EU Environmental Law3

ACTORS, INSTRUMENTS,
DECISION-MAKING PROCEDURES:
ACTORS
1
The main actors of the EU environmental

policy are:
1 . the EU Institutions…
2 . …but with an input coming from:
a) national governments;
b) other national actors.
RESD - Environmental Law and Regulation - Dr. M. D'Angelosante

ACTORS: THE EU INSTITUTIONS:
THE EU COMMISSION
2
According to art. 17 of the TEU and to the EU Treaties in

general, the EU Commission has in particular the following
tasks regarding the environmental policies:
1. to make proposals (for new environmental legislation);

2. to ensure that the provisions of the EU Treaties and
the measures taken by the institutions are applied;
3. to formulate opinions and recommendations;
4. to participate in the shaping of measures where the
Treaty so provides.
THE EU COMMISSION: administrative structures
3
1. The Commission consists of

Commissioners coming from the
Member States and appointed for 5
years by the Council;
2. …its President is appointed by the EU
Council with the approval of the EU
Parliament...
ACTORS: THE EU INSTITUTIONS: THE EU COMMISSION:
the competences of the administrative structures
in environmental matters
4
Environmental matters are mainly

the responsibility of the
Directorate-General for the
Environment (DG ENV).
THE EU COMMISSION INITIATIVES
5
1. The Commission has the exclusive right to initiate new

environmental legal measures at EU level: never put limits to
such actions;
2. the objectives, principles and priorities of EU action have
been laid down in environmental general action programs:
the action programs are completed by working programs
which the Commission publishes every year;
3. moreover the Commission submits from time to time action
programs for specific sectors;
4. more general communications which the Commission submits
are presented as green, white or strategy papers, which
normally do not provide for specific legislative measures.
SUGGESTIONS FOR
NEW LEGISLATIVE MEASURES
6
Suggestions to take initiatives for new legislative measures can

come also from other actors (though formally the initiative is
under the Commission’s competence):
1. From the EU Institutions:
a) the EU Council;
b) the EU Parliament;
2. from outside the EU Institutions:
a) the Member States;
b) international activities (such as new or existing
environmental conventions);
c) lobby groups, researchers;
d) environmental organizations, or other origins.
ACTORS, INSTRUMENTS, DECISION-MAKING PROCEDURES:
THE RELATIONSHIP BETWEEN
THE EU COMMISSION AND THE MEMBER STATES
IN ENVIRONMENTAL MATTERS
7
1. Art. 192 p. 4 of the TFEU establishes that the

Member States shall, as a rule, implement the
measures decided at EU level…
2. …as a consequence most of the EU’s environmental
legislation is adopted in the form of directives,
which are addressed to Member States, which in turn
have to transpose them into national law…
3. …in this framework the EU Commission has the task
of ensuring that the EU environmental directives
(and regulatios) are properly applied.
THE EU COMMISSION TASKS REGARDING THE
ADMINISTERING OF THE «Union Aquis» (1)
8
These tasks, attributed to the EU Commission by the

different environmental directives or regulatios, are
the following:
1. the collection of national legislation which was
adopted in pursuance of the EU provisions;
2. the collection and comparison of national reports on
the transposition and implementations of directives
and the publication of EU implementation reports;
3. the collection and comparison of national clean-up
plans or other plans for specific sectors or plants…
9
4. exchange of experience concerning

problems with the application of
environmental measures;
5. information on new scientific and
technical developments ;
6. elaboration of implementation measures;
7. administration of funds…
10
8. exchange of data;
9. participation in international
discussions;
10. information given to the
public.
THE EU ENVIRONMENTAL AGENCY (EEA)
11
1. The EEA was created in 1990 but only became operational in

1993;
2. it has the main tasks of collecting, processing and
distributing information about the EU environment and
publishing at regular intervals a report on the state of the
environment;
3. it is headed by an executive director appointed by the
management board, which in turn is composed of Member
States’s representatives, two Commission representatives,
two scientific experts appointed by the EU Parliament and
non-EU States representatives.
THE EU PARLIAMENT (main tasks)
12
One of the main tasks of the EU Parliament in

Environmental matters is to express opinions on
proposals for directives or regulations regarding:
1. general environmental questions;

