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The enforcement of EC environmental law by decentralized authorities
J.W. van de Gronden
Mr. J.W. van de Gronden is universitair docent bij het Europa Instituut van de Universiteit Utrecht. With special thanks to prof. K.J.M. Mortelmans for his suggestions and to L.J. Smit for her editorial work
1. Introduction
This paper focuses on enforcement of EC environmental law by decentralized authorities. Obviously this is a complicated matter. A recent study of the Commission of the European Community, for example, shows that in many cases swimming water in the Netherlands does not meet the requirements laid down in the EC Bath Water Directive. [1] According to a report in the Dutch newspaper NRC-Handelsblad of 15 june 1995 [2], the Commission stated that only two thirds of the Dutch swimming water is in accordance with the required minimum quality of the directive. This failure is a good example of the problems relating to enforcement of the environmental standards laid down in EC directives and regulations. Nevertheless, I want to discuss the following question: what are the requirements imposed by EC law on decentralized authorities enforcing EC Environmental law? How must decentralized authorities respond to an infringement of European environmental law? This is the central question of this article. Or let me put it this way, some aspects of this question will be discussed. It is impossible, of course, to answer this question completely in a short paper. The following remark must be made. Dealing with the subject of the enforcement of Community environmental law I will, as a Dutch legal researcher, focus on examples of Dutch law. The structure of this article is as follows. First, the meaning of some definitions will be explained. Secondly, I will make some general remarks on the role of decentralized authorities in EC law. Thirdly, the general requirements for the enforcement of EC law will be discussed. In the fourth place, I will examine to what extent and in what way decentralized authorities are obliged to monitor compliance with EC environmental law. How can they exercise control over the observance of EC environmental standards? In the fifth place, the sanctions imposed by decentralized authorities will be discussed. Finally, I will draw some conclusions.
2. Some definitions
For the purpose of the discussing this subject, it is useful to look at some definitions. The meaning of enforcement in my lecture is the response of a state organ to an offence. Enforcement here means: the role played by an organ of the state forcing companies and citizens to fulfil obligations of Community Law, in accordance with the weapons in their arsenal. [3] In this way, the definition of enforcement only includes the repressive measures taken by an authority.
In my article EC environmental law means the EC directives and EC regulations relating to the environment. In other words, this definition only includes the secondary Community law. By decentralized authority is meant a body of the state which has jurisdiction over a certain part of the territory of the country. The discussion will be restricted to territorially decentralized authorities. In this respect one can think of bodies as Länder, Kreisen and Gemeinden in Germany and provincies and gemeenten in the Netherlands.
3. The obligations of decentralized authorities under EC law
The principle of loyalty to the Community is not only addressed to the central government but to all bodies invested with public power. [4] Consequently, the obligation of article 5 EC Treaty applies also to decentralized authorities. This obligation has important implications for these authorities. In the first place, according to the judgement of the Court in Fratelli Costanzo [5], the decentralized authorities are obliged to apply directive provisions with direct effect. [6] In the second place, these authorities are obliged to apply the concept of consistent interpretation. In the judgements Kolpinghuis [7] and Pfanni Werke Otto Eckhardt [8] the Court stated that an organ of a decentralized authority has to interpret national law, including their own regional or local acts, in the light of the wording and the purpose of the relevant directives. [9] Therefore, even when directives are not incorporated in national law, the decentralized authorities can still be obliged to apply the provisions of those directives. Thirdly, it is obvious that decentralized authorities are obliged to apply the provisions of EC Regulations.
From these judgements of the Court it follows that decentralized authorities are involved in both the application and enforcement of EC law. [10]
4. General remarks on the enforcement of EC law.
In the Greek Maize Case [11] the Court has laid down the principles for the enforcement of EC law. According to this judgement article 5 of the EC Treaty requires that Member States take all measures necessary to guarantee the application and effectiveness of Community law. [12]
They must therefore ensure that infringements of Community law are penalized under the same conditions as infringements of national law of a similar nature and importance. In Dutch legal literature this requirement is called the 'assimilation principle'. [13] This principle also applies to monitoring of compliance with EC law. The national authorities must proceed, with respect to infringements of Community law, with the same firm action as they do with respect to the enforcement of national law. [14] According to the Court, a firm monitoring policy contributes to the effectiveness of EC law. [15] Furthermore, the Court said that the penalties imposed on infringements of Community law must be effective, proportionate and deterrent. [16]
The Court has based the requirements for enforcement on article 5 EC Treaty. As already stated, this article applies not only to central governments but also to decentralized authorities. As a result, these authorities have the duty to fulfil the obligations derived from the judgement of the Court in the Greek Maize Case.
