A FURTHER UPDATE ON ENVIRONMENTAL CASES

A few countries have found themselves facing a number of cases in the European Court (referred to as the ‘ECJ’) in relation to breaches of environmental legislation.

The legal process:

Article 226 of the Treaty gives the European Commission powers to take legal actions against a Member State that is not respecting its obligations.

Actions are in three stages:

(1)   If the Commission considers that an EU law has been breached and justifies opening an infringement procedure, it addresses a “Letter of Formal Notice” (i.e. first written warning).   It asks the relevant Member State to respond with its observations, by a specified, usually two months.

(2)   Depending on the reply (or failure to reply) from the Member State concerned, the Commission may decide to address a “Reasoned Opinion” (i.e. the second and final written warning) to the Member State.  This clearly and definitively sets out the reasons why it considers that there has been an infringement of EU law and calls upon the Member State to comply within a specified period, normally two months.

(3)   If the Member State fails to comply with the Reasoned Opinion, the Commission may decide to bring the case before the European Court of Justice.  Where the Court of Justice finds that the Treaty has been infringed, the offending Member State is required to take the necessary measures to conform.

What happens if a Member State does not respect the judgement made by the European Court of Justice?: Article 228 of the Treaty gives the Commission power to act against a Member State that does not comply with a previous judgement of the European Court of Justice, again by issuing a first written warning, called a “Letter of Formal Notice” and then a second and final written warning, called “Reasoned Opinion”.  The article then allows the Commission to ask the Court to impose a financial penalty on the Member State concerned.

A current list of infringements may be found on: http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#infractions

For rulings by the European Court of Justice (ECJ) see: http://curia.eu.int/en/content/juris/index.htm

MEMBER STATES ‘IN THE DOCK’ OVER ENVIRONMENTAL LEGISLATION…

The Commission is taking action against Italy for 28 separate cases

The infractions relate to illegal waste and waste disposal, lack of environmental impact assessments and breaching new standards relating to fuels.  Italy has also breached community legislation relating to environmental protection, the ozone layer, climate change and industrial pollution.   The Commission has sent formal demand letters to Italy to ensure it modifies its practice and remedies the situation. 

Waste:

1. In 2002 Italy’s forest policy reported approx. 5,000 illegal or uncontrolled waste dumps.  Around 700 contain dangerous wastes: it appears no measures have been taken regarding ground, water or air pollution.
2. Landfills have a negative impact on all Italy’s regions: breaching the framework directive on waste Directive 75/442/EEC, amended by Directive 91/156/EEC; the Dangerous Waste Directive 91/689/EEC, and the Landfill Directive 1999/31/EC.
3. The Commission will also take Italy to Court for a Landfill in the province of Verona, which contains unlicensed dangerous waste.
4. The Commission will send a final warning to Italy on the Landfill Directive which was implemented on 27^th march 2003, some 20 months after implementation was due.

Failure to fully implement the Directive on recycling vehicles:

Italy has not fully implemented Directive 2000/53/EC

The Absence of Environmental Impact Assessments (EIA)

Italy will be taken to Court for failure to correctly implement Directive 85/337/EEC

1. Italian legislation exempts certain waste recovery installations from the obligation to carry out an EIA. In Lombardy alone some 3,000 waste installations have thus avoided EIAs.
2. A project in Milazzo (Messina) for recycling accumulators containing lead should have undergone an E.I.A.
3. No E.I.A. was carried out on the third phase of a very large incineration plant in Brescia.  Having a capacity of 700,000 tonnes per year, it is one of the largest in Europe.  There has also been a breach of the Directive for incineration of waste (2000/76/EC).
4. Italy will also receive a final warning regarding national application of EIAs on “strategic works carried out in the national interest”.  It is considered this allows major amendments to be made to certain projects without their being evaluated.
5. Italy has received a final written warning regarding its verification procedure which exempts developments from EIAs if EIA application has not received a response within 60 days.
6. The final written warning relates to a quarry in Monte Bruzeta (Alessandria province).  No verification was made to see if an EIA was required.

