Is the EU’s environmental policy a clay-footed colossus?

While the European Union ratified the Paris Agreement last October, right before the beginning of COP 22 taking place in Marrakech (Morocco), can EU environmental policy realistically aim at a “high level of protection” (in accordance with article 191 TFEU)?

Environmental issues were first taken into account at the end of the 1970s, shortly after the first Conference of the United-Nations on the Human environment, held in Stockholm in 1972, where the Declaration of Stockholm was adopted. This Declaration set out the key principles of modern environmental law and stressed the necessity for the international community to take action. Inspired by this Declaration and overwhelmed with emerging environmental issues, the European Commission initiated the draft of the first Environmental Action Programme, which was adopted in 1973. Today, it stands as the founding act of EU environmental policy. In 1985, the European Court of Justice ruled that “the perspective of environmental protection […] is one of the Community’s essential objectives”, making it a landmark court decision. One year later, the Single European Act (SEA) enshrined the protection of the environment as one of the European Community’s main objectives.

Since then, environmental protection has been guaranteed in both the founding Treaties of the EU and in its secondary legislation. Nowadays, more than 700 legal texts deal with the protection of the environment in very different and specific areas: fisheries, agriculture, pollution, quality of water resources and their management, climate change, etc.

The efficiency of the EU’s primary and secondary legislation has been ensured through various effective controls on its correct and uniform implementation, through the legal remedies available (set out in section V of the TFEU), notably the procedure for failing to fulfil an obligation (Artt. 258 to 260) and the procedure for failing to act (Artt. 263 to 265).

The EU’s commitment to protecting the environment further stands out due to the many international principles and conventions it has incorporated into its own legislation. For instance, the Aarhus Convention was transposed into EU law with the Directive 2003/4/EC, enforcing the principles of access to environmental information, participation in decision-making and access to justice in environmental issues. Very recently the ECJ established the importance of access to environmental information by allowing the release of information relating to emissions into the environment, overruling the principle of confidentiality of commercial and industrial information. This decision is all the more important as the principle of access to environmental information is invaluable for European citizens and civil society. Indeed, a citizen is only able to make a meaningful decision concerning this issue when he or she is aware of the nature and effect a pesticide has on water, air, and soil. The public plays a vital role in the protection of the environment and needs to be informed to be able to fulfil this task

However, despite the numerous legal norms protecting the environment and the specific aims set for accomplishing this, a few reports released recently have shown that the EU’s current  environmental policy remains a partial victory and that there is a long way to go before it will have achieved the full implementation and effectiveness of its environmental policy. In fact, a recent EU study conducted by the European Environment Agency pointed out that in Europe alone, there are still 460 thousand premature deaths a year caused by air pollution. At the same time, the Organisation for Economic Co-operation and Development (OECD) and the European Commission have asked the governments of the EU’s Member States to invest more in their health systems, as though the European population does live longer, this is not necessarily healthier. They estimate that 50 million Europeans suffer from chronic diseases and as the population of Europe continues to grow older, there is a growing need for serious change in EU Member States’ healthcare systems.  

Although current directives and regulations have reduced air pollution, they haven’t been enough to prevent irreparable damage being done to the environment and European citizens’ health. The study was alarming enough to encourage the Members of the European Parliament (MEPs) to vote in favour of stricter emission limits on the 23rd of November, in order to decrease the number of premature deaths brought on by air pollution and to comply with the objectives set out in the Paris Agreement to combat climate change and protect everyone’s right to live in a healthy environment.

The EU is also likely to face another emerging and pressing issue, which is the lack of adequate funding being allocated to solving the serious, complicated and global environmental issue that climate change represents. Indeed, the Court of Auditors of the European Union expressed its concerns regarding the funding of actions to fight climate change in a report published on November 22nd. This report states that the EU’s current objective of dedicating 20% of its 2014-2020 budget to facing climate change is unlikely to be met if no further action is taken. Progress has been made, but the EU’s objectives are still far from being reached. The European Commission assessed that in 2014-2016, just 17,6% of the EU’s budget was dedicated to tackling climate change and that therefore there would have to be a 5% increase from 2017 to 2020 to fulfil its promise.

Another point of recurring criticism made towards the EU concerns its ambitions and objectives. Indeed, the existing diversity between all 28 Member States regarding their national environmental legislations, their financial resources and their natural resources and ecosystems tends to lower the EU’s objectives and actions.

As an example, the directive on environmental liability with regard to the prevention and remedying of environmental damage was only adopted in 2004 after decades of discussions. Even then, then the need for legislation to prevent future and remedy past harm caused to the environment was only fully accepted after the now infamous Seveso disaster had occurred. By enforcing such a directive, some States had to create a brand-new liability regime concerning damage caused to the environment, while others had to adapt their existing legislation. The directive became a balanced act between States with no existing legislation and States that did already have one.

