The Environmental Challenge of EU Enlargement in Central and Eastern Europe
Chapter 3
Enlargement Negotiations and the Environment Chapter
The formal opening of the negotiations of the Environment Chapter of the acquis communautaire took place for the first applicant countries towards the end of 2000. In March 2001, Slovenia became the first applicant country to close provisional negotiations on the Environment Chapter. By the end of July 2001, the Czech Republic, Estonia, Hungary, Lithuania and Cyprus had also provisionally closed their Environment Chapter negotiations. Poland provisionally closed Environment Chapter negotiations by the end of October 2001, and Latvia closed three weeks later. At the beginning of December 2001 Slovakia also succeeded to provisionally close the Environment Chapter.
At the end of November 2001, Bulgaria and Malta were still in the midst of negotiations with the EU concerning the environment chapter. Romania had officially submitted its negotiation position, while Turkey was still at the beginning of the accession process.
The EU environmental and as well as agricultural acquis are considered the most difficult to implement of all the EU legal obligations. In the coming enlargement, therefore, environmental issues have been at the forefront of the negotiations between the EU and the applicant countries. A number of Member States have voiced concern that the applicant countries may not achieve environmental compliance by the time of accession The Danish Government has recognised the difficulties faced by the CEE applicant countries in achieving compliance in the environment sector and, through the DANCEE programme, provided substantial assistance to several applicant countries in their EU approximation efforts.
The European Commission's Environment Directorate General has taken a dynamic approach. On the one hand, it started to provide support to the CEE applicant countries for achieving compliance with the EU obligations in its area before any other Commission service(6). At the same time, it has carefully monitored the progress of the applicant countries in their pre-accession preparations in the environment sector, tracking transposition and implementation in detail.
Several CEE applicant countries have voiced concern that they are being subjected to higher scrutiny in the environment sector concerning their accession preparedness than previous EU candidate countries. But this ignores the many ways in which this enlargement is different from previous enlargements.
Experience from other enlargements
The 1995 enlargement brought Austria, Sweden and Finland into the fold of the EU. All three countries were acknowledged to have high standards of environmental protection. They had already joined the European Economic Area Agreement (EEA) and had therefore already harmonised their laws with all Internal Market legislation except for fisheries and agriculture requirements. Approximation with the remaining EU environmental requirements was therefore not a major hurdle.
At the time of the two previous enlargements (Greece, 1981; Spain and Portugal, 1986), the EU environmental requirements were still relatively new and mostly related to Internal Market requirements. The investment-heavy directives setting requirements for urban waste water treatment, large combustion plants, incineration, integrated pollution prevention and control (IPPC), and landfills had not yet been set in place. While the overall procedure was the same, the questions asked during the screening process did not go into the same detail as the current negotiations. The countries were asked if they accepted the EU rules and could achieve compliance. Though a few transition periods were negotiated at the time of accession, for the most part the EU accepted the three countries' assurances that they would be in compliance as of the date of accession.
It only became apparent after accession that these countries had particular environmental problems and lacked the financial resources to deal with them. The EU - through its Structural Funds and the Cohesion Fund - has made and continues to make significant transfers of funds so that the three countries (and Ireland, which joined in 1973 with Denmark and the UK) could build the public sector infrastructure needed to comply with the environmental acquis.
The enlargement most relevant to the CEE applicant countries occurred with the reunification of Germany in 1990. German officials assured the then European Community that they would be able to bring the neue Länder into compliance with EU environmental standards by the mid-1990s. However, the task of upgrading public sector environmental infrastructure and controlling sources of industrial pollution proved to be much more expensive and time-consuming than originally estimated, and the promise of compliance by the mid-1990s could not be achieved.
The EU institutions have indicated the importance of learning from these past enlargements and to take a more realistic approach in their expectations concerning the applicant countries' capacities to achieve environmental compliance, especially given all the developments in the EU environmental acquis in the past 15 years. Part of the impetus for this has been the insistence of those Member States that are net contributors to the EU budget that they will not accept paying large amounts for environmental clean-up and other accession-related costs in the CEECs. A realistic approach is especially necessary given the scale of the coming enlargement - perhaps as many as ten countries at once, with a combined population of 105 million people.
Environmental "approximation"
The Copenhagen criterion most relevant for the environment is the third criteria - ability to assume the obligations of membership. One of the defining elements is whether the applicant country has harmonised national legislation and practices to conform with existing EU requirements (the acquis communautaire). In EU terminology, this process has come to be known as "approximation". Officials from the European Commission have defined "approximation" as consisting of:
 | precise transposition of the relevant EU legislation(7); |
| having in place the necessary administrative and other structures for implementation and enforcement. |
The applicant countries are also required to ratify all international conventions to which the EU is a party (see section 4.8 for further discussion on this).
Candidate countries have been progressing steadily in the task of drafting national laws and administrative regulations to transpose the EU obligations, so transposition is not expected to be an obstacle to early membership. However, the second element - establishment of a sufficient administrative capacity to implement and enforce the legislation - is more difficult, especially in the environment sector. Enforcement of environmental legislation was particularly weak during the socialist period. The rapid enactment of a vast amount of new environmental legislation is placing major burdens on the administrative capacity of implementing agencies and local administrations. This is an area where donor support and assistance will be needed for the years to come, and not only for the applicant countries in the second wave of enlargement. Even the countries in this coming enlargement are likely to need assistance on building administrative capacity and other implementation measures.
