Jean Monnet Center at NYU School of Law


1. Shortcomings in Implementing Environmental Law

In the field of environmental law at present, ineffective application and enforcement remains a major problem1 and ranks higher than in any other policy (with the exception of the much bigger internal market sector). In the environmental sector hardly one directive (be it in water, waste, soil or other sectors) has been implemented and enforced by all Member States.

Despite this situation (which is giving great cause for concern), the field of implementation of European law seems to have been well researched. Whereas national research on this topic started in the 1970s,2 it took until 1988 when Siedentopf and Ziller published their study Making European Policies Work, which still constitutes the most comprehensive interdisciplinary study on the issue on the European level.3 In the environmental sector, scientists started research in the 1980s but considerable political interest in the question of implementation of environmental law did not occur until the mid-1990s.4 In 1996, the European Commission (together with the European Parliament, EP) published a Communication on Implementation of Environmental Law which contained a number of suggestions for remedying the present situation. Shortly afterwards the other Institutions followed, applying in their documents a similar approach to the European Commission (e.g. focusing on the formulation of policy-making and the transposition process).5

Interestingly, the discussions on the shortcomings in implementation of European environmental law and proposals how to improve the situation have been - so far - almost entirely dominated by lawyers and partly by political and administrative scientists6. This is understandable insofar as the topic requires a deep knowledge of the (different) legal system(s) and the case-law of the European Court of Justice (ECJ).
Because of the dominance of lawyers and administrative scientists researching in this area, only a small part of the proposals touched application and enforcement issues. It took until 1999 when Vervaele published Compliance and Enforcement of European Community Law, which included a collection of papers on compliance and enforcement issues.7 This publication does not address specifically environmental issues, however, and approached the issue more from a legal perspective.

In recent years, the focus of analysis centred clearly on the drafting process and the transposition of Community law into national law (including the role of national parliaments). Very little work has been done on the application and enforcement phase. This can be explained by the fact that the whole implementation process (including application and enforcement of Community law) is the task of the Member States. The enforcement of Community law in particular involves a number of technical steps (How to measure enforcement and its impact on the environment? What is needed for having effective inspection?) which are generally of less interest for lawyers or administrative or political scientists. In addition, comparing environmental enforcement activities across jurisdictions is an extremely difficult task. Ministries and agencies each monitor different laws operating within different legal systems, address different actors, apply different administrative and criminal enforcement styles and have different resources. As a result, simple comparisons based on numbers of enforcement actions, total penalties assessed and effluents discharged may not themselves indicate enforcement agencies' effectiveness and diligence.8 In addition, "everybody talks but nobody knows".

One of the few existing national empirical studies from the criminological institute of the University Bonn in Germany came to the conclusion that the national enforcement practice is very deficient9. Not because of any unwillingness or ignorance but because of structural problems!! In addition, most violations do not become known to the public authorities. In the case of violations that do become known, most inspection authorities choose a cooperative behaviour with the violators since they depend very much on the cooperation ("good will"), the technical expertise and the data provided by those to be enforced. Furthermore, local politicians often have no interest in pursuing important local enterprises for environmental infringements. Moreover, it seems that, the more the inspection authorities are dependent on the ones to be enforced the more the authorities seek a cooperative behaviour and the less likely they are to propose (administrative or criminal) sanctions10.

Thus, despite all the technological progress in recent years, there is surprisingly little knowledge about the real dimensions of the problem. A number of Member States still do not have environmental reporting systems in place that can statistically measure the number of shortcomings. The organisation which is - at least theoretically - the least able to report on the state of implementation in the Member States, the European Commission, reports every year in its reports on the control of application of Community law. Only improved reporting and data management systems will reveal the exact dimensions of the problem.

On the theory of effective implementation, two schools of thought and practice have developed since the 1970s regarding the design of implementation strategies.

