European Union Environmental Law

An Introduction to Key Selected Issues

Peter G.G. Davies

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351938235
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto ambientale

This comprehensive book provides analysis and discussion on the following key issues in EU environmental law: environmental competence, principles and objectives, implementation and enforcement, nature protection, impact assessment, trade and the environment, waste management, climate change and the EU. An accessible work for all students of the subject both academic or professional.

Chapter 1

The Community and Environmental Competence

The development of an environmental policy must be regarded as one of the most notable achievements of the European Community. While action so far has certainly not proved adequate to halt the general decline in the state of the European environment, Community activity has contributed to certain positive developments in recent years including a significant reduction in sulphur dioxide emissions from industrial plants,¹ the phasing out of the use and production of ozone layer depleting substances, the decline in heavy metal environmental concentrations due to reductions in lead and mercury emissions, and the recovery of some of the Community’s most polluted lakes and rivers as a result of improvements in water and sewage treatment.² Major challenges unquestionably lie ahead but significant measures have been adopted in a variety of fields, and no lawyer practising in the Community’s Member States can now regard himself as competent in this field without a thorough appreciation of the intricacies of the Community’s environmental legislation. The importance of the Community’s environmental strategy has indeed been reflected in the fact that environmental protection has been identified by the European Court of Justice as being one of the Community’s essential objectives.³ In addition, the need to integrate environmental requirements into the definition and implementation of the Community’s other policies and activities is now constitutionally recognised in the EC Treaty.⁴

Early Development of a Community Strategy on the Environment

Progress to date in developing a Community environmental policy is all the more remarkable when one bears in mind that no specific mention was made of the need to protect the environment in the treaty establishing the European Economic Community (the 1957 EEC Treaty).⁵ In the aftermath of yet another war between the nations of Europe, the political priority of the original Member States was to secure peace and promote economic development by establishing a common market. Concern for the environment was certainly not a political priority, and in the period 1957–72 only a small number of Community measures could possibly be classified as environmental in nature. Examples include a directive relating to permissible sound levels and exhaust systems in motor vehicles,⁶ a directive regulating the emission of pollutants from vehicles fitted with diesel engines,⁷ and a directive concerning the classification, packaging and labelling of dangerous substances.⁸ The primary object of such measures was to facilitate the functioning of the common market; any environmental purpose could only be regarded as incidental to this goal.⁹

The 1960s and early 1970s marked the advent of a period of raised environmental consciousness among the general public which served to fuel subsequent political developments.¹⁰ At the Community level, the 1972 Paris Summit Meeting of the Community’s Heads of State and Government undoubtedly provided the necessary impetus for the eventual development of a distinct Community policy on the environment. At this meeting the Heads of State and Government of the Member States endorsed the need to pay particular attention to the environment in the pursuit of continued economic expansion, and called on the Community to develop an environmental protection strategy.¹¹ Growing public concern had made Community action politically acceptable and desirable. But how could environmental aspirations be linked to the achievement of any of the Community objectives established in the 1957 EEC Treaty? The latter noted that the tasks of the Community included the promotion of “the harmonious development of economic activities” and “a continuous and balanced expansion”.¹² Recognising these objectives, the Council approved the Community’s first Action Programme on the Environment in November 1973 noting that the promotion of these responsibilities

cannot now be imagined in the absence of an effective campaign to combat pollution and nuisances or of an improvement in the quality of life and the protection of the environment.¹³

Attention therefore had to be paid not simply to the pursuit of economic growth, but also to the quality of that growth. But what of the precise legal base for environmental action? Bearing in mind the Community enjoys competence only in those areas in which it has been given treaty-based competence,¹⁴ the lack of a specific and valid legal basis for a directive would be grounds for annulment of the measure by the Court of Justice on the premise that the measure was an illegal encroachment on the national competence of Member States. As no mention had been made of the environment in the 1957 EEC Treaty, surely any attempt to adopt measures with environmental objectives would be undermined? This proved not to be the case in reality. The Community’s institutions were willing to base environmental legislation on either ex Article 100 (now Article 94 EC) or ex Article 235 (now Article 308 EC), or, more commonly, a combination of the two. This flexible application of the 1957 EEC Treaty ensured the early development of an environmental policy at the Community level.