2. environmental questions of a more technical nature;
3. agricultural
and regional matters, the internal
market or other policies related to environmental
matters.
THE EU PARLIAMENT (other tasks - 1)
13
1 . A c c o r d i ng t o a r t . 2 2 5 o f t h e T F EU , i n t r o d u c e d i n t o
the EC Treaty in 1993, the EU Parliament has the
right to require, with the majority of its
component members, that the Commission submit
a proposal for a directive or a regulation;
2. according to art. 192 p. 3 of the TFEU the general
environmental action programs have to be adopted
by a joint decision of the Council and the EU
Parliament (being binding since the 7th).
THE EU PARLIAMENT (other tasks - 2)
14
1 . The EU Council frequently discusses

proposals from the Commission before the
EU Parliament ;
2 . moreover , as since 1999 (the Amsterdam
Treaty ) the co-decision procedure of art. 194
of the TFEU applies in almost all cases , the
legislative influence of the EU Parliament is
progressively increasing …
the Economic and Social Committee and the
Committee of the Regions.
15
1. The Economic and Social Committee (arts. 301 et seq. Of

the TFEU) represents the different non-governmental
interests within the EU; it can express opinions
addressed to the EU Parliament, Council or Commission.
2. The Committee of the Regions (arts. 305 et seq. of the
TFEU) is composed of regional and local authorities and
may apply to the ECJ where it is of the opinion that
certain measures interfere with its prerogatives (art. 263
p. 3 of the TFEU); it can express opinions addressed to
the EU Parliament, Council or Commission.
THE EU COUNCIL (main tasks )
16
IN ENVIRONMENTAL MATTERS,
THE COUNCIL NORMALLY MEETS
THREE TIMES
UNDER EACH PRESIDENCY,
WHICH CHANGES
EVERY SIX MONTHS.
ACTORS, INSTRUMENTS, DECISION-MAKING PROCEDURES:
THE EU COUNCIL
(institutional co-operation
with other Eu Institutions)
17
1. Institutional cooperation between the Council and the

Commission generally occurs since the Commission has to
explain and defend its proposals for legislation before the
Council.
2. Institutional cooperation between the Council and other
institutions, in particular the EU Parliament, pratically
does not exist in environmental matters, though the
increasing number of codecision procedures has
progressively led to more organizational contacts.
3. In recent years the EU Commission, Parliament and
Council use to meet in ‘trilogue-meetings’ as to simplify
the legislative procedure.
the European Court of Justice (ECJ).
18
The ECJ (and the Tribunal of first

instance, at present named General
Court) has the main task of ensuring
that “the law is observed” in the
interpretation and application of the
environmental Treaty provisions and
secondary legislation (art. 19 of the
TEU).
ACTORS: THE EU INSTITUTIONS: the General Court
(GC, known as Tribunal or Court of First instance
prior to the Coming into force of the Lisbon Treaty) .
19
The division of work between the ECJ

and the GC is decided by art. 256 of
the TFEU. At present the GC decides
in particular on the applications
from individual persons and in
competition matters.
INSTRUMENTS: general and political instr.:
general remarks (1)
20
1. The first express chapter on environmental policy was introduced in
the EC Treaty in 1987…
2. in environmental matters a number of instruments were developed
which are not detailed in the central provision of art. 288 of the
TFEU;
3. in this framework regulations and directives can only be adopted
by: a) the EU Parliament and the Council jointly (according to arts.
192.1 of the Tfeu for environmental measures, 114 for measures
which have significance for the internal market and art. 192.3 for
the adoption of environmental action programs); b) the Council
alone (in particular under art. 192.2); c) the Commission [only
where it has expressly been authorized by the Treaty or secondary
EU law (arts. 290 and 291 of the Tfeu), for instance to take account
of environmental scientific or technical matters]…
general remarks (2)
21
1. The Commission also has the monopoly of initiating legislative
measures for environmental regulations and directives…
2. in these cases the Council can only amend a Commission proposal
unanimously (art. 293 of the Tfeu);
3. …in implementing environmental policies the Commission is
normally assisted by a Committee…
4. in cases of divergency between the Committee and the
Commission, the latter cannot take the decision;
5. regulations, directives and decisions must “state the
reasons on which they are based” (art. 296 of the Tfeu)
(this is the aim of the recitals which precede the
different texts and are used by the ECJ for the
interpretation of the provisions).
regulations (1)
22
1. In environmental matters the EU mainly acts in the

