From Zero to Hero:
Development of EU Competences in Environmental Law
Koen Ruijter 10431829
Thesis LLM European Union Law kmruijter@gmail.com
Supervisor: dhr. mr. dr. R.H. van Ooik 24/07/2020
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Abstract
Environmental law has become one of the most prominent policy areas of the European Union. However, this has not always been the case. The first Treaty on the European Economic Community was silent on environmental protection. Yet, even in this period the EEC did manage to produce numerous interesting secondary legislation. In this thesis the question how important the choice of legal basis still is in the field of environmental protection will be central. First there will be a close look at four different periods: Treaty of Rome till the Single European Act, from the Single European Act to the Treaty of Maastricht, from the Treaty of Maastricht till the Treaty of Lisbon, and the post Treaty of Lisbon era. In each period treaty provisions which were used in adopting environmental legislation will be discussed, like the internal market, environment and energy provisions. Secondary legislation will also be analysed, either because the secondary legislation is based on a wrong legal basis, based on a new legal basis or to confirm that earlier legislation was based on the correct or wrong legal basis. Third, case-law from the ECJ will be discussed, and especially disputes over the correct legal basis. The Court seems especially to have difficulties in situations when it concludes that an act has two objectives which are indissociably linked, and neither of which can be regarded as secondary or indirect, and the procedure for both objectives requires a different procedure.
The choice of legal basis was the most important in the second period, because there were different procedures for the two main legal bases for environmental policy. It was of least importance in the first period, because the procedures were similar and the measures were adopted by unanimity voting in the Council. In the later periods the choice of legal basis is still important due to the growing development of competences of the Union in general. This resulted in more complex situations to determine under which competences a legislation should be adopted. Therefore, the Union should remove Article 192(2) TFEU, to ensure a more transparent and effective legislative procedure.
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Table of content
Introduction 5
1. Treaty of Rome – Single European Act 7
1.1 Treaty provisions 7
1.1.1 Article 235 EEC 7
1.1.2 Internal market 8
1.2 Secondary legislation 9
1.2.1 Wild Birds Directive 9
1.2.2 Environmental Impact Assessment Directive 10
1.3 Case-law 11
1.3.1 C-91/79-92/79 Commission v Italy 12
1.3.3 ADBHU case 13
1.4 Conclusion 13
2. Single European Act – Treaty of Maastricht 15
2.1 Treaty provisions 15 2.1.1 Internal market 15 2.1.2 Environment Title 16 2.2 Secondary legislation 16 2.2.1 Habitats Directive 17 2.2.2Pentachlorophenol (PCP) Directive 18 2.3 Case-law 18 2.3.1 Titanium Dioxide 19 2.3.2 Waste I case C-155/91 20 2.3.3 Waste II case C-187/93 21 2.4 Conclusion 22
3. Treaty of Maastricht – Treaty of Lisbon 24
3.1 Treaty provisions 24
3.1.1 Article 2 EC 24
3.1.2 Article 130s EC 25
3.2 Secondary legislation 25
3.2.1 Batteries Directive 25
3.2.2 Strategic Environmental Assessment Directive 26
3.3.3 Renewable Energy Directive 28
3.3 Case-law 28
3.3.1 Danube case 29
3.3.2 Rotterdam Convention cases 30
3.3.3 Forrest Protection Measures 32
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3.4 Conclusion 34
4. Post Lisbon 35
4.1 Treaty provisions 35
4.1.1 Climate Change in Article 191 TFEU 35
4.1.2 Energy policy 194 TFEU 36
4.2 Secondary legislation 36
4.2.1 Energy Efficiency Directive 37
4.3 Case-law 37
4.3.1MSR Case 38
4.3.2European Parliament v Council C-48/14 39
4.4 Conclusion 40
5. Legal Basis; 192 and 114 TFEU 41
5.1 Article 192 TFEU 41
5.2 Article 114 TFEU 41
5.3 Article 192(2) TFEU 42
Conclusion 45
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Introduction
The principle of conferral is an essential element of the European Union’s legal order. This principle entails that the Union can only act within the limits of the competences conferred upon it by the Member States.1 This made the decision in 1979 from the EEC, now the European Union, to adopt a Directive to protect the species of wild birds in the Union so surprising. In the Treaties it was not obvious that the Community had the competence to do so. Environmental protection has grown into an essential component of the Union, yet the Treaties were completely silent on this subject in the first phase of European integration.2 That environmental protection has become one of the most important policy areas of the Union is seen in the fact that the most ambitious project of the new European Commission is the so-called European Green Deal. Due to environmental and climate challenges the Commission under president Ursala Von der Leyen tries to reform multiple policy areas.3 The question rises; how did a policy area which was first absent in the Treaties become a central part of the European Union’s actions?
Environmental law is a term which includes law, policies and regulations which aim to protect natural resources like air, water and land. Thus, environmental law is a broader subject than for example climate change mitigation, which has become more conventional in the last years. However, the definition is not clear-cut; there is for example a debate whether or not animal welfare should also be considered to fall under the environment umbrella.4
The choice of legal basis in the field of environmental protection will be central in this thesis. This choice is important in the legislative process because it shows on which Community/EU competence the legislation is based, and there are different procedures under different provisions. It influences for example the rights of the European Parliament in the decision-making procedure, the way in which voting takes place in the Council and the rights of Member States to adopt stricter legislation at domestic level may vary as well. In the Tobacco Advertisement case the Court made it, again, clear that the decision of a legal basis should be based on objective criteria, and especially based on the aim and content of the measure.5 Some
1 Now Article 5 TEU.
2 See more on the Wild Birds Directive in Chapter 1.2.1.
3 “A European Green Deal; Striving to be the first climate-neutral continent”
https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en#:~:text=The%20European%20Green%20Deal%20is,just%20and%20inclusive%20for%20all. 4 Philippe Sands, Principles of International Environmental Law (2nd edition, Cambridge 2003) 4-7.
