Friday, 16 January 2009

European Union: Environmental legislation

The Treaty establishing the European Community (TEC) sets out co-decision with full participation of the European Parliament as the norm in environmental legislation, but by way of derogation (exception) sensitive areas have been kept under the unanimity rule.

The Treaty of Lisbon rephrases this two-pronged approach, without altering the substance.



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Article 175 TEC


Article 175 (ex Article 130s) of the current Treaty establishing the European Community (TEC) builds on the environmental aims of the European Community (European Union) in the preceding Article, namely to contribute to:

— preserving, protecting and improving the quality of the environment,

— protecting human health,

— prudent and rational utilisation of natural resources,

— promoting measures at international level to deal with regional or worldwide environmental problems.


The main rule on legislation is straightforward: the co-decision procedure (paragraph 1).

Harmonisation (approximation) of laws based on the internal market objectives of free movement of goods, persons, services and capital according to Article 95 TEC (referring to Article 14 TEC) is unaffected.

In sensitive areas, the member states have not been able to accept the co-decision procedure unanimously during the intergovernmental conferences. They have landed a political compromise with regard to the measures mentioned in the second paragraph of Article 175 TEC. By way of a derogation from paragraph 1, these measures have to enacted unanimously, but as a consolation to more “progressive” member states, the second subparagraph of paragraph 2 opens up the possibility to move to qualified majority voting by unanimous decision.

General environmental action programmes outside the scope of paragraph 2 are adopted by co-decision and the implementing, but implementing measures are adopted by the Council either by qualified majority voting (QMV; paragraph 1) or unanimously (paragraph 2).

Costs for environmental policies are, as a rule, borne by the member states, although temporary derogations or Cohesion Fund financing may be granted in certain cases.

Here is Article 175 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/124–125:

(TITLE XIX
ENVIRONMENT)
Article 175 TEC

1. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Community in order to achieve the objectives referred to in Article 174.

2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 95, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,

— land use, with the exception of waste management;

(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.

The Council may, under the conditions laid down in the first subparagraph, define those matters referred to in this paragraph on which decisions are to be taken by a qualified majority.

3. In other areas, general action programmes setting out priority objectives to be attained shall be adopted by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.

The Council, acting under the terms of paragraph 1 or paragraph 2 according to the case, shall adopt the measures necessary for the implementation of these programmes.

4. Without prejudice to certain measures of a Community nature, the Member States shall finance and implement the environment policy.

5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, the Council shall, in the act adopting that measure, lay down appropriate provisions in the form of:

— temporary derogations, and/or

— financial support from the Cohesion Fund set up pursuant to Article 161.



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Original Lisbon Treaty (ToL)

Article 2, point 144 amended Article 175 (OJEU 17.12.2007 C 306/87):

144) Article 175 shall be amended as follows:

(a) in paragraph 2, the second subparagraph shall be replaced by the following:

‘The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.’;

(b) in the first subparagraph of paragraph 3, the words ‘In other areas,’ shall be deleted and the second subparagraph shall be replaced by the following:

‘The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.’;

(c) in paragraph 4, the words ‘certain measures of a Community nature,’ shall be replaced by ‘certain measures adopted by the Union’;

(d) in paragraph 5, the words ‘the Council shall, in the act adopting that measure, lay down’
shall be replaced by ‘such measure shall lay down’.



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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 175 TEC first became Article 175 TFEU (ToL), but was then renumbered Article 192 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).


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Lisbon Treaty consolidated

Article 192 TFEU

After renumbering and amendments, Article 192 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/133–134):

(TITLE XX
ENVIRONMENT)

Article 192 TFEU
(ex Article 175 TEC)

1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.

2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,

— land use, with the exception of waste management;

(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.

The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.

3. General action programmes setting out priority objectives to be attained shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.

The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.

4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy.

5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of:

— temporary derogations, and/or

— financial support from the Cohesion Fund set up pursuant to Article 177.


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Summaries of legislation

The Commission’s Scadplus pages offer summaries of Community environmental legislation, with links to General provisions, Sustainable development, Climate change, Waste Management, Air pollution, Water protection and management, Protection of nature and biodiversity, Soil protection, Chemical products, Civil protection, Noise pollution and Environment: Cooperation with third countries, as well as hotly debated issues such as CO2 emission limits on new vehicles and Tackling climate change:

http://europa.eu/scadplus/leg/en/s15000.htm


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Commission activities

Commission news and activities can be accessed on and through the home page of Directorate-General Environment and Commissioner Stavros Dimas:

http://ec.europa.eu/environment/index_en.htm






Ralf Grahn