TAUC - underlying theory and method #3: ‘the legal discourse’: a European perspective

1. TAUC - underlying theory and method #3: ‘the legal discourse’: a European perspective Dr Simon Gardner Environment Agency for England & Wales

2. 79/923/EEC WQ models: bacteriological concentrations Habitats Directive phosphate/orthophosphate nitrate/DAIN/DAIP nutrient budgets 91/676/EC NO3 -based surface and Groundwater health protection and eutrophication models 91/271/EC WQ models: phosphate/orthophosphate nitrate/DAIN/DAIP nutrient budgets 2005/07/EC bacterial pollution incident prediction 2000/60/EC COMMPS procedure - Frauenhofer Institute Common Implementation Strategy (CIS) Ecological Quality Ratios (EQRs) - Predicting species assemblages Inter-calibration (JRC) River Basin Characterisation (RBC) - pressures and impacts

3. European Commission Infractions Interest - pre-Article 226warning letter of formal notice - Article 226 ‘Reasoned Opinion’letters - pre-Article 228(1)1,228(2)2 letters of formal notice - Article 228(1) 1, 228(2)2 ‘Reasoned Opinion’ letters - referal of unresolved cases to the European Court of Justice (ECJ) - the levying of daily fines in Euros In the interests of driving what it regards as full implementation of European Union legislation, the Commission typically exerts pressure ona Member State via eitherdirect legal pressure: 1Commission ECJ action (Article 226) leading to Article 228(1) judgment 2Second ECJ action: fine against non-compliance with 1st judgment (Article 228(2))

4. European Commission Infractions Interest Or indirect pressure: - prosecution of other Member States as an example - informal discussions - use ofnegative publicity - encouraging Member States to infract each other under Art. 227

5. European Commission Infractions Interest Common triggers for the initiation of infraction proceedings include: 1. Unacceptable time delays - to the transposition of Commission legislation into domestic law - to the identification of sites to be protected under the Directive in question - to remediation measures designed to reduce pollution in identified sites (NVZ Action Programmes; treatment additional to secondaRy at qualifying discharges) - to reporting on the environmental effects of implementation

6. European Commission Infractions Interest Common triggers for the initiation of infraction proceedings: 2. Incomplete or incorrect transposition - via inappropriate legal means (ex. Circulars) - via too restrictive a site identification policy (ex. flawed interpretation of an Article within a Directive) - as a result of inadequate or insufficient remediation measures employed at identified sites (ex. an assessment of which qualifying discharges are deemed to impact on a Sensitive Area) Potential modeling link

7. European Commission Infractions Interest Imprecise and vague wording are intrinsic to the drafting of EC legislation - however, the benefits of subsidiarity often fall in the Commission’s favour Subsidiarity - a double edged sword The subsidiarity principle pursues two opposing aims: On the one hand, it seeks to uphold the authority of the Member States in those areas that cannot be dealt with more effectively by Community action. On the other, it allows the Community to act if a problem cannot be adequately settled by the Member States acting on their own.

8. European Commission Infractions Interest Non-conformity Environment Cases (by Member State, December 2002)

9. European Commission Infractions Interest There is an extensive history of infraction cases against EU Member States, and the UK is no exception. Recent domestic infraction cases have been drawn up on the basis of:

10. European Commission Infractions Interest Art. 228 Reasoned Opinion 2106/96 (91/676/EEC) “non-identification of Nitrate Vulnerable Zones in the United Kingdom” Reasoned Opinion 2265/98 (91/271/EEC) “non-identification of Sensitive Areas deemed to be eutrophic by the Commission (ongoing)” Art. 228 4756/96 (79/923/EEC) “failure to designate shellfish waters; to establish pollution control programmes; and to sample parameters correctly” Art. 226 Reasoned Opinion 4126/00 (78/659/EEC) “insufficient identification of salmonid and cyprinid stretches” Pre-Art. 228 (C-427/00) (76/160/EEC) “for continued non-compliance with the limit values set out in Article 3 of the Council Directive”

11. European Commission Infractions Interest A Directive may attract a sequence of legal challenges from the Commission, and the nature of the infraction often develops in parallel with the stage of implementation of a Directive

