Key notes on Monitoring the application of Community Law - EU Pilot - PDF document

Key notes on Monitoring the application of Community Law - EU Pilot European Parliament Public Hearing 28 April 2010 Marta Ballesteros, ClientEarth ClientEarth is an organisation of lawyers working on European environmental issues and promoting the use of legal tools to achieve environmental objectives. My presentation today focuses on the implementation of EU environmental legislation which, according to the report presented today, represents 36% of the cases that went through the EU Pilot. Under the Treaties the EU legislation is addressed to Member States who are responsible for its implementation. However, the control and enforcement of the EU legislation falls within the responsibility of the European Commission as Guardian of the Treaty and the European Court of Justice. Article 17 of the TEU requires the Commission to “…ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union .” This article is similar to previous article 211 of the TEC. The description of the EU Pilot both in the 2007 Communication 1 and the one in 2008 2 on the implementation of environmental legislation was unclear on how the system would work. None of them provided any information on how it would be implemented, how the public/NGOs would be involved or how its success would be measured. The EU Pilot initiative has two main objectives; one is to increase cooperation and partnership between the Commission and Member States and second to produce quicker and better answers to questions and solutions to problems in order to correct infringements of EU law at an early stage without the need for recourse to infringement proceedings. First of all I would like to first address a question of principle or approach that I find crucial and derives from the analysis of the objectives. We need a fundamental shift in the approach to the EU enforcement policy. The first objective: Increase cooperation and partnership between the Commission and Member States. Although presented as a tool for good management, it reinforces the underlying problem of the Commission approach to enforcement in the last years: the key interlocutor for the Commission is the Member State and not those providing information on cases of breach of Community law. Yet, the Member State, who is many times at the source of the problem of implementation, is not the most objective and best source of information whereas NGOs do not have any individual interest but rather they follow the public interest to ensure that EU legislation is properly implemented. Why not increase cooperation with citizens and those providing information on implementation of EU law? The second objective. How can it be ensured that infringements of EU legislation are properly dealt with? The main source of information on breaches of EU law is citizens and NGOs. The EU has a problem of democratic legitimacy and the votes on European elections as well as the referendums on EU Treaties have shown the need to promote ways to make EU closer to the citizens. We have the perfect system here: On one side the need for ensuring that EU law, � �� Commission Communication “A Europe of results – Applying Community law” COM (2007) 502. 2 Commission Communication “Implementing European Community Environmental law” COM (2008) 773/4

once approved by the EU Institutions (including Council of Ministers representing each of the national Governments) is effectively implemented and on the other side a tool where citizens and NGOs are willing to express their concern on EU legislation to the Commission. Why would the Commission obstinately keep trying to reduce the system to the minimum possible? You have the responsibility to make the EU closer to the citizens. Why not use this tool? Why not become the most well known Commission staff member making a career as a follow up of Schuman’s vision and promoting an EU that properly answers citizens concerns and even more promoting a relationship with them in an area of mutual concern? The Commission should develop a strategy in which ensuring the implementation and enforcement of environmental legislation is of higher priority in the EU agenda. Without effective compliance, monitoring and credible enforcement of Community environmental law, the acquis of environmental directives and regulations becomes meaningless. Regarding how the EU Pilot works: My main source of information comes from lawyers who are members of the EEB law group in particular individual lawyers in Ireland, in the UK and in Spain as well as organisations like WWF Spain, Ecologistas en Accion. - The introduction of this initiative has been done mainly by the Commission through the meetings with the NGOs prior to the package meetings and which are considered very useful. However in many countries NGOs we have talked to did not know about it. - Several NGOs in Spain have addressed a letter to Mr Falkenberg expressing the positive results of the EU Pilot in Spain. In particular the EU Pilot has facilitated a more fluent exchange of information concerning implementation of EU. The representative has been invited to the National Committee on Environment, where environmental NGOs are represented, and this has improved the understanding and knowledge of EU legislation. - The exchange of information regarding the content of the cases has not been improved and there is still a lack of transparency as before. The EU Pilot has not reverted into a stronger link between NGOs and Spanish administration nor between NGOs and Brussels administration. The relationship of NGOs with the EU Pilot representative is very good; however, it seems that the EU Pilot does not have a lot of margin to act. - In many cases the dialogue between the Commission and the Member State is used by the latter to postpone the correct implementation of the law. The credibility of the complaint procedure requires a more formalised process where deadlines are not negotiable and NGOs or citizens sending complaints or letters on cases of infringement understand in which stage the case is. The European Parliament has already requested the Commission to adopt these rules which already exist for other areas such as EU competition policy (European Parliament Resolution 16 May 2006 on the 21 st and 22 nd Annual Report on monitoring the implementation of Community law in 2003 and 2004). The European Parliament should insist upon it and request the Commission to adopt these rules. - NGOs do not have access to the national administration response on the basis of which the Commission decides whether the EU Pilot case should become a complaint procedure or not. The report mentions in page 5 that it envisages to provide correspondent with an evaluation by the Commission services of the response of the Member State authority. This is certainly very much welcome.