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European Environmental law in the Dutch Polder

Community Law Requirements for the Transposition, inkadering (Embedment), Application and Enforcement of EC Environmental Directives and Regulations by Provinces, Municipalities and waterschappen (Water Management Boards).

Dr. J.W. van de Gronden

E-mail: j.vandegronden@law.uu.nl, Europa Instituut, Utrecht University. The author thanks L.J. Smit for her editorial work.

Eerder verschenen in Tilburg foreign Law review, jg. 2000, vol. 8, nr. 2

1 Introduction

This article which is based on my (Dutch) Ph.D. thesis De implementatie van het EG-milieurecht door Nederlandse decentrale overheden (Deventer, 1998) focuses on the role the decentralized authorities have in implementation of EC environmental law in the Netherlands. Decentralized authorities must observe EC law. After all, the principle of loyalty to the Community is not only addressed to the central government but to all bodies invested with public power. [1] Consequently, the obligation of Article 10 (ex Article 5) EC Treaty applies also to decentralized authorities.

In the Netherlands decentralized authorities play an important part in the implementation and application of environmental law. The importance of European environmental law has grown steadily in recent decades. In many cases, in the Netherlands, decentralized authorities are the competent authorities for implementing EC directives and regulations in the field of the protection of the environment. The central question to be discussed in this article is therefore which requirements Community law imposes on the implementation of Community environmental legislation by national decentralized authorities.

In this article the term `implementation' is refined by distinguishing between the four following aspects: transposition, embedment, application and enforcement. [2] `Transposition', in this study, refers to the incorporation of the Community norm in national legislation. The term embedment is used to indicate the situation that the Member States create the legislative framework to ensure the operationalization of EC environmental directives and regulations. `Application', quite obviously, is used where the competent authorities apply the Community norm in a concrete case, e.g. where they grant a licence in accordance with the applicable Community law requirements. The term `enforcement', finally, covers action taken against the non-compliance with Community norms. Enforcement consists of two stages. In the first stage, the competent authorities supervise whether Community norms in the field of the environment have been complied with. This stage, in turn, can be subdivided into two parts: surveillance, as long as there is no concrete suspicion of a transgression, and detection where such a suspicion does exist. In the second stage, the various authorities have the power to impose sanctions in the case of breach of the Community environmental norms.

In this contribution the requirements which Community law imposes on the implementation of EC environmental law by decentralized authorities is sketched in broad outlines. This article focuses on secondary Community environmental law, in particular directives and regulations, in the field of environmental protection. Primary Community law (e.g. Treaty provisions on the free movement of goods) are not discussed in this paper.

2 Requirements for Transposition by Decentralized Authorities

As regulations, according to the case law of the Court of Justice, may not be incorporated into national law, [3] the obligation to transpose only applies to EC directives.

The transposition of Community norms must extend to the whole of the national territory of the Member States. Although, on the one hand, transposition tasks may be attributed to decentralized authorities, any failure ? on the other hand ? of these authorities to perform these tasks properly will amount to a failure by the Member State concerned to comply with its Community obligations. [4]

Transposition must be completed within the time-limits set by the Community directives concerned. To date there has not been a single case in which a Member State has escaped condemnation by the Court for having failed to transpose a directive within the time-limit. [5] Even justifications such as the fact that a Member State is engaged in constitutional reform or that the transposition belongs to the competence of the decentralized authorities are not accepted by the Court. [6]

The Member States may, in principle, only transpose Community directives by means of national measures from which no derogation is permitted. [7] For Dutch law this means that directives must be transposed by means of generally binding provisions, including those issued by the decentralized authorities. Administrative instructions and covenants usually will not suffice as proper transposition measures. [8]

The Member States are obliged to incorporate the provisions of directives in national legislation by means of measures which are sufficiently precise and clear as to be able to comply with the requirement of legal certainty. [9] These criteria are applied strictly by the Court of Justice in its case law. These requirements also significantly restrict the margin of discretion enjoyed by the Member States, even where the relevant provisions in the directives are broadly drafted.

These strict requirements do not, in principle, leave the Member States much room to deviate from Community environmental norms. There is therefore not much scope for adapting these norms to regional or local circumstances. In two cases, however, it is possible to deviate from the Community regime which makes regional and local differentiation possible. Firstly, in the case of minimum harmonization the competent authorities, including decentralized authorities, may adopt stricter measures than those which are laid down in Community environmental law. For instance, in the Nederhoff Case [10] the Court stated that een waterschap (a decentralized Water Management Board in the Netherlands) was allowed to take more stringent measures than supported by Directive 76/464. [11] Secondly, certain EC environmental directives explicitly empower the competent authorities in a Member State to defer the transposition of the directive where regional problems exist. [12]

3 Requirements Concerning the Embedment by Decentralized Authorities

Norms in EC regulations and directives must be capable of being applied and enforced in practice. For this purpose measures must be adopted in order to place the Community norms within the national legislative context; this is not only relevant for directives, but also for regulations. The embedment of directives and regulations requires four types of legislative measures: 1) the designation of the competent authorities for the application and enforcement of the Community norms, 2) the adaptation of national rules which are not compatible with the Community norms, 3) the clarification of vague Community norms and 4) the adoption of provisions enabling the application and enforcement of the Community norms within the national legal context.

The Member States may themselves determine which bodies they wish to designate as the competent authorities for the application and enforcement of EC environmental law. [13] These bodies may ? at least in the Dutch context ? be the executive organs of provinces or municipalities, the executive organs of water management boards, municipal committees or cooperative bodies of decentralized authorities. In all cases it is very important that it is clear which authority is responsible for the application and enforcement of the Community rules.

