European Environmental Law after Lisbon: an introduction

Dr.Wybe Th. Douma

1) Introduction

This text forms a short introduction on the part of the law of the European Union that refers to the protection of the environment. First, the main provisions in the Treaty on the functioning of the European Union (TFEU) and the Treaty on European Union (TEU) dealing with the protection of the environment and with sustainable development are introduced (paragraph 2). After that, paragraph 3 deals with the history of European environmental law provisions in the European treaties. It starts with some general remarks. Then, the different treaties (SEA, Maastricht, Amsterdam, Nice and Lisbon) that altered the original European Economic Community (EEC) Treaty into the two present Treaties are discussed. Also, the Constitution that did not materialise is touched upon. The changes in provisions dealing with the environment and sustainable development are focused on.

After looking at the subsequent changes to the EU treaties, a number of issues are highlighted in paragraph 4. Free movement of goods and protection of environment is first turned to. The internal market provisions on the one hand and those governing environmental protection on the other hand are also scrutinised, as are the instruments of directives and regulations. The final part of this paper deals with environmental case law.

2) Governing body of Treaty law

TEU

 

Art. 3, par 3 TEU (ex art. 2 EU)

Aims of the EU (including sustainable development, high level of protection and improvement of quality of environment)

Art. 21 para 2 sub d and f TEU (ex art 36 EU)

In external policies the EU shall foster sustainable development and participate to the promotion of international measures aimed at preserving the quality of the environment

TFEU

 

Art 11 TFEU (ex 6 EC)

Principle of integration, sustainable development

Art. 13 TFEU (ex protocol 10 attached to the Treaty of Amsterdam)

Integration of animal welfare

Art. 34 TFEU (ex art.28 EC)

Prohibition of quantitative restrictions on imports

Art. 36 TFEU (ex art.30 EC)

Exception to the prohibition of art. 34  in relation to the protection of health and life of humans, animals and plants

Art. 114 TFEU (ex art. 95 EC)

Internal market

Art. 191 (ex art. 174 EC) 

Protection of environment

Art. 192 (ex art. 175 EC)

Legal basis for environmental action

 Art. 193 (ex art. 176 EC)

More stringent national measures

3) History of European environmental law provisions in the European treaties

General

Despite the fact that the word environment was not mentioned in the treaties establishing the EEC, environmental protection has been one of its aims since 1972. Environmental Action plans were drafted, which further described the aims and principles as well as laying down high-priority subjects that demanded action. Predominantly through the use of internal market provisions of the EEC-Treaty (at present art. 114 TFEU), regulatory measures in fields such as pollution of water and air were established. Harmonisation of national environmental measures was deemed necessary so as not to disturb intra-community trade, to prevent unequal competition conditions, and to safeguard the protection of human health and the environment. At this point in time, hundreds of measures relating to the environment have been established, having an influence on almost all aspects of national environmental law. More than half of national environmental law of the Member States is at present influenced or prescribed by Brussels in this way.

Single European Act

On July 1st 1987, the EEC-Treaty was amended by the Single European Act, leading to the explicit mention of the environment in article 100A (internal market, now art. 114 TFEU) and a separate title on environment, article 130R-T (now art. 191-193 TFEU). Environmental protection was, however, not yet formally included in the aims of the EEC.

Treaty of Maastricht

Upon the coming into force of the Treaty of Maastricht on November 1st 1993, the protection of the environment finally received a formal place among the aims of the EC in article 2 EC-Treaty (as the former EEC-Treaty was thenceforth titled). From this moment on, the European Union existed alongside the EC.

Treaty of Amsterdam

The Treaty of Amsterdam entered into force on May 1st 1999. The text of the EC-Treaty was renumbered. The principle of integration, formerly laid down in article 130R, has been brought forward. Article 6 now demands that environmental protection requirements are 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. In article 95 (ex 100A, since Lisbon art. 114 TFEU), governing the internal market, the possibilities are set out for more stringent national requirements to be implemented, despite the European harmonisation rules. Finally, attention needs to be drawn to the fact that the codecision procedure, under which the European Parliament in some instances has a right of veto, is now applicable to measures based on article 95 (now 114 TFEU) as well as 175 (now 192 TFEU).

