Discussion and Questions

a. History

The seeds of today�s European Community were planted amidst the devastation of two world wars in the first half of this century. Only 21 years separated bloody encounters across the continent, plunging European nations into political and economic collapse. These experiences provided brutal evidence that a new Europe was urgently needed -- a Europe which would temper national antagonisms through strengthened economic and political bonds. Viewed 50 years after its founding, the European Community has to be regarded a success by almost any measure. The Community�s members have not been at war with one another, the Iron Curtain has disappeared, traditional enemies have built stronger economic and political ties than ever before, and trade and economic growth have substantially increased. Regional institutions now play a leading role in areas that affect the entire Community -- such as monetary policy, competition, foreign and security policies and environmental protection. The Community rests upon a fundamental fault line, however, of the collision between regional and national interests, between concentrating strength in Community institutions and retaining national traditions and sovereignty. Indeed the key question today is one of �subsidiarity,� deciding how much national authority should be ceded in which specific areas and how much local control should be retained.

Today�s European Community actually consists of three Communities: The European Coal and Steel Community (ECSC), European Economic Community (EEC, whose name has been changed by the Maastricht Treaty to the "European Union," EU) and the European Atomic Energy Community (EURATOM). The Treaty of the ECSC was signed in Paris in 1951 in order to pool Europe�s coal and steel industries. The Treaties of Rome in 1957 created EURATOM and the EEC. The EEC�s primary intent since its origin has been to establish stronger economic ties among the European nations and, therefore, bind them stronger together politically as a result. Hence it created a common market unifying the national markets of the Member States in a commercial zone.

The Maastricht Treaty in 1992 strengthened the regional institutions� capacities by establishing the European Union (known as the "EU") which subsumed the ECSC, EEC, EURATOM). The EU rests upon three pillars: the common market of the European Community, common foreign and security policies, and cooperation between the Member States in the fields of justice and home affairs. As of 1997, the EU had 15 Member States representing more than 370 million people (France, Italy, United Kingdom, Germany, Spain, Netherlands, Belgium, Greece, Portugal, Denmark, Ireland, Austria, Sweden, Finland and Luxembourg). A number of East European nations such as the Czech and Slovak Republics, Hungary and Poland have been granted "associate status" and are under consideration for membership.

b. Sources of Community Law

i. Primary Legislation

In order to guarantee the uniform and equal application of the Community�s rule, Community law is granted primacy over national law (including national constitutional law). Therefore, it supersedes all national provisions that diverge from a Community law -- whether established before or subsequent to the Community law.

As with the U.S. Constitution, the Community�s founding treaties provide the basic source of Community law, including the various annexes and protocols attached to them, their later additions and amendments. The three treaties creating the Community�s objectives, institutions, and procedures are the EEC Treaty (1957), the Single European Act (1987) and the Treaty on European Union (known as the "Maastricht Treaty," 1992). Together they are, literally, the constitution of Europe and are referred to as "primary legislation." All Community laws must be justified as attaining one of the objectives enunciated in primary legislation.

As described above, the EEC�s primary objective when created was increased economic and political union through the establishment of a common market. While the EEC exercised some environmental authority, protection of the environment was not a central objective and, in fact, the EEC Treaty did not contain the word, "environment." It soon became apparent that this lack of attention posed problems, for certain environmental issues clearly had transboundary impact and, more important, national environmental laws requiring businesses to meet different standards could in some circumstances create considerable barriers to trade. Lacking an explicit provision for environmental protection in the Treaty of Rome, Community environmental legislation had to be passed under general provisions of the Treaty: either Article 100 (providing authority to harmonize national law directly affecting the establishment or functioning of the Common Market) or Article 235 (measures necessary to obtain a Community objective). The European Court of Justice accepted both Articles as sufficient bases to propose environmental legislation by the Community on matters with a direct effect on the internal market.

