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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)
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,
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.
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.
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)
o 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)
o 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 questions of environmental competence are therefore largely concerned with which particular Treaty article should provide the competence basis for a specific measure.
The environmental title (Article 191-192 TFEU) and the internal market (Article 114 TFEU)
are the two most commonly used bases for positive harmonisation in relation to environmental problems.
This expresses the dual purpose of EU environmental law
Articles 191-192 TFEU
(1) Union policy on the environment shall contribute to the pursuit of the following objectives: preserving, protecting and improving the quality of the environment; protecting human health; prudent and rational utilisation of natural resources; and promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combatting climate change
(2) Union policy on the environment shall aim at a high level of protection taking in to account the diversity of situations in the regions of the Union. t 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 procedure of inspection by the Union.
(3) In preparing its policy on the environment, the Union shall take account of:
available scientific and technical data; environmental conditions in the various regions of the Union; the potential benefits and costs of action or lack of action; the economic and social development of the Union as a whole and the balance development of its regions.
(4) Within their respective spheres of competence, the Union and the Member
States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.
The previous subparagraph shall be without prejudice to Member States'
competence to negotiate in international bodies and to conclude international agreements.
(1) The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
(2) Sets out various instances in which unanimous voting will apply a. This includes water resources, town planning and energy supply i. The reason for this different type of competence is the political sensitivity of the issues involved, and will thus also be particularly sensitive to subsidiarity
Legislative action pursuant to Articles 191 and 192 does not necessarily preclude unilateral
Member State action per Article 193. Article 193
The protective measures adopted pursuant to Article 192 shall not prevent any
Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission
Article 114 TFEU
Article 114 TFEU
(1) Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.
NOTE: Article 26(2) establishes that the 'internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties'
This is significant for two reasons:
o It is narrower than the concept of the common market, which was undefined
The internal market is a concept which is given its meaning by the Treaty and thus the CJEU's interpretation of it.
(3) The Commission, in its proposals envisaged in paragraph 1 concerning health, safety,
environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the
Council will also seek to achieve this objective.
NOTE: Article 114(3) clearly envisages that Directives concerned with the establishment and the functioning of the internal may have an environmental protection aspect.
It is important to distinguish between he obligations of the Commission, the Council and Parliament:
o Commission - must ensure that all its measures are based on a high level of protection
The Council and Parliament - must only "seek to achieve" this level of protecting on considering and approving legislation
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