EU: Commission takes environmental enforcement actions

The European Commission has announced a range of enforcement actions against several member states for failing to comply with environmental legislation covering waste incineration, environmental authorisations, battery waste, environmental impact assessment, water directives, environmental complaints and GMO approvals.


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Waste incineration: The European Commission has made applications to the European Court of Justice against Belgium, Italy and Spain for non-respect of a number of Directives dealing with waste incineration. In the cases of Belgium and Italy, the decisions reflect failure to adopt and communicate to the Commission the necessary implementing legislation for the EU Hazardous Waste Directive. The Commission’s decision against Spain relates to the approval of several incinerators in La Palma, Canary Islands, which do not comply with a Directive on new municipal waste incineration plants.

Battery waste: The Commission decided to notify a Reasoned Opinion to Spain for failure to comply with a previous judgement of the European Court of Justice concerning European Union (EU) legislation on battery waste. At the same time, the Commission also decided to make an application to the Court of Justice against Portugal for the failure of Portugal’s battery waste programme to comply with the Directive.

In May 1999, Spain indicated that a battery waste plan was due to be shortly adopted and communicated to the Commission. However, given that it has not yet received the plan, and given that years have passed since the plan became due, the Commission decided to press ahead with its enforcement procedure.

In the case of Portugal, the Commission decided to make an application to the Court of Justice for the failure of Portugal’s battery waste programme to comply with the Batteries Directive. In particular, whereas the Directive requires a programme to cover batteries containing more than 0.025% by weight of cadmium, the Portuguese programme covers only batteries containing more than 0.25% by weight of cadmium. Also, the programme does not provide for any measures for the separate disposal of spent batteries and accumulators.

Environmental impact assessment legislation: The Commission decided to take further steps in legal actions against Spain, Portugal and the United Kingdom for non-respect of the Environmental Impact Assessment Directive.

The Commission made two decisions concerning Spain. The first was to make an application to the European Court of Justice in respect of the non-conformity of Spain’s national and regional implementing legislation with the requirements of the Directive. In particular, the Spanish legislation fails to cover all the categories of Annex II project set out in the Directive. The second decision made by the Commission was to notify a Reasoned Opinion to Spain for its failure to submit an express road project (Accesso Norte al Puerto de Algeciras) to an assessment. Express roads are listed in Annex I of the Directive, and an assessment is therefore obligatory. While the Spanish authorities argued that the project in question was not an express road, the Commission was satisfied on the basis of the available evidence that the project came within the category. The Commission’s action stems from a complaint that it received.

The decision against the United Kingdom relates to Article 7 of the Directive (which provides for international consultation in case a project is likely to have significant effects on the environment of another Member State). Following Commission legal action, the United Kingdom has brought its legislation into line for England, Wales and Northern Ireland. However, for Scotland, legislation is still lacking, though a draft has been provided. The Commission decision is to make an application to the European Court of Justice.

The decision against Portugal relates to Portugal’s failure to comply with a judgement of the European Court of Justice handed down on 21 January 1999. The Court condemned Portugal for adopting a provision that exempted from assessment projects proposed after July 1988 and before the entry into force of the said decree law 278/97. Since then Portugal has failed to rectify its legislation. As a result the Commission has decided to notify a Letter of Formal Notice to Portugal under Article 228 of the EC Treaty.

European water directives: The Commission decided to take further steps against Portugal for non-respect of two previous judgements of the European Court of Justice on Portugal’s failure to comply with a European Union (EU) Directive on Mercury Discharges into water, as well as a Directive on the quality of Surface Water. At the same time, the Commission also decided to notify a Reasoned Opinion to Portugal for non-respect of the EU’s Dangerous Substances Directive.

GMOs: The Commission decided to notify two Reasoned Opinions to France for non-respect of one of the principal Directives dealing with genetically modified organisms, Council Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms. The Commission also decided to notify a Reasoned Opinion to Luxembourg under Article 228 (ex Article 171) of the EC Treaty for failure to comply with a previous judgement of the European Court of Justice in respect of a Directive adapting Directive 90/220/EEC to technical progress.

The first failure by France concerns the initial steps to be taken where a person (referred to as a “notifier”) who wishes to place a GMO product on the market submits an application to a competent Member State authority. According to the Directive, the competent authority must do one of two things within 90 days: either forward the application to the European Commission with a favourable opinion or inform the notifier that the application does not respect the directive and is rejected. France is not respecting the 90 day time limit.

The second failure by France concerns later steps in the process whereby GMO products are allowed to be placed on the market. According to the Directive, once a decision has been taken to approve a proposed placing on the market of a GMO product, the competent authority of the Member State which received the original application must give its consent in writing, so allowing the product to be placed on the market. Despite favourable decisions for two GMO products in 1997, France is still withholding its consent.

In the case against Luxembourg, the relevant Court judgement was handed down on 16 July 1998 (Case C-339/97). While the Luxembourg authorities have sent the Commission draft legislation to transpose the Directive (the transposition deadline was 31 July 1997), they have not provided a firm timetable for its adoption, hence the Commission decision to take a further step.

Environmental complaints: The Commission decided to notify a Letter of Formal Notice to Ireland for non-respect of Article 10 of the EC Treaty concerning Ireland’s failure to respond to a series of Commission letters requesting environmental information. Article 10 requests Member States to actively co-operate with the Commission in dealing with complaints. The decision reflects the Commission’s concern that it is not receiving from Ireland the usual degree of co-operation it expects from Member States. In particular, there are currently at least seven complaints registered in 1998 where requested information has not been provided by Ireland within the standard two month period. In some cases, more than nine months has passed since the request was made.

Environmental authorisations: The Commission has made an application to the European Court of Justice against Belgium challenging legislation for Flanders which allows authorisations related to EU environmental legislation to come into existence in the absence of an express act of the administration. Authorisations are a key tool of environmental protection. Several EU environmental Directives require Member States to allow certain activities to be carried out only where an authorisation has been granted which takes account of environmental requirements. The Flemish legislation leaves possibilities of granting such authorisations by default, which in the Commission’s eyes are contrary to the provisions of a series of environmental Directives.

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