To what extent do the principles set out in articles 6 and 174 of the EC Treaty provide a clear and judicially enforceable Environmental Policy?

Recent years have seen environmental issues come to the fore in Europe and across the world generally. As Kramer has discussed at length, the European Community has responded by implementing legislative provisions to allow the furtherance of an environmental policy designed to address some of the most pressing concerns. Article 6 of the EC Treaty provides as follows:

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.

It can be seen from the text of this Article that the Treaty cannot be blinkered in its pursuit of the ultimate environmental regulations. EU law and policy has to strike a prudent and careful balance between economic, social and environmental goals. The holy grail is the promotion of sustainable development, to be measured against improvements in the well-being and quality of life of EU citizens. Title XIX of the Treaty is specifically concerned with the environment and measures to promote environmental protection. Article 174 states as follows:

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1. Community policy on the environment shall contribute to pursuit of the following objectives:
preserving, protecting and improving the quality of the environment,
protecting human health,
prudent and rational utilisation of natural resources,
promoting measures at international level to deal with regional or worldwide environmental problems.

2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.

3. In preparing its policy on the environment, the Community shall take account of:
available scientific and technical data,
environmental conditions in the various regions of the Community,
the potential benefits and costs of action or lack of action,
the economic and social development of the Community as a whole and the balanced development of its regions.

4. Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.

The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.

In combination it is submitted that these provisions provide a comprehensive foundation for the implementation of policies aimed at environmental protection. The European Court of Justice can use the legislative context established by these Treaty Articles to justify the purposive and teleogical interpretation of specific rules and regulations drawn up under their authority.
European Union regulations establish a universal baseline of environmental protection across the Member States, however it should be noted that the policy retains sufficient flexibility to take specific local and regional problems and circumstances into account. EU environmental policy is predicated on the ‘polluter pays’ principle. This means that a polluter may be required to make capital investments necessary to conform to higher environmental standards and/or to establish a system to recover, recycle or safely dispose of products after use. Polluters may also be required to pay taxes for using an environmentally unfriendly product, such as some types of packaging, and consumers may also be taxed in this context.

The environmental laws are constantly under review and can be promptly updated if the situation demands it. By way of example, piecemeal regulations on the use of chemicals are currently being considered with a view to consolidating the law within a single all-encompassing system for the Registration, Evaluation and Authorisation of Chemicals (REACH).
The European Union, guided by the policy laid out in the stated Treaty Articles, has implemented an emissions trading system as part of its strategy to combat climate change under the Kyoto Protocol. Under this programme, Member States allocate carbon dioxide emission permits to industrial and energy businesses (power generation, steel, paper/cardboard, cement, brick making, and glass) up to a specified quota. Undertakings that do not use their quota can sell their surplus on to other companies who need to make additional emissions. The system is backed by heavy enforcement fines. Fines are also applicable to Member States which fail to meet their obligations, in 2005 these amounted to €40/ton of carbon dioxide, and they will rise incrementally to €100/ton by 2008.

Case Law of the European Court of Justice

Chemische Afvalstoffen Dusseldorp v. Minister van Volkshuisvesting concerned Directive 75/442 and Regulation 259/93 on waste and the control of shipments of waste into and out of the EC. The Court held that the relevant laws could not be interpreted as meaning that the principles of self-sufficiency and proximity are applicable to shipments of waste for recovery. This stands as a good example of the Court’s policy of contextual interpretation.

Moreover, the disparity in treatment between waste for recovery and waste for disposal mirrored the Community’s intention to encourage recovery of waste in the Community as whole, in particular by utilising the most advanced and efficient technologies. In practice this means that waste should be allowed to move freely over borders between Member States for effective processing, thus denying the application of the rules of proximity and self-sufficiency.

Furthermore it was held that Article 130t of the Treaty, which allows Member States to implement protective measures more exacting than those adopted under the former Article 130s, does not permit the extension of the application of such rules to waste for recovery where it is apparent that those measures establish an impediment to exports not justified either by one of the free movement derogations now contained in Article 30 EC or by an imperative measure relating to protection of the environment .
It is submitted that Article 174 EC allows the principle of accommodation and flexible, discretionary interpretation. This allows the institutions of the European Union to act beyond the principles of the Treaty where the circumstances dictate that such action is necessary. In support of this proposition the Peralta case prompted the Court of Justice to rule that the former Article 130r is confined to defining the general aims and objectives of the Community in environmental matters. It was held that it is for the European Council to determine what action is to be taken in each specific instance.

Concluding Comments

It is submitted that the EU environmental protection regime is effectively applied in general, although it should be noted that the system is beholden to the need to ensure that EU industry remains competitive on the world stage and that this has the effect of tempering the scope of the law in this field to some extent. It is worth noting that some commentators argue that principles of environmental law are essentially pragmatic political maxims employed merely as a guide to legislative and regulatory action. It is however laudable that the EU institutions take a far-sighted approach to the development of policy in this field. Whereas the governments of the Member States are typically preoccupied with issues directly concerning their period of office, the European Commission, for example, takes the long view on environmental issues. In this regard it is notable that although the obligations under Kyoto run until 2012, the Commission is already engaged in detailed consultation on post 2012 environmental policy in the area of climate change.

Amplifying the principles embodied in both Articles 6 and 174 EC, where environmental threats are deemed to be potential rather than proven risks, the European Commission adopts a so-called precautionary principle. That is to say it makes legislative proposals for protective measures where an environmental risk is tangible even in the absence of absolute scientific certainty on the matter. This proactive policy is reflected to some extent in the attitude that the European Court brings to its contextual and purposive interpretation of the fundamental Treaty provisions on environmental law.
In summary it is submitted that Articles 6 and 174 combine to lay down a basic workable framework for a clear and judicially enforceable environmental policy for the European Union. As time passes it is likely that new environmental challenges will confront the EU and the long term test for its environmental regulatory regime will be the manner in which it responds to these future demands. It will be necessary for EU environmental law to retain a proactive and flexible nature, and for those charged with its implementation to mirror those qualities.

THE END

WORD COUNT: 1646 (footnotes not included - allowed extra words to account for lengthy Treaty Article quoted)

BIBLIOGRAPHY

The Treaty of Rome (consolidated version)
Craig and de Burca, EU Law - Text Cases and Materials, (2003), Oxford University Press
Ludwig Kramer, The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law, 24 CMLR 659 (1987)
Ludwig Kramer, The Polluter Pays Principle in Community Law: The Interpretation of Article 130r of the EEC Treaty, in Focus on European Law, (2nd ed., London: Graham and Trotman, 1997) 244.
Steiner and Woods, Textbook on EC Law, (2003) Blackstone
Ludwig Kramer, General principles of Community Environmental Law and their translation into Secondary Law, (1999) 3:4 L & EA 361.
Wikipedia (http://en.wikipedia.org/): various entries
Jans, Prof. Jan. H., European Environmental Law, Groningen, Europa Law Publishing, (2000).

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