Hungary: Workshop Papers

Overview of European Union (EU) Environmental Legislation and Priority Issues

Dr. Mariann Karcza, Legal Adviser, Public Administration, Ministry for Environment and Regional Policy

Introduction

Environment legislation was not included in the Treaty of Rome of 25 March 1957, upon which the European Economic Community was founded. When the Treaty was signed its primary target was economic cooperation and the establishment of the 'Common Market'.

As a single international organization and a conglomeration of individual states, the European Union (EU) is a fairly appropriate vehicle for the promotion and realization of environmental protection. The introduction of environmental legislation in the EU has been a natural result of the development of cooperation among its Member States and the respective increased attention paid toward integration.

The Institutions of the European Union

The members of the former European Community curtailed their sovereignty by conferring appropriate national authority to the Community. The nation state character of the EU as it presently stands has become an increasingly decisive factor in the amendments of the treaties signed by its Member States.

The legislative and executive structure of the EU is as follows:

The European Commission is authorized to present proposals and drafts for EU legislation (whereby the Commission is the initiator). Proposals must be considered by interest groups and national experts within EU Member States. The Commission is also an executive body, which is responsible for the implementation of EU policies, whether based on Decisions of the Council of Ministers or directly on Treaty provisions. The Commission has the power to implement the rules which the Council lays down. Further, the Commission, as the guardian of the Treaty, controls that their provisions, as well as other Decisions of the EU, are correctly applied in the Member States.

Members of the Commission are appointed by mutual agreement of the Member States. It is divided into 23 General Directorates. Its administrative staff are based mainly in Brussels. The Commission has broad powers and the Member States must inform the Commission if their national legislation may effect the internal market. In this context the Commission has the opportunity to take the initiative by drawing up a proposal for the Union on such an issue.

The Council of Ministers (usually referred to as the the 'Council') is the main decision-maker, or the supreme legislative body. The Council consists of ministers from EU Member State governments. Participants at ministerial sessions change according to the agenda (for example, Council of Ministers for Foreign Affairs, Council of Agriculture Ministers etc.). Each Member State chairs the Council for six months, in rotation. The Committee of Permanent Representatives ('Coreper') and committees of national experts are responsible for preparing Council Decisions.
The European Parliament has direct but limited decision-making power in the legislative process. The Parliament may express an opinion on a proposed piece of legislation. The Parliament as an institution of democracy holds its sessions in Strasbourg and its commitees and political groups meet for the most part in Brussels. The Parliament has the power to adopt the EU budget and to ratify international agreements.
The Court of Justice has the right to nullify any measures adopted by the Commission, Council of Ministers, or by national governments which are incompatible with EU Treaties, at the request of any EU institution, Member State, or individual citizen of an EU Member State. At the request of any national court, the Court may also pass judgment on the validity or interpretation of an EU law.

The Sources of European Union Law

EU law can be divided into primary and secondary legislation.

Primary legislation includes those Treaties establishing the Communities, Annexes and Protocols, amendments to the Treaties, Treaties of Accession, and international agreements.

Secondary legislation includes the following:

Regulations generally valid and applied in all EU Member States
Directives addressed to EU Member States for incorporation into national legislation
Decisions binding particular Member States, companies, or individuals to whom they are addressed
non-obligatory Recommendations and Opinions

The Basis of Environmental Legislation in the European Union

In the early 1970s the European Economic Community realized the seriousness of environmental problems and the necessity for their treatment. The effect of the Global Environmental Conference of the United Nations, held in Stockholm in 1972, led European Community leaders to declare later that same year in Paris, that economic growth was not a goal in itself but that it must contribute to a decrease in the differences between living standards. The declaration emphasized that in line with European traditions, 'non-economic values' and environmental protection must be taken into consideration, particularly so as to ensure that economic growth would be to the advantage of all human beings.

The Environmental Action Programme

Soon after the above-mentioned declaration, the European Communities announced their first Environmental Action Programme, which forms the basis of EU environmental policy. The First Action Programme was initiated during 1974-76. A constant re-evaluation of priorities has subsequently led to newer Action Programmes. The Second Action Programme took place between 1977-81; the Third, 1982-86; and the Fourth, 1987-92. These determined the targets and principles of the CommunityÕs environmental policy and, furthermore, included the necessary instruments and planned measures. The current Fifth Action Programme was initiated in 1993. The emphasis of the Action Programmes has gradually moved away from the remediation of environmental damage to its prevention.

Although the above-mentioned Action Programmes are important political declarations, they do not provide the legal basis in themselves for EU environmental legislation. Although the Treaty of Rome did not lay down the environmental legislative power of the Communities, Article 100 (providing for law approximation among Member States for the establishment or functioning of the internal market, as required) and Article 235 (the constitutional provision for measures of functional interest to the internal market) jointly form the legal basis for environmental legislation. In line with these Articles, mainly product-related environmental Directives have been approved.

The Single European Act : Title VII - Environment

The Articles, however, do not provide for appropriate legislative powers to establish general environmental legislation for the Communities. Therefore, in addition to Article 100, the Single European Act of 1986 introduced Article 100a as well as a new Title; VII - Environment. This Title contains Articles 130r, 130s, and 130t, which define the targets and principles of environmental protection as originally laid down in the Action Programmes.

Article 130r stipulated that action by the Community relating to the environment must have the following objectives:

to preserve, protect and improve the quality of the environment
to contribute to the protection of human health
to ensure the prudent and rational utilization of natural resources

It also authorizes the Community to take measures related to environmental protection if the above-mentioned objectives could be attained better at Community level than at the level of the individual Member States.

In preparing measures concerning the environment, the Community must take into account all available scientific and technical data, environmental conditions in the various regions of the Community, the potential benefits and costs of action or of withholding action, and of the economic and social development of the Community.

Community measures concerning the environment shall be based on the following principles:

prevention
rectification of damage at the source
the polluter pays
environmental protection requirements shall be a component part of other Community policies.

The above-mentioned principles are contained in the environmental Directives of the EU. For example, the prevention principle is embodied in the Directive on environmental impact assessment; and the polluter pays principle is included in the Directive concerning the costs of environmental measures.

Article 130s ensures the legislative power of the Community and the structure of legislation concerning the environment. Interestingly enough, it provides no definition for 'environment' nor even a reference to the subject. The Council, upon acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, decides what action should be taken by the Community. The Council is authorized to define those matters in which Decisions must be taken by a qualified majority.

The flaw in this article, however, is that it fails to consider its relationship with other Community Statutes which also contain legislative power. In particular, its relationship with Article 100a can cause problems with regard to implementation.

Article 130t, in addressing the principle of subsidiarity, states that commonly adopted protective measures shall not preclude any Member State from maintaining or introducing more stringent protective measures as long as they are compatible with the Treaty.

The practice of the Court of Justice indicates a significant development of environmental issues. The Maastricht Treaty of 1992 included sustainable development and the need for environmental policy among its basic principles.

The process of establishing EU environmental legislation has accelerated. Indeed, approximately 250 Directives now regulate environmental issues. Moreover, it is expected that this number will have doubled by the end of the century.

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