National provisions which are not compatible with the norms in a Community directive or regulation must be adapted. [14] The same applies to rules issued by decentralized authorities which are not compatible with secondary EC environmental law. In this context I discovered the following problem. In the Netherlands the regime governing the relationship between rules issued by the central and the decentralized authorities is defective. Under Dutch constitutional law older autonomous regulations of decentralized authorities lapse automatically if they cover the same subject matter as higher national legislation. This regime also applies to the relationship between laws adopted by Parliament (wetten in formele zin) and government decrees (algemene maatregelen van bestuur), on the one hand, and regulations of decentralized authorities on the other hand. [15] However, this regime concerning older regulations of decentralized authorities does not apply to the relationship between EC regulations and rules issued by decentralized authorities.

Vague provisions in EC environmental directives and regulations often need to be worked out or clarified. In this situation the Member States sometimes possess a reasonable margin of discretion within which they can pursue their own policy objectives. This is particularly the case where secondary Community law obliges the Member States to draw up certain programmes or plans. Sometimes, however, a certain degree of consistency with other Community rules is required, in which case the room for maneuver may be restricted. An example of this is the obligation in the Birds and Habitat Directives [16] to designate certain areas as special protection areas. In case law such as the Leybucht judgment [17] and the Marismas de Santoña [18] judgments the discretion to designate certain areas as special protection areas is limited by the Court. Under Community law the obligation to work out vague Community norms in greater detail may be attributed to decentralized authorities. However, the attribution of such powers to these bodies may lead to certain practical problems in view of the need for coordination between the various decentralized bodies. After all, sometimes the room to play for the competent authorities of the Member States is restricted by the case law of the Court.

Criteria in EC directives relating to the application and enforcement of these directives must be incorporated precisely in national legislation. [19] These criteria provide norms for the way in which decentralized authorities must apply and enforce secondary Community environmental law. It is striking that in the Netherlands the provisions on the application and enforcement of directives are regularly transposed rather carelessly in national environmental law. For instance, sometimes decentralized authorities are not obliged to observe the EC quality objectives by Dutch legislation; though they have to take these objectives into account. [20] The Court, however, has stated that the Member States must ensure the observance of the EC quality requirements. [21]

Where the criteria for the application of an EC environmental directive must be embedded by the decentralized authorities the problem arises that authorities of central government are not always bound by these decentralized application criteria. [22]

Although in Dutch environmental law decentralized authorities do not often have the task of embedding application and enforcement criteria, it is of the greatest importance for them that this is done correctly. Ultimately this concerns setting the limits within which they exercise their application and enforcement powers. In the case of a conflict between national and Community criteria they must decide which criteria they will apply.

It is therefore very important that specific provisions on monitoring compliance and on sanctions must be transposed precisely in national legislation. However, quite frequently this does not happen. [23] One explanation for this is that in the Netherlands provisions on surveillance and sanctions are, in principle, not usually included in delegated legislation. Yet delegated legislation is often used for the embedment of secondary Community environmental law.

The conclusion in respect of the requirements relating to embedment is that here too there is very little scope for regional and local differentiation. One exception to this is the possibility of issuing more detailed provisions for the clarification and operationalization of vague norms in Community directives. In this respect I refer in particular to provisions in directives which oblige the Member States to draw up programmes or plans in order to achieve certain environmental objectives or which oblige them to designate certain areas. Thus, in the Netherlands, the provinces and the water management boards have a task in contributing to the implementation of the Bathing Water Directive. [24]

4 Requirements for the Application by Decentralized Authorities

Under Community law decentralized authorities must apply EC regulations disregarding any national law which is incompatible with them. Article 249 (ex Article 189), second paragraph, of the EC Treaty after all provides that EC regulations are directly applicable in the Member States. Many Community environmental standards are laid down in directives. According to Article 249 (ex Article 189), third paragraph, of the EC Treaty this legal instrument must, in principle, first be incorporated in national legislation. Nevertheless, where there is a conflict between national law and a directive, decentralized authorities must in many cases apply this Community instrument. This is the case where the provision in the directive concerned has direct effect or where the national provisions can be interpreted in a manner which is consistent with the directive. According to the judgment of the Court in Fratelli Costanzo [25] decentralized authorities are obliged to apply directive provisions with direct effect. [26] These authorities must also apply the concept of consistent interpretation. [27]

The obligations for decentralized authorities to apply directly effective provisions in directives, to interpret provisions in conformity with directives and to apply regulations will be discussed in three situations: application in the case of incorrect transposition, application in the case of incorrect embedment and application in the case of correct transposition and embedment.

Application in the Case of Incorrect Transposition

If a directive has been transposed incorrectly, decentralized authorities must consider whether they are to apply the provisions of the directive concerned on the basis of the direct effect or by means of interpretation in conformity with the directive. A provision in a directive has direct effect when it is sufficiently precise and unconditional and it has not been transposed correctly in national law within the prescribed time-limit. [28] In many situations decentralized authorities required to apply such directive provisions. In the field of environmental law provisions of directives frequently have direct effect. This appears from the following three conclusions.

1. Although the conditions of unconditionality and sufficient precision may indicate otherwise, provisions which leave a certain margin of discretion to the Member States may have direct effect. [29] This depends on the circumstances of the case and the existing national legislative context.

