Nitrogen Dioxide Pollution. Background to EU Limits for Air Pollutants

Table of contents

1. Introduction

2. Policy Making in the European Union
2.1. Legal Foundation of the European Union
2.2. The European bodies: Interplay and Accessibility
2.2.1. The Commission
2.2.2. The Council of the European Union (CoM)
2.2.3. The European Parliament (EP)
2.2.4. The European Court of Justice (ECJ)
2.2.5. Non-governmental organisations (NGOs)
2.3. Multi-Level Governance (MLG)

3. Background to EU limits for air pollutants
3.1. Initiation of Legislation on the EU limit values of air pollutants
3.2. The Influence of the WHO on the EU limit values of air pollutants
3.3. Financial interests
3.4. The influence of the Automotive corporations

4. Conclusion

5. Bibliography

1. Introduction

This paper is an attempt to provide a comprehensive and systematic overview of European environmental policy, in particular the definition of the air pollutants’ limit.

The EU itself is not an isolated and closed legislative body, but a highly developed and vastly complex entity at supranational level. In doing so, the EU acts in an environment of international organisations and institutions on the one hand, and national influences on the other.

Moreover, the foundations of EU multi-level governance are based on a highly complex system of vertical and horizontal links. The topic of the environment requires horizontal integration. It should not be forgotten that the states of the EU are in a mutual dependence of the economic and environmental political paradigm.

The establishment of the air pollutants’ limits in recent months has repeatedly led to heated debates both at EU level and at national level.

The main sources of nitrogen oxides are internal combustion engines, especially diesel and combustion plants for coal, oil, gas, wood and waste. It is hardly surprising that, especially in agglomeration areas, high traffic volumes are a major cause for high air pollutants values. In addition, in 2015 the diesel scandal came to light. Large car companies used software that made it possible to simulate lower air pollutants emissions in certain test situations. This scandal is still not completely resolved. As a consequence, due to the high air pollutants emissions, a diesel driving ban is being considered.

Apart from the possible health effects that can be caused by the inhalation of fine dust, a diesel driving ban also affects a broad segment of the population. And while the need for a consistent environmental policy is undeniable, this paper seeks to address the question of how the EU set the limit.

In the first part of this thesis, I will discuss the process of Policy Making in the European Union by looking at the individual actors. It distinguishes between the horizontal and vertical levels of policy making. In the second part I take a closer look at the actors in the process of determining the air pollutants’ value. Here, I will bring their motivation and strategies into focus. The third part of this thesis examines the role of automotive companies in this process and their impact on it.

2. Policy Making in the European Union

The European Union may be the most important decision-maker, especially in environmental matters. Every decision made by the EU also affects each member state (see Wallace, 2015: 4). It should be noted that certain problems of international politics, such as climate protection, can no longer be solved by a single state. An international approach is therefore necessary. The EU is an attempt to unite problem structures and decision-making structures at a supranational level (see Weidenfeld, 2013: 21). Each Member State has varying results of success in implementing the respective specifications.

2.1. Legal Foundation of the European Union

The roots of what we today refer to as the European Union lies in the European Coal and Steel Community (ECSC) and was established in 1951 by Belgium, the Federal Republic of Germany, France, Italy, Luxembourg, and the Netherlands with the Treaty of Paris (see Wallace, 2015: 5-6). So, the first steps of the EU integration related to economic issues. The beginning of the EU integration process can be located in the 1970s and 1980s by creating a single European Market. The term European Union was first introduced by the Maastricht Treaty (TEU) in 1992 (see Wessels, 2008: 61-65, 75-87, 89-93). Here is also a constitutional-like framework for the EU is specified: In the Consolidated version of the Treaty on European Union, Article 6 (1) (ex Article 6 TEU) it says:

The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

Since 1951, the Union has been steadily expanded through expertise. In addition, new member states keep coming up, the last one being Croatia in 2013. Important agreements are the Treaty of Amsterdam, 1997, which gave the European Parliament more legislative power and 2001 the Treaty of Nice that tightened the EU institutions for further enlargement. In 2004, the Constitutional Treaty (CT) failed because of negative referenda in France and the Netherlands. However, in 2007 the Treaty of Lisbon ratified a modified version of CT (see Wallace, 2015: 5-6). The constitutional framework of the EU is gladly depicted with three columns. The first pillar is the Economic and Monetary Union, the second pillar is the common foreign and security policy, and the third pillar symbolises the justice and home affairs policy (see Hartmann, 2009: 16-17).

If we take a look in the Consolidated version of the Treaty on European Union, Article 1 (ex Article 1 TEU) it says: “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.” This refers to the principle of subsidiarity which is also seen in the preamble of the Consolidated version of the Treaty on European Union. Subsidiarity means that the community will only operate under certain conditions in areas outside its exclusive competence (see Consolidated version of the Treaty on European Union, Article 5 (3) (ex Article 5 TEC)).