Breaches of Community nature protection legislation

This relates to four breaches of the ‘Habitats’ (Directive 92/43/EEC) and ‘Bird’ (Directive 79/409/EEC) directives which creates a community network of protected zones called “Natura 2000”. The four projects are:

1. An industrial zone set up in the Manfredonia region (Foggia province)
2. Construction of a forest road and a paved way in natural parks in the Dolomites (Bolzano province)
3. Construction of new ski infrastructure for a world ski-ing championship due to take place in the Stelvio national park in 2005.
4. Several potentially damaging projects in the north of Lake Como.

Pollution of waterways by urban waste water

Three infractions are noted in relation to Directive 91/271/CEE

1. Final warning sent regarding severe pollution in the Candelaro river (Foggia province).
2. An other infraction relates to waste water treatment plans in Varese province which should have been put in place by end 1998.
3. Italy is one of a number of Member States which should have put in place waste water units in various villages and settlements by 31^st December 2000.

Along with other member states, Italy had not imposed the Water Framework Directive (2000/60/EC) into national law by 22^nd December 2003.

Infractions of air quality legislation

1. Failure to transpose Directive regarding standards for fuel quality (2003/17/CE amending Directive 98/70/CE). 
2. Problems relating to measurement of atmospheric pollution by particles (PM10) and public information in Rome (Council Directive 96/62/EC of 27th September 1996, and Directive 1999/30/CE of 22^nd April 1999).
3. By 9^th September 2003, Italy had neither notified nor adopted national legislation relating to EU Directive for reduction of tropospheric ozone (smog) (2002/3/EC).

Absence of protection for the ozone layer : The Commission will send Italy a final written warning for breaching community ruling on reduction of chemical substances that harm the ozone layer (e.g. CFC, HCFCs etc).

Italy, like many other member states, will receive a first written warning for failure to supply a complete and detailed report on methyl bromide for commercial cultivation.

IPPC: The Commission will send a final written warning to Italy regarding the 1996 Directive (96/61/EC) on Integrated Pollution Prevent and Control which regulates the activity of many industrial and agricultural installations.

Emissions trading: Italy will receive a first written warning regarding the system for exchanging quotas for greenhouse gas emission: this should have been applied by 31^st December 2003.

The Commission pursues legal action against Greece for 9 EU environmental law cases

1. Failure to eliminate carcinogenic chemicals -  in 2003 the ECJ (Ref: Case C-83/02) declared that Greece had failed to fulfil its obligations under the PCB Directive.  Despite the Court ruling and several formal and informal warnings by the Commission, Greece has only partly fulfilled its obligation and now is being sent a first warning.
2. Dangerous transport of sludge from the urban wastewater treatment plant in Psitallia near Athens.  The plant was co-financed by the EU from the Cohesion Fund.  It treats wastewater from Athens and generates 300 tonnes of sludge a day.  This will rise to 800 when the new system becomes fully operational.  Sludge generated is sent untreated to landfill 21km away.
3. Failure to protect a rare viper on Milos This relates to a rare species ‘vipera schweizeri’ protected under the Habitats Directive.  Protection measures are considered insufficient and the case is now being referred to the European Court.
4. Illegal waste dumping in a Natura 2000 site This is a Court referral relating to an illegal waste landfill in Maroulas on Crete.  The unauthorised landfill endangers human health, violates Habitats and Birds Directives and the Waste Framework Directive.  The Commission considers the Environmental Impact Assessment carried out was superficial and has not assessed the impact.

5.      Failure to adopt and notify national legislation on the Ozone Directive (Directive 2000/3/EC relating to ozone in ambient air) This obliges Member States to inform the public when smog reaches certain concentrations.  Higher concentrations of ground-level ozones can cause respiratory problems and aggravate asthma.  Greece is being sent a final written warning.

Along with a number of other Member States, Greece will receive written warnings regarding the following failures:

1. to adopt and notify transposition of Directive 2003/87/EC establishing EU greenhouse gas emissions trading system (final written warning)
2. to submit its national allocation plan by 31^st March 2004 on allowances Greece intends to allocate to its industries so they can participate in the EU emissions trading scheme in 2005 (first written warning)
3. to submit reports on the use of the pesticide methyl bromide on traded crops  (Directive 2037/2000) (first written warning)
4. to meet a December 2000 deadline for installing proper wastewater discharge treatment from cities and towns with >15,000 inhabitants under the Urban Wastewater Treatment Directive (first written warning)

The European Commission is taking legal action against France in eight separate cases

France has been first written warnings for non-execution of three earlier rulings by the European Court of Justice.

