Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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ROSE MWEBAZA[*]
The European Union (EU) is a political and economic community with supranational[1] and intergovernmental[2] features. It is comprised of 27 member sates primarily located in Europe.[3] It was founded in 1957 as the European Economic Community (EEC) by the Treaty of Rome[4]. Since then, the EU has grown in size through the accession of new member states. The current legal basis and framework for the EU was established by the Maastricht Treaty in 1993.[5]
The general Law of European Community external relations, deals with that area of European Community Law relating to the respective powers of the community and member states to conclude international agreements.
The general law of European Community external relations can be classified into those areas where the community has exclusive competence and into those areas where it has concurrent or shared competence with the member states. There are also variants where the member states may have transient or transitional competence[6].
Community competence is derived from one of three sources: It can be derived from the constitutive Treaty of the European Community through which member states have permanently transferred some of their powers to the community thereby limiting their sovereignty.
The second source of community competence has also been held to flow implicitly from its provisions. It was held in opinion 1/76[7], that implied powers arise principally where measures have been adopted by the community on the basis of an internal power, where power to legislate exists but has not been exercised or where power to act is implicit in an article in the Treaty conferring an internal power. There is also the competence based on general law making provisions including Art. 94, 95, or 308 EC.[8]
Alternatively community competence may derive from other provisions of the Treaty and measures adopted by the community institutions within the framework of the Treaty provisions or the acts of accession. The court has held that whenever community law has created powers within its internal system for the institutions of the community for the purpose of achieving a specific objective, the community has authority to enter into the international commitment necessary for the attainment of that objective, even in the absence of an express provision in that connection.[9]
The community may have exclusive or shared competence.
Exclusive community competence exists where competence has been transferred completely by the member states,[10] and where there is no residual or continuing member state competence[11].
Exclusive community competence has been established to derive from five sources:[12]
(a) From the express provisions of the treaty or the Acts of Accession. The court held in Commission v U.K,[13] that the community has external community competence in the areas of the common commercial policy. The courts decision was based on the provisions of Article 133 (ex Article 113) and noted that the common commercial policy envisaged by that article was conceived in the context of the operation of the common market, for the defence of the common interests of the community within which the particular interests of the member states must endeavour to adapt to each other.
The court’s judgement on the common commercial policy was echoed in its judgement on the establishment of the common fisheries policy[14] as deriving from the treaty where it was noted that effective and equitable conservation measures of oceanic biological resources could only be undertaken at the international level.
(b) The scope of the internal measures adopted by the community institutions. This is derived from the AETR doctrine[15] which provides that
“each time the community, with a view of implementing a common policy envisaged in a Treaty, adopts provisions laying down common rules, whatever form these may take, the member states no longer have the right, acting individually or even collectively to undertake obligations with third countries which affect those rules. As when such common rules come into being, the community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the common legal system”.
The doctrine established in the AETR case is basically an application of the principle of loyalty enshrined in Article 10[16]. It extends the interpretation of the principle of the supremacy of the community legal order over national law.
(c) Express provisions in internal community measures. It has been held by the European Court of Justice[17] that whenever the community has concluded in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on its institutions powers to negotiate with non member countries, it acquires exclusive external competence in the spheres covered by those acts.
(d) Where internal powers could only be effectively exercised at the same time as external powers. This relates to circumstances where the conclusion of an international agreement is necessary in order to achieve Treaty objectives, which cannot be obtained by the adoption of autonomous rules. Accordingly, in opinion 1/76[18] concerning community participation in an agreement for the control of river traffic on the Rhine and Moselle, the court held that:
“although the internal community measures are only adopted when the international agreement is concluded and made enforceable, as is envisaged in the present case by the proposal for the regulation to be submitted to the council by the commission, the power to bind the community vis – a - vis third countries nevertheless flows by implication from the provisions of the Treaty creating the internal power and in so far as the participation of the community in the international agreement is, as here, necessary for the attainment of one of the objectives of the community”.
(e) Competence based on general law-making provisions. Exclusive community competence may arise under general law making power if the internal powers are effectively exercised and internal measures adopted on the basis of the general law-making power. In opinion 1/94, reiterated in opinion 2/92, the court concluded that article 308[19] could by itself vest exclusive competence in the community at international level.
Shared competence allows member states of the European Community to enter into agreements and to take action in several designated fields under the Treaty of the European Union, subject to their obligations under community law.
