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In 1958 the Treaty of Rome establishing the European Economic Community came into force. This Treaty, together with the 1951 Treaty establishing the European Coal and Steel Community (otherwise known as the Treaty of Paris) and the 1957 Treaty establishing the European Atomic Energy Community, make up the constitution of the European Community.
The original six members of the Treaty of Rome were France, West Germany, Luxembourg, Belgium, the Netherlands and Italy. They were subsequently joined by Ireland, the United Kingdom and Denmark in 1973; Greece in 1981 and finally by Spain and Portugal in 1985.
The Treaty of Rome did not provide for environmental protection as such but from the early 1960s on the Community adopted environmental legislation under Article 100 (concerning the approximation of national provisions directly affecting the Common Market) and Article 235 (which concerned the right of the Council to take actions to achieve the objectives of the Community where the Treaty has made no provision for such) or both.
The passing of the Single European Act in 1987 and Treaty on European Union (otherwise known as the Maastricht Treaty) in 1992 addressed this situation and introduced specific provisions dealing with the environment.
First, let us look at the main administrative and decision-making structures of the European Union. There are five institutions which carry out functions on behalf of all citizens:
1. The European Commission
2. The Council of Ministers
3. The European Parliament
4. The Court of Justice
5. The Court of Auditors
The European Commission initiates all legislative proposals and when laws are adopted by the Council of Ministers, it their proper implementation by the Member States of the EU. ensures
The Commission is based in Brussels and has a President and 17 Commissioners. Commissioners are appointed for four years by the mutual agreement of the governments of the Member States (extended to five years after 1995 to coincide with the European Parliament) and act only in the interest of the European Union. They may not receive instructions from any national government and are subject only to the supervision of the European Parliament. Each member has special responsibility for one or more policy areas. The Commission employs about 17,000 officials divided into 30 Directorates-General. In 1992, the Commission sent 651 proposals to the Council of Ministers. The Commission absorbs just under five per cent of theEU budget.
Only the Commission has the power to propose legislation. It is also responsible for implementing, monitoring and controlling the enforcement of EU law and policy. It can bring a Member State before the Court of Justice for failure to enforce EU law. It administers the EU budget. In addition, the Council may authorise the Commission to implement legislation through subsidiary legislation. Directorate-General XI (DG XI) is responsible for environment, nuclear safety and civil protection.
The Council of Ministers meets in Brussels and consists of a Minister from each Member State. It is responsible for taking the major policy decisions of the EU. It has the power to adopt legislation proposed by the Commission. The Commission puts forward proposals and the Council adopts the decisions either by unanimous decision or qualified majority (54out of 76 votes). Each Member State acts as President of the Council for six months in rotation. Meetings are attended by the different Ministers according to the agenda (e.g. agriculture ministers meet discuss farm issues). They also develop political cooperation with each other on major international problems.
The European Council was established in 1974 and comprises the heads of government of Member States and the President of the Commission assisted by the Foreign Ministers of the Member States and a member of the Commission. It was set up to act as a guide and driving force within the European Union. It has certain operational responsibilities with regard to security and foreign policy and economic and monetary union.
The European Parliament has been elected by universal suffrage since June 1979. As and from the European elections in June 1994, the number of European Members of Parliament will rise from 518 to 567. The breakdown is as follows:
Germany: 99 members
France, Italy and the United Kingdom: 87 members each
Spain: 64 members
The Netherlands: 31 members
Belgium, Greece and Portugal: 25 members each
Denmark: 16 members
Ireland: 15 members
Luxembourg: 6 members
Members are elected every five years and sit in political groups, not according to nationality.Parliament holds its part-sessions in Strasbourg. It participates in the formulation of directives, regulations and EU decisions by giving its opinion on proposals from the European Commission and proposing amendments. The Single Act laid down a new procedure, called the cooperation procedure, which involves two readings in both Parliament and the Council of Ministers. This widened the Parliaments room for political manoeuvre and gave it more influence on EU legislation. The Maastricht Treaty further broadened the Parliaments powers with the introduction of a co-decision procedure in 1992 which, together with the Council, allows the Parliament adopt regulations and directives on an equal footing in specific areas. In other areas, noticeably with regards to agriculture and prices, the Parliament has only a consultative role. Together with the Council, the Parliament has the power to approve the budget (which was over ECU 59 billion in 1992) and to dismiss the Commission.
In 1973 the Parliament set up a Parliamentary Committee to look into matters of environmental protection. This committee has responsibility for giving its opinion on all environmental initiatives proposed by the Commission.
The primary function of the European Court of Justice is to ensure that the European Treaties are interpreted and implemented in accordance with EU law. It is made up of 13 judges appointed by agreement with the Member States. These are assisted by six advocates general who analyse and propose decisions on cases before the Court. The Court’s judgements overrule those of national courts and it now has the power to fine a Member State which has not complied with its judgements. The national courts may apply to the Court of Justice for a preliminary ruling on an issue of EU law before taking a decision. National courts have the power to enforce the decisions of the Court of Justice.
