Begegnungen
Schriftenreihe des Europa Institutes Budapest, Band 20:113–119.

ISTVÁN CSEPREGI

The Situation of the Approximation and Enforcement of Environmental Law

It is not only a strategic task for Hungary, but it is based on international obligation to transpose the acquis communautaire and to enforce the adapted positive law according to Community requirements. The strategic significance of the issue does not require any further explanation, while in respect to the international obligation the Association Treaty signed on 16 December 1991 and Act I of 1994 promulgating it should be mentioned.

Naturally the processes of transposition and enforcement cannot proceed spontaneously. The preparation of legal norms (impact study, the processes of codification and legislation) as well as assuring the social, administrative and institutional conditions requires planning and phasing. It was in this spirit that the Government regulation No. 2084/1998. (IV. 8.) on the National Programme for the transposition of the acquis communautaire of the EU, and on the economic and strategic background of preparations (henceforward: ANP) was born on the basic issues of the accession negotiations between Hungary and the European Union, on the appointment of the negotiating delegation. Naturally planning requires constant feedback and correction as well, and it is well indicated by the fact that the ANP is modified almost each year [Government regulation 2184/1999 (VII. 23.), Government regulation 2149/2001 (VI. 20.), Government regulation 2088/2002 (III. 29.)].

The first and perhaps most important element of the transposition of the acquis communautaire is legal approximation (popularly known as legal harmonisation) which means the creation of national regulations corresponding to Community law as well as repealing rules contrary to directly applicable Community norms. For this process, equally containing positive as well as negative legislative elements, the following autonomous programmes of legal harmonisation have been created.

At the same time legal approximation, and later legal harmonisation cannot be regarded a static obligation, as the environmental acquis has been continuously enlarged and altered. It is worth paying special attention to it, as Community environmental legal norms constitute one of the most extensive systems of closely related norms in the EU. The total related positive law means 3-400 legal statutes, mostly in the form of Directives. (The obligation of Member States to make positive law is very significant because of the Directives.)

The past and expectable process of legal approximation or harmonisation can be divided – arbitrarily – into the following periods:

– The period of recognition (realization)

– The period of alignment

– The period of conservancy (and of acting as a Member State after accession).

The period of recognition lasted from the signature of the Association Treaty (16 December 1991), and from the enacting of the Act on its promulgation (Act I of 1994) up to the approval of the first government strategy for legal harmonisation. During that period there was an international obligation for the approximation of Community and national law, but planning and the set of conditions for its institutionalisation was manifest only occasionally. Yet the period had undisputed achievements as well in the area of environmental protection (such as the temporary regulation of environmental assessment in 1993, and preparations for the Act on the general rules of environmental protection).

The period of alignment lasted from the first programme on legal harmonisation (January 1995) up to the end of 2002 and 2003, to the deadline of the implementation of the programme for legal harmonisation. (Principally, the deadline of the implementation was 31 December 2002, but the transposition of certain Community legal norms extended to the year 2003.) This period is characterised by the existence of programmes of legal harmonisation and by a constantly modified ANP, the two basic pillars of planned and phased legislation and enforcement. Legislation is characterised by the preparation and enacting of national legal norms in accordance with Community law (dumping of legal norms). In the field of environmental law it means dozens of legal norms related to environmental elements, effective factors, and detailed professional rules. The so-called “legal approximation- clause” found at the end of legal norms helps follow the process of legal harmonisation. This period is still in progress.

Conservancy, or the period of acting as a Member State begins after accession. From that date onwards we would be active participants of the process of Community law making, but the transposition of newly made legal norms would continue to be an obligation (with enhanced checking). From that date on specific attention should be paid to the internal coherence of Community and national law, and in view of legal harmonisation following the judicial practice of the EU would also be particularly important.

After having surveyed ‘phasing’, it is worth examining the present situation in brief. The annual progress reports of the Commission of the EU (the so-called country reports) indicated several problems regarding environmental legal approximation up to the year 2000 (that it is slow, there is significant arrearage in comparison with the envisioned phasing, the transposition of positive law related to water, air and waste management is particularly neuralgic, etc.).

The country report on the year 2001 referred to marked change, of which two elements are worth quoting word by word:

“Hungary has reached a very high level of harmonisation with the environmental acquis.”

“During the course of the implementation of its ambitious programme of legal approximation it has eliminated its earlier lags in the past year.”

Naturally there was an enormous quantity of preparatory work for legislation behind these two sentences; in 2001 about 46 national legal norms with the purpose of legal approximation were issued in the environmental sector, and their vast majority was prepared by the Ministry of the Environment. The process of legal approximation is naturally significantly slowed down by the fact that the implementation of environmental administration and the performance of authority tasks are shared by several ministries.

The present situation of environmental legal approximation is well demonstrated by the following list. The percentage presentation of the current [national] situation is given in the grouping approved by the EU. (Behind the percentages there is an extremely detailed, item-level comparison of the various Community legal norms and the national adapted ones.)

The process of legal approximation hallmarked by the above figures as well has significantly contributed to the temporary closure of the Environmental Chapter during the accession negotiations.

