Guide to Euopean Env. Law

8/8/2019 Guide to Euopean Env. Law

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Papers in Land Management: No. 4 A Guide to European Environmental Law

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A Short Guide to

European Environmental Law

Robert Home

Papers in Land ManagementNo. 4200


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Papers in Land Management seriesLand management covers a wide range of academic and professional areas relating to land - law and public administration, land use planning, environmental protection, valuation and real estate,and history. This series aims to make available papers which may not suit more conventionalacademic publication. They may be work in progress, teaching material, reports of consultancy work, or conference papers. Some papers are of specific geographical interest (eg Anglia Ruskinsregion, and the Balkans where the Law School has collaborated), or in particular thematic areas(eg environmental law, legal and planning history, and comparative land law). The series also aimsto support the work of UN Habitats Global Land Tools Network, to which the first two papers arerelevant, and set some common themes for the series. The series editor is Robert Home, Professorof Land Management at the Anglia Law School, Anglia Ruskin University, Bishop Hall Lane,Chelmsford CM1 1SQ, United Kingdom. For further details (and to propose a paper) contact himat: [email protected]

Current papers1. This land belongs to you and me: The global challenge of land management , by Robert

Home (2007)2. Squatters or Settlers: Rethinking Ownership, Occupation and Use in Land Law , by Robert

Home and Hilary Lim (2007)3. The Law of Settlements and Removals viewed as a model of property rights for the poor ,

by Lorie Charlesworth (2007)4. A Short Guide to European Environmental Law , by Robert Home (2007)5. Municipal administrative reform and land development issues in the former Yugoslav

Republic of Macedonia, by Edward Frank, Corrado Minervini and Danica Pavlovska (2007)6. Cambridge sub-region Traveller Needs Assessment, by Anglia Ruskin University andBuckinghamshire Chiltern University College (2006)

7. Reconstructing Skopje, Macedonia, after the 1963 earthquake: The Master Plan fortyyears on , by Robert Home (2007)

8. From colonial housing to planning for disasters: The career of David Oakley (1927-2003) , by Robert Home (2007)

9. On the planning history of Chelmsford, by Ana Fuller and Robert Home (2007)

Paper No. 4: Abstract

This short guide provides general guidance on relevant law, policy and practice, for use by degree-level students, particularly in EU candidate countries. It was developed for the South EasternEurope University (Tetovo, Macedonia) to support the European Environmental Law [EEL]elements in its postgraduate programmes. It is understood to be accurate as at 2007, but shouldnot be regarded as an authoritative source.

The author Robert Home is a chartered town planner, and Professor in Land Management at the Anglia Law School, Anglia Ruskin University. He lectures on environmental law, land management andplanning, has researched and published widely in these fields. In 2006 he was training consultantin Macedonia on a project strengthening municipal capacity, funded by the European Agency forReconstruction.


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AcknowledgementsThe author acknowledges the assistance of the following: Lynn Dyson-Bruce, Dennis Farrington,Murtezan Ismaili, Bistra Netkova and Silvie Shaqiri


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Abbreviations and acronyms

BAT(NEEC) Best available technology (not entailing excessive costs)BERCEN Balkan Environmental Regulatory Compliance and Enforcement Network CARDS Community Assistance for Reconstruction, Development and StabilisationDG-ENV Environment Directorate-General of CECEC Commission for the European CommunitiesECHR European Convention of Human RightsECJ European Court of JusticeEEL European Environmental Law EIA Environmental Impact AssessmentENEA European Network of Environmental Authorities for the Cohesion Policy EU European UnionFYROM Former Yugoslav Republic of MacedoniaICJ International Court of JusticeIMPEL EU Network for the Implementation and Enforcement of Environmental Law EIA Environmental Impact AssessmentIMS(S) Individual Member State(s) of EUIPPC Integrated Pollution Prevention and ControlNGO Non-governmental organisationSEA Strategic Environmental AssessmentSEEU South Eastern Europe University SD Sustainable DevelopmentUK United KingdomUSA United States of America


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1 Introduction

1.1 The environment at its simplest is where we all live (according to the World Commissionon Environment & Development), or everything thats not me (according to AlbertEinstein). A recent, rather more specific, definition, in the 2004 Macedonian Law onEnvironment, is as follows:

Environment shall mean the space with all living organisms and natural resources,i.e. natural and man-made values, their interaction and the entire space in whichpeople live and in which settlements, goods in general use, industrial and otherfacilities, including the media and the areas of the environment, are situated.

