Enlargement and the Environment Acquis

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Cited authorities 21

Cited in

DOI	http://doi.org/10.1111/j.1467-9388.2004.00392.x
Date	01 July 2004
Published date	01 July 2004
Author	Kirstyn Inglis

RECIEL 13 (2) 2004. ISSN 0962 8797

135

Enlargement and the Environment

Acquis

Kirstyn Inglis

INTRODUCTION

The sixth enlargement of the EU undoubtedly presents

its environmental law with greater challenges than any

previous enlargement.

The current Accession Treaty

provides for the accession to the previously existing EU

of 15 Member States (the Fifteen) by eight central and

eastern European countries

(CEECs), together with

Malta and Cyprus (the Ten). It entered into force on

1 May 2004. By 2020, the EU may well incorporate

many more European countries. Bulgaria and Romania

will accede in 2007. Turkey is already a candidate

country, although accession negotiations have still to

begin. Croatia and the other Balkan countries, as well

as Albania and Ukraine, also hold accession hopes.

The CEECs have made momentous progress in tack-

ling the environmental devastation of irresponsible

industrialization during the Communist era and in

approximating

their environmental policy and laws

with the EU. However, upon accession, they will all lag

behind the Fifteen in terms of the necessary adminis-

trative capacity and infrastructure to comply with the

environment chapter of the

acquis communautaire

in full. Around 30% of their joint total area contains a

rich biodiversity that must be managed in a frame-

work of sustainable development.

The Ten have new

typical and endangered species and habitats, to be

covered by the

acquis

, as well as a new bio-geographic

region – the Pannonian region.

While the EU has an impressive body of environment

legislation in place, the increased economic activity

as a result of EU integration has been accompanied

by a serious deterioration in the general state of the

environment

and an increased burden on the global

environment in terms of consumption of natural

resources.

The tensions between national sovereignty

and other (economic) priorities, on the one hand, and

EC competences and the goals of an effective environ-

ment policy, on the other, are particularly strained at

policy and law-making levels, as well as in implementa-

tion and enforcement. Furthermore, the environment

acquis

has continuously suffered a serious implementa-

tion and enforcement def‌icit by the Fifteen.

This article identif‌ies the main challenges facing the

environment

acquis

in an enlarged EU. The need for

the new Members to f‌ind f‌inancing and investment for

infrastructure projects will continue for many years

Commission Communication of 20 May 1998 on Accession Strategies

for Environment: Meeting the Challenge of Enlargement with the

Candidate Countries in Central and Eastern Europe, COM (1998) 294.

Accession Treaty (Athens, 16 April 2003), [2003] OJ L236/1 (Acces-

sion Treaty). Accession is subject only to those derogations and

safeguard clauses specif‌ied in the Accession Treaty (transitional

arrangements). As at 5 January 2004, only Estonia and Slovenia had

not formally notif‌ied ratif‌ication. The Fifteen did not all hold national

referenda. As at 5 January 2004, Austria, Germany, Denmark, Spain,

the UK, Ireland and Finland had deposited instruments of ratif‌ication

with the Ministry of Foreign Affairs of the Italian Republic.

Czech Republic and the Republics of Estonia, Hungary, Latvia,

Lithuania, Poland, Slovakia and Slovenia.

‘Approximation of laws’ is the legal terminology used in Community

law, since its inception, to denote how the Member States, and third

country partners, approximate to the EC law rather than replace their

national laws. Approximation may involve amendment or adaptations

to national laws or the adoption of supplementar y laws for example,

but the means is left to the discretion of the Member States.

The ‘

acquis communautaire

’ encompasses the common rights and

obligations that bind all the Member States together within the EU.

It is constantly evolving and comprises the content, principles and

political objectives of the treaties; the legislation adopted in application

of the treaties and the case law of the European Court of Justice; the

declarations and resolutions adopted by the Union; measures relat-

ing to the common foreign and security policy; measures relating to

justice and home affairs; international agreements concluded by the

Community and those concluded by the Member States between

themselves in the f‌ield of the Union’s activities. Thus the

acquis

comprises not only Community law, in the strict sense, but also all

acts adopted under the Second and Third Pillars of the EU and the

common objectives laid down in the treaties. See C. Delcourt, ‘The

Acquis Communautaire

: Has the Concept had its Day’, 38

Common

Market Law Review

(2001), 829– 870.

See J. Klarer and P. Francis, ‘Regional Overview’, in J. Klarer (ed.),

The Environmental Challenge for Central European Economies in

Transition

(Wiley, 1997), 1–66.

At the moment, the EU has six biogeographic regions: Continental,

Mediterranean, Alpine, Atlantic, Macaronesian and Boreal.

The European Environment Agency,

Europe’s Environment: the

Second Assessment

(EEA, 1998), at 4, which is conf‌irmed by Euro-

pean Environment Agency,

Europe’s Environment: the Third Assess-

ment

(EEA, 2003), at 5. The third report highlights certain areas where

environment policies that have been properly developed and imple-

mented have improved the state of the environment and reduced

pressures on it, but also highlights areas of degradation, both in the

EU and in the CEECs and beyond; see the latter report at 5–7.

European Environment Agency,

Total Material Requirement of the

European Union

, Report No 55 (EEA, 2001), and no major change

to this situation is reported in European Environment Agency,

Envir-

onmental Signals 2002

(EEA, 2002), at 3.

See the section below entitled Evolution of the Environment

Acquis

after Enlargement.

KIRSTYN INGLIS RECIEL 13 (2) 2004

136

after enlargement. This undermines the true potential

for implementation of the corner stones of the existing

acquis

by the CEECs. Efforts to improve administrat-

ive and judicial capacity will also continue to be a

major challenge after enlargement. Decision making

among such a diversity of countries will necessarily

affect new legislation and policy initiatives. Such a

multiplicity of countries can be expected to exacerbate

the implementation and enforcement def‌icit in the

environment

acquis

of the enlarged Union

Recent EC

governance initiatives become vital in making the

existing

acquis

effective after enlargement.

INVESTMENT AND CAPACITY

BUILDING AFTER

ENLARGEMENT

This enlargement is particularly challenging from the

perspective of EC environmental law when compared

to other chapters of the

acquis communautaire

. As is

the case for any other chapter of the

acquis

, the future

new Member States are required to have transposed

and implemented the

acquis

in its entirety, which

includes building up the necessary administrative

capacity for enforcement, in order to meet fully their

Treaty obligations as Member States of the EU. The

issues that arise in the monitoring and enforcement of

the environment

acquis

contrast with other chapters

of the

acquis communautaire

. However, before looking

at the provision for transitional arrangements set out

in the Accession Treaty, it is useful to consider the lim-

itations that external investment and f‌inancing present

to the environment

acquis

. The single most challeng-

ing task facing the new Member States in respect of the

environment

acquis

compared to other chapters, will

be to secure the necessary investment. Compliance will

involve considerable investment, not only in building

up the necessary administrative capacity but in the

necessary infrastructure upgrade required to implement

the environment

acquis

on waste, water, energy and

integrated pollution prevention and control (IPPC).

FULL COMPLIANCE WITH THE

ENVIRONMENT

ACQUIS

ON 1 MAY

2004, DUE TO THE INVESTMENT

HURDLE, WOULD HAVE BEEN

IMPOSSIBLE

In its original strategy for accession to the environment

acquis

the Commission estimated that implementation

would require EUR120 billion, of which no more

than 10% could be met by the EU.

The more detailed

compliance-costing reports of 1997

give more of an idea

of the magnitude of capital and recurring costs. But

these reports are fraught with uncertainties and meth-

odological weaknesses (as noted in the reports them-

selves), and highlight the need for external f‌inancing

by the CEECs. In 2001, the Commission published its

guide

for the future new Member States to follow when

developing investment strategies for the implementation

of the environment

acquis

and national approximation

strategies. New estimates, outlined there, lowered the

original prediction by 10% to 20% but are not based on

a common methodology with the 1997 f‌igures. However,

the Priority Environment Programme for Accession

(PEPA)

that had been established in 1999 (designed

to develop investment strategies from domestic, foreign

and private sources for 13 of the heaviest directives

Commission Communication of 20 May 1998 in Accession Strat-

egies for Environment: Meeting the Challenge of Enlargement with

the Candidate Countries in Central and Eastern Europe

COM

(1998) 294 f‌inal.

Ibid.

For more information, see the website available at

www.europa.eu.int/comm/environment/enlarg/compcos.pdf>. A separate

report exists for Cyprus, available at

comm/environment/enlarg/cocyp.pdf>.

Commission Communication of 8 June 2001 on the Challenge of

Environmental Financing in the Candidate Countries, COM (2001) 304.

A programme set up by each candidate in accordance with Com-

mission Communication in Accession Strategies for Environment,

n. 11 above, and subsequently with the Commission Communication

on the Challenge of Environmental Financing in the Candidate

Countries, n. 14 above.

Council Directive 91/271/EEC of 21 May 1991 concerning urban

waste water treatment, [1991] OJ L135/40 (Urban Waste Water

Treatment Directive); Council Directive 98/83/EC of 3 November 1998

on the quality of water intended for human consumption, [1998] OJ

L330/32; Council Directive 76/464/EEC of 4 May 1976 on pollution

caused by certain dangerous substances discharged into the aquatic

environment of the Community, [1976] OJ L129/23 (Discharge of

Certain Dangerous Substances into Surface Water Directive); Council

Directive 91/676/EEC of 12 December 1991 concerning the protection

of waters from pollution caused by nitrates from agricultural sources,

[1991] OJ L375/1; Council Directive 1999/31/EC of 26 April 1999 on

the landf‌ill of waste, [1999] OJ L182/1 (Landf‌ill Directive); Council

Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution

from new municipal waste incineration plants, [1989] OJ L163/32

(Municipal Waste Directive); Council Directive 94/67/EC of 16 December

1994 on incineration of hazardous waste, [1994] OJ L365/34 (Hazardous

Waste Directive); European Parliament and Council Directive 94/62/

EC of 20 December 1994 on packaging and packaging waste, [1994]

OJ L365/10 (as amended by Regulation 1882/2003, [2003] OJ L284/

1) (Packaging Waste Directive); Council Directive 88/609/EEC of

24 November 1988 on the limitation of emissions of certain pollutants

into the air from large combustion plants, [1988] OJ L336/1 (Large

Combustion Plant Directive); Directive 98/70/EC of the European

Parliament and the Council of 13 October 1998 relating to the quality

of petrol and diesel fuels, [1998] OJ L350/58; Directive 1999/32/EC of

26 April 1999 relating to a reduction in the sulphur content of cer tain

liquid fuels, [1999] OJ L121/13 (Sulphur Content of Liquid Fuels

Directive); Council Directive 96/61/EC of 24 September 1996 con-

cerning integrated pollution prevention and control (IPPC), [1996] OJ

L257/26 (IPPC Directive); Council Directive 94/63/EC of 20 December

1994 on the control of volatile organic compound (VOC) emissions

resulting from the storage of petrol and its distribution from terminals

to service stations, [1994] OJ L365/24 (VOC Directive). A complete list

is supplied in Annex I to Commission Communication on the Challenge

of Environmental Financing in the Candidate Countries, n. 14 above.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT

ACQUIS

137

in terms of investment) had been devised on the basis

of the 1997 estimates.

