Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the European Parliament, the Council, the European economic and social Committee and the Committee of the Regions on EU actions to improve environmental compliance and governance’

(COM(2018) 10 final)

(2018/C 283/11)

Rapporteur:

Arnaud SCHWARTZ

Referral	European Commission, 12.2.2018
Legal basis	Article 304 of the Treaty on the Functioning of the European Union
Plenary Assembly decision	16.1.2018
Section responsible	Agriculture, Rural Development and the Environment
Adopted in section	3.5.2018
Adopted at plenary	23.5.2018
Plenary session No	535
Outcome of vote (for/against/abstentions)	192/02/05

1.   Conclusions and recommendations

1.1.

The European Economic and Social Committee (EESC) welcomes the Communication in question, yet with some reservations. It feels that the European Commission’s action plan to improve compliance with environmental legislation and environmental governance is severely lacking in both ambition and resources, given the current level of environmental degradation.

1.2.

The EESC is all the more cautious as, like the Commission, it acknowledges that a lack of respect for the mechanisms that guarantee the implementation of environmental legislation and governance is a regrettable factor that contributes to unfair competition and economic harm.

1.3.

The EESC also joins the Commission in stressing that current shortcomings are undermining people’s trust in the effectiveness of EU legislation, and calls on the Member States and the Commission to mobilise substantial funding for the recruitment of additional staff, in order to monitor the implementation of environmental governance and legislation.

1.4.

As stated in the Better results through better application communication (1), ‘infringements of EU law are no routine matter’ and should not be treated as such. The EESC thinks non-compliance with EU law needs to be addressed at an appropriately high level and in a timely manner, which is not the case in the current communication (2).

1.5.

The communication only addresses capacity-building and support at Member State level. None of the measures relate to monitoring and enforcement at EU level by the Commission as ‘guardian of the treaty’. The action plan fails to address reasons for non-compliance beyond confusion and lack of capacity, such as opportunism and lack of political will. While support of Member States is necessary, the soft measures of this action plan cannot be the sole strategy for improving environmental compliance.

1.6.

Furthermore, the EESC, citing the opinion (3), calls in particular for the Commission to include access to justice in its action plan, as this is a key element. The EESC also asks the Commission to address the issue of the cost of access to justice for civil society.

1.7.

The EESC also emphasises that more efforts need to be made to prevent environmental damage from arising in the first place and that a prevention strategy should always be preferred over a cure. Consistent and strict enforcement of environmental law by Member States and the Commission are essential for this aim, as they serve as a strong deterrent to future damage. In addition, communication campaigns towards stakeholders and the public would be welcomed in order to raise awareness and thus to improve the role of the public as a watchdog. For people to take on this role, effective access to justice in the environmental domain is indispensable.

1.8.

Finally, the EESC welcomes the possibility of appointing EESC representatives to the Environmental Compliance and Governance Forum. To this end, the EESC recommends that three of its members (one from each group) be allowed voting rights in this forum as opposed to observer status.

1.9.

The EESC calls upon the Commission to ensure that there is meaningful, effective dialogue with civil society organisations at the Environmental Compliance & Governance Forum in order to ensure that their voices are heard. In this context of environmental compliance, it stresses the essential role of civil society organisations in particular in their capacity as watchdogs for the rule of law, the common good and the protection of the public.

2.   General comments

2.1.

Both the Committee’s opinion on the EU Environmental Implementation Review (4) and the opinion on Access to justice at national level related to measures implementing EU environmental law (5) highlight that poor, fragmented and uneven implementation of EU environmental legislation is a serious problem in many EU Member States.

2.2.

The Commission Communication COM(2018) 10 final contains an action plan aimed at increasing compliance with EU environmental law and improving environmental governance.

2.3.

The plan provides for close cooperation between the Commission, the Member States and the relevant professionals (inspectors, auditors, police officers and prosecutors) aimed at creating a smart and cooperative culture of compliance with EU environmental rules; yet this is only a tiny fraction of what is needed to ensure that environmental legislation is implemented.

