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Twinning Project RO2004/IB/EN-09 Implementation and enforcement of the environmental acquis at national level and coordination of the other 8 regional twinning projects Training EU accession and membership Jan Dusík Directorate General for Strategies and Legislation - PowerPoint PPT Presentation
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20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Twinning Project RO2004/IB/EN-09
Implementation and enforcement of the environmental acquis at national level and coordination of the other 8 regional twinning
projects
Training
EU accession and membership
Jan DusíkDirectorate General for Strategies and Legislation
Ministry of Environment of the Czech Republic
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Content
I. Monitoring of compliance by the European Commission – procedures and statistics
II. Case study – case C-278/01
III. Compliance problems in first two years of EU membership
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Principles of EC law monitoring – EC treaty
European Commission = “guardian of the Treaty” (Article 211) – the aim: to ensure correct application of EC law
Main activities:• Reports of Member States and EEA• Article 234 – preliminary ruling• Hard action:
• Investigation of complaints and petitions• Infringement actions
• Soft action: implementation guidance and advice, exchange of information
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Relations Commission – Member States
Article 10 EC Treaty: principle of loyal behaviour of both sides:Member States shall take all appropriate measures, whether
general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
EC Treaty – infringement procedure I.
• Article 226:
If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
EC Treaty – infringement procedure II.
Article 228:1. If the Court of Justice finds that a Member State has failed to fulfil an obligation
under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.
2. If the Commission considers that the Member State concerned has not taken such measures it shall, after giving that State the opportunity to submit its observations, issue a reasoned opinion specifying the points on which the Member State concerned has not complied with the judgment of the Court of Justice.If the Member State concerned fails to take the necessary measures to comply with the Court's judgment within the time limit laid down by the Commission, the latter may bring the case before the Court of Justice. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Infringement procedure - Overview
TreatyDirectives
RegulationsDecisions
Registration of
Complaint
Complaint of a citizen
Investigation
COM-decision
Close the file Formal opening Postpone
- Letter of formal notice- Reasoned opinion
- Saisine
Own initiative
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Infringement procedure - features
Own initiative vs. complaintThe pre-litigation phaseAll decisions taken by the College – 4 times per
yearPre-infringement - DGs are free to send
„informal“ („pre-226“) letters
Loyal co-operation – Article 10 EC TreatyObjective to avoid saisine - maximum use of
information and cooperation; majority of cases closed in pre-litigation
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Typology of cases
According to origin• Habilitation (automatic) – A; series 0000-1999• Own-initiative – B; series 2000-3999• Complaints – P; series 4000-5999
According to type of infringement• Non-communication• Non-conformity• Bad application
Identification: YEAR/NUMBER, e.g. 1999/0534, 2004/4159
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Investigation of complaints – pre-infringement I.
Not provided for in the EC Treaty, the Commission has set specific rules – COM(2002)141 final
Any EU citizen may file a complaint free of charge against any Member State about any measure or practice by a Member State which he/she considers incompatible with EC law.
The distinction between letters asking for information and complaints is not always easy – restrictive interpretation
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Investigation of complaints – pre-infringement II. No need to demonstrate formal interest or direct concern Complainants not part of the infringement proceedings -
must safeguard their rights at national level Right to be informed on progress in investigation and on
decisions (registration, stages of infringement, closure) Right to comment on justification before closure of the
case The Commission decides on the complaint at its
discretion One year rule Confidentiality of the complainant Language of complaint
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Communication Commission – Member States
Language of the Member State – capacity problems with translations
Formal – via Permanent Representations - infringement correspondents• Texts of decisions – letter of formal notice, reasoned
opinion• Pre-226 letters• List of College infringement decisions
Informal – line DGs / line ministries in capitalsPackage meetings and other ad hoc meetings
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Press releases
Issued by the Commission for:• Horizontal letters of formal notice• each Reasoned Opinion• each „Saisine“ to the Court of Justice
Communicated in advance to Perm. Rep.Often issued before the full text of the Reasoned
Opinion is delivered to the MS
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Commission’s internal procedures I.
to ensure comprehensive examination and equal treatment of cases
The "lead department“: DG in charge of the relevant area or policy - substantive examination of cases;
Secretariat-General – formal registration of cases and information on state-of-play, notifications of transposing legislation
Legal Service – coordination and consistency of legal assessments, drafting of submissions to Court of Justice
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
NIF – Commission’s internal infringements database – basis for College decision;
NIF and infringement file are confidentialCollege decisions – 4 specialised infringement
meetings (A/B); ad hoc urgent cases
Commission’s internal procedures II.
