Enviromental law and the EU

The culmination of the 2002 UN World Summit on Sustainable Development 1.has once again brought environmental issues to the top of the international agenda. Substantial progress has been made in the development of international environmental principles over the past decade yet the same cannot be said in relation to the 'greening' of the European Union. 2 Despite considerable progress in terms of primary and secondary legislation and development policies in relation to environmental integration within the European Union, recent reports by the European Commission suggest that:

"despite almost 25 years of European environmental policies, nature keeps on being at the loosing end, human health remains endangered, ecological balances threatened. Current environmental policies are not up to speed with the growth of the challenges, mainly caused by the growth of consumption." 3.

Why then has the cohesion between the EU's overarching social, economic and environmental policies remained so underdeveloped? The answer, it would seem, lies somewhere amidst a continuing emphasis on economic development to the detriment of environmental development, a reluctance to develop external environmental policies and a disinclination or perhaps discord amongst the Community to collectively adopt environmental measures with real force.

At grass-roots level, environmental concerns were initially not placed on the same footing as other chiefly economic interests that clearly dominated the European Community's progress in its formative years. 4.It was economic development and social and political cohesion that formed the Community's blueprint for a new era of the liberalisation of free trade amongst the Member States.

In fact it was not until 1972 that the European Council began to loosely appreciate the importance of a general Community environment policy 5.and this lead to the European Commission calling for submissions to be made in a bid to establish a Community action programme on the environment.6. Nevertheless the Community's early policies in this respect, were obviously not targeted at, or indeed, even capable of incorporating environmental concerns and it is thus no surprise that the term 'environment' was not to be found in the original EC Treaty.

The Community did, however, later expand upon its model of enumerated powers and ostensibly extended its competence relating to environmental matters by the extensive interpretation of primary sources of Community law. For example, although the primary purpose of Article 1007. of the EEC Treaty was to harmonize Member States laws in respect of the functioning of the common market, and of promotion of levelled competition as between Member States, its alternative usage as a tool to regulate environmental measures and policy in respect of the proper functioning of the common market became widespread.8. The environmental reach of Article 100 was bolstered by the application of Article 235,9. especially after the Court had significantly pronounced it to be capable of forming the legal basis of environmental policies. 10.

With the enactment of the Single European Act in 1987,11. environmental interests finally came under the dictates of specific legislative power and the Treaty incorporated specific environmental provisions that effectively supplanted the use of Articles 100 and 235.12. In the same year, the Report, "Our Common Future", published by the World Commission on Environment and Development ,13. ushered in a new concept of 'sustainable development'14. that sought to harmonize the inherent conflict between economic and environmental development. New inroads and action plans concerning sustainable development were made at the United Nations Conference on Environment and Development in Rio in 199215, and these, in turn, had the most prolific effect on European environmental policy.

The Treaty on European. Union16 emphatically reflected both this concentration on the integration of environmental issues and also the political favour that it courted. Most notably, as a direct result of Maastricht, a great deal more emphasis was placed on the Community environmental action programmes. In fact, whereas the first four earlier Community Action Programmes17 aimed only to set out certain broad principles relating to pollution and pollution control strategies, the Fifth EC Environmental Action Programme18radically altered the European Union's previous approach to environmental integration and tended more towards pollution prevention.

The concept of sustainable development. thus became deeply entrenched within the aims and objectives of the programme and the integration of environmental objectives across all policy sectors within the European Community was to become a prime objective of all Community members. The Programme placed specific emphasis on the energy, agricultural, transport, tourism and manufacturing industry sectors as key areas in which greater efforts were needed to integrate environmental requirements within their overall policies.

Perhaps the greatest achievement of this Programme was that it sought to introduce amongst Member States, a broader concept of shared responsibility that moved away from the 'command and control' form of regulation that the Community had consistently employed. This, notes Scott,19. is to be welcomed given that critics have stated that it is not cost-effective, it is excessively prescriptive, and often dictates means of implementation as well as the ends. Moreover, Scott suggests that it promotes exaggerated uniformity and a failure to account for spatial variation within Member States especially as regards pollution effects and the acknowledgement of significant disparities in pollution abatement costs.

Integration of environmental issues is particularly addressed by Article 6 of the Treaty of Amsterdam (the EC Treaty) in 199720. which states that:

"Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development."