The first has sought to identify variables that account for shortcomings in implementation - for example, the ambiguity and lack of clarity in policy objectives, the participation of too many actors and overlapping authorities, the lack of motivation from implementers and the resistance or inefficiencies which have been cited as prominent reasons for implementation problems. To ameliorate ambiguity, proponents of this theory suggest more specific, detailed and consistent objectives in legal texts and a "top-down" approach to be followed by lower-level organisations and personnel. As regards the excessive number of actors, the consequences are identified in overlapping responsibilities and a potential veto power over implementation by too many actors. This inevitably leads to increased possibilities for those who have to implement a programme to circumvent the process. Suggestions for improving the situation propose clear lines of responsibility, minimising the number of participants in the policy process, centralisation and better coordination mechanisms. To summarise, supporters of this diagnosis would produce a well-specified plan that has clear and detailed objectives, clean lines of responsibility and limited participation in policy-making and require minimum discretion for all levels of implementers, particular policy deliverers.11.As regards European environmental policy this would require "top-down capacities" and a high level of trust in European environmental policy. Both preconditions are currently rather diminishing than developing.

The second school of thought argues that ambiguity, participation, and discretion in fact contribute to effective implementation. It is argued that implementation problems arise because of overspecification and rigidity of goals, the failure to engage relevant actors in decision-making and the excessive control of policy deliverers through command-and-control approaches. The ideal "is the establishment of a process that allows policy to be modified, specified, and revised - in a word, adapted - according to the unfolding interaction of the policy with its institutional setting. Its outcomes would be neither automatic nor assured, and it would look more like a disorderly learning process than a predictable procedure".12 This school would call for the active participation of relevant actors which would enhance problem-solving during implementation; because diverse participants are assumed to bring more information and more points to view to bear, such diversity could ameliorate serious problems such as lack of communication. In addition, one can assume that when people participate they are motivated to do a good job.13 This policy style would require extreme capacities in cooperation and coordination, communication between the different government levels.

In European environmental policy and law, methods and instruments used until the 1990s (such as detailed directives combined with little flexibility given to the Member States to reach the objectives, little openness to participants and to the public) followed clearly the first school of thought. Unfortunately, Member States often transposed (or copied) European environmental regulations but did not enforce them owing to problems in the enforcement process, lack of information and management skills at the subnational level, reluctance of decentralised authorities and the private sector, general lack of inter- and intra-ministerial cooperation and coordination and too little involvement of stakeholders and public authorities in the policy process. The beginning of the 1990s was marked rather by a policy of deregulation, criticism of any "top-down" approach and command-and-control instruments, more openness and a new flexibility. The culmination of this phase was 1992-3 when the discussions on the principle of subsidiarity threatened the very existence of European environmental policy and even the survival of the control unit within the DG Environment. This policy style fitted into the second school of thought. Member States often transposed environmental regulation into national law, but did not enforce it. Again, the reasons were various, but one important one was the growing flexibility of the "environmental acquis", too broad derogation clauses, the poor quality of the legal texts, misinterpretations of definitions, the growing "compromise nature" of the legal acts owing to the growing influence of national administrations in the formulation of Community law (and the enlargement of the European Union to 15 Member States) and the emergence of networks and partnership approaches which reduced the authority of the DG Environment in environmental matters.

So far, neither the first nor the second approaches have proved more effective: both have produced rather insufficient results. Because of this, recent developments in the environmental policies of the Member States and the European Commission have shown a tendency to combine the two school of thought. On the national level in particular, one can observe strategies to mix repressive policies with so-called "assistance and incentive policies". Enforcement by the government is no longer purely associated with duress, repressive force and punishment (the sanction approach) but with a mix of "command-and-control approaches" and voluntary (incentive) instruments.14 As so often the Commission is following this development in the Member States and pursuing a strong enforcement policy, while at the same time proposing new models of partnership, more but limited flexibility, a mix of instruments, openness and new models for adaptation of policies. Political concepts such as deregulation, flexibility, openness, adaptation, etc. are being combined with a strong enforcement policy, including public supervision and sanctioning powers.

Although the implementation of European environmental law is no more deficient than the implementation of national environmental law, one important difference between the European and the national or even the US-American model is striking. "The unique characteristics of the Community present particular problems for understanding the notion of compliance because although the EC depends heavily on a notion of `obedience', it does not have at its disposal something like a police force".15 Because of this the Commission is forced more than national governments to look for effective models which are not entirely based on punitive measures. Effectively implementing environmental law depends upon cooperation because the European Commission does not have the means to operate through authoritative commands. The search for new instruments in the European Commission reflects this insight.

