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2016 | OriginalPaper | Chapter

2. The Scope of the EU’s Competences on the Field of the Environment

Author : Alexander Proelss

Published in: Contemporary Issues in Environmental Law

Publisher: Springer Japan

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Abstract

This chapter attempts to demonstrate that the existence of a separate area of competence in the TFEU applicable to environmental issues has enabled the EU to develop a comprehensive policy concerning the protection of the environment. The Member States have allocated both internal and external powers to the institutions of the EU, but have at the same time insisted on keeping concurrent legislative powers on the relevant field of policy. Notwithstanding this, primary European law, characterized by the shared character of environmental competences, the right of the Member States to adopt more stringent measures, and the fact that the requirements and principles of environmental protection ought to be taken into account also when implementing other Union policies is concerned (cf. Article 11 TFEU), subscribes significant weight to the area of environmental competences. Yet the success of this field of policy does not only depend on the lawful implementation and enforcement by the Member States of the measures adopted by the Union institutions. Rather, it will be shown that not all legal difficulties were successfully eliminated by way of codification of written lists of areas of competence in Articles 3, 4 and 6 TFEU, and by distinguishing different vertical categories of competences.

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previous chapter Introduction: The Impact of the International and European Union Environmental Law on Japanese Basic Environmental Law

next chapter Principles of EU Environmental Law: An Appraisal

Treaty Establishing the Economic European Union of 25 March 1957, in force 1 January 1958.

See, e.g., Council Directive 1984/360/EEC on the Combating of Air Pollution from Industrial Plants, O.J. L 263/50 (1989); Council Directive 1979/409/EEC on the Conservation of Wild Birds, O.J. L 103/1 (1979) (consolidated version: European Parliament and Council Directive 2009/147/EC on the Conservation of Wild Birds, O.J. L 2/7 (2010); Council Directive 1976/464/EEC on Pollution Caused by Certain Dangerous Substances Discharged into the Aquatic Environment of the Community, O.J. L 129/23 (1976).

Consolidated version: Treaty for the Functioning of the European Union of 13 December 2007, in force 1 December 2009, O.J. C 115/47 (2008).

Single European Act of 17 and 28 February 1986, in force 1 July 1987, O.J. L 169/1 (1987).

Treaty of Maastricht on European Union of 7 February 1992, in force 1 November 1993, O.J. C 191/1 (1992).

Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts of 2 October 1997, in force 1 May 1999, O.J. C 340/1 (1997); Treaty of Nice of 26 February 2001, in force 1 February 2003, O.J. C 80/10 (2001).

Note that the scope of this chapter is limited to the scope of the EUʼs environmental powers. The objectives and principles of EU environmental law are not addressed here. For an appraisal concerning the environmental principles see Chap. 2.

In particular, such authority is not provided by Article 191 (4) subpara. 1 TFEU, which states that “[w]ithin their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned”. This provision does not establish external powers of the EU, but rather presupposes the existence of such a competence. See Frenz (2001), p. 36 et seq.; Calliess (2011), Article 191 TFEU, mn 51.

See Council Decision 1993/626/EEC concerning the Conclusion of the Convention on Biological Diversity, O.J. L 309/1 (1993).

See Council Decision 1994/69/EC concerning the Conclusion of the United Nations Framework Convention on Climate Change, O.J. L 33/11 (1994).

Note that only if and to the extent to which the provisions of agreements in terms of Article 216 (2) TFEU are self-executing is the Court of Justice of the European Union (ECJ) competent to interpret their scope and meaning within the EU legal order and may also refer to these provisions in order to assess the legality of a secondary EU act under the preliminary ruling procedure codified in Article 267 (1) TFEU. See ECJ, Case 9/73, Schlüter v. Hauptzollamt Lörrach, [1973] ECR 1135, para 27.

Meßerschmidt (2011), p. 261 et seq.; see also ECJ, Case C-379/92, Peralta, [1994] ECR I-3453.

See European Parliament and Council Decision 1386/2013/EU on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet”, O.J. L 354/171 (2013).

For a detailed assessment concerning the conclusion of bi- or multilateral commodity agreements see Proelss (2012), p. 174 et seq.

Minimum standards are standards which prescribe binding environmental targets in terms of a smallest common denominator, but may be exceeded by the relevant actors.

See ECJ, Case C-203/96, Dusseldorf, [1998] ECR I-4075, paras 39 et seq.