Factors promoting the closure of the Chapter were the following:

– A successful process of legal approximation (legislation speeded up),

– A rapid and precise handing over of information necessary to – the shaping of – the Second Joint Environmental Position of the EU,

– Preparation of the plans for implementation required by the Commission of the EU,

– A constructive negotiation technique,

– Reduction of applications for transition period to 4 cases.

The latter ones, namely the approved applications for the transition period are the following in the case of environmental protection:

1) In the case of the Directive on packaging and packaging wastes:

– Hungary was granted transition period from the demand to recovery at least 50% of all the package wastes, and the recycle of at least 15% of the wastes of glass and plastic packaging materials by 31 December 2005. The transition period is needed to the development of the selective collection of communal wastes.

2) Regarding the Directive on the incineration of hazardous wastes:

– In the case of certain national facilities the satisfaction of EU requirements can be achieved by modernisation or total replacement only, due to the inadequate technological levels, the shortcomings of filtering of flue gas and of the continuous control of incineration technology. A transition period for this was granted until 30 June 2005.

3) In the case of the Directive on disposal and treatment of urban waste waters:

– Up to 31 December 2008 in the case of the so-called sensitive areas inclined towards eutrophication [assigned by Government decree 240/2000. (XII. 23.)],

– and in the case of agglomerations larger than 15,000 inhabitant-equivalents up to 31 December 2010,

– regarding requirements of certain factories corresponding to emission of 4000 or larger inhabitant-equivalents by 31 December 2008, Hungary was granted transition period to fulfil the provisions of the Directive.

4. In the case of the Directive on limitation of emissions of certain pollutants into the air from large combustion plants:

– In the field of limiting the emission of air pollutants by large combustion plants a transitory period by 31 December 2004 was granted for the already existing plants for the development of technology regarding specified facilities both in the sectors linked and not linked to energy industry.

Further tasks of legal approximation may still be found in significant numbers despite the successful process of legislation during the past period. It can be divided into two major groups, one is the creation of comprehensive regulation in accordance with the various Directives, the other one is ‘fine tuning’ that is the technical adaptation of certain not yet adopted definitions. In the light of the legal harmonisation programme in force presumably it will mean the passing of two Acts (or packages of Acts) and about one dozen of government decrees and a similar number of ministerial decrees.

Some of the more delicate legal rules from the above circle are:

– In the sector of waste management evolving regulation for packaging wastes, for the cross-border transportation of wastes, and the treatment of some special kinds of wastes,

– In the sector of air quality – among others – the modernisation of regulations concerning some large combustion plants, supplementing regulation related to ozone depleting substances,

– Regarding the waters quality the all round transposition of the so-called water framework Directive,

– In the sector of industrial pollution prevention the creation of legal norms necessary to the national implementation of the eco-label system and the EMAS system.

In addition to the legislative tasks it is worth stepping towards issues related to enforcement. According to Grotius, “any dispute on law is in vain that does not exist in reality”, namely that is not implemented. The enforcement of legal norms is an even more difficult task of legal approximation than legislation. Let there be a list of a few factors making it difficult by way of illustration, that was contained by the country report of 2001:

– An efficient enforcement of law is made more difficult by the distribution of the tasks of environmental administration among six ministries, and their respective regional and local agencies. The country report stated that “there is need for the rationalisation of the entire system of environmental administration, in case it is not done serious difficulties of implementation are to be expected.”

– In accordance with the previous item the competency and tasks of the environmental authorities need rationalisation, particularly in respect of authoritative tasks, including the environmental inspectorates and the Chief Inspectorate for the Protection of the Environment and Nature.

– At the environmental inspectorates, there is unavoidably need for personnel development, to create an effective supervision.

– The system of environmental sanctioning requires revision.

– The realisation of measures serving implementation is necessary in certain specific environmental sectors (for instance the development of the planning system for waste management, the creation of adequate technical protection to landfills, etc.)

Naturally the above problems are also known to national legislators and implementers of law, however their all round solution may be achieved at the end of a longer process only. It can be regarded as a step ahead among others, that the air quality (emission) measuring network was transferred to the Ministry of the Environment, that the personnel is slowly but continuously enlarged primarily at the local authorities of the Ministry (environmental inspectorates, national park directorates), a uniform procedure for licensing the use of the environment within the revision of the licensing system related to environmental protection is introduced, etc.

In addition to a mechanical personnel development it is of particular importance that the existing and new administrative personnel should possess proper training and experience. In the case of the environmental inspectorates the proportion of those of higher education is 57% on national level, of secondary qualifications is 36%, while only 7% have completed primary education.

It is also natural that the implementation of the tasks of development mentioned above, particularly those of institutional development requires significant financial resources. In the case of the administrative branch it primarily burdens the central budget.

Collating all these factors it can be concluded that by the date of accession Hungary will be prepared for meeting Community requirements on an expectable level by the further continuation of the legislative process, by the further development of the set of environmental institutions and by strengthening enforcement, and by ensuring the necessary financial conditions.