Procedure for framing an EC environmental Directive
While in the final analysis the decisions rest with the EC, Member States have the opportunity during the drafting stages to have their opinions heard and considerable emphasis is placed on reaching a consensus.
The framing of a Directive typically follows the following pattern:
The Commission decides that it will work with a particular topic, "X". Aided by its own staff or by external consultants, the Commission acquires the necessary information on topic "X" and on the manner in which Member States and the USA deal with topic "X". The Commission draws up a proposal and convenes a panel of national experts - persons selected by the Commission from the individual Member States. However, it often happens that these are the same persons who usually represent the Member States in Council working parties. Depending on how adept they are, these national experts are thereby able to influence how the Commission deals with topic "X". The Commission can also draw upon its informal contacts to industry. The latter will be very willing to help in order to influence the forthcoming proposed Directive.
The Commission’s preparations end with a proposed Directive being placed before the Council. The draft Directive is then examined by a Council working party, an examination which is extremely detailed and which results in many changes.
During this process the Council receives the findings of a parliamentary hearing; to a greater or lesser extent, it has to heed the findings.
The normal practice is that after the matter has been dealt with by the working party and in the Standing Committee of Representatives (a group of high-standing officials) only a few main questions remain. These are then resolved by the ministers at the Council meeting. The Danish minister who participates in the Council meeting takes with him a mandate from the Danish Parliament’s European Affairs Committee.
The result arrived at by the Council has in certain cases to be brought before the Parliament a second time6. Otherwise all that remains is to polish the wording, whereafter the Directive is finally approved at a subsequent Council meeting without further debate (i.e. as an A-point on the agenda).
Procedure for framing an EC environmental Directive
When the Directive is sent to the Member States the countdown to the implementation deadline begins. The latter is stipulated in the Directive, with the duration depending on its substance, e.g. 18 or 24 months.
EC rules and Danish environmental rules Prior to the deadline the Commission expects to receive copies of the national rules implementing the Directive. While it is not unusual for the deadline to be overrun, serious overruns lead to the implementation of the Commission’s Treaty infringement procedure. If the substance of the national rules is in discord with the Directive, this may also trigger a Treaty infringement case. The Commission’s examination of the national rules is extremely detailed.
Procedure for framing national rules stipulating requirements to products
A treaty infringement case follows a fixed scheme whereby the Commission first gives the Member State the opportunity to present its point of view (an "opening letter" from the Commission). If the Commission finds cause to continue the case it issues a "reasoned opinion" explaining how the Member State has fallen foul of EC law. It is up to the Commission whether it will bring the Member State before the EC Court. The Court can only convict the Member State of violating EC law, and it is expected that the loss of prestige will be sufficient to make the Member State desist from infringing the treaty. In recent years there have been a dozen or so cases in which Member States have been re-convicted for the same breach of EC law, two of which were on the environmental front7. The Maastricht amendment of the Treaty furnishes the Court with the power to fine Member States who breach an EC law for a second time.
Enforcement of EC rules is entirely the responsibility of the individual Member States. The Commission’s possibilities for gaining insight into enforcement are extremely limited.
3.3.2. National rules:
The EC does not involve itself with purely environmental rules, i.e. rules concerning effluents or requirements as to environmental conditions, the proviso being that these respect the rules already issued by the EC. However, when Member States stipulate technical norms for industrial or agricultural goods, a special system comes into force that is designed to ensure that Member States do not try to create unlawful barriers to trade.
The basis for this is Article 30 of the Treaty of Rome, which is interpreted to mean that Member States may not establish discriminatory barriers to trade. It is supplemented by Article 36 which permits Member States to introduce non-discriminatory measures to protect human and animal life and health, protect plants, etc. According to EC Court practice, the Member States have also to be able to show that the measure complies with the EC proportionality principle, i.e. that it does not go further than necessary.
The Commission watches that Member States do not violate Article 30, but it is the Court that has the last say. In the 1980s, the Commission and Denmark disagreed as whether the Danish bottle recycling system was compatible with Article 30 since the former is based on certain approved bottle types (see Section 8.1). However, the Court concurred with Denmark that Denmark thereby safeguarded a legitimate environmental consideration, and that the measure did not go further than necessary (Case No. 302/86).
The practical course of events is regulated by Directive 83/189 (as amended by Directive 94/10) on the notification of technical barriers to trade. This stipulates that Member States have to notify the Commission prior to issuing Regulations, Acts, etc, that set down environmental requirements regarding a particular product. If neither the Commission nor another Member State react, then the Member State can enter the rule concerned into force 3 months after notification. If there is a reaction, the status quo period can be extended up to 18 months.
EC rules and Danish environmental rules
If a Member State completely neglects to notify, then the rule concerned is considered to
be invalid under EC law.