According to the Commission,

in the years 2000–2002, the loans signed by inter-

national f‌inancial institutions (IFIs) with all ten new

Member States amounted to EUR5 billion.

If it takes

3 years to attract EUR5 billion (EUR1.666 billion per

year), will it take until 2050 to attract the lower esti-

mate of total f‌inancing needed to apply fully the

acquis

Uncertainties and methodological weakness are inherent

in the process and undermine the f‌inancial planning,

not only for external investment but also for Community

funding both pre-accession and post-accession. The

consequent ‘political and f‌inancial trap for the Union’

identif‌ied by Hager lies in the fact that the headline f‌igure

for needed investments is both too high and too low:

•too high in terms of initial investment because they

ref‌lect the traditional public planning and pricing

context that prevailed in the CEECs at the time of

their inception;

•too low in terms of the follow-on costs, especially

for public budgets in terms of f‌inancial costs,

routine operating costs and maintenance.

Uncertainties and weakness in investment planning

imply uncertainty as to the reliability of timeframes

agreed for transitional arrangements in the environ-

ment

acquis

. As is seen below, the transitional

arrangements relate to those laws that require the

heaviest investment. Financing will inf‌luence the

political priorities of the new Member States and

their willingness to contribute to raising further

environmental standards after their accession to the

Union. Where investment thresholds have to be

revised upwards, the new Member States will have a

solid argument for additional EU contributions in

order that they may meet their post-accession imple-

mentation deadlines.

Additional f‌inancial burdens will also be an argument

for the new Members against their participation in

future EC environment initiatives that involve addi-

tional costs beyond their commitments under the

Accession Treaty.

ADMINISTRATIVE CAPACITY:

HUMAN RESOURCES, MONEY AND

CREDIBLE COMMITMENTS

Certainly, lacks or weaknesses in the administrative

capacity of the future new Members affect their ability

to absorb funding and will therefore also affect the

leverage potential of EU funds for external invest-

ment. The acceding countries have had to build their

administrative and judicial capacities from scratch, in

parallel with the adoption of the

acquis

. Technical and

f‌inancial assistance has been provided to the CEECs

since 1989 in the form of the Phare programme,

beginning with Poland and Hungary but gradually

extending to all of the CEECs, including Bulgaria and

Romania. The ‘accession driven’ approach only began

in 1997 under the reinforced strategy – focusing all

Phare funds on adoption of the entire

acquis

and the

capacity to implement and enforce it.

Prior to this,

Phare was demand driven, in that the recipients

themselves chose how to use Phare resources. Con-

sequently, they progressed in different ways and at

different speeds. The 1995 White Paper,

which listed

all the legislation pertaining to the Internal Market

acquis

, was read by the aspiring Member States as a

goal for their approximation work.

It was only with the launch, in 1997,

of the ‘rein-

forced’ pre-accession strategy by the Agenda 2000

document

that 30% of Phare funds was allocated to

capacity building for the application and enforcement

of the

acquis

generally, the remaining 70% being alloc-

ated to transposition and implementation. This was

also the f‌irst clear signal that the adoption of environ-

mental rules and standards was ‘essential’, despite the

See Commission Communication to Accession Strategies for

Environment, n. 11 above.

Report from the Commission of 5 January 2004, General Report

on Pre-accession Assistance (Phare, ISPA, SAPARD), COM (2003)

844, at 21.

The original estimate stood at EUR120 billion. If it is reduced by

20%, it will stand at under EUR96 billion. An EU contribution of

EUR12 billion would mean that EUR84 billion would have to come

from external sources. If it is the case that EUR1.6666 billion external

investment is found on an annual basis, it would take approximately

50 years to attract the total investment required.

See W. Hager,

Enlargement: Paying for the Green Acquis

(Centre

for European Policy Studies, 2002), at 9–10. Indeed, Hager’s

concluding paragraph, at 68, is dramatic: ‘In sum, while sources of

economic intelligence and the instruments for applying such intelli-

gence exist, the Union’s governance of the enlargement process

is fragmented and lacks an administrative/political focus for any

strategy going beyond formal

acquis

compliance. The costs to the

candidate countries, the future stability of the euro, the Union’s own

budget and last, but by no means least, to the environment are

signif‌icant’.

See P. Nicolaides, ‘Preparing for Accession to the EU: How to

Establish Capacity for Effective and Credible Application of EU

Rules’, in M. Cremona (ed.),

The Enlargement of the European

Union

(Oxford, 2003), 43–78.

Council Regulation 3906/89 of 18 December 1989 on economic

aid to the Republic of Hungary and the Polish People’s Republic,

[1989] OJ L375/11.

Commission Communication ‘Agenda 2000: For a Stronger and Wider

Union’, COM (97) 2000, presented in three volumes, Vol. I at 49 –50.

Commission White Paper of 3 May 1995, Preparing the CEECs

for Integration into the Internal Market, COM (95) 163.

Agenda 2000, n. 23 above, based on the Europe Agreements, as

re-oriented by, among other instruments, the Copenhagen Criteria,

set out the basic elements of the strategy, including the legal and

economic instruments and institutional mechanisms for the pre-

accession phase, including the negotiations.

Ibid.

KIRSTYN INGLIS RECIEL 13 (2) 2004

138

fact that the full compliance with the environment

acquis

would not be possible upon accession.

As the

Commission noted:

The persistence of a gap between levels of environmental

protection in present and new Members would distort the

functioning of the Single Market and could lead to a protec-

tionist reaction. This situation would affect the Union’s

capability to develop its environmental policy.

Capacity building will continue to be a priority after

enlargement. As seen below, the work to be done in

the months leading up to the European Commission’s

f‌inal reports on progress in advance of accession

was considerable. The Court of Auditors, in a report

published on 21 May 2003

(examining the years

1995–2001), pointed out that the future new Member

States did not have suff‌icient institutional capacities to

develop environmental and f‌inancing strategies at a

suff‌iciently early stage. This resulted in problems with

project preparation and tendering for environmental

infrastructure projects. In particular, the Court of

Auditors highlighted the need to reduce EU grant

levels below the 75% ceiling even further than has

already been done in order to cover more projects. The

Court of Auditors also criticized the Commission for

its ‘over-emphasis on twinning’.

This state of affairs can be attributed to various cir-

cumstances, including the numerous re-orientations

of the approximation exercise undertaken by the

CEECs as a result of the accession strategy. In response

to this criticism, the Commission explains,

in its

response accompanying the Special Reports, the

historical and other limitations placed upon it.

Signif‌icantly, however, the Commission shares the

concerns expressed by the Court of Auditors. Phare

funding, inspired by the PEPA, concentrated on these

concerns during 2003 and the Commission has pro-

vided assistance to reduce def‌iciencies in tendering

and contracting. However, the grant rate has remained

at a 65% ceiling.

A new Transition Facility is also established by the

Accession Treaty to f‌inance further the strengthening

and development of administrative capacity and the

continued implementation and enforcement of EC law,

as well as to foster best practice among peers. Article

34 of the Act of Accession

provides for temporary

f‌inancial assistance to be given to the new Member

States: EUR200 million for 2004, EUR120 million for

2005, EUR60 million for 2006. Implementation of

Phare projects decided before 1 January 2004 (and

their equivalents for Cyprus and Malta) will continue

for 3 years. The implementation of contracts and pay-

ments for pre-accession assistance will be managed in

the new Member States by their national funds, sub-

ject to

special

ex-ante

control of the relevant body by

the European Commission.

Any country that fails

to obtain the

ex-ante

waiver could see its portion of

the money being either suspended or withdrawn. The

Commission highlights this as an area of ‘serious con-

cern’ in its November 2003

Comprehensive Monitor-

ing Report

, despite its positive predictions in its report

on pre-accession assistance for 2002.

The Instrument for Structural Policy for Pre-Accession

(ISPA)

is the pre-accession programme for funding

large-scale infrastructure projects in the transport and

environment sectors and SAPARD

is the pre-accession

programme for agricultural support and rural develop-

ment. ISPA and SAPARD projects will be succeeded

by the Cohesion Fund and the European Agricultural

Guidance and Guarantee Fund (EAGGF), respectively.

Thus, ISPA and SAPARD projects will fall under those

budget headings. Since 1 January 2004, the new Member

States have been eligible for structural funding under

the European Regional Development Fund (ERDF)

Ibid., at 56. See also the Commission Communication of 20 May

1998 on Accession Strategies for the Environment, COM (1998)

294 and the Commission staff working paper of 25 August 1997,

‘The Road Map’ SEC (1997) 1608.

See Agenda 2000, n. 23 above, Vol. II, at 56.

See Special Report No 5/2003 concer ning PHARE and ISPA

funding of environmental projects in the candidate countries

together with Commission replies, Court of Auditors, [2003] OJ

C167/1.

See Special Report No 6/2003 concer ning PHARE and ISPA

funding of environmental projects in the candidate countries

together with Commission replies, Court of Auditors, [2003] OJ

C167/21, at 31.

See the responses of the Commission accompanying the Special

Reports, ibid., and n. 29 above.

All Treaties of Accession have an Act of Accession. The treaty

expressly mentions that the accompanying Act of Accession forms

an integral part of it. The Act of Accession contains the conditions

of admission and adjustments to the treaties on which the Union is

founded. These conditions and adjustments

may

be altered. The

body of the treaty itself is not subject to alteration. See n. 2 above.

Article 33(4) of the Act of Accession makes special provision for

the use of ISPA funds for the purposes of maintaining the neces-

sary statutory staff in the new Member States for 15 months after

the date of accession. This is impor tant because ‘off‌icials assigned

to posts in the new Member States before accession and who are

required to remain in service in those States after the date of acces-

sion shall benef‌it, as an exception, from the same f‌inancial and

material conditions as were applied to the Commission before

accession – in accordance with Annex X to the Staff Regulations of

Off‌icials and the Conditions of Employment of Other Servants of the

European Communities (Reg. 259/68, as amended). Certain ISPA

funds will be used together with the Community Budget (Part B –

‘Support expenditure for operation’).

See also the General Report of the Commission of 5 January

2004 on Pre-Accession Assistance (Phare–ISPA–SAPARD) in

2002, COM (2003) 844, at 14–17.

Council Regulation 1267/99 establishing an instrument for struc-

tural policies for pre-accession, [1999] OJ L161/73.

