Greening the EU - Actors, strategies and instruments

Table of contents

Introduction

1. Actors
1.1 The EU key players
1.1.1 The Commission
1.1.2 The Council of the European Union (CoM)
1.1.3 The European Parliament (EP)
1.1.4 The European Court of Justice (ECJ)
1.1.5 Non-governmental organisations (NGOs)
1.2 International influence
1.3 Member States Influence
1.4 Multi-level Governance

2. Environmental policy
2.1 Environmental policy and other policy fields
2.2 Environmental policy within the institutional framework
2.3 Horizontal integration

3. Environmental policy making
3.1 Policy paradigm
3.2 Instruments
3.3 Implementation

Conclusion

Bibliography

Internetsources

Introduction

This paper is an attempt to give a broad and systematic outline to environmental policy in the European Union (EU) without discussing explicit or specific problems. Environment is just one policy field among various others within the EU legislation, and the EU is itself not an isolated and closed legislative body, but rather to view it as a sophisticated and highly complex framework at a supranational level into a broader setting of international organisations and institutions on the one hand and national influences on the other hand. To catch its formal complexity it is important to look to its origins. The first steps toward EU integration related to economic issues with the creation of the European Coal and Steel Community (ECSC), and the Treaties establishing the European Economic Community (EEC) and finally the European Atomic Energy Community (EURATOM) in 1957. These three together came to be referred to as the European Community (EC). The creation of the single European market during the 1970s and the early 1980s symbolises the beginning of the EU integration process. The term EU was not used before 1992 where it was introduced by the Maastricht Treaty on the European Union (TEU) which marks a substantial shift from negative to positive integration of the Member States into the EU framework.^[1] I will argue during the analysis that the creation of an economic community as the first step of integration had strong and significant long-standing effects to the field of environmental policy in the EU. According to Weale, I will show that “issue linkage and spillover effects have been characteristic to the development of EU environmental policy” (Weale et al. 2005: 53). Furthermore, I will point out that this issue dynamic can be explained by the institutional setting of the EU which provides the ground for multi-level governance which is based on a high complex system of vertical and horizontal linkages, secondly the issue itself because environmental issues call for horizontal integration of policy areas and thirdly because of the interdependence of economic and environmental policy paradigm within the EU to justify environmental policy making.

The structure of the paper will therefore be divided into three different but overlapping parts because there is no single and catch-all way of capturing the essence of EU environmental policy making. To create a systematic outline the design is made to come from the broad institutional framework which shapes the characteristics of the EU system in general to the field of environmental policy itself, which is just one field of EU policy making in contrast to other policy fields to the smallest level of environmental policy making, use of special instruments and implementation which are highly influenced by the existing policy paradigm, general principles and the institutional settings in the EU. This is an attempt to catch the most important aspects of EU environmental policy without disregarding its horizontal and vertical complexity within a broader setting of international and national influences.

The first part will be concerned with the sphere of actors in general. In this part I will differentiate between the horizontal levels and the vertical levels of policy making. The EU is just one level of policy making in which actors are located between international actors on the one hand, and national and regional actors on the other. The EU institutions provide therefore “the main junction box through which connections are made between the national and the international level” (Wallace H. 2000: 8). To point out that the EU is not just a playground for national and international actors without its own significance, I will show that on the horizontal level a novel multi-level governance with cross-agency coordination and supranational institutions with legal rights, its own logics, and its own interests has been established which creates environmental policy of its own purpose. My argument here is that, concerning to theories of institutionalism, that institutions matter in determining political behaviour. They influence the structure of political discourses and processes, set the agenda, provide information and influence their actor’s preferences and identities (see Chari and Kritzinger 2006: 38).

The second part will address the issue of environmental policy itself. Environmental protection is an issue which is mutually influenced by other policy fields like trade, market, agriculture, competition, and biotechnology. Therefore policy making in the field of environmental policy within the EU calls for a wide range of horizontal policy integration between the Commission’s departments and the other institutions involved in the legislative process to guarantee effective legislation, communication processes, and implementation.

