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Workshop on the New Approach, Copenhagen, 29-30 Nov. 2001

Appendix A: List of background reading

The following documents and links can provide additional information about a number of the topics discussed at the Workshop.

The New Approach

The European Commission has a website related to Standards Policy. This can be found at:

Standards policy

There are a number of documents of particular interest. These include:

Report of the Commission of 2001-09-26 to the Council and the European Parliament on "Actions taken following the Resolutions on European Standardisation adopted by the Council and the European Parliament in 1999" - COM (2001) 527 final

This report from the Commission aims to set out the most relevant developments since 1999, as requested by the Council and the Parliament. It basically takes a horizontal view on European standardisation matters.

Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations

Official Journal L 204 , 21/07/1998 P. 0037 - 0048 CONSLEG - 98L0034 - 05/08/1998 - 33 P.

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!
celexapi!prod!CELEXnumdoc&lg=en&numd oc=31998L0034&model=guichett

Council Resolution of 7 May 1985 on a new approach to technical harmonization and standards

Official Journal C 136 , 04/06/1985 p. 0001 - 0009
Spanish special edition...: Chapter 16 Volume 1 p. 248
Portuguese special edition Chapter 16 Volume 1 p. 248

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!
celexapi!prod!CELEXnumdoc&lg=EN&num doc=31985Y0604(01)&model=guichett

Guide to the Implementation of Directives Based on New Approach and Global Approach. This Guide is intended to contribute to better understanding of Directives based on the New Approach and the Global Approach, and to their more uniform and coherent application across different sectors and throughout the Single Market.

http://europa.eu.int/comm/enterprise/newapproach/
legislation/guide/legislation.htm

Standards and innovation

http://www.dti.gov.uk/strd/fundingo.htm#swannrep

Other sites related to standardisation CEN Strategic Advisory Body on Environment (SABE):

http://www.cenorm.be/sectors/sabe.htm

EOTC - European Organisation for Conformity Assessment

This website is an interactive learning tool designed to provide an intuitive understanding of the principles of the New and Global Approach.

http://www.eotc.be/newapproach/cdrom/index.htm

Integrated Product Policy

The Commission's web page on Integrated Product Policy:

http://europa.eu.int/comm/environment/ipp/home.htm

The Green Paper on Integrated Product Policy: Press release

Green Paper on Integrated Product Policy COM(2001)68

(pdf ~150K; except el 1.3M)

The Challenge of an Integrated Product Policy in Europe

Brussels, 18 th of October in the European Parliament. Minutes of the hearing are available in pdf format.

http://www.garciaorcoyen.org/conclusiones_ingles.htm

The IPP Conference: Launching the Stakeholder debate

Brussels, 8-9 March 2001. Summaries of the workshops are available in pdf format.

http://europa.eu.int/comm/environment/ipp/stakeholder_events.htm

Proposals for Electrical and Electronic Equipment legislation:

WEEE proposal (amended text)

COM/2001/0315

RoHS proposal (amended text)

COM/2001/0316

EEE Working Document

http://europa.eu.int/comm/enterprise/electr_equipment/eee/workdoc.pdf

http://europa.eu.int/comm/enterprise/electr_equipment/eee/faq.htm

Other Commission Documents:

Commission White paper on governance

http://europa.eu.int/comm/governance/index_en.htm

Environmental governance

http://europa.eu.int/comm/environment/governance/index_en.htm

Commission White paper on a future chemicals policy.

http://europa.eu.int/comm/environment/chemicals/whitepaper.htm

Other Relevant Documents:

The Nordic Council of Ministers Working Group on product-oriented environmental strategy Workshop report: Integrated Product Policy and the New Approach, October 2, 2001. Stockholm

Workshop report

Integrated Product Policy and the New Approach

October 2, 2001
Stockholm

The Nordic Council of Ministers Working Group on product-oriented environmental strategy

Table of contents

Preface

Integrated Product Policy (IPP) is a public policy that aims at continuous reduction of the environmental impacts that arise along the life cycle of products. In 2001 the Nordic Council of Ministers (NCM) adopted a Nordic product oriented environmental strategy. Its objective is to save resources and decrease environmental impacts of products. The implementation is highly dependent on the development in Europe and globally.

It is often claimed that environmental measures are in conflict with international trade regulations. In 1999, the Nordic environmental sector IPP working group initiated a project to investigate this further. The aim was to review the relationship between international trade rules and IPP. A study was carried out to give an overview of international trade rules, primarily rules of the European Union (EU) and the World Trade Organisation (WTO). The purpose was to identify regulative obstacles to product-oriented environmental protection measures.¹

As a follow-up to the study, the Nordic environmental sector IPP working group initiated a workshop that was held in Stockholm on October 2, 2001. Representative from all Nordic countries participated. The aim of the workshop was to identify possibilities to reduce environmental impacts of products within the framework of the EU and WTO. It also aimed at promotion of the discussion between environmental experts and trade experts in the Nordic region.

