Enforcement of European Union Environmental Law

Legal Issues and Challenges

Martin Hedemann-Robinson

• Verlag: Routledge
• Jahr: 2015
• ISBN:
  9781135115845
• Auflage: 2
• Thema: Jura
• Thema: Umweltrecht

Offering a detailed account of the various legal arrangements at European Union level, this book is an ideal reference tool for practitioners and legal scholars. As well as examining the principal sources of EU environmental law enforcement, it also contributes to the legal and political debates that surround the subject.

Spanning three parts, the author examines the practical impact of the legal arrangements at Union level that are used to uphold EU environmental norms. Offering a comprehensive account of the current state of EU environmental law enforcement and the developments affecting it, Martin Hedemann-Robinson explores the role of the European Commission, the possibilities for private law enforcement, and the responsibilities of member state national authorities.

Key legal developments that have occurred since the first edition have been incorporated, including new statutory developments and case law. Particular attention is paid to the impact of the 2007 Lisbon Treaty on foundational EU treaty provisions enabling the European Commission to take legal action against EU member states infringing Union environmental law, the establishment of a new legal architecture at Union level on the topic of environmental criminal policy, as well as increased EU legislative intervention in the area of environmental inspections. The impact of the 1998 Århus Convention on EU environmental law enforcement is also addressed in detail, including the influence of recommendations of the Århus Convention's Compliance Committee.

1
Introduction

Without question, environmental policy of the European Union (EU) has, over the last 40 years,¹ evolved into being an important integral component within the wide range of the regional international organisation’s economic and political objectives. Until the mid 1980s, though, the constitutional framework of the EU did not formally provide itself with a mandate to develop a policy on the environment. Specifically, this came about by virtue of the Single European Act (SEA) 1986,² a treaty agreed between the EU’s member states which served to amend the Union’s original founding treaties and include protection of the environment amongst its official objectives and tasks. The entry into force of the SEA signalled an important shift in relation to the identity, purpose and direction of supranational European integration. Hitherto, the EU had predominantly, if not exclusively, been founded upon the objective of establishing a common market between its constituent member states, principally through the elimination of trading barriers between them as well as other distortions to competition.

At the inception of the Union in the early 1950s, the project of realising a common market was intended to serve as the principal mechanism of achieving the core, broader ambitions of the founding treaties, namely the former 1951 European Coal and Steel Community (ECSC) Treaty, former 1957 European Economic Community (EEC) Treaty and the 1957 European Atomic Energy Community (EAEC/Euratom Treaty). The original principal founding treaty, namely the former EEC Treaty, envisaged most notably the laying of the ‘foundations of ever closer union among the peoples of Europe’, ‘to ensure the economic and social progress’ of the member states and the ‘constant improvement of the living and working conditions’ of the member states’ populations.³ Those goals still form an essential part of the constitutional fabric of the contemporary legal framework of the Union.⁴

However, it was not until 1986, by virtue of treaty amendment through the SEA, that the EU specifically included within its mandate the development of a common environmental protection policy. The specific inclusion of an environmental protection policy in the constitutional make-up of the EU confirmed and brought with it a profound change to the political nature of the regional international organisation. Notably, the EU was now no longer an organisation predominantly focused on achieving closer economic integration between its constituent member countries, but one that also aspired to achieve a high level of environmental protection. The environmental protection commitment remains entrenched amongst the various policy objectives of the Union, as contained in Article 3 of the current version of the Treaty on European Union (TEU). Specifically Article 3(3) TEU cites the ‘sustainable development of Europe’ as well as ‘a high level of protection and improvement of the quality of the environment’ amongst the objectives of the Union. This is complemented by the inclusion of provisions within the EU treaty framework enabling the adoption of measures for the development of a common environmental policy at EU level.⁵ Since 1986, the Union’s constitutional commitment to environmental protection has been further strengthened through additional treaty amendments, most significantly by the incorporation of a stipulation within the foundational EU treaty framework that environmental protection requirements must be incorporated within the definition and implementation of the entire range of its economically related policies and activities.⁶

Since the inauguration of an environmental protection dimension to the EU’s policy portfolio, a substantial number of legislative instruments have been adopted at Union level on the environment. Over 200 legislative measures have been passed by the EU concerning environmental protection issues.⁷ It is true that EU rules on environmental protection account for only part of the legal framework that constitutes environmental law from the perspective of EU member states. For them, the subject of environmental law also comprises rules binding on them passed at national and other international levels. However, it is fair to say that the material range and depth of EU environmental legislation is both wide and deep. In 2013, the European Commission estimated that some 80 per cent of environmental legislation of the Union’s member states derives from EU instruments.⁸ Although member states share competence with the EU in relation to the area of environmental policy,⁹ national rules that conflict with the requirements of environmental measures adopted at Union level are required to be set aside, in order to respect the principle of the supremacy of EU law over national law.¹⁰ Accordingly, EU environmental law constitutes a very significant element in the overall package of measures adopted by member states to protect the environment.

