To which extent is the EU entitled to launch environmental policies? Please give examples.

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CONTENT

  ABBREVIATIONS  II

1.  Introduction  1

1.1  Assignment’s title  1

1.2  Complication  1

1.3  Realization  1

2.  Background of European policy-making on the environment  2

2.1  Forms of legislation  2

2.2  Legal basis for Community’s policy on the environment  3

3.  Who takes action?  4

3.1  Principle of subsidiarity  4

3.1.1  The Community takes action  6

3.1.2  The Member States take action  7

3.1.2.1  Opting out of measures introduced under article 175 TEC  7

3.1.2.2  Opting out of measures introduced under article 95 (1 ) TEC  8

3.1.2.3  Opting out by using a safeguard clause  10

3.1.2.4  No measures taken by the Community  11

3.2  Community's exclusive competence  12

4.  Conclusion  12

  LITERATURE INDEX  14

  LIST OF APPENDIX  16

EC European Community ECSC European Coal and Steel Community EEP ¹ European Environmental Policy EU European Union Euratom European Atomic Energy Community GMO Genetically Modified Organism PCP Pentachlorphenol SEA Single European Act TEC Treaty of the European Community TEU Treaty on European Union

¹ Defined by author

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1. Introduction

1.1 Assignment’s title

"To which extent is the European Union (EU) entitled to launch environmental policies ? Please give examples."

1.2 Complication

The assignment should not simply be answered by proving the fact, that the European Union (EU) ² is able to launch environmental policies. Instead one should analyse the complex field of policy-making on the environment within the EU.

Mainly two questions specify the scope of this analysis:

What are the competencies of the EU within the field of environmental ^- policyand what is the legal basis for such competencies? With regard to the role of the Member States, in what ways do limits to EU's ^- policyon the environment exist?

1.3 Realization

First, in order to provide a basis for the analysis the forms of legislation available to the EU, which are mentioned in this essay and the core legal basis of EEP shall be outlined.

² The European Community (EC) as on of the three 'pillars' of the European Union (EU) is responsible for policy on the environment.

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The following analysis will illustrate in how far the EU or the Member States respectively are responsible to determine environmental policy. In this context past examples from policy-making on the environment shall support the theoretical elucidation.

At the end a summary of the results produced by the preceding chapters and a final answer to the question posed in the essay's title will be given.

2. Background of European policy-making on the

environment

The Treaty on European Union, the Treaties establishing the European Communities and the various annexes and protocols attached to them provide the primary Community legislation, which confers the power on the Community institutions to make law. 3, 4

2.1 Forms of legislation

Law made by the Community institutions is referred to as secondary legislation. According to article 249 (TEC) a range of tools is available to the Community institutions to work on the national legal systems in varying measures: 5

³ See: Klaus-Dieter Borchardt The ABC of Community Law, European Documentation, 3 ^rd ed., Brussels, Luxembourg 1991, p. 25.

⁴ The Treaty of Amsterdam signed in 1997 amended the Treaty on European Union first signed in 1992 in Maastricht and the Treaties establishing the European Communities comprising the Treaty establishing the European Community first signed in 1992, the Treaty establishing the ECSC first signed in 1951 and the Treaty establishing the Euratom first signed in 1957.

⁵ Only those tools are presented which are mentioned in the following chapters.

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- Regulations are directly applicable in all member states and supersede any existing conflicting national legislation. Therefore they do not need to be transposed into national law. About ten per cent of the EU's environmental legislation are Regulations.

- Directives are only binding to Member States to which they are addressed to. It is the most flexible tool, as it is left to the national governments to choose the most appropriate means to implement the EU's legislation. Thus they are the most frequently used form for environmental measures. 6

- Decisions are binding in their entirety upon those to whom they are addressed to. As outlined in chapter 3.1.2.2 they are of great importance for EEP when it comes to conflicts between national and supranational law.

2.2 Legal basis for Community’s policy on the environment

The legal framework for EEP, in the primary Community Law, is mainly provided by the articles 174-176 and 95 (TEC). Articles 174-176 (TEC) ⁷ are the basis for Directives and Regulations that are concerned with environmental issues, which show no or at least minor interfaces with market policy. ⁸ Article 95 (TEC) ⁹ serves as the basis for Community provisions on the environmental protection that are directly related to the functioning of the internal market.

⁶ See: Barnes, Pamela M., Barnes, Ian G,.Environmental Policy in the European Union, 1 ^st ed., Cambridge 1999, p. 122.

⁷ The articles are presented in appendices I-III.

⁸ See: Schaub, Andrea, Europäische Energiebinnenmarktpolitik und Umweltpolitik, 1 ^st ed., Frankfurt (Main) 1996, p. 27.

⁹ The article is presented in appendices IV-VII.