The Single European Act remedied this omission, providing specific powers to implement environmental measures in Articles 130r, 130s, and 130t. Article 130r established environmental protection as a basic objective of the Community and adopted the proximity principle (i.e. environmental damage shall be rectified at source), the polluter pays principle and the preventative principle. It also explicitly applied the doctrine of subsidiarity, calling for Community action to protect the environment when it would be more effective than national action. Given the transboundary nature of most pollutants, this gave the Community a broad range of authority. Article 130t permitted Member States to take stronger protective measures than those required by Community law so long as these measures were compatible with the Treaty (in particular, Articles 30 and 36 providing for free movement of goods and services). This issue is discussed in detail in the Danish Bottles case in Chapter 16 (page 1285).

Article 100a was also introduced, authorizing the Council to adopt by qualified majority measures "concerning health, safety, environmental protection and consumer protection" intended to establish the internal market. Article 100a(3). Under qualified majority voting, the votes of the more populous countries have greater weight than those of smaller countries. A number of environmentally active Member States opposed qualified majority voting because they feared it would lead to lower standards in the already sensitive area of environmental protection. To address these concerns, Article 100a(4) provided:

Thus Articles 130s and 100a enable Member States to enact stricter environmental legislation than that provided in Community legislation if it is based on major national needs and is in conformity with other provisions of the Treaty.

In addition, the Single European Act amended Article 2 to establish sustainable development as a basic task of the Community, requiring the Community to establish and promote a "harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States."

Just five years later, the Community�s environmental protection measures were further strengthened by the Maastricht Treaty. Article 130r laid out more specific Community environmental objectives. Article 130s detailed the procedures for adoption of environmental measures; and Article 130t permitted Member States to take more stringent environmental protection measures.

Treaty on the European Union of 1992 (Maastricht Treaty)
(excerpts)

ARTICLE 130r

1. Community policy on the environment shall contribute to pursuit of the following objectives

2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventative action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Environmental protection requirements must be integrated into the definition and implementation of other Community policies. In this context, harmonization measures answering these requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.

3. In preparing its policy on the environment, the Community shall take account of:

4. Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organizations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 228. The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.

ARTICLE 130t

The protective measures adopted pursuant to Article 130s shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the Commission.

ii. Secondary Legislation

In promulgating laws, the Community is bound by the specific law-making competencies enunciated in the primary legislation. This conferred legislative power (so called "secondary legislation") takes different forms, depending on the objectives to be achieved. While five means of promulgating legislation are provided for in Article 189 of the Treaty of Rome, in general Community legislation is adopted through two means: regulations and directives.

Regulations are the most direct form of Community law, binding on every Member State and compelling them to implement all provisions in their entirety. Because regulations are directly applicable (self-executing), they do not have to be adopted or implemented through national legislation. Regulations thus confer rights and impose duties directly on Member States, their institutions and courts in the same way as domestic law.

In the environmental field, Directives are much more commonly used than regulations. Directives are not self-executing. They establish objectives and leave to the national authorities the decision of how best to attain them. In practice, in the environmental field directives are often written in such detailed terms that the Member States� latitude for maneuver is limited to a minimum. Directives do not supersede national law and, unlike regulations, are not immediately binding on citizens. This is a subtle but important point. Once a Community regulation has been passed, it directly becomes binding on Member States and their citizens and companies. In contrast, a directive is only binding on Member States and must be adopted into national legislation before giving legal rights which may be exercised by citizens and companies. This distinction becomes important when a Member State does not implement a directive or does so incorrectly. As a result, citizens may be denied the legal rights provided by the directive.

To address this situation, the European Court of Justice has developed a principle known as "the direct effect" of directives. In cases where the provisions of a directive are (i) sufficiently precise and clear, (ii) the alleged rights are unconditional, (iii) the provisions thoroughly define the legal relationship ( implementation and application requirements), and, (iv) the time allowed to a Member State for implementation of the directive has expired, individuals are granted the right to enforce, before their national courts, directives that have not yet been implemented fully. Thus a citizen may rely on the legal requirements of a directive against the State even if the directive has not been adopted into national law. This is necessary to ensure that the state derives no benefit from its violation of Community law. To date, the Court has applied the principle only in cases between citizen and Member States (so called "vertical effect") and only when the directive benefited citizens, i.e. when the citizen�s position under the directive was more favorable than under the old law.

