COUNCIL RESOLUTION of 7 October 1997 on the drafting, implementation and enforcement of Community environmental law (97/C 321/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to the declaration of the European Council, meeting in Dublin on 25 and 26 June 1990, on the environmental imperative, where the Heads of state or Government stressed inter alia that Community environmental legislation will only be effective if it is fully implemented and enforced by Member States, and renewed their commitment in this respect,

Having regard to the Council resolution of 8 June 1993 on the quality of drafting of Community legislation (1) and its general objective of making Community legislation more accessible,

Having regard to the resolution of the Council and the representatives of the Governments of the Member States, meeting within the Council, of 1 February 1993 on a Community programme of policy and action in relation to the environment and sustainable development (2), hereinafter referred to as "the fifth environmental action programme", and to the proposal from the Commission for its review,

Having regard to the Commission communication of 5 November 1996 on implementing Community environmental law,

Taking note of the European Parliament resolution of 14 May 1997 on a communication from the Commission on implementing Community environmental law,

Whereas the Conference of the representatives of the Governments of the Member States, in their declaration (No 19) on the treaty of the European Union on the implementation of Community law stressed that each Member State should fully and accurately transpose into national law the Community directives addressed to it within the deadlines laid down therein and, while recognizing that it must be for each Member state to determine how the provisions of Community law can best be enforced in the light of its own paticular institutions, legal system and other circumstances, but in any event in compliance with Article 189 of the treaty establishing the European Community, further considered it essential for the proper functioning of the Community that the measures taken by the different Member States should result in Community law being applied with the same effectiveness and rigour as in the application of their national law;

Whereas the Community, while further developing legislation to address major environmental problems, needs in parallel to focus strengthening and consolidating the implementation of the existing acquis communautaire, also with respect to current trends, practices and attitudes;

Whereas the European Union network for the implementation and enforcement of environmental law (Impel), having regard to chapter 9 of the fifth environmental action programme, has so far played a useful role as an informal network for the improvement of the implementation, inspection and enforcement of environmental law, focusing on issues relating to industrial pollution;

Whereas the implementation and enforcement of Community environmental law through shared responsibility is one of the key elements of the Community's environmental policy;

Whereas subsidiarity is a fundamental general principle of Community policy and legislation as established by Article 3b of the Treaty;

Whereas the diversity of situations and environmental conditions in the various regions of the Community needs to be duly taken into account in drafting legislation in accordance with Article 130r (2) of the Treaty, and whereas the different legal and administrative systems and practices of the Member States should be taken more into consideration;

Whereas openness and access to information are important means to ensure the involvement of citizens, non-governmental organizations (NGOs) and other interested actors in the area covered by this resolution;

Whereas increased efforts are needed by all actors in the different links of the regulatory chain to improve the drafting, implementation and enforcement of Community environmental law,

1. WELCOMES the communication from the Commission on implementing Community environmental law and CONSIDERS it a useful initiative in order to promote and improve the effective and even implementation and enforcement of environmental law throughout the Community.

SPECIFICITY OF ENVIRONMENTAL PROTECTION AND ITS IMPACT ON ENVIRONMENTAL LAW

2. ACKNOWLEDGES that environmental protection implies particular challenges that make it in many ways distinct from other subjects of policy and legislation, and that should be taken into account when drafting, implementing and enforcing environmental law.

3. STRESSES that environmental protection has, in fact, to take into account, inter alia, the environmental media (air, water, soil) and living organisms (human, flora and fauna) as well as their inter-relationships, constantly changing environmental situations, the developing state of scientific knowledge and the close relation of environmental protection with complex and developing technology, a broad number of public and private actors involved, powers for the transposition and practical application of the law often devolved to, and shared between, different levels of public administration, and, last but not least, the fact that the environment is a common good frequently not linked to a private interest.

4. CONSIDERS that these characteristics and circumstances, although not entirely exclusive of environmental protection, help to explain why the implementation and enforcement of environmental law, and in particular of Community environmental law, are so complex and not always satisfactory and why they require particular efforts from all actors involved in order to achieve the objectives set by environmental law.

