Next to the timely and correct implementation and transposition of European environmental law in the European Union’s Member States, its correct application is an area of particular concern for EEB. The European Commission has recognized that “Laws do not serve their full purpose unless they are properly applied and enforced”. Citizens expect that the European acquis adopted through the Community method is respected and applied otherwise the foundations of the EU will be compromised and questioned. “The European Institutions and the Member States should continue to develop their work to ensure that Community law is correctly applied and implemented”. The European Parliament has also recognized the problem of the uneven application of European legislation in this field which is, to a large degree, due to the disparity between inspection systems in the Member States and the lack of a functioning monitoring system as well as a lack of training and information of people working in the judicial system.
Together with compliance indicators, compliance and enforcement strategies one tool to supervise and improve compliance and to ensure that European environmental law is applied in a consistent way is the supervision of compliance trough environmental inspections. In recommendation 2001/331/EC4 the EP and the Council determined the minimum criteria for environmental inspections in the Member States. Those were to be applied as a common basis for the performance of environmental inspection tasks on a national level. According to this document environmental inspections entail the following:
‐ Checking and promoting the compliance of what is called “controlled installations” with EU environmental requirements;
‐ Monitoring the impact of “controlled installations” on the environment.
To this end, activities like site visits, monitoring compliance with environmental quality standards, assessment of activities and operations at the installations, checking of relevant records and other activities are envisaged as part of environmental inspections. The recommendation demands that the Member States plan their environmental inspection activities in advance and that those plans cover all installations covered by the document. Also criteria for on-site visits and investigations of serious accidents, incidents and occurrences of non-compliance are established
Regarding sustainability it is meeting the needs of the present without compromising the ability of future generations to meet their own needs. The term takes into account environmental and social performance in addition to financial performance – the “triple bottom line.” Sustainability is a term that is gaining popularity and is often used synonymously with the terms green, citizenship and corporate social responsibility.
The current state of European legislation
Member States were requested to report to the Commission on their experiences with the operation of the 2001 recommendation. On the basis of the reports in late 2007 the Commission issued a communication dealing with the review of the recommendation. In the communication, the Commission declares that the information received from the Member States was in many cases incomplete or difficult to compare. In any case, it was clear that only very few Member States had and have reached a full implementation of the recommendation. Therefore the communication sets out areas for an improvement of the original recommendation.
Particularly relevant for the development of a European environmental inspections regime was the statement that the Commission does not consider it appropriate to transform the criteria for environmental inspections into legally binding requirements. It rather recommends that, next to a non-binding recommendation, specific legally binding requirements for the inspection should be included in the sectoral pieces of legislation in order to increase the flexibility of the criteria to be applied on different installations. For instance, it has been supported by the European Parliament and the Member States that a regime for inspections with minimal frequencies shall be introduced for installations covered under the IPPC Directive, currently under revision (Proposal for a Directive on Industrial Emissions).
Seveso II type installations need to be inspected at least annually.
This position was opposed by the European Parliament which, in a non legislative resolution, rejected the Commission’s proposal for only sectoral binding requirements and called for a Directive on environmental inspections to be prepared by the Commission before the end of 2009. The position of the European Commission is inconsistent taking into consideration its views expressed in the mid-term review of the 6th Environmental Action Programme where it states:
“only by ensuring the correct implementation of the acquis will it be possible to realise environmental objectives. Effective implementation is also a key element of the better regulation agenda and is needed to avoid a distortion of competition and to keep the single market running smoothly”.
An ineffective compliance and implementation of the environmental acquis compromises the achievement of environmental protection goals, distorts competition, damages the credibility of EU institutions and weakens the rule of law.