European environment policy rests on the principles of precaution, prevention and rectifying pollution at source, and on the ‘polluter pays’ principle. Multiannual environmental action programmes set the framework for future action in all areas of environment policy. They are embedded in horizontal strategies and taken into account in international environmental negotiations. Last but not least, implementation is crucial.
Articles 11 and 191 to 193 of the Treaty on the Functioning of the European Union (TFEU). The EU is competent to act in all areas of environment policy, such as air and water pollution, waste management and climate change. Its scope for action is limited by the principle of subsidiarity and the requirement for unanimity in Council in the fields of fiscal matters, town and country planning, land use, quantitative water resources management, choice of energy sources and structure of energy supply.
European environment policy dates back to the European Council held in Paris in 1972, at which the European Heads of State and Government (in the aftermath of the first UN conference on the environment) declared the need for a Community environment policy flanking economic expansion, and called for an action programme. The Single European Act of 1987 introduced a new ‘Environment Title’, which provided the first legal basis for a common environment policy with the aims of preserving the quality of the environment, protecting human health and ensuring a rational use of natural resources. Subsequent Treaty revisions strengthened Europe’s commitment to environmental protection and the role of the European Parliament in its development. The Treaty of Maastricht (1993) made the environment an official EU policy area, introduced the codecision procedure and made qualified majority voting in Council the general rule. The Treaty of Amsterdam (1999) established the duty to integrate environmental protection into all EU sectorial policies with a view to promoting sustainable development. ‘Combating climate change’ became a specific goal with the Lisbon Treaty (2009), as did sustainable development in relations with third countries. A new legal personality enabled the EU to conclude international agreements.
EU environment policy rests on the principles of precaution, prevention and rectifying pollution at source, and on the ‘polluter pays’ principle. The precautionary principle is a risk management tool that may be invoked when there is scientific uncertainty about a suspected risk to human health or the environment emanating from a certain action or policy. For instance, to avoid damage to human health or to the environment in case of doubt about a potential dangerous effect of a product, instructions may be given to stop the distribution of this product or to remove it from the market if uncertainty persists following an objective scientific evaluation. Such measures must be non-discriminatory and proportionate and must be reviewed once more scientific information is available.
The ‘polluter pays’ principle is implemented by the Environmental Liability Directive (ELD), which aims to prevent or otherwise remedy environmental damage to protected species and to natural habitats, water and soil. Operators of certain occupational activities such as the transport of dangerous substances, or of activities that imply discharges into waters, have to take preventive measures in case of an imminent threat to the environment. If damage has already occurred, they are obliged to take the appropriate measures to remedy it and pay for the costs. The scope of the directive has been broadened three times to include the management of extractive waste, the operation of geological storage sites and the safety of offshore oil and gas operations respectively.
Furthermore, integrating environmental concerns into other EU policy areas has become an important concept in European politics (now enshrined in Article 11 TFEU) since it first arose from an initiative of the European Council held in Cardiff in 1998 (the ‘Cardiff process’). In recent years, environmental policy integration has made, for instance, significant progress in the field of energy policy, as reflected in the parallel development of the EU’s climate and energy package or in the Roadmap for moving to a competitive low-carbon economy by 2050 which looks at cost-efficient ways to make the European economy more climate-friendly and less energy-consuming. It shows how the sectors responsible for Europe’s emissions — power generation, industry, transport, buildings and construction, as well as agriculture — can make the transition to a low-carbon economy over the coming decades.
Since 1973, the Commission has issued multiannual Environment Action Programmes (EAPs) setting out forthcoming legislative proposals and goals for EU environment policy; the concrete measures are then adopted separately. The 6th EAP, which determined environment policy over the decade 2002-2012, focused on four priorities: climate change; biodiversity; environment and health; and natural resources and waste. Measures for these priorities were detailed in seven ‘thematic strategies’, focused on cross-cutting environmental themes rather than on specific pollutants or economic activities. In 2013 the Council and Parliament adopted the 7th EAP for the period up to 2020, under the title ‘Living well, within the limits of our planet’. Building on a number of recent strategic initiatives (the Resource Efficiency Roadmap, the 2020 Biodiversity Strategy and the Roadmap for moving to a competitive low-carbon economy by 2050), it sets out nine priority objectives, among which the protection of nature, a stronger ecological resilience, sustainable, resource-efficient and low-carbon growth, as well as the fight against environment-related threats to health. The programme also stresses the need for better implementation of EU environment law, state of the art science, investments and integration of environmental aspects into other policies.
In 2000 the Lisbon Strategy was formulated with the aim of making the EU the ‘most dynamic and competitive knowledge-based economy in the world’. It focused essentially on promoting growth and jobs through increasing the EU’s competitiveness. Only a year later in Gothenburg, this strategy was completed by the environmental dimension, thus leading to the EU Sustainable Development Strategy (SDS) (renewed in 2006 to combine the internal and international dimensions of sustainable development). The EU’s newest growth strategy, the Europe 2020 Strategy sets inter alia a headline target for climate and energy. It aims at shaping ‘smart, inclusive and sustainable growth’. Under its umbrella, the ‘flagship initiative for a resource-efficient Europe’ points the way towards sustainable growth and supports a shift towards a resource-efficient, low-carbon economy.