Additionally, Grimeaud 21recognises that there is an increasing need for such integration to be extended to external environmental integration at the EC level. Although the Community has previously taken measures outside the geographical territory of the EU to protect the ozone layer ,22 combat climate change, and has also banned the export of waste to non-industrialised countries. Grimeaud also proffers the view that the wide definition of Article 2, EC , 23.which aims "to promote economic and social progress and to achieve balanced and sustainable development of economic activities", has more evenly balanced economic, social and environmental objectives, has now become a general principle of EC law, and also implies that the entirety of environmental objectives and principles have to be integrated into all Community activities and policies (both binding and non-binding EC acts). 24.

On the surface then, it would seem that the framework for environmental integration within the EU, albeit developed in an ad hoc fashion, has readily managed to balance economic, social and environmental goals. Yet notwithstanding these goals of higher quality EC environmental law and the proliferation of economic and environmental policy instruments 25 , problems still abound and environmental quality within the EU is remarkably poor and has, in some instances, deteriorated. 26

What is certain is that although the proliferation of horizontal environmental directives such as the Environmental Impact Assessment Directive 1985 and the Freedom of Access to Environmental Information Directive 1990 27 have helped to further integrate environmental initiatives on a wider scale, the change away from command and control type approaches to integration has not been fully implemented within the EU yet resulting in the continued sectorisation of whole sets of environmental directives and regulations.

The EC Treaty does not contain any environmental stipulations that need to be directly adopted by Member States. Article 10 EC 28only places a negative burden on Member States to refrain from measures that would make any Community environmental policies more difficult or even impossible to attain, but there is no corresponding positive burden to pursue environmental objectives. 29Article 174 EC sets out the objectives of Community policy as regards the environment, which include the protection of human health, the prudent and rational use of natural resources, the preservation, protection and improvement of the quality of the environment and to promote measures at international level in order to deal with regional and worldwide environmental problems.

It would seem then that another problem might lie in the poor implementation of EU environmental obligations and precedents by Member States and/or the lack of oversight on the part of the Community or a lack of adequate enforcement mechanisms for environmental groups and individuals. The recently proposed Sixth Community Environmental Action Programme 30 aims to redress this balance by, inter alia, setting out key objectives and performance targets in relation to certain environmental policy areas and laying down more specific timetables for their implementation.

Another inherent difficulty lies with the fundamental integration of 'free trade' as one of the cornerstone policies of the Single Market, since this goal can render environmental objectives economically unfeasible and moreover, make Member State's 31 environmental initiatives increasingly subject to complex evaluation. Hence, there are naturally concerns regarding competitiveness amongst Member States and these are made all the more compelling taking into account the paucity in the Community's approach to developing sustainable development initiatives and policies in respect of non-EU Member States until only recently.

Article 28 EC 32fundamentally prohibits barriers to trade within the Community and Article 82 EC 33addresses abuses of dominant positions with the Community, whereas no such provision exists which focuses on environmental issues. Unlike provisions peculiar to the World Trade Organisation, the European Court of Justice's interpretation of Article 28 EC 34allows national environmental protection measures to restrict trade so long as they are based on legitimate standards. The cumulative effect of Articles 28 and 29 EC, which prohibit 'quantitative restrictions' and all measures having equivalent effect on imports and exports respectively, is to make all Member States' environmental initiatives subject to conformity in line with the wide trade restrictions in place within the EU, particularly centred on economic development and free trade. The difficulties that can be faced by Member States as regards the enactment of such environmental legislation is best exemplified by the Danish Bottles 35where the Danish Government initiated environmental measures to promote increased usage of recyclable bottles but those measures were subsequently deemed to breach trade restriction rules. Also, The European Environment Agency in their Report 'Environment in the European Union at the turn of the century' stated that "this present report confirms… the fact that the unsustainable development of some economic sectors is the major barrier to improvement." 36

It is no wonder then that Scott 37has commented that " 'minimum' harmonization is emerging as the rule rather than the exception, with the Community rule prescribing the 'bottom line' below which the regulatory practices of the Member States may not sink." Environmental quality standards (including emission standards) are one example of the difficulties inherent in Community environmental principles. For instance, Article 5 EC 38which enumerates the principles of subsidiarity 39and proportionality, 40"tends to even out competitive differences and avoids 'a race to the bottom'" but can still effectively "tie" a Member State's hands in respect of preserving reasonably competitive policies. 41