form of directives: regulations are exceptional and are
normally adopted when uniform provisions are
necessary, since regulations shall be binding in their
entirety and directly applicable to all member States…
2. for instance regulations are adopted: 1) to set up a
specific administrative structure (such as the Eu
Environmental Agency), an instrument (such as Life +)
or a fund (such as the Cohesion Fund) or to uniform
procedures or structures; 2) to transpose obligations of
international environmental conventions into EU law.
regulations (2)
23
However, in environmental matters,

several regulations require an action
by member States (such as the
designation of competent authorities)
or are not binding (such as those
providing that member States may do
something).
regulations (3)
24
1. Finally, environmental regulations usually do not

outline details of sanctions which apply in case of
violation of the regulation itself…
2. in fact, whether the sanction is criminal,
administrative or civil is left to the discretion of
member States…
3. the ECJ only requires that national sanctions are
proportional, dissuasive and a deterrent and
correspond to sanctions which are pronounced in
similar cases under national law.
directives (1)
25
1. Directives are the most frequently used instruments in EU

environmental policy…
2. …moreover environmental directives tend to be of a
general nature and not detailed (such as often happens in
other sectors)…
3. …directives address Member States, while private or legal
persons cannot be obliged by a directive (even though they
can acquire rights from a directive in those cases where a
privision in a d. is sufficiently concrete, precise and
unconditional and the Member State has not transposed it
completely or correctly – direct effect doctrine)...
directives (2)
26
1. Member States have to transpose the provisions of a d.

into national law for the whole territory of the State
deciding the way to do so…
2. however the provisions of a d. which exclusively
address the administration (for instance those
requiring it to send reports to the Commission) do not
need to be transposed…
3. …finally directives do not become obsolete with time,
because, since they are legal acts, they need to be
repealed expressly (normally with the adoption of a
new d.).
decisions
27
1 . Decisions are rather numerous in EU

environmental policy;
2 . the most frequent kinds of d. in EU
environmental policy are:
- d. to establish an environmental body,
- d. to grant financial assistance for
environmental projects.
recommendations
28
1. According to art. 288 of the Tfeu, Commission or

Council recommendations have no binding force…
2. …as a consequence they play a very limited role in
EU environmental policy;
3. the most frequent kinds of Council r. in EU
environmental policy regard the reuse of waste
paper and coastal zone management…
4. …while the most frequent kinds of Commission r. in
EU environmental policy regard birds or
environmental agreements.
communications
29
1. Communications which are not expressly provided

for in the EU Treaty, are not legally binding;
2. they are sent by the Commission to the other
institutions;
3. since the beginning of the ‘90s, the number of
communications on environmental matters has
increased;
4. Communications may be accompanied by a draft for
a Council resolution, directive or regulation.
action programs
30
1. EU environmental a.ps. have been developed since the
‘70s mainly in reaction to the absence of an express
legal basis for environmental measures in the EECT…
2. …however, when such specific provisions were
introduced in ‘87, the practice was maintained;
3. at the beginning a.p. were, legally, communications
from the Commission to other EU institutions, setting
out for a period the objectives, principles and
priorities of the EU environmental policy;
4. since 1993 they have to be adopted by way of a joint
decision by the EU Parliament and Council (art. 192.3
Tfeu), which is binding.
resolutions
31
1. The European Treaty does not contain any provision

on resolutions;
2. resolutions are political statements adopted by the
EU Council or Parliament;
3. resolutions often constitute the Council or
Parliament’s reaction on a Commission
communication;
4. resolutions usually give political or legal orientation
to the Commission, but are of a political and not a
legal nature.
environmental agreements (1)
32
1. Environmental agreements are agreements by which

stakeholders undertake to achieve pollution
abatement or the environmental objectives set out
in art. 191 of the Tfeu;
2. However, such agreements are not mentioned in art.
288 of the Tfeu…
3. …and cannot regulate substantive parts of the EU
environmental policy, as they are reserved for the
instruments listed in art. 288 of the Tfeu…
33
1 . For the reason mentioned in the previous

