The development of European environmental law

slide1. The development of European environmental law Prof.ssa Sveva Del Gatto<br>
slide2. European Union environmental Law In the European Union's legal system, environmental protection is the subject of specific discipline and constitutes a "proper subject matter" within the various subjects of European law.
Environmental policy is one of the main areas in which EU action is expressed.
The pursuit of sustainable development in the determination and implementation of all other EU policies and actions is now an inescapable goal for the European institutions.<br>
slide3. The European Environmental Law This is the outcome of a long and gradual evolutionary process.
In the original version of the founding treaty of the EEC there was no mention of the environment being the constituent purposes of the Community initially only of an economic nature.<br>
slide4. The development of EEL From the Treaty of Rome to the present day, the Union's competencies have been extensively developed and significantly enhanced exponential growth of the role exercised by the Union in environmental matters.
In the first version of the Treaty, the European Community did not have its own competencies in environmental matters.
Today maximum influence on national regulations and high credibility on the international stage.<br>
slide5. The stages of the development of European environmental law First phase: from the Treaty Establishing the EEC (1958) to 1972
Second phase (1972- 1987): The first embryos of environmental policy are established
Third phase: from the Single European Act to the Treaty of Amsterdam (1987-1993)
Fourth phase: Maastricht Treaty (1993 to 1999)
Fifth phase: 1999 to the present<br>
slide6. 1957 The Treaty of Rome The 1957 Treaty Establishing the European Economic Community did not contain any specific reference to environmental policy, given that at that historical period public opinion essentially trusted in the virtues of economic growth and the inexhaustibility of resources, in the absence both of imminent environmental concerns and of organizations, including nongovernmental organizations, carrying ecological demands.<br>
slide7. 1957 The Treaty of Rome At that stage, in fact, the contracting parties did not see the need for a common environmental policy: the danger was not yet tangible, and far more urgent were deemed other policies, such as agricultural and industrial.<br>
slide8. 1960-1970 -Legal issues and developments. Toward the end of the 1960s and the beginning of the 1970s, when environmental problems began to emerge, a number of issues related to the European Community's political action and regulatory interventions to protect and safeguard the environment arose.
These acts were mostly aimed at the control and labeling of chemicals and hazardous substances, the protection of surface waters, and the monitoring of pollutants.<br>
slide9. 1960-1970 Until the 1960s, the perception of environmental problems caused by human production and consumption activity was not to most of the population and political class, but was limited almost exclusively to scientists and scholars. 
It was because of the recurrence of accidents, mainly at sea and related to hydrocarbons, that caused general interest and led to the decision to hold a world conference on the environment.<br>
slide10. 1960-1970 The early stages of environmental policy in EU are characterized by a vertical approach, consisting of the adoption of individual sectoral interventions; 
While it marks the first successes in the control of pollution phenomena and helps to initiate a debate and interest, which will gradually grow in the following years.<br>
slide11. 1972 – The Paris Summit In 1972, more specifically during the Paris Summit held in the French capital from October 19 to 21 of that year, at which, heads of state or government in the wake of the first United Nations conference on the environment declared the need for an EU environmental policy to accompany economic expansion through the call for an action program.
