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2017 | OriginalPaper | Chapter

5. The External Environmental Policy

Author : Henri de Waele

Published in: Legal Dynamics of EU External Relations

Publisher: Springer Berlin Heidelberg

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Abstract

After the CCP, the second most important area of EU international relations law is arguably the External Environmental Policy (EEP). For, whereas the largest part of the environmental legislation currently in force in the Member States stems from the supranational level, most of the treaties and international regulations they subscribe to have involved Union action as well. After a concise introduction (Sect. 5.1), this chapter begins by shedding light on the most important elements of the EEP and discussing some general aspects in similar vein as before (Sect. 5.2). Hereafter, it takes a closer look at the policy’s purview, in theory as well as in practice (Sect. 5.3). The investigation is concluded by a reflection on the ambitions and achievements of the EEP in a global context, devoting specific attention to the efforts of the EU and its Member States in formulating and upholding global emission standards (Sect. 5.4).

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previous chapter The Common Commercial Policy

next chapter The External Human Rights Policy

Countless myths surround the exact figure, with eurosceptics usually claiming a too high, and their opponents much a too low percentage. An excellent attempt at debunking the myths and arriving at an accurate estimation is made by Raunio and Wiberg (2017); see also Bertoncini (2009).

Cf. the ‘Principles concerning trans-frontier pollution’, adopted on 14 November 1974 by the OECD.

For a more detailed account, see Somsen (1996).

Currently Article 352 TFEU.

See e.g. Case 91/79, Commission v Italy, and Case 240/83, Procureur de la République v Association de défense des brûleurs d’huile usagées.

Currently Article 6 TFEU. For an extensive analysis of the clause’s meaning and effectiveness, see Dhont (2003).

Currently Article 191(4) and Article 192 TFEU.

Article 191(2) TFEU; see e.g. the various contributions in Macrory (2005).

For further reflections on the guiding principles, see Jans and Vedder (2012), pp. 41–51.

See e.g. Case C-377/98, Netherlands v Council and Parliament; Case T-429/05, Artegodan v Commission; Case C-343/09, Afton Chemical Limited v Secretary of State for Transport.

For a more general overview, see Wiers (2002).

A recent example are the alternatives to fossil fuel (e.g. ethanol on the basis of maize or sugar), all too eagerly produced in large quantities in developing countries, but simultaneously proving to impact extremely negatively on their domestic agricultural resources.

For the same reason, commercial undertakings with regard to rare plants and animals also deserve further thought. This has led to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), covering more than 35,000 animal species and plants. The Union became a party to CITES in July 2015; on the earlier interaction, see e.g. Case C-370/07, Commission v Council.

See Article 191(4) TFEU.

Cf. Article 193 TFEU.

Cf. Opinion 2/91, Conclusion of ILO Convention No. 170 concerning safety in the use of chemicals at work.

See Article 207(2) and (4) TFEU and Article 192(1) TFEU.

The tension could be greatly alleviated if the Council, in line with the final sentence of Article 192(2), were one day to decide by unanimity to let the ordinary legislative procedure apply for the adoption of those types of measures.

As mentioned in Chap. 1, Sect. 1.6, in principle, the ECJ can be approached at all times before, but not after the conclusion of an international agreement; if rescission were to prove necessary then, international liability may ensue. The Commission was well aware of this, and did not argue for termination or renegotiation. It claimed to seek a ruling to obtain clarity for the future, also as regards the management of the BSP.

Opinion 2/00, Cartagena Protocol.

Case C-281/02, Commission v Council (Energy Star Agreement).

Named after a programme for energy efficient office equipment originally developed by the American Environmental Protection Agency, which had quickly become the world standard.

Case C-94/03, Commission v Council (Conclusion of the Rotterdam Convention).

Correspondingly, in the judgment in Case C-178/03, Commission v Council, delivered on the same day, the Court ruled that this also held true for the Regulation incorporating the Rotterdam Convention in EU law.

