Fundamental principles

EU lawmaking is based on the principle of subsidiarity, which postulates that every issue should be dealt with at the lowest possible level of decision-mak-ing – that is, the EU should only take action in situations where the desired ob-jective cannot be effectively achieved by Member States (Treaty on European Union, 1992). In the case of environmental policy, the justification of EU-level action rests on two main arguments (EC 2014):

• The cross-border nature of many environmental problems: Pollu-tion does not respect naPollu-tional borders and therefore internaPollu-tional co-operation is required for it to be addressed effectively.

• The undisturbed functioning of the European single market: Economic cooperation and the single market are at the heart of EU integration. Without coordination, different environmental policies in EU Member States would potentially disturb the functioning of the single market. On the one hand, en-vironmental regulations have the potential to act as trade barriers as coun-tries with strict regulations may deny market access to foreign products that do not meet their requirements. On the other hand, environmental regula-tions may also increase operating costs for businesses, giving a competitive advantage to countries where environmental standards are low. The harmo-nisation of environmental policy across the EU ensures a level playing field and makes it easier to aim for a high level of environmental protection (al-though cost and competitiveness concerns related to environmental policy naturally remain important in relation to the outside world).

The fundamental principles of EU environmental policy were also laid down in the Maastricht treaty. These are:

• The precautionary principle: this means that if there is a suspicion of risk to human health or the environment, the EU may take action to pre-vent damage (e.g. by banning a suspicious substance) even if there is still scientific uncertainty and the risk has not been completely proven.

• Prevention and rectification of pollution at its source.

• The polluter pays. This means that it is the responsibility of (potential) polluters to prevent damage to the environment and to rectify any dam-age and pay compensation if damdam-age does occur.

• Integration into other policy areas. This is a very important principle since many other Community policies (such as energy, transport and ag-ricultural policy) can have significant effects on the environment and envi-ronmental protection efforts can be far more successful if envienvi-ronmental considerations are taken into account when developing other policy ar-eas (instead of an isolated strategy whereby environmental policy must try to rectify problems created by, for example, policies favouring road transport, fossil fuels, or environmentally harmful farming practices).

Aiming for alignment with these principles serves as general guidance for EU environmental policy but it does not mean that they are always fully taken into account. The precautionary principle, for example, is at the heart of several important measures (including, for example, the EU’s chemicals policy, its ap-proach to the approval of GMOs, and the recent decision to ban certain pes-ticides suspected of harming bee populations). Such decisions are, however, always made with difficulty because of the serious economic consequences of restrictive regulations; moreover, the precautionary principle is not always ap-plied (a notable example is the case of endocrine disruptors – chemicals that may harmfully influence the hormonal system – which are present in several consumer products but which the EU has not taken concrete steps to regulate).

Prevention of pollution is a general aim to strive towards, but it is nearly impos-sible to fully achieve. The EU’s urban air quality standards, for example, are routinely breached in numerous cities, which means that stronger measures to reduce pollution at the source (e.g. restrict cars) would be justified. The polluter pays principle is not implemented in cases when subsidies are used to fos-ter emission reductions (e.g. to support energy efficiency or renewable energy investments, or biodiversity-friendly farming practices). Finally, the principle of integration is an area where the EU has made huge steps in past decades, re-forming related policies so they are more in line with its environmental goals, but the journey is far from over (which situation is illustrated by the fact that better integration of environmental considerations into other policy areas is listed as a priority in the EU’s newest (7th) Environment Action Programme – see below).

The decision-making processes of the EU are complex and new legislation often takes several years to finalise and formally adopt. The three main EU insti-tutions that are involved in the decision-making process are the European Com-mission, the Council of the European Union,¹⁰ and the European Parliament.

• The European Commission is essentially the executive branch of the EU. It does not have the power to adopt new legislation, but nonetheless plays a vital role in the policy process by drawing up legislative propos-als for the Council and the Parliament to discuss. It is propos-also responsible for the implementation and enforcement of EU law (including the man-agement of the EU budget). The Commission is organised according to policy areas and consists of staff who do not represent countries or po-litical parties but the general interests of the EU. In addition to its staff of

~32,000 employees, the Commission also regularly consults with experts and stakeholders to improve the quality of proposed legislation.

• The Council of the European Union is the EU’s main decision-making body (together with the Parliament), consisting of representatives of the governments of EU Member States. Each Member State has a perma-nent staff at the Council to prepare decisions, which are then finalised and adopted at Council meetings attended by the ministers responsible for the given policy area from each country.¹¹ While initially the Council made most of its decisions unanimously, the continuous enlargement of the EU has led to this procedure being replaced in favour of voting by qualified majority (at least 55% of member countries representing 65%

of the EU’s population).

• The European Parliament is the EU’s other main decision-making body, currently consisting of 751 members¹² elected directly by EU citi-zens every five years. The parliament is organised according to political groups. In the early days, the power of the Parliament was limited to a mainly consultative role alongside the Council, but this has gradually changed and today most new legislation is passed by the Council and Parliament together (both may change and amend proposals made by the Commission, and new legislation is only adopted if the two bodies come to an agreement about the relevant texts – a process which may occasionally take years of negotiation).

10 Not to be confused with the Council of Europe, which is not an EU institution but a separate international organisation that mainly focuses on the area of human rights.

11 Several times a year, the EU’s heads of state or government also hold summits to make decisions about the most important political issues. This institution is called the European Council, but it only decides on the strategic direction for the EU, and does not pass any laws.

12 The number will be reduced to 705 after the United Kingdom leaves the European Union.

In the case of environmental legislation, the standard procedure today is the

‘ordinary legislative procedure’ (formerly called the ‘codecision’ procedure), whereby decisions are made jointly by the Council and the Parliament. Re-garding these two institutions, the Parliament has a tendency to be somewhat

‘greener’ than the Council, so any increase in the power of the Parliament has a positive influence on the evolution of environmental policy. (This can prob-ably be explained by the fact that members of Parliament are directly elected by EU citizens and therefore include representatives of green parties who are not found in the Council because the latter are rarely involved in national gov-ernments. Also, the Parliament is generally more accessible to lobbyists – in-cluding green NGOs – than the Council [Burns et al. 2013].) However, in some highly sensitive policy areas (such as taxation) decisions are still made solely by the Council and require unanimity, making progress in these areas more difficult to achieve.

The two main instruments of EU law are regulations and directives. Regula-tions are binding legislative acts that must be applied across the EU in their entirety. Directives are legislative acts that define binding goals for Member States to achieve, but it is up to the Members States to decide how they wish to achieve these goals and adopt laws to this end. (For example, the Renew-able Energy directive of 2009 establishes the proportion of renewRenew-ables from total energy consumption that each country must achieve, but the specific measures required to reach this target can be different in each Member State.) Alongside the specific legal instruments, the EU also has multi-annual strate-gies (Environment Action Programmes) that lay out the overall objectives and priorities for environmental policy. The first EAP was adopted in 1973, while the current (7^th) EAP covers the period 2013-2020.