the framework directive on the quality of air7, the water policy framework directive8, or waste management that had been the first among the framework directives.9 Framework regulation is a clear indication that it is necessary to set up a system for the already large number of environmental rules.
Internal harmonisation consists at least of two elements: namely harmonisation within environmental law, for instance the establishment of an identical level of requirements, so that the proposition of the preamble of the IPPC Directive10 should not become reality in that the difference of requirements may allow for transferring pollution from one environmental media to another. The other element is harmonisation between environmental law and other areas not characteristically in the field of environmental law a nice example of which is found in the most recent regulation of environmental impact assessment11, seeking a solution for a practical problem emerging in relation to the approvals of specialist authorities, when Para 2 of Article 8 authorises the environmental authority: “If the stands of specialist authorities are not unambiguous or have got into contradiction with each other, the inspectorate will call a conciliatory meeting if necessary.” It was necessary because the current regular rules of the procedures of public administration have not contained stipulations for such cases.
The Sixth Action Programme separately deals with the voluntary means of self-regulation, of which here only a brief thought for laying the foundations is expressed: “legal regulation and the market effects jointly develop such a background regulation based on which users of the environment realise similar requirements of regulation by the organisation of their own activities like the state would in traditional regulation, but the acceptance and observance or these regulations is partly the result of one’s own decision, hence the choice of aims and means is also based on one’s own decision.”12
According to the Programme the full implementation and enforcement of the existing Community law enjoys top priority in the currently valid ten-year cycle. One element is to initiate legal procedure against Member States exploring legal violation by the EC Court of Justice.13 Cases brought to the Court of Justice have a clearly law promoting role, as the transposition of Community law does not merely mean legal norms, but in addition the acquis communautaire contains judicial practice emerging as a result of processes against the violation of law or for the interpretation of law.14
In the following cases will be selected precisely of that judicial practice in order to call attention to the fact that so far that area has not been given adequate emphasis.
The first question is how Community law should be made part of domestic law. In the case of The Commission of the European Community versus Germany15 the respective EU legislation was the Council Directive 80/779 on the limit values and guiding values of the quality of air concerning sulphur dioxide and loose dust. The Member States were obliged to pass legislation meeting the requirements set by the Directive and to implement the Directive within two years of its promulgation, that is prior to 18 July 1982. The Commission was of the view that Germany did not fully comply with the requirements of the Directive, and among others it made legal norms that were not generally binding. Representatives of the German State argued that their Act on protection against pollution passed in 1974 and the measures taken for its implementation met the aims of the Directive. The Court pointed out that practice corresponding to the requirements of the Directive could not serve as a basis for waiving the introduction of adequate legal norms. These legal norms had to be precisely worded, clear and transparent, since they could offer a possibility for the individuals only if they get acquainted with their resulting rights and duties. The legal implementation of the Directive could be assured only by the creation of such a legal environment. The circular on administrative practice, referred to by the German party, as a means of implementation, obliged the authorities to act only in the case of certain specified actions and facilities. Therefore the Court stated that there had been no compulsory legal norm of general validity in the German legal system that would oblige the authorities in every case when there was a possibility for transgressing the limit values.
The backbone of the Court’s argumentation is the finding that the primary justification for the creation of the Directive and its aim was to protect human health. And the individuals can only take action in the defence of their rights if the Member State passed legal norms based on the Directive that would make these rights unambiguous. That right offers the possibility for all not to trespass the limit values. The Court had drawn the conclusion that in each case, when the Directive established rights and duties for individuals, they should be introduced into the national legal system by clearly worded legal norms containing specific stipulations.
The other basic question pertains to the time of the introduction of the legislation. Community legal norms always contain a stipulation saying when a given regulation would enter into force. In the case of Regulations, to be directly implemented, the date of entry into force is usually the day of promulgation in the official journal of the EU. In the case of Directives, which are the most frequent means of legal approximation, it is obligatory for the Member States to report to the EU on the observance of the deadline indicated by the Directive, and on the implementation of measures necessary up to that date as the implementation and enforcement of those regulations will take place following the expiry of the deadline.