DRAFTING OF COMMUNITY ENVIRONMENTAL LEGISLATION

5. INVITES the Commission to consult the main actors concerned, including those likely to be involved at national level and within the Commission in the transposition and practical application, at an early stage on concrete legislative draft proposals so as to, apart from facilitating subsequent discussions, make legislation easier to implement and enforce.

In this context, furthermore INVITES the Commission to give due consideration in this consultation process to the linguistic diversity within the European Union so as to ensure an effective and non-discriminatory involvement of the main actors concerned.

INVITES Member States similarly to conduct consultations of the main actors concerned throughout all the legislative, transposition and practical application stages.

6. CONSIDERS that transparency in the development of policy and the drafting of proposals should also be improved by other means and INVITES, therefore, the Commission to keep the other institutions and Member States regularly informed in an appropriate manner of its preparatory work and in this context make available studies and relevant documentation.

7. ASKS the Commission to provide in the explanatory memoranda of its proposals more detailed information on:

- their scope,

- the choice of the type of instrument,

- the legal basis and other legal aspects,

- the proposed deadline for bringing into force,

- the practical and other aspects of implementation and enforcement by the Member States,

- the potential benefits and costs of action or lack of action,

- the coherence of the proposed measure with existing Community legislation,

- the overall strategy clearly presenting the environmental problem that is to be solved,

- the application of the principles enshrined in Article 3b of the Treaty.

8. STRESSES that increased efforts should be made to ensure that texts resulting from tfhe different phases of the Community legislative process are not unnecessarily ambiguous or complicated so as to reduce problems of transposition and of practical application which lead to incomplete or uneven implementation throughout the Community.

9. RECALLS the importance of coherence of the whole system of Community environmental legislation; INVITES therefore the Commission to study the overall coherence of Community environmental legislation and suggest to Council possible improvements without lowering the level of environmental protection. In this respect, it is important to take into account the interlinkage between the environmental media.

10. INVITES the Commission to improve the coherence of community legislation by the use, inter alia, of framework directives and of codification or consolidation of legislation. In this context, account should also be taken of the work of the committees established by Council directives and especially those charged with the adaptation and execution of Community legislation. The legislation in other Community sectors should also be taken into consideration.

NOTES furthermore the importance to ensure also coherence of the Community environmental legislation with international environmental instruments.

INVITES Member States to ensure the coherence of their environmental legislation, and in particular their compatibility with Community legislation.

TRANSPOSITION AND PRACTICAL APPLICATION

11. EMPHASIZES the need to tackle more systematically concrete problems with regard to transposition and practical application of Community environmental legislation. The exchange of experiences between Member States on common concrete problems constitute in this regard an important basis to consider possible solutions, including, where appropriate, the review of existing legislation.

In this context, the system of harmonized reporting as set up in Council Directive 91/692/EEC of 23 December 1991 standardizing and rationalizing reports on the implementation of certain directives relating to the environment (3) should assist in examining the common and individual problems Member States have in the field of transposition and application and encouraging the exchanges of views between Member States.

12. CONSIDERS that in implementing Community legislation on the environment, Member States should provide for appropriate sanctions to ensure a more even enforcement of Community environmental law. Sanctions, which would remain within the power of Member States, should be transparent, dissuasive, proportionate and be actually applied in practice. The Council resolution of 29 June 1995 on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market (4) should be taken into consideration in this context.

13. INVITES the Commission to consider the inclusion in its future proposals for environmental measures, where appropriate and on a case-by-case basis, of a provision requiring national implementing measures to include appropriately dissuasive sanctions for non-compliance with the requirements of the relevant Community acts and having regard to the principle of subsidiarity.

14. INVITES the Commission to ensure that the Community's environmental objectives and the requirements of Community environmental law are fully integrated into the Community's existing financial support mechanisms and into the monitoring of projects financed by the Community.

RECALLS furthermore that all projects, whether requiring Community or national funding or not, must comply, inter alia, with Community environmental legislation.

INSPECTIONS

15. STRESSES the fact that inspection is an essential prerequisite to achieve the objective of an even practical application and enforcement of environmental law in all Member States.

