Reform in CEE-Countries with Regard to European Enlargement

As already noted by Breuer ^l in 1993, there are more and more instances of conflict between German and European environmental law. The number of cases lost by the Federal Republic before the Court of Justice of the European Communities (ECJ) on charges of inadequate implementation of EC directives stood at an impressive 28 by the end of the year 2000². As primary and secondary EC law takes precedence over the law of Member States at least in principle³, national legislation in those areas covered by EC law is thus bound to follow European specifications. The contradiction in practice is seen especially in environmental law, where the opening of proceedings against the Federal Republic for violations of contract has recently given rise to repeated accusations by the EU⁴ that the Federal Republic has not, or has improperly incorporated the respective EC directives into its national environmental legislation.

The Federal Republic of Germany is Poland’s largest trading partner. 35% of all Polish exports are destined for its western neighbour, while imports from Germany account for 24% of all imports to Poland and 39% of its imports from the EU¹. Its forthcoming membership of the EU, the size of its market and, especially, its well-trained workforce are among the reasons why Poland has become an increasingly attractive investment location for German commercial interests. To the latter belong agricultural enterprises engaged in intensive animal farming, and which find themselves seriously hampered in their efforts to expand further within Germany. Here, political and administrative opposition to the establishment of large-scale intensive animal farms is on the increase. Licensing procedures prescribed by immission control law for such prospective farms prove to be veritable obstacle races. It is little wonder, then, that more and more German producers of eggs, poultry or pork are inquiring whether and to what extent other European countries in close proximity to German Länder such as Brandenburg could offer more favourable investment conditions. This consideration is becoming all the more urgent for German agricultural enterprises in view of the fact that German producers still do not produce enough to satisfy the domestic demand for eggs or poultry, for example. As far as these foodstuffs are concerned, Germany remains the largest importer in Europe². Obviously, therefore, Poland is an attractive option, most particularly on account of the anticipated availability of highly motivated and well trained employees — and not because of any expectation of lower ecological standards or less stringent animal protection regulations. At the same time, however, it is clear that the legal framework which has to be respected by such enterprises in Poland will attract more attention as the interest in investment rises. In concrete terms, the investor will want to know what legal framework conditions to expect regarding environmental and planning law which apply to such intensive animal farms in Poland.

A fundamental principle of a democratic state of law is the primacy of its constitution. The primacy of the constitution entails the prohibition against adopting laws incompatible with the constitution and the obligation to pass laws conforming with it. The obligation to pass laws conforming with the constitution means that laws must be shaped, in terms of their form and substance, in a way that implements the constitutional standards and not only observes them. The obligation to pass laws conforming with the constitution applies not only to ordinary legislation but also to all forms of law-making by entities other than the legislator. The obligation applies in particular to making domestic laws (Art. 93 of the Polish Constitution) as well as laws made by all public law associations. The obligation to pass laws conforming with the constitution means that not only the form and substance of laws made but also their scope are determined by the constitution. The legislator and other law-making entities must only accurately define law within the limits fixed by the constitution. If the legislator has transgressed the constitutionally set limits of law making, it may be said to have breached the provisions of the constitution, and thus the law so made does not conform with the constitution. Apart from the above rules, which apply also to environmental protection legislation, the Polish Constitution includes the principle of its direct application, which may be of fundamental importance to environmental protection. The principle, specified in its Art. 8.2, provides in particular for the ability to implement the provisions of the Constitution without developing them in a parliamentary act. The Constitution is a directly applicable law.