5. Monitoring the compliance with the EC environmental law
For the purpose of the fulfilment of the obligations of EC environmental law it is important that authorities check compliance with EC standards. In this respect EC law impose certain requirements on decentralized authorities. In the first place, they must observe the assimilation principle from the Greek Maize Case. In the second place, several EC directives and regulations contain explicit control obligations.
5.1 Assimilation principle and control by decentralized authorities
It follows from the Greek Maize Case that decentralized authorities, if they have powers to check this compliance, must proceed with the same firm action against infringements of Community Environmental law as they do against infringements of national environmental law.
In Dutch environmental law the decentralized authorities, such as provinces and municipalities [17], have powers to check the observance of an environmental law standard. Officers of Dutch decentralized authorities can also be invested with the necessary powers for criminal investigation. [18] According to Dutch Law, the public prosecutor is in charge of criminal investigations. [19] In practice, however, decentralized authorities often decide, instead of the public prosecutor, in which cases criminal investigation is going to be carried out. [20] It should be noted that officers of these authorities are usually the first to discover infringements of environmental law. [21] In the Netherlands the decentralized authorities thus can seriously influence inspection and control of environmental law.
It follows from article 5 EC Treaty that their enforcement policy must be in accordance with the so-called 'assimilation principle'. They must check the observance of EC Environmental standards as often as they do with respect to standards of national environmental law. They have to verify compliance with Community law in an effective way.
5.2 Explicit control obligations
EC environmental law contains a lot of explicit provisions obliging the Member States to check the compliance with European law standards. Some of these provisions are rather vague en and leave much to the Member States' own discretion. [22] These provisions do not indicate in any detail how to monitor. They only state that Member States have to monitor. According to many other provisions, however, the competent authorities in the Member States must carry out sampling operations, [23] One can think of samples taken from water or air. Unlike the previous ones mentioned, these obligations are often quite precise. They also focus on the quality of an environmental medium and not on the behaviour of companies or citizens. The provisions of EC regulations are directly applicable. The provisions of a directive, on the other hand, must be transposed in the national law of the Member States. In case C-360/87 [24] and case C-131/88 [25] the Court has made clear that the explicit monitor obligations of the directives must be incorporated in the national law of Member States. In the case against Germany, it was stipulated by the Court that the Länder of Germany should be obliged by mandatory rules to observe article 13 of the Groundwater Directive. This article states that the competent authorities of the Member States have to monitor compliance with the conditions laid down in the authorizations and must check the effects of discharges on groundwater. It follows from these judgements that the authorities have the duty to carry out sampling operations of the European EC law. The sampling operations are a significant source of information for the Commission, as the results of these operations often have to be notified to Brussels. This way, the Commission knows whether EC regulations and directives, like the Bath Water Directive, are observed in the Member states. Attention must be paid to the following question. Is a decentralized authority obliged to observe an explicit obligation of a directive to check, if that directive provision is not transposed in national law? This problem can be solved by the doctrine of direct effect or consistent interpretation. Decentralized authorities must, after all, apply directive provisions with direct effect and interpret the national law in the light of EC directives. In the first place, the possibility that a directive provision has direct effect is discussed. Directive effect requires that the provisions are unconditional and sufficiently precise [26] and that the member state has failed in the incorporation of the provisions in national law [27] by the end of the period prescribed [28] or has failed to correctly transpose the directive. [29] Decentralized authorities are obliged by the Fratelli Costanzo judgement [30] to apply directive provisions which have direct effect. In my view therefore, decentralized authorities have the duty to apply the unconditional and sufficient directive provisions which concerns obligations to control and to check. As already stated, examples of such provisions are the obligations to take samples of a certain environmental medium. In the second place, consistent interpretation needs to be addressed. According to the judgements of the Court in Kolpinghuis [31] and Pfanni Werke Otto Eckhardt [32] decentralized authorities must interpret the national law, including their own regional or local acts, in the light of the relevant directive provisions. This obligation applies to the national law irrespective whether the provisions in question were adopted before or after the directive. [33] The obligation of consistent interpretation applies to the authorities of a Member State so far as those authorities are given discretion under national law. [34] Decentralized authorities therefore may not go beyond their powers, when they interpret and apply national law in conformity with a directive. [35] It should be mentioned that the state liability for breaches of Community Law laid down in the Francovich judgement [36], can also offer a solution. In this respect a citizen who relies on the Francovich liability must prove that she or he has suffered damage from the infringement concerned.
