Jean Monnet Center at NYU School of Law


2. The State of Implementation of Environmental Law

If a law is not respected then the intended regulatory effects will not occur. Shortcomings in implementing parts of environmental legal acts (rules, definitions, annexes, monitoring requirements) will not necessarily mean that the environmental quality will deteriorate. If people cross streets (but ought not to since the traffic lights are red) then this will not mean necessarily that an accident will occur.

On the other hand, serious shortcomings in implementation may lead to increased pollution, degradation of environmental quality, increase of diseases, economic distortions, etc.

Problems, in implementation occur in all areas of Community law. Therefore, the realistic objective should not be to achieve a situation where no shortcomings occur. What should be achieved is a situation where shortcomings will be reduced to a minimum. It must be borne in mind that the Commission's monitoring activity is not confined to actions in the Court nor even to the final pre-litigation stage - the transmission of reasoned opinions and the scrutiny of Member States' responses to them. These are but the final stages of the infringement procedure, and many cases are settled without reaching these stages. This phenomenon is particularly common in the environmental field, where a large number of situations to which the Commission's attention is drawn by complaints, parliamentary questions and petitions turn out not to be infringement situations as there is no legal basis in Community law or the allegation by the complainants or petitioners is unfounded in fact or in law. The national administrations engage in extensive correspondence and regular contacts (package and ad hoc meetings) with the Commission, which thus exercises its function of watchdog of Community environmental law.

The Commission's monitoring of the application of Community law takes account of three aspects: monitoring the notification of national transposition of measures, scrutinising measures for conformity with the directives they transpose and monitoring the practical application of directives and regulations.

Following the Commission report issued in 2000 on the control of application of community environmental law (XVIIth Report on monitoring the application of Community law COM(2000)92 final) the environmental sector represents the policy field with the most cases reaching the reasoned opinion phase, the most cases referred to the Court of Justice and the most Art. 228 cases. Only the number of the so-called Art. 226 letters are slightly below the number of infringements in the field of the Internal Market. However, the figures presented in the annual reports of the Commission (and also the newly published survey)16 should be read with considerable caution as reporting systems are not in place yet which could give concrete figures.

The European Commission publishes these reports on the basis of the information received from the Member States. The information transmitted generally contains legal texts and documents. Notwithstanding the question whether these texts are complete or not, they enable the Commission to get a rough picture of the state of compliance in the Member States. The state of compliance is an important indicator to see whether the Member States have fully implemented and applied community legislation. However, these data on the rate of implementation are not very useful indicators of whether those directives actually influence behaviour inside EU Member States'. Evidence on the actual state of application and enforcement is thus still very poor.

The Member States nevertheless have the responsibility to enforce community environmental legislation. This should be done with the same effectiveness as under national law. Since the national, regional and local administrations are often not yet able to give a complete picture on the state of compliance and enforcement they cannot render this information to the Commission. Definitions on the notion of "enforcement" differ between the Member States and the Commission. The result is that all proposals made with the objective of improving the implementation of environmental law (undertaken either by practitioners or by academics) all face the dilemma that their assumptions are based on inaccurate data.

One possibility in identifying the situation as regards the implementation of environmental law can be made in analysing the Case-Law of the Court of Justice. We have chosen the water sector. We will examine how the individual legal acts in water legislation have been implemented by Member States and what problems arose.

16 Annual survey on the Implementation and Enforcement of Community Environmental Law (1996/7)(SEC 1999/592, adopted as Commission Services' working paper on 27.4.1999).



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