Polish political and economical transformation, begun in 1989, has been creating a modern society, which aspires to become a member of the European Communities. However Polish democracy is still young and developing our state is becoming more and more citizen friendly every day. Completely new mechanisms and values have risen during last years. Freedoms of speech, thought, assembly and of course freedom of information has appeared there. Polish reality is becoming greener and greener every day. Ecological fashion is more and more popular regardless of political situation. Our European aspirations and signed international agreements and treaties have generated completely new legislative demands. Poland has some political commitments followed from Principle 10 of the Rio Declaration on Environment and Development stressed that “environmental issues are best handled with the participation of all concerned citizens, at the relevant level” and The UN Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“Aarhus Convention”). Relations between Poland and European Union specially declared in Articles 68 to 70 of the Europe Agreement have initiated process of approximating Polish legislation with the acquis communautaire. Regarding environmental information matters, adoption process concerns Council Directive 90/313/EEC on freedom of access to information on the environment.

Ecological fanning is closely linked to sustainable agriculture, not only in ecological aspects, but also connected with economically viable practices and social needs. It is thought in terms of environmentally positive food production concerned with quality of life. It responds to the demand for safe food obtained from natural resources, protection of the soil and resources, healthfulness of plants and animals [Sotysiak, 1993; Komornicki & Lorentz, 2000].

The forthcoming eastward enlargement of the European Union (EU) will fundamentally change the priorities of environmental policy and environmental pressures within the entire area. Regarding the need for environmental and political action in shaping the enlargement, there is a deficiency of political strategies within the environmental field to adequately cope with the various dimensions of this change. The goal of this paper is to discuss three central environmental sector problems related to the easterly enlargement: (1) institutional capacities of the accession states to deal with the enlargement, (2) potential environmental risks from adopting the Common Agricultural Policy in accession countries, and (3) the developmental differences in rural areas in the accession countries.

The development of modern and effective administration structures in the EU Accession countries (in the following named as CC (Candidate countries)) is a basic precondition for the complete adoption of the acquis communitaire. This is the EU common standard on legislative, social and economic parameters. This so called institution building process in the middle and eastern European countries (MOE countries) has been supported since 1998 from the EU through a partnership process instrument called “twinning”. This has been financed through the Phare programme with about 500 Mio € a year until 2002.

According to Article 49 of the EU Treaty every European country can apply for the membership in the European Union if it respects the principles of freedom, democracy as well as the Human Rights, freedom and the rule of law. This has been the basic assumption during the past 12 years in the negotiations for accession with 12 Candidate countries from Central and Eastern Europe (CEEC). The most recent resolution taken during the EU summit in Copenhagen to grant accession to these 12 countries by January 1^st, 2004 by now successfully closes the biggest enlargement procedure in the history of the European Union.

After the formal invitation to the accession to the EU from the EU Commission the accession partnerships programs with all so called “candidate countries” were signed. The main aim of those accession partnerships is the concentrated support for the candidate countries at the preparation for their accession i.e. development and stabilization of democratic structures, creation of more effective and to the public opened authorities and administrative bodies on the national and regional level and last but not least the help with the adoption and implementation of the Aquis Communitaire. For the environmental sector is the following relevant:

In its Negotiating Position Bulgaria declares that it accepts and is ready to implement the acquis communautaire in the field of environment. As a working hypothesis, the Bulgarian Government considers that the Republic of Bulgaria will become a member of the European Union on 01.01.2007. The Republic of Bulgaria requests transitional periods for implementation of some specific requirements of eight directives of the acquis The position paper covers EU legislation in the field of environment, as in force by 31.12.1999.

Since 1990 environmental education is a topic in the Department of the state Brandenburg. Since 1999 it’s a topic in the Ministry for Agriculture, Environment and Regional development.

The protection of nature and the conservation of landscapes together form the basic principle upon which EU environmental policy is founded, as witnessed by developments in EU regional planning and agricultural policy. This priority has likewise to be adopted by EU accession candidate countries. Although individual accession candidates have already committed themselves to comply with specific EC directives (notably Directive 97/11/EC on the Environmental Impact Assessment of Certain Public and Private Projects of 3 March 1997 and the Flora Fauna Habitat Directive 92/43/EEC of 21 May 1992), there is still uncertainty as to how both the directives and the general requirements of nature and landscape protection are to be implemented in these candidate countries in such a way that EU demands are fulfilled.