2. Provisions in directives do not have `horizontal effect', so that private parties may not rely on the direct effect of such provisions against other private parties. [30] Neither do they have what is called `reverse vertical effect', so that a public body may not invoke directly effective provisions of directives as against private parties. [31]

However 'indirect horizontal effect' does exist. A private party may invoke directly effective provisions of a directive vis-à-vis a (decentralized) public body even if this is to the detriment of the interests of another private party. For instance, an interested third party may request a municipal authority to annul a licence or permit it has granted to a private company on the grounds that it is not compatible with a directly effective provision in a directive.

A public body has to take a decision in accordance with non-implemented directive provisions with direct effect, if in this way the rights of individuals, which are based on the directives involved are recognized, even when this national decision has negative effects on other citizens or companies. This can be concluded from the Fratelli Costanzo Case. [32] In this case the Court emphasizes on the right of the individual to rely on directive provisions with direct effect, and the negative consequences for the other individual are simply regarded as indirect repercussions of the acknowledgement of this right.

3. Many types of Community environmental protection rules may as far as their subject matter is concerned, have a direct effect. The following kinds of rules in directives which have not been transposed correctly are usually capable of having a direct effect: emission standards, product standards, prohibitions and injunctions. [33] It is generally true that those kinds of rules are sufficiently precise and unconditional. Environmental quality standards and programmatic provisions by their nature do not usually meet the conditions for direct effect.

In the case of incorrect transposition decentralized authorities must also consider if it is possible to interpret the relevant national provisions in a manner which is consistent with the directive. Environmental quality standards which have not been transposed correctly are suitable for consistent interpretation. Programmatic provisions usually will be too vague for consistent interpretation, but in some cases it is nevertheless possible to interpret national law in conformity with such provisions in directives.

Application in the Case of Incorrect Embedment

The problem of incorrect embedment does not only exist in the relationship between national legislation and EC directives, it is also relevant in assessing the compatibility of national legislation with EC regulations. If the national legislator has failed to designate a competent authority for the application of a directive, a decentralized authority may still be obliged to apply a directly effective provision in a directive or to interpret a national provision in conformity with a directive. This is the case where it is apparent from the relevant directive or regulation which authority is to be regarded as the competent authority. Otherwise, it usually is quite clear which public body is obliged to apply the relevant Community environmental standards. Under existing environmental legislation in the Netherlands it is often the case that the decentralized authorities are the competent authorities. The same situation may occur where no competent authority has been designated for the application of an EC regulation.

Application in the Case of Correct Transposition and Embedment

As a regulation is directly applicable, this Community instrument remains of central importance even after it has been correctly embedded. The same applies to directives, albeit in a different way. EC directives in the field of environmental protection retains its significance for the interpretation of the national implementing measures. In applying national implementing legislation decentralized authorities may not derogate from Community terms and criteria. As far as environmental law is concerned this means e.g. that decentralized authorities must interpret the terms `waste' [34] and `discharge' [35] in the legislation on the quality of water in the light of the relevant EC environmental directives.

Conclusions

The requirements relating to the application of secondary EC environmental law are strict and therefore restrict the margin of discretion within which decentralized authorities can pursue their own policy objectives. It is after all not possible to derogate from a directive in taking decisions in concrete cases and the EC directive is decisive as regards the interpretation to be given to the environmental rules to applied. There is therefore not much room to take account of regional and local differences in applying these rules. Some directives, however, do leave more room for maneuver in this respect. A significant illustration of this is provided by environmental quality standards. Some directives explicitly provide for the possibility of deviating from the Community environmental standard in certain concrete cases. In such cases the authorities have the opportunity to take account of regional and local circumstances in the application of the Community rules concerned. One example of a directive which allows regional and local differentiation is the IPPC-Directive. [36] Under Article 9(4) of this Directive, in determining the emission limit values for the integrated prevention permit on the basis of the best available technologies, the competent authorities shall take account of the geographical location of the installation involved and the local environmental conditions.

In Dutch environmental law the organs of decentralized authorities are often the competent authorities to apply secondary EC environmental law. As Community environmental policy is for the greatest part laid down in directives, Community environmental standards are often concealed in national implementing legislation. Decentralized authorities therefore must trace the Community origin of the national environmental laws and disregard national provisions where they are in conflict with Community provisions. The obligation not to apply national law in case of incompatibility with Community law provides the decentralized authorities to that extent with an independent position vis-à-vis the central government authorities. Given this Community obligation decentralized authorities must adopt a critical attitude against legislation adopted by the national authorities.

5 Requirements in Respect of the Enforcement by Decentralized Authorities

The general requirements to be complied with by national authorities in enforcing Community law were determined by the Court of Justice in the Greek Maize Case. [37] The first requirement is that infringements of Community law must be penalized in the same way as comparable and similarly serious infringements of national law. This requirement which prohibits `discrimination' between Community law and national law is often termed the `assimilation principle'. In addition to this first requirement the Court requires that national sanctions relating to the infringement of Community law must be effective, proportionate and dissuasive.

Three judgments of the Court on the subject of water quality are very interesting for the issue of enforcement. Case C-337/89, Commission against United Kingdom, concerns the quality of drinking water. [38] In this case the British government argued that their failure to fulfil the obligations of the drinking water directive was justified, since all steps were taken by the competent authorities to ensure that certain results were attained. The Court rejected this argument: the directive's intended result has to be achieved. Member States cannot rely on specific circumstances.

The judgement of the Court in Case C-337/89, is almost completely repeated in the Case Blackpool. [39] In this case the appliance with requirements of the Bath Water Directive was at stake. Remarkable, however, is the statement of the Court that the British government had failed to prove that the observance of the requirements of the directive in practice was absolutely impossible. [40] This statement probably implies that the absolute impossibility justifies the non-enforcement of a provision of an EC environmental law directive of regulation.