1.2 Environmental law seeks to provide support, and create conditions for, protection againstpollution and degradation of, and impacts upon, environmental areas and media. Someenvironmental laws provide for assessing possible future impacts in advance (as part of thedecision-making process), while others regulate the quantity and nature of impacts of human activities (for example, setting allowable levels of pollution). As a distinct code of law it has developed since the 1960s in the major industrial economies, and continues toevolve rapidly.

1.3 The EU is increasingly committed to a global environmental role, and so Europeanenvironmental law [EEL] and policy has grown, with the member states required toimplement levels of environmental protection as agreed among them. This introductionsummarises the law, particularly as relevant to the candidate countries of the westernBalkans, with an example from the FYROM case.


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2 Developing the EU environmental acquis

2.1 Treaties

2.1.1 The primary sources of international environmental law are treaties and internationalagreements, but these generally do not have a binding nature. They are soft law, basedupon declarations, codes of practice, but lacking effective enforcement mechanisms. TheInternational Court of Justice [ICJ] has occasionally adjudicated in inter-stateenvironmental disputes, but there are inadequate legal avenues to seek redress for cross- border environmental disasters, and an international environmental court or tribunalremains a vision for the future.

2.1.2 International agreements can only become concrete through country-specific laws andregulations. The EU offers a regional arrangement that can require such undertakings to beabsorbed into member states own legislative frameworks, and has achieved globalrecognition for its attempts to create a binding regulatory approach to environmentalprotection.

2.1.3 Each IMS commits itself to theacquis communautaire ( the collective rights and obligationsderiving from EU treaties and laws), within which theenvironmental acquis has grownrapidly. From its origins in the 1970s with air and water directives, it now comprises sometwo hundred legal acts, and one of the most important chapters in the European Treaty.Environmental policy falls within the Community pillar of the three so-called pillars of theEU (the others being Common Foreign and Security Policy, and Police and Judicial Co-operation).

2.1.4 The European Treaty first included a policy in the sphere of the environment in 1987, and Article 6 now requires environmental protection to be integrated within EU policiesthrough the cohesion process. The SD Strategy is one of two horizontal principles of EUcohesion policy (the other being equal opportunities and non-discrimination) . It addressespriority areas of climate change and clean energy, sustainable transport, sustainableproduction and consumption, conservation and management of natural resources, andpublic health.

2.2 Principles

2.2.1 EU law relies various principles (some contained in the European Treaty), which areoutlined here as relevant to EEL.

2.2.2 The proportionality principle asserts that any action of the Community shall not go beyond what is necessary to achieve the objectives of the Treaty, and the subsidiarity principle thatdecisions should be taken as closely as possible to the citizens. The so-called margin of appreciation offers each IMS a measure of discretion in how to interpret EU policy, whilethe devolution of competence allows law to be applied by national, regional or localgovernment institutions.

2.2.3 Other principles relate more directly to the environmental acquis . The polluter paysprinciple is discussed further in 2.3. The precautionary principle (following Principle 15 of the 1992 Rio Declaration) is a variation upon the justiciable duty of care, and states that


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lack of full scientific certainty is no excuse to postpone measures for environmentalprotection. Thus, if an action or policy might cause severe or irreversible harm to the public,the burden of proof falls on those advocating taking the action, in the absence of a scientificconsensus that harm would not ensue. Examples of its application could be the release of radiation or toxins, or massive deforestation, both of which are potentially irreversible andunfair to future generations.

2.2.4 Other principles can be briefly mentioned. Preventive action is the concept that preventionis better than cure, and involves early consideration of environmental risks, and identifyingenvironmental damage at source. The proximity principle states that environmentaldamage is best rectified at source, for example by disposing of waste as close as possible toits place of origin. The integration principle expects that environmental protection be acomponent of other EU policies, although there is a wide discretion in application. Theprinciple of shared responsibility expects all concerned groups to work in partnershiptogether.