12. Case study: Timeline showing the implementation of the Nitrates Directive against Commission deadlines and the progress of the infraction case against the UK 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 Dec 91. Directive adopted by Council having been formally proposed 3 years earlier in Dec 1988 by Commission. Dec 03. Infraction chefs meet to decide on UK case. If they are not satisfied with the UK’s response the case will go back to the ECJ and if found guilty the UK will be fined. Oct 01. Infraction proceedings progressed to the next stage when the Commission sent a letter of formal notice under article 228. Oct 96. Infraction proceedings against the UK begin with an article 226 letter of formal notice from the Commission Dec 93. Directive should have been transposed into national law, NVZs should have been designated and codes of good practice established April 03. The Commission issues a reasoned opinion under article 228 which the UK responds to in May 03 detailing method and scope of new designations. June 98. Infraction progresses to second stage of article 226 - reasoned opinion. Dec 95. Action programmes within NVZs should have been established. Dec 00. After a hearing in the European Court of Justice (ECJ) it rules against the UK and orders them to comply. 28 months late July 91. Codes of agricultural good practice established – prior to adoption of Directive Dec 02. 2nd round of action programme measures in force 36 months late 29 months before Commission deadline Dec. 98. Action programme measures in place in NVZs. Oct 02. 2nd designation of NVZs in England – total NVZ area now 55% Commission deadlines. Department actions in italics. 62 months after infraction proceedings began April 96. 1st designation of NVZs in England – total NVZ area 8% Dec. 01. Consultation on 2nd round of NVZ consultation in response to infraction proceedings Dates relating to Commission infraction proceedings Time between deadline and date achieved

13. European Commission Infractions Interest In the decade between 1992-2002, the Commission registered 280 dossiers relating to presumed or ascertained violations of EC environmental legislation in the UK. These dossiers were open on the basis of: complaints petitions parliamentary questions, and Commission own-initiative investigations

14. European Commission Infractions Interest Air pollution - 12 Waste - 15 Nature - 13 Chemicals - 9 Water - 17 Environmental Impact Assessment - 10 GMOs - 3 Other Sectors of environmental legislation - 5 Infractions under Article 226 of the Treaty have been initiated in 84 of these 280 cases: On the 2nd of October 2003, 106 dossiers concerning presumed or confirmed breaches of EC environmental legislation in the UK remained open

15. European Commission Infractions Interest #3 The goalposts often move. What the Commission regards as “adequate” implementation has a tendency to become more exacting over time. #2 The more complex the legislation, the greater the chance of incorrectly implementing it (compare 76/160/EEC to 2000/60/EC) #1 History tells us that the UK has never implemented any significant piece of European Union environmental water quality legislation and escaped infraction pressure from the Commission The UK can reasonably expect to experience continued infractions pressure in the future, because of three basic facts...

16. European Commission Infractions Interest “Ever tried? Ever Failed? No matter. Try again. Fail again. Fail better.” Samuel Beckett

17. Some future challenges for the use of models in the EU - re-establishment of credibility (Arthur Petersen) - detailed argument received as disemblement or filler (only 5-10% of a document is commonly read - Jeroen van der Sluijs) - the precautionary principle: underlining quantitative certainty? (what is significant: 1%, 10%, 30%...) - clear usage, ie. for discrete and qualified deliberative problem solving - [despite political pressure for perfect knowledge] - to educate Government Ministry & Commission policy and legal staff - a form of ‘uncertainty communication’. Use of science/model translators; - to encourage the EC to develop guidance on the consideration of models (a difficult task given questions relating to subsidiarity and institutional goals); - involvement of policy-makers in model development

18. WHAT is the‘SKEP ERA-NET’? An Environment Agency led co-ordination initiative to bring together the key funders of national environmental research programmes to generate this knowledge in partnership and improve links with environmental protection and policies

19. SKEP participants 17 partners from 13 European countries funding environmental research to support environmental protection regulation and policy