Also in Case C-198/97, Commission v. Germany, [41] the Court stated that the objective of an EC environmental directive has to be achieved. In this case the competent authorities of Germany had not observed the Bath Water Directive. Like the United Kingdom in the Blackpool Case, in the view of the Court Germany had not succeeded in proving the absolute impossibility of fulfilling the obligations arising form this directive,.

The consequences of these Community requirements concerning enforcement for monitoring compliance and sanctioning by decentralized authorities in the Netherlands are reviewed below.

Monitoring Compliance

In Dutch environmental law decentralized authorities appoint officials to monitor compliance with secondary Community environmental law. Decentralized authorities must therefore ensure that these officials monitor the compliance with Community environmental standards in accordance with the requirements set out in the Greek Maize Case. It follows from Article 10 (ex Article 5) EC Treaty (principle of loyalty to the Community) that their enforcement policy must be in accordance with these requirements. These same officials usually also have detection powers. In that case they do not act under the responsibility of the decentralized authorities but under the responsibility of the public prosecutor. The decentralized authorities do not have powers in the field of detection. However, they do cooperate with the public prosecutor in the field of the enforcement of environmental law. In their contacts with the public prosecutor decentralized authorities therefore must insist that the detection is in accordance with the requirements of the Greek Maize Case.

EC environmental directives often contain explicit provisions regarding the monitoring of compliance. According to many of these provisions, the competent authorities in the Member States must carry out sampling operations. [42] One can think of samples taken from water or air. These obligations are often quite precise. Even where these provisions have not been incorporated in national law, decentralized authorities must apply them. This can be derived from the Court's case law on direct effect and consistent interpretation. Directly effective provisions on monitoring compliance which influence company behaviour however cannot be invoked against private parties in view of the prohibition of reverse vertical effect. In secondary EC environmental law explicit control provisions are restricted to laying down standards for the surveillance or monitoring stage and do not apply to the detection stage.

Imposition of Sanctions

Following the infringement of a provision in an EC directive or regulation which has been correctly transposed and embedded, the competent authorities must impose a sanction. It follows from article 10 (ex article 5) EC Treaty that this enforcement obligation also applies to the decentralized authorities. The enforcement of environmental law in the Netherlands is the responsibility of both the public prosecutor ? by means of criminal law ? and the public authorities ? by means of administrative law. It is therefore a matter for choice which type of sanction will be imposed. Decentralized authorities cannot, however, leave all responsibility to the public prosecutor where the enforcement of a Community environmental norm is insufficient in practice.

Infringements of Community environmental norms may not, in principle, be `tolerated' (in that the authorities consciously decide not to take action against them). The competent authorities in the Member States must, in principle, impose a sanction in respect of every infringement of Community rules they discover. Decentralized authorities may not therefore follow the Dutch `policy of toleration' (gedoogbeleid) which was set out in the `Gezamenlijke beleidskader inzake het terugdringen van het gedogen van milieu-overtredingen' [43] (Joint policy framework in respect of reducing the toleration of infringements of environmental rules) when dealing with the infringement of Community environmental rules. Nevertheless, in my opinion, there are five exceptions to the rule that decentralized authorities are not permitted to tolerate infringements of secondary Community environmental rules.

1. The provision in the directive explicitly allows the competent authorities not to take action against an infringement of the directive.

2. The compliance with the Community environmental rule is absolutely impossible. This exception may be derived from the Court's judgements in the `Blackpool' Case and Case C-198/97, Commission v. Germany. [44] The case law of the Court of Justice is not clear on this point. At any rate the decentralized authorities in using the `toleration option' are dependent on the central authorities as the latter are responsible for notifying the Commission of the absolute impossibility; furthermore, there is an obligation to cooperate with this Community institution in order to solve the problems concerned. [45]

3. The infringement of the national transposition and embedment measures does not amount to a transgression of the underlying Community norm.

4. There may be a case of `qualified toleration'. The decision confirming the toleration of the infringement may be subject to conditions derived from secondary Community environmental law. If the EC rule concerned does not contain a licence requirement, this norm would not be infringed.

5. Action has already been taken under criminal law.

The type of sanctions to be imposed may be determined by secondary Community environmental law. However, usually the national authorities are free in this respect. In my view, in these cases a private party could nevertheless challenge an inadequate enforcement policy of a decentralized authority. The `toleration decision' or the (implicit) refusal to impose a sanction are administrative decisions which can be challenged before the administrative courts. The courts may annul these decisions if they are found to be incompatible with Community law and enjoin the decentralized authority to impose a sanction without prescribing the form it should take.

Where there is an enforcement obligation in the case of the correct transposition and embedment of secondary Community environmental law, the opposite is true in the case of incorrect transposition and embedment. In its judgements in the Cases `Pretore di Salò', [46] `Kolpinghuis' [47] and `Luciano Arcaro', [48] the Court determined that directly effective provisions in directives may not be enforced by means of criminal law (prohibition of reverse vertical effect). A logical consequence of this case law is that decentralized authorities are also not permitted to impose administrative sanctions in respect of the infringement of such provisions in directives. In that case a public body would be imposing a sanction for the infringement of an incorrectly transposed provision of a directive of which the private person concerned need not have been aware. In my view this would be contrary to the principles of legal certainty and the prohibition of the retroactive effect of sanctions.

Conclusions

The Community requirements in respect of enforcement restrict the room for maneuver of decentralized authorities. In a number of cases monitoring methods are prescribed. Furthermore, the toleration of infringements usually is not permitted. Community law does not leave much scope for adapting enforcement policy to regional and local circumstances. If one of the grounds for tolerating occurs, it is possible to derogate from the Community environmental standards. In such cases regional and local circumstances may be taken account of. The more a given directive explicitly allows toleration, the greater the possibilities will be for regional and local differentiation.

