Determination of the Level of Environmental Protection and the Proportionality of Environmental Measures in Community Law

• Author: Hannes Veinla
• Position: Doctor iuris, Lecturer of Environmental Law, University of Tartu
• Pages: 89-98

Hannes Veinla

Doctor iuris, Lecturer of Environmental Law, University of Tartu

Determination of the Level of Environmental Protection and the Proportionality of Environmental Measures in Community Law

1. Formulation of problem

Under international law, every state has the freedom to choose such level of protection of its citizens and environment as is deemed appropriate. The desired level of protection may differ widely from country to country. This can also be clearly seen in the European Union, where, in respect of a high level of environmental measures, more environment-friendly member states have often had to overcome the opposition of those member states which care less about environmental protection. The latter have often been able to block or at least 'cushion' or postpone the adoption of such measures. While priorities regarding the environment are different even among European states, the situation is far more serious throughout the rest of the world, where the attention of developing countries often does not reach environmental problems at all because they have to focus their efforts too much on economic and social issues¹. Within the framework of the WTO, developing countries have continuously expressed their concern of being discriminated by the pressure to adopt the high level of environmental protection applied in the developed countries. In my opinion, Estonia, too, tends to belong to the group of those countries where economic and social considerations are clearly prioritised, at least in practice.

In many candidate states of the European Union, the pre-referendum debates have involved the question of to what extent the state would, as a member of the European Union, retain its right to determine the level of protection of its citizens and environment. In other words, there is the problem of whether a European Union member state can enact and apply environmental measures which are stricter or softer than those laid down in Community directives.

The research question of this article is to find out the extent of freedom of European Union member states in determining the level of protection. In connection with the above-mentioned principal question, I shall also explore what is a high level of environmental protection and how to evaluate the proportionality of environmental protection measures.

2. Determination of the level of protection

2.1. High level of protection

Article 2 of the Treaty establishing the European Community provides that the Community shall have as its task, to promote a high level of protection and of the quality of the environment². Almost the same formulation has been used in article 3 (3) of the Draft Treaty establishing a Constitution for Europe³: the Union shall work for the sustainable development of Europe and aiming at a high level of protection and improvement of the quality of the environment. The same is also repeated in article 174 (2) of the Treaty establishing the European Community: Community policy on the environment shall aim at a high level of protection. Hence, the European Union has an aim of not only protecting the environment but achieving a high level of that.

This raises the question of whether and how the member states are and will be affected by the provisions of the EC Treaty and the future Constitution which regulate the high level of protection. L. Krämer states categorically that the high level of protection must be accomplished by the Community as a whole, and not through national measures⁴.That statement cannot be agreed to. In order to resolve the problem, we must once more take a look at the provisions of the EC Treaty. Article 10 lays down the so-called principle of loyality: 'Member States shall [...] facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.'⁵ Thus a member state must actively contribute to the achievement of a high level of environmental protection and select and apply the necessary and appropriate means to that end. In the author's opinion, that principle applies not only to the implementation of the European Union environmental harmonisation measures (directives) but also to that sector of environmental protection which is uninfluenced by European Union law.

It is not easy to answer the question of what is a high level of environmental protection. In literature, it has been stated that this probably means the level of the 'environment-friendly' member states like Sweden, Denmark, Finland, Austria and Germany⁶. In general, the author agrees to that position and considers it necessary to add that under article 95 (7) of the EC Treaty, such member states can also contribute to improving the 'level' of harmonisation measures. Namely, article 95 of the EC Treaty provides for those derogations when a member state may introduce and apply environmental requirements which are higher than the harmonisation measures. The above-mentioned article 95 (7) provides that when 'pursuant to paragraph 6, a member state is authorised to maintain or introduce national provisions derogating from a harmonisation measure, the Commission shall immediately examine whether to propose an adaptation to that measure'. In explanation, this means that the Commission must consider whether to raise the level of harmonisation measures and establish environmental requirements which are stricter than the existing ones.

The author is of the opinion that there are still even more indicators of a high level of environmental protection. I consider these to be primarily the application of the precautionary principle and the principle of integration.

The fact that a high level of protection requires the application of the precautionary principle has also been found by the Court of First Instance in Artegodan v. Commission⁷.The company Artegodan had a licence to manufacture medicinal products containing amfepramone. On 9 March 2000, the European Commission adopted three Decisions to prohibit that substance on the basis of the opinion of a number of scientists and doctors that under certain circumstances, medicinal products containing that substance could pose a potential risk to health. The company contested those Decisions, relying on the principle of proportionality. In this point, I would like to highlight the following sections of the court's judgment. First, the court pointed out that the precautionary principle should be applied not only to achieve a high level of environmental protection but also to ensure a high level of health and consumer safety. Thus the court pointed out that in order to achieve a high level of protection, the precautionary principle must be applied and, also, uncertain risks must be prevented⁸.

The principle of integration has been laid down in article 6 of the Treaty establishing the European Community⁹:

'Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities [...], in particular with a view to promoting sustainable development.'

Article 37¹⁰ of the Charter of Fundamental Rights of the European Union also contains the requirement that:

'A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.'¹¹

The requirement to integrate environmental considerations has been regarded by many as the most important environmental provision in the EC Treaty¹². I cannot agree more and in my opinion, article 6 of the EC Treaty together with article 37 of the Charter of Fundamental Rights provide an absolutely new meaning to the protection of the environment in the European Union. This means that there are now no more spheres of politics (and, hence, law) where environmental requirements could be disregarded. For all such spheres, protection of the environment will become an essential goal, not as earlier, when caring for the environment was considered to be the duty of only the institutions directly responsible for environmental matters¹³. By means of the principle of integration, environmental considerations are making their way into almost all fields of human activity. Such a tendency has been sometimes referred to as 'ecological modernisation', based on the idea that economic and social development must not and need not be a cause of environmental damage. Rather, economic and social development can, under certain circumstances, improve the quality of the environment¹⁴.

Thus it can be stated in summary that a high level of environmental protection is indicated by the adoption of control measures against not only the well-determined risks but also against those concealed by uncertainty and that considerations of environmental protection are taken into account for all activities and decisions that may have a substantial impact on the environment.

2.2. Determination of the level of protection in the European Union

In several cases, the European Court of Justice has had to examine the level of protection chosen by member states. The so-called Case of Danish Bottles^*15 is probably the most important one in that field. In that case, there was the problem of whether environmental protection measures applied by Denmark were in accordance with the EC Treaty. Under Danish national law, soft drinks and beer could be sold only in reusable containers. There was also an additional requirement that the containers...