Council Regulation 1268/99 on Community support for pre-

accession measures for agriculture and rural development in the

applicant countries of central and eastern Europe in the pre-

accession period, [1999] OJ L161/87.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT

ACQUIS

139

and the European Social Fund.

The main problem

concerning the structural and cohesion funds, accord-

ing to the European Commission’s November 2003

Comprehensive Monitoring Report

and the above

reports of the Court of Auditors, has been the lack of

a suff‌icient number of quality projects ready to be

launched. The start of the programmes will be delayed

if the legislative framework, including the EU rules

on public procurement, State Aid and environment

protection is not in place – only Lithuania does not

face this risk. Malta is singled out for needing to

strengthen procedures and institutions to implement

the structural funds. Financial management is the

main challenge for the CEECs and Malta.

However, adequacy of administrative capacity is more

than a matter of f‌inancing. While all (existing and

future) Member States are obliged to transpose and

comply with the

acquis, the institutions of the Union

have no formal jurisdiction to evaluate the judicial and

administrative capacity of the Member States in order

to do so.39 Member States are encouraged to improve

their administrative structures through more informal

channels to strengthen their capacity. For example,

this is underlined in the 2001 Recommendation on

Minimum Criteria for Environmental Inspections in

Member States,40 whereby the Member States are urged

to supply information on staff‌ing levels and other

resources of environmental inspection authorities.

The pre-accession strategy approach to building up

and reinforcing administrative and judicial capacity in

the future new Member States has been to ensure that

enough qualif‌ied staff are employed and that enough

money is made available in order to meet the end goal

of implementation and enforcement. Nicolaides points

out that this approach lacks the necessary ingredient

of ‘credible commitment’ to apply the acquis once they

have become Member States. He points to the weak-

ness in the eight methods the Union uses to ensure

effective implementation of the acquis and advises

the future new Members to adopt an institutional

approach to building administrative capacity.41 Through

the ‘institutional approach’ that he describes, Nico-

laides maintains that the future new Member States

will be able:

to demonstrate to the EU a credible commitment to apply

the acquis communautaire if they delegate that task to

suff‌iciently empowered and accountable institutions which

both have considerable decision-making independence and

are subject to specif‌ic performance obligations.42

IMPLICATIONS OF THE

ACCESSION TREATY

It has been apparent, since the pre-accession strategy

was enhanced in 1997, that transitional arrangements

were unavoidable if the political momentum of acces-

sion was to be maintained. Before 1 May 2004, the

future new Member States had a considerable work-

load to complete. The Accession Treaty, to a certain

extent, continues the pre-accession conditionality

for the f‌irst years after enlargement – the carrot of

enlargement will no longer exist as the incentive for

compliance with the acquis communautaire. Recent

EC governance initiatives will be vital to the EU-wide

implementation and enforcement of the environment

acquis in the Member States.

THE TRANSITIONAL

ARRANGEMENTS

Technical adaptations to various laws in order to apply

the transitional arrangements to each of the candid-

ates are provided for in Article 24 of the Act of Acces-

sion,43 referring to Annexes V through to XIV. Each

annex relates to a different new Member State and,

as was the procedure with previous enlargements, spe-

cif‌ies the extent to which they are entitled to derogate

from Community acts in line with the transitional

arrangements agreed at the December 2002 Luxem-

bourg European Council. The derogations are transi-

tional arrangements and do not relate to the entirety

of a piece of legislation. The exact nature of the

derogation is specif‌ied in the relevant country annex –

and the derogations for each of the future new Member

States are not the same.

The derogations in the chapter on the free movement

of goods are also minimal and do not relate to the

environment acquis.44 Other derogations are far

longer in duration and will involve considerable con-

tinued efforts, including f‌inancial, such as in the case

of the environment acquis where Poland45 will benef‌it

from a derogation in respect of large combustion

plants until 2017. Additionally, Poland has been

granted limited derogations from the State Aid acquis

to support necessary investments in meeting the

environment acquis.46 No other Member State has

agreed to such transitional arrangements on State Aid.

Of course, the existing community rules on green State

37 Act of Accession, Article 32.

38 See COM (2003) 844, n. 34 above.

39 See P. Nicolaides, n. 21 above.

40 Recommendation 2001/331, [2001] OJ L118/48.

41 See P. Nicolaides, n. 21 above, at 64–67.

42 Ibid., at 67.

43 Act of Accession, Ar ticle 54 expressly allows for the application of

the time limits set out in Annexes V–XIV.

44 These relate only to licensing of medical equipment and the

marketing authorizations for pharmaceutical products as described

earlier in the text, concerning Malta, Cyprus, Poland and Slovenia.

45 See Act of Accession, Annex XII, Articles 13A–E, at 3810–3844.

46 Ibid., Ar ticle 5(1)(a)(II)(bb) and 5(2), at 3764–3844 and 3770–

3773.

KIRSTYN INGLIS RECIEL 13 (2) 2004

140

Aid will be valuable tools for all (including the new)

Member States.47 The transitional arrangements pro-

vide derogations from Articles 87–89 EC and concern

State Aid for environmental protection standards for

which a transitional period has been granted for the

duration of the environmental transitional arrangement.

A regional ceiling applies, with a 15% supplement for

small and medium-sized enterprises (SMEs). A 30%

aid intensity will be allowed until the end of 2010 for

IPPC installations entitled to transitional arrangements

and a 30% aid intensity is permitted until 31 October

2007 for IPPC-related investments that are not covered

by a transitional arrangement under the environment

chapter. Large combustion plants that are subject to

transitional arrangements will be entitled to a State

Aid intensity of 50% of investment.

The transitional arrangements referred to in Article 24

of the Act of Accession and worked out in the ten country

annexes enumerate the content of the European Com-

mission’s Guide to the Negotiations,48 published almost

immediately after the ‘closure’ of the negotiations in

December 2002. In no circumstances may the enforce-

ment of national rules during the transitional periods

lead to border controls between the Member States.49

Due to the fact that the acquis is constantly evolving,

the candidates are ‘approximating’ to a moving target

and the references of the acquis legislation may well

change between now and the date of accession (Article

55 of the Act of Accession),50 where new acquis meas-

ures have been adopted between 1 November 200251

and signature of the Accession Treaty. This is more

about adapting annexes to the Accession Treaty con-

taining transitional arrangements to take account of

evolutions in the acquis before accession rather than

to add further derogations to the country annexes.

Thus, the derogations themselves will not change.

In its Enlargement Strategy Paper for 2000,52 repeat-

ing its approach outlined in Agenda 2000 in 1997, the

Commission emphasized that transitional arrangements

would be exceptional, limited in time and scope, and

accompanied by a plan with clearly def‌ined stages

for application of the acquis. They must not involve

amendments to the rules or policies of the Union,

disrupt their proper functioning or lead to signif‌icant

distortions of competition. In this connection, account

must be taken of the interests of the Union, the

applicant country and the other applicant States. In

the negotiations, the Commission followed this approach.53

Transition periods will be few and short. Where con-

siderable adaptations and substantial efforts, including

f‌inancing, are required, transition arrangements have

been spread over a def‌inite period of time. That one

country was given a transitional arrangement was not

taken as a precedent for the other countries nor was the

fact that transitional measures were granted in a previous

accession. The transitional arrangements agreed for

the environment acquis are second only in number to

the agriculture chapter. The internal market acquis

has not been addressed as a chapter of the acquis in

its own right but is considered where relevant. Inter-

nal market rules arise in the context of the 31 chapters

of the acquis, including the environment chapter.

Requests for transitional arrangements by the acced-

ing countries were divided into three types54 by the

Commission:

•Acceptable: being transitional measures of a technical

nature that pose no signif‌icant problem. Acceptance

of this type of request has advanced negotiations in

certain chapters from early on in the negotiations.

•Negotiable: being those requests with a more sign-

if‌icant impact, in terms of competition or the internal

market, or in time or space. Such transitional meas-

ures were acceptable subject to set conditions and

a time limit. Account was taken of their relationship

to other transitional arrangements or areas of the

acquis without transitional measures or of the coun-

try’s commitment to well-def‌ined plans for imple-

mentation and investment. Necessarily, implications

for competition and the single market were a decisive

factor in the f‌inal grant of the transitional arrange-

ment, as were effects on the economy, health,

safety, the environment, consumers, citizens, other

common policies and the Community budget.

47 See Information from the Commission: Community guidelines on

State Aid for environmental protection, [2001] OJ C37/3. These

guidelines are valid until 31 December 2007.

48 European Commission, Guide to the Negotiations (no off‌icial pub-

lication reference), updated and published on the Europa website in

December 2002 but since removed therefrom.

As noted above, an Act of Accession forms an integral part of the

Accession Treaty itself and contains the conditions of admission and

adjustments to the treaties on which the Union is founded. The

2003 Act of Accession (see n. 2 above) reads: ‘In order not to hamper

the proper functioning of the internal mar ket, the enforcement of the

new Member States’ national rules during the transitional periods

referred to in Annexes V to XIV shall not lead to border controls

between Member States’. Act concerning the conditions of accession of

the Kingdom of Norway, the Republic of Austria, the Republic of Finland

and the Kingdom of Sweden and the adjustments to the Treaties on

which the European Union is founded. This is the same text as in

Article 153 of the Act of Accession for Austria, Finland and Sweden.

50 Ibid., Article 55 reads: ‘At the duly substantiated request of one of

the new Member States, the Council, acting unanimously on a proposal

from the Commission, may, before 1 May 2004, take measures con-

sisting of temporary derogations from acts of the institutions adopted

between November 2002 and the date of the signature of the Treaty

of Accession’.

51 This was just after the 2002 Commission Country Reports that

formed the basis for the December 2002 negotiations, where the

transitional arrangements were agreed.

52 European Commission Enlargement Strategy Paper, Report on

Progress Towards Accession by Each of the Candidate Countries

(for 2000) (8 November 2000), at 26–28, available at

www.europa.eu.int/comm/enlargement/report_11_00/index.htm>.

53 See European Commission, n. 48 above.

54 See European Commission Enlargement Strategy Paper, n. 52

above and also European Commission, n. 48 above.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT ACQUIS

141

•Unacceptable: being requests for transitional meas-

ures posing ‘fundamental problems’. Thus, the

Commission would not consider relaxing the rule

that the (environment) acquis be transposed upon

the date of accession, although implementation may

be deferred during the transitional derogations.

Transitional Arrangements: The Example

of Poland Taking the example of Poland, transi-

tional arrangements in the environment acquis are

fewer than had originally been intended. The thrust of

the transitional arrangements are to allow the new

Member State the time to attract the often massive

infrastructure investment required for implementing a

directive or to introduce new institution structures

and systems for the enforcement and monitoring of

legislation. However, the transitional arrangements do

not compensate for lacks in the capacity of the new

Member States to maintain compliance and enforce

the acquis once they have acceded to the Union.

