The Institutional and Legal Basis of EU Environmental Activity

EU Institutions

The European Commission
The European Commission consists of 20 members proposed by the Member States. It has a staff of about 15 000 divided into 30 Directorates. DGXI has specific responsibilities for environmental matters. The Commission has a President appointed by the governments of the Member States after consultation with the European Parliament. The Commission may set out proposals for Community policy and propose legislation. Legislative proposals are published in the Official Journal of the European Communities (OJ).

One function of the Commission is to ensure that Community law is obeyed. Thus the Commission can bring proceedings to challenge the legality of action taken by Member States or Community institutions. The Commission has a legislative function in that it may initiate legislation. It may submit proposals to the Council of Ministers. The Commission, under its President, may set out its agenda for the policy and objectives of the Community. In environmental matters the, Commission may act against Member States when they are in default of' environmental obligations. This may take the form of legal action before the European Court or suspension of regional development grants to a defaulting state, as in the case of Portugal in 1990.


The Council of Ministers
The Council of Ministers is composed of a representative of each Member State. The Council has wide decision-making powers. It lays down budgetary procedures, and concludes treaties on behalf of the Community. It helps formulate the policy of the Community. The Presidency of the Council is taken in turn for- six months by each Member State. In the environmental area the Council usually operates in response to specific environmental problems. Overall, long-term environmental policies emerge through consensus and negotiation. There is a Committee of Permanent Representatives of Member States (COREPER) assisted by a General Secretariat. Agendas for Council meetings must conform to rules of procedure set down by COREPER. There is a European Council which meets at the end of each Presidency. The country holding the Presidency hosts a meeting of the political Heads of State representing the government of each Member State. Since the Single European Act 1986, there, is wider use of qualified majority voting. Currently this is constituted by 62 votes out of 87 with the 62 votes being cast by at least 10 Member- States. In major areas such as taxation unanimity is required arid where the Council wishes to deviate from the Commission's proposals.


The European Parliament
Since 1979 the Parliament is directly elected by the electorate of Member States. It meets in plenary session about 14 times a year. Currently there are 626 members representing over, 370 million people. Political groupings within the Parliament determine voting rather than national groups. Originally the Parliament's role was advisory. Gradually this is changing. The Single European Act 1986 arid the Maastricht Treaty extended the powers of the European Parliament, allowing the majority of the Parliament the power. to request the Commission to submit a proposal on matters for which the Parliament considers Community action is necessary. The Parliament may also veto certain environmental Acts. The Parliament may act through various committees, particularly through the Environment, Public Health and Consumer Protection Committee.


The Court of Justice of The European Community
The Court's primary function is to interpret and ensure the application of Community law is observed. There are 13 judges appointed by the governments of the Member States. Appointment is renewable for a term of six years. There are six advocate-generals who advise the Court independently of the judges on the basis of carefully argued submissions in open court. Such submissions are influential but are not binding on the judges. Procedures before the Court include both written and oral argument. The decision of the Court is binding on Member States. Interpretation of the judgements is left to the courts of the Member States. Hughes (Environmental Law, second edition, Butterworths, 1992, p.97) has noted that: The court had, by 1990, given 32 judgements in cases of infraction of environmental obligations with 35 cases pending, with an increasing number of 'second generation' cases, i.e. those involving allegations of specific infractions of directives, and sometimes involving evaluation of scientific and economic evidence.


The Court of Auditors
The Court of Auditors began life as two audit boards for the EC and Euratom. The Court of Auditors is now a Community institution (Article 4 EC) and has a staff of about 250 situated in Luxembourg. Its role is to ensure financial probity and rigour in accounts. The Court of Auditors is divided into four sections dealing with: the Agricultural Guidance Fund, the Regional Funds, Development Funds and Training and related matters. The Court of Auditors may help encourage the development of environmental policy indirectly through the publication of its reports.


The Main Sources of Community Law
The Community treaties noted above are binding on all Member States. There is, in addition, Community legislation. The authority for legislation is derived from the various treaties of the Community. The Community institutions operating together and in accordance with the requirements of the treaties may make regulations, issue directives and take decisions.

Regulations:
These are of general application. They are binding on Member States and apply automatically. This means that they require no national measure for implementation. They are directly applicable and ensure uniform application throughout the Community.

Directives:
A Directive is binding on Member States when implemented by the Member State to whom it is addressed. In principle, in contrast to regulations, which are automatically applicable, Directives do not take effect until the Member State has taken action for their implementation. Most of the major laws relevant to the environment adopted since the 1960s have been through the use of Directives. Invariably Directives contain a timetable for the implementation of their various parts. Controversy surrounds Directives. In Francovich and Bonifaci v. Italy (Case C-6,C-9/90 19 November1991) the European Court Of Justice admitted the possibility that an individual may be able to sue if a Member State failed to implement a Community Directive. This provides considerable potential for the enforcement of Community rights.