slide, the European Commission declared
(COM 561/96 and 412/02), for instance ,
that it could only make not-binding
environmental agreements at the EU level;
2 . moreover provisions for the making of
such agreements and their follow up are
not clear.
34
1 . As regards the environmental agreements

at national level, Member States are free
to act as they consider appropriate …
2 . …as a consequence , to what extent
Member States might feel bound by an
agreement produced at EU level, and
abstain from introducing legislation , is a
political decision.
tripartite contracts and agreements
35
1 . T r i p a rt i t e c o n t r a c t s a r e c o n t r a c t s b e t w e e n t h e
E U , a M e m b e r S t a t e a n d r e g io n a l o r l o c a l
a u t h o r i t ie s i n d i r e c t a p p l i c a t io n o f b i n d i n g
s e c o n d a ry E u l a w ( r e g u l a t io n s , d i r e c t i ve s o r
d e c i s io n s ) : i n t h is c a s e a c l a u s e i n t h e c o n t ra c t
that the State alone is responsible for the
implementation of EU legislation is necessary.
2 . T r i p a rt i t e s a g r ee me n t s a r e s u c h c o n t r a c t s
outside a binding community framework.
INSTRUMENTS: instruments to influence
the behaviour of undertakings and individual persons
36
1. Eu law contains a number of provisions which aim at

influencing the behaviour of undertakings or
individual persons regarding the environment;
2. these provisions normally address Member States
asking them to transmit the message of the necessity
of a better environment, through their national
provisions, to undertakings or individual persons.
3. The most important of the instruments to influence
the behaviour of undertakings and individual persons
will be listed and described in the following slides…
the behaviour of undertakings and individual persons:
OBLIGATION OF NOTIFICATION/INFORMATION
37
1. In a number of cases, private persons are obliged to

notify the authorities of a Member State of a certain
activity or practice: for instance, persons who intend
to put new chemical substances on the EU market
have to notify public authorities of their intention ad
submit certain documents referring to the tests of
that substance;
2. all the obligations for information/notification are
intended to inform the authorities responsible in due
time, in order to allow them to take appropriate and,
if necessary, preventive action.
AUTHORIZATION (1)
38
1. Authorization is organized in very

different ways in Member States…
2. …as a consequence it is usual that Eu
legislation limits itself to requiring that
certain activities have an environmental
authorization and to setting out
conditions for this authorization.
AUTHORIZATION (2)
39
1 . It is possible, for instance, to distinguish

the following kinds of a.:
a ) a number of new installatios needs an a.
for operating (such as in the waste
sector);
b ) a second area deals with the a. to impair
the environment (such as the discharge of
waste-water)…
INTERDICTION
40
1. EU e n vi ron me n t a ll y rel e va n t int e rdict ions

ha ve be e n p ronu nce d e ss e nti a l l y i n t he
p rodu ct - r e l a t e d l e g isl a t ion (f or ins t a nce i n
s ome di re ct i ve s / re g u l a t ions o n che mica l s ) ;
2 . f u rt he r e l e m e nt s e x i s t i n E U s e conda ry l a w
u nde r t h e s o - ca ll e d s a f eg u a rd cl a u s e , which
g ive s t h e p os s ibilit y o f t e mp ora ril y p rohib it ing
a p rodu ct e ve n t hou g h it co mp l ie s with E U
re qu i re me n t s .
OBLIGATION TO ACT
41
1. Obligations to act can concern, for

instance, obligations to keep
registers, to measure emission, etc.;
2. However, at EU level sanctions are
never provided, because they are
left to national legislation.
information, appeals, warnings
42
1. Eu environmental law contains numerous appeals

to citizens to behave in a way which is
environmentally beneficial, for instance because
the Council believes that there is a sharing of
responsibility at global, community, regional,
local and personal level;
2. since 1992 the EU has tried to re-educate
consumers’ and users’ behaviour;
3 . H o w e ve r , g e n e r a l l y t h e e f f e c t s o f E U a p p e a l s a r e
not so important.
financial assistance
43
1. Until now, no EU provision has