Accordingly, the Treaty of the European Union contains several provisions that allow for shared competence between the community and member states, giving the member states an opportunity to negotiate in international bodies and conclude internal agreements. Two areas that exemplify shared competence between the community and member states are Article 174,[20] which allows member states to enter into international agreements relating to the environment and Article 181,[21] that permits member states to enter into international agreements relating to development cooperation.[22]
The general Law of European Union External Environmental Relations falls within the shared community and member states competence as provided for under Article 174 of the Treaty of the European Union. Therefore, the community has no exclusive competence over the protection of the environment within the EU. The community and the member sates share responsibility for the protection of the environment in and beyond Europe, however the community’s own environment policy is limited by the principle of subsidiarity[23]. The shared competence for the adoption of measures to safeguard the environment is derived from this common responsibility. The system developed by the community and the member states includes various instruments or mechanisms for the coordination of national environmental measures; community environmental measures and rules; and principles for the establishment and functioning of the common market.[24]
Under the Treaty of the European Union, a system of rules has been further institutionalised which allows for different degrees of harmonisation and a complex set of community measures and national measures for the protection of the environment.
In view of the principles of subsidiarity and the commitment to a high level of environmental protection at a locally adequate level, this system allows member states in most cases to adopt more stringent environmental measures if they are justified in the interests of the environment and do not jeopardise other community objectives. Apart from the explicit Treaty provisions on domestic environmental measures in fields where harmonised community measures exist, the court’s and commission’s practice with regard to use of the Treaty’s exception clauses provides important opportunities for the application of diversified economic and legal instruments at national and regional levels.[25]
Therefore, the principle of quasi-pre-emptive and incidental derogation has been complimented by a general co-operation principle, which allows the members states to adopt harmonisation measures in an environmentally relevant field. The implementation of community directives, the use of specific derogation in secondary law and minimum standards, as well as the general capacity to adopt more stringent measures under the systematic derogation creates a system which follows the idea of a common competence for the environment. Thus the community has created a unique set of instruments to coordinate domestic and community action for the efficient protection of the environment at both community and domestic level.[26]
The existence of shared responsibility for the protection of the environment is essentially based on the principles of cooperation within the community. Article 10 in conjunction with the specified environmentally important provisions codify the cooperative element, which is necessary for coordination and collaboration in the protection of the environment at different levels. The shared competence and responsibility rely on the cooperative sharing of tasks and the mutual coordination of environmental measures through the established mechanisms.[27] The court derives from Article 10 the principles of loyalty[28] and solidarity[29] between member states and between member states and the community.
In addition to the identified areas, there are also other examples of shared competence. The member states may have shared competence where the community has competence, which it has not exercised. In the Kramer case,[30] where the community had not at the material time exercised its exclusive competence in respect to the common fisheries policy, the court held that the member states were competent to assume international commitments in the area until the adoption of community rules or at the latest, the end of the relevant transitional period by which time the council was obliged to adopt measures for the conservation of the resources of the sea. The court noted however, that the member states competence was only of a transitional nature, and could only be exercised in respect of community law.
There will also be shared competence where the community has power to adopt common rules but these are not exhaustive in that the community rules adopted do not cover all the subject matter of an international agreement. Thus in opinion 1/92, where the internal measures adopted by the community did not cover all the fields of activity to which the international agreement at issue related, the community and the member states shared joint competence to participate therein.[31]
Shared competence may also arise where an agreement includes provisions within member state competence and community competence. In opinion 2/91, the community had exclusive competence in certain areas but not in others, as in the case of responsibility for the international relations for overseas countries and territories. The court held in this case that member states had a concurrent competence until the community standards were raised.[32]
However, it is important to note that the shared competence of the member states in the above areas does not give them unlimited freedom to act independently of the community. Where the community enters into an international agreement, the subject matter of which falls within the shared competence of the community and member states, the member states are bound by the obligations of Article 10[33] to cooperate and facilitate the obligations of the community’s obligations arising out of the agreement and may not act unilaterally in any way that would compromise their duty to proceed by common action within the framework of the agreement.[34]
This was reiterated in the court’s ruling which laid down the duty of cooperation in opinion 1/94[35] concerning agreements the subject matter of which falls in part within the competence of the community and in part within the competence of the member states. In it’s ruling in this case, the court held that
..where it is apparent that the subject of an agreement or convention falls in part within the competence of the community and in part within that of the member states, it is essential to ensure the close cooperation between the member states and the community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commission entered into. That obligation to cooperate flows from the requirement of unity in international representation of the community. [36]
The development of EU environmental Law can be split into five phases. The first phase started with the entry into force of the original version of the EEC Treaty [37] in January 1958 and continued up to 1972. The original E.C Treaty did not contain any specific provisions on the environment, environmental policy or environmental law. However, it was realised soon after the coming into force of the Rome Treaties that the creation of a European Economic Community with a common market, in which national borders no longer constitute economic frontiers gave rise to a corresponding need for a mechanism at community level to safeguard human rights and the environment.[38] In recognition of this fact, the community engaged in several activities to protect the environment. For example in 1967, Directive 67/548 on classification, packaging and labelling of dangerous substances was adopted[39]. In the same spirit, in 1970, the council adopted directives on Noise levels[40] and pollutant emissions of motor vehicles.[41]
