Transcript EU primary legislation: Environmental law

EU primary
legislation:
Environmental law
Prof. Gyula Bándi
Jean Monnet Centre of Excellence
Pázmány Péter Catholic University
Faculty of Law
Treaties – a summary of the major provisions
Before 1986
(Treaty of
Rome)
Single
European Act
(1986)
Art. 100
Harmonization
(internal market)
 Art 100a
Harmonization
+ safeguard
clause
Art. 235
Objectives of the
Community
-
-
-
Maastricht
Treaty (Treaty
of the Union 1992)
 Art 100a
Harmonization
+ safeguard
clause
Amsterdam
Treaty (1999)
Lisbon Treaty
(2009)
 Art 95
Harmonization
+ safeguard
clause
 Art 114
Harmonization
+ safeguard
clause
Art. 235
(not in use any
longer!)
Art. 130r
- Objectives
- Principles
- Grounds
- Int. coop.
Art. 130s
Legal basis and
procedure
Art. 235
(not in use any
longer!)
Art. 308
(not in use any
longer!)
Art.352
(not in use any
longer!)
 Art. 130r
- Objectives
- Principles
- Grounds
- Int. coop.
 Art. 130s
Legal basis and
procedure
 Art. 174
- Objectives
- Principles
- Grounds
- Int. coop.
 Art. 175
Legal basis and
procedure
 Art. 191
- Objectives
- Principles
- Grounds
- Int. coop.
 Art. 192
Legal basis and
procedure
Art. 130t
Minimum
stringency
 Art. 130t
Minimum
stringency
 Art. 176
Minimum
stringency
 Art. 193
Minimum
stringency
TEU 1
Article 3 (ex Article 2 TEU)
3. The Union shall establish an internal market. It shall work for the sustainable
development of Europe based on balanced economic growth and price stability, a
highly competitive social market economy, aiming at full employment and social
progress, and a high level of protection and improvement of the quality of the
environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice
and protection, equality between women and men, solidarity between generations
and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among
Member States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's
cultural heritage is safeguarded and enhanced.

...
5. In its relations with the wider world, the Union shall uphold and promote its values
and interests and contribute to the protection of its citizens. It shall contribute to
peace, security, the sustainable development of the Earth, solidarity and mutual
respect among peoples, free and fair trade, eradication of poverty and the protection
of human rights, in particular the rights of the child, as well as to the strict observance
and the development of international law, including respect for the principles of the
United Nations Charter.
TEU 2
Article 5 (ex Article 5 TEC)
1. The limits of Union competences are governed by the principle of conferral. The use
of Union competences is governed by the principles of subsidiarity and
proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the
objectives set out therein. Competences not conferred upon the Union in the Treaties
remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive
competence, the Union shall act only if and in so far as the objectives of the proposed
action cannot be sufficiently achieved by the Member States, either at central level or
at regional and local level, but can rather, by reason of the scale or effects of the
proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in
the Protocol on the application of the principles of subsidiarity and proportionality.
National Parliaments ensure compliance with the principle of subsidiarity in
accordance with the procedure set out in that Protocol.
4. Under the principle of proportionality, the content and form of Union action shall
not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in
the Protocol on the application of the principles of subsidiarity and proportionality.
4
TEU 3
Article 6 (ex Article 6 TEU)
1. The Union recognises the rights, freedoms and principles set out in the
Charter of Fundamental Rights of the European Union of
7 December 2000, as adapted at Strasbourg, on 12 December 2007, which
shall have the same legal value as the Treaties.
 The provisions of the Charter shall not extend in any way the competences
of the Union as defined in the Treaties.
 The rights, freedoms and principles in the Charter shall be interpreted in
accordance with the general provisions in Title VII of the Charter governing
its interpretation and application and with due regard to the explanations
referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection
of Human Rights and Fundamental Freedoms. Such accession shall not
affect the Union's competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law.
TFEU 1
Article 4
2. Shared competence between the Union and the
Member States applies in the following principal areas:
 (e) environment;
 (i) energy;
Article 11 (ex Article 6 TEC)
 Environmental protection requirements must be
integrated into the definition and implementation of the
Union's policies and activities, in particular with a view to
promoting sustainable development.
TFEU 2
Article 35 (ex Article 29 TEC)
 Quantitative restrictions on exports, and all measures having
equivalent effect, shall be prohibited between Member States.
Article 36 (ex Article 30 TEC)
 The provisions of Articles 34 and 35 shall not preclude prohibitions
or restrictions on imports, exports or goods in transit justified on
grounds of public morality, public policy or public security; the
protection of health and life of humans, animals or plants; the
protection of national treasures possessing artistic, historic or
archaeological value; or the protection of industrial and commercial
property. Such prohibitions or restrictions shall not, however,
constitute a means of arbitrary discrimination or a disguised
restriction on trade between Member States.