The EU is a system of multi-level governance (see Heinelt, 2011: 7-17). Although the EU is not a nation state, it is similar to a federal state. Brussels, as a political apparatus, embodies a federal force that stands above the nation states of the Member States. Thus, the EU is supranational. However, the EU also lacks important competences, such as in matters of social security (social legislation) and taxation policies (see Hartmann, 2009: 12-13). The reason for this is that the European Union is an association of sovereign states which have decided on the allocation of powers by themselves (see Weidenfeld, 2008: 121). If the Member States decide to give up their competences and transfer them to the European Union, they simultaneously allow themselves to be restricted and bound by their sovereignty (see Hartmann, 2009: 36). In particular, environmental policy has become a core issue in the EU. In doing so, the member states have to adapt their own national laws, regulations, policy instruments and administrative structures to the specifications of the EU. This is by no means a one-sided process. Member States have also been able to maintain an influential role in this multi-level governance structure (see Knill et al., 2011: 171).

2.2. The European bodies: Interplay and Accessibility

In the field of the European environmental policy, the Commission, the governments of the Member States in the Council of Ministers, and the European Parliament are the main actors (see Lenschow, 2015: 322). Nonetheless, non-governmental organisations are playing an increasingly important role (see Young, 2015: 50-51). In addition, the European Court of Justice has a crucial role, as it is responsible for deciding which acts of immigration environmental law are allowed under an internal market and which are not (see Lenschow, 2015:330-331. In the following, therefore, the main actors will be briefly considered.

2.2.1. The Commission

The European Commission (EC) is a supranational community body. As the central executive body of the Union, it is contractually bound to the general EU interest and should act independently of the national governments. At the moment, it consists of 28 members, including Great Britain. Each member state can appoint a commissioner (see Weidenfeld, 2010: 135-136).

It should be noted that the role and structure of the European Commission is not comparable to a general secretariat of an international organisation, nor can it be described in the common sense as its EU government. Rather, the Commission is a ‘co-creator’ in the core fields of EC actions and has additional functions in other policies of the EU system (see Wessels, 2008: 225).

The Commission has a range of tasks that can be aptly described as ‘executive of the union’, ‘engine of integration’ and ‘guardian of the treaties’. These functions include four main tasks: First of all, the Commission is responsible for the implementation of EU policies and budgets, as well as the administration. Secondly, the Commission has the initiative monopoly in the legislative process. In doing so, it drives integration as an agenda-setter. The third task is to enforce European law in cooperation with the European Court of Justice. Last but not least, the Commission represents the European Union at international level (see Weidenfeld, 2010: 138-140). This is done, for example, in negotiations with the WTO, WHO, and association agreements with third countries (see Wessels, 2008: 236). In doing so, the Commission must strike a balance between creating an European profile, in particular environmental policy, and accountability to member-state preferences (see Lenschow, 2015: 324). The European Commission can be distinguished in three levels. The first level is the College of 27 Commissioners which has political responsibility. The second level is the Cabinet, which is directly subordinate to the Commissioner. Each Commissioner unites a Cabinet with up to nine officials. The third level is provided by the Directorate-General (DG), where each directorate-general has its specific responsibility (see Weidenfeld, 2010: 141-142).

2.2.2. The Council of the European Union (CoM)

The relationship between the Council of the European Union (CoM) and the Commission can be described as follows: ‘The Commission proposes - the Council disposes’. The final decision-making power lies with the Council. However, it can only act on a proposal from the Commission. The CoM also has the opportunity to invite the Commission to submit a proposal (Art. 208 EGV) (see Wessels, 2008: 192-193). In the CoM, the governments of the member states are represented by representatives at the ministerial level. These representatives are authorised to act bindingly on the government. Thus, the CoM is similar to classic international organisations. Due to the possibility of binding majority voting, the Council has supranational features. Additionally, the Council has a six-month rotating presidency, based on a rotation system which does not discriminate against any member state (see Weidenfeld, 2010: 129-131). The Council works and decides in the form of specialised councils, for example the Council of Environmental Ministers (see Hartmann, 2009: 106-107). Depending on the topic, the Council has a decision-making and coordinating role. Therefore, it can act both as executive and as legislative. Particularly in the predominantly intergovernmentalised political economy, the Common Foreign and Security Policy is the Council’s central decision-making body (see Weidenfeld, 2010: 131-133).

Like the Commission, the Council is divided in itself and there is only a little coordination between the individual formations. It is expected that the coordination of national positions will take place in the Member States themselves (more or less successfully). In particular, with regard to the ‘environment’, a deep division can be seen among the ministers. Apart from the financial background of the individual countries, this division is also caused by different problems the national states have to deal with. First, the member states have distinct environmental problems coupled with different economic weaknesses. The prioritisation therefore also takes place with diverse weightings. Secondly, the states differ in their approach and philosophy. These include political style, available political instruments and bureaucracy. Thirdly, the positions of individual states may change over time as governing parties change or conditions change (see Lenschow, 2015: 326-328).

