Twinning Project RO2004/IB/EN-09

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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



Statistics II. Cases closed by year (ENV)

0

100

200

300

400

500

600

700

2000 2001 2002 2003 2004

20 July 2006



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



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



Statistics V. Types of ongoing infringement cases

Commission

Non communication

Non conformity

Bad application

Environment

20 July 2006



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



…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



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



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



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

Documents

Twinning Project RO2004/IB/EN-09