Lords criticise secrecy over EC environmental laws

The EC's procedures for drafting environmental legislation and overseeing its implementation by Member States continue to suffer from lack of transparency and overt secrecy, according to a report by the House of Lords Select Committee on the European Communities.1 As well as making recommendations to open up the procedures to public participation and scrutiny, the Committee expresses concern that recent European Commission proposals for improving enforcement of EC rules may transfer too much responsibility to national governments and courts.

The Committee's report follows an inquiry into a Communication on implementation and enforcement of EC environmental legislation published by the European Commission last autumn (ENDS Report 261, pp 40-41 ).

The Commission acknowledged that EC environmental policy had reached a "turning point", and that greater effort was needed to ensure the proper application of EC laws. Its main proposals included the production of EC guidelines on minimum criteria for national inspectorates, on how public complaints about breaches of EC laws should be addressed at national level, and on facilitating public access to the courts for the purpose of enforcing EC rules.

A major worry provoked by the paper is that the Commission is pushing responsibility for enforcing EC legislation down to national level, weakening its own role in fielding public complaints about infractions of EC rules and diminishing the pressure on Member States to achieve full compliance.

The Committee's inquiry, and several of its main recommendations, have a familiar ring. In a report on implementation and enforcement published in 1992, the Committee pointed to the "substantial body of evidence" that EC legislation was being "widely disregarded", and expressed concern about the "absence of an appropriate political response to this evidence" (ENDS Report 207, pp 24-25 ).

For that reason, the Committee welcomes the Commission's paper as a "milestone" - and particularly its espousal of the concept of the "regulatory chain", which emphasises that the implementation process is not confined to the drafting of EC legislation and its formal transposition into the laws of Member States. However, the report emphasises that "much remains to be done" in achieving effective implementation of EC laws - with the transparency of several links in the chain being the Committee's "greatest concern".

  • Policy formulation and drafting of legislation: The Commission has been much criticised for consulting little and late over its legislative proposals. It has responded since the mid-1990s by setting out more of its ideas in Green Papers and introducing internal guidelines on consultation with external interests, and the Confederation of British Industry told the inquiry that the consultation process had improved "immeasurably" in recent years. In contrast, the European Environmental Bureau, an umbrella body of environmental groups, complained that they are biased towards industry.

    Another enduring criticism of the EC's policy-making process is that much of the scientific and technical advice on which new proposals are based is not made public. This cropped up again in the Lords inquiry, with environmental organisations also drawing attention to the large number of committees which advise the Commission or help determine the detailed rules for many Directives whose membership and work remain shrouded in secrecy.

    The report urges the Commission to ensure that its consultation processes are open to all stakeholders, including environmental organisations. And it makes forceful criticisms of the "unwarranted" secrecy over the advice which informs the Commission's legislative proposals. This, it recommends, should be published so as to allow peer review, and the outcomes of advisory committee meetings should also be made public.

  • Transposition: Incomplete incorporation of EC legislation into national laws remains commonplace. In 1992, the Committee recommended that, soon after each EC Directive is adopted, the Commission should meet Member States to discuss their ideas for transposition before they become over-committed to a particular course of action.

    Its new report repeats the recommendation, and also supports a Commission proposal that future EC legislation should oblige Member States to report, article by article, how their laws meet the obligations imposed by that legislation. It also recommends that this should be done unilaterally by the UK, with the results made public - a move which would instill greater discipline into the implementation process.

  • Reporting and monitoring: Most new EC legislation now contains standard requirements for Member States to report periodically to the Commission on their compliance. However, compliance with the reporting requirements themselves remains patchy, and the Commission has a poor record in fulfilling its own obligations to publish consolidated reports on how well EC laws are being implemented.

    In June, Environment Ministers agreed to "regularly examine" the state of implementation, and asked the Commission to prepare an annual report on the issue. The Committee welcomes this move, but also suggests that the European Parliament should take a hand in monitoring the performance of both Member States and the Commission in this area.

    The report also recommends that the lead role in preparing some reports of Member States' compliance with EC laws should be delegated to the European Environment Agency. The Commission will be wary of ceding authority to the Agency, but in its recent proposal to renew the Agency's mandate it has suggested that the Agency could assist it in monitoring compliance - albeit in vague terms (see pp 40-41).

