ID: 0521280 -1-

Environmental Law: 2nd Essay

To what extent has the EC evolved from a pure trade entity

into an organisation which effectively protects the

environment. What difficulties has it faced and will it face

in the future?
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From its purely economic common market origins the Community has

extraordinarily evolved into the world’s foremost environmental protection group. The

founders of the Treaty of Rome could never have foreseen the vast array of non-economic

aspects incorporated into the Community. There is no question it has evolved from its

base but the question is to quantification of extent. This essay will present the argument

that despite remarkable difficulties initially due to the absence of a formal legal base for

environmental matters the Community still attempted to protect the environment by legal

and political discourse. When such a base was given in the Single European Act (SEA)

the EC evolved at an exponential rate and each amendment since has further accelerated

the drive for effective environmental protection. It will go onto argue that despite the

ferocious legislation and policy emerging a residual economic lag is still present,

tempering effective protection which requires a delicate balance to be struck. Worse still

is the enforcement of environmental law which significantly tempers effective protection.

In the beginning….

In 1957 the Community was born with the six initial members signing the Treaty

of Rome creating the European Economic Community1 from its name one can tell the

genesis was solely economic. Indeed Article 3 of the treaty stated the primary aim was

the establishment of a ‘common market’ in which the factors of production could freely

permeate national bulwarks. There was no explicit reference to environmental protection

and it is no surprise. Concerns at the time centred on the horrors of WWII and the utopia

economic expansion could provide to citizens. Environmental degradation had not

1
Rome also created EURATOM of course.
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manifested itself appreciably and economic growth was king. Despite the thick economic

hull some cracks do emerge in which an environmental widget could be driven through.

Article 2 while prescribing economic goals also calls for “the raising of the standard of

living and quality of life” among member states (MS). Wägengaur argues it shows the

“ambitions of the founding fathers went far beyond the establishment of a common

market” 2. Rehbinder firmly drives the widget through arguing, it is “reasonable to

interpret the Preamble and Article 2 of the EEC Treaty as including economic concepts of

environmental pollution”3. Although actions taken had to relate to the primary objective

of economic harmonization as defined by Article 3 because there was no express

provision for the environment. As such Article 100 and to a lesser extent Article 235

formed the jurisdictional basis of environmental legislation early on. Article 100

authorises the Council to issue directives for the approximation of MS law hindering the

establishment of the common market and Article 235 is similar but gives authority to the

Council where the “Treaty has not provided the necessary powers” to attain common

market goals. It is the wide reading of Article 2 that enabled Articles-100 and 235 to be

used for incidental environmental goals despite the original intention of facilitating

Article 3 goals. Despite criticism4 the Council grasped the creative interpretation of The

Treaty and proceeded to propose a range of directives on the environment. It must be

stressed that these were incidental to the overreaching aim of minimising market

Wägengaur, (1990) ‘The Single Market Programme and the Protection of the Environment’, in
Environmental Protection and the Impact of European Community Law, p16. Cited in: Andrew Jordan
Environmental Policy in the European Union (London : Earthscan, 2002) p 16
3

Rechbinder and Steward (eds) (1985) Environmental Protection Policy, Volume 2: Integration Through
Law- Europe and the American Federal Experience, p21 cited in Jordan Op. Cit p16
4

See Rehinder & Steward Op. Cit p16

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distortions and prior to the SEA unanimity voting was required (as opposed to qualified

majority voting) resulting in poor and slow environmental protection. Environmental

rules are a hindrance to the free movement of the factors of production due to disparities

across MS. Meaning lower standard jurisdictions offered producers a competitive

advantage. If a floor of standards is established the cost based competitive advantage is

marginalized and so is the market distortion. Nonetheless environmental legislation was

adopted and so the genesis of Community environmental law can be traced to the late

60s. In 1967 a Directive5 was adopted for a uniform system of classification, labelling

and packing of dangerous substances, a 1970 Directive6 on permissible sound levels of

exhaust systems of motor vehicles and another7 on limiting vehicle emissions and a 1972

Directive8 on vehicle emissions caused by diesel engines. These marked the first

Directives affecting the environment and all had their jurisdictional base in Article 100.

