Methodology of Comparative Analysis

2.  Methodology of comparative analysis

There is no unified methodology for comparative analysis of national and EU environmental legislation. Every state in preparing for EU accession, or states wishing to approximate their legislation to EU legislation, develop their own methodology for executing this task, taking into account the experience of other countries.

The common element in this methodology, as recommended by the EU [2], is a table of concordance consisting of six columns. In practice, however, each state introduces its own modification to this form, which is not prohibited by the EU document. Moreover, states most often use a simplified form consisting of only two columns. The left column contains only the numbers of articles – and occasionally paragraphs – of the corresponding directive, and the right column contains the relevant legal reference to the currently proposed national legislation, as well as comments on those national laws that vary from EU legislation.

While consulting on the realization of this project, the experts agreed upon a form of table consisting of seven columns (provided below in Section 6), entries to which were made applying a methodology accepted by all three countries.

The first column specifies the number of the article (section) of the directive. The second column includes the requirements (content) of the article. In the third column, the experts specify the number of the information source from the relevant enclosed list, as well as the number of the article (section, appendix) of the corresponding national law or other legal act, and the page and other information necessary for locating that source. If there was no relevant current legislation, the word “No” was inserted. When it was expedient to do so, the national experts used computerized searches for key words in order to locate national legislation regulations that were related to EU standards. In column four “Concordance,” the experts used the four following symbols to indicate the degree to which national legislation roughly corresponded to each requirement of the EU directive:

—        a direct contradiction (e.g., substances authorized in the EU, but prohibited by national legislation)

0        no relevant legislation is available

-/+        national requirements do not correspond, or correspond only partly to EU requirements (e.g., drinking water standards are similar, but not identical)

+        complete concordance

The fifth column represents an expert’s approximate estimate of the state’s total anticipated costs resulting from transposition (transfer of legislative regulations), implementation (creation of conditions required for complete application of statutory requirements, including the development of appropriate infrastructure) and actual application (realization) of the law.

At this juncture one can only speak of approximate costs to state and local budgets and to private business for certain periods of time, namely, five-year intervals starting from the moment that the adaptation of national regulations to EU standards takes effect.

Direct economic estimates are most realistic when made by taking into account both the incremental costs of implementing the new requirements and the recovery of these costs from the improved environmental and economic efficiency of production, more efficient use of natural resources, and the beneficial effects on human health and the ecosystems. However, such economic estimates would require the development of an appropriate methodology and much time and financial resources, which was unfeasible within the framework of this project.

A more feasible approach would be to study an analogous situation, i.e., to analyze economic information from the Baltics and other Eastern European countries that are ahead of the three Dnipro River countries in terms of adapting (approximating) their environmental legislation and are now preparing for EU accession. However, this would require the collecting of economic information at the international level and its analysis and transformation with reference to conditions in the three Dnipro River countries. Given the above-mentioned time and financial constraints, it was also impossible to use this approach within the framework of this project.

The most realistic methodological approach in terms of realization, i.e., operations research, is also the least reliable. It would be advisable to determine which national working group is the most prepared and has the necessary experience for solving similar economic tasks, and to assign that group the task of developing a general methodology for expert economic evaluation within a short period of time. This could probably be done in the final stage of project realization. Even if the results are not available by the completion of the project, this should not affect further activities related to the adaptation of environmental legislation. Taking Ukraine as an example, it is imperative that a political decision be made – the desire for EU accession in the foreseeable future – in which case adaptation becomes mandatory. Economic constraints can only affect the duration of this process, but not its realization in principle.

Even if one disregards the issue of EU accession, the adaptation of national legislation to EU standards would obviously be useful because it could only improve, given the relatively high standards of EU environmental legislation when compared to national legislation of the Dnipro River states. The experts of all three countries therefore expressed their desire to cooperate in harmonizing their respective water codes, taking into account EU experience.

The sixth column provides the expected schedule for the complete implementation of the directive requirements. In this case, “schedule” does not mean the exact calendar date, but the time periods required for implementation, including development of the necessary legal base. The possibility, however, of tentative calendar dates cannot be excluded.

Seventh column “Notes” include all relevant information in addition to that provided in the other columns. In particular, if national experts consider it necessary, this column could be used for recording possible obstacles to introducing various provisions of the directive to national legislation.

The completed table should include initial information for further work related to adapting (approximating) national legislation. In all likelihood, this task could be realized most expediently by developing and adopting national laws appropriate for each directive, and by subsequently conforming current national legislation thereto. The procedure for this is established in each state and is applied after adopting each new law. The particulars of laws and regulations to which corresponding changes and amendments are to be introduced can be found in Table of Concordance column 3.

Given the time constraints and number of man-hours required for this project, it was considered appropriate to limit oneself to the initial stages of activities that should be carried out within the framework of adapting environmental legislation (with reference to the limited number of EU directives that are most relevant for the Dnipro River basin). In accordance with the above mentioned, the methodology accepted for realizing this assignment included the following stages:

1)      An analysis of the international conventions and agreements of the Dnipro River countries

An analysis of the structure and content of EU environmental legislation

Preparation of the list of EU laws that govern water management issues, and a determination of the order in which the acts of the Water Code of Ukraine are to be adapted to EU standards

Development of the appropriate forms for tables of concordance and their completion for the three top-priority EU directives

A comparative analysis of each table of concordance, and the preparation of conclusions and proposals

An estimate of the possible time required for developing harmonized national laws and the related financial expenses.