The Court of Auditors monitors the Union’s financial activities. It comprises 12 members who are appointed by a unanimous decision of the Council after consultation with the European Parliament. The Court is based in Luxembourg.
The Council of Ministers and the Commission (where it has decision making powers), adopt legal instruments which have force of law and which, in many cases, apply directly to EU citizens.
REGULATIONS: are of general application and apply directly in the Member States without requiring any implementing national legislation. These come into force on the date specified in them, or failing that, on the 20th day following their publication in the Official Journal of the European Communities.
DIRECTIVES: are binding in their substance on the Member States to which they are addressed while leaving it to the discretion of Member States how to transpose them into national legislation.
DECISIONS: may be addressed to a Member State, firm or individual and are binding in their entirety on those to whom they are addressed.
RECOMMENDATIONS, OPINIONS and RESOLUTIONS: these are not binding.
The Commission proposes a piece of legislation to the Council of Ministers. A new cooperation procedure was introduced by the amendments to the Treaty in 1987 which requires that proposed legislation receives two readings in the European Parliament. Under the procedure the Commission sends proposed legislation to the Council which is required to obtain an opinion from the bodies mentioned above. After receiving the Parliaments opinion, the Council reaches a common position which is sent back to the Parliament for a second reading before being adopted by the Council. If the Parliament accepts the common position, the Council can adopt the piece of legislation by qualified majority. If not, the Council must reach a unanimous decision for the legislation to be adopted.
Once a Directive has been adopted the Commission sends a formal letter to each Member State, referring to the Directive, the deadlines laid down for its implementation, and the requirement of adapting national law to EU law in line with it. Three months before the deadline, the Commission again sends a formal letter to those Member States who have not notified the Commission of its incorporation into national law. If a Member State fails to properly implement EU law they can be taken before the European Court of Justice by the Commission.
ENVIRONMENTAL ACTION PROGRAMMES
The first Community environmental legislation dealt with products — dangerous chemicals, motor vehicles and detergents. In 1972, on foot of the Brundtland Report, the EC adopted its first five-year environmental action programme (1973-1977). The programme set out the principles which would guide its policies in the future and together with the SECOND ENVIRONMENTAL ACTION PROGRAMME set out detailed lists of actions to control a broad range of pollution problems. Eleven principles were listed which have remained valid in subsequent action programmes:
1. Prevention is better than cure. This principle was taken up again under the fourth environmental action programme.
2. Environmental impacts should be considered at the earliest possible stage in decision-making.
3. Exploitation of nature which causes significant damage to the ecological balance must be avoided.
4. Scientific knowledge should be improved to enable action to be taken.
5. The polluter pays principle: that is that the polluter should bear the cost of preventing and repairing environmental damage.
6. Activities in one Member State should not have detrimental effects on the environment in another.
7. Environmental policy in the Member States must take into account the interests of the developing countries.
8. The EU and its Member States should promote international and worldwide environmental protection through international organisations.
9. Environmental protection is everyone’s responsibility and therefore education is necessary.
10. Environmental protection measures should be taken at the most ‘appropriate’ level taking into account the type of pollution, the action needed and the geographical zone to be protected. This is known as the ‘subsidiarity principle’.
11. National environmental programmes should be co-ordinated on the basis of a common long-term concept and national policies should be harmonised within the Community.
The THIRD ENVIRONMENTAL ACTION PROGRAMME shifted the emphasis from pollution control to pollution prevention and widened the concept of environmental protection to include land use planning and the integration of environmental concerns into other EC policies.
The FOURTH ENVIRONMENTAL ACTION PROGRAMME (1987-1992) emphasised four areas of activity:
effective implementation of existing Community legislation;
regulation of all environmental impacts of ‘substances’ and ‘sources’ of pollution;
increased access to and dissemination of information;
The FIFTH ENVIRONMENTAL ACTION PROGRAMME FOR SUSTAINABLE DEVELOPMENT which covers the period 1993-1997 seeks to explore the range of instruments available to achieve better environmental protection and thereby hopes to influence present consumption patterns and behaviour, which are identified as the root cause of environmental degradation. Its two central themes are:
1. Sustainable development which means 'development which meets the needs of the present without compromising the ability of future generations to meet their own needs'.
2. Measures to curb environmental degradation.
The Programme targets five sectors:
- Manufacturing industry
Other areas highlighted are climate change; acidification; air quality; waste management; protection of nature and bio-diversity, and coastal management, as well as the urban environment. It states that environmental policy will rest on four main sets of instruments:
- Regulatory instruments (e.g. Regulations, Directives etc.);
- Market based instruments (Eco Label, Eco Audit etc.);
- Horizontal supporting instruments (research, information, education etc.);
- Financial support mechanisms.