6. The sanctions and infringements of the EC Environmental Law
If decentralized authorities are frequently monitoring the compliance with EC environmental law standards in practice, they will often detect violations of these standards. How should they respond to these breaches?
6.1 Prohibition of the enforcement of directives which are not transposed
The first thing to refer to is that standards of directives which are not transposed or are not correctly incorporated in the national legal order, cannot be enforced by decentralized authorities. In the cases Pretore di Salo [37] and Kolpinghuis [38] the Court stated that a national authority cannot, against a person, rely upon a directive provision with direct effect if the necessary implementation in national law has not yet taken place.
It is not even clear whether consistent interpretation could determine the liability of a person, but in the context of this article, it is not possible to discuss this matter. The only thing to be mentioned is that application of the concept of consistent interpretation is limited by -as the court stated in Kolpinghuis-, the general principles of law which form part of Community law, and in particular the principles of legal certainty and non-retroactivity. [39]
If the desired result of a directive cannot be achieved, it should be borne in mind that in these matters the state liability of the Francovich judgement can also offer a solution. The authority which should have implemented the directive involved, must make good the loss and damage caused to persons as a result of breaches of Community law.
6.2 The obligation to apply sanctions to infringements of EC Environmental law
More relevant is the question how competent authorities should respond to violations of EC regulations and correctly transposed directives. From the Greek Maize Case follows that the Member States must impose effective, proportionate and deterrent sanctions on the infringements of the EC Environmental directives and regulations. They must also impose on a violation of an EC environmental law standard the same severe sanction as they do with respect to an offence of a similar nature against a national environmental law standard.
This enforcement obligation derived from article 5 of the EC Treaty also applies to decentralized authorities. Does this mean that a decentralized authority is obliged to impose a sanction on every infringement of a Community law standard? Or do they have the discretion to tolerate certain offences? Do they have the power to decide not to penalize an infringement of EC law? In Dutch law this is called gedogen. This can probably be translated in German by dulden. In this paper it is called to allow. This concept of allowing -gedogen or dulden- is a very important one for the enforcement policies of Dutch decentralized authorities.
6.2.1 Case law of the Court on Enforcement
In four judgements concerning quality objectives for environmental mediums such as water and air, the Court has given an answer to this question of allowing.
In the case on the subject of the drinking water of Verviers, the quality of this water did not meet the requirements laid down in the Drinking Water Directive. [40] The Court stated that a decentralized authority, in this case the Walloon Region in Belgium, must ensure the observance of the requirements of the drinking water directive in practice. [41] The arguments concerning the cost and complexity of the construction works at the water treatment station were not accepted by the Court. After all, according to the case law of the Court, a Member State may not plead practical or administrative difficulties in order to justify non-compliance with obligations under EC law. [42]
In the judgement TA Luft (sulphur dioxide) [43] the Court said that the competent authorities of the Länder in Germany have the duty to adopt measures in all cases where the limit values of the directive on air quality and sulphur dioxide are likely to be exceeded. [44] This obligation must be laid down in mandatory rules. In this case compliance with an EC Environmental law standard in practice was very important too. [45]
The two judgements of the Court on the subject of the water quality in the United Kingdom are very interesting for the issue of enforcement. The first case, which I shall name, Commission against United Kingdom, concerns the quality of drinking water. [46] 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 result of the directive has to be achieved. Member States cannot rely on specific circumstances. Only the special provisions of a directive can justify that the result of that directive is not attained by a Member State. Consequently, it seems that allowing an infringement of EC Environmental law is not justified by any reason except by certain provisions of a directive or a regulation itself. [47]
The judgement of the Court in the case Commission against United Kingdom, is almost completely repeated in the Case Blackpool. [48] 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. [49] Does this statement imply that the absolute impossibility justifies the non-enforcement of a provision of an EC environmental law directive or regulation? Has a decentralized authority, which is the competent authority to enforce provisions of environmental law in many cases, the discretion to allow an infringement of Community law, if the observance in practice is not in any way possible?