1.      Nature conservation: On 11 September 2001, the Court found that France had still not put forward enough sites for the protection of species and habitats mentioned in the EU’s Habitats Directive (case C-220/99).

2.      Citizens’ access to environmental information   (Reference 26 June 2003, European Court of Justice Case C-233/00).

3.      EU’s Directive on Discharges of Dangerous Substances to Water (Failure to comply with Court ruling of 12 June 2003, Case C-130/01).  This Directive dates from 1976.  France had still not adopted legislation implementing the provision on pollution-reduction programmes.

The Commission has furthermore decided to refer France to the European Court of Justice over the existence of numerous illegal and uncontrolled landfills across the country .8,434 sites have been identified by the Commission in France’s 95 departmental waste management plans.

In a separate case, the Commission decided to refer France to the European Court of Justice because of environmental problems associated with the Bistade landfill in the municipality of Sainte Marie de Kerque in the Pas de Calais department in the north of France. (Problems to residents’ health)

Along with several other Member States, France has received three first written warnings for the following failures:

1.       to draw up plans to reduce air pollution in areas where  limit values for a number of air pollutants have been exceeded;

2.       to submit certain reports on the use of methyl bromide, a pesticide that damages the Earth's protective ozone layer and must be phased out under the EU Ozone Regulation, which implements the 1987 Montreal Protocol on ozone-depleting substances;

3.       to meet a December 2000 deadline for installing proper treatment for waste-water discharges from cities and towns with more than 15,000 inhabitants under the Urban Waste Water Treatment Directive.

The Commission is taking action against Portugal for 7 separate cases

1. In a 2002 ruling, the European Court of Justice confirmed that Portugal had breached parts of both the Habitats Directive and the Wild Birds Directive.
2. Portugal will receive a final written warning regarding modification to a special protection area for birds “Moura/Mourão/Barrancos”.
3. Portugal is being referred to the European Court of Justice in relation to the Fuel Standards Directive.
4. Portugal will receive a first written warning for failure to draw up plans to reduce air pollution in areas where the limit values for a number of air pollutants have been exceed.
5. A further first written warning is to be sent regarding failure to submit and complete reports on the use of methyl bromide on traded crops (Regulation 2037/2000 of 29^th June 2000 on substances that deplete the ozone layer).
6. Portugal, like a number of other Member States, has failed to adopt national legislation to give effect to a Directive establishing the EU greenhouse gas emissions trading schemes  (Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community)
7.  Portugal will receive a final written warning as it has failed to fully transpose into national law the requirements of the Water Framework Directive (Directive 2000/60/EC).

The Commission pursues legal action against Spain for 7 EU environmental law cases

An ECJ ruling of 12^th June 2003 (Case C-446/01) declared that 5 waste disposal sites in Spain were illegal and in breach of the EU’s Waste Framework Directive.  Two have since been properly closed down and sealed but problems persist with three and a first written warning is being sent regarding compliance with the ruling:

1) A site at Malaga is supposed to be closed down once a waste transfer plant at Fuengirola is constructed.  Owing to legal problems construction of the waste plant is at a standstill and waste is being deposited next to the old illegal landfill.

2) A site at Sntalla del Bierzo (Leon) no longer operates but waste that was dumped is still there and the site is not equipped/authorised to hold this waste.

3)      A site at Ca na Putxa-Sa Roca in Ibiza is being closed but this is being done step-by-step and the site is still operating.

