History and Development of the European Union's Environmental Policy

The original EEC Treaty contained no express mention of environmental policy, in part due to the essentially economic aims of that Treaty, and in part because, when the Treaty was drawn up in the late 1950s, the field of ‘environmental’ law, in the sense of a discrete body of rules governing the way that we interrelate with our natural surroundings, barely existed in the signatory Member States (though national laws had long existed governing certain aspects of the current field, in the form of rules on private property and public health). At international level, a collection of rules was just beginning to emerge in discrete environment-related areas, a process which had begun with the bilateral fisheries treaties of the mid-nineteenth century and in which the 1949 United Nations Conference on the Conservation and Utilisation of Resources (UNCCUR) was a landmark event. These developments undoubtedly contributed to the subsequent emergence of Community environmental law.

While environmental discourse became increasingly prevalent in the late 1950s and in the 1960s at international level, there was little appetite for Community activity in the environmental field, as the institutions and Member States alike were immersed in the task of defining the Community legal and political order in this period. Nonetheless, a small amount of Community legislation was adopted in these years on what would now be considered to be environmental matters. In this period, and up to the entry into force of the Single European Act in 1987, two legal bases were used for such legislation, each requiring unanimity of voting in the Council. The first was Article 100 (now, in amended form, Article 115 TFEU). The second was Article 235 (now, in amended form, Article 352 TFEU).

This book was conceived of some five years ago, with the aim of providing a user-friendly, comprehensive and contextual account of an area of law which could not be more critically important, but which is often discounted as technical and dense. Our objective, therefore, was to communicate this vital area of law in a way that was comprehensible, without losing too many of its nuances or ignoring fundamental complexities.

One of the challenges of this field is, of course, its fast-moving nature. Since we first started this book, a great many events have intervened which are of tremendous significance to this area. Some of these have been specifically environmental developments, such as the conclusion of the Paris Agreement at the COP 21 United Nations Climate Change Conference in 2015 (see Chapter 8), the conclusion of the EU's Seventh Environmental Action Programme in 2013 (see Chapter 2), the continued rise in prominence of the Aarhus Convention on Access to Environmental Information, Public Participation and Access to Justice in Environmental Matters, including in the case law of the Court of Justice of the European Union (see Chapters 5 and 7). Other developments have not been environment-specific, but have nevertheless had momentous effects on European environmental law and policy, including the entry into office of the Juncker Commission in 2014, bringing with it different political priorities (see Chapter 2); the ongoing Regulatory Fitness and Performance programme (REFIT) of the European Commission, which has included review of the Habitats and Birds Directives (see Chapters 4 and 12); and, of course, the EU's response to the global financial crisis of 2007–2008 and the subsequent European sovereign debt crisis, which has seen an overwhelming pressure to prioritise economic goals (jobs and growth) and economic governance (see Chapters 1, 3 and 6). The most recent such momentous development has been the June 2016 vote of almost 52 per cent of the British people to ‘Brexit’, the implications of which – including for the effective protection of the environment in the UK and EU – will certainly be profound, but are as yet unclear.

The title of the book reflects the fact that it aims to cover not only EU environmental law, but also the increasing body of European environmental law that does not originate in the EU, including the law of the ECHR and the Aarhus Convention.

The increasing involvement of private and civil society actors in European environmental governance is a constant theme of this book. As discussed there, European environmental governance has become a classic instance of what is often termed ‘networked’ governance, whereby centralised bodies ‘have become increasingly dependent upon the cooperation and joint resource mobilization of policy actors outside their hierarchical control’. This chapter considers the extent to which private actors play a role in the enforcement of EU environmental law, as a counterpart to the public enforcement of EU environmental law by the European Commission and Member State national authorities discussed in Chapter 6.

Private Enforcement of EU Environmental Law at National Level

Direct Effect of EU Environmental Law

Overview

The force of international law in a given national legal system is, according to traditional conceptions, decided upon according to the principles of that legal system. Certain States may choose to adopt the position that international law effectively forms part of the same legal system as domestic law, such that norms passed at international level which the State is bound by may also be relied upon directly before national courts (an approach typically known as the ‘monist’ approach to international law). Other States may choose to view the domestic legal system and international legal system as distinct, such that international norms – even those ratified by the State in question – only become part of the domestic legal system if a domestic law is passed transposing or incorporating that norm which achieves this (an approach typically known as the ‘dualist’ approach to international law).

