Impact of the European Union on Environmental Laws

Introduction

The European Union (EU) institutions have
the power to direct member states through a process known as ordinary
legislative procedure and in doing so, the EU changes member state domestic
legislation (European Parliament 2018). Each member state is obligated to
comply to all EU laws, so in turn must adopt new legislation or amend current
legislation to meet these obligations. However, the timeline equability of
enactment or not varies considerably between member states (Europa 2018).
Failure to comply results in potential infringement proceedings before the European
Union Court of Justice (EUCJ) (European Commission 2018). It is through this
ordinary legislative procedure that EU changes environmental laws in its member
states.

Role of the European Institutions

The European Parliament (EP) and the
European Council together have the power to adopt and amend legislative
proposals brought forward by the European Commission, including all
environmental legislation (Jan H. Jans and Hans H.B. Vedder. 2011). The EP is a
directly-elected body that acts as a co-legislator with the European Council;
the council is made up of government ministers from each European member state.
 In addition to legislative powers, the
EP and the Council have budgetary and supervisory powers. These supervisory
powers ensure the correct implementation of European law (Macrory, 2009).  

The European Commission is a
politically independent arm of the EU responsible for proposing legislation, implementing
decisions and monitoring transposition. The Commission also monitors
performance such as the timeframe equability of enactment across member states
(European Commission 2018) and together with the EUCJ ensures EU laws are
properly applied in member countries. The commission has no power to pass laws.
In the initiation stage, the role of the Commission is to assess the potential
economic, social and environmental consequences of proposed legislation.  It consults local authorities, non-government
organisations, citizens and representatives of industry to prepare impact
assessments (European Commission 2018).

Ordinary Legislative Procedure

The ordinary legislative procedure for providing
environmental legislation proceeds as follows: The European Commission submits
a proposal. The EP and the Council will either approve or amend the proposal at
either the first or second reading. If EP and Council do not reach an agreement
both the EP and Council can amend the proposal a second time. If they still
cannot reach an agreement a conciliation committee is convened, and they enter
negotiations. After negotiations, the institutions vote in favour or against
the proposal. If
the text agreed by the conciliation committee is acceptable to both
institutions at the third reading, the legislative act is adopted. If a
legislative proposal is rejected at any stage of the procedure, or a compromise
cannot be reached, the proposal is not adopted, and the procedure ends
(European Parliament 2018). There are other special legislative procedures
which are used in sensitive cases, though most environmental legislation does
not fall into this category  (European
Council 2018).

The primary legislation of
the EU, called the Treaties underpin the development of all EU laws. The treaties
are a set of international treaties between EU member states which outline the
EU’s constitutional basis.  Member
states vote to support or reject an EU treaty differently. Ireland holds
referendums on any EU changes to treaties as required by the Irish
constitution; other member states can ratify treaties by a vote in their
national parliament (Europa 2018). The treaties
set out the division of powers between the EU and the member states, define the
decision-making process, the powers of the EU institutions and the scope of
their activities within each policy area. The EU can only act within the
competencies granted to it through these treaties and as such all secondary EU
laws including environmental legislation are composed of legal instruments
based on these treaties (European Parliament 2018).  

The secondary laws of the EU are used
to implement the policies set out in the treaties. The legal instruments of
secondary law are regulations, directives and decisions.  The EU can direct member states to adopt or
change domestic legislation to comply with EU law, and much of the environmental
legislation in member states have primarily been developed through EU regulations,
directives and decisions (Europa 2018).

Implementation of EU Legislation

Once legislation is passed by the EP
and the Council, it is the Europeans Commissions role to ensure it is
implemented.  The Commission ensures that
the treaties and laws adopted and amended by the EP and council are upheld by
potentially taking non-compiling member states to the CJEU. The CJEU made up of
one judge from each member state and it interprets EU law and settles legal
disputes (European Commission 2018). For instance, The CJEU ruled in 2004
that Greece was violating EU law
by not adequately collecting and treating waste water discharged into the Gulf
of Elefsina (Judgement No
C-119/02 of 24 June 2004) and Greece was ordered
to pay substantial fines and court costs (European Commission 2018).
Furthermore, in 2008 Ireland’s failure to regulate septic tanks, and to
correctly transpose an EU Directive on Environmental Impact Assessments (EIA
Directive 85/337/EEC and its amendments 2011/92/EU and 2014/52/EU ) resulting in a ruling
from the EUCJ that Ireland was to pay a sum of €1,500,000. Daily fines were not imposed as Ireland
subsequently completely and correctly transposed the EIA directive (Europa
2018). This demonstrates that often there is not equability of enactment across
member states and that failure to comply with EU directions by the deadline carries
the real risk of financial sanctions. This compels member states to change
domestic laws to completely and correctly transpose EU laws (European
Commission 2018).