The first fifteen years shows there was no coherent basis for environmental legislation

and it was adopted in an ad hoc manor and reliant on Article 100 therefore incidental to

an economic objective. In total only nine Directives and one Regulation9 was adopted. In

its first fifteen years the EEC had made minute steps away from its economic base.

1972 – 1985 Environment Gains Momentum

Directive 67/548/EEC OJ No 196, 16.8.1967, p. 1

6

Directive 70/157/EEC OJ No. L42, 23.2.1970, p.16

7

Directive 70/220/EEC OJ L 76, 6.4.1970, p. 1

8

Directive 72/306/EEC OJ No. L190, 20.8.1972, p. 1

9

Jordan Op. Cit p18

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This period in the EEC’s history is perhaps the most remarkable for

environmental law because the Community still lacked a Treaty base and legally speaking

the situation was the same as in the first phase of our discussion but the results far

different. It was the Community’s Environmental Action Programmes (EAP) leading to

political discourse and ECJ jurisprudence which took further steps.

In 1972 the Summit Conference took place, the international community formally

recognised that the environment needed protection. As a result the Heads of States of MS

called upon the Community to give a blueprint for an official environmental policy and

the first EAP was formally approved by MS and the Council in November 1973.10 The

programme must be regarded as a quantum leap in Community environmental policy for

it was the beginnings of a coherent policy: objectives were set, principles stated and

priorities selected. More importantly it provided a base for Community action pertaining

to the environment still absent from the Treaty. Environmental action had become

somewhat legitimised. It is beyond the scope of this essay to detail each EAP11 but EAPs

set the principles, objectives and priorities and these that enabled the Commission and

ECJ to respectively legislate and adjudicate on matters of the environment. The 1st EAP

contained eleven principles but three are of paramount importance, the principles of:

preventative action, polluter pays and most importantly the Commission had authority to

act wherever “real effectiveness is attainable by action at Community level.”12 The

10

OJ No.c112 20.12.1973, p3
11

The EAP’s are policy, the intent of this essay is to concentrate on primary and secondary law and legal
discourse from the community’s adjudication bodies
12

Seventh General Report of the EC (Brussels, 1973), point 263 cited in Jordan Op. Cit. p19
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Commission was given real authority to act and international environmental law

principles identified.

Even after the EAP’s though economic concerns were still paramount as the Third

EAP adopted in 1983 accepts - originally “the central concern was that, as a result of very

divergent national policies, disparities would arise capable of affecting the proper

functioning of the common market.”13 In spite of this criticism of pre 1983 policy the

Community especially through the ECJ is further coming away from a solely economic

entity even if the reason for curtailing the four fundamental freedoms (goods, labour,

capital, enterprise) were veiled behind economic rationale - they still protect the

environment; motive is irrelevant it is the result that matters.

Cornelis Kramer14 in 1976 was the first manifestation (and enforcement) of the

principle of Sustainable Development (SD) in the EC. The question before the court was

if fishing quotas stipulated in a Convention constituted an Article 30 (now 28)

infringement; that is where they a quantative restriction on imports or had equivalent

effect. Article 30 facilitates the free movement of goods and is one of the fundamental

articles to facilitate the Treaty’s goals. The Court held that while in the short term quotas

may restrict production, the restrictions are needed to ensure a constant supply15. Clearly

a manifestation of SD in economic armour.

A seminal case for the future of Directives on the environment was heard in 1976

Commission v Italy16 and shows the ECJ’s willingness to evolve away from purely

13

OJ No.C46, 17.2.1983, p1
14

Cases 3, 4, 6/76, Cornelis Kramer and others [1976] ECJ 1279

15

Ibid, Para 56/50 of judgement

16

Case 91/79, Commission v Italy [1980] ECR 1099

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economic concerns despite no Treaty base. In defence of Article 226 infringement

proceedings concerning the non transposition of the Detergents Directive17 the Italian

government challenged inter alia the legitimacy of the EC’s competence concerning

environmental matters arguing the Treaty made no provisions for the environment.