Certain individual projects (private or public) that are likely to have significant effects on the environment, e.g. the construction of a motorway or an airport, are subject to an ‘environmental impact assessment’ (EIA). Equally, a range of public plans and programmes (e.g. concerning land use, transport, energy, waste or agriculture) are subject to a similar process called a ‘strategic environmental assessment’ (SEA). Here, environmental considerations are already integrated at the planning phase, and possible consequences are taken into account before a project is approved or authorised so as to ensure a high level of environmental protection. In both cases, consultation with the public is a central aspect. This goes back to the Aarhus Convention. This convention was signed in 1998 by the EU under the auspices of UNECE (the United Nations Economic Commission for Europe) and later ratified by it. Under it, ‘public participation in decision-making’ is one of three rights guaranteed to the public in the field of the environment. The other two rights are: the right of access to environmental information held by public authorities (e.g. on the state of the environment or human health where affected by the latter), and the right of access to justice where the other two rights have been disregarded.
The EU also plays a key role in international environmental negotiations. For instance, at the 10th Conference of the Parties to the Convention on Biological Diversity, held in Nagoya (Japan) in 2010, the EU made a major contribution to achieving an agreement on a global strategy to halt the loss of biodiversity over the next ten years. Likewise, the Union participated in the decision to develop global Sustainable Development Goals (SDGs) for all countries which emerged from the ‘Rio+20’ conference on sustainable development held in 2012. Traditionally, the EU also has set standards during international climate negotiations under the United Nations Framework Convention on Climate Change (UNFCCC), for example by making unilateral commitments to reduce GHG emissions. Apart from global negotiations, the EU maintains partnership agreements and cooperation strategies with a number of countries and regions, e.g. within the European Neighbourhood Policy (Eastern and Mediterranean countries), as a means to address issues arising at the EU’s external borders, including environmental issues such as water quality, waste management, air pollution or desertification.
EU environmental law has been built up since the 1970s. Several hundred directives, regulations and decisions are in force today in this field. However, the effectiveness of EU environmental policy is largely determined by its implementation at national, regional and local levels. Deficient application and enforcement remain nevertheless an important issue. Also, monitoring is crucial — both of the state of the environment and of the level of implementation of EU environmental law.
To counteract the wide disparity in the level of implementation among Member States, in 2001 the European Parliament and the Council adopted Recommendation 2001/331/EC setting (non-binding) minimum standards for environmental inspections. A revision of the legal framework is foreseen for 2014. In order to improve the enforcement of EU environmental law, Directive 2008/99/EC on the protection of the environment through criminal law requires Member States to provide for effective, proportionate and dissuasive criminal sanctions for the most serious environmental offences. These include, for instance, the illegal emission or discharge of substances into air, water or soil, illegal trade in wildlife, illegal trade in ozone-depleting substances and illegal shipment or dumping of waste. Finally, the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) is an international network of the environmental authorities of EU Member States, accession and candidate countries, as well as Norway, created to boost enforcement by providing a platform for policymakers, environmental inspectors and enforcement officers to exchange ideas and best practice.
In 1990, the European Environment Agency (EEA) was created in Copenhagen to support the development, implementation and evaluation of environment policy and to inform the general public on the matter. The EU agency (open to non-EU members) is responsible for providing sound and independent information on the state of and outlook for the environment. It therefore collects, manages and analyses data and coordinates the European environment information and observation network (Eionet). To help policymakers take informed decisions and develop environmental legislation and policies, the EU also runs the European Earth Observation Programme (Copernicus), which addresses, among other concerns, land, marine, atmosphere and climate change. With regard to pollutants released into air, water and land as well as off-site transfers of waste and of pollutants in waste water, the European Pollutant Release and Transfer Register (E-PRTR) provides key environmental data from more than 30 000 industrial facilities in the EU, as well as in Iceland, Liechtenstein, Norway, Serbia and Switzerland. The register implements the UNECE PRTR-Protocol to the Aarhus Convention signed by the then European Community in May 2003. The register is available to the public free of charge on the internet.
The European Parliament plays a major role shaping EU environmental law. During its 7th legislative term (2009-2014), Parliament, co-legislating with the Council, adopted, inter alia, legislation on vehicle and industrial emissions, electronic waste and plastic carrier bags, illegal waste shipments and scrapping of old ships.
Moreover, Parliament has repeatedly recognised the need for improved implementation as a key priority. In a 2013 resolution on ‘improving the delivery of benefits from EU environmental measures: building confidence through better knowledge and responsiveness’, it criticised the unsatisfactory level of implementation of environmental law in the Member States and made several recommendations for a more efficient implementation, such as dissemination of best practices between Member States and between regional and local authorities. In its position on the current environmental action programme (running until 2020), Parliament also underlined the need to enforce EU environmental law more rigorously. It insisted that the 7th EAP should ‘contribute to a high level of environmental protection and to an improved quality of life and well-being for citizens’. It furthermore called for greater security for investments that support environmental policy and efforts to combat climate change, and for taking more and better account of environmental concerns in other policies.
In a 2010 resolution, Parliament considered the environmental aspects of the EU 2020 strategy as being generally too weak and in need of strengthening, and called for ‘clear and measurable environmental goals’ to be ‘built into the main targets of the strategy, with emphasis on halting the loss of biodiversity’.
Recently, Parliament approved an update of the environmental impact assessments directive in order to clarify the text, include biodiversity and climate change, and ensure that project authorisations are not subject to conflicts of interest. During negotiations with the Council, Parliament succeeded in raising quality standards to protect human health and the environment. Although it had to give in on mandatory environmental impact assessments for the extraction and exploration of shale gas, nevertheless risks to human health or the environment will have to be taken into account for new gas projects.