Referring to the country annex to the Accession Treaty

concerning Poland,55 the derogations can be summar-

ized as follows:

•Directive 99/32 on sulphur content of liquid fuels

(until 31 December 2006).56 The most challenging

task for both this directive and the VOC Directive57

is the introduction of a new institutional structure,

and systems for the monitoring and enforcement

of the legislation. In the case of Poland, in the

negotiations it was shown that the application of

regular limits would raise specif‌ic technical and

economic problems. Moreover, this directive is

linked to other directives, notably the Large Com-

bustion Plants Directive,58 which will also be sub-

ject to a transitional arrangement, allowing time to

attract the necessary investments. This derogation

is designed to draw in the crucial investment and

f‌inancing required but it must not bring about any

negative effects on the market in gas and oil.

•Directive 94/6359 on VOC emissions from storage

and distribution of petrol (until 31 December

2005). The most challenging task for this directive

is the introduction of a new institutional structure,

and systems for the monitoring and enforcement

of the legislation. It also involves local actors in

Poland. Operators of petrol terminals, service sta-

tions and petrol transports are also involved in the

implementation of technical and management

requirements to minimize vapour losses from the

handling of petrol.

•Directive 94/62 on packaging waste60 (until 31

December 2007). Compliance will require the building

of infrastructure for the separation and re-use of

waste and the modernization of existing incinera-

tion plants. Among other things, this is due to the

lack of EC pre-accession funding for such projects,

coupled with the limited f‌inances of public f‌inance

sources in the regions or local authorities respons-

ible for management and implementation.

•Directive 99/31 on landf‌ill61 (until 1 July 2012, with

target quantities specif‌ied each year until the cut-off

date of 2012). The most diff‌icult and costly aspects

of implementing this directive relate to the admin-

istration and establishment of suff‌icient facilities

for the reduction of biodegradable municipal waste

to be land f‌illed and wastes that may no longer be

put in landf‌ills. Unsatisfactory landf‌ills have to be

phased out, involving considerable maintenance costs,

and restoration and aftercare costs. In a study

f‌inanced by the Commission, the entire cost for

Poland alone for meeting the requirements of this

directive was estimated at EUR3.5 billion, of which

60% would have to be used for the aftercare of the

existing landf‌ills and closing down others.62

•Directive 93/259 on waste shipments63 (until 31

December 2012). Poland alone has a transitional

arrangement because of the problem of disposing

of its own waste due to the lack of waste disposal

infrastructure and the level of investment required

to remedy this.

•Directive 91/271 on urban wastewater treatment64

(until 31 December 2015). Sewers and wastewater

treatment facilities must be built and the time-

frame will depend upon the availability of f‌inance

and construction engineering resources in Poland;

hence the 2015 deadline.

•Directive 76/464 on the discharge of certain danger-

ous substances into surface water65 (until 31 December

2007). Full compliance requires investment to bring

55 See Act of Accession, Annex XII (Poland), Articles 13A–E.

56 See Sulphur Content of Liquid Fuels Directive, n. 16 above.

57 VOC Directive, ibid.

58 Large Combustion Plant Directive, ibid.

59 VOC Directive, ibid.

60 Until 2014 under Directive 2004/12/EC, n. 106 below.

61 Landf‌ill Directive, ibid.

62 See DISAE Project POL-101, Costing and Financial Analysis of

Approximation, Agriconsulting Europe (DISAE, June 1998).

63 Council Regulation 259/93 of 1 February 1993 on the supervision

and control of shipments of waste within, into and out of the Euro-

pean Community, [1993] OJ L30/1, as amended.

64 See Urban Waste Water Trea tment Directive, n. 16 above.

65 See Discharge of Cer tain Dangerous Substances into Surface Water

Directive, ibid. The derogations apply to the following directives, which

detail the limit values for discharges of certain c hemicals into the

waters specif‌ied in Directive 76/464/EEC, namely: Council Directive

82/176/EEC of 22 March 1982 on limit values and quality objectives

for mercury discharges by the chlor-alkali electrolysis industry, [1982]

OJ L81/29, Council Directive 83/513/EEC of 26 September 1983 on limit

values and quality objectives for cadmium discharges, [1983] OJ L291/

1, Council Directive 84/156/EEC of 8 March 1984 on limit values

and quality objectives for mercury discharges by sectors other than

the chlor-alkali electrolysis industry, [1984] OJ L74/49 and Council

Directive 86/280/EEC of 12 June 1986 on limit values and quality

objectives for discharges of certain dangerous substances included

in List I of the Annex to Directive 76/464/EEC, [1986] OJ L181/16.

KIRSTYN INGLIS RECIEL 13 (2) 2004

142

existing plants up to a level of operation that will allow

them to meet the directive’s emission limit values or

quality objectives – in some cases new plants will have

to be built. The thrust of the directive is to establish

and enforce systems for the monitoring and measur-

ing of pollution of water by certain dangerous sub-

stances throughout the entire country. However, where

results are unfavourable, the directive envisages that

remedial action must be taken, which in turn depends

very much on the investment timescale available to con-

struct improvement works at the plants concerned. The

Commission agrees to the terms with the operators.

•Directive 96/61 on IPPC66 (until 31 December 2010

instead of 2007 for the Fifteen). Costs involved in

compliance and proper implementation of the

directive are incurred by operators and the admin-

istration. For the administration, the setting up of

administrative arrangements for the allocation and

implementation of permits is a heavy and costly task,

and requires that a number of operations are already

fully functioning in order that the system can be

properly evaluated. Also, compliance requires the

negotiation of best available techniques (BAT) with

the various industrial sectors to identify the viabil-

ity of the processes. For operators, considerable

capital expenditure is required and, inevitably, the

detailed planning, design, permitting and construc-

tion of new or upgraded facilities to conform with the

new standards will be required. Constructing plants

in accordance with BAT, including pollution abate-

ment facilities, at new installations will be required

by operators, as will alterations to existing plants to

incorporate BAT and pollution abatement facilities.

Finally, all new plants must meet the BAT require-

ments, while existing plants normally must meet

the requirements of the directive after 2004.

•Directive 88/609, as amended, on air pollution from

large combustion plants67 (until 2017). The costs for

competent national authorities of compliance with

this directive are signif‌icant. But the costs involved for

operators in complying with the directive and abating

emissions will be many times higher. Costs for the

competent authorities are to be gathered from operators

in line with the polluter-pays principle. As for installa-

tions and plants, it is the adaptation of existing installa-

tions that will prove the greatest stumbling block.

•Directive 97/43/Euratom on nuclear safety68 (until

31 December 2006). A derogation from Article 8

provides that the provisions on radiological equip-

ment shall not apply in Poland until 31 December

2006. Such equipment shall not be placed on the

market of other Member States.

Other environment-related derogations are also con-

tained in other chapters of the transitional arrangements.

For example, Poland has a derogation from agriculture

legislation concerning certain information require-

ments under the 1991 Directive on Marketing of Plant

Protection Products until the end of December 2006.69

OUTSTANDING WORK TO HAVE

BEEN COMPLETED BEFORE

1 MAY 2004

Much of the new Members’ pre-accession commitments

are excluded from pre-determined transitional measures.

Reading the programme of work to be achieved by the

Ten in the Commission’s 2002 country reports, it was

clear that the candidates had indeed to be ‘vigorous’

before the end of April 2004. Transitional derogations

have not been granted on the transposition of legislation

(as opposed to implementation); framework legislation

(air, waste, water, environmental impact assessments

(EIA), access to information); nature protection (habitat,

birds); essentials of the internal market (all product-

related legislation); and compliance by all new installa-

tions with the acquis. Considerable pre-accession efforts

were required of the new Member States in all areas

of the acquis, and particularly in building adminis-

trative and judicial capacity. In the 6 months before

accession, the Commission’s 2003 Comprehensive

Monitoring Report70 highlighted the need for ‘enhanced

efforts’ in transposition of legislation (including, to

name a few, the EIA Directive – Malta, Cyprus and

Poland – and the nature protection rules) and admin-

istrative capacities in most f‌ields. In a brief overview,

the Comprehensive Monitoring Report reads:

In the f‌ield of environment policy, Estonia in particular

must now increase efforts to complete legal alignment with

EU rules on air quality, waste management, nature protec-

tion, industrial pollution and radiation protection.71 Other

countries must enhance efforts in specif‌ic f‌ields: waste

management in Malta, nature protection in the Czech

Republic, Cyprus, Hungary, Malta and Poland; industrial

pollution and risk management in Hungary, Poland and

Slovakia; and genetically modif‌ied organisms in Cyprus.72

Transposition is the easier of the tasks, although some

of the Commission’s annual monitoring reports on the

progress made highlight delays in transposition, even

of framework legislation. This also raises enforcement

issues, dealt with below.

66 See IPPC Directive, n. 16 above.

67 See Large Combustion Plant Directive, ibid.

68 Council Directive 97/43/Euratom of 30 June 1997 on health pro-

tection of individuals against the dangers of ionizing radiation in

relation to medical exposure, and repealing Directive 84/466/Euratom,

[1997] OJ L180/22.

69 Accession Treaty, Annex XII, at 884. The directive is Council

Directive 91/414/EEC of 15 July 1991 concerning the placing of

plant protection products on the market, [1991] OJ L230/1.

70 European Commission, 2003 Comprehensive Monitoring Report

(5 November 2003) (without any off‌icial publication reference), avail-

able at t_2003/

index.htm#comprehensive>.

71 Ibid., at 10.

72 Ibid., at 13.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT ACQUIS

143

Poland has had to do considerable work since Decem-

ber 2002.73 Referring to the 2002 and 200374 progress

reports drawn up by the Commission for Poland, by

30 April 2004, Poland must have undertaken the fol-

lowing tasks (an indicative list):

•complete transposition for horizontal legislation,

air quality directives, water quality framework acquis,

biocides, solvents, large combustion plants, nature

protection, some waste management, genetically

modif‌ied organisms (GMOs), ambient noise;

•improve implementation for waste management,

water quality, including nitrate pollution, industrial

pollution control and major industrial accident

hazards, nature protection, chemicals, biocides;

•improve environmental integration into the

def‌inition and implementation of all other sectoral

policies so as to promote sustainable development

(specif‌ied only in the 2002 report);

•improve administrative capacity for implementing

the environmental acquis through additional staff

resources, making the Polish voivodships and coun-

ties fully operational in this regard and completing

the creation of the national and 16 regional EIA

Commissions;

•ensure issuance of, and compliance with, IPPC

integrated permits – a signif‌icant challenge for the

regional and local authorities as about 70% of the

installations covered by the IPPC Directive will

have to be dealt with at district level;75

•improve environmental planning and programming;76

•improve monitoring capacity;77

•improve environmental inspectorates;78

•agree on improvement programmes for f‌ines and

enforcement with the environmental authorities –

an important incentive to operators and a source of

f‌inancing to authorities; and

•improve investments.79

POST-ACCESSION

CONDITIONALITY

The carrot of accession that has driven the Union’s

conditionality during the pre-accession phase, guiding

all Community and IFI funding and technical assist-

ance since 1997, will no longer be available to the

Commission after enlargement. While the Accession

Treaty, at Article 38, contains a safeguard clause to

protect the functioning of the internal market, no

such legal tool is available to the Commission in

respect of the environment acquis as such. However,

the Commission will be able to make use of the safe-

guard clause in respect of sectoral policies, including

the environment acquis, where it adversely affects

the functioning of the internal market. The safeguard

clause applies exclusively to the new Member States

and not to the Fifteen. The Commission may take

‘appropriate measures’ against new Member States that

have failed to implement their commitments made

during the accession negotiations.80 It will enable the

Commission to exclude products from the internal

market or suspend Community funds.81

73 The Commission’s reports on the progress of all the candidate

countries were published on 13 December 2002 and are available at

t2002/#report2002>.