Subsequent to the discussions of the late 1960’s on the importance of environmental matters, the European commission announced in 1970 the necessity to establish a community programme action on the environment. In 1971, it submitted a first communication on Community environmental policy[42] where it suggested the establishment of community measures for the protection of the environment. This communication was followed by a proposal for an environmental action programme[43]. The communication gave rise to vigorous debate, both at community level and in the member states. It concerned among other things, the question of whether environmental matters are best dealt with at community level or with inter-governmental agreements and coordination of national policies. The Commission of the European Union, backed by the European Parliament, was emphatically in favour of community provisions. The argument was eventually settled by the Heads of State and Government of the then nine member states, who in October 1972 declared,
Economic expansion is not an end in itself. Its first aim should be to enable disparities in living conditions to be reduced. It must take place with the participation of all the social partners. It should result in an improvement in the quality of life as well as in standards of living. As befits the genius of Europe, particular attention will be given to intangible values and to protect the environment, so that progress may really be put at the service of mankind.[44]
Following agreement among the members states, the community institutions were asked to draw up a programme of action on the environment and this programme was adopted at the end of 1973.[45]
The declaration of the council of the European communities and of the representatives of the governments of the member states in the council of 22 November 1973 on the programme of action of the European Communities on the environment marked the beginning of the second phase in the development of European environmental law. The programme of action provided (noted) that:
Whereas in particular, in accordance with article 2 of the Treaty, the task of the European Community is to promote throughout the community a harmonious development of economic activities and continuous and balanced expansion, which cannot be imagined in the absence of an improvement in the quality of life and the protection of the environment. [46]
In this regard, the objectives of the programme included, prevention, reduction and in as much as possible, elimination of pollution, maintenance of satisfactory ecological balance, sound management of resources, taking into account environmental aspects in town planning and land use and seeking common solutions to environmental problems on an international level. The programme also mentioned as an objective the polluter pays principle when it provided that ‘the cost of preventing and eliminating nuisances must in principle be borne by the polluter’.[47] Significantly, also, the programme considered the subject of subsidiarity in environmental matters and provided that:
In each different category of pollution, it is necessary to establish the level of action (local, regional, community, international)... Actions which are likely to be most effective at community level should be concentrated at that level…[48].
The three main projects on which the first programme concentrated were:
Therefore, although the environment was not specifically provided for in the objectives enumerated in articles 2 and 3 of the original EEC Treaty, the Declaration did in effect by extensive interpretation of economic expansion, which is expressly included in the aims of the EEC Treaty in Article 2, allow for environmental protection to become part of community decision making. Accordingly, economic expansion within the community came to be regarded not only in quantitative but also in qualitative terms. To this end, in spite of the controversy that surrounded the competence of the EEC to effect comprehensive environmental policy, numerous directives and regulations were adopted on almost every conceivable aspect of the environment in this second phase of the development of EU environmental legislation[50].
Articles 100 and 235 of the EEC Treaty provided the basis for decision-making in respect to the environment in the second phase of the development of EU environmental Law.
Article 100[51] gave the council power to issue directives for the approximation of such laws, regulations or administrative provisions of the member states as they directly effect the establishment of the market. The effect that environmental measures may have on the approximation of national practices, which directly influence the establishment of the common market, was well illustrated by the ECJ in Commission v Italy[52] which concerned an action brought by the commission against Italy for the latter’s failure to adopt within the prescribed time, Directive 73/404 on the approximation of the laws of the member states relating to detergents[53]. In its defence, the Italian Government contested whether the community had competence to adopt the directive. The ECJ held that:
It should be noted that the directive has been adopted not only within the programme of Action of the communities on the environment, it also comes under the general programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in member states adopted by the council on 28 May 1968. In this sense, it is validly founded upon Article 100. Furthermore, it is by no means ruled out that provisions on the environment may be based upon Article 100 of the Treaty. Provisions which are made necessary by considerations relating to the environment and health may be a burden upon the undertakings to which they apply and if there is no harmonisation of national provisions on the matter, competition may be appreciably distorted”.[54]
Article 100 could further be used where differences in national environmental legislation had a detrimental effect on the common market as confirmed by the European Court of Justice in case 92/79, in a decision in which the validity of directive 75/716 relating to the maximum sulphur content of liquid fuel was raised. In it’s judgement, the court held:
“It is by no means ruled out that provisions on the environment may be based upon article 100 of the Treaty. Provisions, which are made necessary by considerations relating to the environment and health, may be a burden upon undertakings to which they apply and if there is no harmonisation of national provisions on the matter, competition may be appreciably distorted”.[55]
Therefore, having been firmly established by the ECJ as a basis for environmental legislation, article 100 has been exclusively credited for three environmental measures dating from this phase of the development of EU environmental law. These are:
However, in spite of the role article 100 played as a basis for environmental legislation during this period, it became apparent there was a clear need for an additional legal basis for environmental protection within the community. This was important especially since the objective of article 100, which was prevention, elimination, and avoidance of distortion of competition, placed constraints on the use to which the article could be put as a basis for environmental legislation within the community. Moreover, on the principle that the community powers extended only to what has been conferred by the Treaty, article 100 could not be employed where other far-reaching environmental measures had to be taken than were necessary for the proper functioning of the common market. In addition, Article 3(h) of the Treaty still provided that approximation of laws was only possible to the extent required for the proper functioning of the common market.[57]
Accordingly, in order to deal with the lacuna of Article 100, council invoked Article 235 of the EEC Treaty. Article 235 was a general catch-all provision which provided that where action by the community was necessary to attain one of the objectives of the community and the EC Treaty has not provided the necessary powers, the council, is empowered, acting unanimously, to take appropriate measures[58]. Since environmental protection had already been established as an objective of the EEC Treaty by extensive interpretation, Article 235 could effectively be used as a basis for environmental legislation during this period as one of the means of achieving the environmental objectives of the community. The European Court of Justice confirmed this in 1985 in the ADBHU case[59]. The case concerned the validity of a directive on the disposal of waste oils. It was contended that provisions imposing a system of permits on undertakings, which disposed of waste oils, and systems of zones within which such undertakings had to operate were incompatible with the principle of the free movement of goods. The directive in question was based on both article 100 and 235 EEC. The joint legal basis was justified in the preamble to the directive. On the one hand it was pointed out that any disparity between the provisions of the disposal of waste oils in the various member states could create unequal conditions for competition, thus necessitating the use of Article 100 EEC as the legal basis for the approximation. On the other had, the council felt it necessary to accompany this approximation of laws by a wider regulation so that one of the aims of the community, protection of the environment, could be achieved. For this purpose, it invoked article 235 as an additional legal basis. The court held that:
In the first place, it should be observed that the principle of free trade should not be viewed in absolute terms but is subject to certain limits justified by the objectives of general interest pursued by the community provided that the rights in question are not subsequently impaired. There is no reason to conclude that the directive has exceeded those limits. The directive must be seen in the perspective of the environmental protection, which is one of the community’s essential objectives.[60]
The court continued further to hold that:
It follows from the foregoing that the measures prescribed by the directive to not create barriers to intra community trade, and that is in so far as such measures, in particular the requirement for permits must be acquired in advance, have a restrictive effect on the freedom of trade and competition, they must nevertheless, neither be discriminatory nor go beyond the inevitable restrictions which are justified by the pursuit of the objective of environmental protection, which is the general interest. That being so, article 5 and 6 cannot be regarded as incompatible with the fundamental principle of community law mentioned above.[61]
The case was important in that it not only established article 235 as a basis for community environmental law, but also, the court had for the first time recognised environmental protection as one of the community’s essential objectives.
It is therefore very clear that article 100 and 235 played an important role in providing the basis on which environmental legislation in the community during the second phase of the development of EU environmental Law before the Single European Act was adopted. Some of the important directives based on article 100 and 235 during this period include:[62]
The second phase of the development of European environmental law also saw the adoption of two more programmes of action on the environment. These were the 1977 programme of action[63] and the 1983 programme of action.[64]
The 1977 programme of action was important because it was drafted in the turmoil of the economic growth of the seventies. The entire programme was drafted in the context of change of a pattern of the society, which would bring about more concern for environmental protection.[65] In the introduction of the programme, reference is made to the fact that:
nature pays a considerable price for economic expansion and as a result, some production possibilities are reduced while their production costs, with the added burden of the expenditure require for the constitution of natural resources, are sometimes increased.[66]
Accordingly, the programme was more ambitious than the first as it aimed at the continuation and implementation of a European policy and action programme on the environment. It covered five main areas: It restated and reaffirmed the objectives and principles of the 1973 programme of action. It laid strong emphasis on the reduction of pollution and nuisances. The concept of environmental impact assessment was developed which would lead to the non damaging use and rationale management of land, the environment and natural resources which was typified by a sectoral approach in the fields of water, atmospheric pollution, noise and the protection of fauna and flora. Fourthly, the programme adopted general protection and improvement of the environment and in particular the promotion of environmental awareness of environmental problems. Finally, the programme confirmed the community’s international activities would henceforth take into account environmental considerations in the policy of cooperation between the community and developing countries. [67]
The 1983 programme of action reflected a change of emphasis in the community, which from there on focused on the preventive approach. The Programme noted with concern that:
the resources of the environment are the basis of but also constitute the limit to further economic and social development and the improvement of living conditions. It aims therefore not only to protect human health, nature and the environment but also to ensure that natural resources are well managed, in particular by introducing qualitative considerations into the planning and organisation of social development.[68]
The third phase of the development of European environment law commenced with the coming into force of the Single European Act in 1986 and continued until the entering into force of the Treaty of the European Union commonly referred to as the Maastricht Treaty. The third phase is important because it was during this time that objectives of the Community’s environment were enshrined in the Treaty. These objectives included:[69]
The objectives set forth in the Treaty were important because not only did they recognise the importance of preserving and improving the environment, they made the link between health and the environment by clearly indicating that the well being of the citizen of the union requires a safe environment. In addition, the objectives of the Treaty clearly underscored the importance of the rational utilisation of natural resources thus confirming that they were not limitless hence necessitating their preservation.
