Strengthening environmental policy in the Treaty of Rome
A review of amendments put forward for discussion by the Intergovernmental Conference to be convened by the Italian Government in December 1990
Institute for European Environmental Policy, London 3 Endsleigh Street London WC1H ODD Tel. 071-388-2117 Telex 261681eascan g Fax 071-388-2826
Institut fur Europaische Umweltpolitik Aloys-Schulte-StraBe 6 D-5300 Bonn 1 Tel. 49/228/213810 220972 Telex 886885 fec d Fax 49/228/221982
Institut pour une Politique Europeenne de l'Environnement 55, rue de Varenne F-75341 Paris Cedex 7 Tel.33/1/22.214.171.124 Telex 201220 fec par f Fax 33/1/126.96.36.199
Instituut voor Europees Milieubeleid Jansbuitensingel 14 NL-6811 AB Arnhem Tel. 31/85/422929 Fax 31/85/453210
With its partner Institutes, IEEP, London is part of the network of the European Cultural Foundation Jan van Goyenkade 5 NL-1075 HN Arnsterdam
Opportunities for amending the Treaty of Rome come rarely. Although the European Community (EC) decided to adopt an environmental policy as long ago as 1972, it was not until 1985 that an opportunity came to write environmental provisions into the Treaty. The amending Treaty, known as the Single European Act, was drafted quickly and with little discussion. Its main purpose was to give an impulse to the completion of the internal market by the end of 1992. However, it also provided a legal base for environmental policy and introduced the important principle that the environment was to be a component of the EC's other policies. Despite this important change, the Articles of the Treaty which set out the Community's tasks and activities still use the language of the 1950s - when economic expansion was thought a goal in itself, without any concern about the quality of that expansion, or for what we bequeath to future generations.
Amending the Treaty for the purposes of Economic and Monetary Union, and Political Union, now provides another occasion to strengthen environmental policy. Several proposals have already been put forward by the European Parliament, by national Governments, and by interest groups, and are reviewed in this report by David Wilkinson.
The purpose of the report is to inform and stimulate discussion. Where the author has put forward new proposals or has commented on other proposals, the opinions he expresses are his own.
Institute for European Environmental Policy, London
In December 1990, two parallel Intergovernmental Conferences - one on Economic and Monetary Union, the other on Political Union - convene in Rome to examine ways of securing closer integration within the European Community. The decision to hold the conferences followed agreement by Community Heads of Government at their April 1990 meeting in Dublin that 'a point has been reached where the further dynamic development of the Community has become an imperative not only because it corresponds to the direct interest of the twelve Member States, but also because it has become a crucial element in the progress that is being made in establishing a reliable framework for peace and security in Europe'.
In the run-up to these conferences - especially the one on Political Union - a number of proposals for change have been put forward by national Governments, the European Parliament and non-governmental organisations, many of them with direct or indirect implications for the Community's environment policy. For completion of the internal market in 1992 promises to give a major boost to economic development in the Community, and, as EC Heads of Government observed at Dublin in June 1990: 'There must be a corresponding acceleration of effort to ensure that this development is sustainable and environmentally sound'.
Changes to the Treaty of Rome introduced by the 1987 Single European Act brought big advances in the field of environmental protection. For the first time, the EC's environment policy was given legal underpinning and was reinforced by the pledge that 'environmental protection requirements shall be a component of the Community's other policies'. But despite this big step forward, the job was left unfinished. The ethos of the Treaty remains firmly pro-economic growth, and the way in which the Community's environment policy is decided, implemented and enforced is not sufficiently effective to meet the unprecedented challenges facing the Community, and indeed, the planet.
This paper has been written as a contribution to the debate on those changes the Intergovernmental Conference needs to recommend to complete the 'greening' of the European community. It takes the form of a critical review of those proposals requiring amendment to the Treaty of Rome, although other reforms, not requiring Treaty changes, are mentioned where this is relevant. The discussion focuses on the general principles underlying the Treaty; the issue of 'subsidiarity'; changes to the Community's legislative process; and ways of tightening up the implementation and enforcement of the EC's environmental rules on the ground, in the member states.
2.1 Article 2 (EEC)
The Treaties establishing the European Community clearly reflect the period in which they were written, before concerns about pollution and the depletion of resources had come to prominence. Thus Article 2 of the EEC Treaty includes among the tasks of the Community 'a continued and balanced expansion' and 'an accelerated rising of the standard of living' of the member states, with no concern for the quality of that expansion, or the conservation of resources, or the needs of future generations.
