2.1 Development of EU environmental policy
For a long period of time the European Community (as it was then) had nothing that could properly be described as environment policy, and though some early measures did relate to the environment, they were adopted with common market objectives in mind using the then Article 100 (for example testing new chemicals and harmonisation of approaches to pollution control).
The turning point came in 1973 when, following a Declaration by the Community’s Heads of State and Government in October 1972, an Environmental Action Programme was issued (see below). It spelt out action that the Commission would propose to reduce pollution and nuisances; improve the natural and urban environments; deal with environmental problems caused by the depletion of certain natural resources; and promote awareness of environmental problems and education. This prompted the adoption of some of the first pieces of ‘environmental’ legislation, including the Birds Directive in 1979 (see Section 9.2).
By 1987, some 200 items of environmental legislation had been agreed (see
Figure 2.1.1), under either the then Article 100 (now Article 94) of the Treaty of Rome (on the approximation of laws affecting the functioning of the Common Market), or under the ‘catch-all’ Article 235 (now Article 308). The lack of a clear legal base for the Community’s environmental policy was much criticised in several Member States, particularly in Germany, and by the UK House of Lords’ Select Committee on the European Community1. However, following an Inter-Governmental Conference (IGC) in 1986 to amend the Treaty, a new ‘Environment Title’ (Articles 130r-t) was introduced by the 1987 Single European Act (SEA). This, for the first time, provided explicit legal underpinning to the Community’s environment policy.
The objectives of the Environment Title were very broad, enabling the Commission to propose legislation in areas where it had previously been reluctant to tread, such as the protection of wildlife habitats, or the freedom of access to environmental information. These objectives were to: preserve, protect and improve the quality of the environment; contribute towards protecting human health; and ensure a prudent and rational utilization of natural resources. Action relating to the environment was to be based on the principles that preventive action is to be taken; that environmental damage should be rectified at source; and that the polluter should pay. The SEA also introduced the important principle that ‘environmental protection requirements shall be a component of the Community’s other policies’.
In preparing its action in relation to the environment, the Community was to take into account available scientific and technical data; environmental conditions in the various regions of the Community; the potential benefits and costs of action or of lack of action; and the economic and social development of the Community as a whole. Action could be taken in instances where it was felt that the objectives would be better achieved at the Community level than by individual Member States. However, it stated that Member States would not be prevented from maintaining or introducing more stringent measures than those set at the Community level, so long as they were compatible with the overall objectives of the Treaty, for example the internal market (Article 130t).
The Maastricht Treaty of 1992 strengthened the Community’s commitment to environmental protection by including, as one of its basic tasks, the promotion of ‘sustainable and non-inflationary growth respecting the environment’ (Article 2). Article B of the Common Provisions of the Treaty similarly refers to ‘economic and social progress which is balanced and sustainable’. Though some environmentalists were disappointed that the full Brundtland definition of sustainable development (1987) was not included in the Treaty, and many considered that ‘sustainable growth’ could easily be interpreted as ‘sustained growth’, nevertheless this change reflected a symbolic step towards greening the Treaty. The Articles in the Environment Title were also strengthened, so that policy was to ‘aim at a high level of protection’, and be based on the ‘precautionary principle’ as well as those principles set out in the SEA. Further, the requirement on integration introduced in Article 130r was reinforced, such that ‘Environmental protection requirements must be integrated into the definition and implementation of other Community policies’. In addition, a ‘Declaration by the Member States on Assessment of the Environmental Impact of Community Measures’ was annexed to the Treaty, adding more weight to the environmental commitments now enshrined. This stated that ‘The Conference notes that the Commission undertakes in its proposals, and that the Member States undertake in implementing these proposals, to take full account of their environmental impact and of the principle of sustainable growth.’