A 1991 case, Francovich & Ors. v. Italy, held that Member States can be liable to private parties for damages caused by the state�s failure to implement a Community directive within the specified time limits. In this case, Italy failed to implement a directive protecting employees� rights of remuneration in the event of the employer�s insolvency. Although the directive gave rights to the employees, these rights could not be given direct effect (i.e. were not enforceable) by the national courts because there was no implementing national legislation. The Court held that by failing to implement the directive, Italy had deprived the employed workers of their rights granted by the directive and was thus liable for monetary damages.

The European Court of Justice has not yet applied the direct effect doctrine in cases between private parties ("horizontal effect"). This has created the potential for unequal application of Community law, since private parties have different recourse to legal provisions of directives depending upon their Member State.

iii. Foreign Affairs

The EU has the authority to enter into legal agreements with non-member countries and with other international organizations. Article 130r(4) of the Maastricht Treaty expressly allows Community participation in international environmental agreements. Hence the EU is a party to the Convention on Biological Diversity, the Vienna Convention for the Protection of the Ozone Layer and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, the Basel Convention, and the Climate Change Convention. These agreements have binding effect on Member States.

c. Community Institutions

i. European Council

The European Council is the highest political body of the EU, comprised of the Heads of State and Government of the Member States and the President of the Commission (Article 2 of the Single European Act). The Council meets twice a year to provide the impetus and set the direction for future action. The European Council serves as a launch pad for major political activities and as a forum for settling controversial issues blocked at the ministerial level. After each Council meeting, there is a declaration which represents a consensus statement of strategic goals and decisions. Reflecting the increase in public concern, the Council has paid growing attention to the Community�s environmental policies and programs. Thus, for example, the Council drew attention to the problem of acid rain at its 1983 meeting in Stuttgart, stating in its declaration:

The presidency of the Council rotates every year to a different country, based on alphabetical order. The presidency is viewed as an opportunity for a Member State to raise the profile and initiate action on issues of particular national importance.

ii. Council of Ministers

The Council of Ministers is composed of 15 ministers representing the governments of each Member State with responsibility for the policy area under discussion at a given meeting: e.g. foreign affairs, agriculture, industry, transport, the environment, etc. It is the principal legislative body. The Council takes the final decisions on most EU-legislation. Depending on the issue, decisions may be adopted by a simple majority, by a qualified majority or unanimously. Most legislative decisions are taken by qualified majority where votes are weighted so that the larger states exert a greater influence. Unanimity is only required on a small number of issues of fundamental importance for the Member States (e.g. taxation). The Council is responsible for ratification of international agreements negotiated by the Commission.

iii. European Commission

The European Commission is a unique body in international law, serving as the secretariat, the initiator, and executive of Community affairs. Treaty of Rome Articles 155 et seq. In many respects, it runs the EU�s day-to-day operations. The Commission is composed of 20 members (at least one representative from each Member State) who act only in the interest of the Community and do not receive any instructions from national governments. Commissioners are appointed by the Member States "by common accord" for five years and require the approval of the European Parliament. The Commission can propose to the Council of Ministers measures for the further development of Community policy (known as the right of initiative). More important, the Commission proposes initial drafts of regulations and directives.

The work of the Commission is done by civil servants in the various Directorates. Through them, the Commission monitors compliance with and proper application of Community law, administers and implements Community legislation, and represents the Community in international organizations. In practice this covers a sweeping range of executive and legislative functions -- establishing EU policy in specific sectors, proposing and drafting legislation and, if adopted by the Council of Ministers, overseeing the adoption of the legislation throughout the Community. If Member States fail to comply with the legislation, the Commission may file a complaint against the Member State with the European Court of Justice. The Environment Directorate is known as Directorate General XI (better known as DG XI). The Trade Directorate is DG III.