The answer to this question must come from subsequent case law of the Court. In addition to this, the Court has to make clear what exactly is meant by the wording 'absolute impossibility'.
6.2.2 Absolute impossibility and allowing
In my opinion, however, it would be advisable to accept the concept of absolute impossibility as a justification for the non-enforcement of EC environmental law. If a company or citizen cannot technically comply with an environmental standard, it would not be reasonable to apply a sanction against this company or citizen. After all, this company or citizen is powerless, even helpless to fulfil their obligation. In considering this argumentation, I think that by the wording 'absolute impossibility' only the technical impossibility is meant. Other circumstances like financial difficulties (see the case of the drinking water in Verviers) or social problems, cannot be accepted as valid arguments. Perhaps a connection can be found between enforcement and the principle of Best Available Techniques (BAT) in the future. [50] Anyway, it is obvious that the wording 'absolutely impossible' relates to exceptional cases.
Furthermore, when a authority relies on the fact that compliance with the requirements of a directive or regulation is absolutely impossible, two facts must be kept in mind. In the first place, it must be clear that special provisions of a directive or regulation cannot solve the problem involved. [51] In the second place, the Court pointed out that a Member State cannot rely on the fact that the quality objective of a directive or regulation is not proportionate in a particular case. [52]
6.2.3 Dutch allowing policy and EC environmental law
In the Netherlands a policy for allowing infringements of environmental law is formulated by the Dutch central government and the interest groups of the Dutch decentralized authorities. In the future non-enforcement is only allowed in circumstances of change and force majeure. [53] In this policy, however, not only technical impossibilities but also other circumstances will still be considered acceptable justifications. In cases where a permit is likely to be given or where an activity is started for prevention, the competent authorities in the Netherlands will not apply a sanction against the company or person involved. At this moment the Dutch decentralized authorities have even more discretion to allow infringements of environmental law because the policy has not yet come into force. [54]
It is obvious that decentralized authorities are not allowed to apply this current Dutch policy to the enforcement of Community Environmental law. [55] They are obliged by article 5 of the EC Treaty to apply a sanction to infringements of EC Environmental law in almost every case. Only in highly exceptional cases they can waive the duty to penalize.
It should be pointed out that until now the vast majority of environmental legislation of the European communities has taken the form of directives. [56] Member states are obliged to incorporate these directives in their legal order. [57] This implies that Environmental standards of EC law are 'hidden' in the national legislation of Member states. In the Netherlands the central government transposes almost each directive by acts of Parliament, Royal Decrees and regulations of Ministers. As a result, decentralized authorities can apply or enforce a national provision of environmental law without perceiving its European origin. [58] Therefore, it is not always obvious in which cases the current Dutch allowing policy does not have to be applied. For this reason, competent authorities must carefully examine whether a national provision has a 'European background'.
6.3 The nature of the sanction
When an infringement of an environmental law standard is detected and a decentralized authority has decided to penalize, the next question arises. What kind of sanction must be applied? Only a few EC environmental directives and regulations contain explicit provisions with respect to the nature of the sanctions. [59] In most cases it is usually left to the competent authorities to determine the nature of the sanction. In Dutch environmental law the decentralized authorities have the power to impose several different sanctions. [60] They can, in fact, choose which sanction is going to be applied.