The state of compliance is continuously changing. New companies are created and others go out of business, new technology or industries are introduced, markets shift, operational practices change and regulatory provisions are amended or updated. The bulk of the information necessary to assess conformity with a regulation is obtained through the compliance "verification" processes, including communication and coordination, and as a result of constant inspections, monitoring, self-reporting and investigations. For practical purposes it is impossible to verify compliance with every provision of every regulation by every regulated party including factors such as compliance history, age of regulations, complexity of regulations and public interest,

We will argue in this study that implementation is not a static concept. A context-free theory of implementation is likely to produce only inadequate results. Implementation always takes place in a changing context and researchers should thus accept that there is no immutable and perfect theory of implementation.

Because of the ongoing changes of our modern society, classical models of implementation are coming to seem more and more "old-fashioned"; new approaches to implementing public policies need to be developed that take the changing developments of society into account. The concept of implementation is now seen more and more in a context which encompasses a number of factors. Implementation of a legal act is neither a pure legal process nor is it only about money and resources. Rather, it involves a complex set of factors that needs to be addressed. If policy objectives are to be achieved a number of interrelated preconditions must be fulfilled:

Unfortunately, very little attention has been paid by the political and scientific community to the changing patterns and new developments in the public sector (for example, the introduction of new information technologies, measures to decentralise industry, the further internationalisation of policy and law, etc.) and their impact on implementing public policies. Little has been done to evaluate innovative and new methods (and instruments) carried out in the private and public sector that could improve the implementation of environmental law, especially as regards its application and enforcement. Analysts should now go beyond cataloguing seemingly inexhaustible suggestions and shift their attention to designing strategies to improve compliance, application and enforcement. We shall argue in this study that strategies to improve implementation need to take into consideration the innovations and changes taking place in the public and private sector. Public policies must remain flexible and able to adapt to new circumstances (adaptive implementation).

1 The Dobris Report of the European Environmental Agency (EEA) concludes that despite some improvements the state of the environment has further deteriorated.

2 See a discussion on the beginnings of national research in Demmke, C., Die Implementation von EG-Umweltpolitik in den Mitgliedstaaten, Baden-Baden 1994 (Introduction).

3 Siedentopf, H. and Ziller, J. (eds.), Making European Policies Work, Vol. I and II, Maastricht 1988.

4 The (few) comparative studies on the implementation of European environmental law were first published in the 1980s. Obviously these studies did not have much impact on the political level. See Demmke (1994, Introduction).

5 The literature on this topic is so vast that only the most important official documents of the EU institutions are quoted: Implementing Community Environmental Law, Communication to the Council of the European Community and the European Parliament, Text adopted by the Commission on 22 October 1996, COM(96)500; European Council "Declaration on the Environmental Imperative", Dublin , Bull. EC 1990 Vol. 23 No.6 p.18; European Parliament Resolution of 14 May 1997 on the Commission, Communication to Council and Parliament titled "Implementing Community Environmental Law", Doc. A4-0109/97, OJ C 167/92 of 2.6.97, Advice of 12 June 1997 of the Committee of the Regions on the Commission Communication to Council and Parliament titled "Implementing Community Environmental Law", OJ C 244/43 of 11.8.97, Council Resolution of 7 October 1997 on the drafting, implementation and enforcement of Community environmental law, OJ C 321/1 of 22.10.97.

6 One of the last publications is: Knill, C./Lenschow, A., Implementing Eu environmental policy, Manchester and New York, 2000.

7 Vervaele, J.A.E. (ed.), Compliance and Enforcement of European Environmental Community Law, The Hague, Boston and London, 1999.

8 Commission for Environmental Cooperation, Indicators of Effective Environmental Enforcement, Proceedings of a North American Dialogue, Montreal, 1999, p. 43.

9 Rüther, W., Die behördliche Praxis bei der Entscheidung und Definition von Umweltstrafsachen, Kriminologisches Seminar der Universität Bonn, Bonn 1991, p.126

10 Ibid.

11 Berman, P., "Thinking About Programmed and Adaptive Implementation: Matching Strategies to Situations", in Ingram, H. and Mann, D., Why Policies Succeed or Fail?, 1980, p. 210.

12 Ibid., pp. 210-211.

13 Ibid., p. 211.

14 Vervaele, 1999, p. vii.

15 Joerges, C. and Vos, E., "Structures of Transnational Governance and Their Legitimacy", in: Vervaele 1999, p. 72.



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