Decisions:
A decision may be applicable to. Member States or individuals or institutions within the Community. It is binding but unlike regulations a decision is usually confined or unlike regulations a decision is usually confined to the individual or institution that it specifically addresses.

The width and breadth of Community law calls into question issues of national sovereignty. In the United Kingdom attempts to reconcile Parliamentary sovereignty and membership of the Community are difficult. All documents published by the Commission for submission to the Council are made available to both Houses of Parliament. There are two Parliamentary Committees established in 1974 for the purpose of examining Community legislation and proposals. These are the House of Lords Select Committee on the European Communities and the House of Commons Select Committee on European Secondary Legislation. Both committees provide a useful resource of informationon Community proposals.

Member States must not only adhere to Community law in practice, they must also ensure that domestic law is not incompatible with Community law. This restriction applies to both local and central government in the United Kingdom. A particular problem arises with Directives that are of direct effect. Thus the approach to the interpretation of Community law by the EC Court of justice must be adopted by the national court when considering whether a Directive has direct effect (see: R. v. London Boroughs Transport Committee ex parte FreightTransport Association Ltd (l [19911 3 All ER 915).


European Community and The Environment
In the early years of the Community the development of a Community policy on the environment was slow and ad hoc. Since the 1970s Community developments on the environment have been more considerable, move than probably any other aspect of Community policy. There are over 300 Directives, regulations arid decisions currently in force covering such diverse areas of the environment as pollution control and wildlife.

In the early life of the Community environmental issues mainly arose through the interpretation of Article 100 of the Treaty of Rome relating to the harmonisation of national laws having a direct effect on the development of the Common Market. In addition Article 36 of the Treaty states that the protection of health and life of humans, animals or plants shall not be prohibited or restricted by any provisions of the Treaty. However, this has been restrictively interpreted and generally most environmental protection falls outside its ambit. In contrast, Article 235 is more widely interpreted. It permits institutions of the Community to take appropriate measures to achieve die objectives of the Community. It is frequently used to justify action on the environment. Articles 13OR, 130S and 130T are used to develop environmental policy.

The Community has slowly developed environmental policies through the interpretation of the various articles noted above. In 1972 Community policy was formulated at the Paris Conference of the Heads of States and Governments. It was accepted that '. . . particular attention will be given to intangible values and to protecting the environment. . .'.

Specific Treaty obligations were added by the Single European Act 1986 and the Treaty of Maastricht 1991. Principles on the environment are found in the addition of Article 13OR. These include:

  • To preserve, protect and improve the quality of the environment.
  • To contribute to the protection of the health of individuals.
  • To ensure a prudent and rational utilisation of natural resources.
  • To promote at international level, measures to deal with regional or worldwide environmental problems.
An additional element in the future development of environmental law is the principle of subsidiarity. Thus Community action on environment is to be taken only where the objectives can be attained through regional action rather than measures taken by each member state.

The Community has adopted various Action Programmes on the Environment. In all there have been five Action Programmes. The first three covered the period 1973-76, 1977-81 and 1982-86. The Fourth Programme covered the period 1987-92 and a Fifth Action Programme is now in place until the end of the century. The Fifth Action Programme makes the link between the protection of the environment and economic growth. The Community strategy is aimed at 'sustainable development'. This involves a wide range of institutions concerned with the environment. Public authorities, local and central government, various regulatory agencies and the general public are involved. It is expected that the Community will encourage sustainable development by taking account of the international dimension to environmental problems.

The concept of sustainable development originated in 1980 in the World Conservation Strategy formed by the International Union for the Conservation of Nature (IUCN) stressing sustainable development in ecological terms. The concept was redeveloped in 1987 to incorporate consideration of economic needs. The World Commission on Environment and Development (better known as the Brundtland Commission after its chair) produced a report entitled Our Common Future (the Brundtland Report, 1987). In this report sustainable development was defined as:

  • Development that meets the needs of the present without compromising the ability of future generations to meet their needs.
  • A series of policy objectives were set for sustainable development:
    • Reviving economic growth.
    • Changing the quality of growth.
    • Meeting essential needs for jobs, food, energy, water and sanitation.
    • Ensuring a sustainable level of population.
    • Conserving and enhancing the resource base.
    • Re-orienting technology and managing risk.
    • Merging environment and economics in decisioin-making processes.
The Fifth Action Programme of the Community recognises that there are specific environmental problems that require specific action: climate change, air quality, nature protection, water protection, the urban environment and waste management. Also recognised in the Programme are sectors which are of particular concern to the environment. These are industry, energy, transport, agriculture and tourism. A distinguishing feature of the Fifth Action Programme is the development of a wide range of techniques to implement environmental policy. These include regulations, Directives, economic and fiscal indicators, including environmental audits and the recognition of environmental liabilities. Access to information and co-operation between different agencies within the Community is also to be encouraged. It is noteworthy that in the United Kingdom, the principal aims and oh ectives of the new Environment Agency established tinder the Environment Act 1995 include the objective of achieving sustainable development (see s. 4 of the Environment Act 1995).