This means, in my opinion, that decentralized authorities have the competency to determine the nature of the penalty. [61] This discretion, however, is restricted by the requirements of the Greek Maize Case. The sanctions must be effective, proportionate, deterrent and in accordance with the principle of assimilation. In certain circumstances the scope for exercising discretionary powers by the Member States is reduced to practically nothing. [62] As a result, in my view, it is possible that in some cases no discretion is left to decentralized authorities. A competent authority could be forced, for example, to withdraw a permit by the objective of a directive or regulation. [63]
This can be illustrated by the example of the Groundwater Directive. [64] According to this directive a permit is needed for discharges of certain substances into groundwater. [65] When the permit conditions are not complied with, the competent authority could be obliged to withdraw the permit of the company involved, at least in my view. On the one hand article 12 of the Groundwater Directive confers discretion to the competent authority. After all, this article says that all appropriate measures to fulfil the obligations of the directive have to be taken, and if necessary, the permit must be withdrawn. On the other hand, this discretion diminishes when the company involved is frequently violating the permit conditions and, as a result, groundwater is severely endangered. In these cases competent authorities are forced to withdraw the permit of such companies.
The principle of proportionality is responsible for another problem. In Dutch law both decentralized authorities and public prosecutors have the power to apply sanctions to the same infringements of environmental law. In the Netherlands environmental law is not only enforced by administrative law but also by criminal law. The question arises whether the application of a sanction by both a decentralized authority and a public prosecutor, at the same time, to the same infringement, is proportionate. In the judgement Walt Wilhelm [66] it was decided by the Court that in principle the concurrence of two penalties is allowed. On the other hand the decentralized authorities do have the obligation to prove why it is necessary and appropriate [67] for the ensuring of the objectives of a directive or regulation to penalize while the offender is also prosecuted. [68]
7. Conclusions
At the end of this article the following conclusions can be drawn. Firstly, decentralized authorities have their own responsibility with respect to the enforcement of European Environmental law. They have, for example, the obligation to exercise control over the compliance with Community law in accordance with the relevant provisions of a regulation or a directive. Even when the directive provision involved is not transposed in the national legal order, they must still apply that provision in many cases.
Secondly, the authorities' scope for enforcement policy of their own is restricted. Decentralized authorities must enforce Community law under the same conditions as national law of similar nature and importance. Furthermore, they are obliged to penalize almost every infringement of EC environmental law. The scope for allowing such infringement is practically non-existent. Sometimes even the nature of the sanction is determined by EC law.
Thirdly and finally the following remark can be made. If an EC environmental law standard is violated by a company and if the nature of the sanction is prescribed by EC law, an interested party has the right to ask an organ of a decentralized authority to apply that sanction. When this request is refused by that organ, the interested party involved must have the possibility to go to a national court. In this way competent authorities can be forced by legal means to apply the required penalty. Citizens could also play a role in the enforcement of EC environmental law.
Noten
[1] Directive 76/160 on bathing water, O.J. L307/22.
[2] See NRC-Handelsblad 15 june 1995, p. 3.
[3] See 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. Schermer, Volume II, D. Curtin en T. Heukels (eds.), Dordrecht/Boston/London, 1994, p. 428.
[4] 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, op. cit., 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.
[5] Case 103/88, Fratelli Costanzo, [1989] ECR 1839.
[6] Compare also B. Hessel en K.J.M. Mortelmans, op. cit., p. 927; J.H. Jans,
Europees Milieurecht in Nederland, second edition, Groningen, 1994, p. 178; 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, London, 1992, pp. 168; 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.
[7] Case 80/86, Kolpinghuis, [1987] ECR 3969.
[8] Case C-144/93, Pfanni Werke Otto Eckhardt, [1994] ECR 4605.
[9] See also K. Hansmann,
Schwierigkeiten bei der Umsetzung und Durchführung des europäischen Umweltrechts, Neue Zeitschrift für Verwaltungsrecht 1995: p. 320, p. 323; H.G. Fischer, op. cit., p. 121; H.D. Jarass and L.F. Neumann, op. cit., pp. 43, 44 and G. Winter, op. cit., pp. 54 and 56.
