ENFORCEMENT OF EUROPEAN UNION ENVIRONMENTAL LAW: LEGAL ISSUES AND CHALLENGES Without their proper enforcement, governmental commitments to improving the state of the environment are prone to remain but ‘greenspeak’ The European Union has adopted a raft of legislative instruments intended to enhance standards to protect the environment, but to what extent has it developed suitable mechanisms to ensure that the EU Member States adhere to its environmental protection legislation? This book examines the subject of EU environmental law enforcement by providing a detailed account of the various legal and administrative arrangements at EU level that may be used for the purpose of upholding EU environmental norms, and assesses the practical impact of those arrangements Spanning three parts, the book focuses on the principal sources of EU environmental law enforcement: namely, the role of the European Commission, the possibilities for private law enforcement and the responsibilities of Member State national authorities In seeking to provide a comprehensive account of the current state of and developments affecting EU environmental law enforcement, it aims to provide environmental legal scholars and practitioners with a useful reference tool as well as a contribution to legal and political debates on the subject Martin Hedemann-Robinson has been a Lecturer in Law at Brunel University in London since 1993 During his tenure at Brunel, he has also worked as an administrator in the Environment Directorate-General of the European Commission between 2001–2003 dealing with legal issues concerning waste management ENFORCEMENT OF EUROPEAN UNION ENVIRONMENTAL LAW: LEGAL ISSUES AND CHALLENGES Martin Hedemann-Robinson First published 2007 by Routledge-Cavendish Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Avenue, New York, NY 10016 Routledge-Cavendish is an imprint of the Taylor & Francis Group, an Informa business © 2007 Martin Hedemann-Robinson This edition published in the Taylor & Francis e-Library, 2007 “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” All rights reserved No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 0–203–94547–6 Master e-book ISBN ISBN10: 1–85941–917–8 (pbk) ISBN13: 978–1–85941–917–5 (pbk) For Sam, Freya and Jocelyn, and in memory of my late grandfather, Walter Hedemann PREFACE Without their proper enforcement, governmental commitments to improving the state of the environment are prone to remain but ‘greenspeak’ Over the last 30 years and more, the European Union has developed a raft of legislation intended to enhance standards to protect the environment The main purpose of this book is to provide an overview of the current legal principles of the European Union on how EU environmental law may be enforced It aims to examine the subject of EU environmental law enforcement by providing a detailed account of the various legal arrangements that may be used for the purpose of upholding EU environmental norms as well as by providing a critical appraisal of the practical impact of those arrangements, considering, in particular, issues of efficacy and accountability Spanning three parts, the book focuses on the principal modes of EU environmental law enforcement: namely, the role of the European Commission, possibilities for private law enforcement and the role of national authorities In Part One, in addition to detailing the key legal considerations that affect the European Commission’s prosecution of infringement proceedings against Member States acting in violation of EU environmental law, the author draws from his own professional experience within the Commission’s Environment Directorate General of the practical and systemic limitations faced by this EU institution with regard to law enforcement In Part Two, the author seeks to appraise the possibilities available under EU law for private individuals to enforce EU environmental law, taking account of recent legal developments emanating from the European Court of Justice, recent European Community directives such as those on environmental damage and access to environmental information as well as new initiatives on human rights protection In Part Three, the book examines the requirements and structures in place at EU level which may serve to assist national authorities involved in environmental protection to make use of EU environmental