The Paris Summit is often used to pin point the beginning of the EU's environmental policy.<br>
slide12. United Nations Conference on the Human Environment, 5-16 June 1972, Stockholm The first world conference on the environment
The 1972 United Nations Conference on the Human Environment in Stockholm was the first world conference to make the environment a major issue. The participants adopted a series of principles for sound management of the environment including the Stockholm Declaration and Action Plan for the Human Environment and several resolutions.<br>
slide13. United Nations Conference on the Human Environment, 5-16 June 1972, Stockholm The 'importance of that conference, lies in the fact that it represented the official recognition that environmental problems affect the standard of living, are international in nature and require cooperation to be solved.<br>
slide14. United Nations Conference on the Human Environment, 5-16 June 1972, Stockholm The notoriety of the Stockholm Conference, however, is linked to the guiding principle of that act, as enunciated in the preamble, namely, the realization that we had reached a point in history when "we must conduct our actions throughout the world with more prudent attention to their consequences for the environment."<br>
slide15. United Nations Conference on the Human Environment, 5-16 June 1972, Stockholm The defense and improvement of the environment must, therefore, become "an imperative goal for all mankind," to be pursued along with the fundamental goals of world peace and economic and social development.<br>
slide16. United Nations Conference on the Human Environment, 5-16 June 1972, Stockholm At the Stockholm Summit it was declared that "economic growth is not an end in itself [...] but should result in an improvement of life and general well-being. [...] In accordance with the basic features of European culture, special attention should be given to intangible values and environmental protection.<br>
slide17. The Stockholm Declaration The Stockholm Declaration, which contained 26 principles, placed environmental issues at the forefront of international concerns and marked the start of a dialogue between industrialized and developing countries on the link between economic growth, the pollution of the air, water, and oceans and the well-being of people around the world.<br>
slide18. The "Framework for Environmental Action" The conference also produced the “Framework for Environmental Action,” an action plan containing 109 specific recommendations related to human settlements, natural-resource management, pollution, educational and social aspects of the environment, development, and international organizations.<br>
slide19. The "Framework for Environmental Action" The Action Plan contained three main categories: 
a) Global Environmental Assessment Programme (watch plan); 
b) Environmental management activities; 
(c) International measures to support assessment and management activities carried out at the national and international levels. 
In addition, these categories were broken down into 109 recommendations.<br>
slide20. The "Framework for Environmental Action" The final declaration was a statement of human rights as well as an acknowledgment of the need for environmental protection.
The first principle began: 
“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.”
The need to preserve the environment was not placed in opposition to economic development. In fact, their interdependence was explicitly stated in principles 8 and 9.<br>
slide21. The legal basis of the EU environmental law The justification for the need for an environmental policy was found in the fact that according to Article 2 of the Treaty,
The European Economic Community has the task of "promoting a harmonious development of economic activities throughout the Community; a continuous and balanced expansion and an ever more rapid improvement of living conditions".<br>
slide22. The legal basis ARTICLE 2 Tr. CE
It shall be the task of the Community to promote, through the establishment of a common market and the gradual approximation of the economic policies of the Member States, a harmonious development of economic activities throughout the Community, a continuous and balanced expansion, increased stability, a rising standard of living and closer relations between the states participating in it.<br>
slide23. Looking for harmonizations The harmonising intervention of the European Union (then the European Community) was aimed at eliminating any discrimination arising from differences in the protection of certain environmental standards between the various Member States.<br>
slide24. The legal basis Evolutionary interpretation of this provision aimed at identifying in the text the first signs of the concept/principle of sustainable development.
This is clear from reading the declaration of the Heads of State meeting in Paris.<br>
slide25. Legal basis: articles 2, 100 and 235 Based on articles 100 and 235 and on an evolutionary interpretation of the art. 2, environmental protection programs and measures were adopted for the harmonization of national directives having an impact on the functioning of the common market.<br>
slide26. Legal basis ARTICLE 100 Tr. CEE
The Council, acting unanimously on a proposal from the Commission shall issue directives for the approximation of such laws, regulations and administrative provisions of the Member States as directly affect the establishment or functioning of the common market.
The Assembly and the Economic and Social Committee shall be consulted on the directives the implementation of which would entail, in one or more Member States, a change in legislative provisions.<br>
slide27. Legal basis Article 235 Tr. EEC
When Community action is necessary to achieve, in the functioning of the common market, one of the objectives of the Community, without that this Treaty has provided for the powers of action required for this purpose, the Council, acting unanimously on a proposal from the Commission and thereafter having consulted the Assembly, makes the necessary provisions.<br>
slide28. Art. 2 and EU Actions Programs In the various action programs in the environmental field that have followed one another starting from 1972, this motivation has been taken up and expanded several times, affirming:
"I refer on the one hand to the achievement of the objectives referred to in the art. 2 of the Treaty"<br>
slide29. Art. 2 and EU Actions Programs This connection whit art. 2 can't be conceived without an effective fight against pollution and other harmful factors, nor without the qualitative improvement of living conditions and the protection of the environment"; 
On the other, we can see affirmed: «it is necessary to prevent member states from adopting divergent measures likely to cause economic distortions in the Community'.<br>
slide30. Legal basis and Environmental Action Programmes Since then, several Environmental Action Programmes have been adopted, anticipating and consolidating the gradually increasing development of a real environmental policy. 
