#5278 - The Role Of The Eu - Environmental Law

• Art `191 – (1) - Union policy on the environment shall contribute to objectives: protecting enviro quality, human health, rational use of resources, international enviro work inc. climate change.

(2) – Aim for high level of protection. Based on principles that damage fixed at source, precautionary principle and preventative action.

(3) – EU to take account of scientific data, enviro conditions in different regions, cost/benefit of action, socio-economic development of EU.

(4) – EU shall cooperate with third countries.

• Art 192 – (1) Ordinary legislative procedure to be used to attain 191.

(2) – sets out areas for unanimous voting.

• Art 193 - Above will not prevent any MS maintaining or introducing more stringent protective measures. But these must be compatible with the treaties and notified to commission.

• Art 114 – (1) – Competence for the object of establishment and functioning of the internal market. Ordinary legislative procedure.

(3) – If proposals in (1) relate to health, safety, enviro protection or consumer protection then Commission will take a high level of protection as its base level – taking into account in particular new scientific facts.

Confidence of the ECJ:

• ADBHU (1985) – ECJ recognised environmental protection as an “essential objective of the community”. They referred to enviro protection being used as an exception to the freedoms (Trade etc.) at times.

Relationship with other competences:

• British American Tobacco – Although Art 114(3) does provide for protection of high level the measures in question must still have as their “centre of gravity” the functioning of the internal market. [Also said that test for which competence is central should be objective – disagreeing with Titanium].

• Titanium Dioxide - Court could not come to a decision as to which of two competences (enviro v. internal market) was the centre of gravity / the correct legal basis. This was because regulation of titanium dioxide across EU would enable stabilization of internal market through their being no competition distortions whilst also increasing the level of enviro protection.

Due to lack of decision as to this the court decided that it should come under internal market competence since this involved the EP in decision process – this warped the supposedly objective test as to which competence is more important as to the aim of a measure. [Usually ECJ has just figured out which is main competence engaged]. [This case was when voting was different; now for these two they are both QMV].

• Parliament v. Council (1999) – EP complained that Agriculture competence (unanimous voting) was used as they were not involved in drafting etc. – court found that enviro competence (QMV) was more central than the other – also found that a completely objective test must be used.

Competence and External/International Relations:

• Cartagena Protocol – Question was whether biodiversity protocol was based on enviro competence which would make it shared competence or an international trade competence which would make it exclusive. Only objective criteria to be used – procedural difficulties of one over other are irrelevant, it is about which was central purpose.

Where two competence being shared for a directive would result in it being both exclusive and shared then the dominant must be found.

• Commission v. Ireland – Appropriate competence for international treaties on protection of enviro is art192 TFEU not any other. This means that it is shared competence. Also if there is ever a question as to the competence in mixed agreements then it is the content of the international agreement with regard to the central competence and not the fact of its exclusive or shared nature which is relevant.

Unilateral Enviro Protection by Members.

• Art 4(3) – MSs agree to take any appropriate measure to ensure fulfilment of obligations arising out of the Treaties or Act of EU.

• EU law is supreme.

Where EU has taken action (can MS go further in protection?):

• Art 4(2) – where competence is shared there remains scope for MS action.

• Basic position is that once EU has harmonized an area of shared competence through regulation the MSs can’t act unilaterally. But Exceptions:

• Art 114 – (4) – To maintain national provisions post-EU-regulation on grounds of major needs under art36 or relating to protection of enviro or working enviro MS shall notify commission.

(5) – To introduce national provisions post-EU-regulation based on new scientific evidence relating to protection of enviro/working enviro on grounds of a problem specific to MS arising after adoption of harmonization MS shall notify.

(6 + 7) – Process for applications to be considered.

(8) – MS raising specific problem on public health where EU has harmonized it shall bring to attention of Commission for immediate examination.

• Denmark v. Commission - Denmark wanted to maintain more stringent additive restrictions under (4). ECJ observed that (5) is more likely to jeopardize harmonization since the commission in drawing up measures could not account for new MS laws, as a result the justifications allowed are more limited. Under (4) it is acceptable for a MS to request its pre-existing rules remain.

This is all a balance of national regulatory autonomy with market integration aims.

ECJ ruled Denmark could keep some of its pre-existing rules.

• Netherlands v. Commission – application under (5) – ECJ said all requirements (new provisions, based on new science, relating to protection of enviro, necessary by reason of specific problem to MS, arising after adoption of harmonization)must be met.

Observed that decision involved complex technical evaluations and the Commission has wide discretion.

BUT court will review whether evidence Commission relied on is accurate, reliable and consistent, whether evidence contains all info that must be taken into account, whether that evidence is actually capable of sustaining the commission’s conclusion. Intensive review.

• Art 193 - More stringent protective measures possible despite enviro competence. But these must be compatible with the treaties and notified to commission.

• Must be compatible and thus can’t breach things like art34 (no trade barriers). Strict reading says only applicable where the more stringent measures are of same type.

• Azienda Agro-Zootecnica – All that 193 requires is compatibility with FEU treaty and notification of Commission of MS measures.

Where MS measure pursues same objective as a directive 193 allows minimums set out in that directive to be exceeded.

Also 193 doesn’t mean MS regs are unlawful just because they don’t notify.

Finally the relevant provision must still be compatible with all other FEU treaty provisions.

• Greenpeace v. France?

• Monsanto Agricoltura?

Where EU has not taken action (can MS protect?):

• Art 34 – Quantitative restrictions on imports and measures of equivalence are prohibited.

• Art 35 – Exports.

• Art 36 – Can justify breach of above on grounds of public morality, policy and security, protection of health and life of humans, animals and plants, protection of national treasures, or of commercial property.

• Wide interpretation of equivalent effect.

• Distinctly applicable provisions (ones targeting imports/exports) obviously included but so are indistinctly (ones creating technical requirements etc.).

• Swedish Jet-ski (2009) – Sweden banned use of jet-skis – where effect of measures is to treat goods from other MSs less favourably or to require targets (or such like) to be met by those goods such that this occurs (even where the rules apply to all goods...