2.3 Environmental liability and the polluter pays,

2.3.1 The Polluter Pays Principle requires the polluting party to pay for environmental damage.Claimed as a cornerstone of EEL, it introduces fault-based liability for operators (or thecompetent authority), who must take necessary preventive and restorative measures forenvironmental damage. Cost recovery mechanisms are based upon the doctrine of joint andseveral liability, or fair and reasonable apportionment.

2.3.2 It has been extended with the Environmental Liability Directive (2004/35/EC) and theExtended Polluter Responsibility concept. This shifts responsibility for dealing with wastefrom governments to those producing it. The producers financial and/or physicalresponsibility for a product is extended to the post-consumption stage of the products lifecycle, giving them an incentive to incorporate environmental considerations into the designof their products.

2.4 Aarhus and the public role

2.4.1 The Aarhus International Convention (1998) established three crucial rights of the public(both as individuals and in association): access to environmental information held by publicauthorities on request (Rio Declaration Principle 10), participation in environmentaldecision-making, and access to justice (allowing them to challenge public bodiesdecisions). The EU has applied the Convention through the Aarhus Regulation (1367/2006)and directives on Access to Environmental Information (90/313/EEC, amended by 2003/4/EC) and Public Participation (2003/35/EC).

2.4.2 The public and the community of NGOs have an important role in environmentalprotection. They can signal infractions, collect information, run projects, and educatecitizens about their rights and obligations. To support this the Reporting Directive(91/692/EEC) requires IMSS to produce regular sectoral reports for public information.


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2.5 EU enlargement

2.5.1 The Copenhagen criteria (agreed there in 1993 by the European Council) define whether acountry is eligible to join the EU. They require institutions to preserve democraticgovernance and human rights, operate a functioning market economy, and accept theobligations and intent of the EU. Candidate countries are also required to bring their lawsinto line with theacquis communautaire before joining.

2.5.2 With EEL growing in complexity and importance, the EC in 1998 issued a Handbook for Implementation of EU Environmental Legislation in 1998 (revised in 2003, and now running to some 900 pages). It is intended for use by governments in candidate countries,and uses examples from four IMSS. The UK was chosen as a long-established IMS withsubstantial experience in implementation, and having a partly decentralized political andadministrative system. Portugal was also included as a relatively small IMS with highimplementation costs, and thus comparable with the South Balkan candidate countries.

2.5.3 Approximation describes the process for transposing EU laws into national legislation, witharrangements for implementation and enforcement measures. Approximation requires work on capacity-building and resourcing, reliable data and monitoring systems,awareness-raising of industry and the public, and action against environmental violations.


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3. Implementing the acquis

3.1 Law-making

3.1.1 EU laws operate through regulations (which have immediate and binding effect on eachIMS) and directives (binding as to the results to be achieved, but leaving the IMS choice of form and methods). In EEL most environmental matters proceed via directives, whichusually require an unanimous vote by the Council of the EU {formerly the Council of Ministers). Where an IMS anticipates difficulty in transposing a directive into domesticlaws, it can be allowed a derogation, which is a temporary exemption from a particular legalprovision for a period of years, but the opportunity for such derogations is limited.

3.1.2 The European Parliament is responsible for law-making, and its environment committee isparticularly busy, being responsible for 20 percent of amendments to new laws and 40percent of co-decision negotiations. There is concern at differential application betweenNorthern and Southern Europe, and between rich and poor IMSS. A tendency is identifiedto legislate in a hurry, and sort out the problems afterwards, with IMS agreeing to measures without expressing their doubts about whether they can comply. Reporting requirementsare often ignored.

3.2 Judicial institutions

3.2.1 Article 10 of the European Treaty obliges member states to comply with EU laws, and

Article 226 empowers the EC to take direct action against an IMS. The sequence of procedural events is that a formal notice of infringement (with a time period for response)can be followed by a reasoned opinion, and finally recourse to the European Court of Justice [ECJ] in Luxembourg, which can impose financial penalties upon the IMS. Nationalcourts are required to take notice of any ECJ decision, and individuals and legal entities cantake action against an IMS under Article 230 for the infringement of EC laws or procedure,lack of competence and misuse of power. Directives are only directly enforceable againstthe IMS (not against individuals or companies), but an IMS can be required to pay compensation to individuals (under the so-called Francovitch liability).