2.4.

The implementation of this legislation has been beset by significant challenges, linked to persistent problems (for example: diffuse water pollution, poor air quality, unsatisfactory waste treatment, and species and habitats in decline).

2.5.

According to the Commission, the costs of non-implementation amount to EUR 50 billion per year.

2.6.

As well as the economic gains discussed above, many other benefits (including to public health and the long-term resources needed by society) could be achieved through more effective application of this legislation.

2.7.

Moreover, weak mechanisms for securing compliance with the legislation and effective governance at European, national, regional and local level (including a lack of controls) are among the causes of the failure to implement EU rules.

2.8.

They are also a factor in unfair competition for businesses and economic harm (such as loss of tax revenue). This undermines public confidence in the effectiveness of EU laws.

2.9.

This is why the Commission proposes a nine-point action plan, accompanied by the creation of an expert group (6): the Environmental Compliance and Governance Forum.

2.10.

The nine types of action that the action plan proposes to undertake are set out in Annex 1 of the Staff Working Document (7).

3.   Specific comments

3.1.   Achieving a model Europe and protecting the general public

3.1.1.

Within the global context, the EU should strive to be a pioneer in the effective protection of the environment and its citizens and should insist that this issue be prioritised. Given that legislation is already in place and major steps have been taken, the failure to ensure compliance with the legislation in place is a missed opportunity for the EU to live up to its values and to make an actual difference.

3.1.2.

The EESC warns the Commission that the state of protection of citizens in certain contexts is very poor. Compliance with EU law in all Member States is of great importance, as incorrect national legislation systematically undermines people’s ability to assert their rights and to fully draw on the benefits of EU legislation. This is of particular importance in the context of environmental legislation as non-compliance with e.g. air standards significantly affects human health.

3.1.3.

The EESC draws the Commission’s attention to its opinion (8) and hopes that it will take this opinion into account in its action plan. Moreover, it hopes that the action plan will also address, for example, the regulation, control and governance of nanomaterials and endocrine disruptors, in addition to crime relating to waste and wildlife.

3.1.4.

However, the EESC would like to point out that it appreciates the Commission’s willingness to promote, for example, the use of drones and smartphone applications to report or detect environmental damage and to encourage Member States and local and regional authorities (as is the case in Ireland, for example) to either use these themselves or support public initiatives that can improve the implementation of environmental rules by using this type of tool.

3.2.   The Single Market and economic aspects

3.2.1.

Consistency in the application of environmental law is an essential factor underpinning the Single Market. Inconsistent application of environmental legislation creates unfair advantages for businesses in Member States where there is a lack of compliance. This leads to unfair market conditions and provides the wrong incentives for EU businesses.

3.2.2.

Consistency and certainty of application are required across all Member States to ensure that non-compliance is sanctioned equally across the EU. This provides for the protection of the rule of law and allows businesses to rely upon EU law while also creating a level playing field for businesses in all Member States.

3.2.3.

In the Communication, the Commission states that the costs of non-compliance are estimated at EUR 50 billion per year. The Commission’s Study to assess the benefits delivered through the enforcement of EU environmental legislation (9) also sets out the vast economic benefits that can be obtained from ensuring environmental compliance. Besides the environmental, health and rule of law interests, there should also be a clear economic interest in the prevention of further damage through effective controls and proper enforcement of existing environmental law.

3.2.4.

The EESC reminds the Commission of the need for more resources, both human and financial, to verify that environmental rules and governance are being implemented, as previously explained in its opinion on An Action plan for nature, people and the economy (10). Above all, the funding needed to reach the agreed objectives, for example in the field of biodiversity, is in short supply.

3.2.5.

The EESC also hopes that the EU will systematically seek equivalence of its social and environmental legislation for imported products in bilateral and multilateral trade negotiations.

3.3.   Enforcement proceedings by the Commission

3.3.1.