Inspired by the ambitious 1993 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (called Lugano Convention), the European institutions aspired to enact legislation similar to what had been proposed there, as it had never entered into force (due to lack of ratification). The draft of the directive was genuinely ambitious but concessions had to be made. As a result, the directive that was adopted was greatly different to what had initially been proposed. For instance, the directive does not create a civil liability regime as the EU does not have competence in this matter. As a result, no individuals are entitled to bring legal action against any entities whose actions harm the environment. Furthermore, no compensation fund or obligation to obtain professional indemnity cover  (especially useful for the high risk of environmental harm that many economic activities bring with them) were enshrined in the directive. Diffuse pollution was also voluntarily excluded from the directive. And finally, no legal action can be taken to remedy environmental harm incurred prior to the adoption of the directive.

The 2004 directive took a step away from its role-model, costing it the opportunity to not only mark a turning point in the history of EU environmental policy, but to also affirm its willingness to implement ambitious, balanced and effective environmental legislation. The 2004 directive does however remain unique in that it stresses the absolute necessity of protecting the environment from being harmed, and avoiding irreparable damage being done to it.

Naturally, no Member State is prohibited from taking further action than the minimum required under EU legislation, but they are not properly encouraged, nor given enough incentive, to go further than simply fulfilling the minimum requirements. Lowering ambitions to ensure homogenous application undoubtedly came at the expense of the undertaken action’s effectiveness.

To conclude, it would be only fair to say that the overall protection of the environment has improved throughout the EU, but much of the effort made have proven to be insufficient. Indeed, as inequities remain, uncertainties concerning the future rise. Individual differences are what brought the EU’s Member States together in the past, united under the idea that peace could finally be achieved in a continent devastated by centuries of devastating wars, but inequalities and inefficiency are now tearing them apart. The EU has to find a way of improving the quality of its environment and must work harder to implement its environmental legislation effectively, and sustainably. More importantly, the EU needs to raise its standards and objectives and strive for further improvement in order for it to finally become able to influence the international community on environmental matters.

Stéphanie holds a Master’s degree in International and European environmental Law (Aix-Marseille Université, France) and is currently working as legal intern at the United Nations Environment Programme in Nairobi (Kenya). She also has a Bachelor’s degree in Law and Foreign languages (English, Italian and Portuguese). She was previously awarded a scholarship from the French Embassy in Brasília to undertake research on the protection of the environment in Santa Catarina. As well as her voluntary experience with the Aix-en-Provence Red Cross, she was the French Delegate to the Girls20 Summit in 2011, a Clim’Advocate and Globalchangemakers for the British Council, and a Junior 8 Delegate for UNICEF.

• ECJ, February 7th 1985, Procureur de la République c/ Association de défense des brûleurs d’huiles usagées (ADBHU), C-240/83, paragraph 13.
• TRUILHÉ-MARENGO (E.), Droit de l’environnement de l’Union européenne,  1ère  Edition, Larcier, Collection, Paradigme, 2015.
• As examples, we can mention the Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (Habitats Directive), the Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (Environmental impact assessment), the Council Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds (Birds Directive), etc.
• United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters
• Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC
• ECJ, November 23rd 2016, Commission VS Stichting Greenpeace Nederland and PAN Europe, C-673/13 P, paragraph 67 and ECJ, November 23rd 2016, Bayer CropScience and Stichting, C-442/14, paragraph 54 : « the confidentiality of commercial and industrial information may not be invoked against the disclosure of ‘information on emissions which is relevant for the protection of the environment »
• To see the full report : http://www.eea.europa.eu/media/newsreleases/many-europeans-still-exposed-to-air-pollution-2015/premature-deaths-attributable-to-air-pollution   
• To see the report of the OECD entitled “Health at a Glance Europe 2016”: http://www.oecd-ilibrary.org/docserver/download/8116231e.pdf?expires=1480179330&id=id&accname=guest&checksum=A76D37E34599C84BE6320B42C0C80D0E
• http://www.europarl.europa.eu/news/en/news-room/20161118STO51775/cleaner-air-meps-vote-on-tougher-emission-limits-for-key-air-pollutants
• It is to be noted that the year of the adoption of the Directive itself was not randomly chosen, negotiations had to lead to an adoption before the integration of 10 new Member States.

• The Seveso disaster was a chemical-release accident that occurred in July 1976, in a small chemical manufacturing plant in northern Italy. The local population was exposed to TDD, a highly dangerous substance.