This report will be used as background documentation for the European workshop on the New Approach, which will be held in Copenhagen in November 2001. It may be useful for various experts who are working with product-oriented environmental policy. The IPP-working group and the Nordic Council of Ministers are not committed by the conclusions of the workshop.

November 2001

The NCM environmental-sector working group on product-oriented environmental strategy

Eva Ahlner, Swedish EPA (Chairman)
Inger-Grethe England, Norwegian Pollution Control Authority
Sigrun Gudmundsdottir, Icelandic Environmental Protection Agency
Veronica Koutny, Stockholm School of Economics (Secretary)
Christian Poll, Danish Environmental Protection Agency
Asta Reinikainen, Finnish Environment Institute

Summary

On October 2, 2001 the Nordic Council of Ministers working group on productoriented environmental strategy arranged a workshop on the possibilities to reduce environmental impacts of products. The purpose of the workshop was to develop a deeper, common Nordic understanding of how legislative measures can be applied in order to reduce the environmental impacts of products. The workshop also focused on possibilities to use New Approach legislation as an instrument to achieve greener products.

A conclusion from the workshop was that the New Approach clearly has potential as an instrument to achieve greener products. Especially as the New Approach process involves various stakeholders and third world countries.

Another important conclusion is that it is necessary to carefully select the products and product groups that could be appropriate to regulate with the New Approach. The Packaging and Packaging waste directive and the proposed EEE-directive, which in part include New Approach legislation, should be closely evaluated. The potential risks that are associated to use of the New Approach have to be taken into consideration. The success of the New Approach would be facilitated if the European Commission could define more detailed, environmental, essential requirements for products. In line with this, the mandate and instructions to CEN could be more detailed.

The workshop also concluded that it would be of interest to further analyse the possibilities to adopt a directive that puts a general obligation on producers to design products so that they protect human, animal or plant life or health and conserve exhaustible natural resources. Such a directive could, at least in theory, stimulate standardisation bodies to elaborate environmental standards for products.

1 Nordic Workshop about the possibilities to reduce environmental impacts of products within the framework of the EU and the WTO

The Nordic Council of Ministers working group on product-oriented environmental strategy arranged a workshop about the possibilities to reduce environmental impacts of products in Stockholm on October 2, 2001.

Representatives from all the Nordic countries participated in the workshop. The program for the workshop is enclosed in Annex 1 and a list of the participants is enclosed in Annex 2.

On the commission of the Nordic Council of Ministers IPP working group, Linklaters Lagerlöf law firm, prepared a background paper to the workshop. This background paper served as a starting point for the discussion and is integrated in this workshop report.

2 Introduction - Integrated Product Policy and New Approach

Integrated Product Policy (IPP) is an approach, which seeks to reduce the life cycle environmental impacts of products from the extraction of raw materials to production, distribution, use and waste management. The underlying idea is that integration of environmental impacts at each stage of the life cycle of the product is essential and should be reflected in decisions of stakeholders.²

The European Commission Green Paper on IPP states that the role of public authorities within the IPP approach in most cases should be one of facilitation rather than direct intervention. The general idea is that public policy should set the main objectives and provide different stakeholders with the means and incentives to achieve these.

The New Approach is a regulatory technique and strategy. New Approach directives define binding essential requirements from which standardisation bodies elaborate technical standards. New Approach legislation has mostly been used on health and safety aspects of product design.

In the Green Paper the New Approach is seen as a potential instrument to achieve greener products. Three questions that concern the New Approach are put forward in the Green paper:

1. How can IPP contribute to greening the standardisation process and to use the potential of New Approach legislation optimally?

2. How can environmental characteristics become an integral part of the standardisation process?

3. How can the New Approach legislation contribute to the promotion of environmental characteristics of products?

The Workshop mainly focused on the third question (c).

The Green Paper only refers to the possibilities to use the New Approach for environmental protection. Potential risks for the protection of the environment, which are connected with the use of the New Approach, are not mentioned. They are however listed in this report.

Historically, trade issues and environmental issues have been two separate disciplines. Gradually, however, the link between the two has become more visible. The concern with regard to the implications of the connection between trade and environmental issues has consequently grown. When discussing IPP it is hence important to analyse the relationship between IPP and trade rules, both on the international and the European level. In theory, States are sovereign with regard to regulation within their own territories. They should subsequently be free to use whichever tools they want, including IPP, to achieve environmental protection. However, by entering into international or regional obligations, States have restricted their domestic policy options.