law This is the first time to my knowledge that a publication of this sort has examined EU environmental law enforcement in such a broad manner It is hoped that it will provide a useful reference point of key information as well as a trigger for legal and political debate at academic and legal professional vii P R E FA C E levels Too little light is being shone into the nooks and crevices of this important evolving legal area There are many heartening as well as disturbing aspects concerning the legal arrangements relating to EU environmental law enforcement The heartening aspects relate mostly to the recent opening up of possibilities for civil society to play a more active and serious legal role in supervision of EU environmental law, in large part due to the Union’s commitment to implementing the UNECE 1998 Århus Convention In addition, recent EC legislative initiatives have sought to crystallize EU Member State authorities’ enforcement role and responsibilities more effectively The disturbing aspects concern the continued undue reliance of the EU on the European Commission to act as its environmental watchdog, an expectation that has always been over-ambitious and has brought with it special problems of its own Whether the recent legislative changes introduced and being introduced at EC level to the area of environmental law enforcement are adequate to meet the challenges of substantial enlargement of the Union’s membership is an open question I have intended the book to be up to date as at the end of 2005 Martin Hedemann-Robinson London, January 2006 viii CONTENTS vii xix xxv xxxiii Preface Table of cases Table of statutes Abbreviations and acronyms Introduction 1.1 Aims and objectives 1.2 Legal architecture and terminology of the EU: a brief overview 1.2.1 EU environmental law: some definitions and clarifications 10 1.2.1.1 Historical developments: from EEC to EU 11 1.2.1.2 The EU’s institutions 12 1.2.1.3 The three pillar framework of the EU 13 1.2.1.4 EU environmental policy and law 15 1.2.1.5 Legal bases for EU environmental measures 16 1.2.1.6 Types of EC environmental measures 19 1.2.2 The 2004 European Union Constitution 21 PART The role of the European Commission in enforcing EU Environmental Law EU institutional enforcement of EU environmental law: the general legal framework 2.1 The role of the European Commission as primary law enforcer 29 2.2 Enforcement proceedings 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‘Discretion in European Community environmental law: an analysis of ECJ case law’, 2003, 40 CML Rev 1413 Steiner, J, ‘The limits of state liability for breach of European Community law’, 1998, 4(1) EPL 69 Sunkin, M, Ong, D and Wight, R, Sourcebook on Environmental Law, 2nd edn, 2002, London/Sydney: Cavendish Publishing Limited Tesauro, G, ‘La Sanction des Infractions au Droit Communautaire’, 1992, 32 Rivista di Diritto Europeo 477 Theodossiou, M, ‘An analysis of the recent response of the Community to noncompliance with Court of Justice judgments: Article 228(2) EC’, 2002, 27(1) EL Rev 25 Toth, A, ‘The law as it stands on the appeal for failure to act’, 1975, LIEI 65 Tridimas, T, ‘Horizontal effect of directives: a missed opportunity’, 1994, 19(6) EL Rev 621 562 BIBLIOGRAPHY Tridimas, T, ‘Liability for breach of Community Law: growing up and mellowing down?’, 2001, 38 CML Rev 301 Usher, J, ‘Direct and individual concern: an effective remedy or a conventional solution’, 2003, 28(5) EL Rev 575 Van den Bossche, P, ‘In search of remedies for non-compliance: the experience of the European Community’, 1996, MJ 371 Wägenbaur, R, ‘The European Community’s policy on implementation of environmental directives’, 1990–91, Fordham Int LJ 455 Ward, A, ‘Effective sanctions in EC law: a moving boundary in the division of competence’, 1995, 1(2) ELJ 205 Ward, A, ‘Judicial review of environmental misconduct in the European Community: problems, prospects and strategies’, 2001, YEEL 137 Weatherill, S and Beaumont, P, EU Law, 3rd edn, 1999, London: Penguin Williams, R, ‘The European Commission and the enforcement of environmental law: an invidious position’, 1994, 14 YEL 351 Williams, R ‘Enforcing European environmental law: can the European Commission be held to account?’, 2002, YEEL 271 Winter, G, ‘On the effectiveness of the EC administration: the case of environmental protection’, 1996, 33 CML