Environmental Integration in the EU's External Relations

Beyond Multilateral Dimensions

Gracia Marín Durán, Elisa Morgera

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781847319197
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

The book examines the integration of environmental protection requirements into EU external relations focusing on unilateral, bilateral and inter-regional instruments, which have been less explored than the multilateral dimension of EU environmental policy. The book also explores for the first time the complex interplay and mutual influences between EU environmental integration initiatives and environmental multilateralism. On the one hand it identifies the legal and other instruments used by the EU to support the implementation of multilateral environmental agreements in third countries (particularly developing ones). On the other hand, it singles out the legal and other tools employed by the EU as a means to build partnerships with third countries in order to influence ongoing multilateral negotiations concerning the environment and sustainable development, or to contribute to the development of new international environmental norms in the absence of such multilateral negotiations. Ultimately, the book traces the significant evolution of the various tools deployed by the EU to integrate environmental concerns in its external relations, with a view to identifying emerging challenges and future directions.

1

The EU Legal and Policy Framework

1. INTRODUCTION¹

THE AIM OF this chapter is to trace the broad legal and policy contours of the environmental integration requirement enshrined in Article 11 TFEU. The chapter begins by introducing the reader to the special character of the EU as an international environmental actor from the perspective of both public international law and EU constitutional law (section 1). It will then examine the constitutional features of the EU’s environmental policy, to which Article 11 TFEU is inherently linked. The granting of external competence to the EU on environmental matters will first be looked at from a historical perspective, before turning to an examination of its substantive scope and nature, as well as to the instruments available to the EU to articulate and implement the external dimension of its environmental policy (section 2).

The analysis is then directed to the core subject of this study: Article 11 TFEU (section 3). The environmental integration requirement will be explored in detail, to fully explain its legal relevance as a lens for the examination of EU external measures in subsequent chapters of this book. The emergence and evolution of this provision in EU primary law will be discussed first. This will be followed by a textual and contextual interpretation of Article 11 TFEU to determine its legal significance. The consequences that may be derived under EU law from ‘environmental integration failures’² will also be considered.

Finally, the chapter will offer an overview of the EU’s approach to environmental integration in the specific area of external relations, with a view to identifying the key environmental priorities and instruments that characterise EU environmental integration efforts in this particular field.

2. THE EU AS AN INTERNATIONAL ACTOR IN THE ENVIRONMENTAL FIELD

The EU has increasingly sought to assert itself as a prominent player in global environmental governance, by gradually developing an environmental policy with a marked external dimension and by being proactively engaged in the shaping and application of international environmental law. This includes, most notably, its participation in over 40 Multilateral Environmental Agreements (MEAs), but also in other environmental processes at regional and bilateral levels.³ The EU has a clear potential to act as a powerful negotiating block in MEAs and other international environmental processes, speaking not only on behalf of its 27 Member States but often also of other associated countries.⁴ However, whether due to lack of formal capacity or political will, the EU has not always been able to speak with a ‘single voice’ in international fora and coordination challenges still exist between its external action and that of its Member States. Nonetheless, the growing importance and weight of the EU in international environmental processes goes largely undisputed, particularly in light of the fact that the EU and its Member States represent the largest provider of official development aid and contributions to UN budgets.⁵

The emergence and consolidation of the EU as a global environmental actor has required, inter alia, important changes in both the EU founding Treaties and in public international law. Like other international entities, the EU needs to fulfil three necessary conditions to be an international environmental actor, whether at the multilateral or other levels: international legal personality; external recognition; and the necessary competence (and autonomy vis-a-vis its Member States) to undertake binding commitments.

The second condition is dependent upon the willingness of other international actors to recognise the Union as a negotiating partner and as a future party to the international agreement in question. Such external recognition of the EU has required some adaptation in the process of international law-making and enforcement, given that the EU is not a ‘traditional actor’ in public international law: it is neither a sovereign state, nor an international organisation. As opposed to the EU, international organisations usually have limited capacity to act and only rarely conclude international treaties.⁶ The unique and complex nature of the Union as an international actor generated uncertainty among negotiating partners and made the path towards external recognition rather rocky in the 1970s and 1980s.⁷ At present, the EU is widely recognised as a party to international agreements, albeit still a complex one to many of its counterparts.⁸

In the vast majority of MEAs, the EU’s participation has been accommodated, as a ‘regional economic integration organisation’ (REIO), through the so-called REIO clauses.⁹ Beyond the institutional structures created by MEAs, the EU is also a full member of the UN Food and Agriculture Organisation (FAO) and of the World Trade Organisation (WTO), which are also of relevance to global environmental governance. The 1991 accession of the then European Community (EC) to the FAO was enabled through the insertion of an ‘REIO-clause’ into the FAO Constitution,¹⁰ while the case of the WTO was very different given that the Community was already a contracting party to its predecessor, the 1947 General Agreement on Trade and Tariffs (GATT).¹¹ Full member status represents, however, a rather exceptional case for the EU, which otherwise has only observer status (such as in the UN General Assembly,¹² the UN Environment Programme and the Global Environment Facility),¹³ and in other instances (such as the Commission on Sustainable Development and UN environmental summits) ‘speaking rights’.¹⁴