Maastricht also strengthened the role that the European Parliament had in developing environment policy, by establishing the codecision procedure in which it had equal power to the Council, and extending the number of policy areas where the Council could adopt environmental legislation using QMV rather than unanimity (see
Section 2.5). This was a positive step in two respects. Firstly, the European Parliament had traditionally been ‘greener’ than the Council; and secondly, extending QMV removed the power of veto, which in theory would make environmental standards easier to agree. The cooperation procedure remained the norm for environment policy however, and unanimity was still required in the Council in matters primarily of a fiscal nature, town and country planning, land-use (with the exception of waste management and ‘measures of a general nature’) the management of water resources, and decisions affecting the choice of energy sources and structure of its energy supply.
Sustainable development was made an explicit objective of the EC with the agreement of the Amsterdam Treaty in 1997. This amended Article 2, such that: ‘The Community shall have as its task…to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, sustainable and non inflationary growth…’. The Amsterdam Treaty also strengthened the requirement to integrate the environment into other EU policy sectors by bringing it to the beginning of the Treaty (Article 6), rather than it being hidden away in the Environment Title, and explicitly stating that ‘Environmental protection requirements must be integrated into the definition and implementation of the (other) Community policies …’. Further, a non-binding Declaration attached to the Treaty committed the Commission to undertake to ‘prepare environmental impact assessment studies when making proposals which may have significant environmental implications’, building on the Maastricht Declaration which only required it to take ‘full account’ of the environmental impact of proposals. These two developments gave DG Environment much more power in promoting integration within the Commission. Article 6 has given rise to new approaches to environmental policy development, including the Cardiff Process and the EU Sustainable Development Strategy (see Section 3.1).
As with its predecessors, the Amsterdam Treaty made changes to the way in which decisions were to be made. Codecision became the normal process for agreeing environment policy, thus further enhancing the role of the European Parliament (but still with the exception of fiscal measures etc). It was also extended to transport policy and Trans-European Networks (TENs), and to the Structural Funds’ implementing Regulations. The Treaty also renumbered Articles. The broad objectives, as now set out in Article 174, provide the Community with legal competence to act in all areas of environmental policy.
Today, the growing corpus of ‘environment policy’ is effectively composed of two elements: what is traditionally the field of environment Ministries, eg air and water pollution; and policies of other Ministries, possibly under the influence of the environment Ministry, to advance the cause of environmental protection in the long as well as the short term. The two elements inevitably overlap, and both are necessary for achieving ‘balanced and sustainable development of economic activities’. The thematic sections in this Manual are primarily concerned with the first. However,
Chapter 3 provides an overview of the links between environmental policy and other sectors of EU policy and of action taken to integrate environmental requirements into these other sectors. In addition to Articles 174-176 in the Environment Title of the Treaty, several other Articles are also relevant to environmental protection and the development of Community policy in this area. These are listed in
Figure 2.1.2.
The scope of Community environment policy The broad objectives of EU environmental policy as set out in Articles 174-176 provide the Community with legal competence to act in all areas of environmental policy. However, it is clear from the Treaty that this competence is not exclusive and that it is shared with the Member States. In practice, the scope of the Community’s intervention in environmental policy is limited by two major factors. (i) The first is the principle of ‘subsidiarity’, which restricts action at EU level to those areas where it can be more effective than national or regional interventions. The principle was first introduced specifically in relation to environment policy in the Single Environment Act, and later given legal force in relation to all Community policies in the Maastricht Treaty. Procedures have since been introduced within the Commission to screen legislative proposals for their conformity with the subsidiarity principle. Partly as a result, some environmental Directives have taken the form of ‘framework’ legislation, leaving Member States with considerable discretion in their implementation. (ii) The second factor limiting the scope of the Community’s environmental policy has been the continuing requirement in the Treaty for the unanimous – rather than majority – support of Member States in the Council of Ministers for Community action in areas which most of them regard as particularly sensitive. Examples include ‘green’ taxation, quantitative management of water resources, town and country planning and aspects of energy policy. As a result, the corpus of Community environmental legislation gives relatively comprehensive coverage to air and water pollution and waste management, but contains very few items which apply, for example, to land-use planning or traffic management. Such Community interventions as there are in these areas tend to take less prescriptive forms, such as guidance or the provision of financial support for the exchange of good practice. |
