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The European Union (EU) institutions have the power to direct member states through a process known as ordinary legislative procedure and in doing so, the EU changes member state domestic legislation (European Parliament 2018). Each member state is obligated to comply to all EU laws, so in turn must adopt new legislation or amend current legislation to meet these obligations. However, the timeline equability of enactment or not varies considerably between member states (Europa 2018). Failure to comply results in potential infringement proceedings before the European Union Court of Justice (EUCJ) (European Commission 2018). It is through this ordinary legislative procedure that EU changes environmental laws in its member states.
Role of the European Institutions
The European Parliament (EP) and the European Council together have the power to adopt and amend legislative proposals brought forward by the European Commission, including all environmental legislation (Jan H. Jans and Hans H.B. Vedder. 2011). The EP is a directly-elected body that acts as a co-legislator with the European Council; the council is made up of government ministers from each European member state. In addition to legislative powers, the EP and the Council have budgetary and supervisory powers. These supervisory powers ensure the correct implementation of European law (Macrory, 2009).
The European Commission is a politically independent arm of the EU responsible for proposing legislation, implementing decisions and monitoring transposition. The Commission also monitors performance such as the timeframe equability of enactment across member states (European Commission 2018) and together with the EUCJ ensures EU laws are properly applied in member countries. The commission has no power to pass laws. In the initiation stage, the role of the Commission is to assess the potential economic, social and environmental consequences of proposed legislation. It consults local authorities, non-government organisations, citizens and representatives of industry to prepare impact assessments (European Commission 2018).
Ordinary Legislative Procedure
The ordinary legislative procedure for providing environmental legislation proceeds as follows: The European Commission submits a proposal. The EP and the Council will either approve or amend the proposal at either the first or second reading. If EP and Council do not reach an agreement both the EP and Council can amend the proposal a second time. If they still cannot reach an agreement a conciliation committee is convened, and they enter negotiations. After negotiations, the institutions vote in favour or against the proposal. If the text agreed by the conciliation committee is acceptable to both institutions at the third reading, the legislative act is adopted. If a legislative proposal is rejected at any stage of the procedure, or a compromise cannot be reached, the proposal is not adopted, and the procedure ends (European Parliament 2018). There are other special legislative procedures which are used in sensitive cases, though most environmental legislation does not fall into this category (European Council 2018).
The primary legislation of the EU, called the Treaties underpin the development of all EU laws. The treaties are a set of international treaties between EU member states which outline the EU’s constitutional basis. Member states vote to support or reject an EU treaty differently. Ireland holds referendums on any EU changes to treaties as required by the Irish constitution; other member states can ratify treaties by a vote in their national parliament (Europa 2018). The treaties set out the division of powers between the EU and the member states, define the decision-making process, the powers of the EU institutions and the scope of their activities within each policy area. The EU can only act within the competencies granted to it through these treaties and as such all secondary EU laws including environmental legislation are composed of legal instruments based on these treaties (European Parliament 2018).
The secondary laws of the EU are used to implement the policies set out in the treaties. The legal instruments of secondary law are regulations, directives and decisions. The EU can direct member states to adopt or change domestic legislation to comply with EU law, and much of the environmental legislation in member states have primarily been developed through EU regulations, directives and decisions (Europa 2018).
Implementation of EU Legislation
Once legislation is passed by the EP and the Council, it is the Europeans Commissions role to ensure it is implemented. The Commission ensures that the treaties and laws adopted and amended by the EP and council are upheld by potentially taking non-compiling member states to the CJEU. The CJEU made up of one judge from each member state and it interprets EU law and settles legal disputes (European Commission 2018). For instance, The CJEU ruled in 2004 that Greece was violating EU law by not adequately collecting and treating waste water discharged into the Gulf of Elefsina (Judgement No C-119/02 of 24 June 2004) and Greece was ordered to pay substantial fines and court costs (European Commission 2018). Furthermore, in 2008 Ireland’s failure to regulate septic tanks, and to correctly transpose an EU Directive on Environmental Impact Assessments (EIA Directive 85/337/EEC and its amendments 2011/92/EU and 2014/52/EU ) resulting in a ruling from the EUCJ that Ireland was to pay a sum of €1,500,000. Daily fines were not imposed as Ireland subsequently completely and correctly transposed the EIA directive (Europa 2018). This demonstrates that often there is not equability of enactment across member states and that failure to comply with EU directions by the deadline carries the real risk of financial sanctions. This compels member states to change domestic laws to completely and correctly transpose EU laws (European Commission 2018).