Another important development in the Treaty in addition to the clear environmental objectives was the setting forth of clear environmental principles to guide environmental protection in the community. Article 130r(2) promoted the prevention, precautionary, rectification, at source of environmental damage and the polluter pays principles.[71]
All these principles had already been expressed at the international level and in community texts[72]. However, their importance was elevated further by their explicit inclusion in the Treaty.
Also important under this phase was the appearance of the Subsidiarity principle under Article 130r of the Treaty. This principle in essence provided that the community shall take action relating to the environment to the extent to which the objectives referred to in paragraph one can be attained better at the community level than at the domestic level by individual member states. Without prejudice to certain measures of a community nature, the member states shall finance and implement other measures.[73]
However, perhaps more important than anything else during this phase was that for the first time in the history of the community, the Treaty contained provisions specifically geared towards the protection of the environment. The Treaty introduced two new provisions into the EC Treaty, which were of direct relevance to the adoption of environmental legislation. These provisions were Article 100A and Article 130S. Article 100 was the legal basis for the adoption of measures aimed at the establishment and functioning of the internal market. This was of great importance to the EC Treaty system because unlike article 100, it was not limited to the adoption of directives but encompassed all EC measures.
The second major introduction in the Treaty was Articles 130r,s, and t, which were contained in Title VII. Article 130s introduced an alternative legal basis for the adoption of environmental legislation. Unlike Article 100a, Article 130s was entirely dedicated to environmental matters.
Due to the explicit environmental powers conferred by the new provisions, the old article 235 was rarely used during this period as a basis for environmental matters other than in exceptional cases as in the case of Directive 93/76[74] to limit carbon dioxide emissions by improving energy efficiency where it was felt necessary to demonstrate the all encompassing power of article 235[75].
The third phase of the development of European environmental law coincide with the adoption of the fourth action programme on the environment. The programme was important in that it asserted the position of the Treaty by confirming that environmental action must be a component of other policies. It reiterated that environmental protection can contribute to economic growth and job creation and promoted the use of economic instruments as a complement to legal legislation.[76] As stated in the Single European Act, the Fourth environmental programme emphasized that; there can be no lasting economic and local progress unless environmental considerations are taken into account and are indeed seen as an essential part of economic and social development.[77]
The fourth phase in the development of European environmental law started with the entry into force on 1 November 1993 of the Treaty on the European Union. This Treaty is important because for the first time the term the environment was referred to in the key Articles 2 and 3 of the EC Treaty, which set out the objectives and activities of the community.[78] Article 2 of the Treaty provided that:
the community shall have as its task (...) to promote throughout the community a harmonious and balanced development of economic activities, sustainable and inflationary growth respecting the environment…[79]
In addition Article 3 of the Treaty was amended to include in the list of community policies a policy in the sphere of the environment under subsection “k”.
The objectives of the community remained largely unchanged during this phase in the development of its environmental law with the exceptional addition that the community could contribute to promoting measures at the international level to deal with regional or world-wide environmental problems[80] indicating the community’s willingness to play a more active role in environmental matters at the international level.
The precautionary, polluter pays, rectification at source and preventive action principles remained the basis of the community’s action during this period.[81] There was however a significant addition in the Treaty principles because instead of the principles stating that environment protection requirements shall be a component of the community’s other policies which was the case under the Single European Act, it now provided that:
Environmental protection requirements must (emphasis added) be integrated into the definition and implementation of other community policies.[82]
It further stated that community policy on the environment shall aim at a high level of protection taking into account the diversity of the situations in the various regions of the community. It is therefore very clear that the wording in the new Treaty was much stronger in relation to environmental protection and also recognised the importance of general integration of environmental protection.