5 C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union [2000] ECLI:EU:C:2000:544, par 59.
6 institutions may prefer a certain legal basis over another, for example the Council seems to opt generally more for Article 192 TFEU over Article 114 TFEU as a legal basis, because under that Article national authorities have more discretion due to Article 193 TFEU. It can happen that a double legal basis is necessary, when two policy objectives have the same weight. However, this situation cannot occur when the procedures of both legal bases are incompatible, and the European Court of Justice6 had to review a great deal of cases dealing with this problem.7
The following research questions is central in this thesis: is the choice legal basis in the field of environmental law still as important in comparison with earlier periods? The objective is to show that new Treaties not always lead to the anticipated results of the treaty-makers. Each chapter will discuss a different period in the European integration process, and what changed compared to the previous period. Four chapters will discuss four different periods; (I) From the Treaty of Rome till the SEA, (II) from the SEA to the Treaty of Maastricht, (III) from the Treaty of Maastricht till the Treaty of Lisbon, (IV) and the post Treaty of Lisbon era. The sub questions will be divided into three parts; primary law, secondary legislation and case law. In the section on primary law the question which new legal basis became available, and what changed in comparison to the period before will be central. Second, it will be analysed how this influences the aim, scope and substance of the secondary legislation. There will be special attention for the legal basis used for the secondary legislation, and how this relates to the development in competences of the Union in the field of environmental law. The secondary legislation is selected based on the fact it is either based on a wrong legal basis8, based on a new legal basis9 or to confirm that earlier legislation was based on the correct or wrong legal basis10. Third, the role of ECJ in this process will be analysed. There will be a focus on cases specifically dealing with the choice of legal basis in the field of environmental law. In the last chapter there will be special attention to the legal basis that are most commonly used in environmental legislation by the Union, and I will argue for the removal of Article 192(2) TFEU.
6 Hereafter: The ECJ or the Court.
7 Ludwig Krämer, EU Environmental Law (8th edition, London 2016) 123. 8 See for example chapter 1.2.2 :The Environmental Impact Assessment Directive 9 See for example chapter 2.2.1: Habitats Directive
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1. Treaty of Rome (1958) – Single European Act (1987)
On the 25th of March 1957 the six original Member States11 signed the Treaty of Rome which established the European Economic Community (EEC). The Treaty created a common market and a custom union within the Community, and introduced the ‘four freedoms’. Furthermore, it established the Commission as a separate executive authority.12 However, it did not entail any provisions referencing to the environment. This is unsurprising considering it was primary an economic community and environmental issues were not a concern in the 1950s. Nonetheless, there were some sporadic initiatives in this period, especially since the 1970s when environmental issues came on the global policy stage.13 This chapter will first discuss Article 235 and 100 EEC, which were used as a legal basis when the Community acted in the field of the environment. Second, the Wild Birds Directive and Environmental Impact Assessment Directive which were adopted in this period will be analysed. Last, two cases by before the ECJ will be discussed.
1.1 Treaty provisions
As discussed above, the EEC Treaty did not contain any provisions on environmental law. Yet, in 1971 the Commission proposed a Community policy for the environment to the Council. This happened against the background of global initiatives like for example the United Nations Conference on the Human Environment in Stockholm in 1972, convened in 1968 by the UN General Assembly.14 In this paragraph the two legal bases used by the Commission, despite an obvious lacuna, in the field of environment will be discussed. These are Article 235 and 100 EEC15, and both required unanimity of voting in the Council. The Council could decide to adopt a measure on a double legal basis, so both Articles 235 and 100 EEC. This was especially in this first period more common, since the procedure of both Articles were identical.16
1.1.1 Article 235 EEC
Article 235 EEC stated: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this
11 Belgium, France, Italy, Luxembourg, the Netherlands and West-Germany.
12 Catherine Barnard and Steve Peers, European Union Law (2nd edition, Oxford 2017) 14-15. 13 David Langlet and Said Mahmoudi, EU Environmental Law and Policy (Oxford 2016) 97-98. 14 Ian Bailey, New Environmental Policy Instruments in the European Union (Aldershot 2003) 13. 15 Now: articles 352 and 114 TFEU.
8 Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly [European Parliament], take the appropriate measures.” This was the most general competence in the Treaties. It could be used to adopt executive as well as legislative acts.
There is an obvious logic behind using this legal basis. The lack of competence in the field of the environment and the necessity to act made this a prime example why the drafters of the Treaties included this provision. However, this Article did require that the measure is on “one of the objectives of the Community”, which raises the question whether or not environmental protection was an objective of the Community. Case-law from the ECJ later discussed in this chapter will demonstrate that this was the case. Article 235 EEC was used eagerly in this period to develop an European environmental policy, in fact the majority of the environmental legislation was based on Article 235 EEC combined with Article 100 EEC. 17 Examples for this are Directives 76/464/EEC18, 78/319/EEC19 and 82/501/EEC20.
1.1.2 Internal market
The internal market always has been central in the European integration process. Article 100 EEC allowed the European Community to legislate to improve the functioning of the common (now: internal) market. In the first phase of the development of an EU environmental policy legislation was centred around the common market, and environmental measures were merely an accidental side-effect.21 Different standard for certain products, like the lead content of petrol, could lead to distortion of free trade or competition within the Community.22
However, legislation was subject to unanimity voting in the Council, which made a successful harmonization of the internal market relatively difficult. Attempts to replace unanimity voting with majority voting in the Council failed in the mid-1960s, which slowed the European integration process.23
17 Jan H. Jans and Hans H.B. Vedder, European Environmental Law After Lisbon (4th edition, Groningen 2012) 4-5.
18 Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community [1976] OJ L 129, 18.5.1976.
19 Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste [1978] OJ L 84, 31.3.1978. 20 Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities [1982] OJ L 230, 5.8.1982.
21 See for example: Council Directive 70/157/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles [1970] OJ L 42, 23.2.1970.
22 Christoph Knill and Duncan Liefferink, Introduction and historical overview: the establishment of
environmental policy as a European policy domain (Manchester 2007) 3.
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1.2 Secondary legislation
In this paragraph two Directives on the environment adopted in this period will be discussed. First, the Wild Bird Directive will be discussed, which was one of the first environmental actions of the Union, and controversial due to the apparent lack of competence of the Union in this area. Second, the Environmental Impact Assessment Directive will be discussed. Environmental impact assessment originated from the USA, and after its success spread to countries like Sweden, New Zealand and Australia, it became one of the core principles in international climate change mitigation, and was first introduced in the European Community in 1985.24
1.2.1 Wild Birds Directive
On 2 April 1979 the Council adopted Directive 79/409/EEC on the conservation of wild birds.25 The Directive was based upon Article 235 EEC. The aim of the Directive was to combat declining numbers of wild birds naturally occurring in the European territory of the Member States. Because these birds are mainly migratory species effective protection is typically a trans-frontier environment problem entailing common responsibilities.26 However, in my opinion it is difficult to reunite the Directive with the principles of subsidiarity. It is adequate to consider that the Member States themselves are best equipped to determine what is best for their wildlife, especially considering the different environments of all Member States.