3.2.2 There are numerous direct actions against member states for failing to implement

directives, or for partial or incorrect implementation. For example the EC in 2007 startedlegal action against 14 IMSS for inadequately transposing the Landfill Waste Directive intotheir national laws.

3.3 Executive institutions

3.3.1 The Environment Directorate-General of the EC (DG-ENV) is responsible for initiatinglegislation and ensuring that agreed measures are put into practice by member states.Created in 1981 and based in Brussels, its 650 staff are organised into various directorates.

3.3.2 The number of complaints lodged with the EC about environmental matters, mostly resulting from complaints by the public, continues to grow, and accounts for about a thirdof all infringement cases investigated by the EC.


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3.4 Programmes and projects

3.4.1 The EU increasingly invests to support theenvironmental acquis , through variousprogrammes, projects and networks. Thus the Sixth Environmental Action Programme(2002-12) has seven thematic strategies: Air Pollution, Prevention and Recycling of Waste,Protection and Conservation of the Marine Environment, Soil,Sustainable Use of Pesticides,Sustainable Use of Resources, and Urban Environment. Scientific knowledge on theenvironment is advanced through the research and development programmes, and theEuropean Environment Agency prepares reports on the environment and co-ordinates work.

3.4.2 Projects are funded through LIFE (the Financial Instrument for the Environment), whosecurrent programme (1.9 billion euros for 2007-13) has three strands: Nature andBiodiversity, Environment Policy and Governance, and Information and Communication.Individual projects are closely checked at the proposal stage, mid-term, and at the end,against agreed indicators, and the programme tries to ensure that project pipelines do notexceed the absorptive capacity of the IMS.

3.4.3 Collaborative networks are used to improve implementation and enforcement. The IMPELnetwork, created in 1993 to assist the implementation of EEL (hence its name), includesIMSS and candidate countries, and provides an opportunity to work together informally,and promote mutual understanding of the common characteristics and differences of national regulatory systems. It organizes its work in three pillars: policy-making(b etterlegislation), permitting (issue of regulatory permits), and inspection (practical and

technical aspects of inspection and enforcement). Other networks include ENEA (bringingtogether experts, international organisations, and environmental NGOs), and BERCENspecifically for the South Balkan candidate countries.

3.5 National measures

3.5.1 The so-called competent authorities (usually in the public sector) are responsible forimplementing and enforcing EEL. Competence may be devolved and divided, for example between national, regional and local government institutions. Experience suggests, forexample, that permitting of land use development and dissemination of environmental

information are best organized at local rather than national level. Good enforcement of EELat IMS level requires strong and committed environmental inspectorates with adequateresources, as well as systems of penalties, risk management, and quality assuranceprocedures.

3.5.2 Because current sanctions against non-observance of EEL are regarded as insufficient toachieve full compliance, the EC is preparing a new directive on environmental crime, toharmonize the categorization of serious offences, the scope of liability, and the sanctionlevels for offences, while respecting the cultural values of IMSS.

3.5.3 Decentralized environmental management systems with NGOs and companies require new working arrangements, supported by the partnership principle and greater participation. With widespread failure to transpose EEL into national law, environmental capacity- building is becoming an area of increasing importance.


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4. Horizontal and sectoral measures

4.1 Introduction Horizontal legislation concerns matters which cut across different areasrather than a specific sector, and are more procedural, aiming to improve legislation anddecision-making. In the early years of EU environmental protection, much law wasconcerned with air and water quality, but the scope of EEL has since widened greatly, toinclude such matters as waste management, nature protection, and environmental liability, which this section discusses. (See section 2.4 for horizontal legislation on publicinvolvement, and section 2.3 for environmental liability.) The EEL Handbook also hassections on other areas which are beyond the scope of this short guide: noise, nuclear safety and radiation protection, chemicals and GMOs, industrial pollution and risk management,and civil protection.

