Environmental policy EU
Environmental policy has become one of the core areas of European politics, with estimates that in some countries, especially poorer ones such as Greece, Spain or Portugal, almost all of their national activities in the field of environmental politics come from EU obligationswhile in others up to 80 % of national legislation on environmental affairs come from the EU.More than 250 different pieces of legislation were adopted since its unofficial start in 1972.Until that date, only 9 pieces of legislation (including amendments and elaborations) were adopted since 1958, whereas in the period from 1973 to 1986, 195 such pieces were adopted. In subsequent period, number of environmental laws raised even more steeply (1987-92 there were 192 such laws adopted, and in only three years 1992-94 144), with a decrease in 1995.This trend of slowing the rate of environmental laws passed observed since the beginning of the 1990s follows two opposing trends. While on the one hand, both legally and institutionally the basis for environmental policy action is still being reinforced and expanded, the focus of the environmental regulation is no longer on passing a number of uniform legally binding policies. Instead, also due to implementation difficulties and other, external factors such as decline in political salience of environmental issues and economic growth, the EC reoriented its proposals towards more flexible instruments which allow member states for more manoeuvre in implementing these policies.
Implementation record is therefore worthwhile looking into, as the number of adopted laws does not say much about the real impact of the EU environmental policy. In this regard, it is even more interesting, given the presumed link between implementation record and low administrative capacities of the country, to focus on implementation record after the EU 2004 and 2007 enlargements to the East.Generally speaking, the 2004 enlargement, which was the biggest enlargement in the EU history, raised many concerns,not only about the institutional readiness of the new member states but also about the wider effect of the EU enlargement on the future capacity of the EU to take decisions. The research question raised in this essay is therefore how and to what extent have 2004-07 EU enlargements changed the implementation record, and in this way, brought new challenges to the EU environmental policy field.
I will argue that 2004-07 enlargements have brought in new challenges to the EU, especially due to new member states' poor administrative capacities to comply with implementation requirements. Firstly, I will have to define implementation and different ways to measure it. Secondly, looking into environmental policy implementation record after EU enlargements should allow drawing conclusions. In conclusion, I will try to put challenges that the EU enlargements brought to the environmental policy implementation in a broader context and explore ways ahead. The methodology will comprise of studying primary and secondary sources, however limitations concerning space and time will not allow for a comprehensive study of all sources.
2. Defining implementation of the EU environmental policies
Not solely in environmental policy field, the EU policy implementation in the member states in general is observed as poor. Nevertheless, our understanding of the factors causing implementation deficit as well as the extent of the deficit itself is still rather limited.Problems are related to difficulties of measuring and gathering data on implementation deficit, to reliability of statistics published by the EC, and to uncertainty about the extent to which implementation contributes to fulfilling policy objectives. However, it would have been impossible to consider all aspects of effective implementation with such a wide focus. Therefore only two perspectives of so-called policy output are normally considered - legal and practical transposition of EU policy objectives. They comprise the formal transposition (measures taken are communicated and the transposition is correct and complete) and the practical application of the law (i.e. how the law is applied), whereas policy outcome; i.e. the success of implementation in terms of policy objectives achieved, has to be left out of consideration due to its complexity.
The EC's responsibility to ensure that the treaties and ensuing measures are correctly applied is one of its main tasks in the environmental field with more than 200 legal acts to monitor in 27 member states.Article 258 of the consolidated version of the Treaty on the Functioning of the European Union (TFUE) (ex Article 226 TEC) lays down the procedure to follow in case the EC considers a member state has not fulfilled its obligation. The EC has the obligation to issue an opinion and give the member state concerned an opportunity to respond. In case the member state in question does not comply with the opinion, the EC can pursue the issue to the European Court of Justice (ECJ). Article 260 (ex Article 228 TEC) of the TFUE defines that if a member state does not comply with the judgement of the Court, there might be financial consequences as appropriate.Since the ECJ ruling of 12 July 2005, it is possible to impose both periodic penalty payment (to stimulate compliance in the future) and a lump sum (to condemn missing compliance the past).However, this option is used rarely; also due to the Court's poor sanctioning powers.Since Maastricht treaty when the possibility of financial consequences was first included in the treaty, there were only three cases of such ECJ judgements.