74 Ten separate European Commission comprehensive country reports

(5 November 2003) for each of the Ten (without any off‌icial publication

reference) are available at

report_2003/index.htm#paper2003>.

75 To do this there is an urgent need for training staff at regional and

district levels in issuing integrated permits, notably as regards process

issues and technology; staff increases; clear guidelines from central

authorities on how to implement the new laws; and place staff a t the

newly established Centre for ‘Best Available Techniques’.

76 While the situation is improving and deadlines have been set to

establish plans and programmes required under the acquis (preparation

of programmes for air quality, the national waste management plan),

regional and district plans still need to be improved.

77 For air, the monitoring capacity needs to be strengthened, in particular

as regards particulates (PM10); for water, monitoring of drinking water

needs to be extended and all laboratories must be able to measure the

full set of parameters under the Drinking Water Directive. See n. 74 above.

78 Referring to the 2002 report, see n. 73 above, although well established

and well staffed, they need a transfer of staff from laboratories to monitor-

ing and inspection roles in some cases. The frequency of inspections

also needs to be improved, in particular for small and medium-sized

installations. (Nonetheless, large installations are suff‌iciently inspected

and voivodship inspectorates have a good basis for planning and carry-

ing out inspections and for ensuring follow up to non-compliance.)

79 See the 2002 report, ibid., at 109: ‘Poland needs a more strategic

approach to environmental investments with clear investment plan-

ning and listing of priorities. Considerable investments need to be

secured, also in the medium term, to ensure the implementation of

the environment acquis’.

80 Act of Accession, Ar ticle 38(1) reads: ‘If a new Member State has

failed to implement commitments undertaken in the context of the

accession negotiations, causing serious breach of the functioning of

the internal market, including any commitments in all sectoral pol-

icies which concern economic activities with cross-border effect, or

an imminent risk of such breach, the Commission may, until the end

of the period of up to three years after the date of entry into force of

this Act, upon motivated request of a Member State or on its own

initiative, take appropriate measures. Measures shall be propor-

tional and priority shall be given to measures, which disturb least

the functioning of the internal mar ket and, where appropriate, to the

application of the existing sectoral safeguard mechanisms. Such

safeguard measures shall not be invoked as a means of arbitrary

discrimination or a disguised restriction on trade between Member

States. The safeguard clause may be invoked even before acces-

sion on the basis of the monitoring f‌indings and enter into force as

of the f‌irst day of accession. The measures shall be maintained no

longer than strictly necessary, and, in any case, will be lifted when

the relevant commitment is implemented. They may however be

applied beyond the period specif‌ied in the above paragraph as long

as the relevant commitments have not been fulf‌illed. In response to

progress made by the new Member States concerned in fulf‌illing its

commitments, the Commission may adapt the measures as appro-

priate. The Commission will inform the Council in good time before

revoking safeguard measures, and it will take duly into account any

observations of the Council in this respect’.

81 Act of Accession, Article 38.

KIRSTYN INGLIS RECIEL 13 (2) 2004

144

The Commission will be obliged to fall back on its tra-

ditional EC Treaty enforcement mechanisms to pursue

breaches by the new Member States of their Accession

Treaty commitments and Treaty obligations in respect

of measures of the acquis designed to improve or pro-

tect the environment. This does not bode well for full

and coherent compliance with, and enforcement of,

the environment acquis.

The Safeguard Clause The internal market safe-

guard clause, never seen before in an accession treaty,

enables the Commission to take unspecif‌ied action

against a new Member State where it has failed to

meet the commitments given during the negotiations.

After enlargement, the Commission will monitor the

new members ‘using the same mechanisms as those

applied to the existing Member States’.82 For the f‌irst

3 years after accession, the safeguard clause will be an

additional means of ensuring compliance in addition

to the traditional Treaty basis of Article 226 EC for

pursuing a new Member State that has failed to meet

its EC Treaty obligations. Article 38 of the Accession

Treaty is more a tool of prevention, designed to anti-

cipate compliance, implementation and enforcement

inadequacies. Article 226 EC is more reactive in that

the breach must already have occurred.83

Overall, the approach is to continue with the Union’s

pre-accession conditionality in the f‌irst years after

accession and, thereby, to ensure the integrity of the

acquis in an enlarged Union and avoid rifts between

the 25 Member States or any protectionist backlash

against the new Member States. Giving such respons-

ibilities to the Commission takes the political heat out

of managing and checking compliance with what is a

highly political area of the acquis. The Commission

may take ‘appropriate measures’ under Article 38 of

the Act of Accession, if one of the new Member States

fails to meet its commitments under the accession

negotiations. Such a failure must, however, ‘cause seri-

ous breach of the functioning of the Internal Market,

including commitments’.84 The safeguard measures

may extend to ‘any commitments in all sectoral policies

which concern economic activities with cross-border

effect or an imminent breach of such risk’.85

A number of the transitional arrangements concerning

the environment acquis have been adopted under (or

in combination with) the internal market legal basis:

the directives on environmental impact assessment,86

the sulphur content of liquid fuels,87 VOCs,88 packaging

and packaging waste,89 and the discharge of dangerous

substances into surface water.90 The transitional deroga-

tions from the State Aid provisions undoubtedly fall

within the body of commitments that will be subject

to the safeguard clauses. Other central instruments

of the environment acquis, however, are founded

upon the environment legal basis, such as conservation

measures, where a number of transitional arrange-

ments are foreseen in the Accession Treaty.91

The internal market safeguard clause is a clear indica-

tion of the political importance given to the internal

market acquis over other policy areas, such as the

environment acquis. It can be read as an incentive to

new Member States to prioritize compliance with the

internal market acquis over other environmental

provisions in order to avoid safeguard measures. Thus,

the Accession Treaty has stronger conditionality in

respect of implementation of the internal market acquis

compared to the environment acquis.

These safeguard measures will enter into force on the

f‌irst day of accession. Only the Commission may adopt

measures under the safeguard clause, although any

Member State (including the Ten) may make a request

that they be adopted. Preference will be given to meas-

ures that least disturb the functioning of the common

market. The principles of proportionality and non-

discrimination are explicitly incorporated in the for-

mulation of safeguard measures and those measures

must not act as disguised restrictions on trade. They

must ‘be maintained no longer than strictly necessary,

and, in any case, will be lifted when the relevant com-

mitment is implemented’,92 and the Commission may

only revert to using safeguard measures within the f‌irst

3 years of enlargement. Where safeguard measures

are in place before the end of the 3-year period, the

Commission will be able to continue their application

should the new Member States not have met their

pre-accession commitments to which the safeguard

measures apply. Once in place, the Council must be

82 See Guide to the Negotiations, n. 48 above. An updated version

(as at December 2003) is available at

comm/enlargement/negotiations/chapters/index.htm>.

83 Of course, all 25 Member States will be open to make use of Art-

icle 30 EC and the safeguard clauses contained in the secondary

EC legislation where emergency measures by the Commission or a

Member State are provided for where a serious risk is posed to

human health, animal health or the environment.

84 Act of Accession, Article 38, f‌irst paragraph.

85 Ibid.

86 Council Directive 85/337/EEC of 27 June 1985 on the assess-

ment of the effects of certain public and private projects on the

environment, [1985] OJ L175/40, as amended.

87 See Sulphur Content of Liquid Fuels Directive, n. 16 above.

88 See VOC Directive, ibid.

89 See Packaging Waste Directive, ibid.

90 See Discharge of Dangerous Substances into Surface Water

Directive, ibid.

91 Only Malta has a derogation in respect of the trapping of birds,

see the Accession Treaty, Annex XI.10.D, at 870. The staggered

implementation of the EU nature directives has to be taken into

account when implementing other policy areas (structural, trans-

port, agriculture): see the Commission’s website concerning Malta,

available at

enlargement.htm>.

92 Act of Accession, Article 38.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT ACQUIS

145

informed ‘in good time’ before the Commission may

revoke the measures and it must take the Council’s

observations into account – although the Commission

will be able to adapt the safeguard measures in line

with progress in meeting pre-accession commitments.

So, the internal market safeguard clause gives broad

discretion to the Commission, together with seemingly

far-reaching powers to sanction action or inaction by

the new Members under their pre-determined transi-

tional measures and under their pre-accession com-

mitments made in December 2002 and throughout

the negotiations, in order to be ready for membership

on 1 May 2004. In an attempt to introduce some legal

certainty into the use of this clause, six of the new

Members have aimed to restrict the scope of Article 38

of the Accession Treaty to failures to fulf‌il Treaty obliga-

tions, in the same way as under Article 226 EC. Both

provisions are aimed at bringing about compliance at

national level with the acquis.93 The Commission gives

no such guarantees and accepts no such restrictions

on its discretion under the safeguard clause.94 It has

been declared by the Commission that it will hear the

views of Member States directly affected by such

measures and will duly take into account these view

and positions.95

The Commission has not limited itself to the fulf‌ilment

of Treaty obligations. The safeguard measures may

address the commitments made during the negoti-

ations, which include, for example, building adminis-

trative capacity and making provision for criminal

sanctions. This is an extension of the pre-accession

conditionality that has been prevalent throughout pre-

accession. Just as was the case before accession, the

new Members must do more than meet the acquis. In

the f‌irst 3 years after their accession to the Union, they

will have to convince the Commission and the Fifteen

of their willingness and capacity to contribute to the

evolution of the acquis.

It is useful to compare Article 38 of the Accession

Treaty with Article 226 EC. Under the Article 226 EC

procedure, the Commission submits a reasoned opin-

ion and hears the Member State concerned, giving

that Member State the opportunity to bring itself into

compliance before initiating court action against it.