As confirmed in Case C-411/06, Commission v Parliament and Council, where the Court, despite serious doubts with regard to the choice of legal basis, refrained from broadening the application of the Rotterdam Convention judgment, and saw the measure concerned as falling squarely within the environmental competence.

See e.g. Case C-166/07, Commission v Council (International Fund for Ireland), paragraph 69. In case two procedures would have to be combined in which the one prescribes co-decision (the ordinary legislative procedure) and the other a right of assent for the Parliament, the former procedure would have to be preferred, since it guarantees the most intense democratic involvement (after all, when the latter is applied, Parliament can only accept or reject the proposal, and not try to amend it).

To be sure, situations in which a dual legal basis is employed crop up with a certain regularity, and the Court does not mind giving its blessing to the practice. Overall though, the ‘combination approach’ does remain the exception rather than the rule.

Some of the targets set in earlier secondary legislation already extended that far: see e.g. Directive 1999/31/EC on the landfill of waste, OJ [1999] L 182/1 (requiring Member States to reduce landfill waste by 65 % by 2020).

The Package established the ‘20:20:20 plan’, spelling out that by 2020, 20% of the energy consumed in the EU is to come from renewable sources; by that same year, energy efficiency is to be improved by 20%, and greenhouse gas emissions are to be reduced by 20% compared to 1990s levels. Meanwhile, the Union has pledged to raise these targets, bringing the latter down by 40% in 2030. See further Kulovesi (2012).

Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, OJ [2003] L 275/32, amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, OJ [2009] L 140/63.

Participation in the EU ETS is mandatory for companies in these sectors, but in some of these, only plants above a certain size are included; and certain small installations can be excluded if governments put fiscal or other measures in place that cut their emissions by an equivalent amount.

Financial sanctions can be imposed on those that do not dispose of sufficient allowances to cover their emissions.

Case T-183/07, Poland v Commission and Case T-263/07 Estonia v Commission.

Case C-504/09 P, Commission v Poland and Case C-505/09 P, Commission v Estonia.

Norway, Iceland, Liechtenstein and Switzerland have aligned themselves with the system. Similar plans have been mooted to connect the ETS with its Californian counterpart.

Cf. Cremona (2012).

Within the parameters of the Court’s ruling in Case C-425/13, Commission v Council (EU-Australia ETS negotiations).

For illustrations, see Thieme (2001).

Bertoncini Y (2009) La législation nationale d’origine communautaire: briser le mythe des 80%. Les brefs de Notre Europe 2009/13

Cremona M (2012) Coherence and EU external environmental policy. In: Morgera E (ed) The external environmental policy of the European Union – EU and international law perspectives. Cambridge University Press, Cambridge, pp 33–54CrossRef

Dhont N (2003) Integration of environmental protection in other EC policies: legal theory and practice. Europa Law Publishing, Groningen

Jans JH, Vedder HHB (2012) European environmental law. Europa Law Publishing, Groningen

Kulovesi K (2012) Climate change in EU external relations: please follow my example (Or I Might Force You To). In: Morgera E (ed) The external environmental policy of the European Union – EU and international law perspectives. Cambridge University Press, Cambridge, pp 115–148CrossRef

Macrory R (2005) Reflections on 30 years of EU environmental law: a high level of protection? Europa Law Publishing, Groningen

Raunio T, Wiberg M (2017) The Impact of the European Union on National Legislation. ZEI Discussion Paper C 240/2017

Somsen H (1996) The European Union and the OECD. In: Werksman J (ed) Greening International Institutions. Earthscan, London, pp 181–204

Thieme D (2001) European community external relations in the field of the environment. Eur Environ Law Rev 10:252–264CrossRef

Wiers J (2002) Trade and environment in the EC and the WTO. Europa Law Publishing, Groningen

Title: The External Environmental Policy
Author: Henri de Waele
Publisher: Springer Berlin Heidelberg
Book: Legal Dynamics of EU External Relations
Print ISBN: 978-3-662-54816-5

Electronic ISBN: 978-3-662-54817-2

Copyright Year: 2017
DOI: https://doi.org/10.1007/978-3-662-54817-2_5