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B. Main Principles of European Environmental Law
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B. Main Principles of European Environmental Law
There is no one solid model in the European Union for the countries in transition to follow. Environmental law of European countries differs from country to country. There are differences in their attitudes towards environmental protection and their approaches to environmental liability. Another fundamental distinction relates to the degree of legislative and administrative centralization in the constitutional framework. The EU itself started to pay attention to environmental issues as late as in the 1970’s. The EU environmental policy started with action programmes on the environment. The first one was launched in 1973 and after that there have been five more Action programmes. The Fifth Action Programme of 1993-2000 (Towards Sustainability) was rather successful and contributed to structural changes in the member countries’ legislation and environmental administration. The Action Programmes, which take the form of non-binding guidelines issued by the European Commission define the objectives and principles of the Community’s environmental policy, providing a list of the measures that should be taken, together with a detailed description and a timetable for adoption.
Under these programmes, the Community has not only developed a distinct environmental policy, but has also adopted excess of 200 Directives, Regulations and Decision in the environment field. Harmonization of divergent national standards has mainly advanced with the help of directives, which require the member countries to change their legislation to correspond to the regulations of the directive. Directives which set limits for pollution and standards for e.g. drinking water, are in some countries lower than the national ones but difficult to fulfil in others.
Typical for European environmental law is that compared to other EC policy fields it is exceptionally much based on commonly accepted principles, which have been given greater legitimacy by including them in the EC Treaty with the Single European Act (1986). The Treaty listed four principles. It provided that preventive action should be taken, that environmental damage should as a priority be rectified at source (proximity principle), and that the polluter should pay. Article 130r (2) of the Treaty also states that environmental protection requirements shall be a component of the Community’s other policies. The single European Act also introduced Article 100a according to which the Commission must take as a basis for its proposals a high level of protection. The Maastricht Treaty refined the list of principles and also introduced a further principle , the so-called precautionary principle.
Many of these principles are controversial. The polluter pays principle for instance was first introduced as an economic principle and is according to legal specialists not clear enough to be used directly as a legal principle (Ekroos 1998). Strictly applied this principle should not permit either EU environmental funds or any state investments on polluted environment. Enterprises also claim that if they were forced to take all the environmental effects into consideration, their competition ability compared to other countries would decline. In practice implementing the principles is balancing between different interests.
With the present action programme the environmental law of the European Union is now going through a period of reform. Old directives are replaced with new ones, joint together and so on. The EU is now working on coordinating environmental policy with other EU policies (competition, transports etc.) In water policy this development has advanced with a new Water Framework Directive which takes a combined approach. On the source side, it required that as part of the basic measures to be taken in the river basin, all existing technology-driven source-based controls must be implemented as a first step. But it also sets out a framework for developing further such controls. The framework comprises the development of a list of priority substances for action at EU level, prioritised on the basis of risk; and then the design of the most cost-effective set of measures to achieve load reduction of those substances, taking into account both product and process sources (Introduction … 10/04/2002).
On the effects side, the framework directive co-ordinates all the environmental objectives in existing legislation, and provides a new overall objective of good status for all waters and requires that where the measures taken on the source side are not sufficient to achieve these objectives, additional ones are required. The framework directive replaced seven of the so called first wave directives (surface water, on measurement methods and sampling frequencies, exchange of information on fresh water quality, the fish directive, shellfish water and groundwater directives as well as the directive on dangerous substances discharges).
Except for requiring a river basin management plan, the framework directive focuses on the need for public participation and balancing the interests of different groups (citizens, interested parties, NGOs). The most important innovation of the directive is the introduction of pricing. Member states will be required to ensure that the price charged to water consumers - such as for the abstraction and distribution of fresh water and the collection and treatment of waste water - reflects the true costs. Whereas this principle has a long tradition in some countries, this is currently not the case in others. However, deviations will be possible, e.g. in less favoured areas or to provide basic services at an affordable price (Introduction … 20/04/2002).
In trying to limit air pollution on the global level, the EU has started to apply the limits of the Kyoto Protocol and is experimenting also emissions trading, joint implementation (Article 6) and Clean Development Mechanism (Article 12) with pilot projects. These mechanisms of the Kyoto Protocol might open up new possibilities for the transition countries to close down production units with environmentally harmful technology and invest in more advanced technology.