The content of the Directive is two-fold; first, it includes provisions on protecting the habitat of wild birds in the Union.27 The Directive puts emphasis on a network of Special Protection Areas (SPAs). Second, there are provisions which includes the direct protection of these birds, like the prohibition on killing or capturing the certain species of wild birds.28 The different ways of protection of the various species are all included in the Annex of the Directive. Interestingly, the Member States can derogate from the restricted practices because of public interest, however economic development cannot be used to justify a derogation. It can only be based on the protection of health, safety and the environment, and to the support of research and education. The European Commission must be informed when a Member States derogates
24 Suzanne Kingston, Veerle Heyvaert and Aleksandra Čavoški, European Environmental Law (Cambridge, 2017), 380.
25 Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds [1979] OJ L 103, 25.4.1979. 26 Ibid. 3th recital of the preambles.
27 Ibid. Articles 3-4. 28 Ibid. Articles 5-9.
10 from the Directive.29
The Treaty did not provide the Community a clear legal basis to legislate in this area, so the decision to base this Directive on Article 235 EEC was correct. However, it was not clear whether or not environmental protection should fall within the scope of Article 235 EEC, since it was uncertain if this was an objective of the Community. In my opinion this was the case, and this is later confirmed in the ADBHU case.30
1.2.2 The Environmental Impact Assessment Directive
Assessments on the impact on the environment of certain plans became a central feature of the EU environmental policy. This is of course a very strategical principle, because it focuses on prevention instead of reaction. The EU has two frameworks for this. First there is the Environmental Impact Assessment (EIA) Directive,31 which focuses on plans and projects. This is Directive 85/337/EEC. Second, there is the Strategic Environmental Assessment Directive,32 which centres around the assessments of plans and programmes. In this paragraph the first Directive will be discussed.33
Directive 85/337 was adopted on 27 June 1985, and was based on the Articles 100 and 235 EEC. The central vision of this Directive is that for projects which likely have an impact on the environmental an assessment regarding this impact should be made, before giving it consent. The Directive entails public and private projects, and the definition of project is further defined in Article 1(2) of the Directive. The Court has interpreted this definition broadly in its case-law, for example projects with beneficial environmental effects are also within the scope of the Directive.34 However, not all projects which fall within the scope of the Directive are necessary to require an assessment. There is a distinction between project which fall under Article 4(1) and Annex I, which are always subject to assessment, and projects which fall under Article 4(2) and Annex II, where the Member States have discretion to determine whether or not a project needs an assessment through either a case-by-base examination or by a threshold or criteria set by the Member State. The Articles 5 to 10 from the Directive set out the procedure
29 Directive 79/409/EEC, Article 9. 30 See section 1.3.2.
31 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L 175, 5.7.1985.
32 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L 197, 21.7.2001.
33 See 3.2.2 for the Strategic Environmental Assessment Directive.
11 of the EIA.
The Directive has been subject to amendment three times. In 1997, by Directive 97/11/EC35 the scope of the Directive was significantly widened. In 2003 the Directive was amended by Directive 2003/35/EC36, due to the Aarhus Convention, and tried to include public participation and improved access to justice in environmental affairs. Article 10a was introduced in this Directive, which required Member States to ensure access for members of the public to a judicial review procedure. Lastly, in 2009 the Directive was amended to Directive 2009/31/EC.37 This amendment added projects related to the transport, capture and storage of carbon dioxide to the Directive.38 Interestingly, all amending Directives were based on the Environment Title, either Article 130s EC or 175 TEC.39
In Directive 85/337/EEC it is stated that Article 100 EEC is one of the two legal basis because different laws in various Member States regarding environmental impact assessments could create unfavourable competitive conditions. This reasoning cannot be found in the subsequent Directives. This illustrates in my opinion that it was not necessary to use a double legal basis in the initial Directive. The main objective of the Directive was the protection of the environment. Only Article 235 EEC, based on the fact that the Treaty did not provide for the power to achieve one of the Community's objectives in the sphere of the protection of the environment, was the correct legal basis. However, it did not have any consequences, since both Articles required the same procedure in this period.
1.3 Case-law
In the first phase of the environmental policy of the Community there was limited case law from the ECJ. This is unsurprising, since all acts are adopted on a legal basis which required unanimity voting in the Council, giving the Member States the ability to veto in the legislative
35 Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1997] OJ L 73, 14.3.1997.
36 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L 156, 25.6.2003.
37 Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 [2009] OJ L 140, 5.6.2009.
38 Krämer, EU Environmental Law, 166.
39 Directive 97/11/EC had Article 130s EC as legal basis. Directives 2003/35/EC and 2009/31/EC had Article 175 TEC as legal basis.
12 procedure. However, there are two significant cases in this period. First, the cases 91/70 and 92/79 will be discussed, in which the compatibility of environmental policy with Article 100 EEC was challenged. Lastly, the ADBHU case will be discussed, in which the CJEU confirmed the validity of using article 235 EEC as a legal basis for environmental policy.
1.3.1 Cases 91/79 and 92/79 Commission v Italy
The Commission brought two infringement procedures before the ECJ against Italy for the non-implementation of two environmental Directives.40 Italy failed to implement within the prescribed period both Directive 73/404/EEC41 and Directive 75/716/EEC42. For both Directives Article 100 EEC was the legal basis.
In both cases the ECJ was asked to judge on the validity of the Directives. Italy questioned the legitimacy of these Directives, stating that the environmental policy “lied at the fringe of Community powers”.43 However, the Court did not follow the reasoning of the Italian authorities. It indicated that the Directives fall within the Programme of Action of the Communities on the Environment and also come under the General Programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States.44 These both established product requirements, and are thus correctly based upon Article 100 EEC. Furthermore, it is by no means ruled out that provisions on the environment may be based upon Article 100 of the Treaty. The Court ruled: “Provisions which are made necessary by considerations relating to the environment and health may be a burden upon the undertakings to which they apply and if there is no harmonization of national provisions on the matter, competition may be appreciably distorted.”45 In conclusion, the Court ruled that environmental action by the Community linked to commercial and industrial activities are consistent with the Treaties and can be based on Article 100 EEC.
40 Case 91/79 Commission of the European Communities v Italian Republic [1980] ECLI:EU:C:1980:85, par 1. Case 92/79 Commission of the European Communities v Italian Republic [1980] ECLI:EU:C:1980:86 par 1. 41 Council Directive 73/404/EEC of 22 November 1973 on the approximation of the laws of the Member States relating to detergents [1973] OJ L 347, 17.12.1973.