provided for financial advantages for
environmentally ‘friendly’ products;
2. on the other hand, Member States
are afraid of competitive
disadvantages.
subventions
44
1. National subventions (State aid) are in principle

prohibited (art. 107 of the Tfeu), but in practice frequent:
the conditions under which the Commission normally
considers environmental aid compatible with the Treaty
generally depend on the relationship between the entity of
the aid and the size of the enterprise concerned;
2. EU subventions are particularry granted under the
Structural Funds (aimed at balancing the situation of
economically disadvantaged regions) and the Cohesion
Fund (now integrated into the Regional Fund System, with
the consequence that the sums available are no longer ear-
marked for specific projects).
tradable certifications
45
1. Environmental certificates are used as ‘tokens’,

which, against payment, are issued by the public
authorities and give the right to input into the
e n v i r o n m e n t t h e qu a n t i t y o f p o l l u t a n t s i n d i c a t e d
by the token (the payment can for instance be
used to cover compensation measures); these
certificates are tradable;
2. in 2003 the EC adopted a directive on tradable
emission permits for greenhouse gases /
allowances for emitting CO2.
decision-making procedures:
elaboration of a legislative measure:
the Commission proposal (1)
46
1. The Commission has a monopoly on taking initiatives for

legal action;
2. consultations with Member States generally start with a
first draft of a directive, followed by bilateral discussions
with the most important Member States; moreover
multilateral discussions between the Commission’s
administration and Member States’ officials take place, in
which the States are asked to designate experts;
3. furthermore discussions with organizations from trade
and industry and environmental organizations take place.
the Commission proposal (2)
47
1 . S i nc e t he b e g i n ni n g o f 20 0 3 , t h e C o m m i ss i o n
h a s e s t a b l i s h e d a n i m p a c t a s s e s s m e n t p ro c e s s :
f o r ne w l e g i s l a t i ve p ro p o s a l s , a n i m p a c t
a s s e s s m e n t i s m ad e , r e s e ar c h i n g th e e c o n om i c ,
s o c i a l an d en vi ro n m e nt a l i m p l i c at i on s o f t h e
f ut u r e p r o p o s a l , a nd a l so t h e e xa m i n a ti on o f
alternatives;
2. finally, the official Commission proposal is published
as a COM-document, but only in exceptional cases in
the official Journal of the EU.
decision-making procedures: elaboration of a legislative measure:
EU Parliament, Economic and Social Committee,
Committee of Regions (1)
48
1. The Commission’s proposal is transmitted to the EU

Parliament and the Council, which passes the text
to the Economic and Social Committee and the
Committee of Regions;
2. the Parliament adopts a legislative resolution;
3. the Committees give their opinion;
4. then the text which has been adapted goes to
Parliament, where amendments to the draft opinion
may be tabled: the opinion is voted and, after its
adoption, published in the Official Journal.
decision-making procedures: elaboration of a legislative measure:
EU Parliament, Economic and Social Committee,
Committee of Regions (2)
49
The Parliament is of the opinion

that, as it is an elected body,
all amendments to proposals
should be accepted by the
Commission.
Council procedure
50
1 . T h e c o - d e c i s i o n p r o c e d u re i s c o m p l i c a t e d a n d c a n
hardly be called a procedure in which citizens have much
input;
2. it is aimed at giving more influence to the EU Parliament,
the only elected EU institution, without significantly
reducing the decision-making power of the Member States
who met in Council;
3. it i s t h e n o r m a l p r o c e du r e f o r d e ci s i on s i n
e n vi r o n me n t a l m at t e r s , e ve n t h o u gh a r t . 1 1 o f
t h e T f e u r e q ui r e s t h a t e nv i r o n me nt a l d e c i si o n s
a r e t a k e n i n t o co n s i de r a ti o n w h e n m e a s u r e s i n
other sectors are adopted.
the choice of a legal basis:
general principles (1)
51
1. The choice of a legal basis of a legislative act is of

importance;
2. however, sometimes such a decision also seems to be
influenced by political considerations;
3. the ECJ stated that the choice for the legal basis for an
EU measure is not left to the discretion of the EU
institutions, but has to be based on objective criteria;
4. the ECJ is of the opinion that, when a measure pursues
two objectives, which have the same weight, preference
has to be given to the legal basis that ensures greater
participation of the EU Parliament.
52
1 . Whe re t wo or more obj e ct ive s of an