From a theoretical point of view it would be logical to assume that there are mutual spillover effects from all these policy fields to the field of environmental policy and reciprocally, but I will show that its direction has been more usual from the single market to environmental policy than from environmental policy to the single market (see Weale et al. 2005: 457-458). The possibilities and strengths of this horizontal integration process are set by the institutional framework of the EU and its processes. My argument here is that these possibilities are strongly limited because of institutional and structural settings which favour highly sectoral policy making in the European Commission; and because of the primary interests of the national states to protect their sovereign autonomy through the Council of Ministers; and finally because of the missing public discourse about environmental issues at the EU level in connection with the weak role of the European Parliament in comparison to the Commission and the Council.

The third part will stress the importance of underlying policy paradigms to justify environmental policy making in the EU. Institutions are not only organisations with associated rules for making decisions. EU Institutions have also become developers of policy principles (see Weale et al. 2005: 53). There is not only one consistent and common policy paradigm at the EU level, but rather the paradigm which is used to justify actions, legislations and procedures depends on the special issue within environmental protection and the actor who makes use of it. During the development of general policy principles inside the EU institutions there was a shift in the conception of the underlying rationale of environmental policy, modifying the assumption that there is an automatic trade-off between economic growth and environmental protection. The scientific and elite discourse about ecological modernization created a novel policy paradigm which can be shaped by the assumption that environmental protection is a precondition for economic success that was in turn, associated with the European project of integration (see Weale et al. 2005: 77). Environmental protection is therefore not a value of its own, but rather connected to economic growth and economic policy paradigm which ultimately shape the frame for environmental policy in the EU. My argument here is that this interdependency of ecological and economical approaches provides EU legislation with a lack of effective and substantial environmental legislation in the stage of implementation because it allows the Member States to set the priority of economic issues over environmental protection.

1. Actors

According to the theory of institutionalism I treat the EU as a decision making system among other decision making systems. As such, it shares specific characteristics with other systems on the international, the national, and the regional level. There are mutual ways of influences and interdependencies through international treaties, European treaties and national sovereignty characterising this European decision making system as a system of multi-level governance. I will follow neither intergovernmentalist nor supranationalist theories to illustrate the institutional framework of the EU. They both conventionalise the EU institutions to either passive structures which provide norms, values and procedures predominantly on the structural leadership exerted by national governments in supranational negotiations (intergovernmentalism) or just as independent decision making agencies which gain power through privation from the Member States and where EU institutions are seen as the only appropriate level for the identifying, formulating and solving of problems (supranationalism) (see Chari and Kritzinger. 2006: 37-42). Furthermore, I will look not just to institutions, even though they are key players, I will also observe important interest groups. To give an outlook to the range of important institutions and organisations for environmental policy at all levels and these I will focus on (red) see table 1.

illustration not visible in this excerpt

source: own composition

* uni- or bicameral system

** some Member States have one court of ultimate resort others have additional courts like a constitutional court

1.1 The EU key players

From the beginning of environmental legislation in 1972 and till the Treaty of the European Union (TEU), the Commission and the Member States governments in the Council of Ministers (CoM) were the primary movers in the environmental policy arena. From 1992 on the European Parliament (EP) and non-governmental organisations (NGOs) have increased in importance (see Sbragia 2000: 298-304). The European Court of Justice (ECJ) plays a key strategic role in deciding which environmental measures are permissible in the context of a single internal market and which actors have the possibilities to challenge environmental decisions before the ECJ itself (see Weale et al. 2005: 102-104).