20. SKEP Observers

21. Full integration – joined up national programmes, collaborating on issues of common concern using experience Implementation of joint research activities - for 2 thematic and/or ‘horizontal’ areas Identify gaps in research portfolios Development of joint activities– development of guidelines for good practice in programme management, research evaluation, dissemination and implementation Foster Joint Calls Identify overlaps in research activities Identification of common strategic issues– current and future research themes and ‘horizontal themes’, e.g. dissemination Systematic exchange of information– research plans and priorities, policy-makers’ needs, good management and dissemination practices Current fragmentation- separate national programmes, no consultation, duplication, missed opportunities for collaboration, sharing and developing innovation The aims of SKEP

22. WP 5: Plan and develop collaborative work areas (IEPA) WP 1: ERA-NET management and co-ordination (EA) WP 2:Exchange of research programme information (EA) WP 3:Best practice in research management (FiMoE, SYKE)* WP 4:Dissemination and implementation of research (SwEPA)* WP 6: Investigate emerging issues for future research planning (MEDD, ADEME) SKEP Work Packages

23. Year 1 Year 2 Year 3 Year 4 WP1 Co-ordination WP2 Develop data tool WP2 Collect data WP2 Portfolio analysis WP3 Survey of research best practice WP3 Workshop programme WP3 Reports and guidelines for research WP4 Survey current implementation practice WP4 Define implementation best practice WP5 Select area for joint activities WP5 Develop action plan WP5 Deliver joint activity WP5 Review joint activity WP6 Review horizon-scanning activities WP6 Recommenations for future research Implementation timetable June 2005 June 2009

24. Work Package 1 ‘Management and co-ordination’

25. Environment Agency Project Board Pierre Valette, DG-RTD Ingvar Andersson, EEA Irja Vounakis, DG-ENV Co-ordination Office 3-4 core staff (EA) Work Packages Experts as required (all participant organisations) Work Package Leaders Group (EA, FiMoE, SYKE, SwEPA, IEPA, MEDD, ADEME) annual meetings Pasky Pascual, USEPA Network Steering Committee Science/Research Directors (one /participant organisation) Savka Kucar Dragičević, NEPA; Croatian EPA 6 monthly meetings SKEP Advisory Board Advisory Board (Invited external experts) DG-ENV, DG-RTD, EEA, USEPA, NEPA Observer Institutions (Interested non-participants) SKEP administrative structures