By 1972, the narrowness of this view was already apparent, and the nine Heads of Government at their October meeting in Paris sought to counter it with a declaration that 'economic expansion is not an end in itself'. Subsequently, throughout the 1970s, a variety of non-governmental organisations - including the Institute for European Environmental Policy and the European Environmental Bureau (EEB) - called for revision of Article 2 to bring it into line with the Community's emerging environmental policy.1 But when the opportunity for amendment at last came in 1987 with the passage of the Single European Act, Article 2 was left intact. In the event, the new Articles 130r, s and t were added to the Treaty. They provided for the first time a clear legal basis for the EC's environment policy, and established the principle that environmental protection should be a component of all other Community policies.
The forthcoming Intergovernmental Conference (IGC) now provides an opportunity to clear up unfinished business. An amendment to Article 2 would resolve possible contradictions in the Treaty, and contribute to the completion of its 'greening'.
The European Council in its December 1988 Declaration on the Environment has already declared that sustainable development must be one of the overriding objectives of all Community policies'2 A similar view is expressed in a recent Memorandum from the Danish Government3, which puts environmental policy at the head of its proposed agenda for the IGC, and stresses that it 'should occupy a much more central position in the Community's overall activities. The aim of encouraging environmentally sustainable development should therefore be one of the main principles of the Community'.
A formulation along these lines, which also emphasises the importance of the quality of economic growth, should now be incorporated into Article 2.
2.2 Article 130r (EEC)
The Single European Act (SEA) set out the principal objectives of the Community's environment policy in Article 130r (1). They are to preserve, protect and improve the quality of the environment; to contribute towards protecting human health; and to ensure a prudent and rational utilization of natural resources. The European Parliament's July 1990 Resolution on the Intergovernmental Conference4 contains an amendment by Liberal MEPs Lamassoure and Pimenta that would add to Article 130r(i) a further objective - 'to contribute to international action against threats to the ecological balance of the planet'. This seems unexceptionable, and would build on references to international co-operation in sub-section (5) of 130r.
For its part, the EEB has proposed5 the inclusion of a reference to Article 130r within Article 130b, which deals with redressing regional and structural imbalances - 'economic and social cohesion' in the jargon - and requires economic and internal market policies to contribute to a narrowing of the gap between the GNPs of the member states. The purpose of the proposal, which is also backed by the World Wide Fund for Nature (WWF)6, seems to be to ensure that the operation of the EC's Structural Funds takes account of the need for environmental protection. It is questionable, however, whether Article 130b is the appropriate place to make such an amendment, and indeed whether it is superfluous in view both of the requirement in 130r(2) that environmental protection should be integrated into other Community policies, and of the proposed amendment of Article 2.
2.3 Declaration of Fundamental Rights and Freedoms
The constitutions of most liberal democracies include a l rights and freedoms which may be enforceable against their governments by a constitutional court. A number of proposals have been made for the inclusion in the Treaty of a similar statement of individual rights notably by the Belgian Government7, the European Parliament in its Resolution on the IGC8, and the European Environmental Bureau9.
More than a third of the Community's Member States already accord constitutional status to environmental protection, or recognise the environmental rights of the individual. In the European Council's declaration The Environmental Imperative, issued after the Dublin summit in June 1990, EC leaders affirmed that the objective of the Community's environment policy was to 'guarantee citizens the right to a clean and healthy environment'10, while the European Parliamentary Labour Party (formerly the British Labour Group of MEPs) has called for 'a European Environmental Charter in order to protect the individual's right to a better environment'.11
The European Parliament's Resolution on the IGC proposed that the Declaration of Fundamental Rights and Freedoms, passed by Parliament on 12 April 198912, should be incorporated into the Treaties and made enforceable by the European Court, to which individual citizens would be given the right of direct access after the exhaustion of national legal processes. Article 24 of that Declaration would impose on Community institutions the duty 'to adopt all measures necessary' to secure inter alia 'the preservation, protection and improvement of the quality of the environment'.
This is a stronger statement than that contained in Article 130r(1) and raises the interesting possibility - for example - of an individual citizen taking the Council of Ministers to the European Court for failing adequately to tackle air pollution from cars in city centres.