Rev 689 Winter, G, ‘Constitutionalizing environmental protection in the EU’, 2002, YEEL 67 Wyatt, D, ‘Litigating Community environmental law—thoughts on the direct effect doctrine’, 1998, 10(1) JEL 563 INDEX access to justice 268–9, 301–2, 304–10, 344–5, 349–50 access to environmental information held by EU institutions 377–403 CFI rulings 388–95 draft Århus Convention and 401–3 European Ombudsman and 395–9 exceptions 385–8 procedural aspects 382–5 Regulation 1049 and 379–88 relating to infringement proceedings 399–400 access to environmental information held by Member State authorities 330–44 impact of AEI directive on environmental law enforcement 341–4 public dissemination of environmental information 336–41 right of access under AEI directive 331–6 complaints procedures European Ombudsman 420–30 European Parliament 430–1 draft Århus Regulation and 370–6 access to environmental information held by EU institutions and 401–3 material scope 373–5 personal scope 371–3 review procedures 375–6 EC Treaty system 351–70 annulment proceedings 356–65 legal proceedings in respect of failure to act 353–5 non-contractual liability of EU institutions 365–8 preliminary ruling procedure 368–70 other instruments 321–9 environmental information and decision making 321–9, 322–3 environmental liability directive 323–9 proposed directive on 310–21 direct effect and 319–21 qualified entities 311–13 right to request internal reviews 317–19 right to take environment proceedings 313–17 prospects 403–6 accountability 199–202 administrative measures 97 Advocates-General 34 amicus curiae 34 annulment proceedings 356–65 application to Court of Justice 85–9 contents of Court application 85–8 temporal aspects 88–9 attribution of liability 285 ‘bad application’ cases 40, 41–2, 43, 72, 187, 189 best available technology not entailing excessive cost (BATNEEC) 222 breaches of environmental law 40–4 by another Member State 93–4 detection 46–7 enforcement proceedings see proceedings (enforcement) historical breaches 61–5 state liability 278–301, 302–3 attribution of liability 285 causation 286–7, 295–7 565 INDEX breaches of environmental law (Cont.) general legal criteria for proof of state liability 279–87 loss and damage 285–6, 297–301 rights intended to be conferred on individuals 282, 288–93 sufficiently serious breach of EC law 282–4, 293–5 business activities, civil liability and 493–6 casework handling improvements 192–6 causation civil liability 497–8 state liability and 286–7, 295–7 civil liability 479–80, 513–15 Council of Europe’s Lugano Convention 1993 481–5 developments of EU policy on 485–9 directive on environmental liability 489–513 causation issues 497–8 competent authorities 508–11 cross-border liability scenarios 511–12 environmental damage 496–7 exceptions to liability 501–2 fault and negligence 499–500 legal effects 512–13 operator’s financial liability for preventive and remedial action 507–8 operators of occupational activities 493–6 operator’s specific obligations 502–8 preventive action 503–4 remedial action 504–6 scope of liability 492–501 temporal scope of liability 501 collegiality and Commission decision making 59–69 Committees of Inquiry, European Parliament 435–6 competition policy 44 complainants 186 accountability to 199–202 as sources of information 165–7 complaints procedures European Ombudsman 420–3 complaints against Commission 423–30 European Parliament 430–1 Committees of Inquiry 435–6 Parliamentary questions 434–5 right of petition 431–4 conflicts of interest, European Commission 178–85 College of Commissioners 179–81 Directorate-General level 181–5 constitution of the European Union (EU) 21–4 co-operation duty 57–9, 161–2 Council of Europe Convention on the Protection of the Environment through Criminal Law 516–20 Lugano Convention 1993 481–5 Council of the EU 12, 438 Court of Auditors 12 Court of First Instance (CFI) 12, 352 rulings on access to information 388–95 criminal liability 516 draft PECL directive 527–33 degree of proposed harmonisation 532–3 environmental offences 529–31 sanctions 531–2 ECJ’s ruling in Case C-176/03 Commission v Council 534–45 appraisal 541–5 Framework Decision (2003) 525–6 indirect effect and 264–6 PECL Convention 516–20 political and constitutional background 520–4 prospects for EU environmental criminal law 545–8 damage 285–6 civil liability 496–7 preventive action 