Lords' prescription for improving compliance with EC rules

A series of measures to strengthen Community oversight of the implementation of EC environmental rules by the Member States has been recommended by the House of Lords Select Committee on the European Communities.1 It also urges moves to open up to judicial review the performance of regulatory authorities and the decisions of public bodies to refuse the public access to environmental information.

The Committee's report is a major contribution to the intensifying debate about the inconsistent implementation of EC environmental legislation and the options for remedying it. Last year saw three moves intended to improve the implementation and practical enforcement of EC laws. These were a decision by Environment Ministers to establish a network of national pollution inspectorates (ENDS Report 201, pp 21-3), a Directive which introduced standardised arrangements for Member States to report to Brussels on their compliance with some 30 existing environmental Directives (ENDS Report 205, p 36 ), and a UK proposal for an EC "audit inspectorate" to monitor the performance of national inspectorates in enforcing EC laws (ENDS Report 202, p 3).

The Lords Committee welcomes these developments, but says they are insufficient in the face of the "substantial body of evidence" that EC environmental legislation is being "widely disregarded." Of even greater concern, it says, has been the "absence of an appropriate political response to this evidence." One possible response would be to transfer "competences" in the environmental field from Member States to the European Commission and Parliament, but the Committee does not favour this. To do so, it says, would run against the evolving concept of "subsidiarity" and the trend in many Member States to devolve competences to the regions, as well as create a highly bureaucratic system.

On the other hand, the Committee concurs with evidence submitted to its inquiry by the Institute for European Environmental Policy, which observed that "it is the persistent and continuing failures by the Member States themselves that feed the demands for greater Community competences. It will be difficult indeed for the Member States to argue against such a transfer of competences if they fail to demonstrate in the near future that their existing primacy in monitoring and inspection can indeed ensure the effective implementation of Community environmental legislation."

The Committee's own prescriptions range right across the regulatory chain, beginning with the drafting of EC legislation and ending with ways of assuring its proper routine application on the ground at national level.

  • Drafting legislation: Too much EC legislation is being drafted with insufficient consideration of how it is to be implemented, the Committee says.

    One way of overcoming this would be greater transparency in the law-making process from an early stage. The Commission has latterly taken some steps in this direction, publishing the odd "green paper" and circulating early drafts of Directives on eco-audits, landfilling and integrated pollution control to interested parties.

    The Committee argues that this practice should be the routine, and also advocates publication of the results of the Commission's consultative meetings with national experts and the scientific and other data on which its proposals are based.

  • Transposition:
    Delays in the transposition of EC law into national laws are commonplace. The UK, which had a relatively good record of implementing EC laws on time - in part because it resorted to circulars rather than the longer route of legislation - has slipped back of late because the Government decided to wait until new regulation-making powers were made available by the Environmental Protection Act 1990.

    The Committee supports the European Commission in arguing that EC legislation should be implemented by statutory measures rather than circulars.

    It also says that, where specific powers to implement EC legislation are not available in existing primary legislation, the UK should not wait for this to be enacted but use the broad provisions of the European Communities Act 1972 as an interim measure. The Act is also a useful model for other Member States.

    More generally, the Committee recommends that accurate transposition of EC laws should be assisted by the Commission as soon as they are enacted. This should be achieved by the publication of guidance notes on the implementation of legislation, and by meetings soon after Directives are adopted between the Commission and individual Member States before they become over-committed to their implementing measures.

  • Community powers of inspection: Member States' reactions to suggestions that the Community should involve itself directly in monitoring their application of EC laws have traditionally ranged from the suspicious to the downright hostile. However, the Committee, which has itself greeted such proposals with caution in the past, has now been persuaded that the time has come for closer Community involvement.

    Its recommendations are three-fold. First, it says that the largely reactive role given to the European Environment Agency - still not up and running due to French blocking tactics in a wider dispute about the home of the European Parliament - should be extended so that its officers have powers to visit Member States in order to verify the accuracy and consistency of methods for collecting and analysing environmental data.

    The Committee sets great store by improvements in the quality of environmental data. To date, wide variations in environmental measurement methods both between and within Member States have stood in the way of comparisons of national environmental performance.

    Second, the report supports the UK's proposal for an "audit inspectorate", while taking it somewhat further than the Government has done. It says that the inspectorate should report publicly on its findings on the performance of regulatory authorities in the Member States. It should propose to the Commission standards of inspection and methodologies for monitoring, sampling and analysis, and monitor - by means of spot checks and other means - that such standards are met. And it should also report on national enforcement practices, including prosecution policies.

    The issue on which the Committee parts company with the UK Government is the latter's proposal that the inspectorate should concern itself only with the activities of national pollution inspectorates. "There are real dangers in this approach - the tail of current national institutional arrangements would be wagging the dog," it warns. "Community environmental legislation now stretches far beyond issues of pollution control, and it would be detrimental if such issues as environmental assessment, habitat protection and eco-labelling were not examined."

    Thirdly, the Committee recommends that the Commission's own powers to investigate specific instances of non-compliance with EC laws need to be strengthened. At present, a Member State can block such investigations - as Spain did recently when it claimed that a proposed visit by a Commission official to a polluting pesticide plant would foment public disorder.

  • Access to information: The Committee also makes some important recommendations on this issue. In particular, it wants an end to the convention that legal correspondence between Member States and Brussels concerning alleged non-compliance with EC laws is a private matter.

    The report also takes a swipe at the Government's recent proposals for implementing the EC Directive on public access to environmental information (ENDS Report 204, pp 27-8 ). Any refusal to release information should be amenable to judicial review, the Committee says, but the Government is seeking to duck this insofar as Government Departments are concerned - apparently in breach of the Directive. Secondly, the proposals for charging for copies of documents are such as may discourage the public from seeking information.

  • Access to the courts: While the Committee wants responsibility for enforcing EC laws to remain primarily with the Member States, it also contends that improved compliance will follow if the decisions of regulatory authorities are open to review. In one of its most radical recommendations, it says that individuals and environmental organisations should be given ready access to the courts for this purpose - and that this should be achieved on a harmonised basis by means of EC legislation. The Commission has already promised a paper on the issue (ENDS Report 200, pp 32-3).

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