42 Council Directive 75/716/EEC of 24 November 1975 on the approximation of the laws of the Member States relating to the sulphur content of certain liquid fuels [1975] OJ L 307, 27.11.197
43 Ibid, par 4.
44 Case 91/79 par 8, and Case 92/79 par 8. 45 Case 92/79 Commission v Italy par. 9
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1.3.2 ADBHU case
In the ADBHU case the French regional court requested a preliminary ruling of the ECJ regarding the validity of Directive 75/439/EEC.46 The preliminary question was related to a case between the French Public Prosecutor and the ADBHU47 organisation, advocates of burners of oil waste oils.48
This organisation argued that the Directive was in conflict with the principles of freedom of movement of goods, trade, and competition. The Court did not follow this reasoning. The ECJ argued that these principles are not absolute, and can be limited on the basis of the general interest pursued by the Community.49 The ECJ states that the restrictions were justified.50 Significant is the Court for the first time established that environmental protection is “one of the Community’s essential objectives”.51 In this reasoning the Court fully recognizes environmental policy as an essential objective of the Community. This would mean that if for example the validity of the Wild Birds Directive would have been challenged on its legal basis, the Court would likely determine that Article 235 EEC would have been a correct legal basis.
1.4. Conclusion
In the first phase of the European integration environmental policy was not in the forefront. However, there was some (incidental) legislation, based on the internal market legal basis Article 100 EEC and/or Article 235 EEC. The ECJ first confirmed in the cases 91/79 and 92/79 that Article 100 EEC could be used as a legal basis for environmental actions linked to commercial and industrial activities. In the ADBHU case the ECJ confirmed that Article 235 EEC could be used as legal basis, because the Court stated that that environmental policy was an essential objective of the Community. The lack of legal basis to justifiably legislate an environmental policy did not prevent the Community from introducing the Wild Birds Directive. Although the justification was very thin, the Directive was remarkably
46 Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils [1975] OJ L 194, 25.7.1975. 47 Association de Défense des Bûrleurs d’Huiles Usagées
48 Case 240/83 Procureur de la République v Association de défense des brûleurs d'huiles usagées (ADBHU) [1985] ECLI:EU:C:1985:59, paras 1-4.
49 Ibid. par 12. 50 Ibid. par 15. 51 Ibid. par 13.
14 comprehensive, and would be the basis of further legislation.52 The EIA Directive was
adopted very close to the Single European Act, and has become one of the cornerstones in the EU’s environmental policy. The choice of legal basis was not that important in this phase. This had two reasons. First, the procedures for the two legal bases, Articles 100 and 235 EEC, were identical. Second, unanimity voting in the Council meant that Member States could already veto measures in the legislative phase. This is confirmed with the fact that the EIA Directive was unnecessary based on both Articles 100 and 235 EEC.
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2. Single European Act (1987) – Treaty of Maastricht (1993)
The period of mid-seventies to the mid-eighties is known for its political stagnation in the European Community. After a period of economic growth and expansion it became significantly more challenging to pass legislation. This changed in 1985 with the Single European Act. The completion of the internal market was central to the Single European Act. Despite that it did not entail the far-reaching reform many had hoped for, it did result in some significant changes. For example, it gave a formal recognition to the European Council, resulted in new powers of the European Parliament and gave the Union new competences, such as environmental policy. Especially the relatively new Member State Denmark prioritized environmental policies in the negotiation of the Single European Act.53
2.1 Treaty provisions
The Single European Act renewed the European Community and made a way forward to complete the internal market. The Single European Act introduced special provisions relating to environmental policy. This were the Articles 130r to 130t EEC. This meant that the use of Article 235 EEC was no longer necessary, since the Union now clearly had the competence to act in the area of environmental protection. Furthermore, the Single European Act introduced a new Article 100a EEC on the harmonization of national provisions with the aim of establishing the internal market.54 In this paragraph both Articles will be discussed, and the relationship between both Articles will be analysed.
2.1.1 Internal Market
The Single European Act established a new Article 100a EEC, and introduced the cooperation procedure which allowed most internal market legislation to be passed by qualified majority voting55 in the Council. This also included environmental measures based on the internal market objectives, which had three consequences. First, this made it more simple to adopt measures, since unanimity in the Council was no longer required. Second, it increased the influence of the European Parliament in the decision-making procedure. Third, this led to a significant amount
53 Barnard and Peers, European Union Law, 16-20.
54 Richard Macrory, Principles of European Environmental Law (Groningen 2004) 34. 55 Hereafter; QMV.
16 of disputes before the CJEU on where the legal basis of an environmental policy would be challenged.56
2.1.2 Environment Title
The Single European Act introduced a new Title VII: “Environment”, which contained the Articles 130r to 130t EEC. Article 130r outlined the objectives and the principles of the Community environment policy: “to preserve, protect and improve the quality of the environment, to contribute towards protecting human health, to ensure prudent and rational utilization of natural resources”. Furthermore, paragraph two included: “Environmental protection requirements shall be component of the Community's other policies.” This means that environmental protection should be included in all other policies, which expanded the scope significantly. Article 130s EEC entailed the legal basis and procedure used by the Community to adopt legislation in this title, and this required unanimity voting in the Council and the opinion of the European Parliament. Hence, this is different from the new procedure in Article 100a EEC. Article 130t gave the Member States the possibility to diverge from the Community standards to apply higher national environmental rules.
The limits of the scope of this new competence was still unclear. For example, biotechnical measures could fall under this new Article, but could also be contributed towards protecting the human health.57
2.2 Secondary legislation
The introduction of a new legal basis for environmental policy, combined with the introduction of qualified majority voting in the Council for internal market provision under Article 100a EEC paved the way for the Community to really start adopting environmental policies. For the first time the Community had a clear legal basis in the Treaties to do so. Most notable secondary legislation adopted in this period is the Habitats Directive, which shared a lot of resemblance with and build further upon the Wild Bird Directive. The second Directive which will be discussed is the Pentachlorophenol (PCP) Directive, which was adopted on Article 100a EEC.