While Member States have the primary responsibility for correctly implementing and applying EU law, the Commission is the guardian of the Treaty (11). It must therefore ensure that environmental instruments are respected and that Member States refrain from any measures which could jeopardise the attainment of EU objectives in environmental policy (12). In doing so, it has discretion to instigate enforcement proceedings under Article 258 of the TFEU.

3.3.2.

Due to the cross-border impact of environmental harm, compliance in one Member State is of great interest to all Member States seeking to protect their citizens and prevent environmental damage on their own territory. The Commission therefore has a key role in protecting this common EU interest and in providing access to justice in cross-border conflicts.

3.3.3.

The European Parliament and the Council declared in 2013 that ‘improving the implementation of the Union’s environmental acquis at Member State level will […] be given top priority in the coming years’ (13). The Commission Communication on Better results through better application (14) emphasised the importance of the strategic use of its enforcement power to prioritise its enforcement efforts on the most important breaches of EU law affecting the interests of its citizens and businesses. Compliance with environmental regulations is of vital importance to the EU, directly affecting the Single Market and the health of its citizens, and should be given clear priority in the enforcement proceedings of the Commission.

3.3.4.

The EESC draws attention to the benefits of infringement proceedings outside their immediate application to a specific case (15). Effective enforcement proceedings send a clear signal to Member States that the EU attaches a high priority to the protection of its citizens and the environment in which they live.

3.3.5.

The systemic pursuit of non-compliance also provides a strong deterrence factor, reducing non-compliance more broadly. It would further strengthen trust in EU law beyond the field of environmental protection, with positive spill-over effects in other areas of EU legislation.

3.4.   Effectiveness of the law

3.4.1.

The widespread dismantling of criminal environmental law, as well as impediments to public access to environmental justice and governance, has been noted in many countries by organisations representing civil society. This could be due to a misinterpretation of certain EU policy guidelines (for example, a Better Regulation strategy that leads to simplification and experimentation, allowing the rules to be broken).

3.4.2.

In addition, for a number of EU environmental policies, Member States should tackle the failure to adequately implement legislation rather than supposedly gold-plating it. This supposed gold-plating at national level can lead to the false perception that Member States are highly ambitious when they are actually failing at the core by under-implementing EU environmental law, leading to non-compliance.

3.4.3.

While the Communication presents three classes of intervention for securing compliance, it fails to suggest measures relating to all three. The proposed actions are all measures that promote compliance and build capacity at Member State level. None of the suggested actions relate to follow-up and enforcement measures by the Commission itself, rendering this a very soft action plan that is unlikely to lead to significant improvements in environmental compliance.

3.4.4.

The Commission therefore fails to address monitoring and enforcement measures at EU level in its action plan. Even within the support mechanisms that it proposed, it missed the opportunity to associate clear targets with each action to measure their effectiveness. Financial support is not contingent upon any change of practice in Member States, making the anticipated outcome unclear and therefore questioning the effectiveness and appropriateness of the suggested measures.

3.4.5.

The EESC is further disappointed by the failure to address the operation of complaints and inspections of national implementation of EU law. The EESC is seriously concerned about a lack of political will within the Commission leading to a failure to carry forward complaints. The ‘soft’ nature of the proposed measures underlines this concern.

3.4.6.

In the EESC’s view, in addition to the correct application of environmental law and good environmental governance, consideration should also be given to the principle of non-regression in environmental law in order to ensure sustainable development.

3.4.7.

The Communication recognises that there are different reasons for non-compliance, including confusion, poor understanding or lack of acceptance of rules, lack of investment, opportunism and criminality. Unfortunately, the Commission fails to adequately address all of these reasons, merely suggesting measures to address confusion and poor understanding. While support for Member States is necessary, this cannot be the sole strategy to improve environmental compliance as it fails to address most of the reasons that are unrelated to confusion and limited capacity.

3.5.   Access to justice at national and European level

3.5.1.

The EESC reminds the Commission that systemic non-compliance in Member States and the lack of adequate enforcement through national courts presents a clear issue regarding the application of justice at national level.