In addition to being a moment of discussion and in-depth analysis of environmental issues, they have also provided the basis for anticipating the content of the sectoral regulatory acts subsequently approved.<br>
slide31. Objectives of the first two programmes The first two environmental action programmes established the centrality of the environmental interest in relation to any type of programme or decision even of an economic nature adopted by the EEC.
They established the principle of the prevention of pollution as a criterion to be preferred to subsequent rehabilitation and restoration interventions, as well as the principle of charging the costs for the prevention and elimination of pollution to the person responsible (the "polluter pays" principle).<br>
slide32. 1977 –1981 The Second Action Programme by EU The Second EAP  was essentially a follow up to the first in terms of approach and objective, with simply a greater range of problems to be dealt with.
Nature Protection received special attention.
In terms of a practical approach the First and the Second Programmes  advocated quality values for water and air.<br>
slide33. Community directives on environmental protection belong to this period: Directive No. 75/442 on waste
Directive No. 76/464 on dangerous substances in water
Directive No 78/319 on toxic and harmful waste
Directive No 79/409 on the conservation of wild birds
Directive No 80/779 on air quality<br>
slide34. The third action programme (1982-1986) The third action programme  laid the foundations for the construction of a genuine environmental policy by providing, alongside the traditional measures on the control and containment of pollutants, a policy of preventing damage to the environment.
During this period, the following acts were adopted: 
Directive n. 84/360 on atmospheric emissions from industrial plants
Directive n. 85/210 on lead content of petrol
Directive n. 85/337 on environmental impact assessment<br>
slide35. Towards the Internal Market 1982 - 1987 The Third EAP (1982 - 1986) and partially the Fourth (1987 - 1992) reflect a considerable change in policy approach, being much more closely related to the completion of the Internal Market than their predecessors. 
The Third EAP emphasised the potential risks and benefits of environmental policies to the Internal Market and issue linkage between the internal market and environmental policies became a key driver for programming and activities.<br>
slide36. Towards the Internal Market 1982 - 1987 The Third EAP shifted from a quality approach to an emission-oriented approach. 
It proposed formulating emission limit values for stationary, as well as mobile, sources.
But beyond this new approach, in order to introduce better filter technologies for the reduction of emissions at the “end of the pipe”, the objectives of the first and second EAPs were restated.<br>
slide37. Towards the Internal Market 1982 - 1987 The Third EAP also made positive reference to the first global strategy for “Sustainable Development” formulated by the IUCN in 1980. 
Waste avoidance, efficient resource use and integrated environmental technologies were some of the objectives of the third EAP.
The practice of environmental policies during the eighties was particularly concerned with cleanair policies, and noise and risk management for industrial sites.<br>
slide38. Towards environmental policy integration 1987 – 1992 (the Fourth EAP) 1987 is often seen as a turning point in EC environmental policy, since environmental protection received its own chapter in the Treaty. 
Yet in terms of approach and practice, one finds much more continuity than change, with the Treaty codifying many principles, which can already be found in earlier policy documents.<br>
slide39. Towards environmental policy integration 1987 – 1992 (the Fourth EAP) As with the Third EAP, the economics of European environmental policies remained central to the thinking behind the Fourth EAP, with an assumption of harmony between the objectives of the internal market and environmental protection.<br>
slide40. Towards environmental policy integration 1987 – 1992 (the Fourth EAP) The harmonisation of environmental standards was to take place at a “high level”. Harmonisation at a high level was justified as an essential component of the competitiveness of European industries in global markets. 
If this condition were met, national measures, which might distort free trade, would not be necessary.<br>
slide41. The Fourth EAP The Fourth EAP marks a further change in the approach to environmental policy. 
The shortcomings of the earlier approaches (i.e. quality policy, emissions orientation) were recognised. 
An approach which relied entirely on environmental quality objectives was recognised as shifting problems to other media or other regions (the case of long range transboundary pollution).<br>
slide42. A more integrated approach The Fourth EAP instead proposed a more integrated approach.
For the first time, environmental protection was not perceived as an additive, but rather as an integrated activity within the whole production process. 
Part of the integrated approach was to reduce energy or material inputs and to close cycles, so that waste streams could be minimised.<br>
slide43. A more integrated approach Therefore the Fourth EAP started to discuss a “sectoral approach”, analysing the impact of strategic economic sectors on the environment. 
