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

• f 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 Communication1 and the one in 20082 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

• f 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

• nce 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 21st and 22nd 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

• r 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.

• Regarding the efficiency of the system and the timeframe, there is not enough information

to assess whether the EU Pilot has slowed down or speeded up the process. It is not clear whether the EU Pilot replaces the investigation stage before the letter of formal notice. The EU Pilot implies that a complaint sent to Brussels goes back to the EU Pilot in the Member State where there is a time for a first discussion between Commission and Member State before the case can be considered for infringement. One of the problems of the infringements procedure is that the deadlines and the whole process takes so long (average 24 months according to 26th annual report on monitoring the application of Community Law, COM (2009) 675 final) that when resolution comes out, the damage is already done and can no longer be prevented. For example the M501 highway in Madrid, when after a long process the European Commission decided to take Spain to ECJ, the construction had almost finished (indeed presently the ECJ has not ruled yet and the highway has been in place for almost 2 years). The EU Pilot system could potentially delay the whole process if the case becomes a complaint. For example: Ecologistas en Accion sent a complaint on the information showed in certain car advertisements regarding emission values of CO2. The Regulation requires that the information should be: 1. be easy to read and no less prominent than the main part of the information provided in the promotional literature; 2. be easy to understand even on superficial contact. This obligation was systematically disregarded in Spain and the Commission decided to go through EU PILOT which meant the following timeframe: June 23rd 2008 Ecologistas en Accion sent the letter; August 8th, 2008 we received communication that our letter had been included in EU PILOT; December 19th 2008 (6 months later!!!!!) we received a letter informing that an official complaint had been

• pened and granting it the number 2008/4990; February 2009 first warning letter to Spain

and February 2010 the Commission decided to send a reasoned opinion to Spain. Result: 20 months and the period after reasoned opinion has not finished yet which could take more than 4 months. A lawyer in the ClientEarth London office sent a complaint to the Comission on the quality of the air in London on 19th of March. Up to now we have not received neither an acknowledgement of receipt nor information on whether it has gone to EU Pilot. We have however received an informal response to our email that we will receive an answer by early May.

• A recent disturbing trend is that complaints are being closed by the Commission services

when there are cases in the national courts related to them. They are closed even if the facts and legal basis of the cases under the scrutiny of national courts are not the same as the ones raised in the complaints. The Commission does not assess whether the EU law could have been breached. There is no deterrent effect of the EU enforcement policy. In the meetings with NGOs organised by the Commission prior to the package meeting, the Commission recommended initiating actions in national courts. Even in the web page where there is a complaint standard form the Commission advises initiating actions at a national level; however it does not explain that that this would be a reason for the Commission to close the case. Example, a case where a complaint was sent to the Commission in August 2008, the Commission requested more information which was provided by the NGO sending the complaint, the Commission is announcing its provisional closure until the case at the national court is finished.

• The EU Pilot in line with the 2007 Communication3 and the one in 20084 on the

implementation of environmental legislation, confirms the European Commission’s intention to limit registration of complaints and therefore to limit the Commission’s responses to citizens’ concerns. The main reason to justify it is a question of management

• f resources. The Commission established together with the EU Pilot a system of

prioritization of complaints for the Commission to decide whether it would be handled by the services or not. Since then the number of complaints on environment has decreased without this meaning that there is better implementation of EU legislation. According to literature 697 new complaints on breaches of environmental legislation were registered in

• ne year 2002 for 15 Member States. In the report the Commission is talking about 723

cases submitted to EU Pilot in 2 years for 15 Member States which translated into the consideration of 40 as complaints giving rise to infringement procedures. On environmental legislation the percentage of cases dealt with by EU Pilot has gone from 42% to 36% which means 260 in 2 years. We do not know how many of the 40 complaints were on environment but applying the same percentage maybe 10 to 15?. The NGOs’ experience confirms the systematic closure of cases as stated in the report that 85% of the cases are closed before an infringement procedure is open. This number is greater than for previous years. The report on the implementation of Community Law in 2008 states that 68% of complaints were closed before the first formal step in an infringement proceeding and 84% of infringement proceedings were closed before reasoned opinion.