Rejecting the argument it was held that Article 100 was the valid legal base for the

measure18 and the Directive was adopted “not only within the [Environmental Action

Programme]… it also comes under general programme for the elimination of technical

barriers to trade”19 and “[f]urthermore it is by no means ruled out that provisions on the

environment may be based upon Article 100 of the Treaty.” 20 While the ECJ did refer to

the EAP as a base for adoption the primary jurisdiction was the general programme 21 - a

purely economic instrument. Its rationale was also economic – differing environmental

standards could lead to competition being “appreciably distorted.”22 As one commentator

concluded the environment at this stage has “not yet constituted as a value independent

from market concerns, although its normative base had been established23.” Established

by the Court refusing to rule out Article 100 as the basis of environmental provisions.

Nonetheless, the evolution away from economic interests is progressing and the Court did

recognise environmental protection as an essential objective which can legitimately

17

Directive 73/404/EEC, OJ L 347, 17.12.1973

18

Para 8 of judgement
19

ibid
20

ibid
21

The General Programme cited in the case is defined in OJ C 76, 17/06/1969 p. 1

22

Para 8 of judgement
23

Yoichiro Usui, “Norm Evolution in EC Environmental Law”, Constitutionalism Web­Papers, ConWEB No. 
1/2002 available online: http://www.qub.ac.uk/pais/FileStore/ConWEBFiles/Filetoupload,5321,en.pdf
ID: 0521280 -8-

restrict freedom of trade even before the SEA gave it a Treaty base for doing so.

The 1983 ADBHU24 case is a colossal step forward. The question was to the

validity of the Waste Oils Directive25 but the facts are not important, what is important is

the court stated:

the principle of freedom of trade is not to be viewed in absolute terms but is

subject to certain limits justified by the objectives of general interest
pursued by the community26

and that “environmental protection … is one of the Community’s essential objectives.”27.

The Court had effectively held the four fundamental freedoms of the Treaty could be

restricted for environmental protection as long as the principles of proportionality and

non-discrimination were observed28. It cannot be understated how important this decision

was in moving the Community away from its economic base. The courts statements of

the law are incorrect; the treaty did not set out environmental protection as one of the

goals of the Community let alone a goal that could restrict its fundamental objectives.

What was shrewdly achieved was to influence the Intergovernmental Conference (IGC)

on the SEA in debate at the time and firmly declare that the ECJ wants environmental

objectives in the amendment. The Court indulged in a logical fallacy – of deciding what

the law ought to be not what it is,29 embarking on a teleological interpretation of the

Treaty and the purpose driving the teleology was environmental protection.
24

Case 240/83 ADBHU [1985] ECR 531

25

Directive 75/439/EEC
26

Para 12 of judgement
27

Para 13 of the judgement

28

Para 13 of the judgement

29

As Hartley points out – “This logic ... ignores the distinction between what the law ought to be and what it
is” T.C. Hartley, The Foundations of European Community Law (2nd ed. 1988) 78.
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Due to legal discourse like ADBHU and political discourse in the 3rd EAP as

mentioned above, between February 1983 and the adoption of the SEA in December

1985 over forty Directives, eight Decisions and ten Regulations were adopted by the

Council. It is important to stress that still no Treaty base had been provided. Compared

with its first fifteen years a 580% increase in legislative activity occurred in the

Community in just a two-and-a-half year period - an exponential increase. The total

number of instruments passed in the period 1972-1986 was 16130 – 120 Directives, 27

Decisions, 14 Regulations – in toto a 1610% increase. The environmental ship had

broken free of its economic anchor but the anchor posited a drag for the primary reason

that there was still no formal legal base Hildebrand puts it well, although many directives

were passed “their ability to prescribe behaviour roles, constrain activity and shape

expectations is limited because of the absence of an unambiguous legal foundation 31”.

Furthermore as will be argued below even when a base was established the anchor still

dragged due to the ECJ’s test of proportionality.