53–4 remedial action 504–6 de minimis type arguments 94–6 decentralisation of enforcement 189–92 decisions access to justice in relation to environmental decision making 322–3 to take legal action 59–69 collegiality and Commission decision making 65–8 566 INDEX Commission immunity from judicial review 68–9 delays in taking legal action and historical breaches 61–5 legal justification needed 60–1 transparency of Commission decision making 196–8 defendants observations regarding letter of formal notice (LFN) 74–5 observations regarding reasoned opinions (ROs) 80–5 period for observations to be submitted 80–4 taking observations into account 84–5 submissions in enforcement proceedings 89–104 adequacy of implementation of EU environmental law 96–103 breach by another Member State 93–4 de minimis type arguments 94–6 element of fault 93 internal problems facing Member States 92–3 temporal arguments 103–4 delays in taking legal action 61–5 detection of breaches of environmental law 46–7 direct effect 98, 213–18, 451 application against public authorities 234–47 general points 234–5 limited Member State discretion 237–47 vertical direct effects 235–47 criteria for 218–34 subjective individual rights and 230–4 sufficient precision 221–3, 225–8 transposition deadline and 229–30 unconditionality 223–4, 225–8 horizontal direct effect 250–2, 255–61 proposed directive on access to justice 319–21 vertical direct effects 235–47 inverse 248–9 directives 19, 20–1, 44 ‘bad application’ cases 40, 41–2, 43, 72, 187, 189 direct effect see direct effect indirect effects see indirect effects non-transposition cases 40, 41, 46, 72, 187 reliance on directives against private persons 247–61 horizontal direct effect 250–2 incidental horizontal effects 255–61 inverse vertical effects 248–9 triangular situations 252–5 transposition deadline 229–30 discretion decision to take legal action 59–69 collegiality and Commission decision making 65–8 Commission immunity from judicial review 68–9 delays in taking legal action and historical breaches 61–5 legal justification needed 60–1 limited Member State discretion on direct effect of directives 237–47 dumping, environmental 97–8 employment, civil liability and 493–6 enforcement of environmental law 4–6, 549–58 European Commission and 27, 29–36 role as primary law enforcer 29–31 general legal framework 27–9 impact of AEI directive on environmental law enforcement 341–4 Member States and 37–40, 445–7, 474–8 civil liability see civil liability general implementation duties 447–54 IMPEL network 195, 454–65 passive legal responsibilities 450–3 positive legal responsibilities 447–50 Recommendation 2001/31 on environmental inspection 465–74, 476–7 subsidiarity principle 453–4, 476, 477, 523 proceedings see proceedings (enforcement) environmental policy and law 1–4, 10–11, 15–16 adequacy of implementation 96–103 breaches see breaches of environmental law 567 INDEX environmental policy and law (Cont.) enforcement see enforcement of environmental law EO’s substantive analysis of EU environmental law 425–6 legal bases for environmental measures 16–19 types of environmental measures 19–21 European Commission 12, 27, 29–36, 549–50 access to information relating to infringement proceedings and 399–400 accountability to complainants 199–202 collegiality and Commission decision making 59–69 complaints to Ombudsman against 423–30 EO’s scrutiny of Commission’s procedures 426–30 EO’s substantive analysis of EU environmental law 425–6 conflicts of interest 178–85 College of Commissioners 179–81 Directorate-General level 181–5 detection of breaches of environmental law 46–7 enforcement proceedings 31–6, 45–6, 159–61 accountability to complainants 199–202 Commission’s discretion in deciding to take legal action 59–69 conflicts of interest 178–85 core elements 47–51 financial penalties 112, 113–15, 117–24, 132–7, 144–51, 152–5, 174–8 ‘first round’ 31, 32–5, 45–6 pre-litigation procedure 33, 47–9, 51–85 prioritisation of cases 185–96 reform of monitoring process 185–96 ‘second round’ see ‘second round’ proceedings statistical information on 202–5 structure and format of proceedings 32–5 transparency of decision making 196–8 immunity from judicial review 59–69 investigations 43, 57–9, 161–7 complainants as sources of information 165–7 investigatory and inspection tools 161–4 resources issues 164–5 role as primary law