26. http://cordis.europa.eu/coordination/projects.htm Research Areas and Policy links for ERA-NET Projects (Series I-III) with Relevance to the Environmental Sphere Environmental Policy Development SKEP (CA, 2005) ‘Scientific knowledge for environmental protection – network of funding agencies’ Field: Environmental science; environmental technology; policy development www.skep-era.net Sustainable Development/ Horizon Scanning Energy Water Resources/ Flood Defence Coastal and Marine research Contaminated Land Climate Change Agriculture and Food Safety Transport Genomics Biodiversity Environmental Research Other Environmentally-related ERA-NETs that fall under these research headings Nanosci-ERA (CA, 2005) ‘Nanoscience in the ERA’ Field: Nanoscience http://www.iemn.univ-lille1.fr/cnanono/nanosci-era.htm FENCO (CA, 2005) ‘Promotion of an integrated European and national R&D initiative for fossil energy technologies towards zero-emission power plant’ Field: Energy http://www.fenco-era.net/ IWRM (CA, 2006) ‘Towards a European-wide exchange network for improving dissemination of IWRM research outcomes’ Field: Integrated water reources management http://www.oieau.fr/eranet/ BIODIVERSA (CA, 2005) ‘Biodiversity research ERA-NET’ Field: Biodiversity www.biodiversa.net ERAPG (CA, 2003) ‘European research area plant genomics’ Field: Genomics www.erapg.org BONUS (CA, 2003) ‘BONUS for the Baltic Sea science network of funding agencies’ Field: Marine Science www.bonusportal.org CIRCLE (CA, 2005) ‘Climate impact research co-ordination within a larger Europe’ Field: The impact of and adaptation to climate change www.umweltbundesamt.at/umwelt/klima/projekta/circle/ PERIAPT (SSA, 2003) ‘Pan-European pro-active identification of emerging risks in the field of food production’ Field: Food production http://www.periapt.net/ ERA-NET TRANSPORT (CA, 2005) ‘ERA-NET Transport’ Field: Transport www.transport-era.net SNOWMAN (CA, 2003) ‘Sustainable management of soil and groundwater under the pressure of soil pollution and soil contamination’ Field: Soil and groundwater protection www.snowman-era.net MATERA (CA, 2005) ‘ERA-NET materials’ Field: Materials Science www.matera.fi MARINERA (CA, 2004) ‘Co-ordination of national and regional marine RTD programmes in Europe’ Field: Marine science and technology www.marinera.net SAFEFOODERA (CA, 2004) ‘Food safety – forming a European platform for protecting consumers against health risks’ Field: Food safety www.safefoodera.net ERA-SAGE (CA, 2005) ‘ERA on societal aspects of genomics’ Field: Ethical, legal and social aspects of genomics www.erasage.org ERA-NET ROAD (CA, 2005) ‘Co-ordination and implementation of road research in Europe’ Field: Road Research www.road-era.net INNER (CA, 2005) ‘Innovative energy research’ Field: Energy www.inner-era.net EUWI ERA-NET (SSA, 2005) ‘Co-ordination of Member State research programmes in water science and technology for the developing world’ Field: Co-ordination of national and regional activities www.euwi-era.net www.euwi.net EUROPOLAR (CA, 2005) ‘The European Polar Consortium’ Field: Polar research www.europolar.org VISION (CA, 2005) ‘Shared knowledge base for sustainable innovation policies’ Field: Innovation policy www.visioneranet.org AMPERA (CA, 2005) ‘European concerted action to foster prevention and best response to accidental marine pollution’ Field: Marine Pollution www.ampera.net CORE Organic (CA, 2004) ‘Co-ordination of European trans-national research in organic food and farming’ Field: Organic food and farming www.coreorganic.org ERA-NET BIOENERGY (CA, 2004) ‘ERA-NET Bioenergy’ Field: Renewable energy sources www.eranetbioenergy.net CRUE (CA, 2004) ‘Co-ordination of the research financed in the European Union on flood management’ Field: Flood management www.crue-eranet.net MNT (CA, 2003; 2005) ‘From micro- and nano-scale science to new technologies for Europe’ Field: Nanotechnology, micro-systems, micro-technology www.mnt-era.net COASTAL-ERA (SSA, 2005) ‘Co-ordination of the research financed in the European Union on flood management’ Field: Marine water quality/food standards www.coastal-era.net PV ERA-NET (CA, 2004) ‘Networking and integration of national and regional programmes in the field of photovoltaic (PV) solar energy research and technological development in the ERA’ Field: Renewable energy sources www.pv-era.net ERA-ARD (CA, 2005) ‘The agricultural research for development dimension of the ERA’ Field: Agriculture www.era-ard.org FORSOCIETY (CA, 2004) ‘Laying the foundations for an ERA-NET on foresight and society’ Field: Forsight, Science and Society http://www.eranet-forsociety.net/ HY-CO (CA, 2004) ‘CA to establish a hydrogen and fuel cell ERA-NET, Hydrogen-Co-ordination’ Field: Alternative energy www.hy-co-era.net ERA-BUILD (CA, 2004) ‘Strategic co-operation between national programmes promoting sustainable construction and operation of buildings’ Field: Building construction and operation www.erabuild.net ACENET ERA-NET (CA, 2004) ‘ERA-NET for applied catalysis in Europe’ Field: Applied catalysis and sustainable chemistry www.acenet.net EraSME (CA, 2004) ‘ERA-NET on national and regional programmes to promote innovation, networking and co-operation between SMEs and research organisations’ Field: Innovation by SMEs www.era-sme.net WORK-IN (CA, 2004) ‘Labour and innovation: Work-oriented innovations – a key to better employment, cohesion and competitiveness in a knowledge-intensive society’ Field: Innovation in work organisation www.workinnet.org SUSPRISE (CA, 2003) ‘Networking, co-ordination, co-operation and integration of national RTD programmes in the field of the sustainable enterprise’ Field: Sustainable industrial development www.susprise.net WOODWISDOM (CA, 2003) ‘Networking and integration of national programmes in the area of wood material science and engineering’ Field: Wood material science www.woodwisdom.net Key Denotes a Co-ordinated Action Denotes a Specific Support Action