1985-1992 The birth of an Environmental Legal Base

The SEA inserted into the new EEC Treaty Title VII on ‘Environment’ (Article

130) in doing so it finally gave a legal foundation for environmental legal discourse in

the Community. The remedy of the ‘democratic deficit’32 and the acceleration of the

30

Jordan at note 29
31

Jordan Op Cit p25

32

The Community has been criticised for a lack of openness and lack of role played by the European
Parliament (an elected body) in passing legislation. The SEA went some way to remedying it. See generally
Catherine Hoskyns & Michael Newman, Democratizing the European Union: Issues for the Twenty-First
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completion of the internal market by the eve of 1993 also have positive bearing on

environmental law and a fundamental move away from purely economic goals. Article

100(a) and 100(b) for the harmonization of national law to peruse the accelerated goal of

an internal market with no frontiers, at first sight seems like the situation prior to the

SEA where environmental laws were seen as creating distortions which needed

harmonising. But in Article 100(a)(3) it is stated the Commission takes as a base a “high

level of protection” towards the environment in perusing Article 100 goals and 100a(4)

permits MS to provide more stringent protection. Article 100a makes it possible to use

majority voting for environmental matters as opposed to the slow unanimity procedure

and brings environmental voting adoption in line with competition law.

The ECJ grasped the legal base in its case law. In Peralta33 it held that the new

Article 130 could be applied to restrict the principle of freedom to provide services. In

Commission v Germany34 the court went as far as to day the Groundwater Directive 35

gave individuals environmental rights.36 And in another Commission v Germany37 case

the rights were extended further, holding that “where the directive is intended to create

rights for individuals, the person concerned can ascertain the full extent of their rights”38

and enforce them before a national court. What is significant about these two cases is that

the Directives litigated were adopted pre SEA and the ECJ is retrospectively using the

Century (Manchester University Press: July 2001), p75 onwards.

33

Peralta Case C-379/92 [1994] ECR I-3453

34

C-131/88 Commission v Germany [1991] ECR I-825

35

Directive 80/68/EEC OJ L 20, 26.1.1980

36

Para 7 of the judgement

37

C-361/88 Commission v Germany [1991] ECR I-2567

38

Para 15 of the judgement

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SEA to ‘read in’ environmental rights. The Commission too grasped the new provisions,

a limited survey39 of Directives adopted between July 1987 and August 1990 shows that

the new provisions were the legal base rather than the pre SEA Article 100 and 235.

Formally at least the environment is really gaining momentum but a little peering behind

the formalism leads to a mitigated conclusion.

Article 100a’s majority voting procedure is not used as frequently as one might

have expected and until late 1991 the Community’s environmental policy continued to be

contingent on a unanimous decision by the Council.40 The re-enforcement of the

principle of subsidiary is a step backwards because a measure can be challenged for

whom had better competence to act – the MS or Community? As Hildebrand notes41

there is significant potential laid down by the SEA but the provisions are abstract and

leave much room for manoeuvre. The next Treaty amendments took place at Maastricht

in 1992 and Amsterdam in 1996.

Treaty on European Union (TEU) and Treaty of Amsterdam (ToA)

The TEU integrated more environmental principles into the Treaty. It amended

Article 2 to include as one of the Community’s tasks the promotion of “sustainable and

non-inflationary growth respecting the environment” and in Article B of the Common

Provisions of The Treaty “economic and social progress which is balanced and

sustainable”. The Bruntland’s report idea of SD had gained a legal footing in the Treaty.
39

Jordan Op. Cit. p30

40

Jordan Op. Cit. p30

41

ibid p31
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More importantly is that environmental protection is placed on an equal footing with

economic objectives, Wilkinson points out this is an important symbolic change and

represents ‘greening’ of the Treaty.42 The ‘high level of protection’ inserted by the SEA in

Article 100a(3) is reaffirmed in new Article 130r(2). The Precautionary Principle is also

included in the same article but as a commentator points out 43 much like other Treaties

there is no definition of the term or even when it should apply. The SEA inserted Article

130r(2) in order to integrate the environment into other policy areas however after an

analysis of relevant EAP reports a study concludes the Commission “has not made great

progress in reforming its internal administrative procedures so as to put the principle of

integration into practice”44 as such the TEU amended Article 130r(2) to reinforce

integration and in an Annex to the Treaty45 reaffirmed this commitment.