The creation of environmental rights and duties at a Community level would be a welcome reinforcement of the principle of environmental protection. If this were achieved through the incorporation into the Treaty of the European Parliament's Declaration of Fundamental Rights and Freedoms, however, Article 24 would need to be expanded to include an individual's right to information from all public authorities. As the EEB has pointed out13, the recent Directive on the Freedom of Access to Environmental Information excludes data held by the Commission itself.14
In moving towards closer political union, the unavoidable question arises: where should the boundary be drawn between the respective competences of the Community's institutions and the Governments of the Member States (and, beyond that, regional and local authorities)? The convenient answer is that the distribution of power should be governed by 'the principle of subsidiarity': that is, action should be taken at Community level only when that is more effective than national action. The principle has received support from, at one extreme, the federalist European Parliament Resolution on the IGC15 and, at the other, UK Foreign Secretary Douglas Hurd16. The Belgian Government has called for the principle to be given a detailed form that would be enforceable in the European Court17, and this position has been supported by former French President Giscard d'Estaing18 and by David Martin MEP in his draft Resolution on the IGC19 (although this was omitted from the resolution as passed).
Everybody can agree at a general level that subsidiarity, like motherhood, is a good thing, but the consensus starts to unravel when its detailed implications are examined.
3.1 Definitions and Issues
Article 12 of the European Parliament's Draft Treaty Establishing the European Union (February 1984) declares: 'The Union shall act only to carry out those tasks which may be undertaken more effectively in common than by the member states acting separately'.20 This formulation has been expanded by Giscard d'Estaing: 'Each level is granted powers only because these cannot, given their nature and scope, be exercised efficiently and effectively at any other level'.21
The principle of subsidiarity has gained widespread support largely because of the vagueness of such statements, which in fact conceal two different types of subsidiarity. The 'tasks' to be allocated can refer either to discrete policy domains (foreign policy, economic policy, land-use planning), or to particular stages in the policy process (policy formulation, programme implementation). Thus at one and the same time it is possible to agree that the task of implementing pollution control is better done by the Member States (or regional authorities) but that the formulation of pollution policy should be undertaken at Community level.
However, in the context of the debate in the run-up to the IGC, the discussion has generally focussed not on administrative subsidiarity, but on the allocation of policy domains. The question then arises: what are the criteria by which to judge the effectiveness and efficiency of particular policy allocations? The European Parliament's Draft Treaty suggests that the Community should be given responsibility for those policies 'whose execution requires action by the Union because their dimension or effects extend beyond national frontiers'.22 This would presumably include those situations where the activities of one member state could adversely affect the interests of others (e.g. internal market issues, transfrontier pollution etc.), and where joint action is required in international fora to produce more effective results.
Giscard d'Estaing, in addition, points out that the criterion of 'effectiveness' might also encompass activities where pooling of effort is mutually beneficial - as in scientific research, counter-terrorism measures, campaigns to halt the spread of Aids, etc. The inclusion of such areas would considerably extend the competence of the Community's institutions. On a rational (as opposed to a political) application of the criterion of 'effectiveness' in this extended sense, the policy areas exclusively reserved for Member States would be few in number.
That this is the case should not be surprising, since the trend during the twentieth century has been for federal governments to extend their power at the expense of individual states or regions as they have assumed responsibility for the economic management and social welfare of the federation as a whole. Often a compromise has been reached whereby federal constitutions contain extensive lists of concurrent powers which give states the right to legislate alongside the federal government, but where federal law overrides state law in cases of conflict. This would seem to be the most likely outcome of an attempt to spell out in detail what the application of the principle of subsidiarity would mean in a Community context - an inevitable disappointment to those who had hoped it might be used as a weapon in favour of states' rights.
3.2 Environmental Implications of Subsidiarity
Against the criterion of effectiveness, it is difficult to argue that any significant area of environmental policy should be reserved exclusively for Member States. The need to harmonize product standards, eliminate 'pollution havens', counter cross-boundary pollution, and contribute effectively to the solution of global environmental problems all argue for Community competence. In a first shot at a detailed allocation of responsibilities, Giscard d'Estaing suggests regional and town planning as one area that might fall within the exclusive preserve of Member States23
yet even here there is a necessary European dimension in the form of urban air quality standards, the protection of migratory wildlife habitats, and the environmental assessment of development projects.