e nviron me n t a l me a s ure ha ve a dif f e re n t
e mp h a s is , th e EC J ap pl ie s t h e the ory o f t he
“ce nt re o f g ra vit y ”;
2 . f or in s t an ce : whe n t he main e mp ha s is is p la ce d
o n e n s u ri n g t he f re e mov e me nt o f g oo ds , a rt .
114 o f t h e T f e u i s t h e a p prop ria t e l e g al ba s is ,
e ve n i n ca s e s whe re t he me a s u re also aims ,
s e con dl y , a t t he p rot e ct ion o f t he e nvironme nt .
53
1 . The theory of the centre of gravity seems to

give good results in most cases ;
2 . however, it also raises a number of problems
because , for instance , it is not always clear
whether the objective of the measure
concerned is the protection of the
environment or the achievement of the
internal market and the free movement of
goods .
54
For instance, if the theory of the centre of

gravity is to be taken seriously, many
measures regarding both the internal
market and environmental protection
should be based on art. 192 of the Tfeu
alone, since their primary objective is the
protection of the environment.
55
1 . The matter is that the theory of the centre of

gravity of a specific measure is not as clear
as it might appear;
2 . for instance often , in the procedure to adopt
a legislative measure , the Commission and
Council have a different point of view about
the primary objective of that measure , and
this different point of view could emerge
from the adopted legislative act.
waste (1)
56
1. Another problem is the legal basis for waste measures:

waste is a physical object capable of being tradable
between Member States, but also of representing a threat
for the environment;
2. international legislation has started to differentiate
between waste destined for recovery and waste destined
for final disposal, on the basis of their different market
value;
3. however, the ECJ now believes that waste is simply the
subject of commercial transactions and that in practice it
is impossible to differentiate between recoverable and
not-recoverable waste.
waste (2)
57
Although waste is a product, the ECJ

has established sometimes,
applying the theory of the centre of
gravity, that measures on waste are
primarily aimed at environmental
protection .
waste (3)
58
M o r e o v e r t h e Ad v o c at e G e n e r a l h e l d t h at w a s t e
d i re c t i v e s c o n c e rn i n g s p e c i fi c i te m s o f w a s t e o r
w a s t e f ro m s p e c i f i c i n du s t r i a l s e c to r s a r e to b e
b a s e d o n a r t . 1 1 4 o f t h e T fe u , s i n c e i n su c h c a s e s
t h e c om p e t i ti ve e l e m e n t i s d o m i n a nt ; i n
c o n t r a s t , w a s t e me a s u r e s re g a r di n g t h e p r o b l e m
o f w a s t e a r e g e ne r a l l y b a s e d o n ar t . 1 9 2 o f t h e
T f eu , s i nc e t he i r primary o b j e c ti v e is
environmental protection.
waste (4)
59
H owe ve r , i n con cl u s i on the re i s n ot ye t a cl e ar ,

convi n c i n g wa y t o cl a s s if y wa s t e - rel a t e d
me a s u res u n de r e it he r a rt . 114 o r 19 2 o f t he
T f e u : t he C ou ncil a nd E C J g e ne ra lly f a vou r a rt .
19 2 , a n d a ls o t he E U P a rl ia me n t … n o l ong e r
ha vin g pa rt i ci p a t ion rig h t s u n de r a rt . 114 t ha n
u nde r a rt . 19 2 , us u all y p us h f or the a p pl ica t ion
of a rt . 19 2 .
general framework
extended to different sectors
60
The Council’s practice as to the choice of legal basis may be summarized

as follows:
1. measures of general nature are based on art. 192 of the Tfeu;
2. nature conservation measures are based on art. 192 with some
exceptions (such as the ban on the trade of seal producst);
3. product measures are based on art. 114 with some exceptions (such as
the use of genetically modified micro-organisms);
4. water measures are all based on art. 192;
5. air pollution measures are based on art. 192 with some exceptions
(such as the composition of petrol and gas);
6. product related noise measures are based on art. 114 with some
exceptions (such as the measures on measuring noise);
7. waste measures are based on art. 192 with some exceptions (such as
the packaging of waste).
.
the different legal basis:
measures under art. 192.1 of the Tfeu
61
1 . Legal decisions under art. 192.1 of the Tfeu
are taken by the Council and Parliament
jointly (ordinary procedure such as for
anctions under art. 114);
2 . the consultation of the Economic and Social
Committee and the Committee of the regions
is compulsory ;
3 . the Council and Parliament must be in
possession of a proposal by the Commission .
measures under art. 192.2 of the Tfeu
62
Art. 192.2 establishes a special

