EU Environmental Policy and the Role of Germany

Introduction

Discussions about the environmental policy in the European Union generally have a somewhat more pleasant character than those surrounding other areas of EU legislative competence. The EU retains a very high degree of competence within the realm of environmental policy while experiencing only marginal resistance from individual member states. However, decision-making processes inside the EU legislative apparatus are complex and sometimes obscure; equally to those of most of its member states. Adding to confusion, the European legislation covers a myriad of environmental policies.¹

This essay seeks to shed light on the role of the Federal Republic of Germany in EU environmental policy-making. In order to achieve this, the structure of this essay is threefold. First of all, a short introduction is given, outlining the history of EU environmental legislation until present day. In a second step, Germany’s possibilities and efforts towards uploading its environmental policy (Umweltpolitik) in EU legislation processes are analyzed. Here, special attention will be paid to Germany’s efforts in the field of climate change within the European Commission (hereafter: Commission), the Council of the European Union (hereafter: Council), and the European Parliament (hereafter: EP). Finally, the findings are summarized and analyzed, looking at future prospects.

The history of EU environmental policy-making processes

During the first years of European Integration, the policy area of ‘environment’ played only a marginal role. Notably, environmental policies did not form a part of the Treaty of Rome of 1958 until 1973. However, “a number of pieces of environmental legislation had been adopted” during this period (Hildebrand, 1992, p.13). The grass roots of an autonomous environmental policy can be located in the creation of the European Council at a summit in Paris in 1974. During this summit, a “declaration for an environmental and consumer protection policy” was adopted (Knill, 2008). In the following of this summit, the European Economic Community (EEC) bundled its efforts with Environment Action Programmes (EAP)², scheduling medium-term goals within the domain Langerfeld, 2003, p.339).

EAPs follow two goals: On the one hand, they put an emphasis on focal points of future legislation, and on the other hand, they fix “strategic orientation of EU environmental policy” (Knill, 2008). The 7th EAP, titled “Living well, within the limits of our planet” (2013-2020), is still pending to become EU law through the “ordinary legislative procedure by the European Parliament and the Council of the European Union” (European Commission, 2012b).

Despite of “lacking particular legislative foundations”, the environmental policy of the EEC developed to be an independent one during the 1970s/1980s (Knill, 2008). More bases of concerted environmental action evolved out of new competencies as adopted in the Treaty on European Union (hereafter: Maastricht TEU) of 1992. Inter alia , the treaty states that the community

“ ( … ) shall contribute to pursuit ( … ) the following objectives:

- preserving, protecting and improving the quality of the environment;

- protecting human health;

- prudent and rational utilization of natural resources;

- promoted measures at international level to deal with regional or worldwide environmental problems ” (Maastricht TEU, art.130r, 1).

Shortly after the ratification of the Treaty of Amsterdam in October 1997, the Council of the European Union issued a resolution, underlining its belief that environmental agreements “can play

an important role within the mix of [policy] instruments (…).” (Council Resolution, O.J. No. C321/2, 22.10.97, p.6). However, such resolutions do not pose a legally-binding act since they are only “(…) manifestations of a commonly held political will (…)” (EUR-Lex, 2010). The European Union has adopted various of such principles that offer guidelines to the process of policy-making.

Since the amendments of the Lisbon Treaty in 2009, both the Council and European Parliament decide “in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions” about the objectives of the EU environmental policy (TFEU, art.192, 1). Most notably, the last sentence of art.103r, 1 Maastricht TEU has been expanded to “(…), and in particular combating climate change” (TFEU, art. 191, 1).

Before and after Lisbon, member countries have either implemented or have been encouraged to implement the aforementioned principles; however, “[s]trict fulfilment of some of the principles is not obligatory” (Dezséri and Vida, 2011, p.146). Nevertheless, the lessons and challenges faced by individual states have not been communicated effectively to other member states (Markham, 2011, p.342). This fact may have hindered the abilities of EU member countries to gain an insight into environmental issues from the other countries. Especially after the eastward enlargement of the euro area in 2004 and 2007, gloomy scenarios were drawn because “least industrialized European countries would prefer low standards of environmental regulation in order to preserve low costs of production and remain competitive” (Garcia Perez de Leon, 2011, p.5). In fact, competitiveness of high-polluting industries is jeopardized by rigid Climate Change Frameworks. Unexpectedly, successful legislation of restrictive environmental laws has nevertheless increased after the 2004 and especially after the 2007 enlargements, as the following chart illustrates:

illustration not visible in this excerpt

Source: Eur-Lex, 2013. http://eur-lex.europa.eu/en/index.htm. (Search method: ‘Simple Search’ > ‘Legislation’ > ‘All legislation’/‘Regulations’/‘Directives’ > ‘Classification headings’/’ Date or time span’ > ‘Do not restrict search to acts in force’.)

At this point, the question arises whence these positive developments originate. Apart from spending hundreds of thousands of Euros on Kr ö tentunnel (amphibic tunnels below highways and country roads), Germany is generally characterized as “ambitious” regarding regulatory issues of environmental policy, particularly in the field climate change (Schomerus, 2011, p.178). For this reason, Germany’s impact on European environmental policy shall be examined.

Germany’s role in EU policy-making against climate change

First of all, it has to be noted that the entireness of EU environmental policy has to concur with the German Basic Law (Grundgesetz, hereafter: GG) in order to be executed. On the contrary, Germany lacks a clearly defined field of Environmental Law. German environmental law is rather subdivided into several federal acts that then are individually executed at the L ä nder -level.³ Some of the most important for the field of climate change are:

- the Federal Nature Protection Act (Bundesnaturschutzgesetz, or BNatSchG),
- the Federal Immission Prevention Act (Bundesimmissionsschutzgesetz, or BImSchG),
- the Renewable Energy Act (Erneuerbare-Energien-Gesetz, or EEG), and the
- Environment Compatibility Act (Umweltvertr ä glichkeitsprüfungsgesetz, or UVPG).

Inter alia, these norms form part of Germany’s overall climate protection policy (Klimaschutzpolitik). Since it is impossible to review all of Germany’s legislation that is connected to climate change, this paper can merely highlight Germany’s efforts and possibilities of uploading its climate protection policy into its EU counterparts.

In order to achieve this, the three main bodies of the EU legislative apparatus are looked at: the European Commission, the Council of the European Union, and the European Parliament.

Germany’s influence on the European Commission

The Commission does not only act as the “watchdog of the treaties”, it also retains the right of legislative initiative (European Commission, 2012c).⁴ Although all 27 member states are

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¹ The European Commission states the following areas of environmental policies: “Air, Chemicals, Enlargement and Neighbouring Countries, Industry and Technology, International Issues, Land use, Marine and Coast, Nature and biodiversity, Noise, Soil, Sustainable development, Waste, Water and Marine” (European Commission, 2012a). Due to dimensional limitations, the focus of this paper has to be a narrowed one.

² Until present day, six EAPs have been adopted: 1. 1974-1975, 2. 1977-1981, 3.1982-1986, 4. 1987-1992, 5. 1992- 2000, 6. 2002-2012 (Langerfeld, 2003, p.339).

³ “Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the L ä nder” (GG, art.30).

⁴ Moreover, by virtue of Lisbon Treaty amendments, the European Parliament gained new power of quasi-legislative initiative. This matter will be discussed below.