How to interpret EU environmental legislation
All legislation contains standard structures and terms which need to be taken into account if it is to be understood and interpreted correctly. Some of these features are formal (e.g. they allow legislation to be identified) and some are substantive and affect the interpretation of the legislation. However, the structure of all EU legislation contain the same elements:
- Substantive provisions
- Date of commencement
The title of the legislation has several elements. It indicates the institution that adopted the measure (the Council and the Parliament, by co-decision, or the Council or the Commission ,as the case may be) and the type of the measure (Regulation, Directive or Decision). It gives the measure a reference number, made up of three elements - the year, the sequential number, and the Treaty under which the measure was adopted (in the case of environmental legislation, this will usually be the EC Treaty). The title also identifies the measure by the date on which it was adopted and by a short description of the subject matter of the measure. (In practice, measures are usually identified by their reference number and the page reference of the Official Journal of the European Union in which they are published.)
The measure will then state the legal basis for its adoption, and the procedures that were used. This is because it is a principle of EU law that institutions can only act within the powers conferred by the Treaty and after observing the correct procedural requirements. Most environmental legislation is adopted using specific powers given by Article 130s, but older legislation, and current legislation which is considered to concern the conditions of trade between the Member States primarily and environmental matters only incidentally, will be based on Article 100 or 100a instead.
After the statement of the powers relied on (which, in the English language version start with the words 'Having regard to ...') come a number of Recitals (which, in the English text start with the word 'Whereas ...'). These Recitals explain the background to the legislation and the aims and objectives of the legislation. They are, therefore, important to an understanding of the legislation which follows.
The number of Recitals depends on the complexity and length of the legislation in question. However, it should be noted that the style of drafting is to make the entirety of this opening section (i.e. the statement of the powers and the Recitals) into one long sentence. This can add to the difficulty of understanding the text, although each Recital is intended to deal with a separate topic.
1.4 Substantive provisions
The substantive provisions are divided into Articles. Usually the opening provisions define terms used in the legislation, and deal with general obligations and definitions.
It is important that national legislation implementing a directive use the same definitions as in the directive. These will keep their specifically European Union meaning after having been incorporated into national law, and national implications of the use of the same terms are not allowed to affect the application of the EU term.
Later Articles deal with specific provisions, and these may be divided into parts to make it easier to follow the meaning of the text. In particular, technical matters (e.g. scientific lists, categories of plants and animals, and lists of values) may be dealt with separately, in Annexes, to make it easier to follow the text.
It is usually the case, whatever form of legislation is used (i.e. Regulation, Directive or Decision) to leave the establishment of the necessary administrative provisions and provisions concerning enforcement and penalties to the Member States to decide in accordance with their national law. In other words the relevant provision in the EU legislation may state simply that Member States must take the necessary measures to ensure compliance with the requirements of the EU legislation, without specifying what those measures must be.
In the case of a directive, the measure will end with an Article requiring the Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by a specified date known as the date of transposition. This Article will usually require the Member States to notify the Commission of the steps taken to implement the directive. Other deadlines for specific actions such as reducing pollution from existing industrial plants or meeting environmental quality standards may be set separately in the articles dealing with those actions. They are known as 'implementation dates'.
1.6 The issue of legislation in multiple languages
One of the difficulties with legislation in the European Union is the fact that it has to operate in 11 official languages (because all the Member States are entitled to receive documents, especially legislation, in their own language).
The Court of Justice has consistently held that individual provisions should be interpreted to achieve the declared aims of the legislation as a whole, and that narrow, literal interpretations should be disregarded if they would conflict with that aim. Thus EU legislation should be read having regard to the context in which the legislation appears, not as an isolated text.