An important development in the fourth phase in the evolution of European environmental law was the fifth action programme on the environment, which was published to coincide with the entry into force of the Treaty on the European Union. The fifth action programme was inspired by among other things the international commitments undertaken by the community in particular at the Rio Conference. The programme was adopted on the 30th March 1992, shortly before the holding of the conference in June, however it demonstrated the will of the community to play a role on the international scene.[83]
The most important aspect of the changes introduced by the Treaty on the European Union and the programme of action was the integration of environmental concerns in the global strategy of the community. To this end, a clear connection was made between polices at different levels, i.e. the European policy for example and the GATT or other regional organisations such as the North American Free Trade Association (NAFTA).[84]
The community also set out the main fields of action in which it would play an active role during this programme. These included: industry, energy, transport, agriculture and tourism. Other important changes during this period included the enlargement of the range of instruments. Instead of relying exclusively on regulations, it was recommended by the action plan that reliance be made on economic instruments. The underlying reasoning for this requirement was for producers and consumers to internalise environmental costs. Accordingly, environmentally friendly products or services would not be penalised in comparison with other more polluting ones.[85]
The fifth phase in the development of European environmental law is the post Amsterdam phase. The Treaty of Amsterdam[86] introduced several important changes to the legal framework of European environmental law. The first major change is in relation to article 2, which describes one of the objectives of the European Union as “to promote economic and social progress and to achieve balanced and sustainable development”. This definition of the environmental objectives of the Treaty was found to be appropriate because it is more in line with internationally acceptable practice in the environmental policy area.[87] The insertion of the concept of sustainable development into the Treaty, together with the other provisions on the environment, signals a commitment to ensuring a prudent use of natural resources whilst taking into account the environmental and economic interests of present and future generation. It was the first time future generations saw their environmental interests mentioned in the legal context of the Treaty of the European Union.[88]
The period after Amsterdam also saw the adoption of the sixth Environment Action Programme of the European Union which will last from 2001 – 2010.[89] The action programme focuses on areas where more action is needed. These areas include: climate change, protecting nature and wildlife, environment and health issues as well as the need to address natural resources and managing waste. The action plan not only focuses on the environment but also on improving the quality of life in Europe. The areas of focus in this action programme will be realised through enacting of new legislation, putting environment at the heart of policy making, working with business and helping people make environment friendly choices through means of access to clear and trustworthy information.
The article has examined the European Law of External Environmental relations in the historical context within which they have evolved and the practical manner in which it has been implemented by the European Commission (EC) and the European Court of Justice (ECJ). The Article has demonstrated the intricate manner in which the European Union has dealt with the delicate matter of environmental diplomacy by designating areas of specific environmental competence for the Union as well as the individual member states. It has tempered this delicate balance by also designating areas of joint competence in external environmental relations. It is important to note that in spite of this seemingly clear designation, the issue of EU environmental external relations has not always been without contention between the EU as the supranational organisation and the member states. Accordingly, quite often the issue of competence has had to be settled either by the European Commission or the European Court of Justice as has been demonstrated by the cases cited. The article has therefore provided a crucial background and understanding to how the European Union handles the delicate matters of environmental diplomacy through its rules on external environmental relations.
[*] PhD Macquarie University, Sydney Australia; LLM (with Cert of Academic Excellence) University of Florida, USA; LL.B (Honours) Makerere University, Uganda.
Senior Legal Advisor, Environment Programme, Institute for Security Studies.
Email: rmwebaza@issafrica.org
[1] Supranationalism is a method of decision-making in political communities, wherein power is held by independent appointed officials or by representatives elected by the legislatures or people of the member states. Member-state governments still have power, but they must share this power with others. Because decisions are taken by majority votes, it is possible for a member-state to be forced by the other member-states to implement a decision. Unlike a federal state, member states fully retain their sovereignty and participate voluntarily, being subject to the supranational government only while remaining members.
[2] Intergovernmentalism is a theory of decision-making in international organizations, where power is possessed by the member States and decisions are made by unanimity. Independent appointees of the governments or elected representatives have solely advisory or implementational functions. Intergovernmentalism is used by most international organizations today. Intergovernmentalism is also a theory on European integration which rejects the idea of neofunctionalism. The theory, initially proposed by Stanley Hoffmann suggests that national governments control the level and speed of European integration. Any increase in power at supranational level, he argues, results from a direct decision by governments. He believed that integration, driven by national governments, was often based on the domestic political and economic issues of the day. The theory rejects the concept of the spill-over effect that neofunctionalism proposes. He also rejects the idea that supranational organisations are on an equal level (in terms of political influence) as national governments.