1. Uncontrolled waste disposal sites in Almeria: Spain has been sent a final written warning over three uncontrolled waste disposal sites which do not have permits or have permits that do not meet requirements of the Waste Framework Directive and the Landfill Directive.
2. Water pollution in the Pontevedra-Poio-Marin area A final written warning has been sent regarding the discharge of wastewater which includes mercury into the estuary of Pentevedra.  This violates both the Urban Wastewater Treatment Directive (91/271/EEC) and the Directive on discharge of dangerous substances to water (76/464/EEC)
3. Lack of wastewater treatment in other Spanish towns and cities: Around 200 Spanish cities have missed a 31^st December 2000 deadline for installing property wastewater discharge treatment in cities with over 15,000 inhabitants.  A first written warning is being sent.
4. Impact of a planned airport on a bird area: A final written warning has been sent regarding failure to carry out an appropriate Environmental Impact Assessment (EIA) on a project for construction an airport in the province of Ciudad Real within the Autonomous Community of Castilla-La Mancha.  The Commission believes studies carried out do not provide for the necessary impact assessment that that the EIA Directive (85/337/EC) and the Wild Birds Directive (79/409/EEC) have not been applied correctly.

Along with several other Member States Spain has received two warnings regarding failures:

1. to adopt and notify transposition of the Directive establishing the EU greenhouse gas emissions trading system by 31^st December 2003 (final written warning)
2. to submit reports by 31^st March 2004 on uses of the pesticide methyl bromide on traded crops. (first written warning)

The Commission is taking action against the U.K. for seven separate cases

1.      The Commission will refer the United Kingdom to the European Court of Justice because its legislation implementing EU nature conservation laws is not strict enough concerning trade in endangered and rare animals and plants. (Reference: the Habitats Directive Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna and Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds known as the Wild Birds Directive).

2.      The Commission is also referring the U.K. to the European Court of Justice regarding Environmental Impact Assessments on Crown Land (i.e. land that belongs to the state). Projects on Crown Land are generally excluded from British planning legislation and are, therefore, not subject to UK regulations that transpose the EU Directive. In response to warnings by the Commission, the UK authorities explained that there are administrative procedures in place to ensure assessment and public consultation, but they acknowledged the need for legislative measures.  Their best-case scenario to prepare and adopt the necessary legislation is at the end of 2005, which the Commission considers too tardy.

3.      The U.K. will receive a final warning letter regarding lack of protection of sensitive rivers and coastal waters in Northern Ireland from urban wastewater discharges (problem of eutrophication).

4.      Along with several other Member States the U.K. will receive a first written warning for its failure to meet the 31^st December 2000 deadline for the Urban Wastewater Directive.

Also together with several other member States the U.K. will receive  written warnings for failure to:

1.      draw up air pollution reduction plans by 31^st December 2003 where air pollutant limit values have been exceeded (first warning).

2.      submit reports on uses of the pesticide methyl bromide on traded crops (first warning).

3.      to transpose the Water Framework Directive by 22^nd December 2003 in Gibraltar (final warning)

4.      to adopt and notify by 31 December 2003 the transposition of the Directive establishing the EU greenhouse gas emissions trading system in Gibraltar.

Commission pursues legal action against Luxembourg for six separate cases

1. The Commission has sent Luxembourg a final written warning due to gaps in its legislation implementing the ‘Seveso II Directive’ (96/82/EC) on control of major-accident hazards involving dangerous substances.  Problems relate to provisions on public information and land-use planning.
2. Final written warning on urban wastewater treatment: Luxembourg has designated all rivers on its territory as sensitive to eutrophication but has not achieved phosphorous and nitrogen reduction targets in wastewater that enters treatment plans – targets should have been met in 1998.
3. Missing report on experience with IPPC Directive: A final written warning is being sent for missing a reporting deadline of 30.09.2003 on experience with the Integrated Pollution Prevention and Control Directive.

Along with several other Member States, Luxembourg has received warnings relating to the following failures:

1.      transposition due for 22nd December 2003 of the Water Framework Directive (final written warning)

2.      adoption and notification due by 31st December 2003 of transposition of the Directive establishing the EU greenhouse gas emissions trading system (final written warning)

3.      drawing up plans by 31^st December 2003 to reduce air pollution in areas where the limit values for a number of air pollutants have been exceeded (first written warning)

The Commission is taking action against the Austria for four separate cases

1.      Gaps in Austrian nature protection laws: Nature protection legislation in Austria is quite complex: the Länder are responsible for ensuring correct transposition of the Habitats and Wild Birds Directives. Although Austria has sent the Commission a number of pieces of legislation, these do not cover all obligations.  After earlier Commission warnings, Austria announced plans to adopt further legislation.  The Commission has not yet received this, and has decided to refer Austria to the Court of Justice.

