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Environment policy is one of the greatest social challenges facing the public authorities and all sectors of the economy today. It is also a subject of which the public is acutely aware, since it directly affects its welfare and health.
From the 1970s on the concern to conserve the environment started to give birth to a series of Community initiatives. However, the European Union internal market was criticised for putting the economic aspects and trade before protection of the environment, which was perceived as a potential barrier to trade rather than as an end in itself. In response to these criticisms the Treaty on European Union upgraded the environment to a Community policy and no longer simply action by the Community.
However, the EU Treaty was itself open to certain criticism, notably for its failure to simplify the decision-making procedures that applied to environment policy. Sometimes, too, a conflict of legal basis arose between the "environment procedure" (Article 175, ex Article 130s, of the EC Treaty) and the "approximation of laws" procedure for the internal market (Article 95, ex Article 100a, of the EC Treaty). This could often make a difference in terms of how strictly the Member States interpreted and implemented the rules. Another charge levelled at the EU Treaty was that it did not explicitly incorporate the commitment to sustainable development made at the 1992 Rio Conference but merely included a passing reference to sustainable growth and respect for the environment.
The Treaty of Amsterdamanswers these problems. A sustainable developmentis enshrined as one of the Union's tasks, together with the principle of integrating the environment into other policies. The decision-making procedures are now clearer and more efficient.
In the early days of building Europe, environmental issues were not a top priority for the public authorities and economic circles.
It was not until the 1970s that the emergence of environmental concerns triggered moves in this area at Community level. At the July 1972 Paris Summit the Heads of State and Government recognised that in the context of economic expansion and improving the quality of life particular attention should be paid to the environment.
Consequently, the signal was given and the first action programme setting out the framework for Community environment policy was adopted, covering the period from 1973 to 1976. This was followed by other multiannual programmes of the same type which led to the adoption of a series of directives on protection of natural resources (air and water), noise abatement, nature conservation and waste management.
However, the entry into force of the Single European Act in 1987, adding a title specifically on the subject to the Treaty establishing the European Community, is generally acknowledged as the turning-point for the environment. From then on, the Community measures had a legal basis explicitly defining the objectives and guiding principles for action by the European Community relating to the environment. And provision was made for environmental protection requirements to become a component of the Community's other policies.
The entry into force of the EU Treaty in November 1993 brought further progress on several fronts. First it added the concept of "sustainable growth respecting the environment" to the European Community's tasks and wrote the precautionary principle into the article on which environment policy is founded (Article 174, ex Article 130r, of the EC Treaty). Beyond that, it upgraded action on the environmental to the status of a "policy" in its own right and made qualified majority voting in the Council the general rule. The only exceptions are matters such as environmental taxes, town and country planning and land use, where unanimity remains the norm. As for the codecision procedure, this was confined to issues concerning the internal market.
In the final analysis, in the course of building Europe provisions commensurate with the high stakes represented by the environment have gradually been evolved. Nevertheless, this progress, step by step, also created certain inconsistencies, such as the conflicting legal bases or the different decision-making procedures. The Treaty of Amsterdam should resolve these problems and respond to the need to make Community environment policy clearer and more efficient.
SUSTAINABLE DEVELOPMENT AND TAKING THE ENVIRONMENT INTO ACCOUNT IN ALL POLICIES
The EU Treaty lays down that "environmental protection requirements must be integrated into the definition and implementation of other Community policies." This is a sine qua non for sustainable growth respecting the environment.
The Treaty of Amsterdam seeks to provide stronger guarantees than given by the Single Act and the Treaty on European Union by inserting the concept of sustainable development plus a new article in the Treaty establishing the European Community.
Introduction of the principle of sustainable development
This principle is now enshrined in the preamble and in the objectives of the EU Treaty. It also features in Article 2 of the EC Treaty, which lays down the tasks of the Community.
New Article 6 of the EC Treaty
The new Article 6 puts at the start of the Treaty the clause calling for environmental protection requirements to be integrated into the definition and implementation of other policies. This was already contained in Article 174 (ex Article 130r). The new article also cites such integration as one means of promoting sustainable development.
This new article must be seen in conjunction with the Declaration on environmental impact assessments, annexed to the Final Act of the Intergovernmental Conference which drafted the Treaty of Amsterdam. In this Declaration the Conference notes that the Commissionundertakes to prepare environmental impact assessment studies when making proposals which may have significant environmental implications.
THE ENVIRONMENT AND APPROXIMATION OF LAWS ON THE INTERNAL MARKET
To smooth the way for completion of the internal market, the Single European Act allowed the Council to take decisions approximating laws between the member states by a qualified majority. A parallel framework was created for free movement, reflecting the need to take account of issues of vital importance for society such as the environment, public health or consumer protection (Article 95(3), ex Article 100a(3), of the EC Treaty). The Treaty of Amsterdam further strengthens this framework.
Amendment of the provisions on approximation of laws
The EC Treaty now requires all proposals by the Commission to be based on a high level of environmental protection. Previously, after a harmonisation measure had been adopted by the Council, any Member State could still apply different national provisions if warranted by major environmental protection requirements. The Member State in question had to notify the Commission, which then verified that the provisions involved were not a means of arbitrary discrimination or a disguised restriction on trade between the member states.
This mechanism has now been extended, drawing a distinction between two separate cases (Article 95, ex Article 100a). After a Community harmonisation measure has been adopted, Member States may:
either maintain existing national provisions to protect the environment;
or introduce new national provisions to protect the environment.
In the first case, the Member State must notify the Commission and give its reasons for maintaining those national provisions.
In the second case, the Member State must again notify the Commission of the new national provisions and explain its reasons for introducing them. Moreover, those measures must be based on new scientific evidence and must be in response to a problem that specifically affects the Member State in question and that arose after the harmonisation measure was adopted.
In both cases, the Commission checks whether or not the national measures involved are a means of arbitrary discrimination, a disguised restriction on trade between Member States, or an obstacle to the functioning of the internal market.
The Commission has six months to decide whether to approve or reject the measure. This may be extended by a further six months in certain circumstances. In the absence of a decision, the national provisions are deemed to have been approved.
THE ENVIRONMENT AND DECISION-MAKING AT COMMUNITY LEVEL
Decision-making in the Treaty on European Union
The EU Treaty established a more efficient decision-making procedure for environment policy, replacing unanimity in the Council by qualified majority voting as the general rule. However, the arrangements were still complex, with several different procedures existing side by side:
- the co-decision procedure for general action programmes;
- the cooperation procedure for the environment policy;
- simple consultation, with unanimous adoption by the Council, for measures concerning taxation, town and country planning, land use, or energy supply.
In addition, there was sometimes a grey area between environmental measures (Article 175, ex Article 130s) and the approximation of laws in connection with the internal market (Article 95, ex Article 100a). Since the codecision procedure applies to the approximation of laws, there was a risk of conflict between Article 100a and Article 130s as the legal basis for action relating to the environment.
Simplification of decision-making and the Treaty of Amsterdam
The entry into force of the Treaty of Amsterdam has simplified the situation, replacing the cooperation procedure by the codecision procedure. This reorganisation has the advantage of reducing the number of procedures to two (the member states still wished to retain unanimity for the fields indicated above). This makes the Treaty more readableand reduces the risk of conflicts over the legal basis.
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