Unlike the Article 226 EC procedure, under the Acces-

sion Treaty’s internal market safeguard clause, the

new Members have no legally established right to

submit observations or to be heard on a Commission

proposal for a safeguard measure. The Commission

declaration that it will hear the views of the Member

State(s) directly affected by the safeguard measures,

and will duly take account of those views, is no more

than a declaration – it is not referred to within the

body of the Accession Treaty. The only certainty for

the new Member State(s) to be heard will be when

the Commission makes a proposal for the revocation

of the safeguard measures. At this point, any of the

25 Member States meeting within the Council may

submit observations, not only the Member State sub-

jected to the safeguard measures. Under the Article

226 EC procedure, however, only the Member State

concerned is entitled to submit observations in the

pre-litigation phase – once before the court, of course,

all Member States may submit observations.

Finally, on the matter of timing and f‌ines, the internal

market safeguard clause enables the Commission to

take immediately effective action in respect of the new

Member States by means of appropriate measures,

which may involve the suspension of EC funds. By

comparison, the lead-time for the Commission between

the issue of the reasoned opinion under Article 226 EC

and actually bringing a Member State before the court

may take years. In the case of the Article 226 EC pro-

cedure against the Member States, the procedure lasts

59 months. In the past, where the Article 228 EC pro-

cedure is launched, it takes, on average, 9 years, from

the issue of the formal notice,96 to impose f‌ines.97 Con-

sequently, the imposition of f‌ines has not always

elicited corrective action by those of the Fifteen in

default. Withholding funds from the new Member

States would certainly seem to pose a stronger incentive

to bring about compliance.

EVOLUTION OF THE

ENVIRONMENT ACQUIS

AFTER ENLARGEMENT

How the environment acquis will evolve in the Union

of 25 Member States is more a question of how the

93 The Czech Republic, Estonia, Lithuania, Poland, Slovenia and the

Slovak Republic jointly declared (Joint Declaration 22 to the Final

Act to the Treaty of Accession to the European Union 2003) that

they understand ‘the notion “has failed to implement commitments

undertaken in the context of the accession negotiations” only [to

cover] the obligations that are arising from the original Treaties . . .

under the conditions laid down in the Act of Accession and the obli-

gations def‌ined in this Act’ and that therefore, they ‘understand that

the Commission will consider application of Ar ticle 38 only in cases

of alleged violations of the obligations’ arising from the original treat-

ies. These countries also expressly declared, in paras 2 and 3, that

Article 38 is without prejudice to the jurisdiction of the European

Court of Justice (ECJ) and, insofar as any sanctions might be con-

cerned, they must be heard before measures are taken against

them.

94 See, in particular, ibid., Declaration 43.

95 Ibid.

96 See Article 226 EC.

97 See Twentieth Annual Report of 22 November 2003 on Monitor-

ing the Application of Community Law (2002), COM (2003) 669

f‌inal, at 9–11. These three pages give a summary of the compliance

by the Member States with court judgments against them. Of the

28 cases, 13 concern the environment acquis.

KIRSTYN INGLIS RECIEL 13 (2) 2004

146

CEECs, Cyprus and Malta will meet the existing

environment acquis. The last enlargement, taking in

Austria, Finland and Sweden, who had certain higher

environmental standards, did not serve to bring the

other Member States to the same standards. More-

over, accession for Austria, Finland and Sweden put

limits on their scope to act at the national level. Deci-

sion making will become even more of a challenge in a

Union of 25. The parallel evolution of national envir-

onmental law after enlargement will be crucial to the

protection and improvement of Europe’s environment

and to redress the environmental costs of EU integra-

tion. Equally relevant is the matter of implementation

and enforcement by the existing Member States.

GREEN DECISION MAKING IN A

UNION OF 25

Decision making in a Union of 25 will certainly further

complicate matters. Compared to the Fifteen, which is

a diverse group of countries in itself, the CEECs have

dramatically different environments (some land-locked,

others with coast lines for example), environmental

pasts and socio-economic priorities, as well as consid-

erable pressures on existing f‌inancing and investment

resources.98 Some of the most ambitious and costly EC

environmental legislation has been developed after the

accession of Spain and Portugal in 1986 and, therefore,

also with their inclusion throughout consultations,

drafting and decision making. For example, the rules

on large combustion plants,99 IPPC,100 urban waste

water,101 the air quality framework102 and its daughter

directives, hazardous waste incineration,103 municipal

waste,104 packaging and packaging waste105 have all

been enacted since that time.

Subsequently, raising the environmental standards

has proved politically charged due to the dramatic

diversity in the Member States’ environments, and

economic and social priorities and needs. Take the recent

decision to more than double minimum recycling tar-

gets (of 25%) for packaging waste under Directive 94/

62, which will apply generally as of 2008.106 Greece,

Ireland and Portugal have an additional 3 years, while

the deadlines for the acceding countries has been left

aside for the moment.107 It has been a hard debate that

has long pre-dated the Commission’s proposal of

2001, evidenced by the fact that, despite its adoption

in 1994, 10 years later the Member States are still

debating aspects of the system and, while the Packag-

ing Waste Directive was adopted by qualif‌ied majority,

the Austrian and Dutch delegations voted against the

new implementing directive in the f‌inal Council vote

on 26 January 2004, so that Member States are en-

titled to count incineration for the purposes of reach-

ing their EU targets. And the European Court of Justice

has also found that packaging waste incinerated in

municipal incinerators can no longer be counted for

the recovery targets of the packaging directive.108 Sev-

eral Member States have used incineration as part of

their strategy to fulf‌il the EU targets and are now faced

with falling short of the targets under the new inter-

pretation. This situation is to be raised again in the

framework of the EU Thematic Strategy on Waste Pre-

vention and Recycling.109

Apart from raising existing standards, numerous gaps

in the environment acquis prevail. The no man’s land

between EC competence and national competence

has resulted in policy gaps in the provision for the

improvement or protection of the environment at both

EU and national levels. Due to lack of political con-

sensus for example, or the subsidiarity ‘excuse’, the

European Commission has faced a political impasse,

even withdrawing key proposals, in crucial initiatives

designed to improve the state of the environment and

prevent the escalation of pollution. That the most

sensitive policy areas of the environment acquis

will remain subject to majority voting restrains EC

initiatives in those f‌ields in an enlarged EU, including

f‌iscal measures, town and country planning, quant-

itative management of water resources, land use

(except waste management), and measures affecting

a Member State’s choice between energy sources and

the general structure of its energy supply. This has

proved a major stumbling block to the development of

the environment acquis in these areas. Those Member

States, such as the Netherlands and Germany, who

have traditionally taken the lead in environmental law

at the EC the level, f‌ind considerable resistance to

their pro-active environmental measures.

98 See J. Klarer and P. Francis, n. 6 above.

99 See Large Combustion Plant Directive, n. 16 above.

100 See IPPC Directive, ibid.

101 See Urban Waste Water Trea tment Directive, ibid.

102 Council Directive 96/62/EC of 27 September 1996 on ambient air

quality assessment and management, [1996] OJ L296/55.

103 See Hazardous Waste Directive, n. 16 above.

104 See Municipal Waste Directive, ibid.

105 See Packaging Waste Directive, ibid.

106 Directive 2004/12/EC of the European Parliament and of the

Council of 11 February 2004 amending Directive 94/62/EC on pack-

aging and packaging waste – Statement by the Council, the Com-

mission and the European Parliament, [2004] OJ L47/26.

107 Initially the Commission had proposed an implementation dead-

line of 2006 for the 12 Member States and 2009 for Greece, Ireland

and Portugal. See the Commission’s press release IP/03/1671 of

8 December 2003, available at /

cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/03/1671|0|RAPID&lg=EN>.

See Proposal of 7 December 2001 for a Directive amending Direct-

ive 94/62/EC on Packaging and Packaging Waste, as amended,

COM (2001) 729, which, at the time of writing, is on the brink of f‌inal

adoption.

108 See ECJ 13 February 2003, Case C-228/00, Commission v. Ger-

many, [2003] ECR I-1439; and ECJ 13 February 2003, Case C-116/

01, EcoService Nederland BV, [2003] ECR I-2969.

109 COM (2003) 301 of 27 May 2003.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT ACQUIS

147

For example, the f‌irst move at the EC level envisaging

an energy tax dates back to 1984,110 while the Commis-

sion’s proposal for a directive in 1992 was replaced in

1995 and further watered down in 1997.111 Eco-taxes

offer the possibility of a more eff‌icient way of tackling

environmental problems and reportedly ‘a single eco-

nomic instrument such as a tax on fuel could replace

117 “regulatory” directives in force in the EU relating

to the environment’.112 The objections of one Member

State, Spain (although other Member States, notably

France and the UK, were also instrumental in the

downfall of the proposal) served to shelve the initi-

ative completely.113 The Commission took an entirely

different tack, proposing a directive using the legal

basis of harmonization in taxes114 and having the main

aim of reducing distortions in competition due to

differing national levels of taxation. The directive115

explicitly refers to the obligation (Article 6 EC) on the

Member States to integrate environmental protection

requirements into the def‌inition and implementation

of the directive, although this obligation is clearly sub-

ordinate to the economic purpose of the system:

In accordance with Article 6 of the Treaty, environmental

protection requirements must be integrated into the def‌ini-

tion and implementation of other Community policies.116

Moreover, it establishes a Community minimum level

designed to encourage rather than bind Member States

to work toward common levels. Various derogations,

exemptions or reductions are available to Member States

until 2012 in some cases. The Commission recently

proposed measures to apply derogations and exemptions.117

The system involves transitional arrangements until

2007 and will, inevitably, involve the introduction of

transitional arrangements for the new Member States.

In addition to transposition and compliance by the

Member States with the environment acquis, there is

the matter of non-observance. In 2001, the Commis-

sion proposed a directive on the protection of the envir-

onment through criminal law118 on the basis of Article

175 EC, which would oblige the Member States to

adopt at least a minimum level of sanctions against

breaches of EC environmental law. The Commission

sees this as the only type of measure that is adequate

and dissuasive enough to achieve proper implementa-

tion of environmental law. However, the Member

States are reluctant to commit to tackling effectively

environmental crime. The Council adopted a frame-

work decision119 on environmental crime under the

EU Treaty. This is an inter-governmental instrument,

which served to bypass the right of initiative of the

European Commission, as well as to exclude it from

managing the application of criminal law measures for

the enforcement of the green acquis. The Commission

has brought an action against the Council,120 challeng-

ing its jurisdictional competence.

As already seen, there is a considerable workload for

the new Members regarding the environment acquis

for many years after enlargement. They will have had to

adopt the acquis wholesale. This will necessarily affect

their ability and willingness to participate in raising

environmental standards any further at the EC level. It

is also clear, however, that there are policy gaps in the

acquis and, consequently, the new Members will also need

to make progress on their national environment laws.

INSIGHTS FROM THE LAST

ENLARGEMENT

It is interesting to draw certain conclusions on how

the environment acquis evolved to take account of the

higher environmental standards of Austria, Finland

and Sweden following the last enlargement.

