di Ludwig Kramer
Under the EU Treaties, the responsibility for protecting the environment is shared between the European Union and the Member States. As the Member States may, with regard to environmental measures that are adopted by the EU, adopt more stringent – but not less stringent – national requirements[1]Article 193 TFEU. and the EU policy shall aim at a high level of environmental protection[2]Articles191 and 114 TFEU., it is fair to state that the requirement to aim at a high level of environmental protection is an obligation for both the EU and its Member States.
The legislative frame.
Legislative measures with an impact within the EU.
In the area of natural resources – water, biodiversity, air quality and raw materials and waste – the EU has extensively legislated. The system of legislation is similar in all for areas: a basic legislative act lays down the definitions used in the sector, provides for basic administrative structures and determines the general objectives which are to be reached in the different sectors.
The water framework directive[3]Directive no. 2000/60 requested Member States to organise their water administration along the river basins within the EU. Member States which followed a different concept, had to align to the river basin concept and were also requested, where transboundary river basins existed, to cooperate with administrations from other member States or third countries, in order to reach the general objective of the directive, the favourable status of waters. Member States were obliged to set up river basin management plans and action plans to reach the directive’s objectives. A framework directive on marine waters contained similar objectives. To this framework were added specific legislative acts which aimed at the reduction of pollution on the one hand, at the improvement of water quality on the other hand.
In the waste sector, a framework directive fixed the principles which had to govern national, regional or local waste policy and evenlaid downanorder of priority for these principles. It requestedthe establishment of wastedisposal installations and declaredthe objective which the network of suchinstallations had to reach. Member States were requested to draw up waste prevention and waste treatment plans and to update them at regular intervals. Specific legislative acts on waste installation, the movement of waste and on specific waste streams completed the waste framework legislation.
As regards raw materials, there is no coherent and active EU policy or legal framework until now. Raw materials are considered to be “goods” which come under the general free trade provisions of the EU Treaties, as regards trade in raw materials within the EU as well as regards imports and exports. The EU did not wish to fully realise, until now, that a comprehensive and serious waste prevention policy requires the taking of measures on raw materials, because any material, before becoming waste, was raw material. The EU’s recent commitment to a circular economy is still in its infancies and has not yet led, as regards raw materials, to tangible results.
The EU legislative acts on the protection of biodiversity do not contain, in their title, the term “framework”. Yet, the EU approach in this sector is similar to that of water and waste. A directive on natural habitats and wild fauna and flora which, to a good extent, integrates the directive on wild birds, determines that fauna and flora species and their habitats are the common heritage of the EU. It aims at a favourable conservation status of protected species and of habitats, asks Member States to identify special areas of conservation which must form an integrated EU network. Member States are then obliged to take the necessary conservation measures, in order to reach and maintain the favourable conservation status. The habitats and birds directives are supported by a number of legislative acts which also aim at the conservation of biodiversity.
As regards air quality, the efforts of the EU started in 1980 and were gradually extended. At present, a directive of 2008 established binding air quality concentration limits for a number of pollutants[4]The fixing of contration values for a number of heavy metals wasprevented after the lobbyoing from economic operators, see.. It asked Member States to install measuring stations and adopt air quality plans, when the concentration values were exceeded or at risk of being exceeded. Shorter air quality problems had to be tackled by action plans. The overall objectives oriented themselves along the recommendations of the World Health organisation, while admitting that full compliance with them was not yet achievable. The directive is supported by a number of other legislative acts which aim at the reduction of air quality.
In the area of air quality, the EU has not really followed the principle of environmental policy of fighting environmental impairment at source, by fixing emission limit values for pollution sources. successful lobbying by economic interests is the main reason for this. As regards large and medium industrial installations, the use of the best available technique is required for air – and water – emissions. Only for motor vehicles emissions, limit values were fixed, though these limits were not proportional to the increased emissions due to more vehicles and to traffic. CO² emissions from passenger cars – not for trucks – were fixed as average values for car fleets, not for the individual vehicle.
Legislative measures with an impact in non-EU countries.
All the above-mentioned legislative acts concern the situation within the EU. There are extremely few legislative measures taken by the EU which might affect the management of natural resources outside the EU. In the water sector, the river basin management plans for international rivers may also affect non-EU countries in Europe, as the joint elaboration and implementation of such plans may have repercussions on the management of waters in the non-EU State. Also the plans adopted under the marine waters directive 2008/56 might influence the management of marine waters of non-EU European countries. Water-related measures for countries outside the European continent do not exist.
In the waste sector, the export of EU-generated waste to other countries may have an influence on the management of waste in such countries. The EU export provisions of waste are based on the prior informed consent principle: such exports may only take place, where the importing third country was informed of the intended shipment and has explicitly agreed to it. There are no requirements as to the availability and capacity of waste recovery or treatment installations in third countries. Shipments of waste for disposal to third countries are almost altogether forbidden.
Also in the biodiversity sector, the main impact on the management of species and habitats in third (non-European) countries is indirectly ensured by trade restrictions. Such restrictions exist for endangered species such as elephants, rhinos, apes, whales, seals and other species. With regard to (tropical)wood, the EU concluded a number of bilateral agreements with developing countries which commit themselves to allow the export only of such wood which comes from sustainable production. Also biofuels may only be imported into the EU, where it complies with a number of criteria for sustainable production. In the fisheries sector, the EU concluded a number of bilateral partnership agreements with developing countries which grant access to the fishing grounds against financial support of setting up an improved and modernised national fisheries infrastructure and related measures.
In the air quality sector there are no EU legislative measures which affect the management of air quality in non-EU countries. Of course, though, air pollution in one EU country may affect the air quality in non-EU countries and, hence, lead to management measures in that third country. The acid rain which heavily affected Scandinavian countries in the 1970sand 1980s is an early example of such a phenomenon.
All the measures mentioned with regard to third countries suffer from the problem that the enforcement in the third countries of the measures taken is poor. The sustainable production of biofuels is controlled by private organisations which are certified by the EU Commission, but the monitoring has limited effects. The same applies to the partnership agreements in fisheries or the actual waste treatment and disposal in third countries. Overall, the EU measures share the problem of the enforcement of international environmental agreements at national level: almost all depends on the political good will of the third country to protect its environment and its natural resources.