16. NOTES that different systems and practices of inspection already exist in Member States and CONSIDERS that such differences should be acknowledged; CONSIDERS furthermore that these should not be replaced by a system of inspection at Community level.

ALSO NOTES that the broader application of voluntary environmental management and audit schemes in line with the Community environment management and audit system Regulation could be helpful for improving the practical application of Community environmental law by means of enhanced self-control and self-monitoring.

17. ASKS the Commission, taking into account the variety of existing systems, to propose for further consideration in the Council, in particular on the basis of the work of Impel, minimum criteria and/or guidelines for inspection tasks carried out at Member State level and the possible ways in which their application in practice could be monitored by Member States in order to ensure an even practical application and enforcement of environmental legislation.

18. INVITES Member States to encourage, in the appropriate framework, inter alia by promoting initiatives of the Impel network, cooperation between and within Member States to combat illegal practices with a transboundary character in the field of the environment.

IMPEL

19. RECOGNIZES that Impel, where all Member States and the Commission are represented, is a very useful informal instrument for the improvement of implementation, inspection and enforcement, inter alia through exchange of information and experiences on different administrative levels, as well as through training and in-depth discussions on environmental issues and enforcement aspects.

20. CONSIDERS that the Impel network should also play in the future an important role during the different stages of the regulatory chain and could in particular give advice, on request or on its own initiative, on general questions regarding implementation and enforcement as well as on new draft proposals for Community legislation, in particular where the input of practical experience is necessary.

21. CONSIDERS also that Impel could be further developed, inter alia by asking it to consider whether it should or not broaden the scope of its mandate and the focus of its current work.

The structure of Impel should reflect its main tasks concerning legal policy, implementation and enforcement issues as well as technical issues, practical enforcement, inspections and environmental management, while maintaining its informal character.

22. INVITES Member States to encourage the creation of national coordination networks involving the main relevant authorities at different levels of public administration.

23. CONSIDERS further that, in order to be able to carry out the above-mentioned functions, the Impel network will require appropriate financial means and a secretariat.

DEALING WITH COMPLAINTS OF, AND LEGAL PROTECTION FOR, CITIZENS AND NON-GOVERNMENTAL ORGANIZATIONS

24. ENCOURAGES Member States, the Commission and other actors, to develop existing and new initiatives for improving awareness, knowledge and application of Community environmental law by the main actors involved in the practical application and enforcement in the Member States.

25. STRESSES the importance that, in order to settle environmental disputes more efficiently (i.e. more speedily and at low cost) and with greater ease for citizens and national authorities alike, all Member States consider appropriate mechanisms at the appropriate levels to deal with complaints of citizens and NGOs regarding non-compliance with environmental legislation and make available information regarding the opportunities for complaints to be dealt with at the Member State level.

26. INVITES the Commission to submit to the Council a report on the existing administrative and judicial mechanisms to deal with complaints of citizens and NGOs and other interested actors and also on the existing systems of legal protection, including access to justice for citizens and NGOs. The report should be presented before the finalization of the negotiations in the ad hoc Working Group on the ECE-Convention on access to environmental information and public participation in environmental decision-making at the end of 1997.

FURTHER INVITES the Commission to assess, on the basis of this report, whether there is a need for the development of minimum criteria or guidelines regarding:

- the handling of complaints both at national and Community level, and

- improved access to courts and administrative tribunals, in the light of the subsidiarity principle and taking into account the different legal systems of the Member States.

In this particular context, attention should be paid, if appropriate, to the outcome of ongoing discussions on access to justice in the field of consumer protection.

27. INVITES the Commission, in addition to submitting its annual report on Monitoring the Application of Community Law, to submit to the Council an annual survey of the environment containing, inter alia, detailed information on transposition and practical application by Member States of Community environmental law and furthermore on the principal activities and concrete results of the Impel network, including its current and future work programme, on the basis of a report by Impel.

28. UNDERTAKES to examine regularly on this basis the state of implementation and enforcement of Community environmental law.

(1) OJ C 166, 17. 6. 1993, p. 1.

(2) OJ C 138, 17. 5. 1993, p. 1.

(3) OJ L 377, 31. 12. 1991, p. 48.

(4) OJ C 188, 22. 7. 1995, p. 1.