3 The international framework

This section provides a background with regard to the legislative international framework. It is divided into three parts. The first introduces three general principles that link trade and the environment. The second briefly describes the WTO framework for trade and the environment. The third part describes the corresponding framework of the EU. A more extensive review of international trade legislation, with a special focus on the rules of the World Trade Organisation (WTO) and the European Union (EU) can be found in the TemaNord report "Trade Regulations and Product Oriented Measures" (2000:549).

3.1 Trade and the Environment

Questions that regard free trade and environmental protection have received increasing attention in recent years. One critical issue regards is if the growing interest in the connection between free trade and the environment should be viewed as a blooming of "sustainable development" or as "eco-protectionism". According to trade-oriented analysts, many environmental policies are covert means to protect domestic producers from international competition. Concerns have been raised with regard to the risk that protectionist ambitions masquerade as environmental protection. On the other hand, environmental analysts often regard trade policies as an important part of environmental policy.

Most analysts of both fields agree upon that trade policy and environmental policy interact. The opinions on the consequences of free trade however vary. Anti-globalisation groups claim that free trade endanger the environment. Their main argument is that requirements for environmental protection will be set by the lowest common denominator since stricter national standards could be regarded as unjustified barriers to trade. Spokesmen for free trade, on the other hand, assert that free trade is a prerequisite for improved environmental protection and raised living conditions in the Third World and elsewhere. This later view is confirmed in the Rio declaration, principle 12, which states:

"States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.

Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus."

In this second paragraph of principle 12 the principle of sovereignty is highlighted, and this principle is also confirmed in principle 2 of the Rio declaration, which states:

"States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."

States have the sole right to decide upon their environment. Another principle that is well established in international law stipulates that states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States. In the Rio declaration this principle has been further elaborated. States have not only the obligation to refrain from damaging other states; they also have an obligation to enact, from their environmental and development context, effective environmental legislation. This is manifested in principle 11 of the Rio declaration:

"States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries."

If a state or the EU want environmental standards for products to be set the considerations above have to be taken into account.

3.2 The WTO Framework for Trade and the Environment

The WTO regulative framework for trade and the environment mainly consists of two parts: the GATT treaty and the TBT-agreement.

The Gatt Treaty

The original goal of the General Agreement on Tariffs and Trande (GATT) is to promote trade through the reduced tariffs and elimination of both non-tariff barriers and non discriminatory trade practises. Two central provisions of the GATT reflect this.

1. Article 1, the Most Favored Nation (MFN) clause, articulates the general obligation of all WTO members to treat goods of one country no less favorably than goods of another country. What the Most Favored Nation Clause means is basically that countries normally cannot discriminate between their trading partners. If one country is granted favourable trading conditions, these must also be given to all other WTO members.
      
2. Article III, the National Treatment clause, prohibits adverse discrimination against foreign products as compared to similar/"like" domestic products. This means that a state can implement an internal regulatory scheme under Art III provided that both domestic and foreign goods touched by the regulation are treated equally. In line with this, Article XI prohibits quantitative import and export restrictions that have a discriminatory effect on the entry or exit of foreign goods. A state can consequently generally not issue a regulation that bans quatitative trade of products. This restriciton is however not absolute; it is subject to the exceptions in Article XX.

Article XX outlines general exceptions that permit WTO member states to enact public policy measures that are inconsistent with the general rules of GATT. In order to be placed within the ambit of Art XX, the measures, according to what is commonly called the "chapeau", must not "constitute arbitrary or unjustifiable discrimination on international trade" or a "disguised restriction on international trade". After these requirements are met, the contracting party must demonstrate that the measure falls into one of the policy objectives listed in Art XX. Even if environment is not specifically mentioned, two of the listed objectives relate to environmental protection and resource conservation:

Art XX (b) [measures] necessary to protect human, animal or plant life or health

Art XX (g) [measures] relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.

This paragraph illustrates the fear that a country may introduce an import ban in the name of environmental protection when the true purposes is protection of the local industry. A regulation can be justified with environmental protection as long as it is not "eco-protective".

The 1994 Agreement on technical barriers to trade ("TBT Agreement")

This agreement seeks to ensure that technical regulations, standards, testing and certification procedures do not create unnecessary obstacles to international trade. WTO member states shall ensure that the technical regulations for products that are imported from the territory of one state shall be treated no less favourable than products of national origin or like products that originate in any other country.

