This is an excerpt from Varieties of European Subsidiarity: A Multidisciplinary Approach. Get your free download from E-International Relations.
According to the EU’s Seventh Environment Action Program, “many environmental trends in the Union are still a cause for concern” and urgent and concerted action must be taken now in order to live well in the future (European Parliament) and Council 2013, Annex point 6). On the one hand, this is due to the inadequate implementation of existing EU legislation. On the other hand, the question arises whether the necessary legal provisions exist at all. Looking at recent developments in EU environmental law, it can be seen that the principle of subsidiarity has become an increasingly debated issue, which explains why no action can be taken at Union level. This chapter discusses the role of the principle of subsidiarity in the area of environmental law and explains key points using EU legislation where the principle of subsidiarity played a role in the passage of laws.
As this chapter will show, the principle is sometimes mistakenly used to explain the EU’s inactivity on environmental issues. To make this clear, the basis of the EU’s competence for action in the area of environmental law is set out. It then examines the principle of subsidiarity in general and more specific environmental legislation. This serves as the basis for the analysis of two examples. First of all, it is shown that the EU soil protection legislation rejected by the member states would have complied with the principle of subsidiarity. Second, an amendment to the directive on the deliberate release of genetically modified organisms (GMOs), which re-nationalized the authorization procedure, is analyzed with regard to subsidiarity. Finally, a conclusion is drawn that the principle of subsidiarity in the legal sense is sometimes used as an “excuse” for the (politically motivated) inactivity of the Union.
It is important to note that actions in EU environmental law can be motivated by different goals. First of all, there is the real goal of protecting the environment. However, there is also the aim of realizing the objectives of the internal market, which can be strongly influenced by environmental concerns. In the latter case, product- or production-related regulation in particular often contains elements of environmental policy. For this reason, two different cases are selected below: one as a legislative act based exclusively on environmental protection, and one as a product-related act with strong components of environmental policy.
According to the award principle set out in Article 5 (1) of the Treaty on European Union (TEU), the EU can only take action if the treaties – and thus the Member States – have given the Union the power to do so. For subsidiarity to work in practice, it is crucial whether the competence conferred on the EU by the relevant provisions is exclusive or non-exclusive. The principle of subsidiarity only comes into play in the case of non-exclusive responsibilities (see Streinz 2012, note 21). Since environmental protection is a cross-sectional task in all policy areas of the EU, relevant measures can be adopted in many different areas and thus with different competence bases. This is not least due to Article 11 of the Treaty on the Functioning of the European Union (TFEU), which states that environmental protection requirements should be included in the definition and implementation of the Union’s policies and activities. The next section focuses on the two main bases of EU competence for environmental protection, Article 192 and Article 114 TFEU.
Article 192 TFEU
The measures to be taken to achieve the objectives of European environmental policy depend on a decision by the Council and the European Parliament. The objectives themselves are listed in Article 191 TFEU and include the preservation, protection and improvement of the quality of the environment, the protection of human health, the prudent and rational use of natural resources and the promotion of measures to deal with regional or global environmental problems at international level . Indeed, the EU’s environmental competence is defined by these policy objectives. Due to the broad scope of the list and the comprehensive understanding of the term “environment”, the Union’s competence to act is quite extensive (Epiney 2019, 105). As the policy area is not mentioned in the list of exclusive EU competences in Article 3 TEU, the Union’s competence under Article 192 TFEU need not be exclusive and the principle of subsidiarity is therefore important.
Article 114 TFEU
Environmental measures can be based on Article 114 TFEU if their primary objective is related to the achievement of the internal market. This rule serves as the basis for the EU’s competence to take measures to approximate the national provisions that provide for the establishment or functioning of the internal market. It is therefore possible that environmental measures arise from Article 114 TFEU if, for example, they constitute a product or production-related regulation that is also characterized by certain considerations relating to environmental protection. Like Article 192 TFEU, Article 114 TFEU confers non-exclusive competence on the Union. Therefore, the principle of subsidiarity is important in the field of environmental policy regardless of the jurisdiction for the regulation in question. However, the aim of the regulation can still have an impact on the implementation of the principle.
The principle of subsidiarity and environmental law
As mentioned above, having jurisdiction does not necessarily imply a right for the EU to take action. Indeed, the principle of subsidiarity is important here. It does not contain any reference to the limits of a specific competence, but rather restricts the use of such competencies (Kadelbach 2015, note 30). According to Article 5 (3) TEU, in the case of non-exclusive competences, the EU can:
acts only if and to the extent that the objectives of the proposed action cannot be sufficiently achieved by the Member States … but can be better achieved at Union level due to the scope or impact of the proposed action.