enforcer 29–31 transparency of decision making 196–8 European Court of Justice (ECJ) 10, 12, 213, 268, 352 see also proceedings (enforcement) European Environment Agency (EEA) 13, 163, 402, 436–8, 460 European Ombudsman 408–39, 439 access to environmental information and 395–9 complaints against Commission 423–30 EO’s scrutiny of Commission’s procedures 426–30 EO’s substantive analysis of EU environmental law 425–6 complaints procedures 420–3 concept of maladministration 395–6, 412–16 exclusion from legal proceedings 419–20 general remit and powers 411–20 legal powers 416–18 European Parliament 12, 430–6, 440 Committees of Inquiry 435–6 enforcement proceedings and 436 right of petition 431–4 European Pollutant Emission Register (EPER) 339 European Pollutant Release and Transfer Register (EPRTR) 339 European Union (EU) 9–10 environmental policy and law 1–4, 10–11, 15–16 adequacy of implementation 96–103 enforcement see enforcement of environmental law legal bases for environmental measures 16–19 types of environmental measures 19–21 historical development 11–12 568 INDEX institutions see institutions of the European Union (EU) law 10–11 proposed constitution 21–4 three pillar framework 13–15 evidence, pre-litigation procedure 52–7 failure to act, legal proceedings in respect of 353–5 fault 93 civil liability 499–500 financial penalties 112, 113–15, 156–7, 174–8 case law 132–7, 144–51, 152–5 Commission guidance on 117–24 ‘first round’ proceedings 31, 32–5, 45–6 historical breaches of environmental law 61–5 historical development of the European Union (EU) 11–12 horizontal direct effect 250–2, 255–61 IMPEL network 195, 454–65 appraisal of impact 462–5 origins and development 459–62 overview 454–9 implementation 189 defence submission on adequacy of 96–103 reporting on 164 incidental horizontal effects 255–61 indirect effects 261–6, 449 criminal liability and 264–6 general points 262–4 inverse 252–5 individuals 266–7, 407–8 access to justice by see access to justice direct effect 98, 213–18 criteria for 218–34 enforcement proceedings brought by 209–13 annulment proceedings 356–65 non-contractual liability of EU institutions 365–8 preliminary ruling procedure 368–70 in respect of failure to act 353–5 reliance on directives against private persons 247–61 horizontal direct effect 250–2 incidental horizontal effects 255–61 inverse vertical effects 248–9 triangular situations 252–5 rights intended to be conferred on individuals 282, 288–93 subjective individual rights and direct effect 230–4 information access to environmental information held by EU institutions 377–403 CFI rulings 388–95 draft Århus Convention and 401–3 European Ombudsman and 395–9 exceptions 385–8 procedural aspects 382–5 Regulation 1049 and 379–88 relating to infringement proceedings 399–400 access to environmental information held by Member State authorities 330–44 impact of AEI directive on environmental law enforcement 341–4 public dissemination of environmental information 336–41 right of access under AEI directive 331–6 access to justice in relation to environmental information 322–3 complainants as sources of 165–7 statistical information on environmental infringement cases 202–5 transparency of Commission decision making 196–8 infringement proceedings see proceedings (enforcement) inspections, Recommendation 2001/31 on 465–74, 476–7 criteria for inspections 469–74 implementation and scope of Recommendation 466–9 investigations of serious cases of noncompliance 473–4 planning 469–70 reporting 472–3 site visits 162, 470–2 569 INDEX institutions of the European Union (EU) 12–13 access to environmental information held by EU institutions 377–403 CFI rulings 388–95 draft Århus Convention and 401–3 European Ombudsman and 395–9 exceptions 385–8 procedural aspects 382–5 Regulation 1049 and 379–88 relating to infringement proceedings 399–400 non-contractual liability 365–8 see also individual institutions interim relief 104–11, 172–3 internal reviews, right to request 317–19 inverse indirect effects 252–5 inverse vertical direct effects 248–9 investigations 43, 57–9, 161–7 complainants as sources of information 165–7 investigatory and inspection tools 161–4 resources issues 164–5 see also inspections judicial review 327–8 annulment proceedings 356–65 Commission immunity from 59–69 law of the European Union (EU) 10–11 letter of formal notice (LFN) 33, 