Saturday, 17 January 2009

EU Law: Higher environmental standards

When the European Community (European Union) sets standards for environmental protection, these do not prevent the “progressive” member states from maintaining or introducing more stringent environmental protection measures.

This is the soothing message European politicians can convey to the more environmentally conscious electorates.

We look at how this is set out at treaty level in EU law.



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Article 176 TEC


Article 176 (ex Article 130t) of the current Treaty establishing the European Community (TEC) refers to the environmental protection measures adopted according to the preceding Article 175 TEC in order to achieve the European Community’s (European Union’s) environmental objectives (Article 174 TEC).

Even if the European Community has adopted protective measures, i.e. set certain environmental standards pursuant to Article 175 TEC, each member state can choose to retain its existing higher standards of protection and it is even allowed to introduce new and higher levels of protection.

These higher national standards have to be compatible with the treaty, and they have to be notified to the Commission.
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Here is Article 176 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/125:

(TITLE XIX
ENVIRONMENT)

Article 176 TFEU

The protective measures adopted pursuant to Article 175 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the Commission.



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Original Lisbon Treaty (ToL)

Article 2, point 144 amended Article 175 and point 145 concerned the following Title XX Development cooperation (OJEU 17.12.2007 C 306/87).

In other words, there was no specific amendment with regard to Article 176 TEC.


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Renumbering the Treaty of Lisbon (ToL)

(The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.)

Article 176 TEC first became Article 176 TFEU (ToL), but was then renumbered Article 193 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).


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Lisbon Treaty consolidated

Article 193 TFEU

After renumbering the Article and the referral, Article 193 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):

(TITLE XX
ENVIRONMENT)

Article 193 TFEU
(ex Article 176 TEC)

The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission.



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Shared competence

We use the consolidated Lisbon Treaty to illustrate the question of competence. In the general scheme of things, Article 4(2)(e) TFEU sorts the environment among the areas of shared competence.

When the competence in an area is shared between the European Union and the member states, the member states can generally exercise their legislative competence only to the extent that the EU has not exercised its competence. See Article 2(2) TFEU.

Against this background, Article 193 TFEU is an exception. The European Union has filled the void by adopting protective measures and thus exercised its competence, but more stringent national standards – old and new – are still allowed.

(The stated Article 193 TFEU exception may be more significant as an indication of the importance attributed to environmental protection than in practice, because many EU measures are designed as minimum standards anyway and environmental protection is often enacted through Directives, which strive for harmonisation at the lower end of the EU, leaving the more “progressive” member states scope to apply more stringent norms.)


Ralf Grahn