Two main aspects can be derived from the wording of Article 5 (3) TEU. The first thing to do is to check that action can be taken before action is taken sufficient achieved by the Member States. This is the so-called negative criterion (see Kadelbach 2015, note 35). And secondly, the goal of action must be in the sense of a positive criterion better achievable at Union level by scale or impact. The principle of subsidiarity thus combines a Union perspective with that of the member states (Epiney 2019, 139). The negative criterion can be met for objective reasons, i.e. H. A Member State cannot achieve the objective in question. However, there may also be subjective reasons for this: one or more Member States could achieve the target but are not taking the necessary measures. The positive criterion, on the other hand, is checked quantitatively or qualitatively. In the first case, due to its quantitative extent, e.g. if the aim is to combat global or transboundary environmental threats. An example in which the objective is more achievable at EU level due to its qualitative scope would be the interaction of the objective with other Union objectives (e.g. the achievement of the internal market).
The principle of subsidiarity and environmental law measures
In the following, these general comments are to be specified in relation to environmental measures, as presented by Epiney (2019, 140-3). As mentioned above, environmental policies can be based on different objectives when examining questions of EU competence. The focus could be on certain aspects of environmental protection as well as on the goal of achieving the internal market and thus on the goal of market integration. If the main objective of a measure is the latter, the criterion of inadequate achievement of the objective at Member State level will always be met when national measures lawfully obstruct the objective of market integration. Similarly, in the case of the main objective derived from Article 191 TFEU, this criterion is usually met on the basis of a thorough understanding of the objectives set out in Article 191 TFEU. It is therefore sufficient if the negative criterion is met if there is an environmental problem in one or more Member States without being adequately addressed by the relevant authorities. However, the existence of different – but equivalent in terms of results – solutions by individual Member States would mean that the objective of a measure at national level is sufficiently achieved.
In addition, the criterion that the EU is better able to achieve the goal is often met. For example, the achievement of the internal market would clearly contradict the objective if different national rules continued to apply. Even in the case of measures to achieve genuine environmental protection, a corresponding political objective at Union level is often better achieved, as this is the case as soon as the EU measures lead to an overall improvement in the quality of the environment.
As a result, whether the scale or impact of the proposed action will better achieve the target at EU level becomes a crucial consideration. It must be assessed whether the objective to be achieved (or the identified environmental problem) is so extensive that action at EU level must be seen as necessary. This appears to be the case in two situations. First, the proposed action addresses an environmental problem with transboundary effects, which suggests large-scale, coordinated action. Then the question of maintaining or improving the quality of the environment is not only relevant at national or regional level, but affects many, if not all, Member States. Second, the proposed measure relates to the goal of market integration. The need to take regular action at EU level arises from the functioning of the internal market and the associated guarantees for the “four fundamental freedoms” and undistorted competition (see European Court of Justice 2001, paragraph 32; 2002, paragraph 182; and quite clearly 2016, point 150). To a certain extent, measures such as product or production-related regulations can often also be classified as environmental measures. However, the broad nature (or scope) of the action, which requires EU-wide action, arises from the objective of market integration rather than from an objective of environmental policy as such.
Overall, the application of the above criteria suggests that the determination of product or production-related measures at EU level generally corresponds to the principle of subsidiarity. This is because of their important implications for the practical functioning of the internal market. With regard to measures of a real environmental policy, it must be assessed on a case-by-case basis whether the EU is better able to achieve the objective of the proposed measure because of its scale or impact. Presumably this will often be the case, as interdependent ecosystems seem to turn local environmental problems into cross-border challenges. The subsidiarity principle is therefore only in exceptional cases a counter-factor to the environmental policy measures of the EU. In this context it can also be stated that the case law of the European Court of Justice (2001, paras 30-4; 2002, paras 180-5; 2011, paras 176-80) generally gives the Union institutions a fairly wide scope seems in this regard. Nevertheless, it is of particular importance when it comes to the concrete design of political measures that are intended to allow for local characteristics to be taken into account.
Selected environmental measures
Proposed Soil Framework Directive
In 2006 the Commission presented a proposal for a directive creating a framework for soil protection (European Commission 2006). The aim of this directive, as set out in recital 8, was to define a common strategy for the protection and sustainable use of the soil. However, the proposal for a directive was never adopted by the Commission in May 2014 and was finally withdrawn (European Commission 2014, 3).
