3.2.1. The first phase 1972-1987:
From the legal point of view the decision to launch an environmental policy was justified on the basis that legislative measures on the environmental front referred either to Treaty of Rome Article 100 (harmonization) or Article 235 (minor Treaty amendment). Both provisions require that the Council be unanimous. The first phase of the EC’s environmental legislation is therefore characterized by the fact that all measures have been drawn up on the basis of the requirement of unanimity.
In 1975 an independent General Directorate (GD XI) was constituted to deal with the environment, consumer protection and nuclear safety. With a staff of 300 (1994 figure), it is one of the smaller General Directorates, though.In the years since 1973, work has been based on several environmental action plans. These were mainly programmes stipulating what legislative measures should be adopted; these are only of historic interest now, although the measures remain. During the period 1972-1987, approx. 140 Directives were issued. The individual measures are discussed later under the environmental aspects to which they relate. In my opinion, the trend during that period can be summarized under four points:
The first is that the EC tried, with a certain degree of success, to draw up some fundamental but often rather general rules for environmental administration. The aquatic environment, waste, hazardous waste and groundwater Directives are of that type. The most characteristic of the period is the Environmental Impact Assessment (EIA) Directive (85/337) which has subsequently come to be considered by the European Parliament and others as a cornerstone of EC environmental administration.
The second is that the harmonization work concerning chemical substances and vehicles came to be seen as an environmental matter. Thus while the purpose of harmonization had for many years been almost solely to ensure a common market for these important industrial products, the environmental aspect started to gain more legitimacy.
The third is the issuance of a number of Directives in response to specific incidents - something that is also known from national legislation - examples being the Directive on major-accident hazards of certain industrial activities ("Seveso") (82/501) and the Directive concerning transfrontier shipment of hazardous waste ("Post-Seveso") (84/631). The fourth is that the EC was not permitted to intervene in national pollution problems with economic consequences of a really sensitive magnitude. Although the Commission was generally astute at manoeuvring around hidden problems, a few Directives became irremediably stranded on such problems.
3.2.2. The second phase 1987-1993:
The Single European Act entered into force on 1 July 1987. It was the blueprint for the EC Internal Market and imparted on the Treaty of Rome specific provisions on environmental policy (Article 130R-T). However, of even more importance for environmental policy was the fact that the new harmonization provision on environmental requirements, Article 100A, furnished the Council with powers to reach decisions by statutory majority. A further consequence of the Internal Market was that physical control of goods at borders ceased at the end of 1992.
The period is characterized by a much greater willingness to reach decisions than in the preceding period. Thus the total number of Directives and Regulations adopted in these six or so years was approx. 110, and processing time was generally far shorter than in the preceding period. The most striking tendency during that period was that the EC passed a number of environmental requirements which have considerable impact on the environment of Europe if they are complied with by Member States. Examples are the Directives concerning large combustion plants (88/609), municipal waste incineration plants (89/369 & 89/429), and urban waste water treatment (91/271).
The end of the period - 1993 - saw the adoption of the Fifth Environmental Action Plan, which runs until the year 2000. While this programme is not precise in stipulating contemplated measures, it does point out the environmental problems facing Europe. The programme prioritizes activities aimed at combating pollution from the industrial, energy, agricultural and transport sectors, as well as the destruction of nature caused by tourism.
During this phase there was an increasing tendency for the Commission to legally justify its environmental initiatives on the basis of the Treaty of Rome harmonization provision (Article 100A), rather than the environmental provision (Article 130S), the aim being to strengthen the influence of the European Parliament. It even came so far as to lead to lawsuits between on one side the Commission and the Parliament, and on the other side the Council, as to whether the legal basis for a measure was rightfully Article 100A or Article 130S. The court sided with the Commission and the Parliament in the first case, but with the Council in the subsequent two cases.
There was also an increasing tendency to make use of Regulations as a means of regulation, the first twenty or so environmental Regulations having been adopted during the second phase. The reason for the EC using this regulatory approach was probably that one would expect to achieve greater uniformity among Member States with rules that have to be applied directly.
3.2.3. The third phase after Maastricht:
The Maastricht Treaty entered into force on 1 November 1993. It encompasses a number of amendments to the Treaty of Rome in the direction of closer cooperation. One of the changes is that rules relating to most environmental questions can now be passed by a Council statutory majority. However, unanimity is still required in the case of rules relating to environmental levies, town and country planning, land usage, management of water resources and energy supply. Another change is that the newly established Cohesion Fund can be used to support particularly costly environmental measures. The Cohesion Fund aims to help the less well-off Member States.
From the legal point of view it has thus become easier for the EC to
take action on the environmental front. Political opinion is currently (1995) more
problematic, however. In 1993 attempts were made to reach agreement on a CO2 levy as the
EC’s contribution to combating the greenhouse effect. The Commission strongly
supported the idea, and Holland and Denmark had already introduced such a levy on a small
scale. Several of the large Member States halted the initiative, however. Roughly the same
circle of Member States have also raised a discussion on to what extent the EC has
complied with the subsidiarity principle, i.e. the principle that the EC shall only
involve itself in tasks that Member States cannot deal with themselves. Directives such as
those on urban waste water treatment, drinking water and bathing water quality are
mentioned as examples where the EC has gone too far. At the present time there is not much
to indicate that the Directives already enacted will be repealed or weakened. However, the
EC’s progress in environmental matters might well be affected.