The Community requirements enhance the independent position of the decentralized authorities vis-à-vis central government. In case of incorrect transposition decentralized authorities must disregard national law and apply control obligations laid down in directives. They must also refrain from applying the national policy of toleration in the field of environmental law, where they are to enforce provisions of secondary Community environmental law.

6 Liability of Decentralized Authorities in Respect of Incorrect Implementation

This section deals with the Court's case law on State liability in respect of violation of Community law, which was developed in the `Francovich' [49] and `Brasserie du Pêcheur' [50] cases in particular. According to this case law, a Member States breach of EC law gives rise to liabilty when the rule of law infringed gives certain rights to individuals, a manifest and serious breach is present and there is a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.

If a decentralized authority implements a directive or regulation incorrectly it may also be liable for damage resulting from that infringement. In the Konle Case [51] the Court concluded that damage suffered by private parties as a result of a violation of Community law by a decentralized authority must be repaired. However, there is one exception to this rule. If the illegal act of a decentralized authority is based on a directive or regulation which is itself incompatible with higher Community law, liability will be incurred by the Community rather than by the decentralized authority. [52]

In other cases of infringements of secondary Community environmental law by decentralized authorities these authorities will be liable. This liability is not subject to the condition of there being a sufficiently serious violation of Community law, but is rather the more extensive strict liability (based on risk rather than fault) known in Dutch law. [53] This is a consequence of the non-discrimination principle which was laid down inter alia in the `Brasserie du Pêcheur' Judgement.

In some cases decentralized authorities may be held liable for the incorrect implementation by central government. These situations can occur where the illegal act by the decentralized authorities is the consequence of a violation of Community law by the central government authorities at an earlier stage of the implementation process. In Dutch environmental law the following situation may occur. The central authorities have failed either to incorporate the relevant provision of secondary Community law in national law or to create the legal framework for giving effect to that provision. This illegal legislation is subsequently applied or enforced by a decentralized authority, so that it in turn infringes secondary Community environmental law. For instance, in the situation that a decentralized authority, contrary to a directly effective provision of a directive, refuses to grant a company a licence, there are two illegal acts: the incorrect transposition by the central authorities and the incorrect application by the decentralized authorities. In such a situation both the central and the decentralized authorities are liable.

The question then arises as to whether provinces, municipalities and water management boards in turn can recover the damages paid from the central authorities. The possibility of the decentralized authorities recovering from the central authorities is a matter of national law and not of Community law. In the Konle judgment the Court stated that Community law does not require Member States to make any change in the distribution of powers and responsibilities between the public bodies which exist on their territory. [54]

It is not clear whether under Dutch law decentralized authorities can recover from the central authorities if they are forced by national legislation to act in breach of a directive or regulation. There is therefore a risk that the decentralized authorities must foot the bill as a result of incorrect transposition or embedment of Community law by the central authorities.

7 Supervision by the Commission of the Implementation of EC Environmental Law by the Decentralized Authorities

The European Commission monitors compliance by the decentralized authorities through the central authorities. At the Community level the Commission will initiate infringement proceedings against the Member State concerned where it ascertains that a decentralized authority has infringed Community law. Where a decentralized authority has transposed, embedded, applied or enforced secondary Community environmental law incorrectly, the Commission and the Court will hold the central authorities responsible. [55]

It follows from the case law of the Court of Justice that the supervision of the central authorities over the decentralized authorities must be sufficient to ensure complete transposition, embedment, application and enforcement of secondary EC environmental law. [56] Dutch constitutional law does not provide the central authorities with adequate instruments to guarantee that the supervision is in accordance with Community law requirements. The problem is that there are too few possibilities for the central government authorities to take decisions where the decentralized authorities fail to do so. A special instrument to enable the central authorities to intervene where the decentralized authorities fail to perform their tasks (taakverwaarlozingsregime) is therefore necessary.

Community legislation contains many types of obligations for the Member States to provide information to the Commission to enable the latter to monitor the implementation of secondary EC environmental law. I therefore consider the duty to provide the Commission with information as a type of supervision.

It follows from the Balsamo judgment [57] that Community information obligations may also apply to the acts of decentralized authorities. In certain circumstances technical regulations of decentralized authorities may even fall within the scope of Directive 83/189. [58] Where certain acts of the decentralized authorities are not notified to the European Commission, where this is prescribed by Community law, this will amount to an infringement of the Treaty obligations of the Member State concerned. [59] At Community level it is the Member State which will be held to account.

In some cases the failure to notify a projected measure of a decentralized authority can lead to the non-applicability of that measure. This is the case where the notification obligations of Article 95 (ex Article 100A), of the EC Treaty [60] and Directive 83/189 [61] are not complied with. In such circumstances the decentralized authorities will be confronted with the consequences of judgements such as that in the `Securitel' Case, [62] as the measures concerned will not be allowed to be applied.

In Dutch law decentralized authorities are not obliged to provide the central authorities systematically with information on matters which are the subject of a Community information obligation. Thus the central authorities do not always possess the information which they are to forward to the Commission. In Dutch law there is therefore a risk that measures adopted by decentralized authorities cannot be applied, because they have not been notified to the Commission.

8 Conclusions

Community law is neutral as regards the constitutional structure of the Member States. There is therefore no Community restriction to granting decentralized authorities powers to implement secondary Community environmental law. The Member States are however responsible for ensuring that the EC environmental directives concerned are fully and correctly transposed, embedded, applied and enforced.