legislative procedure where the
role of the Council prevails over
the role of the Parliament
(unanimous decision of the Conuncil
under a proposal of the Commission and
after consutlting the Parliament and
Committees)…
decisions under art. 192.2 of the Tfeu (1)
63
1 . Art. 192.2 is an exception to art. 192.1 and

has therefore to be interpreted narrowly;
2 . according to this procedure, the EU
Parliament, Committee of Regions and
Economic and Social Committee are only
to be consulted ;
3 . moreover the EU Parliament has no right
of co-decision.
decisions under art. 192.2 of the Tfeu (1)
64
The environmental decisions under art. 192.2 of

the Tfeu are those related to:
1 . Fiscal provisions ;
2 . Town and country planning and land use
(with the exception of waste management );
3 . quantitative management of water resources ;
4 . Energy matters .
Decisions on Programs, art. 192.3 of the Tfeu
65
Art. 192.3 of the Tfeu provides

for ordinary legislative
procedure as regards the
adoption of General action
programs.
measures under art. 192.5 Tfeu (2)
66
It is possible to decide on either a temporary

derogation for a specific Member State or
financial support from the EU for that State,
on the following conditions :
a ) request from a Member State that some
measure costs are disproportionate ;
b ) the costs must be deemed to be
inappropriate for the public authorities .
decisions on international co-operation (art. 191.4 of the Tfeu)
67
1. Art. 1 9 1 . 4 o f th e T f eu g i v e s t h e E U t h e
competence to c o nc l ud e i nt e rn a ti o n a l
e n vi r o n me n t a l a g re e m e nt s , w h i c h , a c c o rd i ng t o
a r t . 2 1 6 o f t h e Tf e u , a r e t h e n b i nd i n g o n t h e
i n s t i t u ti o n o f t h e E u a n d o n t h e M e m b e r S t a t e s ;
2. Art. 218 of the Tfeu provides that the Council appoints
a “negotiator”, which may be the Commission or the
Member State that hold the Presidency of the Council;
3. Member States also participate in the negotiation of
agreements at international level.
decisions based on other Treaty provisions
68
1 . E U ac t s a f fe ct i n g t h e e n vi r o n m e n t m a y b e b a s e d
o n T r e a ty p r o v i s i o n s d i ff e r e n t f r o m a r t s . 1 9 1 a n d
192 of the Tfeu;
2 . t h i s a p p l i e s t o t h o s e e n vi r o n m e n ta l p r o v i si o n s
w h e r e t h e “ c e n t re o f g r av i t y ” li e s i n a p o l i c y
a r e a d i f f e r e n t f r o m e n v i r o n m e n ta l p o l i c y ;
3. the most relevant provisions are those listed in
the following slides…
(agricultural sector) (1)
69
Art. 43 of the Tfeu provides that the

Council and Parliament, in
working out and implementing the
common agricultural policy, adopt
legislation by the ordinary
legislative prodedure.
(agricultural sector) (2)
70
For instance all legislation on agricultural
pesticides is now to be based on art. 43
of the Tfeu since this provision prevails
over art. 114 of the Tfeu (cointaining
many derogations to the ordinary
legislative procedure, for example due
to environmentaal reasons): this is
accepted for the placing of pesticides on
the market.
(commercial matters)
71
1. Framework decisions in the area of commercial policy

are taken by the EU Parliament and the Council by the
ordinary legislative procedure (art. 207 of the Tfeu);
2. the Council alone decides on the negotiation and
conclusion of trade agreements;
3. the EU Parliament does not participate;
4. the provisions on commercial policy establish exclusive
EU competence, whereas under arts. 191-93 of the Tfeu
the competence is shared between the EU and Member
States.
(decisions under the provisions on enhanced cooperation) 1
72
1. The enhanced co-operation procedure (arts 326-334