The agreement outlines a code of practise for preparation, adoption and application of standards to avoid creation of unnecessary obstacles to trade. Technical regulations should not restrict trade more than necessary to fulfil legitimate objectives. According to clause 2.2 these objectives include protection of human health of safety, animals or plant life of health or the environment.

Article 2:4 of the TBT agreement stipulates that members must use "relevant international standards" in establishing national technical regulations "except where such international standards or relevant parts of them would be an ineffective or inappropriate means for the fulfilment of the legitimate aim pursued". The term legitimate objective includes, as mentioned above, the protection of human health or safety, animal or plant life or health, or the environment. Reliance on international standards shall provide a rebuttable presumption that such regulations are not barriers to trade.

3.3 EU legislative trade and environment framework

In Annex 3 an attempt is made to clarify what power EU or Member States have to legislate for environmental protection. A more detailed description of the procedure is outlined below. The question is what possibilities a Member State has to regulate in relation to the EU. The answer would define the possibilities for Member States to regulate in order to reduce environmental impact from products. In this context a difference must be made between policy areas where the EU already has adopted regulation or directives ("harmonised areas") and areas where no such EU legislation exists ("non-harmonised areas").

Harmonised areas

Some leeway is given to Member States to maintain or adopt unilateral national legislation pursuant to harmonisation, mainly through Article 95 (4-9) (previously Article 100a (4)). To assess the possibilities for Member States to regulate for environmental protection, Article 176 (previously Article130 t) also is of importance. As a consequence, this section will also deal with Article 176.

Article 95 (1) regulates the possibilities for the EU to adopt harmonisation measures in order to achieve the internal market. When a harmonisation measure has been adopted on the basis of art 95 (1), Member States however still have some possibilities to maintain or adopt more stringent measures. If a Member State after adoption of a harmonisation measure deems it necessary to apply national provisions that relate to the environment or on grounds of major needs referred to in art 30, the Member State shall notify the Commission (95 (4)). Moreover, art 95 (5) states that if a Member State after the adoption of a harmonisation measure deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that member state arising after the adoption of the harmonisation measure, it shall notify the Commission. The Commission is then obliged to within six months approve or reject the national provisions involved after having verified whether or not they are means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market. If the Commission does not decide otherwise, the measure is allowed.

Article 176 allows Member States that have adopted product-related environmental rules under Art 175, to introduce or maintain more stringent protective measures as long as these are compatible with the Treaty. The European Court of Justice (ECJ) has held that the consequences of taking more stringent measures are consistent with the objective pursued by the directive ³ . Hence, art 176 does not confer competence on Member States to adopt less stringent protective measures. It should also be noted that art 176 does not give a basis for adopting protective measures in connection with Community environmental legislation that has not been adopted pursuant to Article 175, but pursuant to other provisions in the Treaty, like Article 95, 133 or 37.

Member States may also have the possibility to take action if the EC measures contain a specific safeguard clause allowing Member States to take own protective measures. Such safeguard clauses, which allow Member States to take provisional measures even in harmonised areas, can be found in Article 95 (10) and Article 174 (2) (previously 130 r). Article 95 states that harmonisation measure shall, in appropriate cases, include a safeguard clause that enables the Member States to take, for one or more of the non-economic reasons referred to in Article 30, provisional measures subject to a Community control procedure. Article 174 (2) states that harmonisation requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.

Non-Harmonised areas

In the absence of harmonisation, the consistency of national environmental regulations with European community law mainly depends on their conformity with the free trade rules in Art 28 (previously Art 30). Art 28 of the Treaty prohibits quantitative restrictions on imports and all measures with equivalent effects between Member States. The European Court of Justice (ECJ) has interpreted "measures having equivalent effect" broadly and stated that it should include "all trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade".⁴

The principle of free movement of goods is however not absolute. Derogation to Art 28 may be made under Art 30 (previously Art 36) on the basis of, inter alia, the protection of health and life of humans, plants or animals, as long as such measures are not means of arbitrary discrimination or a disguised restriction to trade between Member States. Environmental protection is not expressly mentioned as a ground justifying derogation from Art 28. In its judgement in the Cassis de Dijon case ⁵, the ECJ however provided further grounds upon which derogation from Art 28 may be permitted. In this case it was held that in absence of Community measures, restrictions on the free movement of goods resulting from disparities between national laws "must be accepted in so far as those provisions may be recognised as being necessary in order to satisfy mandatory requirements [of the Treaty]…", commonly referred to as the Rule of Reason. Environmental protection is now recognised as such a mandatory requirement. However, the Cassis doctrine can only be applied where the test of proportionality and non-discrimination are fulfilled.