EU regulations have a general application and are binding in nature. They are directly enforceable as law in all member states simultaneously. As such, there is no need for the establishment of national legislation. EU law takes supremacy over member states laws, this principle means that if there is conflict between EU law and member states law, the EU law prevails (Eurpoa 2018). Regulation (EU) 1143/2014 on invasive alien species (the IAS Regulation) entered into force simultaneously on January 1st, 2015 across all member states. The Regulation lays down rules to prevent, minimise and mitigate the adverse impacts of the introduction and spread of invasive alien species on biodiversity, ecosystems, human health or the economy (EUR-LEX 2018). It immediately came into effect and is binding in all EU member states without the need for the adoption or amendment to member state domestic legislation. Nevertheless, member states often set out plans, policies, and strategies to meet the EU IAS Regulation. Ireland has a National Biodiversity Action Plan, for the period 2017-2021 with a target that states that ‘Harmful invasive alien species are controlled and there is reduced risk of introduction and/or spread of new species’ (National Parks and Wildlife Service Biodiversity Action Plan 2017). In addition, Ireland has adopted comprehensive regulations which address deficiencies in Irish law when implementing the EU Bird and Habitat Directives which cover invasive alien species; Regulation 49: Prohibition on introduction and dispersal of certain species and Regulation 50: Prohibition on dealing in and keeping certain species (Biodiversity Ireland 2018). France meet their obligations to the IAS Regulation through their National Biodiversity Strategy of the French Ministry of Ecology and they currently are working on a national strategy project dedicated to invasive alien species (France Diplomate 2018). The Wildlife and Countryside Act 1981 is the principal legislation dealing with non-native species in the UK, and The Code of Practice for Species Control Provisions in Wales details how the EU measures set out in the IAS Regulation should be applied in Wales (GB Non-Native Species Securitate 2018). These examples show how different member states meet the requirements of EU Regulations differently through the development of national action plans, codes of practice and strategies.
Directives are binding in nature, and the EU requires member states to achieve a result, yet the means of achieving that result are not directed; the member states can choose the form and method for national implementation (Europa 2018). Directives achieve their intended effects if they are completely and correctly transposed into member states national law by the deadline set out in the directive. Transposition is the process by which EU member states give force to a directive by passing appropriate national legislation.
The Marine Strategy Framework Directive 2008 (MSF Directive) requires European member states to assess the quality of the marine environment, draw up adequate monitoring programmes and implement measures to reach a ‘good environmental status’ in the marine environment by the year 2020. Meaning that the seas are clean, healthy and productive and that human use of the marine environment is kept at a sustainable level (Europa 2018). Sixteen of the 23 marine EU member states had adequate monitoring programmes in time by the cut-off date given in the Directive and the European Commission launched appropriate infringement procedures against non-complying states (EUR-LEX assessing member states MSFD 2018). Subsequently, the transposition of the MSF Directive was eventually successful by all member states, but the timeline of equability of enactment and method differed (Europa 2018). Most member states opted to meet their MSF directive obligations by adapting traditional administrative structures already in place (EUR-LEX assessing member states MSFD 2018). These structures were already in place when member states took action while transposing other EU legislation such as, the Waste Framework Directive, the Water Framework Directive, the Birds and Habitat Directive, the Urban Waste Water Treatment Directive or the Common Fisheries Policy Regulation (EUR-LEX assessing member states MSFD 2018).
Ireland for example in 2004, revised their pre-existing Common Fisheries Policy to meet many of their obligations set out in the MSF Directive (Biodiversity Data Centre 2018). Malta transposed the MSF directive through the expansion and publication of their Marine Policy Framework and the development of a monitoring programme, filling the gap between existing processes and the requirements of the directive (Environmental resources and authority 2018). France incorporated their MSF obligations into the Action Plans for the Marine environment and into French law in the Environment code, regulated by their ministry of Ecology sustainable Development and Energy; they addressed measures for marine litter by developing a national waste prevention programme and they limited shellfish farms which produce a lot of marine litter to tidal areas and incorporated policy to ensure they collect and recycle shellfish farm waste (EUR-LEX assessing member states MSFD 2018).
