De kwaliteit van milieurichtlijnen

Abstract

This research concerns the implementation of European environmental directives in national law, with a focus on transposition. The research question is what role the directives themselves have in the occurrence of implementation problems in the Member States. This is based on the hypothesis that implementation problems are not always the fault of the Member States (as is suggested by the infringement procedure of Article 258 TFEU / Article 226 EC Treaty), but may also be caused by flaws in the directives themselves, such as unclear or impossible obligations, bad coherence between directives etc. Ten environmental directives are selected for further research concerning problems with their implementation. These problems are tested in three different Member States: Denmark, Germany and the Netherlands. This test confirmed the role of these problems in practice. A major problem is the directives’ lack of clarity where it concerns the scope of the directive. Member States tend to opt for a limited interpretation, whereas the Commission usually holds a broader view. Most of the time, the ECJ follows the Commission in her broad interpretation. However, the interpretation of the Member States is not always unreasonable. The ECJ sometimes seems to overstretch the meaning of a directive a bit. Other problems are a lack of coherence between directives in the use of definitions and in the applicability of multiple directives to the same situation and lack of clarity concerning definitions. Different instruments such as area protection, emission standards, environmental quality standards, procedural requirements and the obligation to set up plans or programmes each have their own problems to which attention should be paid when prescribing such instruments. Soft law can be helpful for Member States, especially when filling in technical standards or vague norms, but interpretative documents should be handled with care. They usually reflect the opinion of the European Commission or other stakeholders and are not legally binding. Member States should consider their own preferences on whether or not to follow these documents. However, Member States need not take all the blame for problems with the transposition of directives but they do have their own responsibility as co legislator. Not all problems concerning transposition can be blamed on flaws in directives. Member States are obliged to loyally execute directives, even if this requires amendments of perfectly functioning national legislation or the designation of vulnerable but economically important areas. Better impact assessments with a focus on legal and environmental effects of new legislation, both on the European and the national level, would help to prevent this situation. If the effects of a directive are known beforehand, Member States will be better able to consider whether they wish to commit themselves to these obligations.