1.1.1 The Commission

The Commission is the executive body of the EU. Now it consists of 27 members - one Commissioner from each Member State of the EU. The European Commission has four main tasks: first, to propose legislation to the Parliament and the Council; secondly, to manage and implement EU policies and the budget; thirdly to enforce European law (in collaboration with the Court of Justice); and finally to represent the European Union on the international stage. This is done, for example, by negotiating agreements between the EU and the UNO. Commissioners are charged to represent the interests of the EU, not the Member State, from which they are appointed.^[2] The Commission has, in sum, two formal powers: the right to initiate legislation and to supervise the implementation process in the Member States of passed legislation. The Commission comprises 24 departments, known as directorate-generals (DGs). Each DG is responsible for a particular policy area. This is headed by one of the commissioners who function as a Director-General. The overall coordination is provided by the Secretariat-General. It is DG XI which is responsible for the drafting of environmental legislation and the implementation of its policy. DG XI is concerned with environmental quality, nuclear safety, civil protection and natural resources.^[3] Commission proposals define the ground on which the CoM and the EP can negotiate.

1.1.2 The Council of the European Union (CoM)

In the case of environmental policy the Council of Environmental Ministers is important. These ministers have responsibilities for environmental protection at the EU level within their national political systems. The CoM remains to a large degree the legislative body of the European system in collaboration with the EP. The CoM is a non-standing body. Ministers of the Member States meet in fixed terms and are assisted by national officials, who are permanent representatives at the EU level (ambassadors), and constitute together the Committee of Permanent Representatives (COREPER). COREPER plays a key role within the CoM, because it provides the administrative background work for the CoM (see Wallace H. 2000: 16-20). The CoM has six key responsibilities, four of which are important in the case of environmental policy: first, to pass European environmental laws – jointly with the European Parliament; secondly, to coordinate the broad economic policies of the Member States; thirdly, to conclude international agreements between the EU and other countries or international organisations, and finally to approve the EU’s budget, jointly with the European Parliament.^[4] The importance of the CoM derives from the fact, that it is the last port of call for environmental legislation. Votes on legislation are taken either by unanimity or by qualified majority vote (QMV).^[5] Environmental issues are, in general, decided by QMV. Exemptions are fiscal provisions, town and country planning, land use, management of water resources and energy related matters which are all highly sensible in the field of environmental protection. QMV gave the European Parliament increasing influence to decision making processes within environmental policy because it requires cooperation or co-decision with the EP (see Weale et al. 2005: 41-48). However, the CoM remains the most powerful body in the EU system. Its pattern of decision making is dominated by preferences that Member States bring to Council discussions, acknowledging that they are the last instance of approving decisions.

Within the CoM there is a group of states promoting environmental policy and a group of opponents.^[6] Which group is able to win in negotiations depends on the rule to vote as well as the special environmental issue itself.

1.1.3 The European Parliament (EP)

The EP is the representative assembly consisting of 785 members from all 27 EU countries. The EP is the only directly elected institution within the EU. It is elected by citizens of all Member States every five years. The number of Members of the European Parliament (MEPs) is directly related to the population of the Member States. MEPs are members of European party groups, which represent issues that are different from national interests (see Chari and Kritzinger 2006: 26). The EP is together with the CoM the second legislative body of the EU, but it is even weaker than the CoM because it has less power over legislation than the CoM when co-decision procedure is not applied.^[7] On the one hand, the EP shall be the European counterpart to national parliaments by representing European citizens but it lacks the right to initiate legislations which is the sole right of the Commission. On the other hand, the Parliaments ability to alter environmental legislation has been enhanced since the Single European Act (SEA) in 1986. The EP is often the strongest defender of environmental interest among all EU institutions (see Weale et al. 2005: 91). Most of the EP’s pro-environmental reputation is due to the work of its Environmental Committee. The Committee keeps close relationships with its partner institutions and especially with DG XI to “persuade a pro-active policy role in agenda-setting” (Judge et al. 1994: 263). While there has been an official growth in competence, especially though the TEU and the Treaty of Amsterdam (ToA) in 1997, the Parliaments influence is more often informal and covert than open and institutionalised.