2.2.1 Habitats Directive
56 Krämer, EU Environmental Law, 123.
57 Ludwig Krämer, “The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law” (1987) 24 Common Market Law Review, 664.
17 Directive 92/43/EEC58 on the conservation of natural habitats and of wild fauna and flora was adopted in 1992. The Directive had been based on Article 130s EEC, the new Environmental guarantee provision. So in contrast to the Wild Birds Directive, the European Community actually had a clear competence to legislative in this area, which it had acquired in the Single European Act.59
It build further on the Wild Birds Directive, but has a significant extensive scope. Most notably, the Habitats Directive covers a much wider range of living organisms and ecosystems. Like the Wild Birds Directive the Habitats Directive also included lists of habitats and species, with different degree of conservation status and protection.60 The Directive aspires to create a coherent ecological network of protected areas, which includes areas covered in the Wild Birds Directive. This is the establishment of Natura 2000, which is a main goal of the Directive. However, there is a significant difference between the Wild Birds Directive and the Habitats Directive. There is more focus on sustainable development and it allows for a compromise between environmental and economic interests.61 Article 2.3 of the Directive states: “Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.” The Member States can derogate from the Directive for reasons of environmental protection, health, safety, but also for other imperative reasons of overriding public interest, including those of a social or economic nature. So where the Habitats Directive has a broader scope than the Wild Bird Directive, it also gives wider grounds of derogation, thus enabling Member States to make a balance between Union and national interests.62
In my opinion Article 130s EEC was the correct legal basis. The Directive pursues the objectives which are referred to in Article130r EEC, namely preserving, protecting and improving the quality of the environment. This Directive has no link to the common market, so Article 100a EEC was not a suitable alternative. It is interesting to see that where there was no explicit legal basis for the Wild Birds Directive, the Community did immediately use the newly introduced Environment Title for the Habitats Directive. This shows two points; first that the Environmental Title was necessary, and second that the Wild Birds Directive was indeed based
58 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L 206, 22.7.1992.
59 Donald McGillivray , “Mitigation, Compensation and Conservation: Screening for Appropriate Assessment under The EU Habitats Directive” Journal for European Environmental & Planning Law (2011) Vol.8(4) 333-334. 60 Jans and Vedder, European Environmental Law, 514-515.
61 Kingston, Heyvaer and Čavoški, European Environmental Law, 414-415. 62 Ibid. 415-416.
18 on an appropriate legal basis, Article 235 EEC, because there was no other appropriate legal basis.
2.2.2 Pentachlorophenol (PCP) Directive
Directive 91/17363 on the restrictions of the use of pentachlorophenol (PCP) was adopted on 21 March 1991, with Article 100a EEC as a legal basis. Germany had notified the Commission that it wanted to severely limit the use and import of PCP, on which the Commission decided to amend Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations to include the use of PCP.64
The Directive entailed a comprehensive restriction on the use of PCP, only allowing it being used in several instances. However, the main objective of the Directive was regulate the use of PCP because these are “substances that are dangerous to man and the environment, and in particular the aquatic environment”.65 The environmental protection was the primary objective of this Directive, and thus in my opinion Article 130s EC should have been used as a legal basis. However, this would require unanimity voting in the Council, and since several Member States had raised objections to the ban of PCP this would most likely not be successful.
2.3 Case-law
The introduction of a new environmental provision in the Treaties did result into more disputes before the ECJ. By introducing new powers to the European Parliament and changing the voting in the Council in some legislative procedures, the Community did develop different legislative procedures. This meant that different institutions did benefit from different legislative procedures, which led to disputes that had to be settled before the ECJ. Three cases concerning the choice of legal basis will be discussed, first the Titanium Dioxide case, second the Waste I case, and lastly the Waste II case.
2.3.1 Titanium Dioxide Case
In the case C-300/89 the European Court of Justice was asked to judge on the validity of
63 Council Directive 91/173/EEC of 21 March 1991 amending for the ninth time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations [1991] OJ L 085 , 05/04/1991.
64 Bruno de Witte, Dominik Hanf and Ellen Vos. The Many Faces of Differentiation in EU Law (Antwerp, 2001) 161.
19 Directive 89/428/EEC66 on titanium dioxide waste, in an action for annulment procedure between the Commission and the Council. The Directive had been adopted based on Article 130s EEC. The Commission argued that the Directive lacked a valid legal basis, and should have been based on Article 100a EEC instead of Article 130s EEC. The Commission was supported by the European Parliament in this case.67 A double legal basis was not possible, because the legal bases had different procedures. Especially the position of the European Parliament is different in the two procedures: where it only needs to be consulted in the 130s EEC procedure it had greater participation rights with the cooperation (later: co-decision) procedure under Article 100 EEC. But also the position of the Member States was different in both procedures, because the 130s EEC procedure required unanimity in the Council, while the 100 EEC procedure would use qualified majority voting in the Council.68
The Commission argued that the main purpose or the centre of gravity of the Directive was to improve the conditions of competition of the titanium dioxide industry, and thus to improve the functioning of the internal market.69 On the other hand, the Council argued that the centre of gravity of the Directive was the elimination of pollution caused by waste from titanium dioxide manufacturing.70 The Court then states that the decision for the legal basis must be based on objective factors, and must include in particular the aim and content of the measure. The ECJ concludes that “according to its aim and content, as they appear from its actual wording, the directive is concerned, indissociably, with both the protection of the environment and the elimination of disparities in conditions of competition”. So it determines that both legal bases are applicable for this Directive, yet a double legal basis is not possible due to the different procedures of Articles 100 and 235 EEC.
Consequently, the ECJ had to come up with a different mechanism to establish which legal basis should have been used instead of the centre of gravity-test. The ECJ came to a controversial conclusion. It concluded that Article 100a EEC should have been the legal basis instead of Article 130s EEC. There were three components of the argumentation of the Court. First, the Court argued that because Article 130r(2) of the Treaty states that 'environmental protection requirements shall be a component of the Community's other policies', it cannot be
66 Council Directive 89/428/EEC of 21 June 1989 on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry [1989] OJ L 201, 14.7.1989.
67 Case C-300/89 Commission of the European Communities v Council of the European Communities [1991] ECLI:EU:C:1991:244 paras 1-6.
68 Robert Schütze, European Constitutional Law (Second edition, Cambridge 2017) 351. 69 Case C-300/89 Commission v Council par 7.
20 that any measure that also pursues objectives of environmental protection is automatically covered under 130r.71 Secondly, the Court argued that Article 100a EEC should enjoy primacy over Article 235 EEC because the participation of the European Parliament in the legislative procedure reflects the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. Thus the Court gave priority to the participation of the European Parliament in the legislative procedure over the Member State’s possibility to veto this piece of legislation.72
Interestingly, the third argument of the Court is that: “Article 100a(3) requires the Commission, (…) to take as a base a high level of protection in matters of environmental protection. That provision thus expressly indicates that the objectives of environmental protection referred to in Article 130r may be effectively pursued by means of harmonizing measures adopted on the basis of Article 100a.”73 It thus concludes that the objectives of Article 103r EC are similarly protected in Article 100a by the obligation on the Commission to take as a base a high level of protection in matters of environmental protection as laid down in Article 100a(3) EC.