Notwithstanding the now long-standing constitutional commitment on the part of the EU to develop a common environmental policy, the implementation of that promise into practice has faced considerable challenges at various levels, political as well as legal. First, from a purely political perspective, moves to adopt environmental protection measures have faced resistance from various quarters, public and private. Concerns are constantly raised about the impact of the perceived level of ‘economic cost’ of environmental measures intended to introduce enhanced systems for the protection of the environment, particularly from certain industrial lobby groups and member state governments. This tension is part and parcel of the constant struggle that faces the Union, and indeed all systems of contemporary political governance, on determining the extent to which regulation is required in order to address anthropogenic impacts on the state of the environment. Ultimately, it is a battle of ideas and interests over the means of changing societal behaviour so as to render a sustainable relationship between society and the environment, including decisions over allocation of governmental resources to assist in this endeavour. This challenge is essentially a political struggle, in respect of which there are no scientifically objective or otherwise clear-cut solutions. The EU treaty framework reflects this approach to decision-making, in that its environmental provisions allow for broad interpretation by the incumbent EU legislature (composed fundamentally of the European Parliament (EP) and Council of the EU) whose hands are effectively free from any significant legally enforceable constitutional constraints over policy content.

Secondly, the EU has faced difficulties in securing the proper implementation of its adopted policies relating to environmental protection. Specifically, it has been confronted with a number of problems in ensuring that its legislation on environmental protection is actually implemented fully and on time by Union member states, notwithstanding the legally binding force of such measures. Implementation of agreed policy is a problem shared by several international organisations, not only the EU. In general, the writ of international law does not run readily or easily within the internal legal systems of nation states. The standard principles of international law do not provide legal tools through which legally binding accords agreed between subjects of international law (nation states and international organisations) may be enforced. Under international law, contracting parties to an international environmental agreement must agree to specific mechanisms in the agreement to enhance the implementation and supervision of implementation of its obligations. Such mechanisms (ranging from reporting, peer review, arbitration, referral to an international court such as the International Court of Justice, independent monitoring through to the adoption of financial incentives and sanctions) have been slow to emerge and develop effectively in international practice as far as multilateral environmental agreements are concerned.¹¹

However, as will be discussed in detail later on in this book, the EU has developed its own special legal order, radically different from that which applies between international organisations and their respective contracting parties. The EU’s legal order, as developed notably at the hand of the Union’s judicial institution, the Court of Justice of the European Union (CJEU), involves the existence of a special legal relationship between the EU and its member states, whereby there are several possibilities for various actors to take steps to enforce provisions adopted at Union level that are intended to be binding on the EU institutions, member states and/or private persons. Notwithstanding these legal possibilities, the record of several member states on ensuring proper implementation of Union legislative measures on environmental protection has been a relatively poor one. The responsibility of member states to internalise the environmental measures agreed at EU level and apply them within their respective jurisdictions has been a difficult legal and political pill for many of them to swallow.

The focus of this book is to consider the second of the major challenges identified above that confront the EU in its aims to deliver its environmental protection commitments, namely the task of securing effective implementation. The question as to what extent the Union, in developing its environmental protection policy, has achieved an appropriate balance between the relevant interests involved and affected by its environmental measures is open to debate as a political question and is not the concern of this book. Instead, this book aims to consider the various Union legal mechanisms and principles through which EU environmental law may be enforced effectively at the level of the member state as well as at EU institutional level. Specifically, it will look in detail at the particular legal principles and mechanisms that exist under EU law to assist in ensuring that binding measures adopted by the Union on environmental protection are actually adhered to, both in terms of the letter of the law as well as in practice. In addition, where appropriate, the relevant EU legal machinery will be placed into its broader political context.

Just as the content of environmental policy (including legislation) at EU level is subject to change and innovation in line with developments in science and political pressures, a non-static picture applies equally with regard to the area of EU environmental law enforcement. Since the turn of the millennium, in particular, the EU legal area concerning EU environmental law enforcement has been transformed and, at the time of writing, is still undergoing a series of significant alterations. This has been due in substantial part to the EU’s membership of the United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, agreed on 25 June 1998 in Århus, Denmark (referred to as the ‘Århus Convention’).¹² The Århus Convention has important ramifications for the EU, in terms of the extent to which private persons, in particular environmental non-governmental organisations (NGOs), may have an input and influence in supervising the implementation of EU environmental law. The Union is still very much in the process of completing the internalisation of legal commitments entered into by it under the Convention. A significant part of this book¹³ will be devoted to considering its impacts at EU level.

This book seeks to explore the subject of EU environmental law enforcement from the perspectives of the three principal stakeholders involved in law enforcement work, namely the European Commission of the EU, member state authorities engaged in environmental protection as well as civil society (primarily but not exclusively non-governmental environmental organisations (NGEOs)). Historically, supervision of implementation of EU enviro...

Inhaltsverzeichnis

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Table of cases
• Table of treaties and environmental legislation
• Table of abbreviations
• 1 Introduction
• Part I The role of the European Commission in enforcing EU environmental law
• Part II The role of private persons in enforcing EU environmental law
• Part III The role of member states in enforcing EU environmental law
• Bibliography
• Index