The Single European Act, which came into effect on 1 July 1987, gave solid legal basis to European environmental policy by adding Title VII containing Articles 130r, 130s and 130t onthe environment to Part II of the Treaty of Rome. In addition Article 100a was included whichempowers the EU to adopt laws relating to health, safety and the environment on the basis that they contribute to the achievement of the internal market.
Article 130r identifies three objectives in relation to the environment which are:
1. the preservation, protection, and improvement of the quality of the environment;
2. to contribute towards protection of human health; and
3. ensure a prudent and rational usage of natural resources.
It also lays down principles upon which environmental action must be based:
1. prevention of harm;
2. control of pollution at source;
3. that the polluter should pay; and
4. the integration of the environment into other EU policies.
In addition, the Single European Act authorises Member States to adopt more stringent national measures to protect the environment than those sanctioned by the EU where these are compatible with the Treaty of Rome (Article 130t).
The Treaty on European Union which came into force on 1 November 1993, builds on the changes introduced by the Single European Act. It amends Article Two to include as one of the Union’s goals the promotion of ‘sustainable and non-inflationary growth respecting the environment’. It stipulates under the revised Article 130R 2 that a ‘environmental protection requirements must be integrated into the definition and implementation of other Community policies’. It also introduces the ‘precautionary principle’ which could include the requirement that protective measures be developed before specific environmental hazards are evident, and that the burden of proof that environmental damage will not occur should be placed on the polluter.
An important development under the Treaty is that environmental protection measures can now be adopted by a qualified majority of the Council of Ministers instead of by unanimous decision which had heretofore been required. The role of the European Parliament has been expanded with the introduction of a co-decision procedure for certain environmental proposals.
Council Directive on the ENVIRONMENTAL IMPACT OF CERTAIN PRIVATE AND PUBLIC DEVELOPMENT PROJECTS (CD 85/337/EEC of 27 June 1985, OJ (1985) L 175/40). (EIA Directive - see Environmental Impact Assessment).
Council Directive 90/313/EEC of 7 June 1990 OJ (1990) L 15856) brought into force by December 1992 - DIRECTIVE ON FREEDOM OF ACCESS TO INFORMATION ON THE ENVIRONMENT. This Directive is designed to ensure public access to and dissemination of information on the environment which is held by public authorities. Where governmental security, international negotiations, national defence, court procedures or commercial confidentiality may be affected, Member States may refuse access to information.
On the 7 May 1990, Council of Ministers adopted Regulation (EEC) 1210/90, which provides for the establishment of a EUROPEAN ENVIRONMENTAL AGENCY (EEA) and an Environment Information and Observation Network - this will be open to non-EU members such as the countries of EFTA and Eastern Europe. The EEA has at present no regulatory or enforcement powers but should play a significant role in the formulation of environmental policy and the EU. A large body of comparable data on Europe’s environment will be gathered - an information network on the environment will have to be established throughout the EU. The Agency will be based in Copenhagen. The role of the EEA was to be reviewed after two years at which time additional powers could be given to the EEA such as monitoring the implementation of EU environmental legislation in the member states and preparing eco-labels and criteria for their award to products, technologies etc.
The Environmental Protection Agency Act, 1992 established the ENVIRONMENTAL PROTECTION AGENCY in Ireland and set up a new framework for the control of pollution arising principally from large and/or complex industrial and agricultural activities or processes. Under the EPA Act, the Agency takes over responsibility from the local authorities for the licensing and regulation of activities with significant polluting potential. The Agency has also been given a supervisory role in relation to the monitoring of drinking water, the management of local authority sewage treatment works, the selection, management and operation of landfill sites, and the environmental monitoring activities of public authorities generally.
Regulation (EEC) 880/92 on a EU ECO-LABEL award scheme entered into force on 23 March 1992 and sets uniform standards throughout the Union for the issuing of Eco-labels (OJ 1992 L99/1). The object is to provide consumers with better information on the environmentalimpact of products and to promote those which have lesser impact. In June 1993, the Commission adopted the criteria for the first product categories which are washing machines and dishwashers. The next categories should include paper towels, paints and varnishes.
Council Regulation (EEC) 1836/93 allowing voluntary participation by companies in the industrial sector in a Community ECO MANAGEMENT AND AUDIT SCHEME (EMAS) was adopted on June 28/29, 1993. The purpose of the Regulation is to encourage industry to ‘establish and implement environmental policies, objectives and programmes and effective environmental management systems’ with a view to ‘continuous improvement of environmental performance’. A systematic, objective and regular assessment (environmental audit) of the company’s environmental performance must be undertaken by independent inspectors and the results made available to the public in the form of an environmental statement. In return the company will be entitled to use an EMAS logo which may not, however, be used to advertise their products or on the products or packaging themselves.
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