In Community law the term `Member State' is interpreted in different ways. At the Community level only the central government authorities act as representatives of the Member State. From the perspective of the Community the central government authorities are responsible for the implementation of EC directives and regulations by decentralized authorities. The Commission only instigates infringement proceedings under Article 226 (ex Article 169) of the EC Treaty against the Member States as such and not against regional or local authorities such as provinces, municipalities or water management boards.

At the national level, however, any manifestation of the phenomenon State is included within the term Member State; this obviously includes the decentralized authorities. [63] Thus the principle of loyalty to the Community laid down in Article 10 (ex Article 5) of the EC Treaty also applies to provinces, municipalities and water management boards. These public bodies must also cooperate as much as possible in ensuring the uniform application and effect of Community law.

This article also shows that the requirements for the implementation of secondary Community environmental law are strict. These strict requirements strongly influence the State structure of the Member States. The influence of the constitutional structure of the Netherlands in my view appears from two fields of tension in particular. In the first place, secondary Community environmental law simultaneously restricts and expands the powers of decentralized authorities. In the second place, a decentralized authority which has implementation powers in some cases is responsible for the way it performs this task whereas in others it is not.

The Tension Between the Restriction and the Attribution of the Powers of Decentralized Authorities

The Community requirements in respect of the application and enforcement of Community law on the one hand restrict the room for maneuver of decentralized authorities and on the other hand grant them powers. The strict requirements in respect of implementation restrict the powers of the decentralized authorities. The requirements in respect of the enforcement of secondary Community environmental law, for instance, are so strict that there is not much scope for the Dutch policy of tolerating infringements of environmental law in certain circumstances. The ratio for these strict requirements is to be found in the fact that the case law of the Court of Justice is aimed strongly at the uniform application of Community law. As a result of this approach, however, the decentralized authorities are faced with the problem that they are often unable to adapt Community rules to regional and local conditions.

On the other hand secondary Community environmental law also provides the decentralized authorities with an additional power in that they must consider whether the national provisions which they are to apply and enforce are compatible with the relevant provisions of secondary Community environmental law. In this situation the public authority `assumes the role of the courts'. Decentralized authorities in this way are in a sense granted a `priority Community power'. As `public authorities of the Community' they must, if need be, apply and enforce secondary Community environmental law, thereby disregarding the relevant provisions of national law.

This `priority Community power' gives rise to two problems: 1) the hidden character of Community environmental standards and 2) the danger of diversity of application and enforcement. Community environmental protection standards are camouflaged in Dutch legislation in which the EC directives are incorporated. It may not therefore always be immediately apparent for decentralized authorities that there may be a Community dimension to national environmental protection provisions. The power of decentralized authorities to consider the compatibility of transposition and embedment legislation with Community law may endanger the uniform application and enforcement of the Community law provisions concerned. The various decentralized authorities may in similar situations reach different conclusions as to the compatibility of a national provision with a provision in a directive or regulation.

The Responsibility for the Exercise of Implementation Powers

In the national legal system decentralized authorities can be held liable by private parties in respect of the incorrect implementation of secondary EC environmental law. The principle of loyalty to the Community laid down in Article 10 (ex Article 5) of the EC Treaty also applies to decentralized authorities. They, too, must as far as possible within the limits of their powers ensure compliance with secondary EC environmental law.

The basic Community principles of direct effect, interpretation in conformity with directives and `Francovich liability' all apply to decentralized authorities. In this way they may also be held liable in respect of the incorrect transposition or embedment of secondary EC environmental law by the central government authorities. The problem is that provinces, municipalities and water management boards may even be liable if they apply or enforce national legislation which may at a later date prove to be incompatible with an EC directive or regulation. Decentralized authorities are thus presented with the bill for the defective implementation process at the national level.

Where at national level decentralized authorities may be held to account for the way in which they perform their implementation tasks, this is different at Community level. The Commission only instigates infringement proceedings against the central government authorities, even if the incorrect implementation can be ascribed to the decentralized authorities. The Court of Justice will find that the Member State the Netherlands has failed to fulfil its Treaty obligations where a decentralized authority infringes secondary EC environmental law. If this judgement is followed by a second judgement in respect of the infringement of Community law at the level of the decentralized authorities, the Court may impose a lump sum or penalty payment to be paid by the Member State concerned. [64] At the Community level therefore the central government authorities may be presented with the bill in respect of defective implementation at the level of the decentralized authorities.

It appears from the above, in my view, that the decentralization of implementation powers is a partial failure as the responsibility and liability do not correspond with the powers. Within the national legal system the decentralization in a sense goes too far: incorrect transposition and embedment by the central government authorities can lead to liability on the part of the provinces, municipalities and water management boards. At Community level, on the other hand, the responsibility and liability in respect of the exercise of implementation powers by the decentralized authorities remain with the central government authorities.

Therefore the successful implementation of secondary Community environmental law depends on the decentralized authorities co-operating closely with the central government. In the absence of this cooperation Community environmental law may present the decentralized authorities with unpleasant surprises. Where these surprises lead to a failure to implement Community law by the decentralized authorities, the Member State will be held to account at Community level. The principle of loyalty to the Community laid down in Article 10 (ex Article 5) of the EC Treaty should, in other words, also be applied in the context of local government.

