Organ, body, authority

Prof. Gyula Bándi

A reference to the competent organ or body, particularly to the competent authority, are part of legal regulation in environmental norms.

The concrete setting is the obligation of the Member States.

There are only two requirements: there shall be a competent body/organ/authority responsible for the

implementation, there are general requirements related to the implementation

The Guide to the approximation in the middle of 90s: “There shall be at least one national level authority that is

responsible for the realisation of EU law ... The competences can be divided among several institutions of the same level or of different level.”

Major requirement is the effective implementation!!!

Case C‑60/05: „40. Accordingly, where the application of Article 9(1)(c) of the Directive is delegated to entities within a State, the applicable legislative and regulatory framework must ensure that the amount of hunting of birds which may be authorised by those entities remains, for the entire national territory, within the limit of ‘small numbers’ imposed by that provision.

Local governments - Case 380/87, Cinisello Balsamo

Case C-417/99 - based on the following more detailed aspects: 28. It is clear from the foregoing that the obligation to designate provided for in the

first paragraph of Article 3 of Directive 96/62 falls within that first stage of transposition.

30. In contrast, the obligation to designate, which constitutes a preliminary step in implementing the general objectives of the directive, is of a purely general nature. Fulfilment of it does not depend on an uncertain future event such as the setting of limit values and alert thresholds. …

38. In that regard, a directive must be transposed into national law by provisions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascertain their rights and obligations (see in particular to that effect Case C-221/94 Commission v Luxembourg [1996] ECR I-5669, paragraph 22).”

C‑494/01 – effective implementation

C‑248/05 - “74. It notes, in addition, that in all counties the number of licences for discharge of effluents to groundwater is very low in relation to the circumstances in which the Directive is applicable, which makes clear how the latter is misinterpreted.”

C‑135/05 - improper administrative practice: „21. Next, it is settled case-law that an administrative practice can be made the object of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (see, in particular, Commission v Ireland, [reference above – Case No C‑494/01, editor’s note] paragraph 28 and the case-law cited).28. It is accepted that an administrative practice can be the subject-matter of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (see, in particular, Case C-387/99 Commission v Germany [2004] ECR I-3773, paragraph 42, and the case-law cited).”

C-486/04 - Aministrative practice:„57. From these provisions it follows that, first, the competent authorities need to adopt general rules for each individual type of activity, defining the types and amounts of waste, as well as the necessary conditions needed to relieve the activity from licencing. Second, the waste types or quantities and the utilization method need to be such as not to endanger human health, shall not contain procedures or methods that endanger the environment, shall not contain a risk to the water, the air, the soil, the fauna and the flora, shall not cause unpleasant noise or smell and shall not influence the landscape or places of special interest to their detriment.”

C-227/01 – objective conditions (EIA case)„58. Otherwise, the circumstance that the Spanish authorities acted in good faith does not bear any significance either. In accordance with the settled case-law, it is for the Court to decide whether or not the Member State in question has failed to fulfil its obligations as alleged. The fact that a failure to fulfil obligations results from a Member State' s incorrect interpretation of the Community-law provisions in question cannot preclude the Court from declaring that there has been such a failure. (see paragrapgh 19 of the Court decision C‑73/92: Commission v. Spain of 17 November 1993[ECR 1993., pp. I‑5597).”

C‑304/05 - nature conservation and the result:„58. The Court has, however, held that that assessment must be organised in such a manner that the competent national authorities can be certain that a plan or project will not have adverse effects on the integrity of the site concerned, given that, where doubt remains as to the absence of such effects, the competent authority will have to refuse authorisation (see, to that effect, Waddenzee, paragraphs 56 and 57, and Castro Verde, paragraph 20).”

C‑508/03 - Investment and environmental impact assessment „88. Although in those circumstances Article 4(2) of Directive 85/337 gives the competent authority a degree of freedom in appraising whether or not a particular project must be made subject to an assessment, it is, however, clear from settled case-law that the limits of that discretion are to be found in the obligation, set out in Article 2(1) of the directive, that all projects which are likely to have significant effects on the environment are to be subject to an assessment (see, to that effect, Case C-435/97 WWF and Others [1999] ECR I-5613, paragraphs 44 and 45; Case C-87/02 Commission v Italy, paragraphs 43 and 44; and Case C‑83/03 Commission v Italy [2005] ECR I-4747, paragraph 19).”

C-435/97 - Other means and methods „59. Consequently, in order for a legislative act to display the same characteristics as development consent, as defined by Article 1 of the Directive, the act must lay down the project in detail, that is to say in a sufficiently precise and definitive manner so as to include, like development consent, following their consideration by the legislature, all the elements of the project relevant to the environmental impact assessment.”

C-192/96 - the scope of the authorities’ competence „54. Thus, in order to take account of the objective of environmental protection underlying the Regulation, the competent authorities must, as a general rule and as a minimum, be able to require, in relation to 'green waste‘ intended for recovery and not subject to notification, the information mentioned in Article 11 of the Regulation.”

Some conclusions: The achievement of environmental goals, and, in

many cases, the achievement of clearly definable results is a fundamental obligation.

Therefore, there is a need for an administrative, organisational system that is capable of implementing this.

All this can be and should be approached from the point of view of citizens’ legal protection and legal certainty.

General administrative procedure issues, such as, e.g. burden of proof or unambiguous, transparent and well-founded decision making.