Treaty of Nice

In terms of environmental protection, no great progress has been made with the Treaty of Nice. Although the agenda set for the IGC was limited as far as environment was concerned, those goals that were set were not attained. The major drawback in Nice was the fact that the status quo as regards some procedures relating to the environment was maintained. Unanimity voting was not, as intended, changed to qualified majority voting for the provisions covering so called eco-taxes, making decision making in this area difficult, especially with the imminent enlargement of the EU in mind. Another potential drawback is the fact that the environment article was be altered to ‘measures affecting…the availability of [water] resources’, while the original was ‘measures concerning’. The new, broader, wording might mean that more measures will fall under it and will have to be decided by unanimity.

The European Constitution that did not materialize

The four parts of the proposed text contain several provisions touching upon environmental issues. In Part I, it is made clear that sustainable development based on inter alia improvement of the quality of the environment is among the Union's objectives (Art I-3 para 3), as is promoting sustainable development at a global level (Art I-3 para 4). Environment stays to be an area of shared competence (Art I-13). In the preamble to Part II (The Charter of Fundamental Rights of the Union), the Union takes upon itself promotion of a balanced and sustainable development. The necessity to integrate environmental protection requirements into the Union policies is formulated in both Part II (Art II-37) and Part III on the Policies and Functioning of the Union (Art III-4) of the Constitution. The provision of Art III-4 is largely identical to former Art 6 of the EC Treaty. Art II-37 formulates a duty to ensure a high level of environmental protection and to improve the quality of the environment “in accordance with the principle of sustainable development”. Art II-3 para 1 expresses the right to respect for physical (and mental) integrity, Art. II-7 the right to respect private and family life. Such provisions might play a role in cases where serious pollution occurs. Articles III-129 to III-131 are devoted to Environment and are in principle identical to the former Articles 174-176 of the EC Treaty. Unanimity stays required for fiscal measures, town and country planning, and specific water, land, and energy use issues. Art III-43 will replace Art. 30 (ex 36) EC Treaty, without adding ´protection of the environment´ to the list of grounds, meaning that the ´rule of reason´ jurisprudence will remain of importance in this respect. Art III-65 will replace Art 95 EC Treaty without changing substantially the possibility of invoking environmental grounds for national legislation stricter than European legislation. Finally, the text contains a new article on energy (III-157), in which the need to be preserve and improve the environment features prominently. All in all, if the national referenda would have allowed for the entry into force of this Treaty, environment and sustainable development would have gained from this, notably through the provisions in the Charter. National referenda in the Netherlands and France said ‘no’ to the Constitution and instead, the Lisbon Treaty was created. 

Treaty of Lisbon

The Treaty of Lisbon comprises of two Treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). It came into force on the 1st December 2009. From that moment on, the pillar structure does not exist anymore. Codecision (Council and EP deciding jointly) becomes the ordinary legislative procedure. Art.194 TFEU introduces a competence in the field of energy, that has to be carried out taking into account environment, internal market and solidarity between Member State. The only change to the provisions dealing specifically with the protection of environment is a small addition to art. 191 para 1 TFEU. That provision already stated that the EU can promote measures at international level to deal with regional or worldwide environmental problems, and Lisbon adds that such measures in particular can deal with combating climate change. In spite of claims that this addition would give new power to Brussels, in legal practice it does not change anything. The EU was already allowed to take measures to combat climate change before Lisbon. The addition (that was not foreseen in the proposed Constitution) is a mere explanation. Although the Charter of Fundamental Rights of the EU is only attached to the Treaty, it has a full and legally binding value by means of art. 6 TEU. Moreover, the European Union shall join the system set by the European Convention of Human Rights (ECHR). The EU Charter lays down a high level of environmental protection and improvement that should be achieved following the environmental policy integration principle and the principle of sustainable development (Article 37 EU Charter).  

4) Selected topics

Free movement of goods

National environmental policy is obliged to adhere to the requirements posed in specific European directives or regulations. These will be discussed hereafter in as far as they apply to the European policy fields of internal market and environment. Should such specific requirements be lacking, the requirements as laid down in the TFEU apply. Regarding national environmental measures that have an impact on the free movement of goods within the Union, the prohibition of article 34 TFEU (ex 28 EC) is of importance. Quantitative restrictions on imports and measures having equivalent effect are prohibited in principle, unless these are necessary for the protection of health of humans, animals and plants, as is laid down in article 36 TFEU (ex 30 EC). The protection of the environment also constitutes a possible exception, but is subject to the so-called rule of reason. An example of the ECJ applying the rule of reason is the Danish Bottles case C-302/86. These prohibitions or restrictions may not, however, constitute a means of arbitrary discrimination nor a disguised restriction on trade between Member States. They should also be proportional, in the sense that that no alternative measures that has a less of an influence on trade should be available to achieve the end (i.e. the least trade restrictiveness test).