The EC has developed an informal procedure of addressing infringements that has allowed for solving around 70 % of issues before the first formal letter of notice is sent, 85 % of issues to be solved before the reasoned opinion is issued and only 7 % of all cases are referred to the Court.However, data from the end of 2008 on implementation deficit across policies reveal that the EU environmental policy has the highest number of open cases under examination and within this area, 57 % of cases concern nature protection directives implementation.
Only in early 1990s, the implementation deficit has been addressed. The fifth Environmental Action Programme (EAP) listed improved implementation as one of five priorities and the EC begun publishing annual reports on the implementation of the EU law. Attempts to improve the record started in 1992 with the creation of the EU Network for the Implementation and Enforcement of Environmental Law (IMPEL).Established as non-profit association of the environmental authorities of the EU member states, candidate countries and Norway, IMPEL aims at ensuring more effective implementation of EU environmental policies. This should be achieved through exchange of information, experience and best practices, promotion of mutual understanding, capacity building, joint enforcement projects, and the like. Important aspect is as well the provision of feedback on enforceability of the EU environmental law.However, setting up a structure does not provide a complete answer in itself, as improved implementation record will not come only through clearing misunderstandings about the application of laws. For tackling the issue, the EC should be given more means to monitor and compel national authorities to implement the laws fully and correctly.
Due to the increased number of non-compliance cases, the possibility of financial sanctions was included in the Maastricht Treaty. However, this procedure is nonetheless an absolute solution for non-compliance due to its different causes. The reason might be administrative negligence, a need to have more time or technical difficulties in adapting laws. Some states have bigger difficulties in translating EU laws than others because of their internal structure, such as Belgium, or due to their poor administration, as Italy.Some national administrations simply do not have the capacity to monitor compliance with European laws, which also complicates measuring the implementation failures. Anther problems related to measuring of and the EC data on implementation record is that they do not take into account changed policy preferences (e.g. for stricter control by the EC), or changed methods of measurement. The system itself has a gap in it as well - as the EC does not have the necessary resources to monitor compliance, it has to rely on complaints from interested public actors and on the information provided by national authorities. Lack of independent source of information clearly limits the reliability of the EC data on implementation deficit.
3. Challenges brought by2004-07 enlargements
The EU enlargements until 2004 were relatively easy in terms of adapting to EU structure and laws, while the 2004-07 enlargements brought up issues such as identity problem, question of institutional adaptation, economic difficulties and increased heterogeneity in relation to external relations, which were previously less of a concern. Therefore, the negotiation process was set up in such a way that the new member states had to adapt to the EU model. They have been given little room for manoeuvre when taking on acquis communautaire, unfavourable terms of support under Common Agricultural Policy (CAP) and Structural Funds, and changes in national administrations.There have been some pre-accession programmes providing for adjustment, but both administration of programmes and the sum allocated have been deemed insufficient for the new member states to get to the level of environmental protection of the EU-15.The EC has also recognized that pre-accession support should in the future guarantee that new member states are able to comply with the EU laws since the date of accession.
What it has been feared most is that after initial conditionality with a prospect of membership as an instrument to induce compliance will no longer apply, i.e. after accession, new member states would fall short of complying with the EU policies and EU would face a so-called eastern problem. Data suggest that these fears did not come true; what is more, EU8 (post-communist) new member states even solved EU infringement procedure cases faster and at earlier stage.In 2008, there were only 31 cases of referral to the court among the new (10+2) member states, of the 209 for the EU altogether.The number of open infringement cases in the field of environmental policy is also higher in old member states. This can be partially explained by the loads that old member states have accumulated during the years, but this record might also reflect more active public that produces more complaints.In some areas, such as nature conservation, the number of open cases has been even reduced (from 589 at the end of 2003 to 235 at the end of 2007).However, there was a significant decrease in number of open cases during 2005 as well (from 1220 at the end of 2004 to 798 at the end of 2005). The EC states it was mainly due to rationalised handling of complaints and infringements, such as grouping cases and launching horizontal cases to address systemic problems of implementation, but also because of pro-active follow-up that included bilateral and package meetings with member states.