3.4 Environmental Protection within the WTO and EU Frameworks

It is quite obvious that there is an imbalance between free trade and protection of the environment in the WTO legislative trade framework. The main objective in the GATT Treaty and the TBT Agreement is to create free trade. Products shall be able to circulate wherever they are produced, trade barriers are in principle forbidden. States have powers to regulate for environmental protection but these regulations could be considered as trade barriers and must therefore be justified in accordance with the GATT Treaty or the TBT Agreement, if questioned. This means that there is a presumption that products have the right to circulate within the WTO-area unless the individual state has not justified their environmental requirements in question.

This construction lays all the burden of environmental protection on the individual state, while producers have no obligations to take environmental considerations into account.

The same legal construction is found in Art 28 of the EC Treaty and the scope of Art 28 is wider than the scope of the corresponding provisions in the GATT Treaty and the TBT Agreement. There is, however, an important difference between the EU and the WTO. The EU has power to adopt legislation for environmental protection and the protection of environment is one of aims of the EU. WTO on the other hand has neither power to regulate for environmental protection, nor the aim to protect the environment, why imbalance between free trade and environmental protection arise.

This would in practise imply that products would have access to a free market, as long as a state has not justified the environmental requirements in accordance with the GATT treaty and the TBT Agreement, although the product itself does not fulfil essential environmental requirements. If one wants producers to take responsibility for the environmental impacts of the products one may say that there is a need to lay some basic obligations on the producer.

One way to achieve this is to turn the exception for environmental protection in the GATT Treaty (Art XX (b) and (c) and the TBT agreement (Art 2.2) in to a general rule for producers. In an EC directive for products it would be possible to direct that products have to be designed, so that they protect human, animal or plant life or health and conserve exhaustible natural resources.

It would then be possible to give the member states the possibility to prohibit products that are not regulated in another directive on the market that substantially diverge from this general rule. When the member states decide on this they have to take into account that the prohibition does not constitute an arbitrary or unjustifiable discrimination on international trade or a disguised restriction on international trade. They should probably also take principle 11 in the Rio Declaration into account when deciding if the products fulfil the requirements, which in practice would mean that products produced in developing countries would get lower standards. To avoid that member states abuse the powers laid upon them it would be possible to let the EC commission decide if the prohibition in question is in accordance with the directive.

The aim of such a directive would not be to prohibit as many products as possible on the ground that the products deviate from the requirements. The idea is to lay some burden on the producers to take environmental considerations into account when the product is designed. Such a burden would most certainly lead to a voluntary standardisation. It would work as an incentive for producers to elaborate standards for environmental protection since none of the producers would want to risk producing products that could later be banned.

3.5 Conclusions and considerations from the Workshop

	In his presentation, Jouni Alanen, the author of the TemaNord report 2000:549 Trade Regulations and product environmental measures, emphasised that actions to induce the "greening" of products should be taken at the European level. States are however, according to Alanen, free to set their level of protection as long as the principle of proportionality is observed.
	Alanen also pointed out that the TBT agreement forbids unnecessary trade barriers and that it is important to look at the applicability of the TBT agreement.
	Christian Poll delivered some comments from the Danish EPA on the TemaNord report 2000:549. The Danish EPA is of the opinion that the report was too focused on the problems with the EC-treaty and the WTO-rules. It would have been better to focus on the possibilities to work with the greening of products within the framework of the ECtreaty and the WTO-rules, exemplified by the concept of New Approach. According to Poll enterprises can, within a IPP framework, be sectioned into different environmental levels; at the bottom we find enterprises with a red profile (producing the worse products from an environmental point of view), then we find enterprises with a white profile (producing the average products from an environmental point of view) and at the top we find enterprises with a green profile (producing the best products from an environmental point of view). The concept of the IPP is to influence companies to produce green products instead of white products, and to influence consumers to buy green products instead of white products.
	There seemed to be a general approval of the ideas put forward in section 3.5. Several participants thought that it would be interesting to further examine if it would be possible to draft a directive that puts a general obligation on producers to design their products, so that they protect human, animal or plant life or health and conserve exhaustible natural resources. Such a directive could serve as motivation for the standardisation bodies to elaborate environmental standards for products.
	Would it be appropriate to more clearly point out the greening of products as one of the aims of an environmental policy for the EC in article 6 and/or article 174 in the EC treaty? The question was raised during the workshop, but not answered.

4 New Approach

This section is opened with a more extensive description of the New Approach. This is followed by a discussion of the use of New Approach within the WTO framework. The section is concluded with a summary of advantages and disadvantages of New approach.