Ex Article 100 (now Article 94 EC)

Ex Article 100 allowed for the adoption of directives to harmonise Member States’ legislation and/or practice for the purposes of establishing and maintaining the common market.¹⁵ Environmental legislation was therefore introduced utilising this article as its legal basis if it was necessary to harmonise national measures for common market purposes. A national measure prohibiting the sale of certain goods on environmental grounds, or a Member State’s policy which places a financial burden on its own industry by insisting on compliance with pollution standards, necessarily impacts on free trade and competition. The adoption by the Community of a suitable harmonising environmental measure could therefore be justified on the grounds that the pursuit of an integrated market would be hindered by the continued application of diverse national environmental laws and policies. In effect, harmonising legislation was deemed necessary to ensure a level playing field throughout the Member States. Underlining its flexible approach to the interpretation of the Treaty, the Court of Justice accepted in Commission v Italy that environmental measures could indeed be adopted under ex Article 100 (now Article 94 EC) indicating that

[p]rovisions which are made necessary by considerations relating to the environment … may be a burden upon the undertakings to which they apply and if there is no harmonisation of national provisions on the matter, competition may be appreciably distorted.¹⁶

Examples of directives adopted in part under ex Article 100 include the Shellfish Waters Directive,¹⁷ the Directive on the Combatting of Air Pollution from Industrial Plants,¹⁸ and the original Waste Framework Directive.¹⁹

Ex Article 235 (now Article 308 EC)

Environmental measures were also adopted under ex Article 235 which enables legislation to be passed where it is necessary to attain one of the objectives of the Community, but where the Treaty has not provided the necessary powers.²⁰ Recognising the need for protection of the environment, the Court of Justice affirmed that the need to protect the environment is indeed “one of the Community’s essential objectives”.²¹ On the whole, ex Article 100 (Article 94 EC) and ex Article 235 (Article 308 EC) were used in combination but the latter has on occasion been utilised as a sole basis for environment related legislation where, as Rehbinder and Stewart note, “different national regulations of an activity potentially harmful to the environment do not have a clear or exclusive financial impact on trade or industry”.²² In this way Community measures have been adopted which would otherwise have been impossible under ex Article 100 owing to the lack of a relationship between the measure and the functioning of the common market. For example, the Wild Birds Directive which established a system of protective management and control of birds was introduced utilising ex Article 235 (Article 308 EC) as its legal base.²³ Other examples of Community measures adopted solely on the basis of ex Article 235 include a Directive regulating the Importation of Certain Seals and Products Derived from such Seals, and the Regulation on the Importation of Whales and other Cetacean Products.²⁴

The lack of a specific constitutional basis in the 1957 EEC Treaty did not therefore prove a hindrance to the introduction and implementation of a Community-wide environmental policy, and, in the absence of express guidance in the Treaty, environmental action programmes expounded the principles and aims of that policy.²⁵ Member States and Community institutions had concluded that the adoption of certain environmental measures was politically desirable. Less desirable proposals of an environmental nature could effectively be vetoed by any Member State as both ex Article 100 and ex Article 235 required unanimity in Council. Individual Member States felt secure that Community competence in this field would not impinge on their own national competence unless they themselves had concluded that a Community effort was appropriate.²⁶

The Single European Act (SEA)

This sense of security was to change with the amendment of the 1957 EEC Treaty by the SEA which came into force in 1987.²⁷ The establishment of the common market had not been achieved by 1986. This was due in part to the fact that necessary legislation had been delayed, or rejected having failed to gain unanimous consent in Council. The signing of the SEA in 1986 was intended to kick-start the process by facilitating the adoption of measures to establish the internal market by the end of 1992. Ex Article 100a EC (now Article 95 EC) was inserted by the SEA to provide for the passing of measures which would accelerate the completion of the internal market. Measures adopted under ex Article 100a would henceforth be introduced using the “cooperation” procedure.²⁸ This process increased Parliament’s powers by providing it with a second reading and increased influence.²⁹ Where the cooperation procedure applied, a measure could be adopted by a qualified majority in Council rather than requiring the unanimous ...