36, 48, 49, 51, 70–5 defendant’s observations 74–5 Member State’s responses to 74–5 purpose and degree of precision 70–3 Lex II project 194 liability civil liability see civil liability criminal liability see criminal liability criteria establishing liability 155–6 environmental liability directive 323–9 impact on access to environmental justice 328–9 right to subject competent authority’s conduct to legal review 327–8 rights of private entities to request action 324–7 non-contractual liability of EU institutions 365–8 state liability 278–301, 302–3 attribution of liability 285 causation 286–7, 295–7 general legal criteria for proof of state liability 279–87 loss and damage 285–6, 297–301 rights intended to be conferred on individuals 282, 288–93 sufficiently serious breach of EC law 282–4, 293–5 limitation periods 61 loss 285–6, 297–301 maladministration 395–6, 412–16 Member States 438 access to environmental information held by Member State authorities 330–44 impact of AEI directive on environmental law enforcement 341–4 public dissemination of environmental information 336–41 right of access under AEI directive 331–6 duties of state authorities to provide remedies 275–8 enforcement of EU environmental law by 37–40, 445–7, 474–8 civil liability see civil liability general implementation duties 447–54 IMPEL network 195, 454–65 passive legal responsibilities 450–3 positive legal responsibilities 447–50 Recommendation 2001/31 on environmental inspection 465–74 subsidiarity principle 453–4, 476, 477, 523 enforcement proceedings brought against 31–6 application to Court of Justice 85–9 Commission’s discretion in deciding to take legal action 59–69 core elements 47–51 defence submissions 89–104 ‘first round’ 31, 32–5, 45–6 pre-litigation procedure 33, 47–9, 51–85 ‘second round’ see ‘second round’ proceedings 570 INDEX structure and format of proceedings 32–5 enforcement proceedings brought by 37–40 internal problems 92–3 liability for breach of environmental law 278–301, 302–3 attribution of liability 285 causation 286–7, 295–7 general legal criteria for proof of state liability 279–87 loss and damage 285–6, 297–301 rights intended to be conferred on individuals 282, 288–93 sufficiently serious breach of EC law 282–4, 293–5 limited discretion on vertical direct effect 237–47 responses to letter of formal notice (LFN) 74–5 see also national courts national courts access to justice 268–9, 301–2, 304–10 other instruments 321–9 proposed directive on 310–21 duties to provide remedies 271–5 procedural autonomy principle 269–71 negligence, civil liability 499–500 non-communication cases 41, 43 non-conformity cases 41, 43 non-contractual liability of EU institutions 365–8 non-transposition cases 40, 41, 46, 72, 187 evidence and onus of proof 53–4 Ombudsman see European Ombudsman package meetings 38, 40 penalties see sanctions petitions, to European Parliament 431–4 polluter pays principle 323, 492–3, 507 precision, as criterion for direct effect 221–3, 225–8 pre-letter of formal notice (pre-LFN) 33, 49 preliminary ruling procedure 368–70 pre-litigation procedure 33, 47–9, 51–85 Commission’s discretion in deciding to take legal action 59–69 collegiality and Commission decision making 59–69 Commission immunity from judicial review 59–69 delays in taking legal action and historical breaches 61–5 legal justification needed 60–1 duty of co-operation 57–9, 161–2 evidence and onus of proof 52–7 investigations 43, 57–9, 161–7 complainants as sources of information 165–7 investigatory and inspection tools 161–4 resources issues 164–5 letter of formal notice (LFN) 33, 36, 48, 49, 51, 70–5 defendant’s observations 74–5 Member State’s responses to 74–5 purpose and degree of precision 70–3 reasoned opinions (ROs) 33, 34, 48, 49, 51, 75–85 content 76–7 deadline for compliance 77–8 defendant’s observations 80–5 general requirements and effects of RO 76–80 subsequent amendments 79–80 taking into account Member State’s responses to LFN 78–9 preventive action 53–4, 503–4 prioritisation of cases 185–96 private persons see individuals procedural autonomy principle 269–71 proceedings (enforcement) access to information on 399–400 annulment proceedings 356–65 application to Court of Justice 85–9 contents of Court application 85–8 temporal aspects 88–9 brought by Commission 31–6, 159–61 accountability to complainants 199–202 application to