[10] Compare also L. Krämer,
The implementation of Community Environmental Directives within Member States: Some Implications of the Direct Effect Doctrine, 3 Journal of Environmental Law (1991): p. 39, pp. 48 and 49 and K. Sevinga,
WK Voetbal 1990, EG-recht en lokaal bestuur, Publiek Domein 1990: p. 198, p. 201.
[11] Case 68/88, Greek Maize, [1989] ECR 2965.
[12] See paragraph 23 of the Greek Maize Case.
[13] See R.J.G.M Widdershoven,
Gemeenschapsrecht bestuursrechtelijk gehandhaafd, Nederlands Tijdschrift voor Bestuursrecht 1993: p. 47, p. 53; K.J.M. Mortelmans,
The Application and Enforcement of Community Law by Administrative Law, in:
Administrative Law Application and Enforcement of Community Law in the Netherlands, J.A.E. Vervaele (ed.), Deventer 1993, p. 9; B.P. Vermeulen,
The Issue of Fundamental Rights in the Administrative Application and Enforcement of Community Law, in:
Administrative Law Application and Enforcement of Community Law in the Netherlands, J.A.E. Vervaele (ed.), Deventer, 1993, p. 64; R.M.A. Guldenmund
Strafrechtelijke handhaving van gemeenschapsrecht. Een analytisch overzicht van de strafrechtelijke handhaving van het afgeleide gemeenschapsrecht in de Nederlandse rechtsorde, Gouda, 1992, pp. 19, 20 and H.G Sevenster,
Criminal law and EC law, 29 Common Market Law Review (1992): p. 29, pp. 51 and 64.
[14] See paragraph 25 of the Greek Maize Case.
[15] Case 54/81, Fromme, [1982] ECR 1449.
[16] See paragraph 24 of the Greek Maize Case.
[17] In Dutch they are called
provincies and
gemeenten.
[18] See article 17 of the Dutch Economic Offenses Act (Wet Economische Delicten).
[19] See article 148 section 2 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering).
[20] A.E.H. Huygen,
Controle en opsporing, in:
Facetten van economisch strafrecht, M. Wladimiroff (ed.), Gouda, 1990, p. 51.
[21] J.H.G. van den Broek,
De gemeentelijke opsporingsambtenaar, Milieu en recht 1984: 205, 207.
[22] See for example article 13 of Directive 75/442 on waste, [1975] O.J. L194/23; article 13 of Directive 80/68 on groundwater, [1980] O.J. L18/26 and article 14 of Regulation 3528/86 on the protection of forests against air pollution, [1986] O.J. L326/5.
[23] 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.
[24] Case C-360/87, Commission against Italy, [1991] ECR 791.
[25] Case C-131/88, Commission against Germany, [1991] ECR 825.
[26] See for example case 9/70, Grad, [1970] ECR 825; case 41/74, Van Duyn, [1974] ECR 1337; case 8/81, Becker, [1982] ECR 53 and case C-236/92, Regione Lombardia, [1994] ECR I-483.
[27] See paragraph 29 of 'Becker'.
[28] See for example case 148/78, Ratti, [1979] ECR 1629.
[29] See also P.J.G. Kapteyn and P. VerLoren van Themaat,
Inleiding tot het recht van de Europese Gemeenschappen. Na Maastricht, Deventer, 1995, p. 325 and S. Prechal,
Directives in European Community Law. A study of directives and their enforcement in national courts, Oxford, 1995, pp. 279 and 280.
[30] Case 103/88, Fratelli Costanzo, [1989] ECR 1839.
[31] Case 80/86, Kolpinghuis, 1987 ECR 3969.
[32] Case C-144/93, Pfanni Werke Otto Eckhardt, [1994] ECR 4605.
[33] Case C-106/89, Marleasing, [1990] ECR I-4135.
[34] Case 14/83, Von Colson, [1984] ECR 1891.
[35] Compare S. Prechal, op. cit., p. 236 and H.D. Jarass and L.F. Neumann, op. cit., p. 41.
[36] Joined Cases C-6/90 and 9/90, Francovich, [1991] ECR I-5357.
[37] Case 14/86, Pretore di Salo, [1987] ECR 2545.
[38] Case 80/86, Kolpinghuis, [1987] ECR 3969.
