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

CONTENT

ABBREVIATIONS

1. Introduction
1.1 Assignment’s title
1.2 Complication
1.3 Realization

2. Background of European policy-making on the environment
2.1 Forms of legislation
2.2 Legal basis for Community’s policy on the environment

3. Who takes action?
3.1 Principle of subsidiarity
3.1.1 The Community takes action
3.1.2 The Member States take action
3.1.2.1 Opting out of measures introduced under article 175 TEC
3.1.2.2 Opting out of measures introduced under article 95 (1) TEC
3.1.2.3 Opting out by using a safeguard clause
3.1.2.4 No measures taken by the Community
3.2 Community's exclusive competence

4. Conclusion

LITERATURE INDEX

LIST OF APPENDIX

ABBREVIATIONS

Abbildung in dieser Leseprobe nicht enthalten

1. Introduction

1.1 Assignment’s title

"To which extent is the European Union (EU) entitled to launch environmental policies ? Please give examples."¹

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 policy and 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 policy on 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.

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

- 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.

3. Who takes action?

Generally the Community’s contractual basis provides the legal competence for Community action.¹⁰ At least since the establishment of the Chapter, on the environment in the Single European Act (SEA)¹¹, the Community has the legal permission to launch environmental policies. However the Community's competence in the field of EEP does not ultimately lead to its sole responsibility.

3.1 Principle of subsidiarity

The principle of subsidiarity stipulated in article 5 (TEC) is the measure against which to judge whether the national or the supranational level is appropriate to take action.

Article 5 (2) (TEC) says:

“In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community."¹²

The wording "only if" makes clear that the principle of subsidiarity favours national over Community's responsibility. Hence the burden of proof is on the Community to show that the criteria for supranational action are fulfilled.¹³

Since its inclusion in the SEA there is an ongoing debate about how to apply the principle of subsidiarity.¹⁴ Many different opinions about which criteria should to what extent decide upon the allocation of roles between the national and supranational level exist. The most convenient approach to clarify the general application of the principle of subsidiarity should be presented:

Referring to article 5 (2) (TEC) there are two criteria deciding whether the action should be taken at the national level or the supranational level. The first one is the necessity ("not sufficiently") of Community action which exists if the Member States are because of legislative, administrative or financial reasons not able to perform a solution. The second criterion is about efficiency ("better"). The Community shall take action, only if it is able to achieve a proposed objective faster, less costly and with greater harmony towards other political goals of the EU.¹⁵ Although the formulation "therefore" gives rise to the assumption that the second criterion is not more than a completion to the first one, the two criteria have to be fulfilled independently in order to justify Community action.¹⁶

Issues related to the functioning of the common and the internal market fall within the Community's exclusive competence;¹⁷ that strictly prohibits Member States to take action in this field. Hence the principle of subsidiarity is only applicable to the category of EEP, which shows no or at least minor interfaces with market issues.

However there is a consensus within the European Commission, that in the field of EEP where the principle is applicable it should be interpreted in a more flexible way. More precisely that means that "(…)action by the Community and its Member States will be developed on a co-ordinated basis(…)"¹⁸. Hence the Community and its Member States are obliged to cooperate in order not to jeopardize the objective of a successful environmental protection.

3.1.1 The Community takes action

The Community takes action either in the field covered by the articles 174 -176 (TEC) because the criteria inherited in the principle of subsidiarity are fulfilled, or in the field covered by article 95 (1) (TEC) because of its exclusive competence.

For example provisions on the protection of water, air and ground including legal acts about industrial facilities are because of their strong focus on environmental protection and their relatively small impact in the sense of market distortion based on article 175 (TEC).¹⁹

One provision in the field of air protection is given in the Directive "on national emission ceilings for certain atmospheric pollutants"²⁰.

The aim of this Directive is to limit emissions of certain pollutants and ozone precursors. In order to improve the protection of the environment and human health the Community has moved towards the long-term objectives of not exceeding critical levels and loads by establishing national emission ceilings.²¹

In this Directive it is stipulated that in accordance with the principle of subsidiarity the main reason for Community action is the "transboundary nature of the pollution".

As already explained the legal basis for harmonization of environmental provisions of products, which have the objective to reduce barriers to trade is article 95 (1) (TEC). Having the exclusive competence in those issues the Community has adopted many legal acts.

[...]

¹ Defined by author

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

³ See: Klaus-Dieter Borchardt The ABC of Community Law, European Documentation, 3rd 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.

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

⁷ The articles are presented in appendices I-III.

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

⁹ The article is presented in appendices IV-VII.

¹⁰ « Principe de compétence d’attribution » stipulated in article 5 (1) (TEC)

¹¹ The TEC articles 174-176 were first adapted as articles 130r-t (SEA) in the Single European Act (SEA) signed in 1987. The inclusion of the Chapter on the environment marked the beginning of a common policy on the environment.

¹² Altered by author.

¹³ See: Barnes, Pamela M., Barnes, Ian G,. Environmental Policy in the European Union, 1st ed., Cambridge 1999, p. 302.

¹⁴ Before the principle of subsidiarity was included in article 5 (TEC) it had been stipulated in article 130r (4) (SEA).

¹⁵ See: Wepler, Claus, Europäische Umweltpolitik, 1st ed., St. Gallen 1998, p. 355.

¹⁶ See: Schmitz, Stefan, Die Europäische Union als Umweltunion, 1st ed., Berlin 1996, p. 208.

¹⁷ See: Wepler, Claus, Europäische Umweltpolitik, 1st ed., St. Gallen 1998, p. 354, 368.; see: Schmitz, Stefan, Die Europäische Union als Umweltunion, 1st ed., Berlin 1996, p. 230.

¹⁸ EC Environmental Policy, quoted in: Schmitz, Stefan, Die Europäische Union als Umweltunion, 1st ed., Berlin 1996, Berlin, p.225.

¹⁹ See: Wepler, Claus, Europäische Umweltpolitik, 1st ed., St. Gallen 1998, p. 195, 196.

²⁰ Directive 2001/81/EC of 23 October 2001.

²¹ See: Directive 2001/81/EC of 23 October 2001, article 1.