1.1.4 The European Court of Justice (ECJ)

The ECJ is the highest court of the European Union in matters of Community law. The ECJ is responsible for clarifying and interpreting European environmental law. Further, it can also settle legal disputes between states, institutions, businesses and individuals. The Court is composed of one judge per Member State but normally decisions are taken in the ‘Grand Chamber’, which is composed of thirteen judges. The Court provides rulings on cases brought before it, concerning preferences for a preliminary ruling, actions for failure to fulfil an obligation, actions for annulment and finally actions for failure to act (see Chari and Kritzinger 2006: 27-29).^[8] Therefore, it is the Court that sets the limits for policy making, confirming or rejecting the legality of European-level legislation. It also affects and alters the focus and priorities of environmental policy. Preliminary ruling is important because it means that the “European legislation takes priority over domestic law in cases where they conflict” (Weale et al. 2005: 103). On the one hand, the Court’s role in the policy process is especially important, because the Commission has no environmental inspectorate and uses instead the Court to enforce Member State’s implementation; the Court is a key instrument for the enforcement of EU legislation in the Member States by establishing its important role in the field of environmental policy (see Sbragia 2000: 302-303). On the other hand, the Court is an obstacle for an effective implementation process in the Member States because it refused to allow environmental groups the legal status to use the ECJ to challenge decisions made by the European Commission after its adoption (Koppen 2002: 103). The Commission usually does not bring cases concerning post-legislative compliance to the ECJ. NGOs who are typically concerned with the monitoring of post-legislative compliance can gain access to the Court only if the Commission’s decision is of direct or individual concern to them. The lack of such access by European environmental groups to the ECJ limits the pressure put on the Commission to concern itself with the procedure of executing legislation (see Sbragia 2000: 303).

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^[1] This shift means a modification of measures from the creation of a common market to processes that involve measures to define the conditions under which markets operate. The Integration is symbolised by the integration of the second and the third pillar of EU integration through the Treaty of Maastricht (TEU). For this definition see F. W. Scharpf: Negative and Positive Integration in the Political Economy of European Welfare States. In F. W. Scharpf, G. Marks, P. C. Schmitter and W. Streek, Governance in the European Union. London 1996 pp. 15-39

^[2] Further information can be found on the EU homepage: http://europa.eu/institutions/index_en.htm

^[3] Issue related DGs for DG XI are: DG I (Trade policy); DG IV (Competition Policy); DG VI (Agriculture); DG VII (Transport); DG XI (Science, research and development); DG XIV (Fisheries); DG XV (Internal market and financial service); DG XVII (Energy); DG XXI (Taxation and Customs Union); DG XXIV (Consumer Policy and health protection (see Wallace H. 2000: 13).

^[4] For comparison see: http://europa.eu/institutions/inst/council/index_en.htm

^[5] QMV is a weighted voting system which gives the larger states more votes than the smaller ones. It was introduced by the Single European Act (SEA) in 1986. Decisions, which are approved by unanimity, are related to policy fields such as common foreign and security policy, taxation, and asylum and immigration policy. In these cases, Member States have effective veto to block legislations. For further information see: http://europa.eu/institutions/inst/council/index_en.htm

^[6] Proponents are regarded as the leaders of environmental standard setting in the EU. According to Weale, I call them “green states” (Denmark, Germany, Netherlands, Austria, Sweden and Finland). The group of opponents are the laggards of the EU, not surprisingly the southern states and the states of the new enlargement. Some states fall out of these categories. The United Kingdom, France and Italy fit neither the criteria of the “green states” nor the characteristics of laggards (see Weale et al 2005: 96-98).

^[7] Co-decision means that the EP has the power to amend or reject legislation in policy areas including the internal market, public health, consumer protection, and culture and education. The EP’s capacity in the field of environmental policy is limited because the co-decision procedure is restricted to special issues (see Wallace H. 2000: 22).

^[8] Preliminary ruling procedure means that if a national court is in any doubt about the interpretation or validity of an EU law it may, and sometimes must, ask the Court of Justice for advice. This advice is given in the form of a preliminary ruling (see http://europa.eu/institutions/inst/justice/index_en.htm).