TFEU 3
Chapter 3: Approximation of laws
Article 114 (ex Article 95 TEC)
1. Save where otherwise provided in the Treaties, the following provisions
shall apply for the achievement of the objectives set out in Article 26. The
European Parliament and the Council shall, acting in accordance with the
ordinary legislative procedure and after consulting the Economic and Social
Committee, adopt the measures for the approximation of the provisions laid
down by law, regulation or administrative action in Member States which
have as their object the establishment and functioning of the internal
market.
2. Paragraph 1 shall not apply to fiscal provisions, to those relating to the free
movement of persons nor to those relating to the rights and interests of
employed persons.
3. The Commission, in its proposals envisaged in paragraph 1 concerning
health, safety, environmental protection and consumer protection, will
take as a base a high level of protection, taking account in particular of
any new development based on scientific facts. Within their respective
powers, the European Parliament and the Council will also seek to achieve
this objective.
TFEU 4
4. If, after the adoption of a harmonisation measure by the European
Parliament and the Council, by the Council or by the Commission, a
Member State deems it necessary to maintain national provisions
on grounds of major needs referred to in Article 36, or relating to the
protection of the environment or the working environment, it
shall notify the Commission of these provisions as well as the
grounds for maintaining them.
5. Moreover, without prejudice to paragraph 4, if, after the adoption of a
harmonisation measure by the European Parliament and the
Council, by the Council or by the Commission, a Member State
deems it necessary to introduce national provisions based on
new scientific evidence relating to the protection of the
environment or the working environment on grounds of a problem
specific to that Member State arising after the adoption of the
harmonisation measure, it shall notify the Commission of the
envisaged provisions as well as the grounds for introducing them.
TFEU 5
6. The Commission shall, within six months of the notifications as referred to in
paragraphs 4 and 5, approve or reject the national provisions involved
after having verified whether or not they are a means of arbitrary
discrimination or a disguised restriction on trade between Member States
and whether or not they shall constitute an obstacle to the functioning of the
internal market.
 In the absence of a decision by the Commission within this period the
national provisions referred to in paragraphs 4 and 5 shall be deemed to
have been approved.
 When justified by the complexity of the matter and in the absence of danger
for human health, the Commission may notify the Member State concerned
that the period referred to in this paragraph may be extended for a further
period of up to six months.
7. When, pursuant to paragraph 6, a Member State is authorised to maintain
or introduce national provisions derogating from a harmonisation
measure, the Commission shall immediately examine whether to propose
an adaptation to that measure.
TFEU 6
8. When a Member State raises a specific problem on public health
in a field which has been the subject of prior harmonisation
measures, it shall bring it to the attention of the Commission which
shall immediately examine whether to propose appropriate
measures to the Council.
9. By way of derogation from the procedure laid down in Articles 258
and 259, the Commission and any Member State may bring the
matter directly before the Court of Justice of the European Union
if it considers that another Member State is making improper use of
the powers provided for in this Article.
10.The harmonisation measures referred to above shall, in appropriate
cases, include a safeguard clause authorising the Member States
to take, for one or more of the non-economic reasons referred to in
Article 36, provisional measures subject to a Union control
procedure.
TFEU 7
TITLE XX: ENVIRONMENT
Article 191 (ex Article 174 TEC)
(Objectives)
1. Union policy on the environment shall contribute to
pursuit of the following objectives:
 –
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, and
in particular combating climate change.
TFEU 8
(Principles)
2. Union policy on the environment shall aim at a high level
of protection taking into account the diversity of
situations in the various regions of the Union. It shall be
based on the precautionary principle and on the
principles that preventive action should be taken, that
environmental damage should as a priority be rectified at
source and that the polluter should pay.
 In this context, harmonisation measures answering
environmental protection requirements shall include,
where appropriate, a safeguard clause allowing Member
States to take provisional measures, for non-economic
environmental reasons, subject to a procedure of
inspection by the Union.
TFEU 9
(Grounds)
3. In preparing its policy on the environment, the
Union shall take account of:
 – available scientific and technical data,
 – environmental conditions in the various
regions of the Union,
 – the potential benefits and costs of action or
lack of action,
 – the economic and social development of the
Union as a whole and the balanced
development of its regions.
TFEU 10
(International cooperation)
4. Within 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.
 The previous subparagraph shall be without
prejudice to Member States' competence to
negotiate in international bodies and to conclude
international agreements.
TFEU 11
Article 192 (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.
TFEU 12
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.
TFEU 13
(Minimum stringency)
Article 193 (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.