iv. European Parliament

The European Parliament is the most democratic institution of the EU, representing the citizens of the Member States. The Parliament, currently 626 representatives, is directly elected by the Community citizens for five years. Its Secretariat is located in Luxembourg. It retains the power to legislate, the power of the purse and the power to supervise the executive (i.e. the "watchdog function", including the power to set up committees of inquiry). It can dismiss the entire Commission by a vote of censure supported by a two-third majority of its members and monitors implementation of the common policies, relying for its information on reports produced by the Court of Auditors. The Maastricht Treaty gave the Parliament increased authority to veto the passage of legislation through the "co-decision" process (described infra).

v. European Court of Justice

The European Court of Justice (ECJ), located in Luxembourg, has 13 judges appointed for renewable 6-year terms by mutual consent of the Member States (Articles 164 et seq.). The ECJ is the Community�s ultimate arbiter, ensuring that Community law is obeyed, interpreted, and implemented in accordance with primary legislation. It has exclusive authority to interpret provisions of the Treaties and to verify that the measures taken by the Community institutions comply with the rules of the Treaties. The Court has two roles. At the request of a Member State, a Community institution, an individual or a company, the Court may overturn any measures adopted by the Commission, the Council of Ministers or national governments which are incompatible with the Treaties. In this respect, it is identical with the U.S. Supreme Court. The ECJ also, however, may clarify the meaning and the scope of specific rules of Community law if requested by a national court. Thus if a domestic legal action produces a disputed point of Community law, a national court may, particularly if there is no higher court of appeal in the Member State concerned, request a preliminary interpretation of law by the Court. ECJ decisions are binding on governments, domestic courts and the citizens of the Member States. No domestic court can overrule a decision made by the ECJ. If Member States do not comply with the judgement, the Court can order compliance as well as impose a lump-sum or penalty payment.

vi. European Environment Agency

The European Environmental Agency (EEA) was created by regulation in 1990 and is based in Copenhagen, Denmark (Regulation 1210/90). The goal of the EEA is to collect and analyze data on the environment and to transform this into objective and reliable information at a European level for the Community, the Member States and the public at large. Despite its name, the EEA is not comparable to the U.S. Environmental Protection Agency or other national environment agencies, for it has no enforcement role. The EEA provides technical and scientific support to the Community and its Member States, enabling them to take adequate measures to establish environmental priorities, to protect the environment and to assess the results of these measures. The EEA�s 1996 budget was 14.5 million ECU.

d. Legislative Process in the Community

The procedures to adopt Community legislation are complicated and have evolved in each successive Community treaty. Over time, the role and power of the European Parliament in the legislative process have steadily increased, thus addressing what many have criticized as the "democracy deficit" in Community affairs. Today, three different procedures exist for enacting secondary legislation: (1) proposal procedure, (2) cooperation procedure (introduced by the Single European Act (1987)) and (3) co-decision procedure (introduced by the Maastricht Treaty (1992)).

The proposal procedure has been the general method for the adoption of Community legislation. The process is started by the Commission which draws up a proposal for the measure in question and sends it to the Council of Ministers. The Council determines whether it must consult any other Community body before deciding on the proposal. Parliament has, for example, the right to be consulted on all politically important measures (compulsory consultation). Nonetheless, in practice Parliament is usually consulted in any case. Parliament submits a written opinion to the Council and to the Commission in which it may recommend amendments to the proposal. Parliament�s opinions are entirely advisory and do not legally bind the Council in its further proceedings. After the consultation stage, the Council decides on the final proposal, as perhaps amended by the Commission after considering the Parliamentary and other informal opinions.

The cooperation procedure (Article 189b) confers a much stronger role to Parliament. It is applicable primarily in matters of the internal market and social and environmental policies. As with the proposal procedure, here the Commission�s proposal is also sent to Parliament which - after a first reading - notifies the Council of its opinion. The Council then adopts a "common position" by a qualified majority and sends the proposal back to Parliament. If Parliament approves the proposal in the second reading, the Council can adopt it by a qualified majority. But Parliament may also reject the proposal if their opinion has not sufficiently been taken into account. In this case, the Council can overturn Parliament�s rejection only by an unanimous decision. This is unlikely in most cases, thus forcing Council to negotiate in order to gain Parliamentary approval. The cooperation procedure is used to promulgate general action programs setting out priority objectives.