EU Regulations

EU regulations have a general application and are binding in
nature. They are directly enforceable as law in all member states simultaneously.
As such, there is no need for the establishment of national legislation. EU law
takes supremacy over member states laws, this principle means that if there is
conflict between EU law and member states law, the EU law prevails (Eurpoa
2018). Regulation (EU) 1143/2014 on invasive alien
species (the IAS Regulation) entered
into force simultaneously on January 1^st, 2015 across all member
states. The Regulation lays down rules to prevent, minimise and mitigate the
adverse impacts of the introduction and spread of invasive alien species on
biodiversity, ecosystems, human health or the economy (EUR-LEX 2018). It
immediately came into effect and is binding in all EU member states without the
need for the adoption or amendment to member state domestic legislation. Nevertheless,
member states often set out plans, policies, and strategies to meet the EU IAS
Regulation. Ireland has a National Biodiversity Action Plan, for the
period 2017-2021
with a target that states that ‘Harmful
invasive alien species are controlled and there is reduced risk of introduction
and/or spread of new species’ (National Parks and Wildlife Service
Biodiversity Action Plan 2017). In addition, Ireland has adopted comprehensive regulations which
address deficiencies in Irish law when implementing the EU Bird and
Habitat Directives which cover invasive alien species; Regulation 49:
Prohibition on introduction and dispersal of certain species and Regulation 50:
Prohibition on dealing in and keeping certain species (Biodiversity Ireland
2018). France meet their obligations to the IAS Regulation through their
National Biodiversity Strategy of the French Ministry of Ecology and they
currently are working on a national strategy project dedicated to invasive
alien species (France Diplomate 2018). The Wildlife and Countryside Act
1981 is the principal legislation dealing with non-native species in the UK,
and The Code of Practice for Species Control Provisions in Wales details how the EU measures set out in the IAS Regulation
should be applied in Wales (GB Non-Native Species Securitate 2018). These examples
show how different member states meet the requirements of EU Regulations differently
through the development of national action plans, codes of practice and
strategies.

EU Directives

Directives
are binding in nature, and the EU requires member states to achieve a result, yet
the means of achieving that result are not directed; the member states can
choose the form and method for national implementation (Europa 2018). Directives
achieve their intended effects if they are completely and correctly transposed
into member states national law by the deadline set out in the directive.
Transposition is the process by which EU member states give force to a
directive by passing appropriate national legislation.

The Marine
Strategy Framework Directive 2008 (MSF Directive) requires
European member states to assess the quality of the marine environment, draw up
adequate monitoring programmes and implement measures to reach a ‘good environmental status’ in
the marine environment by the year 2020. Meaning that the seas are clean,
healthy and productive and that human use of the marine environment is kept at
a sustainable level (Europa 2018). Sixteen of the 23 marine EU member states
had adequate monitoring programmes in time by the cut-off date given in the
Directive and the European Commission launched appropriate infringement
procedures against non-complying states (EUR-LEX assessing member states MSFD
2018).  Subsequently, the transposition of the MSF Directive was eventually successful by all
member states, but the timeline of equability of enactment and method differed (Europa
2018). Most member states opted to meet their MSF directive obligations by
adapting traditional administrative structures already in place (EUR-LEX
assessing member states MSFD 2018). These structures were already in place when
member states took action while transposing other EU legislation such
as, the Waste Framework Directive, the Water Framework Directive, the Birds and
Habitat Directive, the Urban Waste Water Treatment Directive or the Common
Fisheries Policy Regulation (EUR-LEX
assessing member states MSFD 2018).

Ireland for
example in 2004, revised their pre-existing Common Fisheries Policy to meet
many of their obligations set out in the MSF Directive (Biodiversity Data
Centre 2018). Malta transposed the MSF directive through the expansion and
publication of their Marine Policy Framework and the development of a
monitoring programme, filling the gap between existing processes and the
requirements of the directive (Environmental resources and authority 2018). France
incorporated their MSF obligations into the Action Plans for the Marine
environment and into French law in the Environment code, regulated by their
ministry of Ecology sustainable Development and Energy; they addressed measures
for marine litter by developing a national waste prevention programme and they
limited shellfish farms which produce a lot of marine litter to tidal areas and
incorporated policy to ensure they collect and recycle shellfish farm waste (EUR-LEX assessing member states MSFD
2018).