By contrast, the EEB argues that Article 130r(4) - which gives the Community competence in the environmental domain only to the extent that the objectives listed in the Article's first paragraph can be attained 'better' than by individual member states - should be amended to give the Community omnicompetence.24
This view is not shared by the Chair of the European Parliament's Committee on Environment, Consumer Protection and Nuclear Safety, Ken Collins MEP. He has emphasised that the formulation in 130r(4) is sufficiently elastic to allow the Community to act when necessary, and that it should be left alone. He has also argued, on the same grounds, that an attempt to enshrine in the Treaty a rigid allocation of detailed policy areas between the Community and the Member States is a misdirection of effort and that a simple statement of principle along the lines of the European Parliament's Draft Treaty would be sufficient.25 Similarly, the Danish Government26 has declared that 'the principle of subsidiarity should be stated as a basic principle in the Preamble (to the Treaty)'
There is much merit in this view. If the process is to be anything more than arbitrarily political, an attempt to spell out the distribution of competences on the basis of policy domains can only result in a long list of concurrent powers that will not provide the reassurance sought by those anxious to protect national sovereignty. Efforts might better be directed towards refining the notion of administrative subsidiarity, by which Member States are given as much latitude as possible in the administration of Directives, consistent with their effective implementation.
4.1 Qualified majority voting
of all the proposals on the agenda of the Intergovernmental Conference, the extension of qualified majority voting in the Council of Ministers to include environmental legislation, together with a parallel increase in the powers of the European Parliament, have secured the most widespread support. Among those proposing the change are the Governments of Belgium, Denmark and Greece; the European Parliament in its Resolution on the IGC; and non-governmental organisations like the EEB and the WWF. The European Council, following the Dublin summit in June 1990, also urged the IGC to 'address ways of accelerating Community decision-making on environmental legislation with a view to providing the Community with the necessary capacity in all respects to respond to the urgency of the situation'.27
The Single European Act introduced qualified majority voting in Council under Article 100A for measures relating to the establishment of the internal market, including the harmonisation of product standards and other national rules that distort competition. This change removed the ability of individual Member States to veto progress and has demonstrably speeded up the passage of internal market legislation.
Specifically excluded from the majority voting procedures were social and employment policy, and the harmonisation of taxation. On environmental matters, however, the position remained unclear. While the SEA's new chapter on environment policy insisted on unanimity in the Council (under Article 130s), many issues involving the harmonisation of environmental standards could, and have been, construed as internal market issues subject to majority voting. This has created a legislative no man's land where there is uncertainty whether Article 100A or 130s should apply - notably where proposals relate to discharges from an industrial plant which affect its competitive position.
Extend1ng qualified majority voting to all environmental matters would remove this confusion, and more importantly speed up the passage of urgently needed legislation. The Commission proposal aimed at cutting SO2 and NOX emissions from large power plants - a prime cause of acid rain - languished in the Council for five years before getting final agreement as Directive 88/609. As David Martin MEP observes in his pamphlet European Union and the Democratic Deficit: Unanimity allows such policies to be taken hostage by individual member states'.28
One consequence of majority voting would be to oblige individual Member States to accept and enforce environmental policies to which they might be strongly opposed. Any move in this direction must therefore be accompanied by steps to tighten up the monitoring of the implementation at national level of Community environmental legislation, together with measures to ensure that the rulings of the European Court are respected (see below p17).
4.2 Extendinq the Powers of the European Parliament
Where qualified majority voting in Council applies under Article 100A, the powers of the European Parliament are extended in tandem. The SEA introduced a 'co-operation procedure' in which MEPs are given a second reading in which they can reject, or propose amendments to, the Council's agreed 'common position' on a Commission proposal. The Council can still have the final say, but the co-operation procedure has given Parliament considerable influence. On the issue of setting limits to exhaust emissions from small cars - which, as a matter affecting the internal market, was dealt with under Article 100A - the co-operation procedure gave the European Parliament the decisive say.
There is no necessary reason why an extension of majority voting to environmental (and social) matters should also be accompanied by an extension of the co-operation procedure with Parliament, but none of the proponents of change has suggested that this Link should be broken. And for good reasons. Where the representative of an elected government of a member state can be obliged against his will to accept Community legislation, there needs to be some democratic input, which currently only the Parliament can provide. Moreover, it would be difficult to justify allowing the Parliament a say in internal market legislation, yet deny it greater influence over environmental and social legislation which touches far more immediately the direct interests of the Community's citizens, whom it directly represents.
In its Resolution on the IGC the Parliament seeks to go further than the existing co-operation procedure, calling for the introduction of a system of 'co-decision' in which Council and Parliament become equal partners in the legislative process, in a manner similar to the relationship between the German Bundestag and Bundersrat. In a move that would give a massive boost to MEPs' power, both Council and Parliament could separately block legislation if a conciliation procedure failed to reach agreement on disputed issues.
