Scope and Substance of the Integration Principle in EC Law and Its Application in Estonia

• Author: Hannes Veinla
• Position: Docent of Environmental Law, University of Tartu
• Pages: 4-13

Hannes Veinla¹

Docent of Environmental Law, University of Tartu

Scope and Substance of the Integration Principle in EC Law and Its Application in Estonia

1. Introduction

The integration principle has been recognised as one of the cornerstones of modern environmental policy and law.

Principle 4 of the Rio Declaration on Environment and Development² as adopted by the United Nations Conference on Environment and Development in Rio de Janeiro in 1992 proclaims the following:

In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

According to the Amsterdam Treaty, the integration principle is now stipulated in Article 6 of the EC Treaty, which goes further than the Rio Declaration and prescribes that:

Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development.

The integration of environmental concerns into other areas of policy has achieved the status of one of the basic principles of EU environmental policy and law. As stated above, the principle is reflected in Article 6 of the EC Treaty, the very frontispiece of the treaty. This indicates that the principle has a general character and affects all policy areas. The European Court of Justice has ruled, in the case Greece v. Council³ , that it is a binding obligation and that environment-related requirements must be integrated into the other policies, but it is still far from clear what constitutes the exact substance of this principle⁴.

There are numerous uncertainties as to how to understand the integration principle. What is its object (as reflected in the language "policies and activities" and "definition and implementation"), who are the addressees (the Community or also Member States insofar as implementation of EU policies is concerned), and what are the criteria ("environmental protection requirements", "with a view to promoting sustainable development")? There are also doubts as far as character of guidance ("must be integrated") is concerned - is it enabling authorities to restrict economic activities, or is it directing authorities to introduce such restrictions? Does the integration principle constitute a procedural or substantive prescription?

The present article seeks answers to some of these questions and explores how the integration principle is transposed into Estonian legislation and legal practice.

2. The integration principle in EU law

2.1. The object and addressees of the integration principle

On the EU level, the integration principle plays a role in policy-making and adoption of legislation in all policy areas indeed. Before the Amsterdam Treaty, the integration principle was stipulated in Article 174 of the environmental chapter of the EC Treaty. The principle was formulated similarly to one used now in Article 6⁵. L. Krämer notes that, before the Amsterdam language was formulated, there was active debate about the method for reflection of the integration principle in the EC Treaty. There were two basic concepts. The first was to incorporate a reference to environmental considerations into other chapters of the EC Treaty, such as chapters on agricultural, transport, competition, and other policies. The second was to reflect the principle in the general part of the treaty. In Amsterdam, the second option prevailed⁶. The interpretation of the integration principle makes it quite clear that this principle covers both policies and activities as well, and also the definition and implementation of any policies that are within EC competence.

The principle should be interpreted in such a way that environmental policy cannot be viewed in isolation as a specific policy sector alone. Environmental policy should be horizontal and cover all areas with environmental impact.

Furthermore, the integration principle covers not only definition and implementation of all policies having even remote impact on the environment but also individual activities. The integration principle has achieved the status of a general principle of Community law.

The requirement for integration is not met with the same strength in any of the other areas of policy in the European Union. Also, in Article 37⁷ of the Charter of Fundamental Rights of the European Union it is prescribed 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.

J. Jans, one of the most distinguished scholars of EU environmental law, believes the requirement for the integration of environmental considerations to be the most important provision concerning the environment in the EC Treaty⁸. Indeed, Article 6 of the EC Treaty, along with Article 37 of the Charter of Fundamental Rights of the European Union, gives environmental protection a whole new meaning in the EU context. Now there is no longer any area of policy (including law) influencing the state of the environment where environmental concerns do not have to be taken into consideration. With the aid of the integration principle, entry of environmental considerations into nearly all fields of human activity is occurring. This tendency, sometimes called ecological modernisation, follows the idea that economic and social development are not allowed to be, and should not be, a cause of environmental damage. In certain cases, economic and social development may bring with them even an improvement in the quality of the environment.

As an example of integration, fisheries policy can be highlighted. A fishery falls within the exclusive competence of the EC. The basic legal source regulating fisheries policy is Regulation 2371/2002⁹. The regulation defines sustainable use of fish resources in Article 3 (e):

'Sustainable exploitation' means the exploitation of a stock in such a way that the future exploitation of the stock will not be prejudiced and that it does not have a negative impact on the marine eco-systems.

At least in theory, this is a rather strong version of integration, because strict substantive criteria are used; implementation of fisheries policy must not have a negative impact on marine ecosystems as a whole.

Where the addressees of the principle are concerned, the academic debate is focused on the question of whether the principle is binding only on the Community level and for Community institutions. Alternatively, is it binding also for Member States? For example, L. Krämer insists that Article 6 is addressed merely to Community institutions¹⁰. The author of the present article cannot fully agree with this statement. The principle seems to be addressed not only to the EC; it appears to bind also, at least indirectly, Member States. The implementation of EC environmental policy is a responsibility of Member States; consequently, Member States should take care of integrating environmental concerns into policies and activities in order to achieve a high level of protection, taking into account the principle set forth in Article 10 of the EC Treaty. This article prescribes that:

Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.

Article 2 of the EC Treaty reflects the main tasks of the Community:

The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development [...] a high level of protection and improvement of the quality of the environment [...].

Consequently, Article 10 in conjunction with Article 2 of the EC Treaty commands Member States to achieve a high level of environmental protection. This cannot be obviously achieved without integrating environmental concerns into policies and activities potentially affecting the environment.

2.2. What should be integrated?

Article 6 of the EC Treaty prescribes that environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities. "Environmental protection requirements" means measures needed to ensure a high level of environmental protection. Furthermore, the environmental protection requirements referred to in Article 6 may be considered to encompass the objectives, principles, and conditions for action mentioned in Article 174 of the EC Treaty, as well as all other environmental protection principles, guidelines, and criteria that may be derived from the EC secondary environmental legislation and the relevant EC case law as well. One of the prescriptions that should enter into policies in other fields should be the precautionary principle...