In the case discussed here16 a Belgian environmental organisation, the Inter-Environnement Wallonie ASBL turned to the Court of Justice with a complaint against the Walloon Province arguing that the legal solutions related to waste were inadequate. The issue was related to the definition of waste, as it is the case so many times, and challenged the differences in the conditions of licensing. The issue we are concerned with at present, from the aspect of legal approximation is even more interesting than the definition itself, because the licensing rule, not corresponding to Community law, that is waiver from licence, was passed at a time when the given two years to the transposition of Community law were not yet over. Thus the question is whether it is possible to pass a rule contrary to the Community regulation during that period of time. The issue resembles the question of advance reservation. The Court clearly took up the position that during the period available for transposition only such measures could be taken that would promote the smooth implementation of the Directive despite the fact that the deadline was not yet reached.
Certain issues of interpretation create eternal problems, and particularly the proper use of definitions is a recurrent one. In this area several cases could be quoted17, but now that one is to be analysed in which an issue of interpretation with the demand for the permanent clarification of definitions was submitted by the Dutch Council of State, and was related to an administrative procedure launched by the A. M. L. van Rooij against the Dommel Water Authority.18 The essential issue of the procedure was the assessment of pollutants let into an aquatic environment. The key issue was that according to the private individual the authority wrongly interpreted the definition of discharge when it took measures in the interest of protecting surface waters. In this context the definition of pollution was also one of the bases of the dispute. Pollution means the discharge of pollutants or energy, directly or indirectly into the aquatic environment and as a result human health may be endangered, the live components of the environment may be damaged, property value may be damaged, and legal uses of water may be endangered.
According to the private individual the steam released by the impregnation of wood contains hazardous material that would directly get into the surface waters from steam, or indirectly, by precipitating on the soil and plants, thus discharging hazardous material again into the aquatic environment, should, by all means be judged on the basis of rules related to discharging hazardous materials into the aquatic environment, hence it is an activity requiring license. The Court of Justice approved both suppositions of the private individual, noting that the distance between the pollutant source and the surface water might be taken into account, namely to what extent it could be foreseen that pollutants would get into the water.
Definitions are mixed up with the interpretation of positive regulation in the case that was presented by the High Court of Public Administration of Schleswig-Holstein in the Wilhelm Mecklenburg and Pinneberg District v. Der Landrat, where Der Vertreter des Öffentlichen Interesses, Kiel19 was presented as intervening. The issue was linked to Directive 90/313/EEC, regulating the freedom of information on the environment. The plaintiff of the case, Mr Mecklenburg wished to be acquainted with the consent of the regional landscape conservation authority as special authority granted to the licensing process of the building of the so-called “Western passage”. His request was rejected for the stand could not qualify as ‘information on the environment’. The Court of Justice however saw the issue differently, considering the stand of the landscape conservation authority as a special variant of information, and a special measure of public administration the purpose of which was to protect the environment, as their stand was to influence the outcome of the entire process. In relation to the same question even the possibility emerged that the related information could not be disclosed because the stand was part of the so-called ‘preliminary process of investigation’ and as such it was not freely available. The Court however had set the framework of that kind of qualification very narrowly when it exposed that only those processes could qualify as such that immediately preceded the basic procedure and it was needed to serve as collecting certain proofs before the procedure of public administration began.
Of the numerous possible examples related to the transposition of legal norms a case related to environmental impact assessment is discussed as the last one that emerged between the Commission and Ireland.20 The Court of Justice studied the Irish situation in particular great detail, and especially those issues of delimitation within it that would help in deciding when an impact assessment was to be conducted. In certain cases Ireland, such as semi-natural areas serving also agricultural purposes, afforestation, etc. linked delimitation to a measure given in exact figures like the size of the area that neither the Commission nor the Court considered acceptable because it did not reflect the actual sensitivity and importance of the areas. In fact it is the criterion of significant environmental impact that is in the focus of the issue hence it cannot be decided upon by numerical data set in advance because it does not respond to risks and disregards accumulating impacts as well. Thus the points of selection for side issues cannot be squeezed within absolute limits.