3.5.2.

The EESC urges the Commission to follow its recommendation in its opinion on access to justice (16) regarding the monitoring of preliminary references. The EESC emphasises the importance of preliminary references in ensuring the consistency of EU law and urges the Commission to report on usage and compliance with this tool by national courts.

3.5.3.

The EESC reiterates (17) that free access to environmental information is essential for the public and civil society organisations to be able to perform their role as public watchdogs.

3.5.4.

While the EESC recognises the differences between the justice systems of the different members, it is disappointed that neither the issue of standing (locus standi) nor the costs involved in bringing a case at national level have been addressed. For citizen and consumer organisations or those representing social and environmental interests, standing and costs present substantial barriers for holding their governments and large businesses accountable through the national courts.

3.5.5.

Even if standing is granted, and as previously pointed out in the opinion (18), the EESC reiterates that the financial resources of most civil society organisations are extremely limited, which often leads to a denial of justice for the individuals affected. In addition, these hurdles prevent civil society organisations from doing their helpful work for the correct implementation of existing law, which is essential for the protection of the rule of law.

3.5.6.

The EESC also warns that it is important to have systems in place to prevent abuse of the court system. This should be kept in mind when granting free access to justice to civil society organisations. However, the EESC stresses the advantages of granting them access to justice, as it would enable them to protect consumers, health and the environment for the benefit of society as a whole. As a result, the provisions aimed at preventing abusive actions should be specific and targeted, so that they do not hamper the vital work carried out by civil society organisations in helping to implement the legislation.

3.5.7.

The failure of the Commission and the European courts to ensure compliance with EU law jeopardises the rule of law and weakens public confidence and Member States’ and businesses’ confidence in EU law. It further contributes to preventing access to justice by citizens, civil society organisations and businesses, leading to growing mistrust in the efficiency of the Commission and the courts, and undermining confidence in the EU as a whole.

3.5.8.

In addition, the Communication overlooks two points that are sensitive at European level, both of which are related to access to the European courts: — access to EU justice, which was highlighted at the meeting of the parties to the Aarhus Convention and relates to the internal functioning of the EU’s institutions (for example, the Commission decides too quickly not to take action regarding complaints); — the habits of certain national courts, which refuse to refer preliminary questions and instead take it upon themselves, in breach of the Treaties, to interpret EU law, sometimes with grotesque rulings (for example, in France a public rapporteur at the Conseil d’État (Council of State) told judges that it was pointless to refer a preliminary question to the Court of Justice of the European Union since the latter had never addressed the subject at hand).

3.5.9.

The EESC therefore calls on the Commission to explicitly include the points made on access to justice at national and EU level to ensure a holistic approach that serves the public by protecting people’s health and current and future habitat.

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(1)  OJ C 18, 19.1.2017, p. 10.

(2)  COM(2018) 10.

(3)  OJ C 129, 11.4.2018, p. 65.

(4)  OJ C 345, 13.10.2017, p. 114.

(5)  OJ C 129, 11.4.2018, p. 65.

(6)  OJ C 19, 19.1.2018, p. 3.

(7)  SWD(2018) 10.

(8)  OJ C 345, 13.10.2017, p. 114.

(9)  https://publications.europa.eu/en/publication-detail/-/publication/219e8506-9adf-11e6-868c-01aa75ed71a1

(10)  OJ C 129, 11.4.2018, p. 90.

(11)  Article 17 of the Treaty on European Union (TEU).

(12)  Article 4(3) TEU.

(13)  Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 ‘Living well, within the limits of our planet’ (OJ L 354, 28.12.2013, p. 171).

(14)  OJ C 18, 19.1.2017, p. 10.

(15)  OJ C 81, 2.3.2018, p. 88.

(16)  OJ C 129, 11.4.2018, p. 65.

(17)  OJ C 345, 13.10.2017, p. 114.

(18)  OJ C 129, 11.4.2018, p. 65.