4.2 EIA

4.2.1 EIA is the process of identifying, predicting, evaluating and mitigating the environmentaleffects of development proposals before major decisions are taken and commitments made.It is thus closely linked with the land use planning systems role in approving or refusingnew development, and with the concept of preventive action. Originating in the USA in thelate 1960s, EIA is recognized under international law (eg by the ICJ), and has generated alarge literature.

4.2.2 EIA can embrace a wide range of scientific and technical aspects, and has expandeddemand for specialist consultants in a range of scientific areas. It covers direct and indirecteffects on humans, fauna and flora, soil, water, air, climate and landscape, material assetsand cultural heritage, and the interaction between them.

4.2.3 The EIA Directive (85/337/EEC, amended and extended by 97/11/EEC and 2003/55/EC) isa cornerstone of horizontal EEL. It requires member states to incorporate EIA in theirplanning systems, and makes EIA mandatory for certain major Annex I projects (egtransport infrastructure, industrial and extraction plants, housing and tourismdevelopments, power stations, radioactive waste treatment, chemical installations). For Annex II developments the competent authority MAY require an EA, with assessment

criteria devised case-by-case.4.2.2 An environmental statement is prepared by specialists on behalf of the developer, and

forms part of the application for permission to undertake the development. The statementidentifies the likely significant environmental effects of the development (including theconstruction phase, and proposed monitoring and mitigation measures), and assesses costsand benefits (eg more sustainable transport, remediation of past contamination). Thecompetent authority sets the parameters through a scoping exercise, and the statement isavailable for public consultation.

4.2.3 There have been many complaints to the EC about non-implementation of EIA directives.

Cases brought before the ECJ include Kraaijeveld (1996) and Bozen (2000), and cover suchmatters as the extent of discretion, and deciding whether a particular Annex II developmentrequired an EIA.


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4.2.4 The EIA approach has been extended through the Strategic Environmental AssessmentDirective (EC 2001/42/EEC). This requires public authorities (and private providers of public services) to assess the potential significant environmental effects of their plans andprogrammes (including transboundary effects). SEAs are mandatory for plans andprogrammes in the following sectors: agriculture, forestry, fisheries, energy, industry,transport, waste management, water management, telecommunications, tourism, town andcountry planning or land use. An SEA covers such matters as baseline data requirementsand scoping, assessment of alternatives, screening processes for cases, protectionobjectives, and mitigation/monitoring measures.

4.3 Air and emissions

4.3.1 Air pollution has been a priority since the early days of EU environmental protection, withinitiatives such as the Seveso Directive (96/82/EC) to control dioxin emissions after themajor accident at Seveso. In 2005 the EC adopted a thematic strategy on air pollution, andthe CAF (Clean Air for Europe) Programme provides technical analysis and policy development. The IPPC Directive (96/61/EEC) requires a system of permits for certainindustries, which include emission limits and application of Best Available Techniques.

4.3.2 The global atmosphere in international law has a status of common concern, and the paceof collaboration through conventions and protocols has accelerated with the Kyotoinitiative. The EU is taking measures to reduce greenhouse gases (especially carbondioxide) by increasingly stringent emission standards, and an integrated and internationalapproach.

4.3.3 The EU created in 2000 an European Pollutant Emission Register, the first European-wideregister of industrial emissions into air and water, and since 2006 has been extended toinclude more emitting facilities, require more substances reported, wider coverage andpublic participation, and annual instead of triennial reporting.

4.3.4 Emissions trading (or cap-and-trade) offers economic incentives for achieving reductions inemissions of greenhouse gases (especially carbon dioxide). The climate change levy seeks toreduce emissions in energy-intensive industry sectors (such as brewing, cement, printing,and animal feed). Companies or other entities that emit the pollutant are given credits orallowances which represent a right to emit a specific amount, and if exceeding their

allowances must buy credits from those who pollute less than their allowances. In theory,the more firms that need to buy credits, the higher the price of credits becomes, whichmakes reducing emissions cost-effective in comparison, although in practice the first phaseof the scheme ended with the collapse of carbon credit prices.