4.1 What is the New Approach?

To fully understand the New Approach it is important to be familiar with the development that led up to the formulation of the policy. The development of the New Approach is based on the same policy concerns that underlie the Cassis de Dijon case. The cassis doctrine introduced the Principle of Equivalence and Rule of Reason. As long as a product is lawfully produced and marketed in one Member State of the EU it is entitled to access the markets of all other Member States. The Cassis doctrine raised concerns as free trade was promoted with little regulative control or guarantees. It was questioned if national removal of technical barriers to free trade on the basis of Article 28 and 30 was sufficient to secure the realisation of a true common market without simultaneous implementation of additional community-wide legislation.

Decisions by the ECJ based on Art 28 grants a certain amount of uniformity among Member States since no positive actions that are contrary to Art 28 are allowed. In fact, this can be seen as a form of negative harmonisation. However, restrictions to free movement of products, which may be acceptable under Art 28 and 30 of the EC Treaty and the Rule of Reason can only be avoided or eliminated through technical harmonisation on Community level, i.e. positive harmonisation.

The focus of the EC was then widened to include positive harmonisation, i.e. Community regulations. Initially, harmonisation was slow due to that the legislation became highly technical as it had the objective of meeting individual requirements of each product category. Another factor that slowed down the process was that the adoption of technical harmonisation directives was based on unanimity in the Council. It is in this context that the idea of the New Approach developed. In fact, New Approach conforms to the policy concerns that underlie the decision in Cassis.

The New Approach, which included a new regulatory technique and strategy, was laid down by the Council Resolution of 1985 on the New Approach to technical harmonisation and standardisation. "New Approach directives" are total harmonisation measures that define binding essential requirements. Below are outlined certain standard elements of New Approach directives. ⁶

1. Harmonisation is limited to essential requirements;

2. For a product to be placed on the market and put into service it must fulfil the essential requirements;

3. Harmonised standards that have been transposed into national standards are presumed to conform to the corresponding essential requirements. The reference number of these harmonised standards is published in the Official Journal;

4. Producers are free to choose the means by which they demonstrate that products comply with the essential requirements. One way of doing so is by applying harmonised standards;

5. In the applicable directive are outlined different conformity assessment procedures, which the manufacturer may chose between.

As to date, the New Approach and standardisation has mostly been used in legislation on health and safety aspects of product design and manufacturing. The only experience of using New Approach Technique specifically for environmental design of products is made in the Packaging and Packaging Waste Directive ⁷ . It is also included in the planned directive on Electrical and Electronic Equipment (EEE) (Commission's working paper for a proposal for a directive on electrical and electronic equipment, Feb. 2001).

4.2 New Approach within the framework of the WTO

Since the powers for the EU to take actions to protect the environment are quite wide according to the EC Treaty, it is quite possible that EC-regulations concerning environmental requirements for products could get in conflict with Art III or Art XI of the GATT Treaty (see 2.3). The ECregulations (measures) then have to be justified in accordance with Art XX (b) or (c) of the GATT Treaty.

Conflicts can also arise between EC provisions concerning environmental requirements for products and the TBT Agreement. If the product regulation in question falls under the scope of the TBT Agreement, the regulations shall not create unnecessary obstacles to international trade and the regulations shall not be more trade restrictive than necessary to protect human health, safety, animals or plant life or health, or the environment.

4.3 Advantages with the New Approach legislative technique

New Approach directives might provide flexible and efficient means of promulgating EC wide product-related rules displacing a multiplicity of national measures, which possibly could undermine the internal market.8 New Approach directives are more flexible for example because standards adopted in relation to a New Approach directives are more easily altered than a directive which aims at meeting individual requirements of each product category.

New Approach can reduce the possible stifling effect of uniformity. The Parliament/the Council sets the basic rules governing health and safety of products but outside that area the Commission can permit flexibility.9

The New Approach involves industry (mainly via standardisation).10

The New Approach indirectly facilitates the process of enacting directives; the difficulties to reconcile interests of Member States in order to enact "regular" directives containing technical specifications is significant. New Approach forces the parties to agree and thus facilitates harmonisation.

4.4 Disadvantages with the New Approach legislative technique ¹¹ :

The New Approach is appropriate only where it is genuinely possible to distinguish between essential requirements and technical specifications

Products has to be sufficiently homogenous or a horizontal hazard identifiable to allow common essential requirements. Where products vary their characteristics vary and it will be difficult to formulate "essential requirements".

Product area or hazard must be suitable for standardisation Accordingly, the New Approach has not been used in sectors with a well formed structure of legislation adopted prior to 1985, or where provisions for finished products and hazards related to such products cannot be laid down. Areas where New Approach has not been utilised are for example, foodstuffs, chemical products, pharmaceuticals products, motor vehicles and tractors.