One suggestion to increase the efficiency and uptake of environmental integration proffered by Scott 42is the uptake of economic instruments, the most common being taxes, in lieu of the traditional 'command and control' style regulation previously favoured by the European Community. The Commission has, on several occasions, supported the use of such instruments in a bid to make environmental policy more efficient and cost-effective, and has placed specific focus on the use of environmental charges and taxes as a form of direct support for the "polluter pays" 43 principle. 44

Finally, in terms of enforcement mechanisms for breaches of environmental rules and regulations, the European Commission is deemed to be the designated enforcement agent under the EC Treaty. Under Article 226 EC 45the Commission is at liberty to apply a formal three-stage procedure if a Member State has failed to fulfil an obligation under the Treaty. This administrative stage of the enforcement action incorporates a formal notice of breach of obligations by the Commission to the Member State followed by an issue of a reasoned opinion. If this is not successful in remedying the breach, the Commission can then refer the Member State to the European Court of Justice. 46 The Court has been granted wide powers of enforcement including the use of fines which the Court has used on previous occasions to bring out environmental compliance. 47

  1. In Johannesburg from 26 August to 4 September 2002.[^ Return]
  2. For present purposes reference to the 'European Union' will primarily be to the (now) European Community and not the European Coal and Steel Community (ECSC, 1951) or the European Atomic Energy (Euratom, 1957), unless expressly referred to.[^ Return]
  3. See 'Environment in the European Union at the turn of the century, EEA, Copenhagen 1999.[^ Return]
  4. No specific environmental policies or initiatives were taken by the Community from its conception on 1 January 1958 up until 1972.[^ Return]
  5. See Bulletin EC 1972, No. 10.[^ Return]
  6. First Communication on a Community policy for the environment, SEC (71) 2616 of July 22, 1971. [^ Return]
  7. (now Article 94 EC Treaty).[^ Return]
  8. See for example, Directive 85/210 OJ 1985 L96/25 (later amended) relating to the lead content of petrol; and Directive 73/404 OJ 1973 L347/51 (later amended) relating to detergents.[^ Return]
  9. (now Article 308 EC Treaty).[^ Return]
  10. See ADBHU case, Case 240/83 ADBHU [1985] ECR 531.and see for example, The Conservation of Wild Birds Directive, Directive 79/409 OJ 1979 L103/1 (later amended).[^ Return]
  11. The Single European Act was signed in 1986 and brought into force on 1 July 1987.[^ Return]
  12. Namely, Articles 130r, 130s, 130t, 100a(3) and 100a(4), (now Articles 174, 175, 176, 95(3) and 95(4) EC Treaty.[^ Return]
  13. (the "Brundtland Commission").[^ Return]
  14. 'sustainable development' was defined as: "meets the needs of the present without compromising the ability of future generations to meet their own needs". [^ Return]
  15. Report of the UN Conference on Environment and Development ('UNCED Report'), I (1992) UN Doc. A/CONF.151/26/Rev. 1. (vol. 2), p.3; International Legal Materials, 31 (1992). The Conference culminated in the promulgation of the 1992 Rio Declaration on Environment and Development, which, although non-legally binding, has subsequently provided much of the framework and goals of 'sustainable development' today.[^ Return]
  16. Concluded in 1991 in Maastricht and entered into force on 1 November 1993, [1992] OJ C191/1.[^ Return]
  17. First EAP1973 OJ C112/1; Second EAP, OJ 1977 C139/1; Third EAP, OJ 1983 C46/1; Fourth EAP, OJ 1987 C328/1. [^ Return]
  18. Resolution of he Council and the Representatives of the Governments of the Member States, meeting within the Council of 1 February 1993 on a Community programme of policy and action in relation to the environment and sustainable development, [1993] OJ C138/1 (17.05.93).[^ Return]
  19. Scott, Joanne, 'EC Environmental Law', London and New York, Longman, (1998) at p29.[^ Return]
  20. 1991 Maastricht Treaty mended in 1997 by the Treaty of Amsterdam and entered into force on May 1, 1999, [1997] OJ C340/1.[^ Return]
  21. Grimeaud, David, 'The Integration of Environmental Concerns into EC Policies: A Genuine Policy Development?', (July 2000) European Environmental Law Review, at p207.[^ Return]
  22. Community is party to the [^ Return]
  23. Article 2 EC:"The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 3a, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States." [^ Return]
  24. Ibid at p216.[^ Return]
  25. Over 200 EC environmental directives and regulations are in operation today.[^ Return]
  26. See 'Environment in the European Union at the turn of the century, EEA, Copenhagen 1999. [^ Return]
  27. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. OJ 05.07.85 L 175/40; Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC, OJ 14/03/97 L073/5; Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment, OJ 23.06.90.[^ Return]
  28. (ex 5).[^ Return]
  29. Article 10 (ex 5) EC: "Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."[^ Return]
  30. Decision No. 1600/2002/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22 July 2002 laying down the Sixth Community Environment Action Programme, OJ 2002 L242/1.[^ Return]
  31. "[p]rovisions which are made necessary by considerations relating to the environment and health may be a burden upon undertakings to which they apply and if there is no harmonization of national provisions on the matter, competition may be appreciably distorted." Case 92/79 'Commission v. Italy' [1980] ECR 1115, para. 8.[^ Return]
  32. (ex 30).[^ Return]
  33. (ex 86).[^ Return]
  34. (ex 30).[^ Return]
  35. Case 302/86 'Commission v. Denmark' [1988] ECR 4607.[^ Return]
  36. See 'Environment in the European Union at the turn of the century, EEA, Copenhagen 1999. [^ Return]
  37. Scott, Joanne, 'EC Environmental Law', London and New York, Longman, (1998) at p64.[^ Return]
  38. "In areas which do not fall within its exclusive competence, the Community shall take no action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community."[^ Return]
  39. "In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community."[^ Return]
  40. "Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty."[^ Return]
  41. Jans, Prof. Jan. H., 'European Environmental Law', Groningen, Europa Law Publishing, (2000) at p13.[^ Return]
  42. Scott, Joanne, 'EC Environmental Law', London and New York, Longman, (1998) at p44.[^ Return]
  43. Stated as "expressing the concept that the cost of environmental impairment, damage and clean-up should not be borne via taxes by society, but that the person who caused the pollution should bear the cost." In Kräimer, Ludwig, 'EC Environmental Law', London, Sweet & Maxwell, (2000), Fourth Edition at p19.[^ Return]
  44. 'Communication on Environmental Taxes and Charges in the Single Market', COM (97) 9 final, (26.03.1997)[^ Return].
  45. (ex 169).[^ Return]
  46. Note - Commission and Member State negotiations during the administrative stage are conduced in secret, and as such, it is difficult to assess with any real accuracy the efficiency of this process as regards, for example, statistics pertaining to the referral rate of judicial stage enforcement actions.[^ Return]
  47. See Case C-387/97, Commission v. Greece, n.y.o.r.; Case C-45/91, Commission v. Greece [1992] ECR I-2509, where the Court ordered Greece to pay a penalty of  20,000 per day as long as it failed to take the necessary measures to rectify the relevant environmental breach.[^ Return]

