Twinning Project RO2004/IB/EN-09
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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

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Twinning Project RO2004/IB/EN-09

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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


EU accession and membership

Jan Dusík

Directorate General for Strategies and Legislation

Ministry of Environment of the Czech Republic

  • Monitoring of compliance by the European Commission – procedures and statistics

  • Case study – case C-278/01

  • Compliance problems in first two years of EU membership


  • 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

Principles of EC law monitoring – EC treaty

  • Article 10 ECTreaty: principle of loyal behaviour of both sides:

    Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment ofthe obligations arising out of this Treaty or resulting from action taken by the institutions of theCommunity. 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 thisTreaty.

Relations Commission – Member States

  • Article 226:

    If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, itshall deliver a reasoned opinion on the matter after giving the State concerned the opportunity tosubmit its observations.

    If the State concerned does not comply with the opinion within the period laid down by theCommission, the latter may bring the matter before the Court of Justice.

EC Treaty – infringement procedure I.

  • Article 228:

    1. If the Court of Justice finds that a Member State has failed to fulfil an obligation under thisTreaty, the State shall be required to take the necessary measures to comply with the judgment of theCourt of Justice.

    2. If the Commission considers that the Member State concerned has not taken such measures itshall, after giving that State the opportunity to submit its observations, issue a reasoned opinionspecifying the points on which the Member State concerned has not complied with the judgment ofthe Court of Justice.

    If the Member State concerned fails to take the necessary measures to comply with the Court's judgmentwithin the time limit laid down by the Commission, the latter may bring the case before the Court ofJustice. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by theMember 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 mayimpose a lump sum or penalty payment on it.

EC Treaty – infringement procedure II.

Infringement procedure- Overview









of a citizen

Own initiative




Close the file

Formal opening

- Letter of formal notice

- Reasoned opinion

- Saisine

  • Own initiative vs. complaint

  • The pre-litigation phase

  • All decisions taken by the College – 4 times per year

  • Pre-infringement - DGs are free to send „informal“ („pre-226“) letters

  • Loyal co-operation – Article 10 EC Treaty

  • Objective to avoid saisine - maximum use of information and cooperation; majority of cases closed in pre-litigation

Infringement procedure- features

  • 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

Typology of cases

  • 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

Investigation of complaints – pre-infringement I.

  • 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

Investigation of complaints – pre-infringement II.

  • 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 capitals

  • Package meetings and other ad hoc meetings

Communication Commission – Member States

  • 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

Press releases

  • 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

Commission’s internal procedures I.

  • NIF – Commission’s internal infringements database – basis for College decision;

  • NIF and infringement file are confidential

  • College decisions – 4 specialised infringement meetings (A/B); ad hoc urgent cases

Commission’s internal procedures II.

Statistics I. Cases open by year (ENV)

Statistics II. Cases closed by year (ENV)

Statistics III. Cases referred to ECJ (ENV)

Statistics IV.Number of ongoing cases

Statistics V. Types of ongoing infringement cases

Statistics VI. Open environmental cases by sectors

Statistics VII. – Open infringement procedures by Member State (ENV)

Statistics VIII. – Notification of transposing measures – status quo 06/2006

  • 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

Commission documents relevant to infringements

  • 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

  • Report on the Implementation and Enforcement of Community Environmental Law

  • Leading cases and judgements of the European Court of Justice on environmental law

Useful links on infringements

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

Case study

  • 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

Subject matter

  • 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

Main relevant requirements

Timetable of the procedure

  • Own initiative case

  • Reports 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

Initiation of the procedure

  • 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

Narrowing of scope of the case

  • 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

Arguments used in the Spanish defence

  • 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

ECJ findings – 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 Directive

  • A series of meetings and written arguments

Investigation after Art 226 judgment

Percentage of bathing waters complying with the Directive in the bathing season

Status of compliance with Art 226 judgment

  • 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)

Argument used in the Spanish defence

  • 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

ECJ findings – Art 228 judgment

  • 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

Article 228 and implementing provisions

  • 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 day

  • Dispute in coefficients of duration and gravity of infringement

Penalty payment – proposals

  • 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

Penalty payment – result I.

  • € 34,200 per day = € 12,483,000 per annum

  • 20% of areas non conforming

  • Annual penalty per 1% of non-conforming areas: € 624,150

  • Duration: from first bathing season after the delivery of judgment (2004) until full compliance with the judgment

Penalty payment – result II.

  • 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

Concluding remarks

  • Report 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?


Follow-up to Art 228 judgment

…happy end!

The case of Spanish bathing waters was closed by the Commission on 13 December 2005

(…after 18 years of investigations…)

  • 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 2004

  • Package meeting – March 2005

  • Active informal communication

  • Submissions to ECJ in Art 234 procedures

Experience of the Czech Republic I.

Experience of the Czech Republic II.

State of play of CZ cases – 30.6.2006

Significant cases

  • Transposition of Noise Directive

  • EIA – Aarhus amendment

  • Non-conformity with Birds and Habitats Directive

    General observations

  • Shift of focus – non-communication to non-conformity

  • Language and capacity difficulties

  • Correctness, openness

Experience of the Czech Republic III.

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