Poland: Workshop Papers

Approximation of Polish Environmental Law to European Union (EU) Legislation

Dr. Stanislaw Wajda, PHARE Legal Adviser, Ministry of Environmental Protection, Natural Resources and Forestry

Introductory Remarks

The Approximation Infrastructure

The Office for European Integration and Foreign Assistance annually prepares a so-called 'Schedule of Actions Adjusting the Polish Economy and Legal System to the Requirements of the Europe Agreement'. This has been approved by the Polish Council of Ministers and is subject to review by Parliament. The Schedule aims to define the tasks and responsibilities of the ministries and central offices involved in the process of European integration as defined by the Europe Agreement. It specifies the major institutions implementing specific tasks and deadlines for the completion of various relevant projects. The Schedule includes a section by the Ministry of Environmental Protection, Natural Resources and Forestry (MEPNRF).

In 1994 the Department of Environmental Policy was established as a result of the reorganization of the MEPNRF. Its main tasks were to develop short and long-term policies toward the fulfillment of the environmental obligations stipulated in the Europe Agreement. At the same time the Office for Implementation of International Obligations and European Integration was also established within this Department.

The following measures have been taken by the MEPNRF in developing a strong basis for the approximation process:

• A project has been launched to publish, in Polish, the nine-volume collection of EU legislation on environmental protection. This work, to be completed in 1996, will reflect the state of EU legislation up to the end of 1993. The first four volumes of this publication are already available. Publication of the work, containing also the 5th Environmental Action Programme (running from 1993-2000), will eliminate one of the obstacles to the integration process, namely, the language barrier. The removal of this barrier will ensure wide access to EU legislation for politicians, decision-makers, scientific and research centers, as well as business circles. This undertaking is funded by the PHARE Programme (Phase II).
• A project on the development of a methodology for the evaluation of environmental protection costs. Part of the project addresses the cost of harmonization and the implementation of EU legislation in Poland. Although the scope of the project is limited merely to a few Directives, with which Poland will have significant problems in practice, the MEPNRF will have at its disposal an instrument that should enable it to carry out similar assessments of other EU legal instruments. A general conclusion must be made at this point: without a thorough knowledge of the cost of harmonization and funding sources, it is difficult to draft in a responsible manner legal acts that are supposed to express time horizons for the attainment of environmental quality as defined in EU standards. This project, in the form of a PHARE (II) funded study, has, after many amendments recently been adopted by a special Steering Committee established for this purpose. One must add that the project appeared to be one of the most challenging and difficult endeavors undertaken in the field of harmonization.
• Another important project also funded by PHARE has already been completed. This dealt with the examination of law and practice in the EU and in a few Member States (Spain, Portugal, Holland and Germany), in terms of creating so-called adjustment programs for environmentally-unfriendly sectors of the economy to meet environmental protection requirements, and to transfer functioning EU solutions to Polish law and practice. A noteworthy feature of the measures undertaken is that while 'an opportunity for survival' is granted to environmentally-unfriendly economic entities, it is done so under certain well defined and enforced conditions. The conclusions of the report will be taken into account in Poland while preparing the draft framework law on environmental protection.
• Another project, still being implemented, is concerned with the enhancement of environmental management in Poland. This should result in a detailed critical analysis of the existing state of environmental management in Poland and will propose amendments in the form of a comprehensive set of goals, tasks, competencies, procedures and economic instruments. The proposed amendments, necessitated also by respective EU legislation, are expected to include the most rational division (allocation) of tasks and competencies between and within various administrative authorities.
• The 1994 Harmonisation Seminar held in Warsaw, organized in cooperation with DG XI, appeared to be a very important development in terms of practical understanding in the approximation and harmonization processes. The Seminar was attended by a great number of government officials involved in the approximation process.

Organization of the Approximation Process

• The first tier denotes mainly those approximation activities carried out under the 1994 Decision No. 16 of the Council of Ministers and the 1995 Decision No. 133 of the Council of Ministers.
• The second tier is now being developed and is expected to result in a draft 'Framework Act on the Environment' and in an 'Approximation Plan', i.e., a systematic and planned schedule for adjusting Polish environmental legislation to that of the EU's.

Pursuant to Decision No. 16, draft legal acts prepared by the members of the Council of Ministers, heads of central government offices and of other branches of central administration, as well as voivodes (heads of provinces), are subject to review for compliance with EU legislation.