ECJ, Case C-2/10, Azienda Agro-Zootecnica, [2011] ECR I-6561, para 53: “[…] neither the wording nor the purpose of the provision under examination therefore provides any support for the view that failure by the Member States to comply with their notification obligation under Article 193 TFEU in itself renders unlawful the more stringent protective measures thus adopted”.

Even though reasons of legal certainty militate in favor of accepting that a horizontal delimitation of competences should be undertaken also in situations where the overlapping competence norms refer to the same legislative procedure, the practice of the Union institutions does not seem to support the existence of such a rule. See ECJ, Case C-178/03, Commission v. Parliament and Council, [2006] ECR I-107, paras 56 et seq. which held that if it is established that the measure concerned simultaneously pursues a number of objectives that are inseparably linked, none of which can be regarded as secondary or indirect as compared with the other, the measure can be based on both legal bases, provided that the decision-making procedures are identical.

See also Nettesheim (2015), Article 194 TFEU, mn 35.

ECJ, Case C-336/00, Austria v. Huber, [2002] ECR I-7699, para 30 et seq.; see also Case C-42/97, Parliament v. Council, [1999] ECR I-869, para 36; Case C-411/06, Energy Star, [2002] ECR I-12049, paras 39 et seq.

Proelss (2004), p. 170; Wolff (2002), p. 170.

Nettesheim (1993), p. 248; Nettesheim (1994), p. 338.

Proelss (2004), p. 314 et seq.

With regard to the following see Proelss et al. (2011), pp 5–45.

COM (2001) 143 final of 16 March 2001, Elements of a Strategy for the Integration of Environmental Protection Requirements into the Common Fisheries Policy, p. 7.

It has been argued that the judgment of the ECJ in the Armand Mondiet case could provide a further (even though implicit) source for the line of thought advocated here. See Proelss et al., supra note 24, at 36 et seq., with reference to ECJ, Case C-405/92, Etablissements Armand Mondiet SA v. Armement Islais SARL., [1993] ECR I-6133, paras 18, 19, 24.

Proelss (2004), p. 314 et seq. – It should be noted, though, that in contrast to the field of the conservation of marine biological resources under the CFP, the EU does not and did not have exclusive competence relevant to the environmental sector.

ECJ, Case C-405/92, Etablissements Armand Mondiet SA v. Armement Islais SARL., [1993] ECR I-6133, para 27; COM(2001) 143 final, supra note 25, p. 4; see also Jans (2000), p. 25 et seq.

ECJ, Joined Cases C-164/97 and C-165/97, Parliament v. Council, [1999] ECR I-1139, para 9.

Ibid., para 19.

From a resource-oriented perspective see Proelss (2012), p. 181 et seq.

Note that the comma included after “commercial aspects of intellectual property” only serves enumeration purposes and does thus not imply that the words “commercial aspects” also refer to foreign direct investments. This becomes apparent when comparing the English wording of Article 207 (1) TFEU with the – equally binding – German version, which evidently abstains from requiring any specific nexus between trade and foreign direct investment. See also Cottier and Trinberg (2015), Article 207, mn 60.

Krajewski (2005), p. 114.

See Weiß (2010), Article 207 TFEU, mn 40; Tietje (2010), p. 650; Bungenberg (2010), p. 144; Johannsen (2009), p. 16 et seq. – Note, however, that the Federal Constitutional Court of Germany took the view in its Lisbon decision that investment issues are subject to a mixed competence of the EU and the Member States (German Federal Constitutional Court 2 BvE 2/08 ‘Lisbon Judgment’ (30 June 2009) BVerfGE Vol. 123, pp 267–437, at 422). An English translation of this decision is available at: https://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html.

COM (2010) 343 final of 7 July 2010, Towards a Comprehensive European International Investment Policy, at 11.

Obwexer (2015), Article 3 TFEU, mn 29; but see Proelss (2012), p. 172 et seq., who argues that the requirements codified in Article 3 (2) TFEU must also be fulfilled with regard to agreements covered by the fields of policy mentioned in Article 3 (1) TFEU.

ECJ, Opinion 1/94, [1994] ECR I-5267, para 41.

Contra see Nettesheim (2015), Article 194 TFEU, mn 35. This provision thus ought to be qualified as lex specialis vis-à-vis Article 114 TFEU that addresses the approximation of laws from a general perspective.

Italics added.

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