All of the above examples offer good lessons and clearly indicate how profoundly the Commission and next the Court of Justice would explore the background meaning of definitions on the one hand, and penetrate into detail on the other. All this is a warning that it is not enough merely to translate and transpose Community positive law but its real meaning should also be studied, and then implemented accordingly.
The Sixth Action Programme also mentions some additional questions in relation to the implementation of law, that are merely listed below this time:
– It is not only legal procedures that represent the only safeguard of law abiding, as transparency, positive examples, giving adequate information, etc. should also be classified under this heading.
– The role of environmental penal law should be strengthened, and in general the issue of liability.
– Experience and the exchange of the practice of the proper implementation of law among Member States may also have good results.
The unambiguous message of the above contents is that there are quite a number of tasks in domestic law too, and not only in the field of legislation. The circumstances, procedures and conditions of the implementation of law should be further developed, the position of the environmental authority should be strengthened, including experts, means, finances, but also the organisational framework of integration should be adequately created, or the handling and protection of the elements of the environment separated.
Notes
1
For instance 21/2001. (II. 14.) Government decree on some rules related to the protection of the air:
Item 29. The order, in harmony with Item 3 of Act I of 1994, promulgating the Europe Agreement on the establishment of association between the Republic of Hungary and the European Communities and its Member States, signed on 16 December 1991 in Brussels, contains regulations that are compatible with the following legal rules of the European Communities:
– Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management;
– Council Directive 91/692/EEC of 23 December 1991 modifying the Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants;
– 97/101/EC: Council Decision of 27 January 1997 establishing a reciprocal exchange of information and data from networks and individual stations measuring ambient air pollution within the Member States;
– In its sphere of regulation the order contains compatible regulation with the Council Directive 96/6/EC of 24 September 1996 concerning integrated pollution prevention and control.
2
Handbook on the implementation of EC Environmental Legislation, 2000. Published by the Commission of the EC, 2. Chapter on the ‘Implementation and the accession process’. p. 8.
3
Ludwig Krämer: Az Európai Bizottság szerepe a közösségi környezetvédelmi jog átvételének ellenőrzésében. Európai Jog, No. 3, 2002, p. 3.
4
The Action Programme has been adopted by the Decision No 1600/2002/EC of the European Parliament and of the Council on 22 July 2002, laying down the Sixth Community Environment Action Programme.
5
See more in detail in: Fodor, László: Kezünkben a jövőnk – az Európai Közösség 6. környezetvédelmi akcióprogramja /Our future is in our hands – the Sixth Community Environment Action Programme/. Európai Jog, No. 4, 2001.
6
“Based on the principle, the means of liability must be implemented in the possibly most complex way so that the acceptance of liability by those burdening and polluting nature should be as full as possible. Liability does not only manifest itself in the literal, material sense of payment but in activities or even in personal liability. Thus the principle of the polluter pays is interpreted as the synonym of the principle of liability because both serve an identical aim in the spirit of complexity mentioned above.” Bándi, Gyula: Környezetjog /Environmental Law/ OSIRIS Publishing House, 2002.
7
Council directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management.
8
Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy.
9
Council Directive 75/442/EEC of 15 July 1975 on waste.
10
Council Directive 96/61.
11
Governmental regulation No. 20/2001. (II. 14.)
12
Bándi, Gyula: Környezetjog /Environmental Law/ OSIRIS Publishing House, 2002.
13
On this question and the related procedure see in detail the paper mentioned under footnote 3.
14
The “environmental acquis” is based on three main pillars: ... The third pillar deals with the rulings and judicial practice of the Court of Justice of the European Union, this is the so-called judicial acquis. Dr Remo Savoia Ubrizsy: A környezetvédelmi acquis – az Accession acquis-n belül. Európai jog, 10May 2002. p. 10.
15
Case No. C-361/88, a ruling was made on 30 May 1991.
16
Case No. 129/96. (18 December 1997.)
17
One of the most recent cases was processed by the author under the title “A hulladék fogalma egy aktuális jogesetben” /The Concept of Waste in a Current Case/, in the May 2002 issue of Európai jog.
18
Legal case 231/97 (29 September 1999.)
19
Case No. C-321/96.
20
Case No. C-392/96.