The development of proposals for the Strategic Action Programme (SAP)

Considering the specific character of this work and the high level of proficiency and  experience of the national experts, their evaluation was accepted as the basic method of investigation. The experts comprehensively analyzed the whole range of factors that impact upon an assessment of the results of the comparison and the formulation of related  conclusions. The experts were occasionally confronted with difficulties resulting from inconsistent criteria, which required special efforts at finding a compromise (e.g., between the requirement for maximum matching of the condition of the environmental component with its natural condition, and minimizing the costs of environmental protection). These difficulties were aggravated by the high level of uncertainty caused by the inadequacy of information upon which well-grounded decisions could be based.

The experts had to arrive at an objective judgement from a collection of individual expert opinions. Decisions were most often made by determining the mid-point of the various opinions, after a discussion in which the extremes were rejected.

The level at which environmental legislation was to be analyzed posed a considerable methodological problem.

Strictly speaking, “legislation” includes documents adopted by the legislature, i.e., international agreements, laws, and parliamentary regulations. However, according to historical tradition, a considerable portion of legislative regulation in the Former Soviet Union is in the form of presidential decrees, government resolutions,  and sometimes even laws and regulations of central executive bodies. As a state based on the rule of law develops, the legislative function of the executive will be transferred to the legislative branch. In other words, the practice whereby the executive independently passes normative and legal acts having the force of law will be gradually discontinued. Bills developed by the government should be considered and adopted only by the parliament, and the related provisions should have as direct force as possible.

There is good reason to believe that a more comprehensive construction of  “legislation” will be adopted in the states of the FSU over the coming years. During this period, the involvement of the executive branch in adopting legal regulations will gradually be reduced. For this reason, main government regulations and decrees could be perceived for some time as the lowest level at which the environmental legislation of the three Dnipro River countries might be analyzed. A conflict, however, could arise with the EU requirements.

It should be emphasized that, according to EU rules, the transposition of EU legal regulations is permitted only with respect to national laws having direct force. The transposition of EU legal regulations to by-laws (subordinate legislation) that have been passed by the executive branch is prohibited. There is some precedent in member states for the judicial appeal from violations of this statutory prohibition. That particular matter concerned  transposition of the regulations governing maximum permissible concentration of substances in drinking water from Directive 80/778/ЕЕС – not to the national law – but to subordinate legislation, i.e., administrative instructions. The court held that these acts were illegal and  required that they be introduced to the national law as regulations[2].

For this reason, the experts only considered statutory regulations (Appendix B) when completing the table of concordance for Ukraine. By-laws were not considered. After the transposition of all EU environmental regulations to Ukrainian law, all subordinate legislation should be revised and brought into accord with the latter. At the same time, the experts of Belarus and Russia have indicated not only references to statutory regulations in their respective tables of concordance (Appendices A and B), but to the regulations of by-laws as well. This practice should result in no negative consequences if the above-mentioned EU requirement is observed in the future.

Belarus expert Balashenko agrees with Ukrainian expert Lozansky, as was partially stated in several paragraphs above. According to Balashenko, it is quite normal for the president or executive branch to pass mandatory regulations if this responsibility is delegated by the parliament. It should be noted that such regulations are at times stricter than the corresponding EU regulations. For example, in 1999 the Ukrainian Cabinet of Ministers approved “Regulations for the protection of surface water from the pollution by return water.” These regulations contained articles that were more strict than those in Directive 91/271/ЕЕС of May 21, 1991 in the section addressing treatment of municipal waste water (Table 2.1 below).

Table 2.1 Requirements for the concentration of substances in return water discharged to water bodies from comprehensive (secondary) biological waste treatment facilities

Useful recommendations, which the national experts considered while solving methodological issues, are presented in the above-mentioned EU Commission working paper [2]. According to that paper, the initial step in the approximation process should be an analysis and comparison of current EU and national environmental legislation in order to determine the degree of conformity, and to decide upon the necessary changes and amendments to national legislation.

The preliminary assessment consists of two steps, namely:

Step 1. To determine the existence of national legislation covering the particular issue

Step 2.  If such national legislation exists, to determine which article of EU legislation should be compared with the national law regulations

National legislation can meet one of the following descriptions:

completely meets EU requirements, in which case the assessment verifies concordance;

partly meets EU requirements, in which case the assessment will consider the discrepancies and propose possible courses of action for their elimination; or

differs from EU legislation, in which case the assessment should consider various options for modifying the relevant national legislation. (For example, in deciding whether to adapt current laws, it is preferable to pass new laws.) This requires a consideration of every article of the relevant national laws.

Within the framework of this project, the national experts used tables of concordance for comparing and analyzing the content of the articles of EU directives and the relevant articles of national laws (form of tables provided in Section 6).

References

Commission staff working document, “Guide to the Approximation of European Union   Environmental Legislation,” July 1997, p. 137

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