Moving onto 1996 the ToA enshrined into a new Article 2 SD provisions and in

Article 3d promoted integration with a view of promoting SD but unlike previously

where it was tucked in the environmental section and ambiguous to scope, here it was

clear and stood as a prime objective. No longer was SD a “mere appendix to

Communities policies on economic integration”46 but “part of the constitutional values to

which the EU has consulted itself.”47

42

Jordan Op. Cit p38

43

Joel Tickner “Precautionary Principle” The Newsletter of the Science and Environmental Health Net May,
1997 - Volume 2, #4 Available online: http://www.pmac.net/precaut.htm
44

Jordan Op. Cit. p40

45

“Declaration on assessment of the environmental impact of Community measures” (Declaration 20)

46

D. Grimeaud, ‘The Integration of Environmental Concerns into EC Policies: A Genuine Policy

Development?’ (2000) 9 European Environmental Law Review 207, p216.
47

Yoichiro Usui Op. Cit. p51
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MS were also permitted to be ‘greener than the rest’ with the amendment of

Article 100a permitting them to impose more stringent environmental rules than the

Community. This provision was tempered though because States had to report to the

Commission on stricter rules and the Commission would investigate if they breached free

trade rules. Environmentalists themselves wanted the burden of proof in favour of the

applicant, however this was rejected at the IGC for ToA48 severely weakening the impact

of the provision. Other amendments also had impact but will not be analysed due to

constraints.49

The amendments to Articles 2 and 3 entrench environmental principles and

requirements unparalleled in Community history. No longer were environmental

provisions tucked away into their own Title and from its genesis in 1957 it is weighty

evidence the Community has evolved away from a sole economic base at least in a

formal sense but the impact is determined not by formality but the ECJ which sadly in

some cases exhibits economic drag constraining environmental expanse.

ECJ-Case law after TEU

The Crayfish50 is symptomatic of the problem in the ECJ’s case law – the

proportionality test. German law prohibited import of live crayfish in an effort to

48

Climate Network Europe, European Environmental Bureau, European Federation for Transport and
Environment, FoE Europe, Greenepeace International Europe, WWF (1995) Greening the Treaty II,
Utrecht: Stichtung Natuur en Milieu cited in Jordan Op. Cit p59
49

ToA inserted Article 191a giving public right to access information held by the Council of Ministers,
Commission and the European Parliament and the Qualified Majority voting procedure extended to all
aspects of environmental policy via amendment to Article 130s(2).
50

Case C-131/93 Commission v. Germany [1994] E.C.R. I-3303

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preventing native species contracting a disease. The Commission argued the measure was

disproportionate and less restrictive alternatives available for protection such as health

checks. As such Germany was in breach of Article 30 [now 28].51 The Court did not

dispute the fact that Article 36 [now 30] provides an exception for national legislation 52

but measures cannot be covered by Article 36 if aim can be achieved “just as effectively

by measures having less restrictive effects on intra-Community trade.”53 The German law

offended the proportionality test and was deemed in breach of Article 30 [now 28].54

Prima facie this is a solid argument if the aim can be achieved by less restrictive means

but as Notaro has pointed out the import ban was the only measure to guarantee zero risk

to native species and wonders “whether the Court has decided that the search for no risk

is unreasonable.”55 By the courts own reasoning in paragraph 18 of its judgement the ban

should have been held as an Article 36 [now 30] derogation not an infringement, but

economic concerns trumped. Even more fundamentally as Jans has argued 56 it is difficult

for important bans to pass the proportionality test because the burden of proof placed on

the MS is very high. The freedom to be greener than the rest enshrined in Article 100a is

being manoeuvred around by the proportionality test.

51

Para 5 of the judgement

52

Para 17 of the judgement

53

Para 18 of judgement
54

Para 24 of judgement
55

Nicola Notaro, “The New Generation Case Law On Trade And Environment” E.L. Rev. 2000, 25(5), 467 at
469
56

J. Jans, European Environmental Law, Kluwer (1996) at 218 cited in Notaro ibid
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The existence of harmonising measures also curtail the freedom. The Hedley

Lomas Case57 concerned the British refusal to grant export licenses to live animals

destined for slaughter in Spain on the grounds Spain was in breach of a Directive58 on

stunning on animals before slaughter. The court held recourse to Article 36 [now 30]

could only be invoked in the absence of harmonising measures; in this case there was.

The fact the Directive contained no monitoring procedure or penalties did not effect the

judgement.59 The Court effectively held that a MS can only control the environment

within its own borders similar with the GATT panel decision in the Tuna Dolphin case.60

GATT is an overwhelming economic body sadly the ECJ is exhibiting some of its

economic and jurisprudential theory on sovereignty.