27. Work Package 2 - ‘Exchange of research programme information’ WP2 is dedicated towards developing an understanding of the overall portfolio of research being funded by the SKEP participants, the identification of research themes, gaps and the consequent identification of opportunities for joint research activities. WP2 outputs: A consolidated database of research activities (June 2006), and a strategic assessment of environmental research activities across Europe (June 2007 ) will be used: As a screening tool for Science Departments to: - prevent unnecessary expenditure on parallel projects - promote collaborative working on projects of joint concern to extend their science budgets - disseminate their science more effectively

28. Work Package 2: ‘Exchange of research programme information’ Milestones and expected results M.2.1 (6 months) Workshop to review existing systems and finalise specifications for information tool and analysis M.2.2 (12 months) Information tool available on a live web site (D2.1) M2.3 (24 months) Portfolio analysis completed - including the identification of areas for information-sharing and collaboration to feed into other Work Packages (D2.2)  

29. The SKEP project website

30. The SKEP research database

32. Launched: 30th June 2006 http://www.skep-era.net/site/81.asp

33. Graphical searches

35. Text searches

36. Identifying gaps and overlaps on activities via Heat maps Theme maps of research expertise Topic maps to link environmental research Knowledge management tools to support SKEP WP2: Phase 2

39. Early June 2007 - 3 day workshop to condider the draft portfolio analysis of exchanged research information Network Steering Committee decide which research areas for future collaboration will be developed in WP5. End June 2006 - Launch of Knowledge Management tool on project website Early 2007 - Preparation of a strategic analysis of quality-assured data. The analysis will look at: End June 2007 - Overview report of participants’ research to identify duplication, gaps and priority topics including suggestions for information-sharing and collaboration in areas where participants have, are or are planning to carry out similar research. - What tools are necessary to maintain co-operation? - How will National Research Directors make use of this knowledge to improve funding efficiency and thematic focus of programmes? - What are the drivers and pressures of the programmes and how they have to be managed in order to facilitate co-operation? - What are the thematic issues of the research programmes where are the gaps? - What is the timing and life cycle of research programming for each organisation? Timeline for the exchange of research data Part II: Undertaking a strategic assessment of exchanged data

40. SciMIS Potential avenues (external) for future development of the SKEP database of environmental research funding SKEP database

41. Work Package 3 ‘Best practice in research programme management’ Stage 1: A study on programme management across European countries will be undertaken. A questionnaire for participants will be developed which will investigate their programme project cycles and specific issues of good practice and concerns that they would like to investigate. ‘In-situ’ and telephone interviews will be made of 15-20 key programme management staff in participant countries. A 2-day workshop in Finland will explore good practices on programme management identified from the questionnaire. Key topics will be to identify common good practices on: • planning procedures and general programme management • mechanisms for research programme development (e.g. how to identify policy needs and ensure policy implementation of results) • leading successfully projects • peer review facilities Progress to date:   

42. Work Package 3 ‘Best practice in research programme management’ Stage 2: This task will explore research evaluation schemes including: • proposal evaluation • project evaluation • overall programme evaluation The questionnaire developed in Stage1 will have already collected some of the initial information for this task. Based on the results of the questionnaire, phone interviews will be made to key programme management staff in participant countries. Further issues to be investigated are how, when, and should who carry out evaluation schemes. Also whether the objectives of the project/programmes were achieved? The exact design of a workshop will be defined after the interview phase. This task will be completed by a 2-day workshop.

43. Stakeholders evaluating project proposals in programmes with criteria for scientific quality and/or policy effectiveness Methods used to assess project proposals - In-house experts in the funding organisation assessing project proposals and/or deciding on the funded projects; - External national and/or international experts assessing project proposals and/or deciding on the funded projects; - A programme steering group deciding on the funded projects; - Thematic evaluation teams (3-10 people) that quantitatively and/or qualitatively assess how each of the proposals meet the set criteria; - A combination of a management committee and thematic sub-committees of external experts;

44. Expertise in reviewing project funding proposals Recommendations for best practice for evaluating project proposals 1. An open two-step process for inviting project proposals can be used in larger research funding programmes. The intent of applications in the first round is to highlight what is being done in the research field, and enable inviting the more promising projects to submit a full research plan. 2. Clearly defined criteria, that are linked to the objectives of the Programme, and that are followed strictly and transparently in evaluating the project proposals reduce problems during the Programme. 3. Scientific quality is the most important criterion. It should, however, be balanced with other important criteria: policy relevance, collaboration, innovativeness. 4. In addition other useful criteria can be used, such as those related to societal benefits or to dissemination of results. 5. A panel or a group of people should be used in evaluating project proposals to take into account the "big picture" and make the evaluation more democratic.

