The European Union

• Author: Glory Francke
• Pages: 501-520

CHAPTER 27

The European Union

GLORY FRANCKE

I. Introduction

European environmental protection laws resonate globally for their opera-

tional impact and trend-setting influence. The European Union’s (EU) flag-

ship chemical legislation, dubbed the “REACH regulation,”1 provides a good

example. Compliance with the REACH regulation requires input from the

global supply chain, highlighting the international relevance of EU environ-

mental law. At the same time, important trading partners, including China,

Japan, and Korea, continue to adopt legislation inspired in part by REACH’s

data registration requirements, which illustrates the “copy-cat” potential of

EU environmental law and policy.

Given the global implications of such environmental protection laws

and the EU’s authority to legislate in these matters, it is increasingly help-

ful for environmental lawyers and compliance professionals to understand

the players, principles, and processes that shape these laws and policies. To

that end, this chapter addresses EU environmental law writ large, begin-

ning with legal sources and key principles and followed by an introduction

to the EU institutions and processes that create EU environmental law. The

middle section of this chapter briefly addresses implementation of EU

environmental law while the final section focuses on enforcement and the

challenges confronting parties seeking access to justice in EU environmen-

tal matters.

This chapter does not address substantive EU environmental laws. See

the EU country-specific chapters of this book for such information.

II. Sources and Key Principles

of EU Environmental Law

The sources and key principles of EU environmental law derive from three

types of EU laws: primary, secondary, and supplementary. Primary EU law is

“constitutional” law. It defines the structure of the EU political system, the

relationship of the various organs to the whole and the boundaries of EU

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lawmaking power. The EU constitution is not a comprehensive legal docu-

ment. Instead, it spreads across (1) the “EU Treaties,” (2) the laws produced

by the EU institutions, and (3) the supplementary law of the EU.

The term “EU Treaties” covers the founding treaties that established the

EU,2 the treaties amending the EU,3 the protocols annexed to those treaties, the

additional treaties that change specific sections of the founding treaties,4 and

the accession treaties whereby new countries joined the EU.5 Amended and

updated over time, the Treaty on the EU (TEU) and the Lisbon Treaty, formally

known as the Treaty on the Functioning of the EU (TFEU), together form “the

Treaties” that govern today’s EU. These entered into force on December 1, 2009.

Secondary EU law is composed of regulations, directives, decisions, rec-

ommendations, and opinions that constitute either “legislative acts” or “non-

legislative acts” depending upon the procedure for adoption.6 The European

Commission (the Commission) proposes and the European Parliament and

the Council of Ministers adopt legislative acts. The Commission alone pro-

poses and adopts nonlegislative acts. In other words, adoption procedure is

the only difference between legislative and nonlegislative acts. For practical

purposes, they are equally binding legislation.

There are important differences between an EU regulation and a directive.

A regulation, such as the REACH regulation, is a law addressed to all member

states, natural, and legal persons. A regulation is binding across the EU and

member state implementation of the obligations is not required. Regulations

confer rights and impose obligations directly on citizens just as a national law

would. Member states regulate administrative sanctions (such as fines) in their

national laws, since the EU does not have jurisdiction in this respect. Con-

versely, member states are the sole addressees of environmental directives,

which do not, as a rule, confer rights or impose obligations on natural or legal

persons. Such rights and obligations flow only from member state transposi-

tion of the directive,7 that is, adoption of national legislation or, under certain

preconditions, administrative measures8 to implement the directive.

A directive sets out binding legal goals and objectives to varying degrees

of detail. Sometimes these goals will be nearly aspirational. For example, the

EU Packaging and Packaging Waste Directive requires member states to

ensure that all packaging placed on the market is “designed, produced and

commercialized in such a way as to permit its reuse or recovery, including

recycling, and to minimize its impact to the environment” upon disposal.9

As this requirement alone is too vague to be enforceable, member states must

set precise levels and standards related to the reusability and recoverability

of such packaging. Meanwhile, other provisions of environmental directives

are so specific that member states retain little to no room for maneuver. For

example, the Batteries Directive specifies the precise levels of heavy metals

permitted in batteries placed on the EU market, and member states may not

“impede, prohibit, or restrict the placing on the market” of batteries and

accumulators that meet the requirements of the Battery Directive.10

EU decisions are binding on addressees while recommendations and

opinions have no binding force but are nonetheless important. For example,

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