Other proposals put forward include giving Parliament the right to initiate legislation, elect the President of the Commission, establish powerful committees of inquiry, together with a number of procedural changes that would not require Treaty amendment but would nevertheless extend Parliamentary influence.
While the need to redress the 'democratic deficit' at the heart of the Community provides a strong case for moving towards Parliamentary codecision, such a dramatic shift in the balance of power between MEPs and member states is unlikely to be acceptable to national governments. Moreover, there is a distinct danger that co-decision might simply shift the sclerosis in the Council to the chamber of the European Parliament. With weak party discipline and strong pressure from lobbyists, securing Parliamentary majorities for action could prove difficult, resulting in either incoherent legislation, or, at worst, deadlock. The fate at the hands of the Senate of former US President Carter's 1977 programme to conserve energy - his 'moral equivalent of war' - should serve as a salutary warning.
There is however, a powerful case for extending the existing co-operation procedure - perhaps with some fine tuning - to cover environmental matters. Inevitably, however, this will place a heavy burden on the Committee on the Environment, Consumer Protection and Nuclear Safety - already bearing the heaviest workload of all Parliament's committees. There is an urgent need for greater resources to be made available to the Committee to employ more staff or commission help from specialist advisers, if Parliament's increased influence is to be used constructively.
4.3 Other Procedural Proposals
A number of other proposals for increasing the democratic accountability in the Community's decision making have been put forward, notably by the Chair of the Parliament's Environment Committee, Ken Collins MEP.29 These include:
All of these changes are desirable on democratic grounds, and would make the task of environmental groups in influencing EC legislation that much easier. However, none would require specific treaty amendments and are therefore not discussed further here.
There is one further institutional reform that would require Treaty amendment, however, that is long overdue and might profitably be included on the IGC's agenda. The Economic and social Committee (ESC) may be the Cinderella of the Community's institutions in terms of its limited influence, but on many issues it has to be consulted by the Commission, and recent indications are that President Delors is taking its views more seriously, particularly on the social action programme. Its 189 members represent the two 'social partners' - employers and trade unionists - while a third group is made up of various interests, including regional, professional and consumer groups. The initial selection of the ESC's members is undertaken by national governments from among the 'Great and the Good' in a manner which generally fails to take into account the enormous increase in the influence of the environmental movement over the past twenty years. Although there is an ESC sub-committee (or 'section') on the Environment, Public Health and Consumer Protection, it has to work without benefit of the skills or experience of environmental specialists.
In parallel with European Parliament proposals to establish a new Advisory Committee for local and regional council representatives, the composition of the Economic and Social Committee needs to be changed to give formal recognition to the importance of the environmental movement. Articles l93 and 197 of the Treaty should therefore be amended accordingly .
Improving and democratising the Community's 9 policy-making processes is just so much wasted time if the resulting legislation is not implemented on the ground in the Member States. Non-implementation - either through failure to translate Directives into national law, or subsequent non-application of those national laws by the Member States - is a growing problem, and one which is set to get worse with the extension of majority voting in the Council.
Environmental legislation comes near the top of the list in terms of nonobservance. In 1989 references to the Court of Justice for infringements to EC environmental law came second only to those relating to the internal market, and third (behind the internal market and agriculture) on the basis of total infringement proceedings (which include Letters of Formal Notice, and Reasoned Opinions). Most member states have failed properly to implement the Drinking Water Directive (deadline 1985), and many are not fully implementing the 1979 Directive on the Protection of Wild Birds.31
Infringement proceedings launched by the European Commission represent only the tip of the iceberg, however. Insufficient resources in the Commission's Environment Directorate-General (DG XI) mean that monitoring implementation in the Member States is at best perfunctory, and DG XI has to rely overwhelmingly on complaints from the public for its information on the infringement of Directives.
Further, even if a Member State is found guilty by the European Court for failing to carry out its obligations under EC law, there is no guarantee that it will put things right, because of the absence of sanctions at the Court's disposal. In 1989, there were no fewer than 82 outstanding cases of non-compliance with a Court judgement. Belgium has received and ignored two such judgements for failure to implement a Waste Directive; and judgements against Germany, Italy, the Netherlands, Belgium and France for failure to comply with the Birds Directive have so far failed to put things right. All the Court can do is to find the offending Member State guilty of continued infringement.