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics I. Cases open by year (ENV)
0
100
200
300
400
500
600
2000 2001 2002 2003 2004
Complaints Own initiative cases Non communication cases
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics II. Cases closed by year (ENV)
0
100
200
300
400
500
600
700
2000 2001 2002 2003 2004
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics III. Cases referred to ECJ (ENV)
39
67
65
58
45
0
3
0
1
0
0 10 20 30 40 50 60 70 80
2000
2001
2002
2003
2004
Art 226 EC Treaty Art 228 EC Treaty
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics IV.Number of ongoing cases
0
500
1000
1500
2000
2500
3000
3500
4000
4500
5000
Commission Environment
P - Complaints
B - Own initiativecases
A - Infringements
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics V. Types of ongoing infringement cases
Commission
Non communication
Non conformity
Bad application
Environment
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics VI. Open environmental cases by sectors
464; 39%
231; 19%
198; 16%
149; 12%
115; 9%63; 5%
Nature
Waste
Impact
Water
Air
Others
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics VII. – Open infringement procedures by Member State (ENV)
3112
8
35
7
41
66
50
51
75
212
65
25
21
5
38
57
1613
37Belgium Czech Republic
Denmark Germany
Estonia Greece
Spain France
Ireland Italy
Cy prus Latv ia
Lithuania Luxembourg
Hungary Malta
The Netherlands Austria
Poland Portugal
Slov enia Slov akia
Finland Sweden
United Kingdom
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Statistics VIII. – Notification of transposing measures – status quo 06/2006
92
93
94
95
96
97
98
99
100
BE CZ DK DE EE EL ES FR IE IT CY LT LV LX HU MT NL AT PL PT SI SK SF SE UK
ALL
ENV
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Commission documents relevant to infringements
White Paper on European Governance - COM (2001) 428
Commission Communication on Better Monitoring of the Application of Community law - COM(2002) 725 final
Commission Communication on relations with the complainant - COM (2002) 141 final
Commission Communication on the Application of Article 228 of the EC Treaty – SEC(2005)1658
Information from the Commission – Memorandum on applying Article 171 of the EC treaty, OJ C242, 21/08/96 p.6
Information from the Commission – Method of calculating the penalty payments provided for pursuant to article 171 of the EC Treaty, OJ C63, 28/02/1997 p.2
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Useful links on infringements
http://ec.europa.eu/community_law/eulaw/index_en.htm• Annual Report on monitoring the application of Community law
• Figures and useful statistics:
• Recent decisions by the Commission
• Progress in notification of national measures implementing directives
• Standard complaint form
http://ec.europa.eu/environment/law/index.htm• Report on the Implementation and Enforcement of Community
Environmental Law
• Leading cases and judgements of the European Court of Justice on environmental law
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Case study
Case C-278/01
Commission of the European Communities v. Kingdom of Spain
judgment of the European Court of Justice delivered on 25 November 2003
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Subject matter
Implementation of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p.1)
Purpose: to protect the environment and public health by reducing the pollution of bathing water and protecting such water against further deterioration
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Main relevant requirements
Art 2 and 3 – set limit values for physical, chemical and microbiological parameters of bathing waters
Art 4(1) – limit values to be complied with by all bathing waters 10 years from notification of the Directive (1.1.1986)
Art 13 – obligation to submit report on the characteristics of bathing waters
Act of Accession of Spain – no derogation / transition periods
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Timetable of the procedure
Initiation of infringement procedure 22.12.1988
Application to the ECJ – Art 226 22.3.1996
ECJ judgment – Art 226 12.2.1998
Application to the ECJ – Art 228 13.7.2001
ECJ judgment – Art 228 25.11.2003
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Initiation of the procedure
Own initiative caseReports on the quality of bathing waters for 1986
and 1987• Gaps in compliance with requirements for bathing
waters designation, bathing water quality, sampling and reporting
• Quality – problem of both coastal and inland bathing waters
• Issuing of a letter of formal notice
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Narrowing of scope of the case
Communication between Spain and Commission – both written form and meetings
Subsequent reports with improved, yet insufficient quality of inland bathing waters
Commission decided to limit ECJ application to non-compliance with limit values within the established deadlines
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Arguments used in the Spanish defence
Abnormal drought for the past 5 years causing impossibility to improve bathing water quality
Some requirements of the directive are obsolete Link to implementation of Directive 91/271/EEC – urban