• However we believe that this Commission strategy to reduce the number of registered

complaints is a question related to its willingness and independence from Member States. The Commission established the complaint procedure for environmental legislation in

• 1989. The Commission services took the lead and announced the possibility for any

person or body to send complaints to DG Environment whenever a breach of environmental legislation was identified. The Commission’s 8th Annual report on the monitoring application of Community law published in the OJ 1991 included the Commission’s commitment to examine all complaints and a complaint form issued in 1989 to facilitate the introduction of complaints. The Commission established a registration procedure which required decisions on each of the cases to be taken by the Commission as a college. The procedure was very successful.

• Indeed, since the beginning of the new century, the European Commission has been taking

measures to reduce the number of cases as an answer to Member States’ requests to limit legal action against them. Yet, under the article 17 of the TEU the European Commission is the EU Institution responsible for defending the Community interest and not national interests.

• If the shortage of resources were the problem, the Commission should consider

reallocating resources or increasing the staff assigned to this task. The DG Environment legal unit has seen its staff number increase in recent years in order to cover all languages

• f the new EU Member States. The European Commission has never presented a proposal

for more resources in the DG Environment legal unit to the European Parliament so that enforcement and monitoring of the implementation of EC environmental legislation can be improved. I am sure the European Parliament would accept to it.

Commission Communication “A Europe of results – Applying Community law” COM (2007) 502. 4 Commission Communication “Implementing European Community Environmental law” COM (2008) 773/4

• We believe that the European Commission should establish a system with enough

resources to ensure that all complaints are properly addressed. EU Pilot and other initiatives are welcome if they are established to improve the enforcement policy assessing breaches of EU law. Some complaints or cases would be subject to receive special treatment with more media and strategic active enforcement actions with a deterrence objective to increase implementation on the basis of a prioritization decided by the European Commission, but all complaints and letters should be properly addressed.

• The Commission should seek greater resources, in particular for a staff of community

inspectors in order to implement an effective and credible enforcement programme. A task force or unit in DG ENV should be created with a well-trained team to carry out investigation and inspection tasks working alongside the lawyers and scientists to monitor compliance and take appropriate action over infringements. Criteria for their work should be clearly defined. The reasons behind the need for this unit are: 1) Information from citizens is not enough: ordinary citizens or NGOs do not have enough resources to detect less visible infringements of technical environmental legislation, such as emissions or discharges into water courses above permit limits, or implementation of best available pollution control techniques. 2) The Commission cannot rely solely on national inspections to detect and report infringements of Community environmental law: In 2007, the Commission issued a Communication reviewing the Recommendation for Minimum Criteria for Inspections in Member States 5 stating that most Member States are not fully implementing the minimum inspection criteria laid down in the Recommendation. The Commission also stressed that “there are still large disparities in the way environmental inspections are being carried out within the Community.” Consequently, “full implementation of environmental legislation in the Community cannot be assured.” The European Parliament has also recognised these problems in its 2008 Resolution.6 3) The Commission needs to be able to gather information to support its arguments related to the infringement cases submitted to the ECJ. In several occasions the Commission has been told by the Court of Justice that it has not proven its case. One could argue that the ECJ is asking the Commission to organise its resources to find proof for their arguments on cases which it has responsibility for.

• The European Commission needs to understand how important its role as the Guardian of

the Treaty is and the power and impact that it has at a national level regarding enforcement of EU law: Citizens and NGOs need the European Commission to put pressure to the national level to ensure implementation. When a citizen or NGO submits a complaint to the Commission is because the national or local government is unwilling or unable to take timely and appropriate action. Even modest action by the Commission can put pressure on a national or local government to ensure Community environmental law is respected. Marta Ballesteros ClientEarth, Brussels 28.04.2010

5 Commission Communication on the Review of Recommendation 2001/331/EC Providing for Minimum Criteria for Environmental Inspections in

the Member States, COM (2008) 707 final, 14 November 2007.

6 European Parliament Resolution on the Review of Recommendation 2001/331/EC providing for Minimum Criteria for Environmental Inspections

in the Member States, TA (2008) 0568, 20 November 2008.