In order to tighten up on implementation, there needs to be greater incentive for Member States to comply - firstly, through better monitoring of what is happening on the ground in the member states, so that they stand less chance of getting away with non-compliance; and secondly, through the use of sanctions to enforce compliance with Court judgements. Both of these remedies were suggested by European Democratic Group spokesman on the EP's Environment Committee, Dr Caroline Jackson MEP, in a successful amendment to the Parliament's Resolution on the IGC.32 UK Foreign Secretary Douglas Hurd has promised that British proposals will be forthcoming for 'strengthening the powers of our Community enforcement agencies'33. And on the question of sanctions available to the European Court, the Court itself has described their absence as 'a lacuna in the Treaty of Rome'34.
5.1 Monitoring Implementation
Dr Jackson's amendment called for the creation of European Inspectorates working with, or within, the Commission, 'most notably and urgently in the field of the environment', with the task of checking that national authorities are properly applying EC law. Such an environmental inspectorate ought properly to be empowered to inspect documents and carry out checks, on the spot. Powers like these would not be unprecedented. Article 81 of the European Atomic Energy Treaty (Euratom) gives sweeping authority to Commission-appointed inspectors, and the Commission regularly polices compliance by Member States with EC fishing quotas. At a less formal level, DG XI officials have conducted site visits in Member States, albeit with the co-operation of national officials.
Inspection of this nature would be an appropriate task for the European Environmental Agency (EEA)35, and indeed the European Parliament pressed strongly for its powers to be extended in this way. Concerned at the potential erosion of their sovereignty, however, Member States ensured that the EEA's role should be restricted largely to data collection. There is provision in the EEA Regulation for a review of the Agency's functions after two years of operation, and this opportunity should be taken to accord it powers of inspection. In the meantime, consideration might be given to adding a paragraph to Article I55 (EEC) clarifying the Commission's powers to undertake inspection on the territory of Member States.
The monitoring role of the European Parliament might also usefully be extended, without the need for Treaty amendment. In the article already referred to, Douglas Hurd suggests that Parliament should assume greater responsibility for scrutinising the implementation and efficiency of Community policies. Parliament itself has called for establishment of a special Monitoring Committee36, although differences have arisen among MEPs over whether existing committees should take on this role. The major difficulty confronting any expansion of the EP's monitoring role is its reliance, in current circumstances, on information made available by Member States themselves, often on a very sporadic basis despite the requirement for regular reporting included in most environmental Directives.
5.2 Enforcing Judgements of the European Court
The Treaty of Rome is remarkably vague on the enforcement of Court judgements. Article 171 states baldly: 'If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgement of the Court of Justice'. Nowhere is it specified how this might be done.
In a recent article Professors Alan Dashwood and Robin White from the University of Leicester conclude: 'The only practicable form of sanction against a member state would be the witholding of payments due from the Community'37, since the imposition of fines by the Court simply begs the question of how they might be collected.
The largest cash transfers from the Commission to the Member States come in the form of reimbursement of the costs of intervention and export subsidies by the Guarantee section of the Agriculture Fund (FEOGA), and payments from the three Structural Funds. An amendment to Article 171 might allow a proportion of these payments to be witheld by decision of the Court, following the expiry of a timetable agreed between the offending member state and the Commission for compliance with the initial Court judgement.
One objection to sanctions of this kind, to which Caroline Jackson has drawn attention, is that the money witheld will probably be earmarked for purposes completely unconnected with the infringement. This does not concern Dr Jackson unduly, but it might well be opposed by other Directorates-General whose priorities are not primarily environmental. Article 130r (2) - which declares in part that environmental protection requirements shall be a component of the Community's other policies - might usefully be employed to counter such opposition.
An alternative method of securing compliance might be for action to be taken in the national courts of the offending Member State, in a manner similar to the procedure set out in Articles 82 and 164 of the Euratom Treaty. Far more specific on the issue of enforcement than the Treaty of Rome, the Euratom Treaty gives authority to the Commission to issue a directive to a member state to end an infringement within a specified time limit. If it fails to comply, the Commission can seek a judgement of the European Court which is then enforceable, under Article 164, by the national courts of the offending state.