The European Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, known as the Habitats Directive has been transposed into each Member States legislation in a variety of forms. The main aim of the Habitats Directive is to protect biodiversity by requiring Member States to take actions to preserve or restore natural habitats and wild species to a favourable conservation status, ensuring the conservation of rare, threatened and endemic animal and plant species (European Commission Habitats Directive 2018). The overall approach by most member states to achieve these results is to have a period of consultation on the best way to transpose the habitats directive into domestic law, followed by the implementation of new legislation with minimal ministerial burden and regulatory changes. In some cases, the transposition of the Habitats Directive by member states has been more effective than others (Eurpoa 2018).
The UK Government was one of many member states that failed to meet deadlines set in the Habitat Directive by the European Commission for transposing into national law. Outstanding is the transposition of article 6(2) where the UK has failed to take appropriate steps to avoid deterioration and disturbance of habitats and species of community interest in special protection areas and special areas of conservation (Charted Institute of Ecology and Environmental Management Dec 2015). The Habitat Directive was eventually partially transposed into UK domestic law first through The Conservation (Natural Habitats) Regulations 1994 and then through a combination of amendments to The Habitats Regulations 2010 (Charted Institute of Ecology and Environmental Management Dec 2015). In comparison, Ireland completely transposed the EU Habitat Directive into national legislation by the deadline set out in the directive. First, in 1997, the Habitats Directive was transposed into Irish national law and the European Communities (Natural Habitats) Regulations 1997, SI 94/1997 were adopted representing a shift in nature conservation policy and law in Ireland (National Parks and Wildlife Service 2018). These Regulations were amended in 1998 and 2005 and then superseded by The European Communities (Birds and Natural Habitats) Regulations 2011 (National Parks and Wildlife Service 2018). There are other European Community Regulations in Ireland that also cover environmental protection and conservation of Natura 2000 sites as directed by the Habitats Directive such as, European Communities (Forest Consent and Assessment) Regulations 2010, European Communities (Environmental Impact Assessment) Regulations 2011, European Communities (Natural Habitats and Birds) (Sea-Fisheries) Regulations 2009- 2012 . The amendment of these regulations help Ireland meet their Habitat Directive obligations through for example, the management of sea fisheries and agricultural activities which may impact Natura 2000 sites (National Parks and Wildlife Service 2018). Ireland also met their EU Habitats Directive requirements through other relevant legal provisions such as the adoption or amendment of the following Acts: Wildlife Acts 1996-2012, Wildlife (Amendment) Act 2000, Planning and Development Acts 2000-2010 and the Foreshore Acts 1933 to 2011. These Acts reregulate planning and development, protection and conservation of wildlife and the regulation of certain activities that affect habitats and species (National Parks and Wildlife Service 2018) . Croatia has partially met their Habitats Directive through amending their Nature Protection Act in February 2018, an example of an amendment is all management plans are now obligatory for Croatian Natura 2000 sites where previously they were optional. The Croatian Hunting Act is still in the adoption procedure stage and will further fulfil Croatia’s Habitat Directive transposition obligations (WWF European Policy Office, 2018). These examples show how the EU change environmental laws in member states and how member states transposed the Habitat Directive into domestic legislation at different times with some states having completely transposed legislations and others still in the process many years after the Directives deadline date.
Decisions have a legal binding effect to those member states or individuals it is addressed. For example, the EU Effort sharing decision (Decision No 406/2009/EC) in 2009 applied directly to 22 of the 28 EU member states. It established binding annual greenhouse gas emissions for these countries for the period of 2013-2020 (EUR-LEX 2018). This decision resulted in changes to environmental legislation in only those member states named in the decision.
The EU has changed most environmental legislation in each of its member states through the ordinary legislative process. Since its inception, the EU has repeatedly directed member states to adopt or change each of their domestic environmental legislation through the EU legal regulations, directives and decisions. Through the process of adopting new and amending existing domestic environmental legislation, member states comply with EU law. There are further strides that need to be made around the correct and complete transposition of EU law in some member states and with the equability of timeline across member states. In the future, we can expect the EU to continue to play a key role in the evolution of member states environmental legislation as new environmental considerations arise and we continue to adopt the best practice in our responsibility to protect and preserve the environment.
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