The EC in its 2008 communication on implementing EU environmental law recognized the need for a review of implementation record after the 2004-07 enlargements, due to growing number of EU environmental laws, new developments in case law of the ECJ and other. The challenges presented by the enlargements in its opinion are concerning the needed infrastructure for the implementation of EU laws, changes in administrational structure and facilitation of wider public participation in the implementation process.Challenges that the EC has to face are with regard to the expansion of workload related to monitoring correct application of the environmental law in the enlarged EU and the lack of human resources with appropriate language skills able to investigate the implementation process in the new member states or legal expertise to tackle the more complex issues.
In recent years, EU environmental policy moved away from hard regulation to more flexible ways of legislating, introducing new instruments under two forms: economic (such as eco taxes, emission tradable schemes, and state subsidies) and context-oriented regulation, under which procedural law was emphasised (information and participation of the civil society) and new ways of partnerships among state or private actors enhanced. The aim was to take into account local environmental conditions and promote behavioural change by means of flexibility in regulating, involvement of the interested public and learning rather than sanctioning, as implementation deficit and missing desired effects of EU policies were detected.There were other, external factors influencing this move as well, such as worsening economic situation and the need to become a more competitive economy on the global stage. Scientific evidence also proved the need to take into consideration the sensitivity of different ecosystems rather than setting unified standards. Subsidiarity clause in Maastricht treaty shifted the focus away from new initiatives to the consolidation of existing legislation. But the evidence of success of this new effect-based approach has not been clear and has met the opposition from some member states on some directives.The last, Seventh Annual Survey on the Implementation and Enforcement of Community Environmental Law from 2005, states that the commitment to better proposals has been translated into thematic strategies. The first one of 2005 on air quality aimed at improving environmental legislation through merging existing legislation into one directive. Other thematic strategies have followed, with a wider focus and new integrated approach to environmental issues.They are taking into account the effects of decisions in one policy area on the others, stakeholder consultations and economic, social and environmental impacts of different policy options. Through simplifying existing regulatory framework, they should contribute to better implementation, but will be first reviewed only in 2010.
As this essay showed, implementation record is difficult to define and can be measured in a number of ways. Additional difficulty of searching for reliable data on implementation record after the 2004 or 2007 enlargements is also their recent history that has not allowed sufficient time for production of comprehensive reports or assessments of new member states' record. Where there have been studies of the post-enlargement behaviour of new member states, they proved the resilience of political and economic reforms.It could have been possible that the same misleading belief that has lead to conclusion of poor southern states' performance in implementation is present. Research proved that compliance varies across policies within countries and that implementation is delayed due to a policy misfit in terms of adaptation that needs to be done with the arrival of new EU policy and depends on the pressure exercised by domestic actors.It seems that the concern raised in relation to new member states' compliance is not completely founded, but it remains to be seen how new member states will be performing in following years.
However, there are inevitably new challenges brought by enlargements to both the EU15 and to the new member states. The need for administrative reinforcement, institutional adaptation and wider inclusion of the public in the new member states is still deemed necessary. On the other hand, data on performance in implementation of new member states do not reveal worrying statistics. Besides, it seems that the enlargements have reinforced the direction EC was taking since the early 1990s, i.e. instauration of new, more flexible and less legally binding instruments that allow for more room for manoeuvre in implementation, more cooperation with member states before the proposal is framed and more attention given to implementation of existing laws rather than coming up with new proposals. Nevertheless, it is difficult to assess to what extent it has been influenced by the arrival of newcomers, as the EC constantly pursues its goal of improved implementation and searches for new ways to do it, such as recently established criminal law procedure for environmental laws.