4.3.5 Moves to achieve a low carbon economy are reinforced through the cohesion policys SDfocus, and are linked to more energy generation from renewable sources (particularly windpower). The key is the Directive on the Promotion of Electricity from Renewable Energy Sources in the Internal Electricity Market (2001/77/EC), under which. IMSS are requiredto adopt national targets for renewables against an EC target of 22 percent of electricity from renewables by 2010.


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4.4 Water

4.4.1 Water is arguably the most comprehensively regulated area of EEL, with the protection of water quality always a concern of EU environmental regulation. A first wave of waterdirectives in the 1970s concerned such matters as surface water, drinking water, bathing water and ground-water. A second wave, following a review, included the Urban Waste Water Treatment Directive (91/271/EEC) and the Nitrates Directive (91/676/EEC) onnitrates from agricultural sources (which can permeate into the water table, with adverseeffects on human health). Pollution is tackled by setting minimum quality standards andthe maximum quantities of pollutants that may be discharged. The general principles of EEL are applied (precautionary, polluter pays, preventive action, rectification at source,promotion of SD).

4.4.2 A further review and more global approach resulted in the Water Framework Directive(2000/60/EC). It rationalises and updates existing water legislation, gradually replacingthe old water directives (eg urban waste water, freshwater fish and drinking water). Thelong-term, co-ordinated framework for water management aims to improve water quality,reduce risks (for example from drought or flooding), and stop the deterioration of wetlandsand such ecological habitats.

4.4.3 The key to the Water Framework Directive is the concept of river basin management,requiring closer co-operation between competent authorities (sometimes across IMS boundaries). An integrated policy on the long-term sustainable use of water will expandprotection to cover all water bodies. The first step is to identify water bodies and the

surrounding land area, called River Basin Districts, which are 'characterised' by assessingpressures and impacts, such as overuse or pollution. A River Basin Management Planshould set out how to improve water quality, so that inland and coastal waters can hopefully achieve good status (ecological, chemical and/or quantitative) by the year 2015. Priorityand priority hazardous substances should be identified, and hazards mitigated.

4.4.4 A national environment agency is normally the competent authority for implementing thesemeasures, but the local land use planning system can restrict future development if theremight be shortages of water supply, or significant flood risk. A Common ImplementationStrategy includes working groups on key activities, such as information sharing, datamanagement, testing and validation, and often works through non-statutory partnerships,

which seek to balance competing land uses, with local land use planning policy having asignificant role.

4.4.5 Between 1998 and 2004 Europe suffered over 100 major floods (with catastrophic floodsalong the Danube and Elbe rivers in 2002); these caused some 700 fatalities, displaced half a million people, and cost over 25 billion in insured economic losses. A proposed new Floods Directive responds to this situation, and will require flood protection plans, risk maps for areas at risk, and flood risk assessments to determine what developments canproceed.

4.4.6 Dams have also become part of the SD debate. The World Commission on Dams (2000)

found that only 40 percent of dams commissioned in the 1990s had any EIA. With morethan half the worlds population predicted to live in water-stressed countries by the year2025, future infrastructure investment will require EIA to identify rights and risks of affected groups.


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4.5.6 Waste management regulation continues to evolve. The EC has proposed a new thematic

strategy which shifts the focus of waste policies from preventing pollution to a new approach that takes account of the whole life-cycle of products, and in stimulating an EUmarket for secondary (recycled) waste.

4.6 Nature protection

4.6.1 Two directives comprise the cornerstones of EU nature protection policy. The BirdsDirective (79/409/EEC) requires the designation of Special Protection Areas, while theHabitats Directive (92/43/EEC) requires the establishment of a European ecologicalnetwork of selected habitats and species (the Natura 2000 sites). These directivesimplement various supporting international conventions: the 1971 Ramsar Convention onconservation of wetlands 1992, the 1979 Bern Convention on Conservation of European Wildlife and Natural Habitats, and the 1992 Rio Convention on Biological Diversity.Protection measures include financial compensation where land-owners have restrictionsimposed upon their land management practices. Designation of Natura 2000 sites isnearing completion, with some south European IMSS designating as much as 25 percent of their national territory.