The approach taken to the last enlargement was to

allow the new Member States to maintain their higher

standards during a 4-year review period,121 beginning

110 Resolution of 13 April 1984 on a Community energy tax on the

consumption of hydrocarbons and its effect on energy policy, [1984]

OJ C127/258.

111 Proposal of 27 May 1992 for a Council Directive Introducing a

Tax on Carbon Dioxide Emissions and Energy, COM (92) 226,

[1992] OJ C196 and Amended Proposal of 10 May 1995 for a

Council Directive Introducing a Tax on Carbon Dioxide Emissions

and Energy, COM (1995) 172.

112 See J. Burchell and S. Lightfoot, The Greening of the European

Union (Sheff‌ield Academic Press, 2001), at 98–100.

113 See Answer by Commissioner Bolkestein of 12 July 2001 to Writ-

ten Question P-1725/01 by Alexander de Roo (Verts/ALE) to the

Commission – Structure of, and Timescale for, a European Energy

Tax on the Basis of Enhanced Cooperation, [2001] OJ C350E/215.

For other examples, see the Resolution on the Communication of

14 November 1996 from the Commission on the review of the Com-

munity strategy for waste management and the draft Council resolu-

tion on waste policy, [1996] OJ C362/241.

114 EC Treaty, Article 93.

115 Council Directive 2003/96/EC restructuring the Community framework

for the taxation of energy products and electricity, [2003] OJ L283/51.

116 Ibid., Recital 6. See also Article 15, which leaves considerable

discretion to the Member States on environmental measures.

117 The Commission proposed a revision to the Directive on 28 January

2004 (no reference as yet), entitled ‘Proposal for a Council Directive

amending Directive 2003/96/EC as regards the possibility for certain

Member States to apply, in respect of energy products and electricity,

temporary exemptions or reductions in the levels of taxation’.

118 See Commission Communication of 13 March 2001 on a pro-

posal for a directive on the protection of the environment through

criminal law, COM (2001) 139, as amended by COM (2002) 544 of

30 September 2002.

119 The Framework Decision was adopted on 27 December 2003

(unpublished) and no further action is planned until the judgment of

the ECJ has been delivered. See the Minutes of the Article 36 Com-

mittee of the Council of the European Union (DG H III) of 30 June

2003 (10925/03), 42–43.

120 The Commission brought an action before the ECJ against the

Council on 15 April 2003, Case C-176/03 pending.

121 Act of Accession, n. 49 above, at Articles 69, 84 and 112.

KIRSTYN INGLIS RECIEL 13 (2) 2004

148

on the date of accession and lasting until 31 December

1998. The higher standards concerned 11 amendments

to nine directives. (Of course, it was not necessary to

amend measures adopted under the legal basis for the

environment adopted under Article 174 EC, which in

any case allows for more stringent national measures.)

The review clause gave the European Commission

and the Member States (Austria, Finland or Sweden)

4 years to revise the Community standard upwards

to their level. However, a literal reading of the review

clause gave no guarantees to the new Members that

the Community standard would indeed be raised:

At the end of the transitional period . . . the EC acquis will

be applicable to the new Member States under the same

conditions as in the present Member States.122

It was political pressure that enabled Austria, Finland

and Sweden to maintain their higher standards after

the review period. The review123 even went to concilia-

tion between the Council and Parliament in the last

months of the transitional period.124 While four of the

directives125 were amended by technical amendment126

in order to incorporate the higher standards, the

remaining directives127 had to be revised substantially

– according to the full co-decision procedure involv-

ing Parliament and Council. Legally speaking, how-

ever, in f‌ive cases, the new Members have had their

derogations extended – for all intents and purposes –

as opposed to raising the overall Community standard.

In the case of cadmium content in fertilizers, the

approach was f‌irst to extend the transitional deroga-

tion for Austria, Finland and Sweden from the acquis

until December 2001 under the full co-decision pro-

cedure.128 Thereafter, the derogation has, effectively, been

extended by means of the notif‌ication and authoriza-

tion procedure under Article 95(4) EC.129 Moreover,

the new Fertilizers Regulation,130 which repeals and

replaces the previous fertilizers law as of 2005, is

drafted in such a way as to allow Austria, Finland and

Sweden to maintain their standards in accordance

with the Commission Decision under Article 95(4) EC.

Directives 88/379/EEC and 78/631/EEC on classif‌ica-

tion, packaging and labelling of dangerous prepara-

tions and pesticides were both repealed and replaced

in 1999 by Directive 1999/45/EEC. The new directive

effectively extends the derogations that Austria, Finland

and Sweden were given under their Accession Treaties

in order to allow them to maintain their higher stand-

ards.131 Austria, Finland and Sweden are now subject

to the Article 95 procedures to maintain or further

raise their standards.132 Finally, Directive 1999/45/EEC

also introduced new provisions on classif‌ication and

labelling of pesticide preparations, which incorporated

the higher standards contained in the derogations for

Austria, Finland and Sweden from Directive 91/414/

EEC on the placing on the market of plant protection

products.133

In the cases of Directives 93/12/EEC on the sulphur

content of certain liquid fuels134 and 85/210/EEC on

122 Ibid., Articles 69, 84 and 112.

123 See Commission Communication of 11 December 1998, ‘The

Review Clause: Environmental and Health Standards Four Years

after the Accession of Austria, Finland and Sweden to the European

Union’, COM (1998) 745.

124 Decision 2179/98/EC of the European Parliament and of the

Council of 24 September 1998 on the review of the European Com-

munity programme of policy and action in relation to the environ-

ment and sustainable development ‘Towards sustainability’, [1998]

OJ L275/1. See also the European Parliament’s Resolution of 4 July

1996 on the review clause, [1996] OJ C211/20.

125 Directive 67/548/EEC of 27 June 1967 on the classif‌ication,

packaging and labelling of dangerous substances, as amended,

[1967] OJ L196/1; Directive 91/414/EEC of 15 July 1991 on the

placing on the market of plant protection products, as amended,

[1991] OJ L230/1 (Plant Protection Products Directive); Directive 76/

769/EEC of 27 July 1976 on marketing and use of dangerous sub-

stances and preparations, as amended, [1976] OJ L262/02; and

Directive 91/157/EEC of 18 March 1991 on batteries and accumu-

lators, as amended, [1991] OJ L78/38.

126 Derogations were also extended by 2 years, for example in the

case of Directive 67/548/EEC by Directive 1999/33/EC of the Euro-

pean Parliament and of the Council of 10 May 1999 amending

Council Directive 67/548/EEC as regards the labelling of certain

dangerous substances in Austria and Sweden, [1999] OJ L199/57.

127 Council Directive 78/631/EEC of 26 June 1978 on the approxima-

tion of the laws of the Member States relating to the classif‌ication,

packaging and labelling of dangerous preparations (pesticides),

[1978] OJ L206/13; Council Directive 88/379/EEC of 7 June 1988

on the approximation of the laws, regulations and administrative

provisions of the Member States relating to the classif‌ication, pac k-

aging and labelling of dangerous preparations, [1988] OJ L187/14;

Plant Protection Products Directive, n. 125 above; Council Directive

76/116/EEC of 18 December 1975 on the approximation of the laws

of the Member States relating to fer tilizers, [1976] OJ L24/21; Coun-

cil Directive 85/210/EEC of 20 March 1985 on the approximation

of the laws of the Member States concerning the lead content of

petrol, [1985] OJ L96/25 (Lead Content of Petrol Directive); and

Sulphur Content of Liquid Fuels Directive, n. 16 above.

128 Directive 98/97/EC of the European Parliament and of the Coun-

cil of 22 December 1998 amending Directive 76/116/EEC on the

approximation of the laws of the Member States relating to fertil-

izers, as regards the marketing in Austria, Finland and in Sweden of

fertilizers containing cadmium, [1999] OJ L18/60.

129 See Commission Decision 2002/398/EC of 24 May 2002 on the

national provisions notif‌ied by the Republic of Finland under Article

95(4) of the EC Treaty concerning the maximum admissible content

of cadmium in fertilizers, [2002] OJ L138/15.

130 Regulation (EC) No 2003/2003 of the European Parliament and

of the Council of 13 October 2003 relating to fertilizers, [2003] OJ

L304/1.

131 See Annex VIII to Directive 1999/45/EC of the European Parlia-

ment and of the Council of 31 May 1999 concerning the approxima-

tion of the laws, regulations and administrative provisions of the

Member States relating to the classif‌ication, packaging and label-

ling of dangerous preparations, [1999] OJ L200/1.

132 See, for example, Commission Decision 2002/398/EC of 24 May

2002 on the national provisions notif‌ied by the Republic of Finland

under Article 95(4) of the EC Treaty concerning the maximum

admissible content of cadmium in fertilizers, [2002] OJ L138/15.

133 See Plant Protection Products Directive, n. 125 above.

134 See Sulphur Content of Liquid Fuels Directive, n. 16 above.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT ACQUIS

149

the lead content of petrol,135 Austria, Finland and

Sweden had higher standards for gas oils. The overall

Community standard was raised but Greece was given

a special 5-year derogation and Austria’s derogation,

allowing it to maintain stricter standards in respect

of the benzene content of petrol, was prolonged until

1 January 2000.136 In any case, Directive 98/70/EC

introduced a specif‌ic provision (Article 6) allowing

Member States to apply more stringent environmental

specif‌ications to the marketing of fuels – but not raising

the Community average environmental specif‌ication.

Overall, therefore, the accession of countries with

higher environmental standards than those contained

in internal market measures did not serve generally to

raise EC environmental standards. The Union has not

raised its ‘average’ to the level of Austria, Finland and

Sweden; however, political pressure has prevented a

lowering of the Austrian, Finnish and Swedish stand-

ards. The actual room left to Member States to pursue

higher national standards for the environment has

been given a degree of legal certainty as a result of

the amendment to the internal market legal basis by

the Amsterdam Treaty. It introduced a notif‌ication

and approval procedure for such national measures,

within Article 95 EC, managed by the European Com-

mission – although it, in turn, introduced new ques-

tions, particularly concerning Member States’ room to

manoeuvre to raise environmental standards.137

Austria, Finland and Sweden have thus limited their

scope of manoeuvrability in internal market laws to

raise their national environmental standards. Accession

has limited the possibility for qualitative improvements

in their environments and serves to keep the status

quo at the lowest common denominator at Community

level.

‘DO AS I SAY, NOT AS I DO’

Under the Accession Treaty, the Commission has con-

siderable discretion in respect of the new Member

States. Certainly, the safeguard clause appears more

effective than the Article 226 EC procedure. The Com-

mission determines whether commitments have been

met or not, decides the form of the measures, adapts

those measures and evaluates whether compliance with

the pre-accession commitments has been suff‌icient to

merit lifting the safeguard measures. While the inter-

nal market safeguard clause gives the European

Commission an additional stick with which to cajole

compliance out of the Ten, and this should also

improve trust between the Member States, the Com-

mission has no such preventive route for managing

and enforcing compliance by the Fifteen.