"Reliance on the mutual recognition of national standards at the expense of positive harmonisation has a fashionable deregulatory flavour. In the long run, however, harmonisation is more apt to create uniform regulatory environment and produce the full advantages of the single market".12

5 Usefulness of the New Approach for Environmental Protection

This section deals with the possibilities to use the New Approach as legislative mean to achieve environmental protection. The below mentioned views originate mainly from written material provided by Swedish Environmental Protection Agency and from interviews made with people from different authorities and organisations.

5.1 Is the New Approach needed for environmental protection?

The need for the New Approach as an instrument for environmental protection has been questioned. Some people are of the opinion that the scope for states to regulate for environmental protection is wide enough and with the powers for the EU to legislate with ordinary directives for environmental protection, there is no need to use the New Approach. We have about 200 EC directives concerning environmental protection and all Member States have beside these, additional national regulations for environmental protection.

Others claim that these people do not fully understand the implications of art 28 in the ECtreaty. The scope for Member States to regulate is far more limited than opponents to the New Approach understand. Some also assert that new national regulation for environmental protection is undesired, since it will create new barriers to trade, which could have a negative impact on both the whole economy and the Third World companies since they will find it more difficult to compete.

Some in favour of the New Approach as an instrument for environmental protection believe that the New Approach will be a way of achieving a general greening of products. They argue that neither the EU nor individual Member States can regulate the environmental requirements for every product that is deemed to be in need of regulation. That process would be too timeconsuming, too expensive and there are not enough experts. To achieve the greening of products, the EU and state administrations will need help from experts in the private sector. Additionally, it will be difficult to achieve consensus regarding technical specifications that promotes environmental protection on a EU level. A standardisation body would facilitate the conclusion of standards.

5.2 Are technical regulations for environmental protection a real threat to international trade?

There has been doubt about the importance of regulations for environmental protection as a real threat to international trade. It is often said that these regulations will hinder free trade, but it is not shown that this is really a fact. Free trade needs some different regional and national regulations to become fully accepted by the majority of people. For example; their must be some room for France to keep certain regulations for cheese making even if other States might prohibit the method saying it is a health risk and consider the French regulation as a restriction to trade.

Others say that regulations for environmental protection are a threat to international trade. There are several examples of when its has been confirmed that the regulations for environmental protection are merely means to protect national industry and interests.

5.3 Will the New Approach have negative or positive effects for the protection of the environment?

There has been concern that the New Approach will hinder the EU and separate Member States to set stricter standards than the standards harmonised by the New Approach. This will especially be a serious problem if the standards that are set have a low ambition level.

Spokesmen for the New Approach believe that it would integrate a holistic approach to environmental thinking into the product development process. Environmental problem connected with products cannot solely be solved by the EU or state administrations, the questions regarding greening of products are too complicated and indistinct. The private sector has to be involved in the work on greening products and the New Approach will facilitate such involvement.

5.4 In which areas of environmental protection/for what products could a New Approach be appropriate?

To be able to use the New Approach for the greening of products, it is necessary that the products are sufficiently homogenous or that different products have the same identifiable hazards.¹³ Otherwise it will be impossible to set the essential requirements.

There seems to be a general understanding that the New Approach should not be used to regulate hazardous chemicals. That is mainly because of the nature of hazardous chemicals. In all respects it is very important that hazardous chemicals are for example not used incorrectly. A traditional directive focused on meeting individual requirements of that product category offers greater security and protection. However, there are also certain areas that can be singled out as appropriate for New Approach. New Approach seem suited for regulation of certain aspects of the product life cycle that are not regulated in other pieces of legislation and where the effects of each product is less serious. These aspects would be possible to regulate on a product group basis or on effect basis. The question is then if it is possible for the EU to agree on the essential requirements. These requirements will also have to be sufficiently precise and distinct to elaborate further standards. If the EU cannot elaborate essential requirements, it is questionable if there really exist a need to elaborate standards or to regulate products and the environmental effects.

5.5 Is it possible to ensure that standards are elaborated and will the environmental interest be sufficiently taken into account?

Standard of "essential requirements"

The question concerning if it is possible to ensure that standards are elaborated and then if they are, will the environmental interest be sufficiently taken into account relates to the problem mentioned above concerning if essential requirements will be sufficiently precise and distinct to elaborate further standards. The distinction of the essential requirements will also be of absolute importance for the environmental interest to be taken sufficiently into account. If the essential requirements will be sufficiently precise it will be easier to ensure that the environmental interest will be taken into account. If they, on the other hand, are indistinct and imprecise, the risk that the environmental interest is not taken into account is greater.