For the first time ever, the evaluation of new, incentive based instruments, such as taxes, subsidies or tradable emission permits was announced.<br>
slide44. The strategic reorientation of environmental policies in the EC (now EU) This was an initial commitment for the strategic reorientation of environmental policies in the EC, which gradually took place between 1989 and 1994.
The ideas of the Fourth EAP (integrated approach, sector analysis, new instruments) were further elaborated in the following years.
This change is often characterised as a “paradigmatic change”, a change from “trade orientation” to a “sustainability frame”.<br>
slide45. The strategic reorientation of environmental policies in the EC (now EU) Environmental policy was less perceived as an additive policy and more as an integrated part of economic decision-making. 
“Sustainable development” gradually became a normative reference for environmental policy in the EU from the beginning of the 1990s onwards.<br>
slide46. Other Factors that contributed to EUEL development A number of external factors contributed to the further advancement and elaboration of the new policy approach. 
Among the most important were 
the emergence of new global threats, 
the respective preparations for the UNCED conference in 1992, 
the wider support for economic instruments 
and a new wave of environmentalism in Europe.<br>
slide47. The end of  the 1980s At the end of the 1980s, the debate on global environmental risks, especially that relating to climate change, reached the official agenda.
Since 1985 a number of international conferences had been urging for dramatic policy changes.<br>
slide48. The end of  the 1980s In 1988, following an initiative from the European Parliament taken two years earlier, the Commission reacted to those international changes with its first general communication to the Council.
In its second communication to the Council in 1990, the Commission proposed a strategy to stabilise emissions by using a mix of efficiency standards, fiscal instruments and research.<br>
slide49. The end of the 1980s At the end of the 1980s, a new regulatory approach for environmental policies was promoted by the Commission -- especially the use of indirect, economic instruments. 
The Task Force Report on the Internal Market and the Environment (1989) was not the first document but the most explicit early document to propose environmental taxes.<br>
slide50. The end of the 1980s The different initiatives of the Commission became authorised by the "Dublin Declaration" of the European Council from June 1990, which asked the Commission to prepare a communication on "economic instruments". 
In the following years, several studies on the economic, social, and environmental impacts of these new instruments were edited.<br>
slide51. The Fifth Environmental Action Programme (1992 - 1999) This strategic reorientation was then explicitly formulated in the Fifth Environmental Action Programme 
Among the most interesting and innovative elements of the Fifth Environmental Action Programme were:
--<br>
slide52. The Fifth Environmental Action Programme (1992 - 1999) Reference to the sectoral approach, which integrates an environmental dimension into the most polluting sectors (transport, energy, agriculture, etc.), and the limits of old end-of-pipe approaches. 
Instead, the action programme proposed structural change in favour of public transport, energy efficiency and waste prevention.<br>
slide53. New instruments The emphasis on new instruments, especially on market-oriented instruments such as fiscal incentives or voluntary instruments, which strengthen producers and consumers own interests in environmental decision-making. 
The new consensus-oriented approach taking into account the crucial role of non-governmental protagonists and local/regional authorities to represent the general interest of the environment. This may contribute to innovative concepts, raise public awareness, and enforce the implementation of EU directives.<br>
slide54. The Single European act The Single European Act introduced a new title in the third part of the Treaty of Rome, called "Environment", which made it possible to launch real action by the European Economic Community in this field.
Thus giving environmental policy a formal legal basis and at the same time setting three main objectives in the matter: 1) protection of the environment, 2) protection of health humane, 3)prudent and rational use of natural resources;<br>
slide55. The evolution of EL within the Treaties Environmental competences enter the Treaty of Rome with the Single Act European Union, which inserts a new Title VII, dedicated to the "Environment", established from three articles: 130R, 130S and 130T.<br>
slide56. The Single European act and  the three fundamental principles of EU environmental policy: With the Single European Act came the three fundamental principles of EU environmental policy: the principle of preventive action, remediation of damage at source and the polluter-pays principle. 
