Enforcing European Union Environmental Law 29 November 2013 UCC, Cork Session 2: Liam Cashman, Environment Directorate- General, European Commission: "New Commission initiative on environmental inspections – what it might mean for future enforcement"

What are inspections for? Compliance assurance Compliance promotion Inspections Enforcement (civil, administrative, criminal) Inspections Verify compliance Detect and characterise non-compliance and identify those responsible

What is the context? 1. Many pieces of environment legislation  Over 40 directives and regulations 2. Diversity of legislation  Water, Waste, Air and Industrial, Chemicals, Nature, Impact Assessment 3. Many duty-holders  Large industries, SMEs, municipalities and environmental utilities, farmers and landowners, hunters and recreational users etc 4. Diversity of responsible bodies  Specialist environment agencies, local authorities, police and prosecutors etc 5. EU-wide and geographically limited problems  e.g. waste and wildlife trafficking, illegal water abstraction

Towards a new EU Legal Framework on Environmental Inspections Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the Member States (RMCEI)Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the Member States (RMCEI) Commission Communication on 'Improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness'Commission Communication on 'Improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness' 7 th Environment Action Programme 'Living well, within the limits of our planet'7 th Environment Action Programme 'Living well, within the limits of our planet'

Current EU framework on environmental inspections General frameworkGeneral framework 2001 Recommendation providing for minimum criteria for environmental inspections in Member States 2001/331/EC (RMCEI) Sector specific legislation, in particularSector specific legislation, in particular Industrial Emissions Directive 2010/75/EU - Art 23 Major accidents, Directive 2012/18/EU (Seveso III Directive) - Art 20

Key elements of the existing framework RMCEI focussed on industrial installations and contains minimum criteria for:RMCEI focussed on industrial installations and contains minimum criteria for: Dual approach, i.e. planned/routine and unplanned/non-routine inspection work Planning of inspections, incl. requirements for content of inspections plans Carrying out of inspections, in particular site visits, Reporting on environmental inspections Key sectoral legislation (IED, Seveso III) broadly follows RMCEI dual approachKey sectoral legislation (IED, Seveso III) broadly follows RMCEI dual approach

Strengths of the current framework RMCEI :RMCEI : Built confidence and prepared the ground for binding criteria Allows flexibility Influential, stimulated some MS to improve their inspection systems Proven platform for best practices, incl. through IMPEL Sectoral legislation:Sectoral legislation: Tends to use core elements of RMCEI (inspection plans, reports, etc.) Specific sectoral adaptations

Limitations of the current framework  Fails to recognise the wider compliance assurance context  RMCEI limited in scope and content, non-binding and mainly focused on industrial and some other fixed facilities  Existing sectoral binding provisions limited in scope. Not covered for instance are: illegal activities in relation to EU nature legislation, illegal water abstraction, illegal waste shipments, trade in endangered species  Need for effective co-ordination within and between individual MS not adequately addressed  Large disparities concerning organisation and functioning of inspections  Poor operational capacity of national inspection bodies in some MS  Poor levels of follow-up of environmental inspection reports in some MS  Weak performance evaluation  Role of the Commission not properly defined

What does the 7 th EAP say? The Council and Parliament had agreed the following text for the relevant part of the 7 th EAP 1. "63. In order to maximise the benefits of EU environment legislation by improving implementation, the programme shall ensure that by 2020: … … (c) EU environmental law is enforced at all administrative levels and a level- playing field in the internal market is guaranteed.... … … … This requires, in particular: … … (iii) Extending binding criteria for effective Member State inspections and surveillance to the wider body of EU environment law, and further developing inspection support capacity at EU level, drawing on existing structures, backed up by support for networks of professionals such as IMPEL, and by the reinforcement of peer reviews and best practice sharing, with a view to increasing the efficiency and effectiveness of inspections".

Possible components of a new initiative ScopeScope Basic administrative requirementsBasic administrative requirements Co-operation and co-ordination within Member States and across Member StatesCo-operation and co-ordination within Member States and across Member States Risk assessmentRisk assessment Compliance assurance prioritiesCompliance assurance priorities Carry-over and adaptation of dual approachCarry-over and adaptation of dual approach Governance and transparencyGovernance and transparency EU levelEU level

Objective, Scope, Key Concepts Objective: Objective: Effective compliance assurance of EU environment law Scope: Scope: Notion of 'enforceable duties' specified in an annex Key concepts within collective term "controls": Surveillance: wide-angle controls, e.g. remote sensing of changes in land-cover; intelligence-gathering. Inspections: more focused controls involving site-visits, spot checks etc. Investigations: completing the picture where necessary

Member States' administrative arrangements Competent authorities: Who does what Independence, impartiality Capacity Delegation Cooperation and coordination

How to manage inspection work? Global assessment of risks of non-compliance: Prioritisation strategy to mitigate risks of non- compliance: Global assessment of risks of non-compliance: How likely is non-compliance? How important are its impacts? Prioritisation strategy to mitigate risks of non- compliance: Compliance assurance priorities; role of compliance promotion, inspections and enforcement Routine and non-routine: Routine and non-routine: Draw on established methodology (RMCEI, IED, Seveso)

Governance Complaint handling: Complaint handling: registration, confidentiality and feedback Public consultation Public consultation on prioritisation strategy Data collection and management: Data collection and management: Electronic records, influence of INSPIRE Directive, 2007/2 Active dissemination: Active dissemination: Central Internet portal Periodic evaluation Periodic evaluation of effectiveness and efficiency re prioritisation strategy

EU level and Commission role Member State-to-Member State coordination and cooperation Member State-to-Member State coordination and cooperation  Sharing of experience and best practice including cooperation with networks such as IMPEL Commission power to intervene Commission power to intervene  Limited to trans-boundary issues and to specific circumstances? Peer reviews Peer reviews  In line with 7 th EAP - based on IMPEL model with a possible more concrete role for the Commission Commission evaluation of implementation of instrument Commission evaluation of implementation of instrument  No MS reports