4.6.2 Another directive worth mentioning is the Endangered Species Regulation (338/97), whichseeks to implement the Convention on International Trade in Endangered Species (CITES).


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5. Candidate country case: Macedonia

5.1 EU accession processes

5.1.1 The Stabilisation and Association Process (SAP) is the EU policy framework for the Western Balkan countries, launched in 1999, and aid to the region was channelled throughthe CARDS programme (since replaced by the Instrument for Pre-Accession Assistance).The Thessaloniki Summit of 2003 confirmed that all these countries and territories werepotential candidates for EU membership, and each has a Stabilisation and Association Agreement (SAA) to draw them closer to integration into the EU.

5.1.2 All candidate countries have to approximate their legal and administrative systems to the

acquis communautaire . Framework legislation establishes administrative systems andfundamental rights and obligations, followed by implementation and enforcement. Eachcandidate country has a National Programme for the Adoption of the Acquis (NPAA) to co-ordinate approximation activities, and annual progress reports on approximation are issuedfor the respective countries. Croatia and FYROM were granted candidate country status in2005.

5.1.3 EU legislation and standards are broken down into over thirty chapters within theEuropean Treaty, which are negotiated one by one. The EUs DG-ENV helps candidatecountries prepare to comply with EEL, although the EC grant of EUR 34.5 million to western Balkan countries in 2005 included only 6 per cent on the Environment sector.

5.1.4 Low absorption capacity and enforcement capacity are seen as major constraints for the western Balkan candidate countries, and much EU spending through CARDS has gone intoinstitution-building. A Regional Environmental Reconstruction Programme (known asREReP) provides a framework for regional environmental actions, and currently focuses onfour principal themes: institution building; civil society; support to existing regionalmechanisms, and reducing environmental health threats. BERCEN is an informal country-driven network, similar to the IMPEL network (see 3.4 above).

5.2 Macedonia country profile

5.2.1 FYROM is a small, land-locked country (surface area 25,700 kilometres), bounded by Albania, Montenegro, Kosovo, Serbia, Bulgaria and Greece, which became independentfrom the former Yugoslav Republic in 1991. It has a population of about two million, 59percent of them living in urban areas, and a population density of 79 per sq.km, all low by EU standards. Per-capita GDP in terms of purchasing power is about a quarter of the EUaverage, and economic progress since independence has been slow, with highunemployment (over 35 percent). The main industries are manufacturing, trade andagriculture, and textiles and steel the main export commodities.

5.2.2 The terrain is mountainous, with climatic variety and rich biodiversity. Forests cover a thirdof the land area (a proportion which is increasing with the abandonment of agriculturalland). The forest is degraded in character (for example with die-back of oak trees), and


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climate change is increasing the frequency of forest fires (affecting 3000 ha of landannually).

5.2.3 The countrys situation has implications for environmental protection. The economy andgovernment are severely constrained, and environmental protection has to compete withother priorities, such as pressure for economic development. Governmental capacity andpublic awareness in the environmental area are weak.

5.3 Legislative reform

5.3.1 A Ministry of Environment and Physical Planning was created in 1998, and the Departmenton European Integration has a working group on environment. The EC gives technicalsupport to FYROM for the approximation process, and progress with new nationallegislation has been good (with implementation less so). A basic legal framework exists withthe 2004 Law on Environment, which introduced EIA and IPPC, among other measures. Also introduced as part of the approximation process are the Law on Ambient Air Quality,and a revised Law on Waters. The Law on Nature Protection creates a National Council forNature Protection, a Register of Natural Heritage, an Environmental Information System,and a National Strategy. The 2004 Law on Waste Management incorporated EELprinciples, requiring the preparation of a national waste strategy and municipal wastemanagement plans. The Aarhus Convention was transposed with the 2006 Law on Free Access to Public Information.

5.3.2 The second National Environmental Action Plan (NEAP2) was adopted in 2006, and some

municipalities have prepared Local Environmental Action Plans (LEAPs). The governmenthas also introduced various rulebooks and technical guidelines, and draft laws on GMOsand Noise.