2.      Gaps in controlling risks from major industrial accidents: A final warning has been sent to Austria concerning gaps in legislation transposing the Seveso II Directive. This Directive aims at inclusion of potential risks of major industrial accidents into overall risk assessments and emergency planning. Austria adopted additional legislation in response to Commission investigations in 2002. Gaps remain: including transposition of the Directive in various sectors/specific establishments (hot steam boilers, mining establishments, shootings and explosives producers, gas pipelines etc.). Rules on emergency plans and land-use planning are also incorrect in some of the Länders’ laws. Austria will be requested to streamline its legislation to fully include these aspects.

3.      Free take-back of waste cars improperly limited: The Commission has sent a final warning to Austria over gaps in the national legislation used to implement the End-of Life Vehicles Directive. Austria has not correctly implemented free take-back for dismantling of cars under Austrian law. The producers’ obligation is limited to cars of their own brand and registered in Austria.

4.      Missing plans for improvement of air quality: Austria, similarly to a number of other Member States, received a first warning letter for failure to adopt plans for improvement in zones and agglomerations, where the air quality is unsatisfactory.

The Commission is taking action against Germany for four separate cases

Gaps in transposition the End-of-Life Vehicles Directive: this should have been transposed into German national law through the End-of-Life Vehicle Act of 2002. An in-depth analysis of the German Act of 2002, led the Commission to conclude that a number of gaps exist.  These include: reduction of the scope of the Directive, the exemptions to the free take-back obligation and the scope of the substance ban.  The Commission will now send Germany a final written warning.

Water management, outdoor air pollution and ozone-depleting substances: Along with several other Member States, Germany has received three warnings drawing attention to the following failures:

1.  to transpose the Water Framework Directive by 22^nd December 2003.  This seeks to achieve “good status” of all waters in Europe through integrated, cross-border water management (final written warning);

2.  to draw up plans by 31 December 2003 to reduce air pollution in areas where the limit values for a number of air pollutants have been exceeded (first written warning);

3.  to submit, reports on uses of the pesticide methyl bromide on traded crops by 31 March 2004. Methyl bromide damages the Earth's protective ozone layer and must be phased out under the EU Ozone Regulation (first written warning).

Protecting the ozone layer – why the Commission is taking legal action against nine Member States Belgium, France, Germany, Greece, Ireland, Italy, Portugal, Spain and the United Kingdom have either not reported or reported insubstantially. The Montreal Protocol, one of the most successful environmental treaties to date, and the EU's Ozone Regulation, which implements this agreement, aim to curb and eventually eliminate the use of substances that deplete the stratospheric ozone layer, such as CFCs, HCFCs, halons and the pesticide methyl bromide. Methyl bromide was once widely used by farmers all over the world to kill pests in soil and food processing facilities. Since 1995, it has been gradually phased out, with a ban on production and import taking effect in 2005 in developed countries.

Belgium failed to legislation on urban waste water within permitted time-scale: (Case Ref: C-27/03). Full text Breaches of legislation related to Directive 91/271/CEE - Decision 93/481/CEE – collection and treatment of urban waste water.  Belgium was obliged to pay costs.

The European Commission has decided to refer France referred to the European Court of Justice over the existence of numerous illegal and uncontrolled landfills across the country .8,434 sites have been identified by the Commission in France’s 95 departmental waste management plans. Landfills are required to be strictly controlled and supervised under the terms of the Waste Framework Directive (Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC ) and the Landfill Directive (Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste). The Waste Framework Directive lays down basic rules for Member States on handling waste and defines what is meant by "waste".

France, Finland and U.K. failed to legislate on end-of-life vehicles: (Case Ref: France C-331/03, Finland 292/03, U.K. 277/03).  All had failed to transpose Directive 2000/53/CE  in the prescribed time-scale and had to pay costs.