In the co-decision procedure (Article 189c), Parliament shares decision-making power equally with the Council in a number of specific areas: the free movement of workers, the single market, education, technological research, health, the environment, trans-European networks, culture and consumer protection. If the Council fails to take due account of Parliament�s opinion in its "common position", Parliament may reject (or amend) the draft legislation and prevent its adoption by the Council. In the case of such disagreement, a conciliation committee (made up by members of Parliament, Council and Commission) is convened to seek a compromise before Parliament�s third reading. If an agreement is still not reached, Parliament can reject the proposal by absolute majority. (Note: The types of procedure and required majority to pass environmental legislation are complex and beyond the scope of this section. In brief, it depends upon whether the law is based upon Article 130r or Article 100a and its content.)

e. Community Environmental Legislation and Policy

The Community has implemented over 200 directives regulating environmental protection. These cover the areas of environmental impact assessments, freshwater and marine pollution, water quality objectives, air quality standards (ranging from acid rain controls to lead emissions), waste management, control of chemicals, wildlife protection, a Community eco-label to identify environmentally superior consumer products, a voluntary eco-management and audit scheme, and financial grants for national development and implementation of Community environmental policies. The eco-audit and waste management requirements are discussed in more detail in Chapters 19 and 13. To illustrate the breadth and complexity of Community environmental legislation, a few Community directives in the field of chemicals are described below.

In Europe approximately 80,000 chemical products with more than 70,000 chemical substances are sold on the market. Over time, the focus of chemicals testing has shifted from concentrating solely on harmful effects on human health to environmental protection. In 1967, the Council adopted a framework Directive 67/548 on the classification, packaging and labeling of dangerous chemical substances. "Dangerous" substances were defined as products that were explosive, oxidizing, flammable, toxic, harmful, corrosive, irritant or otherwise dangerous to the environment. As the world�s largest agrochemical user, one of the Community�s main target areas was agriculture and the use of pesticides and artificial fertilizer (important sources of groundwater pollution and soil degradation). See, Directive 79/117 on banning the use and marketing of pesticides containing active ingredients for plant, OJ L 33 (1979); Directive 78/631 on the classification, packaging an labeling of dangerous preparations (pesticides), OJ L 206 (1978); Directive 76/895 (and Directive 90/642, OJ L 350 (1990)) on maximum levels of pesticide residues on certain products of plant origin in order to further regulate the use of pesticides, OJ L 340 (1976).

In 1979, the Directive�s sixth amendment created a regime of compulsory prior notification to the competent authorities in the Member States for new chemicals on the market (Directive 79/831 (1979)). The authorities have to supply information to the Commission - after having completed specifying tests concerning the chemical�s properties - about potential risks, foreseeable adverse effects of the substance, recommended classification and labeling and proposals concerning the safe use of the substance. For existing chemicals the Commission has to provide for an inventory of these substances. Even if a chemical meets the requirements of the directive, a Member State can prohibit any sale of a substance that is proven to pose harm to human beings and the environment. In 1992, the directive�s 7th amendment extended the prior notification requirement to substances of which less than one tonne but more than 10 kg per year are placed on the market (Directive 92/32 (1992)).

In 1976, Directive 76/769 on the marketing and use of certain dangerous substances and preparations created a regime for bans and restrictions on the marketing and use of specific substances and preparations listed in an Annex. Initially covering PCBs, PCTs and monomer vinyl chloride, later amendments added benzene, asbestos fibres, mercury, arsenic, cadmium, organostannic compounds and pentachlorophenol to the controlled list.

In 1978, a Commission Decision 78/436 established a Scientific Committee for Pesticides to be consulted by the Commission in terms of adverse impacts of pesticides on plants, men, animals and the environment. The same year, another Commission Decision 78/618 created a Scientific Advisory Committee to examine the toxicity and ecotoxicity of chemical compounds in order to supply the Commission with information about detrimental effects of specific chemical compounds on human health and the environment.