5.4 Implementation

5.4.1 The 2005 Analytical Report by the EC (when FYROM achieved candidate country status forEU entry) made clear that compliance with the environmentalacquis would requiresignificant investment, and require a strong and well-equipped administration at both

national and local levels of government. The main environmental problems were thensummarized by the EC as surface water quality of rivers, ground water quality, air quality (particularly in the capital, Skopje), waste management, and environmental monitoring.The visiting EC experts identified a significant lack of capacity in the areas of EA, IPPC,climate change, water treatment and waste management, and recommended thatenforcement needed to be strengthened, especially allowing direct action by environmentalinspectors without having to go through the courts. The report concluded that fullcompliance with the environmentalacquis would only be achieved in the long term.

5.4.2 The State Inspectorate for Environment is within the MEPP, and represents FYROM in theIMPEL and BERCEN networks. The creation of a National Environmental Protection

Agency has been recommended in order to strengthen and streamline environmentalmanagement.


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5.4.3 The environmentalacquis demands capacity-building at local as well as central governmentlevels. The 2004 Law on Territorial Organisation of Local Self-Government reduced thenumber of municipalities from 124 to 84, in the interests of strengthening local capacity.

5.4.4 Various concrete environmental improvement projects are being undertaken, withassistance of foreign donor agencies. These include the clearing of illegal waste dumps,integrated management of the Prespa Lake (with co-operation between FYROM, Albaniaand Greece), and better management of transboundary water resources.

5.4.5 Capacity-building activities include a national strategy for improving public awareness onenvironmental issues, training for small medium enterprise in environmental management,and the new Masters programme in Environmental Management offered by SEEU(Tetovo).


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6. Conclusions

6.1 The scope of EEL continues to grow. Recent initiatives and draft directives cover suchmatters as environmental crime, soil, and mining waste The new soil thematic strategy, forexample, aims at combating a range of risks (such as soil erosion and degradation,salinisation, construction activities) which prevent the soil from performing its naturalfunctions and services crucial to humans and ecosystems.

6.2 These new initiatives come at a time when there is growing concern at the implementationgap in EEL, and the growing complexity of procedures, programmes and projects, whichhave to compete for scarce governmental resources at national and local level. Some claimthat EEL puts an excessive burden on industry, and encourages the relocation of companiesoutside Europe to countries with lower production costs and less regulation (racing to the

bottom). The EC, however, considers (perhaps understandably) that the net impact of environmental policies upon employment is slightly positive, or at least neutral, rather thannegative.

6.3 Industry is having to take more responsibility for managing environmental risks (eg risks of flooding, industrial accidents, and forest fires). Such.environmental integration may hindereconomic performance, but eco-innovation can also bring economic and social benefits,attracting inward investment and job creation.

6.4 What is certain is that EEL will continue to be a crucial area of concern both for IMSS andcandidate countries.


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Note on further sourcesThe internet offers the best access to up-to-date material in the fast-changing area of EEL. Themain source is the well-organised EU web-site, with options to access in the main Europeanlanguages. Environment is found at http://ec.europa.eu/environment , and Enlargement athttp://ec.europa.eu/enlargement , with links to sources on the accession process, includingprogrammes and progress reports on individual candidate countries. The ECJ web-site (importantfor case law) is http://curia.europa.eu.

Another important resource is the European environmental law web-site of the Asser Institute based at the Hague (Netherlands), which can be found at www.eel.nl. It contains national country sites, updated by country representatives, with full-text versions of many national environmentallaws.

English-language books on EEL include de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (OUP, 2002) and Wilde, Civil Liability for Environmental Damage (Kluwer, 2002). For EEL in the UK, see Bell & McGillivray, Environmental Law (Blackstone,latest edition), Hughes, Environmental Law (Butterworth, latest edition), Jordan, The Europeanisation of British Environmental Policy (Palgrave, 2002), and Lee, European Environmental Law (London, 2006). On SD, see Richardson and Wood (eds), Environmental Law for Sustainability: A Reader (Hart, 2006).

Guide to Euopean Env. Law

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Transcript of Guide to Euopean Env. Law