The ECJ’s refusal to give standing for NGOs and societal actors to bring

proceedings for infringements of Community environmental law is a relic of the

economic base that is really constraining environmental protection. The Commission61 is

overworked with only a limited staff for investigating and dealing with infringement;

third parties and NGOs could transfer the burden. Despite this in the Greenpeace case62

both the CFI and ECJ refused standing under Article 230(4) to the NGO Greenpeace.

57

Case C-5/94 [1996] E.C.R. I-2553

58

Directive 74/577/EEC OJ 1974 L. 316. p10

59

Para 19 of the judgement

60

GATT panel held that a country can only control the consumption of a natural resource “only to the extent
that the production or consumption is under its jurisdiction” para 5.31of the judgement
61

Specifically Environment DG a branch of the Commission is overworked.

62

Case C-321/95 P Stichting Greenpeace Council v. Commission [1998] ECR I-1651

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Torrens rightly argues63 that in previous cases such as ERTA64 and Les Verts65 the ECJ

refused blind interpretation of Article 230 which would have produced an unjust result.

Further narrow economic interpretation of Article 230(4) is “anachronistic at this stage

[and] Community law has moved beyond that”66 particularly since free movement of

goods had been curtailed for environmental concerns long before there was a Treaty

base.

The critique presented here on the whole is on the fringes of Community

environmental law and a recent case only a month old illustrates the ECJ’s activism 67.

The formal legislative provisions are impressive but the question of effective protection

is a question of enforcement - any law is only as effective as its enforcement regime.

Enforcement

Under Article 211 it the Commissions responsibility to ensure Community law is

applied but it is often a formalistic exercise making sure MS statutes comply. If the

Commission is to fulfil its Article 211 duties effective monitoring of implementation is

63

Diana L. Torrens, “Locus Standi for Environmental Associations under EC Law – Greenpeace – A Missed
Opportunity for the ECJ” Vol. 8 Issue 3 1999 p339
64

Case 22/70 Commission v Council (ERTA) [1971] ECR 263

65

Case 294/83 Parti Ecologiste les Verts v. European Parliament [1986] ECR I-1368
66

Torrens Op. Cit p339

67
C-176/03 Commission v Council (not yet reported in OJ). The decision handed down on 13th Sep 2005
held the Community legislature may take measures relating to the criminal law of MS when that is
necessary for the achievement of an important Community objective, in this case a Directive concerning the
environment. [para 48] This is a momentous decision and will no doubt stir the political waters. The
Community simply put does not have the competence to harmonise the criminal law of MS indeed the
Court accepted that fact in para 47 of its judgement citing its previous decisions. The very fact the ECJ is
again infringing the Treaty and its own case law in an area fragile as criminal law which has ‘super-state’
ramifications all over it is testament to just how far the Community has evolved.
ID: 0521280 - 17 -

crucial. However, Hattan’s recent study points out “the monitoring and information

regime that exists for environmental matters is widely considered to be inadequate

68
particularly with non application cases” furthermore unlike with economic matters

such as competition, fisheries and customs there is no environmental inspectorate to

investigate breaches. In the competition field the Commission can carry out ‘dawn raids’

to gather information69 and issue fines for Article 81 and 82 breaches. Unlike with

economic concerns the environment has no such police esque powers and is reliant upon

incomplete national reports, an ad hoc compliant system and questions/petitions from the

European Parliament. The system makes it difficult to gather information about state of

application and it is hard “to ensure a consistent enforcement regime.”70 It is clear

environmental enforcement pales in comparison to competition. Due to lack of ‘teeth’ the

Commission have concentrated their efforts on ensuring transposition of Directives into

MS law to establish a proper frame work but as Kramer notes “even a piece of national

legislation that copies a directive word for word will remain a mere piece of paper unless

it is applied.”71 The application and enforcement of law is key, every positivist jurist

insists that for a legal system to be valid, it must be efficacious72. The EC environmental

regime is flirting with the boundaries of validity - its own reports show widespread non-

compliance. Directives adopted in the 1970s still pose continuing enforcement

68

Elizabeth Hatton, “Implementation of EU Environmental Law” Journal of Environmental Law; Sep 2003;
15; 3 274 at 274
69