The proposal required Member States to identify risk areas for soil erosion due to water or wind, organic degradation, compaction, salinisation and landslides. After the entry into force of EU legislation, Member States were given a period of five years (Article 6). In addition, the Soil Framework Directive would have expected the Member States to draw up a program of measures containing risk reduction objectives, measures to achieve these objectives, a timetable for the implementation of measures and an estimate of the allocation of private or public funding (Article 8). In addition, it would have obliged the Member States to identify contaminated sites and to define a national remediation strategy based on an inventory of such sites. A proposed Article 12 also required that soil status reports be made available to the competent authority and the other party when selling a site where potentially polluting activities have taken place. Finally, a proposed Article 16 would have laid down a far-reaching obligation for Member States to provide information and would have significantly increased their reporting obligations (Petersen 2008, 149).
One of the main reasons for the rejection of the Soil Framework Directive by many member states was an alleged violation of the subsidiarity principle (Petersen 2008, 149). This claim can be judged by the negative and positive criteria contained in the legal codification of the principle.
With regard to the former, the aim of the proposed measure – protecting the soil and maintaining its functions – has not been achieved by several EU countries (Scheil 2007, 180). So it wasn’t the desired goal sufficient achieved at national level. But whether it could be better Achievement at Union level based on the scale or impact of the proposed action was discussed in detail. As mentioned above, this is the case when the environmental problem addressed by the action has cross-border effects and requires extensive or coordinated action, or when EU action is required to ensure fundamental freedoms and undistorted competition.
In the example of the Soil Framework Directive, both elements would have been present. Although the issue of soil protection has a strong local component, cross-border effects cannot be denied. It is noteworthy that soil plays an important role in the context of climate change. It is the world’s largest natural carbon store, which is why its conservation is an essential goal (Heuser 2007, 121; Klein 2007, 12). Hence, the importance of healthy soils in mitigating climate change is more than obvious. In addition, soil protection has a major impact on the protection and conservation of other resources such as biodiversity and groundwater, which in turn have significant transboundary effects. The protection of these resources is also provided for in other, more specialized EU instruments, but does not exclude joint action in the field of soil protection.
The proposal for a Soil Framework Directive would probably have complied with the principle of subsidiarity. In general, the principle does not stand in the way of EU action in the field of soil protection. In other words, the allegation by Member States that the proposed act is incompatible with the subsidiarity principle appears to have had no legal basis. Most likely, the concerns raised were raised to prevent the adoption of a politically undesirable regulation.
Modified GMO Directive
In April 2015, the EU regime for GMOs changed with Directive 2015/412 / EU amending Directive 2001/18 / EC on the deliberate release of such organisms. The amended legislation opened up new possibilities for Member States to restrict or prohibit the commercial cultivation of GMOs on their territory. Originally, the regime for the deliberate release of GMOs was characterized by an attempt by the EU to centralize regulation in order to prevent distortions of competition and ensure uniform environmental protection (see Christoforou 2004, 641; Salvi 2016, 202–4). . However, some Member States have filed complaints to express their preference for one final word on GMO cultivation. This led to this change, which actually nationalizes the responsibility for deciding whether GMOs can be grown in a given area (see Geelhoed 2016, 20–1; Martínez 2015, 86).
More precisely, Directive 2015/412 / EU introduced the possibility of restricting or prohibiting the cultivation of GMOs in two different phases of the process: firstly, Member States can require that the geographical scope of the written consent or authorization be changed in order to avoid any effects to have their territory; or secondly, they can take measures that restrict or prohibit the cultivation of GMOs if the permit covers their territory (Article 26b (1) and (3) of Directive 2001/18 / EC). These measures must be in line with EU law, reasoned, proportionate, non-discriminatory and based on compelling reasons. For this purpose, Article 26b (3) contains a non-exhaustive list in which the environmental policy objectives are listed first. However, national measures must not contradict environmental risk assessments carried out by the European Food Safety Authority (EFSA) prior to the approval of GMOs (Art. 26b (3)). As a result, Member States cannot rely on arguments that are in direct conflict with the facts identified by EFSA.
From the recitals of the directive and the preparatory work of the Commission, it emerges that, among other things, concerns about subsidiarity were used to explain the change (recitals 6 and 8, Directive 2015/412; European Commission 2010, 8). But does subsidiarity inevitably require a renationalization of GMOs? A further examination is required to determine whether the pre-amendment regime actually complied with the principle.
The two criteria mentioned above are also relevant here. In a first step, the aim of the measure – the regulation of the authorization procedure for GMOs at EU level – is to be defined. According to Article 1 of Directive 2001/18 / EC, the main objective of the EU GMO regime is “to approximate the laws, regulations and administrative provisions of the Member States and to protect human health and the environment”. This applies regardless of whether GMOs are placed on the market or intentionally released into the environment for other purposes. As this directive is based on Article 114 TFEU, it was also adopted with the aim of a functioning internal market. The negative subsidiarity criterion (a member state that does not sufficiently meet the target) is clearly met, since different regulations for domestic GMO approval can or had to lead to restrictions on the fundamental freedoms in the internal market.