This differentiation in treatment implies that the Fifteen

themselves do not require such cajoling. This is not

the case.138 The Commission must revert to the com-

parably limited resort of Article 226 EC in the event of

failures arising in compliance by the Fifteen. Even in

terms of administrative capacity, the Commission held

seminars for the Fifteen Member States in 2002 on

the correct implementation of particularly complex

environmental directives.139

The Commission’s 1996 f‌indings of a high level of poor

application of the environment acquis remains true

today. One-third of all infringement cases investigated

by the Commission concern the environment acquis.

Of the 129 European Court of Justice (ECJ) judgments

against the Member States that remain unimplemented,

59 concern the environment acquis. The Fifteen are

failing to meet their obligations for conformity with

the acquis and compliance in all areas of the environ-

ment acquis, including in those areas where the new

Member States are obliged to be in full compliance by

the date of accession. In 2002, Belgium, France and

Luxembourg were condemned by the ECJ for failure

to transpose the 1997 amendment to the EIA Directive

by its implementation deadline of 14 March 1999.

Also, in the Commission f‌indings for 2002, Ireland

and Spain were condemned for def‌iciencies in the con-

formity of national legislation with the EIA Directive.

Annex IV140 to the Commission’s twentieth report on

monitoring the application of Community law (2002)141

lists 14 ongoing cases against ten Member States for

non-conformity with this same directive.

By comparison, the new Member States have no

transitional measures for the transposition of, and for

bringing themselves into conformity with, the EIA

Directive. Their pre-accession commitment is to reach

full compliance on the date of accession. This can

be said of many other EC environmental laws. In

135 See Lead Content of Petrol Directive, n. 127 above.

136 See Article 14 of Directive 98/70/EC of the European Parliament

and of the Council of 13 October 1998 relating to the quality of

petrol and diesel fuels and amending Council Directive 93/12/EEC,

[1998] OJ L350/58 and subsequent corrigendum, [1999] OJ L40/52,

which amended the 1993 Directive.

137 On the def‌iciencies in legal certainty, as well as the conf‌lict be-

tween national measures and EC harmonization measures and the

impact of the control procedure on national law, see N. de Sadeleer,

‘Procedures for Derogations from the Principle of Approximation of

Laws under Article 95 EC’, 40 Common Market Law Review (2003),

889, at 908– 913.

138 See the Twentieth Annual Report of 21 November 2003 Monitor-

ing the Application of Community Law, COM (2002) 669, at 61–65.

See also the FVO General Report 2002 for an overview of its

inspection f‌indings for the year 2002, available at

europa.eu.int/comm/food/fs/inspections/policy_papers/ann_rep_

2002_en.pdf>.

139 Ibid.

140 Ibid. This annex is available at .europa.eu.int/comm/

secretariat_general/sgb/droit_com/pdf/rapport_annuel/annexe4_2_en.pdf>.

141 Ibid.

KIRSTYN INGLIS RECIEL 13 (2) 2004

150

addition to the above comments, an important exam-

ple of the lack of commitment by the existing Fifteen

is the recent Commission forecast that 13 of the Fif-

teen will miss their targets for cutting greenhouse

gases under the Kyoto Protocol.142 On the other hand,

only one new Member – Slovenia – is predicted to miss

its target under the Kyoto Protocol.143 It will be the

majority of the existing Fifteen that will be responsible

if the EU of 25 misses its Kyoto emissions reduction

targets.

CONCLUSIONS

As to the evolution of the EC environment acquis, in

an enlarged Union, the resources of the new Member

States and the Community will focus on reaching

compliance with the acquis as it stands today. The

adoption of new environmental measures will be fraught

with the political hurdles of decision making among so

many countries. For the new Member States, the major

challenge will be attracting suff‌icient investment and

maintaining the necessary administrative capacity to

enforce the environment acquis. A shift towards more

framework (and less detailed) legislation will emerge

in order to take account of the diversity of environ-

ments and the political/social/economic interests of

25 Member States. Past experience with unsuccessful

initiatives, like the eco-tax, that promise considerable

progress in environmental protection and improve-

ment, highlight the weaknesses of decision making in

politically sensitive areas. The last enlargement high-

lighted the fact that incoming countries often have a

political struggle to maintain their higher standards

once they have become a Member State. Austria, Finland

and Sweden, together with other traditional ‘pusher’144

countries, notably the Netherlands and Germany, f‌ind

themselves restrained from initiating national envir-

onmental measures that affect trade and therefore,

also, from leading EC environmental standards and,

ultimately, global standards. In this enlargement, the

incoming countries have, in many cases, had to start

from scratch with building environmental policies.

From the point of view of enforcement, recent initiatives,

such as that on preventing and remedying environ-

mental damage,145 will provide a strong disincentive to

further polluting activities, although this initiative is

only at proposal stage and will need to be adopted

by a Union of 25. Nevertheless, the implementation

def‌icit in the Fifteen has inspired work on governance

initiatives to improve and encourage the means of

redress for citizens and operators, to improve the

effectiveness of the pre-litigation stage (of the Article

226 EC procedure) for seeking compliance by Member

States with their Treaty obligations and, ultimately, to

foster trust between Member States.146 The existing

Fifteen are not setting an example of a properly func-

tioning environment acquis. The new internal market

safeguard clause will only address discrepancies in the

transitional arrangements and pre-accession commit-

ments of the new Member States, irrespective of the

situation in the Fifteen. Moreover, it will only address

discrepancies in the transitional arrangements and

pre-accession commitments that adversely affect the

functioning of the internal market. Thus, the ECJ will

continue to play a big role in maintaining the integrity

of EC environmental law in an enlarged EU. A recent

judgment147 of the ECJ indicates another potential

future development: that of the imposition by the ECJ

of penalties in addition to daily f‌ines (under Article

228 EC) in respect of continued non-compliance with

court judgments.

The twentieth report (2003) on monitoring the applica-

tion of Community law notes that:

A substantial improvement will require efforts by the Com-

mission to develop new working methods with Member

States at all stages of the implementation life cycle. This

is particularly relevant in the build up to enlargement to

ensure that new Member States transpose and implement

correctly the acquis communautaire within the agreed

timeframes.148

Consequently, implementation and enforcement by

the existing 15 Member States is as much a part of the

equation as implementation and enforcement by the

142 See Council Decision 2003/231/EC of 17 March 2003 concern-

ing the accession of the European Community to the Protocol of

Amendment to the International Convention on the simplif‌ication

and harmonization of customs procedures (Kyoto Convention), [2003]

OJ L86/21 and Council Decision 2002/358/EC of 25 April 2002 con-

cerning the approval, on behalf of the European Community, of the

Kyoto Protocol to the United Nations Framework Convention on

Climate Change and the joint fulf‌ilment of commitments there-

under, [2002] OJ L130/1. See also Decision 280/2004/EC of 10 March

2004 concerning a mechanism for monitoring Community greenhouse

gas emissions and for implementing the Kyoto Protocol, [2004] OJ

L49/60.

143 See Commission Press Release IP/03/1637 of 2 December 2003.

144 See M. Skou Andersen and D. Lieferink, ‘Introduction: The Impact

of the Pioneers on EU Environmental Policy’, in M. Skou Andersen

and D. Lieferink (eds), European Environmental Policy: The Pioneers

(Manchester University Press, 1997), 25, at 43. Pusher countries

are those that pursue ‘strategies to push environmental issues on to

the EU agenda and build the necessary alliances with other Mem-

ber States in order to push through environmental initiatives’.

145 Environment: Liability with Regard to the Prevention and Reme-

dying of Environmental Damage, COM (2002) 17, of 23 January

2002, as amended by COM (2004) 55 of 26 January 2004.

146 White Paper of 25 July 2001 on European Governance, COM

(2001) 428.

147 ECJ 25 November 2003, Case C-278/01, Commission v. Spain

(not yet published). However, the only other case where penalties

were imposed in addition to the daily f‌ine was in ECJ 14 July 2000,

Case C-387/97, Commission v. Greece, [2000] ECR I-5047.

148 See n. 138 above, at 33.

RECIEL 13 (2) 2004 ENLARGEMENT AND THE ENVIRONMENT ACQUIS

151

new Member States.149 Generally speaking, the success

of ‘environmental integration’ initiatives is crucial to

improving the state of the environment. The Union

is stepping up initiatives, including that on Green

Diplomacy150 and those contained in the White Paper

on European Governance,151 designed to, for example,

further the implementation of the environment acquis

through regional and tripartite agreements. Recently,

annual environmental policy reviews by the Commission

have been introduced to tackle the priority issues,

both at national and EU levels. The administrative

burden on the European Commission in monitoring

compliance and pursuing the Member States for failure

to meet their obligations to comply with the acquis will

increase. Additionally, the Commission will be respons-

ible for the follow up of the new Members’ pre-

accession commitments and transitional arrangements

and now, also, the safeguard measures provided for in

the Accession Treaty to protect the internal market.

Enlargement will certainly make improvements to the

qualitative state of the environments of the Ten.152

Whether or not the acquis is appropriate to the needs

of the new Members no longer seems to be a relevant

question. The pre-accession strategy has been the

route followed. It has been practical and expedient to

the political goal of enlargement. Whether the environ-

ment acquis will be better enforced and have more

positive results for the environment is another matter.

Ultimately, it seems, the state of Europe’s environ-

ment will depend on national environmental policies

and law, on enforcement and the effectiveness of EC

initiatives to integrate the needs of the environment

into EC policy areas.

Kirstyn Inglis is a Senior Legal Researcher, at the

European Institute, University of Ghent, Belgium. This

article was prepared under the auspices of the project

‘Pre-accession and Accession: A Legal Appraisal of the

EU Enlargement Strategy’, funded by the Flemish

Scientif‌ic Research Fund (Fonds voor Wetenschappelijk

Onderzoek).

149 See the European Commission’s Fourth Annual Survey of 17

July 2003 on the implementation and enforcement of European

Union environment law, SEC (2003) 804 (and all the earlier reports

for that matter).

150 For more information, see the website available at

www.europa.eu.int/comm/environment/international_issues/green_

diplomacy_en.htm>.

151 For more information, see European Commission, White Paper

of 25 July 2001 on European Governance, COM (2001) 428, avail-

able at

index_en.htm>.

152 See ‘The benef‌its of compliance with the environmental acquis

for the candidate countries and their preparations for accession’,

a Commission external service contract carried out by Ecotec

Research and Consulting Limited, B7-8110/2000/159960/MAR/H1

(2000), at xxxix, which is available at

comm/environment/enlarg/pdf/benef‌it_long.pdf>.

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