  • Enforcement: The Commission's attempts to improve the practical application of EC legislation by chasing Member States after it has received public complaints have been hampered by a mismatch between its resources and the level of complaints. Internal guidelines issued last year suggest that it will in future pursue fewer complaints, concentrating on those with major implications for the "Community legal order", or which involve a series of infractions or breaches which "seriously harm" third party interests.

    Concern that these changes will lessen pressure on Member States to apply EC laws in full has been compounded by secrecy in the complaints and enforcement process. For example, the Commission has sometimes breached its own guidelines by failing to notify complainants that their cases have been closed. An example was a complaint by Friends of the Earth that the Cardiff Bay Barrage scheme contravened EC wildlife legislation, where the group only discovered that the file had been closed six months after the event and was not informed of the reasons or of the settlement reached with the UK Government.

    More generally, the legal correspondence between the Commission and Member States over alleged infractions of EC rules remains confidential. Concern has also been raised that the Commission sometimes drops proceedings against Member States for political reasons, and the report notes that this was "neither confirmed nor denied explicitly" by Commission officials in evidence to the inquiry.

    Given the Commission's apparent intention to devote fewer resources to complaints of non-implementation on the ground, the Committee urges it to develop and make public a fuller statement of its priorities in dealing with complaints. The Commission is also urged always to notify complainants when key steps in an investigation of an alleged infringement are taken, and, where a justified complaint is settled, to publish within one month a statement agreed with the Member State concerned of the action that it has promised to take. The UK Government should publish such statements unilaterally until EC procedures are agreed, the Committee says.

    These recommendations are timely in that they may inform an inquiry announced recently by the European Ombudsman into the Commission's handling of alleged infringement cases, including the issue of transparency.

    The Committee has backed away from a recommendation in its 1992 report that key legal documents in such cases - Article 169 letters and Reasoned Opinions and Member States' responses to them - should be published, introducing the qualification that this should be done "at least from the point when papers are lodged with the Court of Justice." This would exclude papers relating to cases which never reach the Court.

    Other recommendations in this area are that the European Parliament should take a closer interest in complaints, informed by an annual report from the Commission on its exchanges with Member States. The report also puts forward the idea that, for complex complaints which are difficult for officials in Brussels to handle, Commission officials based in each Member State might compile dossiers of "non-contentious factual material" by direct contact with the parties concerned - an innocent-sounding proposal which can be expected to hit resistance from Member States because of its connotations of a Commission inspectorate.

  • Public access to justice: The Commission proposed a stronger role for national courts in ensuring implementation and enforcement of EC law, assisted by EC guidelines on public access to the courts. In June, however, Environment Ministers signalled some resistance to the latter idea by asking the Commission to prepare a report on existing national administrative and judicial mechanisms for handling public complaints about breaches of environmental laws before deciding whether guidelines are needed.

    Environmental groups told the inquiry that there is now no serious obstacle for them to bring judicial review cases in the British courts. However, the UK Environmental Law Association said that the judiciary is still suspicious of cases brought in the public interest, and remains reluctant to follow guidance from the European Court of Justice. The liability of the loser to pay all the costs of a hearing is also a deterrent to judicial review applications.

    The Committee endorses "in general terms" the Commission's proposals for a greater role for national courts. But it cautions that this "also contains dangers where national systems of law enforcement are less effective than they might be. The Commission must maintain a watchful eye rather than derogate its responsibilities."

    The report accepts that British costs rules "can be a major deterrent to legal action", and supports recommendations made in 1994 by the Law Commission that the courts should have discretion to award costs out of public funds in cases considered to be in the public interest.

  • Inspectorates and IMPEL: The Committee backs the Commission's proposal for EC guidelines on inspection practices, arguing that "a high degree of uniformity...in inspection standards and procedures is an essential prerequisite of effective enforcement at Member State level." Environment Ministers approved the proposal in June.

    Ministers also agreed to enhance the status of IMPEL, the informal network of national pollution inspectorates. It has been asked to advise on practical questions of implementation and enforcement, and on new EC legislative proposals.

    However, the Committee expresses concern that IMPEL may be drawn too close to the Commission and become a "semi-official regulatory body". IMPEL should retain the character of an independent professional association, the report says, and take no formal role in implementation and enforcement.

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