Regarding the second criterion (the target is better achieved at EU level due to the scope or impact of the measure), the main objective of the GMO regime can only be achieved if there is regulation at EU level, which requires EU action makes. This means that the positive subsidiarity criterion can also be regarded as fulfilled. Overall, the regulation of the approval procedure at EU level corresponds to the principle of subsidiarity. Indeed, the normative density of the regulation leaves little discretion to the national authorities.
At the same time, the GMO regime demands that the EU guarantee environmental protection. This can be derived from numerous legal sources. On the one hand, the legal acts of EU secondary law in question set the objective of protecting the environment. However, this can already be inferred from the EU’s obligation to strive for a high standard of environmental quality when issuing rules on the basis of Article 114 TFEU, as provided for in Article 114 (3) TFEU. For this reason, the aim of environmental protection is proper inclusion in the legal acts examined here. In the present case, this was originally done, inter alia, by requiring EFSA to network and to consult national authorities when carrying out environmental risk assessments. The EU also allowed Member States to opt out when new information became available on the risks of GMOs to human health or the environment.
However, the member states claimed that this was insufficient – or that the risk assessments had not been carried out sufficiently – which was then one of the reasons for adopting a modified GMO regime (see Geelhoed 2016, 24–8; Salvi 2016, 203). The renationalization of parts of the regime’s approval process is likely to be beneficial for the environment as a whole, as certain member states can be expected to impose extensive restrictions or bans on GMOs. However, this contradicts the other – probably even primary – objective of the measure, which is to achieve the internal market. The answer to the question at which level the double objective of the measure can be better achieved must therefore point in the direction of the EU. The objective of completing the internal market can only be achieved at a central level and the objective of protecting the environment can be properly incorporated into the framework of the regulation.
In other words, the regulation on the authorization of GMOs at Union level must be viewed in accordance with the principle of subsidiarity. The renationalization following the adoption of Directive 2015/412 / EU appears to be due to other political reasons. As mentioned above, product or production related regulations mostly correspond to the subsidiarity principle, since their main aim is first and foremost the realization of the internal market. The goal of protecting the environment must then be achieved by making EU rules appropriate.
The subsidiarity principle in EU environmental law suggests a distinction between measures that aim at real environmental protection and measures that aim primarily at market integration, but which also contain elements of environmental policy. The chapter has shown that these measures can be based on different competences of the EU. In the first case, the action is generally based on Article 192 TFEU; whereas the second article is Article 114 TFEU. It can be concluded that measures based on Article 114 TFEU are most likely to comply with subsidiarity, as the negative and positive criteria of the principle are met. In the case of measures under Article 192 TFEU, it must be examined on a case-by-case basis whether, based on the scope or impact of the measure, it can be expected that the EU will be better able to achieve the objective of the measure. This is always the case when the action addresses an environmental problem that has transboundary effects and requires extensive or coordinated action. The two examples presented here confirm the general remarks.
The proposal for a Soil Framework Directive as a law on the basis of Article 192 TFEU would have complied with the principle, as all criteria were met: Not all Member States protect the soil sufficiently and also the respective cross-border effects As the role of soil in the fight against climate change suggests that the Union is much better able to achieve the goal. Similarly, the analysis of the amended GMO Directive as a law based on Article 114 TFEU showed that the changes to the authorization procedure were not a necessity resulting from the principle of subsidiarity. Indeed, the localization of the GMO regime at EU level must be seen in line with the principle. Given the main objective of the measure – the approximation of laws – this is impossible to achieve at national level and puts the EU in the “better” position. Even if the subsidiarity test is carried out with a view to the internal market objective, environmental protection must be properly incorporated into relevant EU law.
From a legal point of view, claims that measures in EU environmental law violate the subsidiarity principle are often unfounded, as the limits set by the EU principle of action appear to be quite broad. Since environmental protection is a main goal of EU law, supranational measures must also take local and regional problem constellations into account. This can be achieved, for example, by giving Member States a great deal of leeway in the implementation of policies, by providing mechanisms that take local and regional specificities into account, or by granting extensive opt-out provisions. The conclusion that violations of subsidiarity often appear legally unfounded does not, of course, prevent the EU from not seizing or nationalizing certain competences for political reasons. However, sometimes it seems that the principle of subsidiarity is used in the legal sense as an excuse for the (politically motivated) inactivity of the Union.
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