Noten

[1]. This can be concluded from Case 80/86, Kolpinghuis, [1987] ECR 3969 and Case 380/87, Balsamo, [1989] ECR 2491. See also D. Curtin and K.J.M. Mortelmans, Application and Enforcement of Community Law by the Member States: Actors in Search of a Third Generation Script, in Institutional Dynamics of European Integration. Essays in Honour of Henry G. Schermers, Volume II, editors: D. Curtin and T. Heukels, Dordrecht/Boston/London, 1994, p. 439; B. Hessel and K.J.M. Mortelmans, Decentralized Government and Community Law: conflicting institutional developments?, 30 Common Market Law Review (1993): p. 905, pp. 909 and 910 and J. Temple Lang, Community constitutional law: Article 5 EEC Treaty, 27 Common Market Law Review (1990): p. 645, p. 645.

[2]. This approach to the implementation process is derived from Mortelmans and Van Rijn. See Mortelmans and Van Rijn, Europese regelgeving en Nederlandse implementatie, Nederlands Tijdschrift voor Bestuursrecht 1992, pp. 78 and 79. See, too, D. Curtin and K.J.M. Mortelmans, op. cit., pp. 427-429.

[3]. See, e.g. Case 39/72, Commission v. Italy, [1973] ECR 101.

[4]. See, e.g. Joined Cases 227-230/85, Commission v. Belgium, [1988] ECR 1.

[5]. Compare, e.g., S. Prechal, Directives in European Community Law. A study of directives and their enforcement in national Courts, Oxford, 1995, p. 28.

[6]. See, e.g. Case 68/81, Commission v. Belgium [ECR] 1982 153; Case 69/81 Commission v. Belgium [1982] ECR 163; Case 70/81, Commission v. Belgium [1982] ECR 169, Case 71/81, Commission v. Belgium [1982] ECR 175; Case 72/81, Commission v. Belgium, [1982] ECR 183 and Case 73/81, Commission v. Belgium, [1982] ECR 189.

[7]. See, e.g., Case C-59/89, TA Luft (lead), [1991] ECR I-2607 and Case C-361/88, TA Luft (sulphurdioxide), [1991] ECR I-2567.

[8]. See, e.g. Case 239/85, Commission v. Belgium, [1986] ECR 3645; Case C-58/89, Commission v. Germany, [1991] ECR I-4983; Case C-262/95, Commission v. Germany, [1996] ECR I-5729; Case C-242/94, Commission v. Spain, [1995] ECR I-3031 and Case C-340/96, Commission v. United Kingdom, 22 april 1999, n.y.r.

[9]. See, e.g., considerations 15 and 18 in Case 291/84, Commission v. Netherlands (groundwater), [1987] ECR 3483 and consideration 63 in Case C-131/88, Commission v. Germany, [1991] ECR I-825.

[10]. Case C-232/97, Nederhoff, 29 september 1999, n.y.r.

[11]. Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, OJ 1976 L129/23.

[12]. See, e.g. Directive 76/160 on bathing water, OJ 1976 L307/22.

[13]. See, e.g., Joined Cases 372/-3774/85, Traen, [1987] ECR 2141 and Case 359/88, Zanetti, [1990] ECR I-1509.

[14]. See, e.g., Case 167/73, Commission v. France (French Seamen I), [1974] ECR 359.

[15]. See Article 119 Provinciewet (Provinces Act), Article 122 Gemeentewet (Municipality Act) and Article 59 Waterschapswet (Water Authorities Act).

[16]. See Directive 79/409 on protection of birds, OJ 1979 L103/1 and Directive 92/43 on wild flora and fauna, OJ 1992 L206/7.

[17]. Case C-57/89, Leybucht, [1991] ECR I-883.

[18]. Case C-355/90, Marismas de Santoña, [1993] ECR I-4221.

[19]. See e.g. Case 291/84, Commission v. the Netherlands (groundwater), [1987] ECR 3483 and Case 131/88, Commission v. Germany, [1991] ECR I-825.

[20]. See e.g. het Besluit kwaliteitsdoelstellingen en metingen oppervlaktewateren (Government Decree concerning the quality objectives of surface waters). By this decree the Dutch government has implemented several EC directives concerning the water quality.

[21]. See e.g. Case C-42/89, Drinking Water in Verviers, [1990] ECR I-2821 and Case C-361/88, TA Luft (sulphur dioxide), [1991] ECR I-2567.

[22]. Thus Article 5.5(1) of the Wet milieubeheer (Environmental Management Act) provides expressly that provincial standards relating to the quality of the environment are not binding for the State authorities.

[23]. For instance, in the Netherlands Article 12 of Directive 80/68 on the protection of groundwater against pollution caused by certain dangerous substances, OJ 1980 L20/43, has not been not embedded in national legislation. According to this Directive provision, the competent authority of a Member State shall take appropriate steps to ensure that the conditions laid down in an authorization are fulfilled; if necessary, it shall withdraw the authorization.

[24]. Directive 76/160 on bathing water, OJ 1976 L307/22.

[25]. Case 103/88, Fratelli Costanzo, [1989] ECR 1839.

[26]. Compare also B. Hessel and K.J.M. Mortelmans, op.cit., p. 905; M. Gellermann, Beeinflussung des bundesdeutschen Rechts durch Richtlinien der EG, Köln, 1994, p. 186; H.G. Fischer, Europarecht in der öffentlichen Verwaltung. Eine einführung in das Europäische Gemeinschaftsrecht für Angehörige der öffentlichen Verwaltung, München, 1994, p. 636; L. Krämer, Focus in European Environmental Law, second edition, London, 1997, p. 109; H.D. Jarass and L.F. Neumann, Umweltschutz und Europäische Gemeinschaften. Rechts- und sozialwissenschaftliche Probleme der umweltpolitischen Integration, Berlin/Heidelberg, 1992, p. 23 and 169 and G. Winter, Rechtsschutz gegen Behörden, die Umweltrichtlinien der EG nicht beachten, Natur und Recht 1991/10: p. 453, p. 453.