waste water treatment (deadlines until 2005) Many inland bathing waters have been abandoned due to
change in habits 10 years of “grace period” requested as given to old
Member States
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
ECJ findings – Art 226 judgment
Derogations allowed by the Directive were not conformed with – no proof by Spain of causation between abnormal drought and impossibility to implement the Directive
As the limit values have not been complied with, Spain has failed to comply with Art 4 of the Directive
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Investigation after Art 226 judgment
Spain reported a number of measures undertaken – urban waste water purification, supervision, monitoring and penalties, prohibition on bathing
2000 study – plan of improvement actions until 2005
Waters still did not comply with the DirectiveA series of meetings and written arguments
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Status of compliance with Art 226 judgment
Percentage of bathing waters complying with the Directive in the bathing season
60
65
70
75
80
85
90
95
100
1998 1999 2000 2001 2002 2003 2004
% c
om
plia
nce
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Argument used in the Spanish defence
Insufficient time provided to comply with Art 226 judgment (02/98 – 09/2000) – they should have waited until the end of implementation of the action plan (2005)
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
ECJ findings – Art 228 judgment
No period specified for compliance with ECJ judgment in Art 228 – case law: as soon as possible
Three bathing seasons from Art 226 ECJ judgment until Art 228 reasoned opinion seem sufficient
Despite some progress in compliance, breach still persists and Art 226 judgment not complied with
Additionally, according to the Commission, Spain opted for reduction in number of bathing waters rather than complying with limit values
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Article 228 and implementing provisions
Art 228.2 - Criteria of calculating the penalty payment:• Duration• Gravity• National factor (economic and political
importance)Implementing provisions –
• Memorandum on applying Article 171 of the EC treaty
• Method of calculating the penalty payments provided for pursuant to article 171 of the EC Treaty
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Penalty payment – proposals
Commission’s proposal: € 45,600 per day of delay from the delivery of the judgment (C-387/97 Commission v. Greece: € 20,000 per day)
Spain’s counter-proposal: € 11,400 per dayDispute in coefficients of duration and gravity of
infringement
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Penalty payment – result I.
Bathing waters – compliance can be checked on annual basis – linked to the annual report on compliance
Complete implementation is difficult and lengthy – penalty must take account of progress made
Reduction in Commission’s proposal for coefficient: € 34,200 per day
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Penalty payment – result II.
€ 34,200 per day = € 12,483,000 per annum20% of areas non conformingAnnual penalty per 1% of non-conforming areas:
€ 624,150Duration: from first bathing season after the
delivery of judgment (2004) until full compliance with the judgment
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Concluding remarks
Second Art 228 judgment with penalty imposed on the Member State, second in the environment sector (C-387/97 Commission v. Greece – landfill in Kouropitos)
Innovative approach – penalty per percentage of compliance
No regard to “grace period”Restrictive interpretation of derogations
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Follow-up to Art 228 judgmentReport for 2004 bathing season – situation
improved – from 85,1% in 2002 to 95,9% in 2003 and 94,7% in 2004• Application of protective measures• Removal of some bathing areas
Report for 2004 bathing season determines the penalty, but: in which percentage the judgment complied with?
So…
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
…happy end!
The case of Spanish bathing waters was closed by the Commission on 13 December 2005
(…after 18 years of investigations…)
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Experience of the Czech Republic I.
29 cases opened since 1 May 2004• 2004 – 10 cases• 2005 – 14 cases• 2006 – 5 cases
18 resolved, 11 pending (only 4 infringements)Proactive meeting – February 2004Package meeting – March 2005Active informal communicationSubmissions to ECJ in Art 234 procedures
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Experience of the Czech Republic II.
closed; 18
pre-infringement; 7
formal letter; 3
reasoned opinion; 0
saisine; 1
0 5 10 15 20
State of play of CZ cases – 30.6.2006State of play of CZ cases – 30.6.2006
20 July 2006
Component 1 - Activity 1.3 training in EU co-ordination
Twinning Project RO2004/IB/EN-09 Implementation and Enforcement of the Environmental Acquis at National Level and Coordination of the 8 Regional Twinning Projects
Experience of the Czech Republic III.
Significant casesTransposition of Noise DirectiveEIA – Aarhus amendmentNon-conformity with Birds and Habitats Directive
General observationsShift of focus – non-communication to non-
conformityLanguage and capacity difficultiesCorrectness, openness