Subsidiarity fears delay ‘green’ plans

Date: 17/10/1996

By Michael Mann

EUROPEAN Commission officials are reworking plans to crack down on member states who fail to implement EU environmental laws, amid concerns that they may go against the principle of subsidiarity.

A paper instigated by Environment Commissioner Ritt Bjerregaard was returned to her services for redrafting after several other Commissioners' environmental advisers expressed concern about how national governments would react.

They fear that the proposed approach does not comply with the principle enshrined in the Maastricht Treaty that the EU should only act in areas which cannot be left to member states.

“I think everyone supported the principles in the document, but some were worried about how they fitted in with subsidiarity. We need to think very carefully about whether the Commission has the right to involve itself in some of the areas it is looking at,” explained a senior official.

Despite the hold-up, officials are confident that the paper - which takes the form of a consultation document and had been due to be considered by the full Commission next week - will be ready for adoption soon.

The Commission is seeking to guarantee a minimum level of access to justice for non-governmental organisations (NGOs) to enable them to take civil action against public authorities they feel are not carrying out their responsibilities.

Many member states already make provision for this in national law. The Dutch, for example, have an approved list of NGOs which have recourse to the courts.

But Commission officials acknowledge that any move to put this on an EU-wide footing would be “particularly sensitive”.

The second strand of the Commission's new approach is to streamline complaints within the member states by providing for some form of body to act as an ombudsman in the early stages of an enquiry.

When suspicions that a country is not carrying out its duty to enforce EU environmental laws are aroused, the first port of call is often the Commission, through its Article 169 infringement procedure.

“Would it not be useful for someone to sit down with complainants to decide whether their fears are justified, so that people only come to us when they have a real case?” suggested an official.

The third prong would involve measures to ensure that each member state had an agency to secure compliance with directives. But the Directorate-General for the environment has softened its approach, moving away from the notion of an 'inspectorate of inspectorates' and towards an “administrative system for checking on compliance”.

Despite these qualifications, a number of cabinets still found it necessary to ask officials to soften the language.

“We have to ensure that laws are enforced properly, but avoid being seen as too proscriptive or encroaching on member states' competence,” said one official.

Bjerregaard is determined to push ahead with a follow-up to the paper once it has been given a public airing. “But this is a long-term project and it has not been decided when we will take things further,” stressed one official.

In its 1995 report on the application of EU law, the Commission found that no single member state had a 100&percent; record in the environmental field. Denmark and the Netherlands came out on top with a 98&percent; record, while Belgium brought up the rear on 83&percent;.

The extent of the problem was highlighted at this week's meeting of environment min-isters in Luxembourg, where Bjerregaard attacked member states for their failure to implement the 1992 Habitats Directive.

Lists of sites for designation as Special Areas for Conservation (SAC) were supposed to be forwarded by June 1995, and reports on species protection were due by June this year.

The Commission has already started proceedings against Germany, Greece, Spain, Italy and Portugal for failing to submit implementing legislation, while eight countries are being pursued for failing to send in their lists of proposed 'Natura 2000' sites. France publicly suspended the application of the directive this July.

Elsewhere in the Commission, however, there is concern that Bjerregaard is taking a rather heavy-handed approach, cracking down on all countries which have fallen behind rather than taking each case in turn and encouraging those which have at least made a start.