[27]. This can be concluded from Case 14/83, Von Colson and Kamann, [1984] ECR 1891.

[28]. See, e.g., Case 148/78, Ratti, [1979] ECR 1645 and Case C-236/92, Regione Lombardia, [1994] ECR I-485.

[29]. See, e.g., Case 72/95, Kraaijeveld, [1996] ECR I-5403.

[30]. See, e.g., Case 152/84, Marshall I, [1986] ECR 723 and Case C-91/92, Faccini Dori, [1994] ECR I-3325.

[31]. See, e.g., Case 14/86, Pretore di Salò, [1987] ECR 2545; Case 80/86, Kolpinghuis, [1987] ECR 3969 and Case C-168/95, Luciano Arcaro, [1996] ECR I-4705.

[32]. Compare also Case C-76/87, Tögel, [1998] ECR I-5357.

[33]. Compare also L. Krämer, op.cit., p. 93 e.v.

[34]. Compare, e.g., Joined Cases C-206/88 and C-202/88, Vessoso, [1990] ECR I-1461 and Joined Cases C-303/94, C-330/94, C-342/94 and C-224/95, Tombesi, [1997] ECR i-3561.

[35]. Compare Case C-232/97, Nederhoff, 29 september 1999, n.y.r and Case C-231/97, Van Rooij, 29 september 1999, n.y.r.

[36]. Directive 96/61 concerning integrated pollution prevention and control. OJ 1996 L257/26.

[37]. Case 68/88, Greek Maize, [1989] ECR 2965.

[38]. Case C-337/89, Commission against United Kingdom, 1992 [ECR] I-6103.

[39]. Case C-56/90, Blackpool, [1993] ECR I-4109.

[40]. In a case on the subject of the Common organization of the market in wine, the wording 'absolutely impossible' was also used by the court in the context of enforcement of EC law. See paragraphs 32 and 33 of Case C-217/88, Commission against Germany, [1990] ECR I-2879.

[41]. Case C-198/97, Commission v. Germany, 8 june 1999, n.y.r.

[42]. See for example articles 5 and 6 of Directive 76/160 on bathing water, [1976] O.J. L31/1; article 5 of Directive 75/440 on the quality of surface waters, [1975] O.J. L194/26 and article 15 of Directive 91/271 on urban waste water, [1991] O.J. L135/40.

[43]. See the `Gezamenlijke beleidskader inzake het terugdringen van het gedogen van milieu-overtredingen' of the Ministers of the Environment (VROM), Transport and Infrastructure (Verkeer en Waterstaat), the Interprovincial Consultation Forum (IPO), the Association of Dutch Municipalities (VNG) and the Union of Water management boards (Unie van Waterschappen), TK 1991-1992, 22 343, nr. 2. See, in this context, also TK 1989-1990, 21 137, nr. 26 and the White Paper `Grenzen aan gedogen' (Limits to toleration), TK 1996-1997, 25 085, nrs. 1-2.

[44]. See also Case C-217/88, Commission against Germany, [1990] ECR I-2879.

[45]. The Court has imposed these obligations to notify and to co-operate on the Member States in Case C-217/88, Commission against Germany.

[46]. Case 14/86, Pretore di Salò (Italian Fishing Waters), [1987] ECR 2545.

[47]. Case 80/86, Kolpinghuis, [1987] ECR 3969.

[48]. Case C-168/95, Luciano Arcaro, [1996] I-4705.

[49]. Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci, [1991] ECR I-5357.

[50]. Joined Cases C-46/93 and 48/93, Brasserie du Pêcheur, [1996] ECR I-1029.

[51]. Case C-302/97, Konle, 1 june 1999, n.y.r.

[52]. This can be derived from Joined Cases 106-120/87, Asteris II, [1988] ECR 5515.

[53]. See HR 26 september 1986, Hoffmann-La Roche, NJ 1987, 253 and HR 31 mei 1991, Van Gog v. Nederweert, NJ 1993, 112. The Hoge Raad (HR) is the Supreme Court in the Netherlands.

[54]. See consideration 63 in the Konle Case.

[55]. See, e.g., Joined Cases 227-230/85, Commission v. Belgium, [1988] ECR 1988 1 and C-431/92, Regierungspräsidium Darmstadt, [1995] ECR I-2189.

[56]. See Case C-58/89, Commission v. Germany, [1991] ECR I-4983; Case C-435/92, Préfet de Maine-et-Loire, [1994] ECR I-67 and Case C-340/96, Commission v. United Kingdom, 22 april 1999, n.y.r.

[57]. Case 380/87, Balsamo, [1989] ECR 2491.

[58]. Directive 83/189 concerning an information procedure for technical regulations, OJ 1983 L109/8.

[59]. See, e.g., Case C-290/89, Commission v. Belgium, [1991] ECR I-2851 and Case C-33/90, Campania, [1991] ECR I-5987.

[60]. See Case C-41/93, PCP, [1994] ECR I-1829.

[61]. Case C-194/94, Securitel, [1996] ECR I-2201.

[62]. Case C-194/94, Securitel, [1996] ECR I-2201.

[63]. See Case 31/87, Beentjes, 1988 ECR 4635 and Case C-188/89, British Gas, [1990] ECR I-3313.

[64]. Since the Maastricht Treaty, under Article 228 (ex Article 171), second paragraph, of the EC Treaty the Commission, if it considers that a Member State has not complied with a judgement of the Court, may bring the case before the Court for a second time and request that a lump sum or penalty payment be imposed on that Member State. The Court can allow this claim.