Abstract
After the CCP, the second most important area of EU international relations law is arguably the External Environmental Policy (EEP). For whereas an overwhelming majority of the environmental legislation currently in force in the Member States stems from the supranational level, most of the treaties and international regulations they take part in have resulted from a joint effort with the European Union as well. This chapter begins by shedding light on the most important elements of the EEP, in similar vein as before, discussing some general aspects first (para. 5.2). Hereafter, it takes a closer look at the policy’s purview, in theory as well as in practice (para. 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 (para. 5.4).
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Notes
- 1.
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 Bertoncini (2009).
- 2.
Cf. the Principles concerning trans-frontier pollution, adopted on 14 November 1974 by the OECD.
- 3.
For a more detailed account, see Somsen (1996).
- 4.
Currently Art. 352 TFEU.
- 5.
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.
- 6.
Currently Art. 6 TFEU. For an extensive analysis of the clause’s meaning and effectiveness, see Dhont (2003).
- 7.
Currently Art. 191 (4) and Art. 192 TFEU.
- 8.
Article 191 (2) TFEU; see e.g. the various contributions in Macrory (2005).
- 9.
For further reflections on the guiding principles, see Jans and Vedder (2008), pp. 26–46.
- 10.
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.
- 11.
For a more general overview, see Wiers (2002).
- 12.
A recent example are the alternatives to fossil fuel (e.g. ethanol on the basis of maize or sugar), which were all too eagerly produced in large quantities in developing countries, but simultaneously proved to impact extremely negatively on their domestic agricultural resources.
- 13.
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). On the Union’s involvement with CITES, see Case C-370/07, Commission v Council.
- 14.
See Art. 191 (4) TFEU.
- 15.
Cf. Art. 193 TFEU.
- 16.
Cf. Opinion 2/91, Conclusion of ILO Convention No. 170 concerning safety in the use of chemicals at work.
- 17.
See Art. 207 (2) and (4) TFEU and Art. 192 (1) TFEU.
- 18.
The tension could be greatly alleviated if the Council, in line with the final sentence of Art. 192 (2), were one day to decide by unanimity to let the ordinary legislative procedure apply for the adoption of those types of measures.
- 19.
As mentioned in Chap. 1, para. 1.6, in principle, the ECJ can be approached at all times before, but not after the signing of an international agreement; the VCLT considers the parties to an agreement bound by their signature, and if rescission proves necessary, international liability may ensue. The Commission was well aware of this, and did not argue for termination or re-negotiation. It claimed to seek a ruling to obtain clarity for the future, also as regards the management of the BSP.
- 20.
Opinion 2/00, Cartagena Protocol.
- 21.
Case C-281/02, Commission v Council (Energy Star Agreement).
- 22.
Named after a programme for energy efficient office equipment originally developed by the American Environmental Protection Agency, which had quickly become the world standard.
- 23.
Case C-94/03, Commission v Council (Conclusion of the Rotterdam Convention).
- 24.
Correspondingly, in the judgement 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.
- 25.
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 judgement, and saw the measure concerned as falling squarely within the environmental competence.
- 26.
See e.g. Case C-166/07, Commission v Council (International Fund for Ireland), para. 69. In case two procedures would have to be combined in which the one prescribes codecision (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).
- 27.
To be sure, situations in which a dual legal basis is employed crop up with a certain regularity, and the Court is frequently able to give its blessing to the practice. Overall though, the ‘combination approach’ does remain the exception rather than the rule.
- 28.
The current EAP runs until 2012, but some of the targets set in secondary legislation extend further into the future: see e.g. Directive 1999/31/EC on the landfill of waste, OJ [1999] L 182/1, which requires states to reduce landfill waste by 50% from 1995 levels by 2013 and 65% by 2020.
- 29.
The Package established the ‘20:20:20 plan’: by 2020, 20% of the energy consumed in the EU is to come from renewable sources; by that same year, greenhouse gas emissions are to be reduced by 20% on 1990s levels, and energy efficiency also needs to be improved by 20%.
- 30.
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.
- 31.
Namely the energy, steel, cement, glass, brick-making, and paper/cardboard production industries.
- 32.
Financial sanctions can be imposed on those that do not dispose of sufficient allowances to cover their emissions.
- 33.
Case T-183/07, Poland v Commission and Case T-263/07 Estonia v Commission.
- 34.
Norway, Iceland and Liechtenstein have already aligned themselves with the system. Switzerland operates a voluntary trading scheme that is to be linked with that of the EU. Similar plans have been mooted for aligning the ETS with its Californian counterpart.
- 35.
For illustrations, see Thieme (2001).
References
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de Waele, H. (2011). The External Environmental Policy. In: Layered Global Player. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20751-8_5
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