The Court made the right decision to determine that the Articles 100a and 130s EEC could not be used as a double legal basis. The drafters of the Treaties made a decision to leave environmental policy subject to unanimity voting in the Council, and this should be respected. The decision to give Article 100a EEC primacy over Article 130s EEC based on the arguments presented by the Court did not improve the clarity for future decisions on the choice of legal basis.
2.3.2 Waste I case C-155/91
The Commission brought an action for annulment before the ECJ in the Case C-155/91, where it disputed that Directive 91/15674 on waste disposal was adopted on the correct legal basis. The Commission opted for Article 100a EEC as legal basis in its submitted proposal for this Directive. However, Council decided to adopt Directive 91/156 on the basis of Article 130s EEC.75
The Commission argued that this was the same situation as in the Titanium Dioxide
71 Case C-300/89 par 22. 72 Ibid. paras 20-21. 73 Ibid. par 24.
74 Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste [1991] OJ L 78, 26.3.1991.
75 Case C-155/91 Commission of the European Communities v Council of the European Communities [1993] ECLI:EU:C:1993:98 paras 1-2.
21 case, because the directive had as its object both the protection of the environment and the establishment and functioning of the internal market. Thus, the Commission concludes, like in the Titanium Dioxide case, Article 100a EEC should have been the sole basis of the Directive.76 However, the Council argues that the aim and content of the Directive related to protection of health and the environment.77 Consequently, the Court tried to determine the centre of gravity of this Directive, either environmental protection or functioning of the internal market. It did conclude that the aim and content of the Directive were to protect the environment.78 However, this was not disputed by the Commission, but they rather argued that the Directive also tried to regulate the free movement of waste, and thus is aligned to the functioning of the internal market. However, the Court did acknowledge that some provisions of the Directive, like Article 1, does affect the functioning of the internal market. But this is only an incidental effect of the measure, and thus the ECJ holds that 130s of the Treaty was the correct legal basis.79
The Court made the right decision in this case in my opinion, by not extending the principles established in the Titanium Dioxide case to measures which are more directly concerned with environmental protection. The extension of this principle could have made the new Environment Title obsolete, so in its judgment the ECJ restored the status of Article 130s EEC as proper legal basis for environmental protection measures.
Waste II case C-187/93
In case C-187/93 the European Parliament brought an action for annulment before the ECJ on the basis that Regulation 259/93 EEC80 on the shipment of waste was adopted on the wrong legal basis. The Regulation was based on Article 130s EEC, while the European Parliament claimed that Article 100a EEC should have been used as legal basis.81
The European Parliament stated that the aim and purpose of the Regulation was the regulate the movement of waste within the Community as well as trade with third country and therefore should have been based on Article 100a EEC.82 However, the Council argued that the aim was to improve the protection of the environment and that it only had secondary effects on the conditions governing competition, and thus concluded that Article 130s was the correct
76 Ibid. par 5. 77 Ibid. par 6. 78 Ibid. paras 8-10. 79 Ibid. par 18-20.
80 Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community [1993] OJ L 30, 6.2.1993.
81 Case C-187/93 European Parliament v Council of the European Union [1994] ECLI:EU:C:1994:265 par 10. 82 C-187/93. par 12.
22 legal basis.83 The Court restated that the choice legal basis should be based on objective factors, most notably the aim and content of the measure. The Court argued that it is apparent from the preambles that the aim of the Regulation was to preserve, protect and improve the quality of the environment. In regard to the content on the Regulation, the Court repeats that incidental harmonisation is not enough to justify the obligation to adopt measures on Article 100a EEC.84
This confirms that the Titanium Dioxide case was an exceptional case, Article 100a EEC only prevailed over Article 130s EEC in cases when neither of the two objective are predominate over the other. In any other cases the primary objective should be the legal basis. It was beneficial in my opinion to firmly re-establish the centre of gravity principle, because that is the most straight-forward and distinct way to determine the correct legal basis.
2.4 Conclusion
The Single European Act is often not seen as such a watershed event in the history of the European integration like the Treaty of Maastricht or Treaty of Lisbon. However, for environmental policy of the Community the SEA was of significant importance. It introduced an explicit legal basis in the Treaty for the Community to legislate in this field, and QMV in the Council made the Community more flexible in legislating policies on the internal market. The Habitat Directive was based on Article 130s EEC, which shows that there was a need for a specific environmental title in the Treaty. However, PCP Directive was incorrectly adopted on Article 100a EEC. The Directive should have been based on Article 130s EEC because the main objective of this Directive was to improve the environment. The Titanium Dioxide case is a illustrative example of the new disputes that results from introducing multiple legislative procedures. The court was forced to construct a new principle, because it deemed both internal market and environmental protection as a central objective of the Directive. The Court decided to give primacy to Article 100a EEC, because this gave the most rights to the European Parliament among other arguments. The Commission tried to use this mechanism again in the case concerning the Waste I Directive, however the Court re-established the centre of gravity approach. This was later re-affirmed in the Waste II case. This all shows that the choice of legal basis was very important in this period, due to the different procedures of the legal bases. It also makes it visible that the Court struggled to find a way to deal with this new disputes.
83 Ibid. par 13. 84 Ibid. paras 17-28.
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3. Treaty of Maastricht (1993) – Treaty of Lisbon (2009)
The Treaty of Maastricht was signed in 1992 and came into force in 1993, and it established the European Union. This Treaty was a significant leap forward in the integration of the European Community, the EEC became the EC, and established a political Union. The Treaty made significant changes in the European Community, it first introduced the common currency the Euro, it established the three pillar system, and extended the competences of the Union notably. What the consequences were in the field of environmental law of this new Treaty will be discussed in this chapter.
3.1 Treaty provisions
The Treaty of Maastricht was compared to the Single European Act a much more significant development. However, in the field of environmental policy the development was not as noteworthy as compared to other policy areas. There were two Treaty provisions worth discussing; Article 2 EC and Article 130s EC.
