The Role Of Eu Law In Environemtnal Protection Notes

The Role of EU Law in Environmental Protection Notes

What is EU environmental law?

EU environmental law – the body of EU law concerned with environmental problems

There are three types of definition which might apply: (i) descriptive, (ii) purposive, and (iii) jurisprudential.

Descriptive

EU environmental law is a product of both positive and negative harmonisation

• Positive harmonisation includes those regulations, directives, decisions and policies that have been passed bu the Union institutions and which relate to, or affect, environmental problems

• Negative harmonisation also plays an important role in EU environmental law in the form of legal restrictions on adopting unilateral environmental protection measures placed on Member States.

The Single European Act 1987 introduced a new environmental title (then Articles 130r–t and now Articles 191–193 TFEU), giving the EU explicit competence to legislate with respect to environmental matters.

A limitation on this definition is that it gives the impression that EU environmental law is just a collection of rules

• This portrays its development and evolution as simply being a process of adding new rules or amending the old ones.

Purposive

Defining EU environmental law in purposive terms reveals that, broadly speaking, EU environmental law might be seen to serve two different functions:

1. Market Integration

The first environmental directives were product standards which were passed under Article 100 TEC (now Article 94), the EU’s competence relating to the establishment or functioning of the common market.

• Of course these products did have an environmental protection aspect, however their primary rationale was enabling the common market.

Weale (1999) has said that “[t]he creation of the single market required policy-makers to pay attention to environmental issues because measures of environmental protection, either in the form of administrative regulation or by means of economic instruments, often threatened the functioning of the market”

• The relationship went both ways – just as policies of environmental protection inevitably had implications for the single market, the creation of the single market had implications for environmental protection

One of the major justifications for environmental law and regulation in the EU is the economic advantages that it will bring

2. Achieving a High Level of Environmental Protection

The other purpose of environmental protection in the EU is the fulfilling of a political desire to protect the environment.

• In the early 1970s, the Member States made an explicit decision to create environmental policy due to concerns about environmental problems

  • At the Paris Summit in 1972, at a meeting of the European Council, the important e of environmental protection was declared and the First Community Environmental Action Programme (EAP) was published in 1973.

    • The justifications for this were all independent of the common market, including: the transboundary nature of environmental problems; the efficiency and effectiveness of Member States taking action at the Community level; its development as a by-product of international environmental politics; and/or the growing concerns at all levels with environmental ethics and democracy

Observing EU environmental law through a purposive lens brings into sharp perspective a curious disconnect between the two purposes of (i) promoting the common internal market, and (ii) building an environmental protection policy

• These two purposes always operate simultaneously, but not always in tandem

  • BUT: in the context of sustainable development, the two purpose are mutually reinforcing, and thus sustainable development has featured heavily in recent EAPs.

Jurisprudential

A jurisprudential approach defines EU environmental law as a coherent body of legal principle.

• It is really only in the last 20 years that the CJEU have had a sufficient caseload to develop a body of doctrine with increasingly well-informed environmental jurisprudential thinking – prior to this legal resolution of EU environmental law issues had occurred at Member State level

  • There has been relatively little in the way of comprehensive study of the jurisprudence of the CJEU in environmental cases, with the exception of the Article 34 TFEU free movement of goods laws in relation to environmental matters.

AG Jacobs had three conclusions in relation to the role of the ECJ in the protection of the environment:

1. The CJEU has performed a difficult task, if not always coherently, at least imaginatively, boldly, and with broadly satisfactory results

2. The case law is exceptionally, and perhaps uniquely, effective in terms of enforcement

3. Due to the fact that the protection of the environment may require more, rather than less, action on the EU level, it seems that on that front the UK both faces and presents a serious problem.

What competence does the EU have to enact environmental protection?

The vast majority of EU environmental law takes the form of Directives, passed in accordance with Article 288 TFEU, which require implementation.

• However, positive harmonisation can also take the form of regulations which are directly effective.

Since the Lisbon Treaty, the EU Treaty framework explicitly distinguishes between areas of:

• Exclusive competence (Article 3 TFEU)

  • The competences in relation to the common commercial policy (effectively international trade), the conservation of marine biological resources under the common fisheries policy, and the conclusion of certain international agreements are exclusive

• Shared competence (Article 4 TFEU)

  • The Union’s specific competences in relation to environmental policy and the internal market are both shared

Different competences of the EU will give the EU, and thus Member States, varying scope for action – this division of power might be influential in choosing the legal basis of legislative action relating to particular environmental policies.

• Many...

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