As response to the Seveso disaster in Italy, 1976, the so called "Seveso Directive" 82/501 on the prevention of major accident hazards of chemical industrial activities created a better control mechanism for actions entailing potential risks. Therefore, it established a notification system for all dangerous activities and major accidents (paricularly concerning 180 listed dangerous substances) and obligates the manufacturer of dangerous substances to take appropriate safeguard measures to prevent major accidents by informing, training and equipping the workers at the site. Although the directive does not include nuclear, military, mining or dangerous waste disposal installations, it does embrace all other production and transformation activities as well as the storage of certain dangerous substances. Today, the directive covers more than 2000 industrial plants in the Community. Other Community directives in this area control the export and import of dangerous chemicals, the use, placing on the market, and deliberate release of genetically modified organisms (GMOs) and micro-organisms (GMMs).

f. Next Steps

Reflecting similar tenstions to those present in any federally-governed country with strong and competing local interests, Community legislation is ultimately a compromise among its Member States. Initially stringent environmental proposals often end up weakened before finally adoption, leaving it up to each Member State to introduce stricter domestic environmental measures on a voluntary basis. The introduction of new funding systems (e.g. the Cohesion Fund and Directive 92/43 on the conservation of natural and semi-natural habitats and of wild flora and fauna) serve as effective incentives for poorer Member States to agree to more stringent Community environmental policies. A steadily growing public interest in environmental protection throughout the Community has spurred greater openness and initiative on the part of the Commission. Recent directives on public access to environmental information, eco-audits, and eco-labels can be regarded as first steps to expand the dissemination of environmental information within the Community. While not yet adopted, negotiations over a civil liability scheme for environmental harms will likely be implemented in the next few years, increasing the industrial sector�s awareness of environmental considerations and promoting the internalization of environmental costs in the price of a product.

The biggest obstacle to implement environmentally sound policies within the Community remains the often reluctant attitude of Member States to comply with and enforce the rules they agreed upon on the Community level. Since 90 % of Community environmental legislation is promulgated as directives, the Community laws are not directly binding but need to be transformed into national laws. This particularly highlights the importance of effective EC monitoring systems. Parliament�s power to establish Committees of enquiry to investigate "alleged contravention or maladministration in the implementation of Community law" (Article 138 c) and the Commission�s ability to start infringement proceedings against Member States (Article 169) have led to a steadily increasing number of cases before the ECJ, particularly in the fields of drinking water quality, EIA and the protection of wild birds. In 1978 there were 25 environmental complaints and cases; in 1992 there were 587. S.P. Johnson, G. Corcelle, The Environmental Policy of the European Communities 482 (1995). This problem of non-compliance will become increasingly difficult to manage as the integration process starts admitting Central and Eastern Europe countries into the EU.

Discussion and Questions

1. The EU has adopted a Directive providing freedom of access to information on the environment. Directive 90/313. Recognizing that public access to environmental information is a pre-requisite of public participation in the decisionmaking and monitoring process, the Council set up a policy to disseminate general and - upon request - specific environmental information held by public authorities. This includes any "information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites and on activities ... adversely affecting or likely to affect" the environment. Article 2 (a). The authority has to provide information to the request of any person (natural or legal) within two months with no requirement to prove a specific interest. Exceptions are admissible in requests which concern international relations, national defense, public security or commercial and industrial confidentiality, including intellectual property. If a person believes that access has been unreasonably denied, judicial or administrative review of the decision may be sought. Although this directive specifically refers to public information requirements, further rights of freedom of access may be found in additional sectoral legislation as well. See Directive 76/160 on bathing water (OJ L 31 (5/2/76)); Directive 84/360 on combating air pollution by industrial installations, Art.9 (OJ L 188 (1984)); Directive 85/339 on containers of liquids for human consumption (OJ L 176 (1985)); "Seveso Directive" 82/501 (OJ L 230 (1982)) as amended by Directive 88/610 (OJ L 336 (1988)).

2. How would you compare the development of EU environmental law with American environmental law? Do you think the EU experience provides useful insights for the development of international environmental law, or is it closer to development of law in a national federal system?