Enforcing European Union Environmental Law

29 November 2013UCC, Cork

Session 2: Liam Cashman, Environment Directorate-General, European Commission:

""New Commission initiative on New Commission initiative on environmental inspections – what it environmental inspections – what it

might mean for future might mean for future enforcement"enforcement"

What are inspections for?

• Compliance assurance• Compliance promotion • Inspections• Enforcement (civil, administrative, criminal)

• Inspections• Verify compliance • Detect and characterise non-compliance

and identify those responsible

What is the context?

1. Many pieces of environment legislation Over 40 directives and regulations 2. Diversity of legislation Water, Waste, Air and Industrial, Chemicals, Nature, Impact Assessment 3. Many duty-holdersLarge industries, SMEs, municipalities and environmental utilities, farmers and landowners, hunters and recreational users etc4. Diversity of responsible bodies Specialist environment agencies, local authorities, police and prosecutors etc5. EU-wide and geographically limited problems e.g. waste and wildlife trafficking, illegal water abstraction

Towards a new EU Legal Framework on Environmental Inspections

• Recommendation 2001/331/EC providing for minimum Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the Member criteria for environmental inspections in the Member States (RMCEI)States (RMCEI)

• Commission Communication on 'Improving the Commission Communication on 'Improving the delivery of benefits from EU environment measures: delivery of benefits from EU environment measures: building confidence through better knowledge and building confidence through better knowledge and responsiveness'responsiveness'

• 77thth Environment Action Programme 'Living well, within Environment Action Programme 'Living well, within the limits of our planet' the limits of our planet'

Current EU framework on environmental inspections

• General frameworkGeneral framework 

• 2001 Recommendation providing for minimum criteria for environmental inspections in Member States 2001/331/EC (RMCEI)

• Sector specific legislation, in particularSector specific legislation, in particular• Industrial Emissions Directive 2010/75/EU - Art 23• Major accidents, Directive 2012/18/EU (Seveso III

Directive) - Art 20

Key elements of the existing framework

• RMCEIRMCEI focussed on industrial installations and contains focussed on industrial installations and contains minimum criteria for: minimum criteria for:  

• Dual approach, i.e. planned/routine and unplanned/non-routine inspection work

• Planning of inspections, incl. requirements for content of inspections plans

• Carrying out of inspections, in particular site visits,

• Reporting on environmental inspections• Key sectoral legislation (IED, Seveso III) broadly follows Key sectoral legislation (IED, Seveso III) broadly follows

RMCEI dual approachRMCEI dual approach

Strengths of the current framework

• RMCEI : RMCEI :   Built confidence and prepared the ground for binding criteria

Allows flexibility Influential, stimulated some MS to improve their inspection systems Proven platform for best practices, incl. through IMPEL

• Sectoral legislation: Sectoral legislation: Tends to use core elements of RMCEI (inspection plans, reports, etc.)

Specific sectoral adaptations

Limitations of the current framework

Fails to recognise the wider compliance assurance context RMCEI limited in scope and content, non-binding and mainly focused on

industrial and some other fixed facilities Existing sectoral binding provisions limited in scope. Not covered for

instance are: illegal activities in relation to EU nature legislation, illegal water abstraction, illegal waste shipments, trade in endangered species

Need for effective co-ordination within and between individual MS not adequately addressed

Large disparities concerning organisation and functioning of inspections Poor operational capacity of national inspection bodies in some MS Poor levels of follow-up of environmental inspection reports in some MS Weak performance evaluation Role of the Commission not properly defined

What does the 7th EAP say? The Council and Parliament had agreed the following text for the relevant part of the 7th EAP1.  "63. In order to maximise the benefits of EU environment legislation by improving implementation, the programme shall ensure that by 2020:… … … …(c) EU environmental law is enforced at all administrative levels and a level-playing field in the internal market is guaranteed.... … … …This requires, in particular:… … … …(iii) Extending binding criteria for effective Member State inspections and surveillance to the wider body of EU environment law, and further developing inspection support capacity at EU level, drawing on existing structures, backed up by support for networks of professionals such as IMPEL, and by the reinforcement of peer reviews and best practice sharing, with a view to increasing the efficiency and effectiveness of inspections".

Possible components of a new initiative

• ScopeScope• Basic administrative requirements Basic administrative requirements • Co-operation and co-ordination within Member States and Co-operation and co-ordination within Member States and

across Member Statesacross Member States• Risk assessmentRisk assessment• Compliance assurance prioritiesCompliance assurance priorities• Carry-over and adaptation of dual approachCarry-over and adaptation of dual approach• Governance and transparencyGovernance and transparency• EU levelEU level

Objective, Scope, Key Concepts

Objective: Objective: Effective compliance assurance of EU environment law

Scope: Scope: Notion of 'enforceable duties' specified in an annex

Key concepts within collective term "controls":Key concepts within collective term "controls":Surveillance: wide-angle controls, e.g. remote sensing of changes in land-cover; intelligence-gathering.Inspections: more focused controls involving site-visits, spot checks etc.Investigations: completing the picture where necessary

Member States' administrative arrangements

Competent authorities: Competent authorities:

• Who does what • Independence, impartiality• Capacity• Delegation• Cooperation and coordination

How to manage inspection work?

Global assessment of risks of non-compliance: Global assessment of risks of non-compliance: How likely is non-compliance? How important are its impacts?

Prioritisation strategy to mitigate risks of Prioritisation strategy to mitigate risks of non-compliance:non-compliance: Compliance assurance priorities; role of compliance promotion, inspections and enforcement

Routine and non-routine: Routine and non-routine: Draw on established methodology (RMCEI, IED, Seveso)

Governance• Complaint handling: Complaint handling: registration,

confidentiality and feedback• Public consultation Public consultation on prioritisation strategy • Data collection and management: Data collection and management: Electronic

records, influence of INSPIRE Directive, 2007/2• Active dissemination: Active dissemination: Central Internet portal• Periodic evaluation Periodic evaluation of effectiveness and

efficiency re prioritisation strategy

EU level and Commission role• Member State-to-Member State coordination and cooperationMember State-to-Member State coordination and cooperation

Sharing of experience and best practice including cooperation with networks such as IMPEL

• Commission power to interveneCommission power to intervene Limited to trans-boundary issues and to specific

circumstances?• Peer reviewsPeer reviews

In line with 7th EAP - based on IMPEL model with a possible more concrete role for the Commission

• Commission evaluation of implementation of instrumentCommission evaluation of implementation of instrument No MS reports