The first and third conditions of the EU’s status as an international actor are, instead, primarily determined by the EU’s own constitutional order. The EU is explicitly granted international legal personality by its founding Treaties, and thus clearly possesses the capacity to act in the international system from an EU law perspective.¹⁵ However, the condition of substantive competence deserves more attention, due to the EU’s very existence as a constitutional system based upon the principle of conferral (or compétences d’attribution), that is, the EU ‘shall only act within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’.¹⁶ This principle, together with those of subsidiarity and proportionality,¹⁷ govern the exercise of EU competences and the vertical division of powers between the Union and the Member States, both internally and externally. In essence, the principle of conferral poses two inter-linked constitutional limits on the adoption of any EU legislative act, including those pertaining to the conclusion and/or implementation of an international agreement: the existence of substantive powers and the choice of an appropriate legal basis.¹⁸

At least from a legal perspective, this constitutional principle may be singled out as the most distinctive characteristic of the EU as an international actor: its action on the international scene may be internally constrained either by lack of competence, or where competence exists, by the objectives it must pursue and the extent to which it can act in an autonomous manner from its Member States.¹⁹ The original Treaty of Rome²⁰ only contained two provisions granting express external competences²¹ to the then European Economic Community (EEC), and the broadening of such competences has been a particularly sensitive issue for the EU Member States, which generally perceive treaty-making powers as being a core element of their national sovereignty. These constitutional and political features help to explain why there is a greater degree of legalisation and judicialisation of EU foreign relations when compared with those of sovereign States,²² and also why more often than not, the EU acts on the international scene jointly with its Member States.

As far as environmental matters are concerned, there is no ambiguity that the EU has been expressly empowered to act externally and to undertake international commitments on the basis of Article 191(4) TFEU, which reads: ‘Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned’.²³ These express treaty-making powers have furthermore been interpreted broadly by the European Court of Justice (ECJ), as enabling the EU to participate in an agreement even if (some of) the specific matters covered by the agreement are not yet, or only very partially, the subject of EU internal legislation.²⁴ Yet, by virtue of the principle of conferral, a question remains as to whether EU primary law imposes nonetheless limits on the exercise of such external environmental competence, depending on the objectives the EU must pursue in its external environmental action, as well as on the degree of autonomy it enjoys vis-a-vis the Member States. Before addressing these questions, the next section will first look at the attribution of EU environmental competence (in a broader sense) from a historical perspective.

3. EU EXTERNAL COMPETENCE ON ENVIRONMENTAL MATTERS

3.1 Emergence and evolution

The original Treaty of Rome did not vest in the European Economic Community any express competence on environmental matters (whether internal or external), and contained only meagre provisions conferring upon it the power to conclude international agreements, notably in the field of external trade and association agreements. It quickly became apparent that such limited express conferral of internal and external powers did not offer a sufficient legal basis for the growing needs of the Community to act in the field of the environment, including on the international scene.

With the convening of the first global summit on environmental protection, the 1972 Stockholm Conference on the Human Environment,²⁵ the Community joined other international actors in recognising environmental protection as an issue requiring urgent action.²⁶ The same year, a Summit of Heads of State of the Member States requested the drawing up of an action programme for a Community environmental policy, even in the absence of an express basis for the articulation of such a policy in the Treaty of Rome.

The following year the First Programme of Action of the European Communities on the Environment (1973–76) was adopted:²⁷ it was a policy declaration setting broad-ranging environmental objectives for the Community that already embodied some external dimension. Notably, its chapter on ‘Community action and joint action by Member States in international organizations’ stated that the Community ‘must continue the very active cooperation it has established in [the environmental] field with most of the international bodies’ (emphasis added), both because proposed international measures, even where non binding, could affect international trade, the functioning of the common market or other areas within the (exclusive) competence of the Community, and because the comparison with the activities of third countries participating in international organisations would benefit the Community by shedding new light on its own activities.²⁸

Environmental legislation was then enacted in an ‘incidental’ fashion in the 1970s and early 1980s on the basis of the ‘approximation of laws’ provision, which provided for legislative action to approximate national laws that directly affected ‘the functioning of the common market’, but did not back then explicitly refer to environmental protection.²⁹ In addition, to remedy this lacuna, the Council often also invoked the ‘flexibility clause,’³⁰ which allows more generally the adoption of legislative measures necessary for attaining the objectives of the Treaty where no other more specific legal basis is provided for.³¹

In parallel to these political and legislative developments, the ECJ laid down the ‘classic authorities’ of the doctrine on implied treaty-making powers in its breakthrough AETR judgment³² and Opinion 1/76.³³ In an attempt to summarise rather complex case law, the Court essentially established two independent conditions for the existence of implied external competences: (i) where this competence is explicitly provided for within an internal legislative act (existence à la AETR); (ii) even prior to the adoption of secondary legislation, by implication from the simple existence of internal powers (that is, the principle of parallelism), insofar as participation by the Community in an envisaged international agreement is necessary for the achievement of the objectives contemplated within the Treaty provision conferring the internal competence (existence à la Opinion 1/76).³⁴ This judicially-made doctrine of implie...

Table of contents

• Cover
• Environmental Integration in the Eu’S External Relations
• Title
• Copyright
• Acknowledgements
• Contents
• List of Abbreviations
• List of Tables
• Table of Cases
• Table of Legislation
• Introduction
• Chapter: 1 The EU Legal and Policy Framework
• Chapter: 2 Environmental Integration in Bilateral/Inter-regional Agreements
• Chapter: 3 Environmental Integration in the Generalised System of Preferences
• Chapter: 4 Environmental Integration in External Assistance
• Chapter: 5 Environmental Integration in Institutionalised Dialogues
• Chapter: 6 Environmental Integration through Sustainability Impact Assessments
• Chapter: 7 Supporting Environmental Multilateralism
• Conclusions
• Bibliography
• Index