The review procedure includes preliminary and final opinions. Both should consider the following issues:

• the scope of adjustment of a draft legal act to EU legislation
• draft provisions that are not in line with EU legislation
• an envisaged procedure and deadline for ultimate adjustment of provisions not in line with EU legislation or a proposal to temporarily retain discrepancies in this respect.

The preliminary opinion and final opinion should also discuss the likely financial, social, and economic effects of the draft legal act which may result from requirements related to the implementation of the Europe Agreement.

Since the promulgation of the 1994 Resolution of the Council of Ministers, some 35 draft legal acts from the MEPNRF have been subject to the procedure of preliminary opinion. Within the MEPNRF, the legal advisor to the PHARE Programme is responsible for giving such opinions.

Decision No. 133 of the Council of Ministers, adopted 14 November 1995, looks to implement the European Commission's White Paper which offers guidelines for the integration of the associated countries of Central and Eastern Europe into the internal market. In fulfillment of the Decision requirements, the various legal instruments listed in the White Paper have been allocated among the appropriate ministries and other central authorities. It is noteworthy that of the 60 or so legal instruments contained in Chapter 8, entitled Environment, only seven are given to fall within the sphere of the MEPNRF. In the case of the many other instruments mentioned, the MEPNRF functions as a 'cooperating Ministry'. Cross-sectorial cooperation is thus essential.

The Decision 133/95 requires that each of the ministries involved prepare a comprehensive program by the end of February 1996 for the implementation of those legal instruments it has been allocated. The MEPNRF is currently developing its comprehensive program as required by the Decision.

Outline of Compliance Status

• Principles and legal institutions. The basic Act, amended many times, is the 1980 Environmental Protection Act. On the level of basic principles, the law, surprisingly enough, reflects many of the principles contained in the Maastricht Treaty (Article 130r). There are, however, significant differences in the adopted concepts and their definitions. Many important concepts are not defined at all. The 1980 Act does not guarantee access to environmental information comparable to the access ensured by EU Council Directive 90/313/EEC. It provides for the limited participation of the public in various decision-making procedures. It is planned that the 1980 Act will be replaced by a framework law on the environment which will address this issue as well.
• Air. There are many substantial differences between Polish and EU legal regulations concerning pollution from stationary sources. One peculiar feature of the former is the unrealistic stringency of Polish air quality standards. This is one of the reasons that the standards are exceeded quite frequently in many polluted areas in Poland. Polish emission standards are expressed differently from those of the EU and as such are hardly comparable. The 'best available technology not entailing excessive costs' (BATNEEC) approach is virtually non-existent in Polish law. This compliance gap will be narrowed by an amendment to the 1980 Act which is now in Parliament. A better situation exists in legal regulations pertaining to air pollution from mobile sources. The recently issued Executive Ordinance on permissible levels of air emissions from diesel engines, in both qualitative and quantitative terms, is in compliance with the appropriate Directives.
• Water. Almost one year ago a draft 'Water Law' was sent to Parliament by the Council of Ministers. There was a lively debate between the MEPNRF and the Government Plenipotentiary for European Integration on the extent of compliance of the draft Law with the respective provisions of EU legislation on the protection of water against pollution. Many of the questions therein raised will be responded to once the executive acts are submitted for preliminary and final opinions. However, due to dynamic changes in the EU's 'water' legislation, it will be unavoidable to reformulate some provisions of the draft Water Law.
• Waste. The present Polish regulation on waste management is insufficient and is not in compliance with EU legislation. However, this situation may soon change, if the draft 'Waste Law' is adopted by Parliament. According to the preliminary opinion, the draft law properly reflects the 1989 Community Waste Management Strategy, the 5th Environmental Action Programme, and generally complies with the principles of the Framework Directive 75/442 'on waste'. However, as with the Water Law, the main burden of the transposition of the EU legislation will be borne by executive legislation.
• Nature. The 1991 Act on the protection of nature, implementing a number of the most significant international conventions, together with its executive orders, exhibit a high level of compliance with the respective EU legislation.
• Environmental Impact Assessment (EIA). Polish law in this respect is undergoing substantial change. Two executive orders to the 1994 Act on land-use planning properly transposed Annexes I and II of Council Directive 85/337/EEC on EIA. What is missing is public involvement in the process. It is expected that this issue, together with the provisions of the Espoo Convention on EIA, will be transposed in a new EIA law, which has already been prepared within the PHARE Programme. It is also possible that the act will be incorporated into the already mentioned draft Framework Act on the environment.
• Chemicals, GMO (genetically modified organisms). From the perspective of EU legal regulations, Poland has much legislative work ahead of it in this regard. The preparation of a draft act on chemical substances was undertaken by the MEPNRF of Health in 1994. This will transpose many of the legal instruments listed in Chapter 8 of the EU's White Paper.
• Noise. Polish law has adopted a different approach to the EU in regulating noise. It has established ambient standards instead of noise emission standards from sources such as manufacturing facilities and equipment. A proposal to introduce the EU 'source approach' into Polish law is under preparation. It seems reasonable that both approaches could, and should, coexist.
• VOCs. A draft Executive Order of the Minister of Industry and Trade is being prepared on the technical requirements for petroleum storage tanks and long-distance oil pipelines. This order will implement provisions of EU Council Directive 94/63/EC.
• Ozone. Poland is to ratify the Copenhagen Amendments to the Montreal Protocol agreed in November 1992. An appropriate draft regulation of the Council of Ministers implementing the Montreal Protocol and its London and Copenhagen Amendments has already been prepared. Council Regulation (EC) 3093/94 on ozone-depleting substances is still being evaluated.
• Mining. The Geological and Mining Law, accompanied by 15 executive orders, entered into force in 1994. It complies with EU principles on environmental protection.