Both these approaches would require Treaty amendment which the IGC might usefully consider. There already exists, however, the possibility of securing injunctions against offending Member States or their agents. Under Article 185 (EEC) the European Court can take interim measures pending a full Court hearing if substantial and irreversible damage is threatened tothe interests of the plaintiff. A benchmark ruling of l9 June 1990 concerning an attempt by the UK Government to prevent Spanish fishermen benefiting from UK fish quotas38, made clear that these measures can go as far as the annulment of national legislation. Such Court action, however, is only of an interim nature, and the court will so act only if a number of specific conditions apply. For example, an attempt by the Commission in 1989 to secure a halt to work on a dyke whose construction threatened a sensitive bird habitat in Germany was turned down by the Court on the grounds that damage had already occurred, and more was not immediately threatened.39
In addition, an individual or organisation directly affected by the failure of a government or agency to abide by a ruling of the European Court could apply, if the circumstances of the case were appropriate, to their national courts for an injunction to stop an offending activity. This might occur, for example, if a water company continued to supply unwholesome water to customers despite a European Court ruling that it was in breach of the Drinking Water Directive. This is an avenue which has been explored more in the area of social and employment policy than in the environmental field, and it now merits further investigation as one potentially effective means of securing compliance with Court Judgements without the need for Treaty amendments.
5.3 New Policy Instruments
(i) Green Taxes
Better implementation of the Community's environment policy can be secured in ways other than the threat or use of sanctions Among alternative policy instruments available are so-called 'green taxes' which can be imposed on activities which are polluting or consume resources. Proposals for a comprehensive Community system of green taxes were presented for the first time to Environment Ministers in September 1990 by Carlo Ripa di Meana, in response to a request by the European Council at its meeting in Dublin in June. The idea has also received support from the European Parliamentary Labour Party in its September 1990 policy statement The New Europe40 and in the UK by the Liberal Democratic Party with their suggestion of a Pollution Added Tax (P A.T.).
Green taxes can be imposed on any product, commodity or activity which enters the market - fossil fuels, car use, fertilizers, pesticides, nonbiodegradable plastics, etc. - with a view to reducing their use and encouraging the production of alternatives. They can be used in conjunction with regulations.
A harmonised Community system of pollution charges could be introduced under Article 99 without Treaty amendment. Agreement would be subject to unanimity, however.
Some supporters of green taxes have argued that the proceeds should accrue to the Community and be earmarked for environmental purposes. It has been suggested that the creation in this way of a new source of Community revenue would require Treaty amendment. In fact, this would not seem to be necessary: the introduction of the Community's 'own resources' in 1970, the implementation of the 1984 Fontainbleu agreement on Britain's budgetary contribution, and the creation of the new new 'fourth resource' following the February 1988 Brussels agreement, were all effected by unanimous Council Decisions.
(ii) A European Environment Fund
A further policy instrument whose creation has been proposed to facilitate the implementation of the Community's environment policy is a new European Environment Fund. Complying with environmental legislation can be extremely costly, to an extent that Member States may be persuaded to evade its proper implementation While it is true that some of the worst offenders - Belgium and Italy, for example - are not poor, others - like Greece - are, and there is a case for the encouragement of 'environmental cohesion' in the Community in much the same way as the three existing Structural Funds pursue economic and social cohesion. In addition, there is a strong argument for making available Community finance for other projects, such as:
Currently, Community finance devoted to the environment is very small and fails to reflect the importance of environmental protection on the current policy agenda. The Structural Funds can assist green projects only insofar as there is a clear link with the economic development of a particular locality. And the ACE programme (Action by the Community relating to the Environment) is substantially under-funded and restricted to encouraging small demonstration projects, and small habitat protection schemes.
In its June 1990 statement The Environmental Imperative the European Council invited the Commission urgently 'to review the overall level of budgetary resources devoted to Community environment policy, currently disbursed through a number of separate funding mechanisms'.41 The European Parliament's Resolution on the IGC includes in a Liberal amendment a call for the creation of a European Environmental Fund through an addition to Article 130r (4); and its Committee on the Environment is currently developing detailed proposals42. The EEB has also gone on record in support of a new Fund.43
With the passage of the Single European Act, each of the three existing Structural Funds is now enshrined in the Treaty. It is important that a new Environment Fund should have similar legal underpinning. A new paragraph on environmental policy instruments, which would establish an Environment Fund and - possibly - endorse the principle of green taxes, should be inserted in Article 130r, between paragraphs 3 and 4.
This paper has concentrated exclusively on proposed amendments to the Treaty of Rome, reflecting the fact that all the suggested changes so far put forward for consideration at the IGC share this focus. In its Resolution on the IGC, however, the European Parliament stressed that it was 'essential to amend in a coherent manner all the Treaties establishing the European Communities, in particular the ECSC (European Coal and Steel Community), EEC, Euratom and Merger Treaties'.