The European Council
Directive 92/43/EEC on the conservation of natural habitats and of wild fauna
and flora, known as the Habitats Directive has
been transposed into each Member States legislation in a variety of forms. The
main aim of the Habitats Directive is to protect biodiversity by requiring
Member States to take actions to preserve or restore natural habitats and wild
species to a favourable conservation status, ensuring the conservation of rare,
threatened and endemic animal and plant species (European Commission Habitats
Directive 2018). The overall
approach by most member states to achieve these results is to have a period of
consultation on the best way to transpose the habitats directive into domestic
law, followed by the implementation of new legislation with minimal ministerial
burden and regulatory changes. In some cases, the
transposition of the Habitats Directive by member states has been more
effective than others (Eurpoa 2018).

The
UK Government was one of many member states that failed to meet deadlines set
in the Habitat Directive by the European Commission for transposing into
national law. Outstanding is the transposition of article 6(2) where the UK has
failed to take appropriate steps to avoid deterioration and disturbance of
habitats and species of community interest in special protection areas and special
areas of conservation  (Charted Institute
of Ecology and Environmental Management Dec 2015). The Habitat Directive
was eventually partially transposed into UK domestic law first through The
Conservation (Natural Habitats) Regulations 1994  and then through a combination of amendments
to The Habitats Regulations 2010 (Charted Institute of Ecology and
Environmental Management Dec 2015). In comparison, Ireland completely
transposed the EU Habitat Directive into national legislation by the deadline
set out in the directive. First, in 1997, the Habitats Directive was transposed into Irish
national law and the European Communities
(Natural Habitats) Regulations 1997, SI 94/1997
were adopted representing
a shift in nature conservation policy and law in Ireland (National Parks and
Wildlife Service 2018). These Regulations were amended in 1998 and 2005
and then superseded by The European Communities (Birds
and Natural Habitats) Regulations 2011 (National Parks and Wildlife Service
2018).  There are other European Community Regulations
in Ireland that also cover environmental protection and conservation of Natura 2000
sites as directed by the Habitats Directive such as, European Communities (Forest Consent and Assessment) Regulations
2010, European Communities (Environmental Impact Assessment) Regulations 2011,
European Communities (Natural Habitats and Birds) (Sea-Fisheries) Regulations
2009- 2012 . The amendment of these regulations help Ireland meet their Habitat Directive obligations through
for example, the management of sea fisheries and agricultural activities which
may impact Natura 2000 sites (National Parks and Wildlife Service 2018). Ireland
also met their EU Habitats Directive requirements through other relevant legal
provisions such as the adoption or amendment of the following Acts:  Wildlife Acts 1996-2012, Wildlife (Amendment) Act 2000, Planning and Development Acts 2000-2010 and the Foreshore Acts 1933
to 2011. These Acts reregulate planning and development, protection and
conservation of wildlife and the regulation of certain activities that affect
habitats and species (National Parks and Wildlife Service 2018) . Croatia has partially met their
Habitats Directive through amending their Nature Protection Act in February
2018, an example of an amendment is all management plans are now obligatory for
Croatian Natura 2000 sites where previously they were optional. The Croatian
Hunting Act is still in the adoption procedure stage and will further fulfil
Croatia’s Habitat Directive transposition obligations (WWF European Policy
Office, 2018). These examples show how the EU change environmental laws in
member states and how member states transposed the Habitat Directive into
domestic legislation at different times with some states having completely
transposed legislations and others still in the process many years after the
Directives deadline date.

EU Decisions

Decisions
have a legal binding effect to those member states or individuals it is
addressed.  For example, the EU Effort
sharing decision (Decision No 406/2009/EC) in 2009 applied directly to 22 of
the 28 EU member states. It established binding annual greenhouse gas emissions
for these countries for the period of 2013-2020 (EUR-LEX 2018). This decision
resulted in changes to environmental legislation in only those member states
named in the decision.

Conclusion

The EU has changed most environmental legislation in each of its member states through the ordinary legislative process. Since its inception, the EU has repeatedly directed member states to adopt or change each of their domestic environmental legislation through the EU legal regulations, directives and decisions. Through the process of adopting new and amending existing domestic environmental legislation, member states comply with EU law. There are further strides that need to be made around the correct and complete transposition of EU law in some member states and with the equability of timeline across member states. In the future, we can expect the EU to continue to play a key role in the evolution of member states environmental legislation as new environmental considerations arise and we continue to adopt the best practice in our responsibility to protect and preserve the environment.

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