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4. Are Implementation Deficts also Enforcement Deficts? Analysing Implementation in Various Member States

The importance of the above-mentioned treaty breaches are obvious. The implementation of Water Directives in the Member States shows that Italy, Belgium, Germany and in some cases the United Kingdom have the most implementation deficits.

In German EC environmental discussions the claim made in 1991 by Salzwedel and Reinhardt¹⁸ gained some notoriety when it was stated that national law was being subjected to "interference into norm structures which are .... constituting an abuse of the law and similar to the action of an occupying power", and that "a stop" must be put to this. The discussion became enflamed as the result of a series of Decisions by the European Court of Justice on the implementation of EC Directives by administrative circulars. This criticism of the case law by the European Court of Justice continued in subsequent years.

It is striking that in recent years the Federal Republic of Germany has been the first Member State to be hit by several simultaneous threats of sanctions under Art. 228 EC for treaty breaches.¹⁹ The question thus arises as to whether the rethinking of the choice of instrument at European level results in massive implementation deficits. It seems reasonable to agree with this hypothesis. Such a simple answer, however, is not really possible. For example, in the case of the United Kingdom, it is clear that in the 1970s, particularly, the incompatibility between European environmental policy, which was still predominantly characterised by a regulatory approach, and the deregulation and privatisation policies of the Thatcher administration - clearly in contradiction to this - did not lead to a serious rise in proceedings against the United Kingdom for treaty breaches.

It is essentially impossible to find implementation differences in the Member States between emission directives (such as 91/271/EEC, 91/676/EEC, 76/464/EEC and 80/68/EEC) and immission directives. In both cases it can be said that the implementation is in deficit. However, there are no significant differences in the case of states (such as the United Kingdom) which are known to be critical of the emission approach. These states do not apply the emission directives less well than the immission directives (Tables 3 and 4).

Table 3: Case-law of the EC J - emission directives

NOTE: * Denotes that an action is pending.

Table 4: Case-law of the ECJ - emission directives

NOTE: * Denotes that an action is pending.

The causes of implementation deficits are obviously much too complex for them to be reducible a priori by means of the enforcement of national regulatory concepts at European level. If a Member State imposes certain (preferred) instruments, this does not mean that the later implementation and enforcement will follow without any problems. On the other hand, instruments from outside the system can certainly be implemented without problems in some cases.

It has been shown by Knill and Lenschow that the implementation of national concepts of regulation in Brussels does not necessarily lead to later implementation deficits being avoided.²⁰ The authors use the Eco-Audit Regulation, for example, to demonstrate that the Federal Republic of Germany, above all, was particularly successful in implementing and enforcing the regulation, but that the United Kingdom, the initiator, was not. On the other hand the example of the Drinking Water Directive 80/778/EEC, of which Germany was one of the most important initiators, shows that even detailed legal acts of a regulatory character produce serious adaptation problems in the Federal Republic. Apart from this, Pehle's investigation of the German Ministry of the Environment indicates that it is particularly EC legal acts such as the Environmental Impact Assessment Directive and the Directive 90/313/EEC, i.e. instruments which were not initiated by the Federal Republic (and which later brought especially serious implementation problems), that are seen as instruments regarded as very positive by the competent Ministry officials.

The achievement of national interests at EC level is thus a precondition, but not a guarantee, for compatibility between European and national law. In addition, in the case of the Federal Republic it is not possible to say in principle whether the number of implementation deficits has increased in recent years. Rather, the proposals of the Commission regarding sanctions for treaty breaches, especially (but not only) against the Federal Republic, have directed (public) attention to the subject of implementation of EC environmental legislation. The implementation of EC environmental legislation in Germany, however, has not deteriorated in recent years.²¹ The Federal Republic has in fact stabilised in a lower-middle position - as a rule ahead of Belgium, Greece, Spain and Italy.²² It is a critical EU state such as Denmark which has been in first place for years when it comes to implementation of Community law.

Implementation deficits only occasionally have political causes; organisational, legal, technical and financial causes are more likely. Also, the smaller number of implementation deficits in some Member States does not tell us whether the law is being better enforced there. In some cases, effectiveness has been negative even when formal compliance with rules has been high. In other cases effectiveness is high when formal compliance has been low.

Recent studies in fact indicate that the Federal Republic, i.e. a state with numerous implementation deficits, is a leader in the actual enforcement of Community environmental requirements. This applies above all to the field of water. Germany has made great progress in recent years in the protection of waters: the investments in sewage plants are the highest in Europe; the network of controls and monitoring is extensive; the cost recovery is high (in view of the relatively efficient German sewage charge system); the rate of connections to biological sewage plants is the highest in Europe, etc. At the same time, water consumption is stable (or going down).

It can be stated with regard to this analysis that the costs for implementation and enforcement are differently distributed, depending on the Member State (see Table 5). In the case of the Federal Republic of Germany, the formal transformation of European water law is "expensive", but its application less so.

Table 5: The Water Framework Directive - costs and benefits of implementation

¹⁸ J. Salzwedel and M. Reinhardt, Neuere Tendenzen im Wasserrecht, NVwZ, 1991, p. 947.

¹⁹ For example the Commission threatened to impose a fine of 158 400 ECU (approximately 310 000 DM) in the case of the Surface Water Directives 75/440/EEC and 79/8869/EEC (Case C-124/97). In other cases, actions to impose a fine for treaty breach in the implementation of the Bird Protection Directive and the Groundwater Directive were instigated. However, one fine has been imposed on Greece.

20 C. Knill and A.Lenschow, "Change as `Appropriate Adaptation':Administrative Adjustment to European Environmental Policy in Britain and Germany", European Integration on-line papers, Vol. 2, 1998, <http://eiop.or.at/eiop/texte/1998-001.htm>.

21 The number of European Court judgements against the Federal Republic has, however, risen in recent years. Cf. L. Krämer, "Die Rechtsprechung der EG-Gerichte zum Umweltrecht 1995 bis 1997", EuGRZ, June, 1998, p. 309 et seq.

²² Cf. European Commission, 14. Jahresbericht über die Kontrolle der Anwendung des Gemeinschaftrechts, 1995, COM (96), 600 final 29.5.1997.

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