Private Law Instruments in the System of Environmental Control

• Author: Hannes Veinla
• Pages: 159-168

Hannes Veinla

Private Law Instruments in the System of Environmental Control

The main factor presently influencing the Estonian environmental law is preparation for accession to the European Union. The adoption and implementation of the EC environmental law is a serious challenge for our legal system, economy, and also for our administrative capacity. This article examines some of the problems directly or indirectly related to the harmonisation of Estonian environmental law with European Community law. The paper focuses on the private law instruments of environmental risk control mainly for two reasons. Firstly, the private law regulatory instruments are presently acquiring quite an important role in the system of environmental risk control, and secondly, the private law issues of environmental risk control have been discussed relatively little in literature.

The posing of the problem by relating the implementation of European Community environmental law and private law may seem unjustified. It is known that like environmental law in general, the European Community harmonisation measures are of a public law nature. The doubt should thus be dispelled and the following question should be investigated ? what is (or should be) the role of private law in the implementation of EC environmental law? The task is not so onerous. It suffices to bring three examples of private law regulatory mechanisms, or at least mechanisms substantially affected by private law. -Pollution trading, which has been applied or has been attempted to be applied both in single countries and globally. The best known example is the Kyoto protocol, in which the system is seen as an important means of solving the global warming problem¹.
-Environmental agreements, which have been lately increasingly used to define the environmental protection goals, and also to ensure the enforcement of environmental requirements. The environmental agreements are discussed in detail below.
-The environmental (civil) liability scheme, the application of which in regulating environmentally hazardous activities has yielded relatively good results in certain cases. The topics of environmental liability are also further discussed below.

Naturally, the list is not exhaustive and does not nearly provide a full picture of the role of private law in today's environmental control system².

When discussing the role of private law in the implementation of EC environmental law, particular attention should be drawn to two aspects. These pertain to: -the basic obligations of a Member State in the implementation of EC law and the implementation methods;
-the integration principle laid down in article 6 of the EC Treaty.

So, what are the main obligations of a Member State in ensuring the implementation of the EC environmental harmonisation measures? To clarify the issue, a number of references are provided below to the EC Treaty and also to the positions and declarations of the Court of Justice and of other institutions.

In the given context we should start with article 249 of the EC Treaty, which provides: "/.../A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods" ³ (author's accentuation ? H.V.).

This provision is to be read together with article 10 which provides: "Member States shall take all appropriate measures to ensure fulfilment of the obligations arising out of this Treaty and 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" (author's accentuation ? H.V.).

The Court of Justice has assumed the position that:

-the freedom of choice of methods as set out in article 249 does not release a Member State from the general obligation to choose "the most suitable forms and methods";

-the transposition requirement does not imply the obligation to establish special provisions copying the wording of a directive;

-a Member State has fulfilled its transposition requirement if the legal order of the state ensures the achievement of the goals provided in a directive and is sufficiently clear and precise for that purpose⁴.

Declaration No. 19 on the implementation of Community law was added to the EU Treaty, which stresses:

"/.../ it is central to the coherence and unity of the process of European construction that each Member State should fully and accurately transpose into national law the Community Directives addressed to it within the deadlines laid down therein. Moreover, the Conference, while recognising that it must be for each Member State to determine how the provisions of Community law can best be enforced in the light of its own particular institutions, legal system and other circumstances, but in any event in compliance with article 189 of the Treaty establishing the European Community, considers it essential for the proper functioning of the Community that the measures taken by the different Member States should result in Community law being applied with the same effectiveness and rigour as in the application of their national law" (author's accentuation ? H.V.).

Protocol 30 to the Treaty of Amsterdam, concluded in Maastricht, which deals with the application of the principles of subsidiarity and proportionality, points out: "Regarding the nature and the extent of Community action, Community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measure and observing the requirements of the Treaty. While respecting Community law, care should be taken to respect well established national arrangements and the organisation and working of Member States' legal systems" (author's accentuation ? H.V.).

It can be said from the theoretical aspect that transposition of the EC law has been correct and exhaustive, if after the entry into force of the national measures implementing a directive the directive loses its relevance. In such a case, all the goals set out in the harmonisation measures can be achieved through the legal order of the Member State⁵. A directive has to be addressed only if problems arise in the interpretation of national law. It should be added that until the entry into force of the implementing legislation of a directive, a Member State has to abstain from all measures that may damage the achievement of the goals of the directive in the future. Thus, a Member State has the right and obligation to ensure the implementation of a directive by applying the instruments, terminology and administrative arrangements of its own legal system.

Two main conclusions can be drawn from the above.

-The obligations of a Member State in the implementation of environmental policy are not limited to the formal transposition of directives to its own legal order. As said, the due transposition of a directive does not consist in exact copying of its provisions in a separate act or legal provision, but it suffices to create a general legal context that enables persons to exercise the rights arising to them from the directives and to protect such rights in court. Formal copying of the provisions of a directive can even cause confusion. National legal systems are different and the use of certain wordings can be misleading⁶.

-A Member State has to ensure not only the implementation of the environmental harmonisation measures established in the form of directives (or regulations), but also the achievement of the general objectives of EC environmental policy ⁷ as set out in article 174 (1) of the EC Treaty. The European Commission has stressed that if a country has harmonised its law with the EC environmental acquis, the environmental control obligations of the country are by far not completed. The EU environmental acquis apparently does not cover more than a half of the legal instruments necessary for adequate environmental protection today.

Considering the central role of private law in the shaping of a country's economic environment, it is obvious that this area of law forms an integral part of the above "general legal context". The freedom of choice of "form and methods" of the implementation of directives as provided in article 249 of the EC Treaty enables Member States to apply the "most suitable means" of achieving the goals of EC law. If the goal of an EC environmental directive is to control certain environmentally hazardous activities, without prescribing the exact implementation methods, a Member State is free to choose whether to apply an environmental permits and pollution charges system, to impose punishment pursuant to criminal procedure, or to apply an environmental civil liability scheme to control such activities and prevent material damage. Relevant examples can be found in the natural habitats directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora), the goal of which is to contribute to ensuring biodiversity, to determine areas of conservation to this end and to establish the necessary protection regime in such areas. Article 6 (1) of the Directive provides:

"For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites".

It is thus up to a Member State to decide what measures to apply in ensuring the implementation of the Directive. As we see, contracts are a part of such measures.

The potential role of private law in environmental risk control should also be regarded...