3.1.1 Article 2 EC
In the ADBHU case the European Court of Justice already stated that environmental protection was “one of the Community’s essential objectives”. In the Treaty of Maastricht this was finally fully confirmed, by making a reference to the environment in Article 2 EC, which sets out the fundamental objectives of the Community: “to promote throughout the Community a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.” The notion of sustainable growth with respect of the environment is thus added, and environmental protection was now placed next to for example economic activities as an objective of the Community.85 However, many environmentalists did point out that the drafters had chosen for sustainable growth, and not for example “sustainable development”, which is less easy to mix up with a definition of continuous expansion.86
85 Krämer, EU Environmental Law, 9.
86 David Wilkinson, “Maastricht and the Environment: The Implications for the EC’s Environment Policy of the Treaty on European Union” Journal of Environmental Law (1992) vol.4(2) 223.
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3.1.2 Article 130s EC
This environmental policy provision was introduced in the Single European Act. However, since then it had been subject to unanimity voting in the Council and required the opinion of the European Parliament. This changed in the Treaty of Maastricht, where qualified majority voting was introduced in the Council. The co-operation procedure was still the main procedure in the field of the environment, which meant that the European Parliament’s opinion could be overruled by unanimous decision of the Council. However, this changed in the Treaty of Amsterdam, when the co-decision procedure was introduced for environmental matters, making the European Parliament an equal co-legislator. There were some exceptions which remained subject to unanimity voting in the Council and required the opinion of the European Parliament in Article 130s(2) EC; (a) fiscal measures, (b) measures concerning town and country planning, land use other than waste management, and management of water resources and (c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply. Furthermore, the requirement to include environmental protection in other EU policies was also reworded in Article 130r (2) EC: “Environmental protection requirements must be integrated into the definition and implementation of other Community policies.”
The Treaty of Amsterdam provided for the re-numbering of the contents of the Treaties. Therefore, in discussing legislation adopted after the entering into force of the Treaty of Amsterdam, Article 130s EC will be Article 175 TEC, and Article 100a EC will be 95 TEC.
3.2 Secondary legislation
The change to qualified majority voting in most environmental policies enacted by the Union made it much easier to legislate in this area. In this period the European Community really started to develop a substantial environmental policy. In this paragraph three Directives will be discussed, the Batteries Directive, the Strategic Environmental Assessment Directive and the Renewable Energy Directive.
3.2.1 Batteries Directive
Directive 2006/66/EC87 on batteries and accumulators and waste batteries and accumulators was adopted on 6 September 2006. The Directive was based on both Article 95 and 175 TEC.
87 Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC [2006] OJ L 266, 26.9.2006.
25 Most Articles were based on Article 175 TEC, however the Articles 4, 6 and 21 of the Directive were based on Article 95 TEC.
Safe treatment of batteries and accumulators which have become waste is of great importance for the environment, because this generally contain dangerous amount of toxic substances. As mentioned before, three Articles of the Directive were based on Article 95 TEC. These are first Article 4 of the Directive, which contains the prohibition of certain batteries and accumulators on the market. Second, Article 6 contains the free movement clause of allowed batteries and accumulators. Third, Article 21 of the Directive concerning the labelling of the products. The Articles based on Article 175 TEC concern the collection and safe treatment of batteries and accumulators. For example Article 8 sets out the general framework of the collection schemes and Article 10 sets certain collection targets for the Member States.
If the centre of gravity test would have been taken seriously only Article 175 TEC as legal basis would have been sufficient for this Directive. The measures of Article 4, 6 and 21 of the Directive do have incidental effect on the internal market, but the main objective of these articles is the protection of the environment. It appears that the Council opted for Article 95 TEC because it wanted to fully harmonize the market of batteries and accumulators, Article 175 TEC only provides minimum harmonization.88 Interestingly, this Directive replaced the old Batteries Directive89, which was solely based on Article 100a EEC. However, the prior Directive only had the aim to approximate the laws of the Member States on the recovery and controlled disposal of those spent batteries and accumulators containing dangerous substances90, while the new Directive also added specific rules for the collection, treatment, recycling and disposal of waste batteries and accumulators. It is interesting to note that the use of this dual legal basis was again possible due to the treaty changes, in the period from the Single European Act to the Treaty of Maastricht it would not have been possible to adopt this Directive on both legal bases as a result of the different procedures in the two Articles.
3.2.2 The Strategic Environmental Assessment Directive
The Strategic Environmental Assessment (SEA) Directive, Directive 2001/42/EC91, is
88 Jans and Vedder, European Environmental Law, 489.
89 Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances [1991] OJ L 78, 26.3.1991.
90 Ibid. Article 1.
91 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L 197, 21.7.2001.
26 quite similar to the EIA Directive.92 However, this Directive tries to tackle projects which have environmental effects in an earlier phase. This Directive applies for the planning stage, instead of the project-stage of the EIA.
The Directive was adopted on 27 June 2001, and was based on Article 175(1) TEC. This Directive applies to plans and programmes, which are defined in Article 2(a) of the Directive. There is an important distinction between this and the EIA Directive, namely that this only applies to public plans and programmes, while the latter also applies to private projects. The wide definition is further narrowed in Article 3(8) of the Directive, which entails the exclusion of plans and programmes with the sole purpose of which is to serve national defence or civil emergency and financial or budget plans and programmes.93
The procedure of the SEA-Directive is quite similar to the EIA procedure. The fact that both Directives seem to address the same problem with a similar procedure can however result in a problem of which both Directives overlap.94 This could lead to a double environmental assessment, both under the SEA and EAI Directive. Article 4(3) tries tackles this potential problem, which contains the tiering of environment assessment. However, there is no provision that clearly states that only one environmental assessment is required. This idea was present in the negotiation on this Directive, but was ultimately rejected.95 Contrary, Article 11(1) of the SEA states that the fact that a plan which was approved in the SEA-procedure, is not free of scrutiny under the EIA procedure. Thus, this could lead to double and unnecessary bureaucracy. To work out this problem an integration of the EIA and the SEA Directives seems inevitable.96
The SEA Directive was adopted on Article 175(1) TEC, contrary to the EIA Directive which was adopted on the Articles 100 and 235 EEC. The fact that the SEA Directive was based on Article 175(1) TEC is correct, the aim and content of this Directive match the objectives which are laid down in Article 174 TEC. However, this confirms the reservations discussed earlier that the EIA Directive was based on both Articles 100 and 235 EEC. The implications of that Directive on the functioning on the internal market are not clear, and thus should only have been based on Article 235 EEC.
92 See chapter 1.2.2.
93 Thomas Fischer, Theory and Practice of Strategic Environmental Assessment: Towards a More Systematic
Approach (London 2007) 4-6.