BIBLIOGRAPHY

PRIMARY SOURCES

Communication on Environmental Taxes and Charges in the Single Market, COM (97) 9 final, (26.03.1997).

Decision No 2179/98/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 24 September 1998 on the review of the European Community programme of policy and action in relation to the environment and sustainable development 'Towards sustainability'. OJ L275/1, (10.10.98).

Decision No. 1600/2002/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22 July 2002 laying down the Sixth Community Environment Action Programme.

SECONDARY SOURCES

Abboud, Wisam, 'The WTO's Committee on Trade and Environment: Reconciling GATT 1994 with Unilateral Trade-Related Environmental Measures', (May 2000) 9 European Environmental Law Review, p129-160.

Birnie, Patricia; Boyle, Alan, 'International Law & The Environment', Oxford University Press, (2002), Second Edition.

Boyle, Alan; Freestone, David, 'International Law and Sustainable Development: Past Achievements and Future Challenges', Oxford University Press, (2001).

Craig, Paul; de Burca, Grainne, 'EU Law: Text, Cases and Materials', Oxford University Press, (2002), Third Edition.

Grimeaud, David, 'The Integration of Environmental Concerns into EC Policies: A Genuine Policy Development?', (July 2000) European Environmental Law Review, p207-218.

Jans, Prof. Jan. H., 'European Environmental Law', Groningen, Europa Law Publishing, (2000).

Kräimer, Ludwig, 'EC Environmental Law', London, Sweet & Maxwell, (2000), Fourth Edition.

Sands, Philippe, 'International Law in the Field of Sustainable Development', (1994) BYbIL 303

Scott, Joanne, 'EC Environmental Law', London and New York, Longman, (1998)

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