Legal instruments of secondary
environmental legislation –
planning and policy making
Prof. Gyula Bándi
Major instruments of EU environmental law 1
1. Explanatory instruments
 Preamble and objectives
 Scope and definitions
 Principles
2. General requirements related to planning,
policy-making
 strategies and policies,
 plans and/or programmes, as well as
 codes of conduct/behaviour
Major instruments of EU environmental law 2
3. Administrative procedures and instruments
 notification,
 registration,
 classification,
 authorisation,
 product classification,
 prohibitions, obligations,
 control, monitoring,
 voluntary instruments,
 economic instruments,
 public participation
 procedural
issues
Major instruments of EU environmental law 2
4. Contextual issues, environmental substance
 standards (best known are limit values)
 technological and similar general requirements.
 information,
 Labelling
5. Designation of a competent organ or authority
6. Liability, responsibility
Planning, policy making
Four fundamental elements :
 planning assumes an assessment of the
state of environment,
 adequate objectives need to be set,
 implementing instruments have to be
rendered to this, and
 one should monitor the implementation
Example: water framework directive
EU water policy (EU Water Framework Directive 2000/60 (October 23, 2000).
The directive’s general objective is the development of the water protection policy,
achivement of greater sustainability and greater integration, as well as laying the
foundation of the coherence of legal regulation.
The water policy directive embraces the entirety of the realization of the objectives in the
catchment area (river basin) management plan. The programmes are drawn up in the
interest of the following environmental objectives:

to prevent the deterioration of the ecological quality of waters and their pollution, and
ensure the restoring of polluted surface waters in the interest of achieving good
quality surface waters within the time determined in the plan;

to prevent the deterioration of underground waters, clean polluted underground
waters, and ensure a balance between the abstraction and return of underground
waters in the interest of achieving good quality underground water within the time
determined in the plan;

to establish protected territories where all limit values and requirements have to be
observed in the given time;

to eliminate the pollution caused by certain polluting substances, as well as

to ensure conformity with all community regulations related to territorial and sea
waters, taking all measures prescribed by international law in order to prevent,
reduce, and control the pollution of the sea environment from any source using the
best practice instruments.
Example: industrial accidents
Significant accident risks connected to dangerous industrial activities,
(Directive 96/82/EC) - planning obligation on the user of the
environment, such as the preparation of an internal emergency plan.
The goals of the emergency plan are:
 a possibility to control the occurrence of events, which reduces their
impact and harms done to humans, the environment and property;
 use of measures that serve the protection against impact from
significant accidents on humans and the environment;
 ensuring appropriate flow of information necessary to inform the
population and the public administration;
 ensuring restoration and cleaning of the environment following a
significant accident.
Requirements
Plans and programmes are obligatory and shall be specific to the legal
requirements
C- 26/04, Commission vs. Kingdom of Spain,
 “26
The Kingdom of Spain maintains, in the alternative, that it has
adopted an overall programme to reduce pollution in the Ría de Vigo and
that a programme of gradual pollution reduction measures has been drawn
up. Consequently, the Spanish authorities have acted in accordance with
Article 5 of Directive 79/923.
 29
Since the pollution reduction programmes referred to by the Kingdom
of Spain in its defence are not specific programmes in order to reduce the
pollution of shellfish waters, the alleged failure is established.
C- 207/97, Commission vs. Belgium
 39. On that point it should be noted that, according to established case-law,
the programmes to be established under Article 7 of the Directive must be
specific. Thus, the objective of reducing pollution pursued by general
purification programmes does not necessarily correspond to the more
specific objective of the Directive (Joined Cases C-232/95 and C-233/95
Commission v Greece [1998] ECR I-3343, paragraph 35).”
C- 282/02, Commission vs. Ireland

„68 As a preliminary point, it should be noted that, as the Court has already ruled on
numerous occasions, it follows inter alia from Article 7(2) of the Directive that
authorisations must contain emission standards which are applicable to authorised
individual discharges and which have been calculated in accordance with the quality
objectives previously laid down in a programme established pursuant to Article 7(1) to
protect the expanses of water and watercourses in question … Because of the
absence of a coherent and general system of quality objectives, the other elements of
a programme (authorisations and emission standards based on the objectives)
cannot be defined in such a way as to comply with the requirements of the Directive.”
C- 130/01, Commission vs. Republic of France

59. It is also settled case-law that the programmes in question must specifically form
a comprehensive and coherent approach, covering the entire national territory and
providing practical and coordinated arrangements for the reduction of pollution
caused by any of the substances in List II which are relevant in the particular context
of each Member State, in accordance with the quality objectives fixed by those
programmes for receiving waters