Court of Justice 85–9 Commission’s discretion in deciding to take legal action 59–69 conflicts of interest 178–85 core elements 47–51 defence submissions 89–104 financial penalties 112, 113–15, 117–24, 132–7, 144–51, 152–5 571 INDEX proceedings (enforcement) (Cont.) brought by Commission (Cont.) ‘first round’ 31, 32–5, 45–6 interim relief 104–11, 172–3 pre-litigation procedure 33, 47–9, 51–85 prioritisation of cases 185–96 reform of monitoring process 185–96 ‘second round’ see ‘second round’ proceedings statistical information on 202–5 structure and format of proceedings 32–5 transparency of decision making 196–8 brought by individuals 209–13 annulment proceedings 356–65 non-contractual liability of EU institutions 365–8 preliminary ruling procedure 368–70 in respect of failure to act 353–5 brought by Member State 37–40 conflicts of interest 178–85 College of Commissioners 179–81 Directorate-General level 181–5 defence submissions 89–104 adequacy of implementation of EU environmental law 96–103 breach by another Member State 93–4 de minimis type arguments 94–6 element of fault 93 internal problems facing Member States 89–104 temporal arguments 103–4 European Parliament and 436 exclusion of Ombudsman from 419–20 interim relief 104–11, 172–3 limitations of legal structures 167–78 interim measures 172–3 legal sanctions 173–8 temporal aspects 167–73 litigation phase 85–9 contents of Court application 85–8 temporal aspects 88–9 preliminary ruling procedure 368–70 pre-litigation procedure 33, 47–9, 51–85 Commission’s discretion in deciding to take legal action 59–69 duty of co-operation 57–9, 161–2 evidence and onus of proof 52–7 investigations 43, 57–9, 161–7 letter of formal notice (LFN) 33, 36, 48, 49, 51, 70–5 reasoned opinions (ROs) 33, 34, 48, 49, 51, 75–85 prioritisation of cases 185–96 reform of monitoring process 185–96 in respect of failure to act 353–5 right to take environment proceedings 313–17 ‘second round’ proceedings 32, 34, 35–6, 112–13, 155–8 case law 124–44 criteria establishing liability 155–6 financial penalties 112, 113–15, 117–24, 132–7, 144–51, 152–5, 156–7, 175–8 general legal framework 113–17 temporal aspects 88–9, 167–73 application to Court of Justice 88–9 defence submissions 103–4 length of infringement proceedings 168–72 proof, onus of 52–4 public authorities, direct effect of directives against 234–47 general points 234–5 limited Member State discretion 237–47 vertical direct effects 235–47 public dissemination of environmental information 336–41 reasoned opinions (ROs) 33, 34, 48, 49, 51, 75–85 content 76–7 deadline for compliance 77–8 defendant’s observations 80–5 period for observations to be submitted 80–4 taking observations into account 84–5 general requirements and effects of RO 76–80 subsequent amendments 79–80 taking into account Member State’s responses to LFN 78–9 regulations 19, 20 remedial action 504–6 572 INDEX remedies 271–8 duties of national courts 271–5 duties of state authorities 275–8 reparation 298–9 see also sanctions reparation 298–9 reporting on implementation 164 on inspections 472–3 resources issues, investigations 164–5 sanctions 173–8 draft PECL directive 531–2 financial penalties 112, 113–15, 156–7, 174–8 case law 132–7, 144–51, 152–5 Commission guidance on 117–24 ‘second round’ proceedings 32, 34, 35–6, 112–13, 155–8 case law 124–44 determination of penalty payment 132–7, 144–51, 152–5 French Fishing Controls (2) case 151–5 Kouropitos (2) case 125–37 procedural and substantive issues 127–32, 139–44, 151–2 Spanish Bathing Waters (2) case 137–51 criteria establishing liability 155–6 financial penalties 112, 113–15, 156–7, 175–8 case law 132–7, 144–51, 152–5 Commission guidance on 117–24 general legal framework 113–17 site visits 162, 470–2 state liability for breach of environmental law 278–301, 302–3 attribution of liability 285 causation 286–7, 295–7 general legal criteria for proof of state liability 279–87 loss and damage 285–6, 297–301 rights intended to be conferred on individuals 282, 288–93 sufficiently serious breach of EC law 282–4, 293–5 subsidiarity principle 453–4, 476, 477, 523 temporal aspects of enforcement proceedings 88–9, 167–73 application to Court of Justice 88–9 defence submissions 103–4 transparency of decision making 196–8 unconditionality, as criterion for direct effect 223–4, 225–8 vertical direct effects 235–47 inverse 248–9 573