Environmental concerns in standards

Some people have expressed their concerns, based on the experience from the work in other standardisation projects, that the influence from the producers is far to great in the standardisation process. The publics interest of health, security and likewise, are not sufficiently taken into account. The environmental groups and state administrations have not the necessary means and experts to ensure that the public interests are observed in the standardisation process. They also state that the lack of interest to integrate environmental requirements in standards is proved by the fact that standard that have been elaborated to this point have not integrated environmental requirements.

Others say that the lack of environmental requirements in the present standards is explained by the fact that the neither EU or anybody else had environmental protection in mind when existing essential requirements were set. One cannot expect technical standards for environmental protection to develop if no one has been able to even set the essential requirements. It would also be easier for environmental groups (NGOs) and state administrations to monitor and ensure that the environmental interest will be taken into account if the essential requirements for a product group or type of effect are regulated. NGOs and state administrations would then know what standardisations groups to cover. Today NGOs and state administrations are trying to cover all groups of standardisation, without knowing which one of the standardisation groups that could be of interest - and none of the standardisation groups have a clear mandate to take environmental requirements into account.

5.6 Will the New Approach hamper international or national environmental regulations? Can this be avoided?

There is no explicit prohibition in the EC treaty that will hinder the EU to amend directives adopted in accordance with New Approach or adopt new legislation that replace the New Approach directive. In practise, however, it will be very difficult to remove a New Approach directive when standards have been elaborated.

The possibilities for the Member States to require stricter standards than the essential requirements and the adjoining standards will be difficult owing to the fact that the New Approach directives are adopted in accordance with Art 95 EC treaty (se 2.4). The New Approach directives do, however, usually include a safeguard clause. The possibilities for the Member States to use the safeguard clause are rather limited.

5.7 Conclusions and considerations from the Workshop

The questions in section 5.1-5.6 were discussed during the workshop. The participants' opinions diverged quit frequently in line with the discussion in 5.1-5.6. Most of the workshop participants however seemed to agree on the following matters:

	There is a risk that the standardisation process will create standards based the lowest common denominator. This risk has to be observed if the New Approach is to be used for the greening of products.
	The New Approach can be suitable for products that involve a lot of technical specifications.
	New Approach directives can, and should, add a life cycle perspective into the area regulated. This will be difficult to achieve in other ways.
	The success of the New Approach would be facilitated if the European Commission could define more detailed, environmental, essential requirements for products. In line with this, the mandate and instructions to CEN could be more detailed.
	The New Approach process involves other parties than the government. This will raise the level of consciousness of various stakeholders and lighten the burden on the public authorities.
	If New Approach directives are used, governments can focus on essential requirements and would then be able to handle more product categories without getting caught up in discussions of technical specifications.
	It is only advisable to use the New Approach in homogenous, well-defined areas. It was questioned if the area covered by the proposed EEE-directive is such a homogenous, well-defined area, or if it is homogenous but maybe too wide. The lack of success of the Packaging and packaging waste directive 14 , could maybe be explained by this fact as it does not cover a homogenous, well-defined area.
	The essential requirements should not be used to eliminate differences in political opinions. These should be eliminated at the political level and not by standardisation bodies. The standardisation bodies can however sort out technical differences.
	The New Approach should not be used for products where the environmental impacts from the products are unambiguous. This applies for example for hazardous chemicals with chronic health or environmental effects.
	An advantage with the New Approach directives is that they involve third world countries through the Vienna Agreement where CEN and ISO adopt each other's standards by a short procedure.
	It would be interesting to examine if it is possible to introduce environmental requirements into already existing New Approach directives.

6 Final conclusions from the workshop

The workshop participants seemed to agree upon that environmental requirement for products should be set on the European level. The pros and cons of using New Approach directives in the environmental field were vividly discussed. Some of the participants preferred "traditional" directives, while others referred to these directives as being "stone age" directives.

One obvious conclusion is that the concerns raised in connection with New Approach directives has to be taken into account. The Packaging and Packaging waste directive and the EEEdirective should be thoroughly evaluated.

It is however also quite obvious that the New Approach could have great advantages, for instance increased stakeholder involvement. Furthermore, it would be possible to develop standards including environmental requirements, much faster than ordinary directives can be adopted, while avoiding conflicts with the WTO-regulations. Most of the experiences of the work with standards under New Approach directives until now has however not shown impressing speed improvements, rather the opposite.

It is also in this context important to further analyse if it would be possible to adopt a general directive that puts oblige producers to design products that protect human, animal or plant life or health and conserve exhaustible natural resources. Such a directive could, at least in theory, stimulate the standardisation bodies to elaborate environmental standards for products.

Annex 1: Workshop Program

Annex 2: Participants

Annex 3: The possibilities to regulate for environmental protection

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