60. Consequently, neither general rules nor ad hoc measures adopted by a Member
State which, though comprising a wide range of standards aimed at protecting waters,
do not lay down quality objectives relating to a given watercourse or body of water
can be deemed to constitute a programme within the meaning of Article 7 of Directive
76/464 (Commission v Germany, paragraph 58).
C- 6/04, Commission of the European Community vs. United Kingdom
 „44
As to those submissions, Article 6(3) of the Habitats Directive
provides that any plan or project not directly connected with or
necessary to the management of a site but likely to have a
significant effect thereon, either individually or in combination with
other plans or projects, must be subject to appropriate assessment
of its implications for the site in view of the site’s conservation
objectives.
 45
In the present case, it is not disputed that, at the end of the
period laid down in the reasoned opinion, no legal provision
expressly required water abstraction plans and projects to be
subject to such an assessment. …
 47
… Consequently, in merely defining potentially damaging
operations for each site concerned, the risk is run that certain
projects which on the basis of their specific characteristics are likely
to have an effect on the site are not covered.”
Case N.C- 184/97, Commission vs. Germany
Possible alternative solutions? The Ccommunity law obligations, in fact, equally contain the desired
results, the intent of achieving an appropriate state of the quality of water, and also the realization
of the legal instrument at issue. (water quality)

„42. In view of the need to draw up programmes and quality objectives as established at
paragraphs 27 to 36 of this directive, the fact that the result sought by the directive may be
attained by an improvement in water quality does not dispense the German Government from its
obligation to adopt the measures provided for in Article 7 of the directive. …

48. The German Government contends that the actual transposition of Article 7 of the directive is
secured by the German legislation. In its view, the WHG satisfies the requirements of that article
because it constitutes in essence a programme within the meaning of the first paragraph of that
article. In order to determine whether the WHG satisfies the requirements of the directive as
regards programmes, it is necessary to have regard to their legal nature, their content, their
binding force and the period for their implementation. …

54. As regards this last plea, neither the WHG nor the other measures adopted by the German
Government can be deemed to constitute correct implementation of the directive, which requires,
as stated in paragraph 28 hereof, the adoption of programmes including the quality objectives laid
down therein. …

58. Consequently, neither general rules nor ad hoc measures adopted by a Member State which,
though comprising a wide range of water-protection standards, none the less do not lay down
quality objectives relating to a given watercourse or area of water cannot be deemed to constitute
a programme within the meaning of Article 7 of the directive.

59. As to the German Government's argument that so long as there is no water pollution there is
no requirement for quality objectives to be laid down, it should be remembered that the purpose of
the programmes referred to in the first paragraph of Article 7 of the directive is to reduce water
pollution. …

60. As the Advocate General points out at paragraph 76 of his Opinion, any discharge of one of
the substances at issue will inevitably lead, sooner or later, to pollution of the aquatic environment
affected by it.”
C- 396/01, Commission vs. Ireland
 62 First, as regards the powers granted to local authorities to carry
out surveys on farms in order to pinpoint sources of pollution and to
compel farmers to prepare nutrient management plans, suffice it to
note that, by definition, such surveys cannot be considered to be
action programmes within the meaning of Article 5 of the Directive.
 63 Next, as regards the information booklet on good agricultural
practice and the Rural Environment Protection Scheme, suffice it to
note that, according to statements by the Commission, which are not
disputed by Ireland, they do not comprise mandatory measures as
required by Article 5 of the Directive.
 64 Finally, … the bye-laws of Counties Cavan, Westmeath and
Tipperary do not apply to all farmers in a given zone. In any event, it
is common ground that those bye-laws do not cover all the zones
which should have been designated as vulnerable zones pursuant
to Article 3 of the Directive.
C-53/02 and C-217/02, preliminary ruling Commune de Braine-le-Château and
others
 Plans must have consequences, must be specific
 „35 In those circumstances, the answer to the first question must be that
Article 7 of the Directive must be interpreted to mean that the management
plan or plans which the competent authorities of the Member States are
required to draw up under that provision must include either a geographical
map specifying the exact location of waste disposal sites or location criteria
which are sufficiently precise to enable the competent authority responsible
for issuing a permit under Article 9 of the Directive to determine whether the
site or installation in question falls within the management framework
provided for by the plan.”
The absense of a plan cannot be an obstacle for the licencing procedure,
 „46 In the light of the foregoing considerations, the answer to the second
question must be that Articles 4, 5 and 7 of the Directive, read in conjunction
with Article 9 thereof, must be interpreted as not precluding a Member State
which has not adopted, within the period prescribed, one or more waste
management plans relating to suitable sites or installations for waste
disposal from issuing individual permits to operate such sites and
installations.”
C- 292/99, Commission vs. France
 44. … Chief among those objectives is the protection of public health and
the environment, which is the essence of Community legislation relating to
waste. That is the reason why, according to the case-law, a failure to fulfil
the obligation to draw up waste management plans must be regarded as
serious, even if the failure relates to only a very small part of a Member
State's territory, such as a single department (see, to that effect,
Commission v Greece, cited above, paragraphs 94 or 95), or a single area
within a valley (see, to that effect, Case C-365/97 Commission v Italy [1999]
ECR I-7773, paragraph 69).
 45. In light of those considerations, it must be held that, … in view of the
importance of those plans for attaining the directive's objectives and the fact
that the obligation in question was introduced in 1975, the accumulated
delays of the French Republic, in this case, cannot in any way be regarded
as reasonable. Indeed, when the time-limit laid down in the reasoned
opinion expired, that is to say on 5 October 1998, more than seven years
had elapsed since publication in the Official Journal of the European
Communities of Directive 91/156 and almost seven since publication therein
of Directive 91/689.”