2.3 Stages of implementation
Implementation of EU legislation involves a number of actions by different players. The terms ‘implementation’ and ‘compliance’ are used synonymously and although Directives often talk of Member States having to introduce laws or administrative measures ‘to comply’ with the Directive, the term ‘implementation’ is used in Article 175 (4).
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 Commission. 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 judgement 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 processes of formal and practical compliance specifically in the UK are discussed in
section 2.7. Formal compliance with the legislation or ‘transposition’ Directives usually require the Member States to transmit to the Commission within a given period a statement of the national legislation, regulations or administrative measures that give formal effect to the Directive or transpose it into national law – hence the term ‘transposition’. These ‘compliance letters’, as they are sometimes referred to, together with departmental circulars to the relevant administrative bodies (eg local authorities) provide the basic raw material for an assessment of the effect of the Directives on British legislation. An additional source of information are ‘Reasoned Opinions’ sent by the Commission to the government when it believes that particular Directives are not being fully complied with. 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. |