The CJEU, however, has since the outset famously developed its own constitutional principles governing the force which, in its view, must be accorded to (what is now) EU law within national legal orders. In its seminal 1964 judgment in Costa v. ENEL, the CJEU established the principle of supremacy of EU law over national law, meaning that, in the event of a conflict between a provision of national law and a provision of EU law, a national court must give precedence to the latter.

EU Waste Policy

EU waste policy occupies an important place within the Union's environmental portfolio. This may be explained by the continuous rise of waste, which amounts, on average, to the disposal of half a tonne of household rubbish every year, per individual. According to the European Environment Agency, ‘the largest waste streams in Europe originate from construction and demolition, mining and quarrying, along with manufacturing activities’. Though landfill used to be a traditional method of waste disposal, this is not sustainable in the long term as the primary source of waste disposal. Thus, the EU is continuously improving its waste management approach, which is now embodied in the waste hierarchy, with waste prevention as the preferred option. However, it is not only waste management that is central to the EU waste policy. Even more important is the fact that waste, due to its physical characteristics or method of disposal, represents a major source of pollution. As a result of economic and technological development we are facing different types of waste which require prevention to avoid adverse environmental or human health impacts. Yet, waste should not only be associated with environmental pollution but should be recognised as a valuable resource. The EU recognises its economic potential that may lead to wider economic and social benefits. One illustrative example is recycling as one waste management option which may boost employment, generate economic growth and foster innovation and a knowledge-based economy.

Waste policy has a long lineage in the EU, starting from the Commission's 1972 Communication on the EC Programme on Environment, where the focus was on reduction of waste generation and recycling. Soon after, the Directive on waste oils and the Directive on waste were adopted in 1975, which paved the way for considerable legislative activism in this policy area. The Directive on waste provided for the first time an appropriate legal framework for implementing EC waste policy. Although the essential objective of waste disposal was the protection of human health and the environment against any harmful effects, the preamble of the directive seemed to focus more on the need to regulate waste to avoid any distortion of competition in the common market. Still, the Directive set out a definition of waste and introduced the waste hierarchy and polluter pays principles.

Introduction

The European Union is a region historically rich in biodiversity and wildlife. However, this richness is under severe threat. The combined forces of (agro)industrialisation, urban sprawl, human mobility, climate change, consumerism and other environmental stress factors conspire against green spaces, forests, wetlands, breeding grounds, self-sustaining ecosystems and the species that populate them. This chapter investigates the contribution of EU law as an instrument to halt and reverse the decline of nature and biodiversity in Europe. The discussion focuses on the two most prominent instruments in the EU's legal arsenal: the Birds Directive and the Habitats Directive. Additional measures, including the Regulation on Trade in Endangered Species (CITES Regulation) and the more recent Regulation on Alien Invasive Species (AIS Regulation) are flagged up in the final section but their analysis is outside the remit of this chapter.

The existence of a well-developed body of EU law on nature conservation and biodiversity may, at first sight, appear difficult to reconcile with subsidiarity and the doctrine of conferred competences. This is all the more so when we consider that the first piece of landmark legislation, the Birds Directive, was adopted well before the European Union acquired environmental policy competence in the Single European Act. The protection of nature and wildlife is intimately connected with decision-making on land use, development and the governance of property rights, which are all issues that are traditionally perceived as politically sensitive and therefore deeply domestic. Indeed, many considered that the focus on migratory (and therefore border-crossing) birds in the 1979 Birds Directive was but a thinly veiled justification for a major EU institutional over-reach. Ultimately, the Directive has stood the test of time and, together with its younger sister Directive on the conservation of habitats, it is now much more solidly grounded in the Treaty's environmental protection provisions of Article 191 TFEU. A stronger awareness of the transnational interdependence of ecosystems has also helped to allay concerns about competence creep. A growing consensus now exists that uncoordinated national nature and biodiversity protection initiatives are highly unlikely to be effective in the fight against nature and biodiversity decline.