2.2.3. The European Parliament (EP)

The European Parliament is the only directly elected institution of the European Union and is accordingly the direct representation of EU citizens at European level. The distribution of 751 seats is degressive-proportional. That means that the number of members of the Parliament is directly related to the population of the Member States. This ensures adequate representation even of smaller member states such as Malta, without Parliament getting too big to work constructively (see Weidenfeld, 2010: 116-117). The election of the EP takes place according to national regulations, whereby a term of office lasts five years (see Wessels, 2008: 120). In the current legislature, the MPs have formed seven multinational political groups whereby factions can be formed at any time during the electoral term (see European Parliament, 2019).

Although the Lisbon Treaty has upgraded the European Parliament to become a full partner of the CoM, the EP does not have the right to take the initiative for European legislation (see Hartmann, 2009: 136-137). However, the EP has increasingly become a strong veto player over other European institutions (see Wessels, 2008: 119).

Traditionally, the EP is mostly committed to environmental policy. The first nature protection policy was already on the agenda at the beginning of the 1970s. An example of this is the 1979 Wild Birds Directive, traceable back to 1971, when the EP called on the Commission to address this concern. With the Directive 91/441 / EEC, a mandatory emissions limit for automobiles, the first EURO standard was established in the 1980s. Here, the EP had played a leading role. However, the EP’s efforts for a ‘green policy’ have diminished over the years. Especially after the eastward enlargement, the number of deputies belonging to green parties has decreased. In 2014, only 50 out of 751 MPs were members of the Green / EFA group (see Lenschow, 2015: 328-329). However, in the current parliament the MPs of the Green / EFA group counts 75 (see European Environmental Bureau, 2019). Historically, the work of the Environment Committee proved to be a leader of environmental considerations. Nevertheless, the Environment, Public Health and Food Safety Committee (ENVI) moderately reduced its efforts under the environmental skeptic Mirslav Ousky of the Czech Republic (Chairman of the Committee: 2007-2009). However, after the election in 2009, German Social Democrat Jo Leinen took over the chairmanship of the committee, and after him, in 2012, the former Saarland Minister of the Environment Matthias Groote. Both played an important role in returning to a much more active role in environmental issues, especially the car-emission dossier (see Lenschow, 2015: 329).

2.2.4. The European Court of Justice (ECJ)

The Court of Justice of the European Community is the highest court in matters of Community law. The ECJ is designed as an universal court and decides in all matters of European law, such as economic, environmental, or contract law (see Hartmann, 2009: 163-164). In this way, the ECJ secures the character of the European Community as a legal community (see Wessels, 2008: 257). The Tribunal is composed of one judge from each Member State and shall be appointed for a term of six years. A re-election is possible. In their work, the judges are supported by a total of eight Advocates-General, at the request of the court, the number can be increased to twelve. The court can act as a reactive organ only on complaint or request (see Weidenfeld, 2010: 142-145). Especially in environmental policy, the ECJ has always played a decisive role in the past.¹ For environmental policy, the main task of the European Court of Justice is to transpose and enforce the directives. At the same time, the ECJ received further powers by the Treaty of Lisbon to accelerate infringement proceedings of the member states. It is now possible for the Commission to request interim measures before the final decision of the Court; for example, if a member state fails to adopt timely implementing provisions for a new directive (see Lenschow, 2015: 330-331).

2.2.5. Non-governmental organisations (NGOs)

However, in addition to the formal institutions, other interest groups and civil society actors have also influenced the formulation of EU public policy. Interest groups, such as employers and workers organisations, social organisations, churches and NGOs have been involved in Brussels for a long time and are actively involved in shaping the policy output (see Wessels, 2008: 280). Interest groups are collectives of actors who use their resources to assert their common interests in the political decision-making process. It makes sense to distinguish between private and public interest groups. The former pursues economic goals, the latter non-economic goals (see Watson and Shackleton, 2008: 89). Most interest groups are organised in umbrella organisations, such as the Union of Industrial and Employer’s Confederations of Europe (UNICE) or the Agricultural Lobby, the Committee of the Organisation Professionelles de l`Agriculture (COPA). In addition to these international associations, there are of course national associations, such as the German Trade Union Confederation (DGB). The influence on the political operation by these organisations are diverse. Informal contacts such as policy networks, quasi-formalised strands of interaction, contractually-enabled participations and participation by advisory committees and committees are possible (see Wessels, 2008: 280-283). By the 21st September 2019, 3093 NGOs were registered in Brussels. In total, 11861 organisations and interest groups were statistically covered by the EU For example: The Danish Bottle Case and the Titanium Dioxide case.

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