94 Fischer, Theory and Practice of Strategic Environmental Assessment, 51-53. 95 Jans and Vedder, European Environmental Law, 357.
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3.3.3 Renewable Energy Directive
Directive 2009/28/EC97 was adopted on 23 April 2009, and was based on Article 175(1), and Article 95 TEC for the Articles 17 to 19. The Directive established a system for production and promotion of energy from renewable sources within the Union.
The Directive laid down binding targets for Member States for the use of energy from renewable sources by 2020. In Annex I of the Directive all the targets for the Member States where specified, for example the Netherlands target of energy from renewable sources was from 2.4% in 2005 to 14% in 2020. Article 4 gave the Member States the instruction to establish a National renewable energy action plan.
Interestingly, the majority of the Directive was adopted on Article 175(1) TEC, and not the second paragraph of that Article. The second paragraph includes under (c): measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply. It seems obvious that this Directive affects the Member State’s choice of energy sources, since the Union clearly mandates that specific percentages comes from a certain energy supply. One could question that whether or not the Directive “significantly” affects the choice of energy source. However, examining goals set for example for the UK (from 1.3% to 15%) or Sweden (39.8% to 49%) it shows that the Union demands big increases for countries who had a small share of energy from renewable sources in gross final consumption of energy as well as countries who already had a big share. When even this Directive is not based on Article 175(2)(c) TEC it is in my opinion not clear why this exception on Article 175(1) is still included in the Treaties.
3.3 Case-law
Environmental protection became a central objective of the Union post-Maastricht Treaty. As discussed above, the Union adopted numerous and more ambitious secondary legislation in environmental protection. Despite introducing QMV in the Council for Article 130s EC there were still legal basis challenges before the ECJ. Four cases concerning the choice of legal basis will be discussed in this paragraph .
97 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L 140, 5.6.2009.
28
3.3.1 Danube case
In the case C-36/98 Spain brought an action for annulment before the ECJ, claiming that the Council Decision 97/825/EC98 was based on the wrong legal basis. By this Decision the EU had adhered to the Convention on Co-operation for the Protection and Sustainable Use of the River Danube. This is an international treaty between the European Community and the eleven Danube Riparian States, some of whom are third countries. The Convention was signed on June 29 1994.99
The Council Decision was based on Article 130s(1) EC. However, the Spanish authorities claimed that this decision should have been based on Article 130s(2) EC, because the Decision concerned the management of water resources.100 The problem was that between the multiple languages of the Treaties there occurred a difference in interpretation of the concept of “management of water resources” as laid down in Article 130s(2). In the Dutch translation “quantitative” was specifically mentioned, and in the French version it could logically interpreted in a similar way. In the other official Union languages the Court noticed that not only quantitative aspects of the management of water but also qualitative aspects were covered.101
The Court argued that in the case of divergence between the language versions of a Community measure there should be examined what the purpose and general scheme of the provisions were. Here the Court determined that Article 130s(2) EC only covered quantitative aspects of water management, and that qualitative measures fell under the general rule of Article 130s(1) EC.102 Thus, the Court concluded that the Council decision was adopted on the right legal basis, namely Article 130s(1) EC. Interestingly, the Treaty of Nice which amended Article 130s(2) EC was signed, and then required unanimity for measures concerning quantitative aspects of water management.103
This case is remarkable, because in most language versions of the Treaty the wording “quantitative” was not included in Article 130s(2) EC. The ECJ signalled in this case that it was only willing to interpret the scope of Article 130s(2) EC very narrowly, which was beneficial for the effectiveness in the legislative procedure. It is debateable whether or not this is legitimate towards the Member States of which version Article 130s(2) EC did not include the wording
98 97/825/EC: Council Decision of 24 November 1997 concerning the conclusion of the Convention on cooperation for the protection and sustainable use of the river Danube [1997] OJ L 342, 12.12.1997. 99 Case C-36/98 Kingdom of Spain v Council of the European Union [2001] ECLI:EU:C:2001:64, paras 1-2. 100 Ibid. paras 8-13.
101 C-36/98 Spain v Commission, para 48. 102 Ibid. paras 49-55.
29 “quantitative”. These Member State might only have conferred this competence to the Union in the understanding that they would have a veto in legislation on water management. The Treaty change in the Treaty of Nice for this Article was thus necessary.
3.3.2 Rotterdam Convention case
Cases C-94/03 and 178/03 concerned an action for annulment by the European Commission, arguing that the Council Decision 2003/106/EC104 and Regulation (EC) No 304/2003105 were based on the wrong legal basis. Case 94/03 concerned the Council Decision to approve the Rotterdam Convention on behalf of the European Community, case 178/03 concerned the Regulation which implemented the Convention into Community Law.
Both acts were based on Article 175(1) TEC, while the Commission argued that both acts should have been based Article 133 TEC, the Common Commercial Policy.106 The aim of the Convention was to promote responsible international trade of certain hazardous chemicals in order to protect human health and the environment. The primary measure was the establishment of a prior informed consent (PIC) procedure for certain hazardous chemicals. The Commission argued that the effects of the measure were only indirect and distant on the environment, while the impact on trade in hazardous chemicals was direct and immediate.107 The Council argued that Article 175(1) TEC was the correct legal basis, because it showed resemblance to the Cartagena Protocol on Biosafety, which the Court has found should rightly be approved on the basis of Article 175(1) TEC. Furthermore, the Council argued that the PIC procedure was ‘a typical instrument of environmental policy’.108
The Court followed the reasoning of the Council that the Conventions main objective was to protect the environment and human health. However, the Court also acknowledged that the measure did have direct and immediate effect on trade in hazardous chemicals. The Court argued that both components are ‘indissociably linked, neither of which can be regarded as
104 2003/106/EC: Council Decision of 19 December 2002 concerning the approval, on behalf of the European Community, of the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade [2002] OJ L 63, 6.3.2003.
105 Regulation (EC) No 304/2003 of the European Parliament and of the Council of 28 January 2003 concerning the export and import of dangerous chemicals [2003] OJ 2003 L 63.
106 Case C-94/03 Commission of the European Communities v Council of the European Union [2006] ECLI:EU:C:2006:2 par 1.
Case C-178/03 Commission of the European Communities v European Parliament and Council of the European Union [2006] ECLI:EU:C:2006:4 par 1.
107 C-94/03 paras 21-26 & C-178/03 paras 28-34. 108 C-94/03 paras 27-33 & C-178/03 paras 35-39.
