Issues of implementation can be said to begin with the drafting and adoption of EU legislation, since ambiguous or incomplete legislation may be difficult to implement. In the case of a Directive, Member States then have to transpose it into national law or administrative measures, a process described in this Manual (see below) as ‘formal compliance’. This national legislation then has to be applied in practice so that the desired ends are achieved. This can involve ensuring that a ‘competent authority’, once appointed, has adequate staff and takes the necessary steps, eg granting authorizations, drawing up plans, following procedures. It may involve investments in new products, processes and equipment by both the private and public sector. It may involve monitoring, eg of emissions or of environment quality, or of procedures followed. It may involve reporting by a regulated body to the competent authority; by the competent authority to the Member State; by the Member States to the Commission; by the Commission to the Parliament and Council1. It can also involve evaluation by independent bodies, an example of which is provided by this Manual. A Commission communication discusses the subject 2.

Finally, implementation involves enforcement under the processes of law. This can include actions by competent authorities (including the steps taken before reference to national courts), action before the courts by third parties, complaints by third parties to the Commission that EC legislation is not being properly complied with, and action by the Commission against Member States leading to a reference to the European Court of Justice (see section 2.8). The decisions of the courts and any sanctions applied are also an aspect of implementation. Although Article 175(4) makes implementation of Community environmental policy the responsibility principally of the Member States, there have been recent examples of EU intervention in this area. In September 2005 the European Court of Justice annulled Council Framework Decision on environmental crime (see Section 11.11) as a result of an action brought by the European Commission4. The Commission’s objection was in relation to the legal basis under which the Decision was adopted – the ‘third pillar’ of the EU Treaty on Justice and Home Affairs – rather than the environment Articles (174–176) of the EC Treaty – the ‘first pillar’. In annulling the Decision, it added that ‘although as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence, that does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures that relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective’. The judgment sets an important precedent, not just for environmental protection law, but also for Community law in general, as it implies that where the Community has a legal basis under the EC Treaty to decide on policy, this also includes the competence to provide for the effective enforcement of this policy through criminal sanctions.

The Court of Justice further elaborated its case-law in its judgment of 23 October 2007 5 in which it annulled the Council Framework Decision adopted on 12 July 2005 6 under the procedures for cooperation on Justice and Home Affairs of the ‘third pillar’ of the EU Treaty, to strengthen provisions for criminal-law enforcement of regulations against ship-source pollution. Once again this was the result of an action brought by the European Commission. Confirming its earlier case-law, the Court reiterated that the Community legislature may require the Member States to introduce effective, proportionate and dissuasive criminal penalties in order to ensure that the rules which it lays down in that field are fully effective. Accordingly, most of the provisions of the challenged Framework Decision could have been validly adopted on the basis of Article 80(2) of the EC Treaty (common transport policy) and the Council’s recourse to the JHA provisions of the EU Treaty as a legal basis was held to be unlawful. However, the Court further found that ‘contrary to the submission of the Commission the determination of the type and level of criminal penalties to be applied does not fall within the Community’s sphere of competence’. To that extent, the relevant provisions of the Framework Decision were properly based on the EU Treaty instead of the EC Treaty. But since those provisions were ‘inextricably linked’ to other provisions of the Framework Decision, the Court had no option but to annul that Decision in its entirety.

This ruling struck a blow against the Commission’s ambitious legislative proposal of February 2007 on environmental crime in which the Commission sought to achieve some measure of harmonisation of the level of sanctions for the most serious offences. As the ruling bolstered the position of those Member States who were objecting to these harmonisation provisions, the Commission agreed to drop them. The final text agreed at first reading by European Parliament and Council in May 2008 will require Member States to make a series of environmental offences deriving from EC environmental law subject to ‘effective, proportionate and dissuasive criminal penalties’, but it still falls on them to determine the type and level of those penalties7 (see Section 11.11). However, if the Commission still considers that effective enforcement of Community environmental law requires some harmonisation of the stringency of criminal penalties applied by the Member States, the option of proposing a framework decision under the ‘third pillar’ to complement the new Directive remains open.

In some cases, new or amended primary legislation has had to be introduced in Britain to comply with Directives, but normally new secondary legislation is sufficient. In other cases the government has relied on existing primary and/or secondary legislation and has achieved compliance by taking certain administrative steps. In this Manual, the adequacy of these measures has in some cases been critically assessed, and the conclusions reached do not always coincide with those of the government.