Post-accession transition periods for compliance
The EU recognises that post-accession periods of transition will be necessary for the heavyinvestment directives. Denmark, in line with several other Member States and the European Parliament, has taken the view that transition periods should be granted only in exceptional cases and only for short time periods. This applies to environmental legislation as to the rest of the acquis communautaire.
The EU has taken several non-negotiable positions with respect to the environmental acquis. One is that the applicant countries must comply with all Internal Market-related environmental legislation upon accession. This covers important legislation such as motor vehicle emissions, fuel quality, control over chemicals, and general requirements for waste management. Parts of non-market legislation such as nature protection are subject to a similar requirement.
Transitional periods may be considered in legislation where the applicant countries will not be able to comply fully with the requirements of the respective legislation on the day of EU membership, e.g. where financially heavy investment will be required or where immediate compliance would have unacceptable social implications. According to this reasoning, DG Environment has signalled the following acceptable and non-acceptable positions:
- Acceptable transitional periods: urban waste water treatment and large combustion plant requirements;
- Negotiable transitional periods: packaging waste and industrial pollution prevention and control requirements;
- Unacceptable transitional periods: all framework Directives, (e.g. air quality, waste and hazardous waste framework, radiation protection), nature protection, access to information, environment impact assessment.
The applicant countries were first given the opportunity to request transition periods during the 1999 screening process. The table on the next page provides the transition periods that were originally requested (shaded columns). For the six CEE countries that have provisionally closed the Environment Chapter, the table provides the transition periods agreed with the EU as of November 2001 (unshaded columns).
As the table shows, most of the transition periods requested by the countries were not in the end accepted by the EU negotiators. Out of the 27 Directives for which transition periods were requested, but not by all countries, transition periods were provisionally agreed only for five - the Urban Waste Water Treatment, Landfill, Packaging Waste, VOCs Stage I, and Large Combustion Plants Directives. Whereas Hungary, Slovenia, and Poland were granted transition periods until 2015 to comply with the Urban Waste Water Treatment Directive requirements, Lithuania's request for a transition period until 2015 was negotiated into a transition period of 2009. Similarly, its transition period request of 2010 for the Packaging Waste Directive was reduced to 2006. Other reductions in transition periods were made for Estonia (Landfill Directive transition period request of 2013 reduced to 2009), Hungary (Large Combustion Plants Directive request of 2008 reduced to 2004), and Poland (VOCs Stage I Directive request of 2009 reduced to 2005).
In looking at the differences between the original requests and the dates actually agreed, the reader might well wonder whether these transition periods are based on real information concerning actual length of time needed for compliance, or whether they are more politically driven. It is quite possible that the applicant countries, in their original requests for transition periods, inflated estimates of the time needed to achieve compliance. But even allowing for this, the final negotiated transition periods seem unrealistically short. Moreover, it is important to remember that for all the transition periods not agreed, the applicant countries have in effect promised to be in compliance at the moment of accession.
The position of the Commission's DG Environment has been that applicant countries requesting transition periods must present supporting Directive-specific implementation and financial plans (DSIFP) to show how they will achieve compliance by the end of the transition period(8). In order to get a transition period provisionally agreed, the applicant countries have been expected to show that they have a serious plan in place concerning how they will implement and finance the necessary measures. This is to include careful investment planning, a process encouraged within the framework of the DG Environment's PEPA Programme (Priority Environmental Projects for Accession). The focus is on the activities to be undertaken during the transition period, rather than on the final date of full compliance. DG Environment has suggested that the following elements be included in the DSIFPs: introduction (requirements of the Directive and transitional periods requested), steps required for full implementation, strategy for implementation, financing costs of implementation, and implementation plan. The implementation plans will become part of the accession treaties, and will be monitored after the accession.
Table 3.1
Transition Periods requested and/or negotiated (November 2001)
As of November 2001, those countries which already closed the environmental chapter, i.e., Cyprus, the Czech Republic, Estonia, Hungary, Lithuania, Poland and Slovenia, had presented either cost estimates or implementation plans for the Directives for which they had requested transition periods, and some countries had presented both. Failure to present credible environmental investment programmes where transition periods were requested had, on the other hand, delayed accession negotiations for several countries.
In mid-2001, this strong emphasis on implementation and environmental investment planning appeared to be in danger of being shunted aside in the accession process. In the push to achieve the political goal of the enlargement, the Council and the DG Enlargement had reportedly become much more lenient in the signals they were sending to the applicant countries concerning their implementation of the environmental acquis(9).
The EU institutions have not yet clarified how they expect to monitor the measures taken by the applicant countries in the period leading up to accession and during the post accession transition periods, in order to ensure that compliance is achieved in fact. This is potentially a cause for concern, since once Member State status is achieved, the power of the EU institutions to bring pressure for compliance is more limited. To be sure, failure to fulfil a treaty obligation can lead to legal action brought by the Commission before the Court of Justice on the basis of Article 226 of the Treaty of Amsterdam (ex-Article 169), including the risk of significant fines imposed on a daily basis. However, this is a time-consuming and not always certain process.
The emphasis on the steps that need to be taken during the transition period, deserves the support - politically and particularly financially - of the Member States. In the period before accession, Community financial support will be limited only to the amount available through the ISPA and the Phare instruments. Section 4 of this report describes how both of these instruments have much more modest resources than may be forthcoming through structural funds after full membership.