Article 130R stipulated that environmental policy should be integrated with other Community policies, such as industrial, agricultural and energy policy, calling on the European Community to take all necessary measures to ensure its effective development and prompt implementation.<br>
slide57. The evolution within the Treaties The art. 130R, paragraph 1, in particular assigned to community law the task "of preserving, protecting and improving the quality of the environment", contributing protecting people's health and ensuring prudent and rational use of natural resources.<br>
slide58. The Single European act and  the three fundamental principles of EU environmental policy: The principle of subsidiarity was to play a pivotal role in determining the appropriate level of environmental decision-making.
It was also stipulated that decisions on environmental matters should be taken unanimously.<br>
slide59. The first uses of the subsidiarity principle In the community legal system, the principle of subsidiarity found its first application precisely in this sector, highlighting that the Community acts within the limits in which the community objectives of safeguarding the quality of the environment and human health can be pursued in a more adjusted by the higher level (art. 25).<br>
slide60. The first uses of the subsidiarity principle This principle has played - and still plays - a fundamental role in the creation of a supranational environmental regulation, considering that the Union's action, due to its scope and effects, may be more suitable for the pursuit of a specific purpose compared to that taken at state, regional and local levels.<br>
slide61. The Maastricht Treaty These competences were subsequently expanded with the Maastricht Treaty on the European Union of 1993, which gives action on environmental matters the rank of true EU policy (Article 130R).
With the Maastricht Treaty, environmental protection entered the Preamble, while "sustainable and non-inflationary growth that respects the environment" is included among the tasks of the Community in art. 2.<br>
slide62. The Maastricht Treaty The environmental provisions are moved to a specific Title XVI, always entitled "Environment", and the three fundamental principles included in Treaty in 1987, a fourth is added: the precautionary principle.
The principle that decisions in the environmental field can be adopted on the basis of a qualified majority is also introduced.
With the Treaty of Amsterdam of 1997 the EC Treaty and the Treaty on Union European Union receive a new numbering. Items 130R to 130T come inserted in Title XIX and become articles 174, 175, 176<br>
slide63. The Treaty of Amsterdam The Treaty of Amsterdam makes environmental policy one of the fundamental political objectives of the Union, with its inclusion in art. 3.
The tenor of the art. 2 is partly modified, which provides for the integration of environmental needs in the definition and implementation of other community policies and actions, taking up the provisions of the art. 130R.<br>
slide64. The Treaty of Nice and the Charter of Fundamental Rights The Treaty of Nice did not provide for substantial changes to this structure.
The Charter of Fundamental Rights proclaimed in Nice in 2000 provides a specific article dedicated to the environment. In fact, the art. establishes 37 that « A high level of environmental protection and improvement of its quality must be integrated into Union policies and guaranteed in accordance with the principle of sustainable development".<br>
slide65. No binding effect The subsequent Treaties of Amsterdam and Nice, as well as the Charter of Fundamental Rights, which at the time had no binding effect, were therefore limited to consolidating community environmental policy without making substantial changes.<br>
slide66. The Treaty of Lisbon The Treaty of Lisbon took a further step forward with the provision of the Union's commitment to work 
"for the sustainable development of Europe, based on balanced economic growth [...] and on a high level of protection and improvement of the quality of the environment" (art. 3, par. 3, TEU).<br>
slide67. The Treaty of Lisbon The entire Title XX of Part Three of the TFEU has been dedicated to the specific regulation of the environment, in order to strengthen this shared competence of the Union and deal with the consistency and dimension that pollution has assumed.<br>
slide68. The European Green Deal In November 2019 the European Parliament declared a climate emergency. After a few days, the commission presented a new strategy, called the "European green deal", divided into a series of action plans and aimed at realizing the European commitment to achieving climate neutrality.<br>
slide69. The European green deal The European green deal is based on the United Nations 2030 Agenda, of which it is an integral part, but identifies additional, more ambitious objectives.
In particular, that of reducing greenhouse gas emissions by 55% by 2030, compared to 1990 levels.<br>
slide70. The European green deal The Green Deal sought to accelerate the Union's action and change its approach compared to the more prudent attitude of the past, given that it placed the issue of environmental protection at the center of the Union's political agenda. 
Indeed, with the Green Deal, environmental programming is not only on the sidelines in the definition of the European Union's political intervention plan, but takes on the role of an engine for the realization of sustainable development and for overcoming the current crisis caused by the pandemic from Covid-19.<br>