Regulation 17/62 Article 14

70

Hatton Op. Cit. p274 at note9

71

L. Kramer, EC Environmental Law (Sweet and Maxwell 2000) p281

72

See “Socio-Legal Positivism and a General Jurisprudence”, Oxford Journal of Legal Studies, Vol. 21(1)
2001 p10
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problems,73 at the end of 2003 there were 88 cases of non timely transposition, 118 cases

of incorrect transposition and 95 cases of ‘secondary’ obligation infringements. 74 These

reports75 only base themselves on formal transposition one can conjecture the actual

enforcement problems are massively greater. In the absence of a competition esque

police powers, staffing and the ECJ refusal for NGO’s to gain standing the effectiveness

of the regime is contingent on the political will of the MS. The Commissions proposal76

to fulfil the third pillar of Århus on access to justice will alleviate some of these

difficulties but even it has its weaknesses77. This is not a satisfactory situation and the

Community must do more to move away from its economic base and force political will

by tougher enforcement.

Conclusion

It is plain to see the Community has evolved from its sole economic base at its

constitution in 1957. Prior to the SEA the ECJ was primarily responsible, with the EAP’s

providing the catalyst for normative discourse. When the SEA entered into force a Treaty

base was established and successive amendments since have furthered the legal

73

COM (96) 500 Para 6

74

Fifth Annual Survey on the implementation and enforcement of EU environmental law (SEC(2004) 1025)
75

Other reports EEA Report No 3/2005 http://org.eea.eu.int/documents/newsreleases/packageing_waste-en

shows widespread and the other Community annual surveys.
76

COM (2003) 624

77

The EEB (an NGO) have gone as far as to say about the Council’s third pillar proposal “the Council…
effectively limits access to justice and maintains the current status-quo in the EU” i.e. direct and individual
concern see http://env-health.org/a/1619 this was in relation to its first reading in the EP and it has been
adopted since without a second reading see OJ L 124 17.05.2005 p1-3
ID: 0521280 - 19 -

foundations. Despite this a residual economic lag remains and the question of effective

protection is a question of enforcement. The Community has formalistically greatly

advanced but its enforcement, it is respectfully submitted, is appalling. The Community

often cite lack of political will at MS level but there was a lack of will to remove

protectionist barriers to trade yet economic integration was effectively forced through

with a hard-line policy from the Commission and activist judges sitting on the ECJ.

When this failed hard targets were set in the Treaty’s not vague goals as with the

environment. The Community has moved away from its economic base and has evolved

a remarkable framework for environmental law but this framework needs to be enforced

for effective protection.

ID: 0521280 - 20 -

Bibliography
Andrew Jordan, Environmental Policy in the European Union (London : Earthscan, 2002)

Yoichiro Usui, “Norm Evolution in EC Environmental Law”, Constitutionalism Web-

Papers, ConWEB No. 1/2002 available online:
http://www.qub.ac.uk/pais/FileStore/ConWEBFiles/Filetoupload,5321,en.pdf

T.C. Hartley, The Foundations of European Community Law, 5th ed (Oxford University
Press 2003)

Joel Tickner “Precautionary Principle” The Newsletter of the Science and Environmental
Health Net May, 1997 - Volume 2, #4 Available online: http://www.pmac.net/precaut.htm

D. Grimeaud, ‘The Integration of Environmental Concerns into EC Policies: A Genuine

Policy Development?’ (2000) 9 European Environmental Law Review 207, p216.

Nicola Notaro, “The New Generation Case Law On Trade And Environment” E.L. Rev.
2000, 25(5), 467

Diana L. Torrens “Locus Standi for Environmental Associations under EC Law –

Greenpeace – A Missed Opportunity for the ECJ” Review of European Community &
International Environmental Law Vol. 8 Issue 3 1999 p339

Elizabeth Hatton, “Implementation of EU Environmental Law” Journal of Environmental

Law; Sep 2003; 15; 3 274

Fifth Annual Survey on the implementation and enforcement of EU environmental law

(SEC(2004) 1025)

L. Kramer, EC Environmental Law (Sweet and Maxwell 2000) p281 [I was unable to
obtain the latest addition as there were no copies in the library]