45. Compilation of the programme board in programmes with selected project funding criteria i. Recommendations for best practice in programme management structure 4. Using a programme board whose members are motivated and somehow reflect the aims of the programme is also recommended. A programme board can consist of a variety of members including funding agencies, scientific experts, and the end-users of results, e.g. from public administration, businesses and NGOs. 5. A separate steering committee can be used for following up and advising the programme or individual projects. In this case ensuring the commitment of the members of the committee is important.

46. Work Package 4 ‘Best practice in research programme management’ This work package is about comparing procedures and tools for assuring the best communication and use of research results. Stage 1: Current dissemination and implementation activities A questionnaire will be used to gather information from policy makers and programme managers. A consultant will carry out a mapping exercise of how the process of implementation of research results is undertaken in all the participant organisations. The above questionnaire and the consultant investigation will be presented at a 3-day workshop with 15-20 policy makers and programme managers recruited from the different funding organisations and the research community. Stage 2: International Conference An effort will be made to present the results of WP4 at an international conference like the "Bridging the Gap" conferences or other meetings such as Science Meets Policy initiatives. Progress to date:

47. The case studies and survey will constitute the heart of the study. They will explore the following five areas: • 1. The planning and management of research projects and programmes: in particular, the ways in which potential end-users of the research are involved in planning, project selection, project and programme management, and potentially the co-production of knowledge. • 2. The communication of results: the routes and mechanisms for bringing the research results to the attention of users. • 3. The roles of interpreters and intermediaries in making results available to users in a form which is useful. • 4. Engagement with stakeholders: how to ensurethat information is made available to stakeholders in a form which meets their information needs, enables them to play an effective role in the decision-making process, and that processes are transparent and build trust. • 5. The evaluation of processes of dissemination and utilisation.

48. European recommendations for best practice WP3: A report on best practice in the management of environmental research programmes (June 2006 ) and guidelines on common evaluation procedures (June 2007 ) will be used to: WP4: A report on current activities in the dissemination and implementation of science for environmental policy makers of environmental research programmes (June 2007 ) and guidelines on best practice (June 2008 ) will be used to: - to guide the management of future Science programmes; - to increase the impact of our Science by learning from European best practice; - to influence the development of guidance for evidence-based policy; - to influence the wider debate on Science governance within other initiatives in the domestic and international (‘Science meets Policy’) arena; www.SciencemeetsPolicy.eu

49. Work Package 5 ‘Plan and develop collaborative work areas’ This work package will deliver two co-ordinated actions to explore the feasibility of conducting joint calls and to provide a framework for future collaborative activities by environmental research funders. A small-scale pilot joint call for proposals will be launched in month 24 using information collected in other SKEP work packages. A review of this pilot call will be conducted to examine the barriers and solutions for collaboration and to inform the development of a full-scale joint call for proposals involving the members of the SKEP network. Thematic areas of strategic and trans-national relevance will be identified and developed for this joint call through further outputs of WP2, WP3 and focus on WP4 and WP6 to include: • WP6: Emerging themes (e.g. Environmental applications of nanotechnology) or orphan themes – area of high importance for policy makers, but where there may only be limited national research capability (e.g. research at the interface between social, environment and the economy, environmental & social justice); • WP 4: Horizontal activities (e.g. Strategy for effective communication of research, promotion of evidence-based approach to policy making) Progress to date:

50. WP5: The creation of a lasting framework for engaging in collaborative research (Test joint call: December 2007 ; Main joint call: June 2008 ) will be used to: - to pool scientific expertise across the EU in order to produce effective, well-disseminated research to European policy-makers; - to extend the effectiveness of Science budgets - to foster partnerships activities and share expertise;