Pending and Planned Measures

Draft Framework Act on the Environment

According to the Terms of Reference, the Framework Act should incorporate the appropriate principles, legal institutions, terminology and definitions of those concepts contained in EU legislation such as the Maastricht Treaty, the Europe Agreement, and framework acts of secondary European legislation. Taking into account the dynamic changes of EU environmental law, draft EU legal acts should also be considered, including the draft Directive on Integrated Pollution and Prevention Control (COM/93/423) and the draft Directive on Air Quality Assessment and Management (COM/94/109). EU acts of a 'soft law' nature must also be taken into account. These include the 5th Environmental Action Programme and the Community's 'Strategy for Waste Management'.

It is planned that the drafting of the new Framework Act on the Environment will be completed by the MEPNRF before the end of 1996. The first working version has been completed to date.

Indicative Programme for the Implementation of the Europe Agreement

Approximation Plan

The main objectives of the Approximation Plan include:

• a timely and efficient manner for meeting the obligations contained in the Europe Agreement
• the development of a flexible, practical and effective blueprint for approximation of Polish environmental legislation to that of the EU.

The Approximation Plan will establish:

• an appropriate priority order of the various areas of environmental legislation to be approximated. Recommendations are required on how Poland could rearrange or supplement these priorities, and how this would serve the speed of its accession, competitiveness within the internal market, and the quality of the nation's environment;
• cost-effective methods for the implementation of the environmental aspects of the Europe Agreement, and the proper elaboration of the required supporting actions;
• a realistic and sufficiently detailed time frame for implementation (up to 2004, but with full elaboration of a possibly accelerated implementation), including a description of necessary supporting actions;
• global assessment of the financial implications (costs and benefits) of harmonization, and their breakdown for the various economic sectors financially responsible for them (as accurately as reasonably possible). Account should also be taken of the financial resources which can realistically be raised to implement harmonization in practice, and how;
• sufficiently detailed distribution of implementation responsibilities, and guidelines on how to ensure that actions by other ministries and concerned administrative bodies will be in line with the approved Approximation Plan and the MEPNRF's own activities.

The Approximation Plan, as part of the 'Indicative Programme', has yet to be approved by the EU.

Final Remarks

• specialists with a sound knowledge of EU environmental legislation. The lack of legal expertise is especially severe;
• position or analytical materials on EU draft legal instruments (the memoranda attached to EU drafts being insufficient) and on new tendencies in EU legislative policy;
• working relations with EU experts.

The establishment of working relations with DG XI is essential. Poland requires assistance in the interpretation the EU's legal acts and in this context, the EU initiative to establish a regional programme for advice on harmonisation of environmental regulatory frameworks and policies is a valuable development and as such cannot be overestimated.

What Poland lacks above all, however, is direct insight into the legislative process of the EU. Even the best commentary on a draft legal act will not surpass all the knowledge that can be acquired during personal participation in such a process. Perhaps an opportunity should be created for Poland to participate with observer status in the legislative process of the EU. An ideal solution would be to grant Poland status as a 'consulted state'. Such a solution was adopted by the EFTA countries under the 1992 Treaty on the European Economic Area.

Finally, it can be reasonably expected that the many steps taken by the MEPNRF, the establishment of the Poland-EU Environmental Subcommittee, and the EU initiative to establish a regional programme for advice on harmonisation, will lead Poland to the achievement of the goals contained in Articles 68 and 69 of the Europe Agreement sooner than 2004.