Tfeu) is not limited to environmental matters;
2. this procedure has been thought because some Member
States might wish to advance more rapidly than the EU
as a whole;
3. nothing currently prevents them from concluding a
bilateral or multilateral international convention,
which would then be governed by public international
law and not EU law: however, such obligations would
have to respect the Member States’ obligations under
the TEU.
73
1. For any such enhanced co-operation, the Member States in

question need an express authorization from the Council;
2. however, the Council may only act on a proposal from the
Commission which has its own discretionary power to
decide whether it wishes to submit a proposal to the
Council or not;
3. the Council shall decide on the authorization to cooperate
by unanimity of those Member States which want to
cooperate, after consultation with the EU Parliament;
4. as regards the measures adopted under the enhanced
cooperation procedure, quite all the relevant provisions of
the Treaty apply.
74
1. cooperating Member States have to choice to

recur either to public international law or to EU
law;
2. candidates for enhanced cooperation are in
particular provisions in the area of climate
change, but a Europe at different speed would
contribute to the disgregation of the EU as a
whole;
3. this cooperation is not possible where the Eu has
esxlusive competence.

EU Environmental Law3

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

EU Environmental Law3

Uploaded by

Copyright:

Available Formats

ACTORS, INSTRUMENTS,

The main actors of the EU environmental

RESD - Environmental Law and Regulation - Dr. M. D'Angelosante

According to art. 17 of the TEU and to the EU Treaties in

1. to make proposals (for new environmental legislation);

1. The Commission consists of

Environmental matters are mainly

1. The Commission has the exclusive right to initiate new

Suggestions to take initiatives for new legislative measures can

1. Art. 192 p. 4 of the TFEU establishes that the

These tasks, attributed to the EU Commission by the

4. exchange of experience concerning

1. The EEA was created in 1990 but only became operational in

One of the main tasks of the EU Parliament in

1. general environmental questions;

1 . The EU Council frequently discusses

1. The Economic and Social Committee (arts. 301 et seq. Of

1. Institutional cooperation between the Council and the

The ECJ (and the Tribunal of first

The division of work between the ECJ

1. In environmental matters the EU mainly acts in the

However, in environmental matters,

1. Finally, environmental regulations usually do not

1. Directives are the most frequently used instruments in EU

1. Member States have to transpose the provisions of a d.

1 . Decisions are rather numerous in EU

1. According to art. 288 of the Tfeu, Commission or

1. Communications which are not expressly provided

1. The European Treaty does not contain any provision

1. Environmental agreements are agreements by which

1 . For the reason mentioned in the previous

1 . As regards the environmental agreements

1. Eu law contains a number of provisions which aim at

1. In a number of cases, private persons are obliged to

1. Authorization is organized in very

1 . It is possible, for instance, to distinguish

1. EU e n vi ron me n t a ll y rel e va n t int e rdict ions

1. Obligations to act can concern, for

1. Eu environmental law contains numerous appeals

1. Until now, no EU provision has

1. National subventions (State aid) are in principle

1. Environmental certificates are used as ‘tokens’,

1. The Commission has a monopoly on taking initiatives for

1. The Commission’s proposal is transmitted to the EU

The Parliament is of the opinion

1. The choice of a legal basis of a legislative act is of

1 . Whe re t wo or more obj e ct ive s of an

1 . The theory of the centre of gravity seems to

For instance, if the theory of the centre of

1 . The matter is that the theory of the centre of

1. Another problem is the legal basis for waste measures:

Although waste is a product, the ECJ

H owe ve r , i n con cl u s i on the re i s n ot ye t a cl e ar ,

The Council’s practice as to the choice of legal basis may be summarized

Art. 192.2 establishes a special

1 . Art. 192.2 is an exception to art. 192.1 and

The environmental decisions under art. 192.2 of

Art. 192.3 of the Tfeu provides

It is possible to decide on either a temporary

Art. 43 of the Tfeu provides that the

1. Framework decisions in the area of commercial policy

1. The enhanced co-operation procedure (arts 326-334

1. For any such enhanced co-operation, the Member States in