[39] See paragraph 13 of Kolpinghuis.
[40] Directive 80/778 on water for human consumption, [1980] O.J. L229/11.
[41] Case C-42/89, Drinking Water in Verviers, [1990] ECR I-2821.
[42] See for example Case 100/77, Commission against Italy, [1978] ECR 879); Case 102/79, Commission against Belgium, [1980] ECR 1473; Case 279/83, Commission against Italy, [1984] ECR 3403; Case 69/81, Commission against Belgium, [1982] ECR 163; Case C-33/90, Commission against Italy, [1991] ECR I-5987 and Case C-337/89, Commission against United Kingdom, [1992] ECR I-6103.
[43] Case C-361/88, TA Luft (sulphur dioxide), [1991] ECR I-2567.
[44] See in this respect Jans, op. cit., pp. 157, 158.
[45] Compare also L. Krämer, op. cit., London, 1995, p. 131 and Jans, op. cit., pp. 157, 158.
[46] Case C-337/89, 25 november 1992, Commission against United Kingdom, n.y.r.
[47] Compare also R. Widdershoven,
Vollzug und Vollzugsdefizite bei der Durchsetzung des europäischen Umweltrechts durch nationales Recht,in:
Umweltrecht jenseits der Grenze, C. Backes (ed), Utrecht, 1995, p. 74.
[48] Case C-56/90, Blackpool, [1993] ECR I-4109.
[49] 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.
[50] It would be remarkable when BAT in the context of enforcement is defined in the same way as in the proposal for a directive on Integrated Pollution Prevention and Control (8519/95 ENV 154). According to this proposal the best techniques should be applied but the costs and advantages and the local environmental conditions must be taken into account. According to this principle financial problems can play a role.
[51] See in this respect paragraph 33 of Case C-217/88, Commission against Germany, [1990] ECR I-2879.
[52] See paragraph 16 of Case C-237/90, Commission against Germany, [1992] ECR I-5973.
[53] See TK 1989-1990, 21 137, nr. 26, pp. 2 and 3 respectively TK 1991-1992, 22 343, nr. 2, pp. 6, 7 and. 8.
[54] See TK 1993-1994, 22 343, nr. 14, p. 4 and L. Bomhof,
Het handhavingsperspectief voor milieubeleid en regelgeving in de jaren negentig; van toen naar nu en hoe verder, Zwolle 1994, p. 37.
[55] Compare also Jans, op. cit., p. 159.
[56] See O. Brouwer, Y. Comtois, M. van Empel, D. Kirkpatrick and P. Larouche,
Environment and Europe. European Union environmental law and its impact on industry, Deventer, 1994, p. 59.
[57] See article 189(3) EC Treaty.
[58] Compare Ch. H. van Marle and T.A.H. de Nijs,
Europees recht en Nederlandse decentrale overheden, Den Haag, 1991, p. 83.
[59] See for example article 13 of Directive 80/68 on groundwater, [1980] O.J. L20/43 and article 12 of Directive 94/67 on the incineration of hazardous waste, [1994] O.J. L365/34.
[60] See for example articles 18.1. up to and including 18.7. of the Dutch Environmental Protection Act (Wet Milieubeheer).
[61] Compare Jans, op. cit., p. 160.
[62] Compare in this respect case C-182/89, Commission against France, [1990] ECR I-4337 and case C-271/91, Marshall II, [1993] ECR I-4367. See also R. Macrory,
The enforcement of Community Environmental Laws: some critical issues, 29 Common Market Law Review (1992): p. 347, pp. 360, 361 and 362.
[63] Compare R. Widdershoven, op. cit., Utrecht, 1995, p. 76.
[64] Directive 80/68 on groundwater, [1980] O.J. L20/43.
[65] See articles 4 and 5 of Directive 80/68.
[66] Case 14/68, Walt Wilhelm, [1969] ECR 1.
[67] Compare Case C-357/88, Hopermann, [1990] ECR I-1669.
[68] See A.J.C. de Moor-van Vugt, Maten en gewichten. Het evenredigheidsbeginsel in Europees perspectief, Zwolle, 1995, pp. 110 and 111.