Such a coherent approach is particularly important in the context of strengthening environmental protection. The most critical environmental problems currently facing the planet are associated with the production and consumption of energy in its various forms, and the Community's approach to them is significantly influenced by the provisions of the ECSC and Euratom of the latter Treaty declares its purpose to be 'to contribute to the raising of the standard of living in the member states' through 'the speedy establishment and growth of nuclear industries' - an expression of confidence more appropriate to the 1950s than the very different world of the 1990s.
In contrast to the negotiations leading to the single European Act, it is important that on this occasion, no more loose ends are left untied. The IGC should therefore address itself to a comprehensive review of all the Treaties which underpin the structure and operation of the Community.
1. See in particular CoEnCo's evidence before House of Lords Select Committee on the European Communities: Environmental Problems and the Treaty of Rome 27 July 1979. HMSO.
2. Declaration on the Environment adopted by European Council meeting in Rhodes, Greece, 2-3 December 1988.
3. Memorandum from the Danish Government, 4 October 1990.
4. European Parliament Resolution on the Intergovernmental Conference in the context of Parliament's Stategy for European Union, 11 July 1990.
5. European Environmental Bureau (EEB) Memorandum to the Italian Presidency, July 1990. Ref. C/161/90.
6. Communication with Dr Klaus Hansch MEP by WWF, 19 June 1990.
7. Aide-memoire submitted by the Belgian Government to the Irish Presidency, 20 March 1990, p 5.
8. European Parliament, op. cit.
9. EEB op. cit.
10. Presidency Conclusions, European Council meeting in Dublin 25-26 June 1990, Annex II: The Environmental Imperative, p 20.
11. The New Europe, statement by the European Parliamentary Labour Party, 17 September 1990.
12. European Parliament Resolution adopting the Declaration of Fundamental Rights and Freedoms, 12 April 1989. Official Journal (OJ) C 120 pp 51-58.
13. EEB op. cit.
14. Directive on Freedom of Access to Environmental Information OJ L158, 23 June 1990.
15. EP Resolution of 11/7/90, op. cit.
16. Article by Foreign Secretary Douglas Hurd on European Union, syndicated to various European newspapers in June 1990.
17. Aide-memoire of Belgian Government, op. cit. p 6.
18. Interim Report for EP Committee on Institutional Affairs on the Principle of Subsidiarity, 4 July 1990. Document A3-163/90 Part B, p 12. (Giscard d'Estaing).
19. Second Interim Report to the Committee on Institutional Affairs on the Intergovernmental Conference in the context of the Parliament's Strategy for European Union, 25 June 1990. Document A3-166/90, p 9.
20. European Parliament Draft Treaty Establishing the European Union, February 1984, p 16.
21. Giscard d'Estaing, op. cit., p 2.
22. EP Draft Treaty, op. cit., p 16.
23. Giscard d'Estaing, op. cit., p 10.
24. EEB op. cit., p 3.
25. Personal communication with author.
26. Memorandum from the Danish Government, op. cit., p 2.
27. European Council 25-26 June 1990, op. cit., p 17.
28. David Martin MEP: European Union and the Democratic Deficit, John Wheatley Centre Occasional Paper No 1, June 1990.
29. See Memorandum by Ken Collins MEP to the sub-committee of the House of Lords Select Committee on the European Communities in its Report on European Union, Session 1984/5, Fourteenth Report HL 226.
30. This was also demanded by the Board of the Institute for European Environmental Policy in a Resolution of 21 April 1982.
31. Seventh Annual Report to the European Parliament on Commission Monitoring of the Application of Community Law 1989. COM(90) 288, 22 May 1990.
32. European Parliament Resolution 11/7/90 op. cit., para 28-29.
33. Douglas Hurd, op. cit. p 3.
34. Bulletin of the European Communities, Supplement 9, 1975.
35. See Regulation on the establishment of the EEA and the European environment information and observation network, OJ L120, 11 May 1990, pp 1-6.
36. OJ C94, 11.4.88, pp 151 ff.
37. European Law Review, December 1989.
38. European Court of Justice ruling of 19/6/90 re Regina v Secretary of State for Transport, ex parte Factortame Ltd and others.
39. 7th Report on Monitoring Community Law, op. cit.
40. European Parliamentary Labour Party, op. cit.
41. European Council 25-26 June, op. cit., p 18.
42. The EP's Committee on the Environment, Consumer Protection and Nuclear Safety has appointed Hemmo Muntingh MEP to draw up proposals for an Environment Fund.
43. EEB, op. cit., p 4.