[3] In the Treaty of Maastricht (Article 49), it is stated that any European country (as defined by the EU political assessment) that respects the principles of the European Union may apply to join. No mention is made of enlarging the EU to include non-European countries, but the precedents of turning down Morocco's application and speaking about Israel's closest integration, "just short of full membership" suggests that currently it is impossible for non-European states to get full EU membership.
[4] Treaty of Rome, signed 25 March 1957, (entered into force 1 January, 1958) (‘The Rome Treaty’).
[5] Treaty of the European Union, 29 July 1992, OJ (C-191).
[6] The Kramer case – Fisheries cases 3, 4 and 6/76 Officier Van Justitie V Kramer, (1976) ECR 1279, 1311 (hereinafter referred to as the Kramer case) is commonly regarded as a leading authority on the transitional competence of state. The court held in the Kramer case that at the time when the matters before the national courts arose, a system of fisheries conservation at community level was not yet in place, and therefore, the member states remained competent to assume commitments within the Framework of the Convention on Future Multilateral Cooperation in North –East Atlantic Fisheries (NEAFC Convention). The Court made it clear however, that the powers the member states were of a transition nature and would come to an end six years after the 1973 Accession by which time the council was required to have enacted the relevant legislation. In the mean time, member states were under a duty not to enter into any commitments that would bind the community in carrying out the tasks entrusted to it by Article 102 and were also bound to proceed within the Fisheries Commission established under the Convention by common action. (Paragraphs 39–45).
[7] (European Laying up fund for inland water way vessels) (1977) ECR 741 [3].
[8] Ex arts. 100, 100a, 235.of the Maastricht Treaty.
[9] Opinion 1/76 (1977) ECR 741, [20].
[10] See AETR, (1971) ECR 263, [17]; Commission v U.K (C-804/79) (1981) ECR 1045, [17], [18], [20].
[11] Opinion 1/75 (1975) ECR 1355, 1364; Opinion 1/91 (1993) ECR I-1061, [8].
[12] Typology derived from Macleod, Hendry and Hyett, The External Relations of the European Communities: A manual of Law and Practice, (1997, Oxford University Press) 56.
[13] (C-804/79) (1981) ECR 1045.
[14] Ibid.
[15] AETR (1971) ECR 63, [17] –[18]. Where the Union has exclusive competence in a specific area, only the Union may legislate and adopt legally binding Act, the member States being able to do so themselves only if so empowered by the Union for the implementation of Union Acts. This exclusive category was de facto introduced by a decision of the European Court of Justice (ECJ) in 1971 – the so called AETR- doctrine.
[16] Ex Article 5.
[17] See Opinion 1/94 (1994) ECR I-5267 [95].
[18] Opinion 1/76 of the Court of Justice: The Rhine case and the Treaty making powers of the Community Common Market Law Review (1997) 561-600.
[19] Ex Article 235.
[20] Ex article 130 r (4).
[21] Ex article 130y.
[22] It was held in the joined cases (C-181/91) and (C-248/91) Parliament v Council and Commission [1993] EUECJ C-181_91; (1993) ECR I-3685, [25] that the community does not have exclusive competence in the field of humanitarian aid, and that consequently, the member states are not precluded from exercising their competence in that regard collectively in the council or outside it.
[23] The Principle of Subsidiarity is described in the second paragraph of Article 5 of the EC Treaty in general terms as “ In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity only if and in so far as the objective of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action be better achieved by the community.” The principle thus contains both a negative criterion (not sufficiently achieved by the member states) and a positive one (better achieved by the community) by which to judge acts by the community. According to the Amsterdam Treaty Protocol on the application of the principle of subsidiarity, community action must meet both criteria to be justified. Any proposed Community legislation must be justified with regard to the principle.
[24] Andreas R. Ziegler, Trade and Environmental Law in the European Community (1996, Clarendon Press) 221.
[25] Ibid, 222.
[26] Ibid.
[27] Ibid.
[28] See Commission v Ireland (Sea Fisheries 1) (C-61/77) (1978) ECR 447 at 449. See also France v United Kingdom (Sea Fisheries 11) (C-141/78) (1979) ECR 2923 at 2942 and Commission v United Kingdom (Sea Fisheries Conservation Measures) (C-32/79) (1980) ECR 2403 at 2432.
[29] Commission v France (C-6 and 11/69) (1969) ECR 523 at 540.
[30] Fisheries cases 3, 4 and 6/76 Officier van Justitie V Kramer (1976) ECR 741.
[31] David O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in Alan Dashwood and Christophe Hillion (eds), The General Law of E.C external Relations, (2000, Centre for European Legal Studies) 197.
[32] Ibid. It was clarified that this will only happen where the agreement concerns subject matter which goes beyond the scope of exclusive community competence, and provided that those clauses do not have merely an accessory character in that they constitute objectives distinct from those in the field of exclusive community competence.