Completion of the internal market

Article114 TFEU (ex 95 EC) enables measures to be taken that have as their object the establishment and functioning of the internal market. Section 3 demands that a high level of protection with regard to amongst others the environment and public health should be taken as a base. Section 4 allows the maintenance of existing national measures for the protection of the environment or the working environment under certain circumstances. Section 5 even allows the introduction of new measures for the protection of the environment under more stringent circumstances. Case C-439/05 Land Oberosterreich v. Commission showed the difficulty of invoking the exception based on the protection of the environment. The region of Upper Austria expressed concerns about the introduction of the new directive 2001/18 on GMO and would have liked to introduce a more stringent legislation, thus the Austrian government notified to the Commission. However, on the basis that there were no new scientific data and no new scientific evidence the Commission rejected the application.

Paragraph on the environment

 Article 191 (ex art. 174 EC) describes the aims and principles of the EU environmental policy. Article 191(2) demands a high level of protection, but allows exceptions due to regional differences. Article 192 (ex art. 175 EC) contains the real legal basis for measures and governs the decision-making process for their coming into being. Finally, article 193 (ex art. 176 EC) allows Member States the option to maintain or take more stringent measures. These measures need to be compatible with the primary Treaty provisions and must be reported to the Commission.
Primarily measures that have a less direct link with the functioning of the internal market, such as nature-protecting measures, but also Directive 2008/98 on waste, are taken with the title on environment as a basis.

Directives

Article 288 TFEU (ex art. 249 EC)  provides that European directives place upon Member States an obligation to achieve a certain result within a given period of time, leaving them the freedom to choose the form and methods by which to achieve this result. Individuals can invoke provisions in a directive when the national legislator has implemented these either too late or incorrectly. Such provisions should, to this end, be sufficiently clear, precise and unconditional. A distinction can be made between the situations in which national rules are stricter than the directive and those in which they are more lenient. In the first case, persons with a direct interest can invoke the EU provisions, in the latter third parties can sometimes invoke them against the Member State in question (but not against other persons).

Regulations

European regulations are by their nature directly applicable within the Member States article 288 TFEU (ex art. 249). For subjects that should be regulated in the same way in all the Member States, such as import and export of waste materials and the trade in endangered species of animals and plants, the form of the regulation is chosen.

Case-law

The European Court of Justice (ECJ) is the court of last instance where issues of EU law are concerned. The ECJ consist of ECJ / General Court and the Civil Service Tribunal (CST). It is assisted by Advocates General who deliver opinions when it is required, although the Court is not bound to follow those opinions.  It interprets EU law in disputes brought before it in cases concerned with either one of the EU institutions or individuals in the following ways:
The procedure provided for by Article 258 (ex art. 226 EC). This Article allows the Commission of the EU to bring a procedure for enforcement before the ECJ if it considers that a Member State does not fulfil its obligations under EU law. This is only the final stage of the procedure, however. The Commission and the Member State negotiate before the ECJ gets involved. This takes place in several stages: first, there are informal negotiations between the two parties; if no satisfactory conclusion is reached, the Commission sends a letter of formal notice pointing out the specific infringements of EU law; if still no correct implementation has been achieved, the Commission issues a reasoned opinion which leaves the Member State two months to comply before proceedings are started before the ECJ. If the ECJ shares the opinion of the Commission, the Member State is obliged to change its national law and implement EU law. Pecuniary sanctions can also be imposed. Greece was the first country that was fined under the provision as shows from Case C-387/97.
The procedure provided for by Article 267 TFEU (ex art. 234) provides that a national court can (in the case of a national court of final instance, must) refer questions concerning the interpretation and validity of European Union law to the ECJ if such questions arise in the course of proceedings between individuals before this national court. Important subjects of review are: the interpretation of the TEU / TFEU and the interpretation and validity of EU measures. The national court must follow the explanation given by the ECJ.
Important judgements of the ECJ in the field of the environment include ECJ 9 July 1992, Walloon waste-case C-2/90, in which the ECJ held that a complete ban on the import of dangerous waste is not in conformity with European directive 84/631 in which a system of individual weighing of interests is prescribed; and ECJ 3 December 1998, Danish bee- case C-67/97, where the ban on imports for other species of bee to a certain island could be justified with reference to the exception with regard to life and health of animals of article 36 ex 30). More recent cases areC-297/08, Commission v. Italy, dealing with the proper procedure for waste disposal, and C-378/08, Raffinerie Mediterranee (ERG), dealing with the polluters pay principle and liability issues.