[33] Ex Article 5.
[34] Opinion of Advocate General Jacobs, EDF [1994] EUECJ C-316_91; (1994) ECR I-625 {48}.
[35] Opinion 1/94 (1994) ECR I-5267 [108], see also opinion 1/78 (1979) ECR I-2871, [34]-[36].
[36] Ibid.
[37] The Treaty of Rome.
[38] Ludwig Kramer, E.C Treaty and Environmental Law (3rd ed, 1998, Sweet and Maxwell) 1.
[39] Dir. 67/548 (1967) O.J L196/1.
[40] Dir. 70/157 (1970) O.J L42/16.
[41] Dir. 70/220 (1970) O.J L 76/1.
[42] Commission, First Communication on a Community policy for the Environment, SEC (71) 2616 of July 22, 1971.
[43] (1972) O.J C11/1
[44] Opinion 1/76 of the Court of Justice: above n 18, 570.
[45] First Environmental Action Programme (1973) O.J C1112/1.
[46] Ibid. Action two of the programme to improve the quality of the Environment.
[47] Caroline Landon and Michael Llamas The EC Law on Protection of the Environment and the Free Movement of Goods (1995, Butterworths) 6.
[48] First Environmental Action Programme (1973) O.J.C1112/1. Action one of the programme to reduce and prevent pollution and nuisance.
[49] Ibid.
[50] Prof. Jan H. Jans, European Environmental Law, (2nd ed, 2000, Europa Law Publishing).
[51] Article 100 provides that council shall acting unanimously on a proposal from the commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in member states as directly affect the establishment or functioning of the common market.
[52] (C91-79) (1980) ECR 1099.
[53] OJ L347 17.12.73 P51.
[54] (C-90/79) [1980] ECR 1099 as cited by Caroline London and Michael Llamas, above n 47, 22.
[55] Commission des Communautés européennes contre République italienne. Teneur maximale en soufre des combustibles liquides.Affaire (C-92/79). Recueil [1980] p.01115 as cited by Prof. Jan.H. Jans, above n 50, 4.
[56] Ibid.
[57] Ibid, 5.
[58] Above n 42, 21.
[59] Procureur de la Republique V ADBHU (C-240/83)[1985] ECR 531.
[60] Procureur de la Republique V ADBHU (Case 240/83)(1985) ECR 531as cited in Caroline Landon and Michael Llamas above no. 47, 5-6.
[61] Ibid.
[62] Caroline Landon and Michael Llamas above no. 47, 5-6.
[63] OJ C 139 13.6.77 P1.
[64] OJ C46 17.2.83 P1.
[65] It noted that the pattern of consumption is changing. Sections of population are concerned about some aspects of economic development and some signs of saturation are appearing.
[66] The 1977 Programme of Action OJ C I39 13.6.77 P1, 7.
[67] Ibid, 8.
[68] Ibid.
[69] Article 130r(1) prior to its amendment by the Treaty of the European Union.
[70] Above n 42, 9.
[71] Ibid.
[72] For example the polluter pays principle had been developed by the OECD back in 1972. It had also been included in Community texts, most notably the Council of 3rd March 1975 regarding cost allocation and action by public authorities on environmental matters.
[73] Above n 42, 11.
[74] OJ 1993 L237/28.
[75] Above n 44, 7.
[76] The programme emphasized that economic instruments were to be used to improve or maintain environmental quality. It further emphasized that these instruments were to be used consistently with the polluter pays principle and the preventive approach. Economic instruments were particularly to be used in the fields of water and air pollution, protection against noise, nature protection and waste management.
[77] Above n 42,12.
[78] Above n 44, 7.
[79] Article 2 of the Treaty of the European Union (1993).
[80] See Objectives under Article 130r(1).
[81] Above n 42, 18.
[82] See article 130r(2) Treaty of the European Union.
[83] Above n 42, 16.
[84] Ibid.
[85] Ibid.
[86] (1997) O.J C340/1, 10 November, 1997.
[87] The term sustainable development goes back to a report, which an ad hoc World Commission on the Environment and Development chaired by G. Brundtland made in 1987 to the United Nations and which was entitled Our Common future. In that report, the need for economic development was emphasized which should however be sustainable. Sustainable development was defined as development, which meets the needs of the present without compromising the ability of the future generations to meet their own needs. Subsequent community legislation described sustainable development s the improvement of the standard of living and welfares of the relevant populations within the limits of the capacity of the ecosystems.
[88] Ludwig Kramer (2000) above n 38, 7.
[89] Environment 2010: Our Future, our Choice. A six Environment Action Programme of the European Community (2001-2010).
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