European Union - New Member States. Expectations and Fears

Conference: "European Union - New Member States. Expectations and Fears"

Club de Bruxelles, Brussels 10th February 1995

Third Debate Environment

How can an environment policy be developed by the EU to match environmental standards in the new Member countries?

What impact will the EU environment guarantee have?

General statement by Domingo JIMENEZ-BELTRAN

Executive Director of the EEA Copenhagen

Note: The opinions expressed by the speaker are of a personal nature and do not necessarily reflect the views of the EEA, the European Commission or any other Community Institute.

1. First of all, I would like to thank the organisers for inviting me to participate in this debate, only a few weeks after the incorporation of the New Member States. Let me give them an environmentally friendly welcome.

2. Allow me to take this opportunity, not only to provide some elements for the debate, but also to pledge for the increased role of efficient environment information and, therefore, of the European Environment Agency and of the European Information and Observation Network in the progress of an efficient Environmental Policy that is in fact the answer to all our questions.

3. Since efficiency is one of the pillars of sustainable development (the other is equity), let me express my views as concrete statements that I am ready to explain during this debate; most of them being references to, or conclusions of articles or papers I have recently produced.

4. The question is not how to develop, or implement, the EU environmental policy to match standards in the new Member countries (something that, in part, we are already mandated to review under existing procedures), but how to develop and implement EU Environmental Policy as defined in the Treaty (Art. 2 and 130 R.S.), which we often forget, in an efficient and progressive way so that environmental standards or environmental quality (standards and other means what we call the "right mix") improves in the EU, in general, (and including the contribution to global problems) and in every one of the Member States. And on a higher level what could happen should the EU not exist and/or the concerned Member States not being part of the EU.

5. The fact that the EU Environmental policy has to be improved and above all be more efficiently implemented is unquestioned, as, it is also clear, that the potential threats to the Environment have increased along with the push to economic policies and development provided by the EU reality. But I am most interested in evidence showing that, generally speaking, any single EU Member State could have done better at national and international level without, or, outside the EU EU (of course, some particular exceptions, cases or situations can be found).

In principle, the EU should be providing a framework to do better in the environment, as shown in practical terms by the citizens of the Member States claims to the Commission Services, trying to find the comfort of the EU Environmental legislation and of the still limited EC enforcement capacities in their struggles both with the environment situation in their Member States and with their own administrations.

Another approach is to give full evidence on whether this improvement overcomes the increased potential threats. While it is not what is asked for here in this debate, I can still say that since these developments are now being more exposed and under surveillance through many different environmental mechanisms or general mechanisms (Environmental Impact Assessments). (Procedures for allocation of Funds), the possibilities of environmental control or improvement are also expanded under the EU framework.

6. So I firmly believe that both the EU Environment and that of the new Member States will benefit from their incorporation and that this will provide for new potential in the development and implementation of EU Environmental policy.

7. It is expected, in this regard, that the New Member States participate actively and increase the push for the general progress of the EU Environmental Policy and that for this progress to cover, or go beyond, some more strict regulations that they already have in some specific areas of concern to the Internal Market (Art. 100A) related in particular to hazardous chemicals (classification and labelling requirements of chemicals and pesticides, marketing and use of cadmium, PCP, organostiannic compounds, calcium in fertilisers, composition of batteries) or product specifications (benzene in petrol, sulphur in gasoil) but also in other environmental areas, in particular, in the trasport and energy sector (Art. 130S).

The EU should be receptive and interested in this active participation. The provisions of Art. 100A requesting a high level of protection (referred to also in the Accession Treaty) in the case of harmonised rules, and the general application of the precautionary principle mandated in Art. 130R, should provide for an effective review of these issues under the provisions of the Accession Treaty and to come to a satisfactory result in environmental terms since some of these issues are already under analysis under the EEA Agreement and even in international fora.

We should have the confidence to achieve this, while at the same time apply for a more global and faster progress in these transitional years and not only to attempt to reach the new Member States standards, of course, this, at least, should be achieved.

8. In practice it is expected that the new Member States will participate actively in the reinforcement and acceleration of the development of the existing EU environmental policy as defined in the Treaty, and developed in the 5th Action programme, already pushing not only for the obliged review of the standards where theirs are stricter (initiatives should be taken by the Commission and presented to the Council or the Committees for technical adaptation), but also for precise areas already identified in the negotiations (motor vehicle emissions, fuel specifications, economic instruments, areas of transport and energy, in general, and of environmental improvement of products).

9. Should at the end of 4 years, the review process not achieve satisfactory results or not arrive at similiar EU standards, or that have the same effect, which does not look as though it will be the case, (considering the reference to high level of protection and together with the precautionary principle) then the Accession Treaty still provides for the new Members invoking Art. 100A 4 or "environmental guarantee" since it clearly mentions that at the end of the transition period the entire EU "acquis" will apply to them in the same conditions as in the existing Member States, besides I do not see how it could be any other way.

10. In this context the EEA by providing efficient information to frame and implement the EU and national environmental policies and assure public information and participation should also reinforce this development.

11. This brings me to the second question related to the impact of the "environmental guarantee".

It is understood by that the facilities provided by Art. 100A.4 allowing Member States, when harmonisation measures have been agreed by qualified majority, to apply more strict measures in relation to environmental protection under determined circumstances and submitted to a control procedure.

The formulation is without a doubt complex and allows different interpretation which in fact also makes these provisions very flexible to accommodate many different cases or situation that deserves special protection.

12. Up to now, even if many conceptual debates can be engaged on the basis of the various judgements of the Court of Justice related to conflicts between the interests or the goals of the Internal Market and the Environment, we can, in general, conclude that the environment protection has been prevailing and that will be more and more the case under the new provison of the Treaty.

In the context of "environmental guarantee" the well known judgement of the Court concerning the Penta Cloro Phenol, cancelling the Commission decision confirming the German rules concerning the prohibition of such substance, because of formal reasons, the Commission not having fulfilled the conditions of Art. 100 A 4, has been misused or abused giving to many the impression that finally in this case clearly the internal market was priming what is certainly not the case.

The "environment guarantee" is there with all its potential but hopefuly as a last resort, if we can progress towards a real high level of protection, or non unacceptable risk under the precautionary principle, that satisfy all the members countries and the citizens of Europe.

13. There are sure elements to consider where analysing the need and prospects for more strict environmental measures, at national level and for then if pertinent being also extended at Community level..

that both in Art. 100 A (when it relates to measures for approximation of legislation and the main goal is the achievement of the internal market) and Art. 130 R (where related to development of the environmental policy) the reference is to "high level of protection".

that this "high level of protection" has to be integrated in general also in relation to the "precautionary principle" (Art. 130R) that provides for measures to be taken even without complete evidence when risks are big. That implies a continuos progress in the evaluation or interpretation of "a high level of protection" as to minimising the risks and towards the notion of "non acceptable risks" what in fact puts more and more emphasis upon the decision making and participation process.

That in this context to assure an informed choice by disposing of the best available information will create the basis not only for sound and participative decision making process but also for appropriate measures that satisfy most of the member countries requirements - limiting the drive for stricter measures. And in the case of a control procedure to avoid abuses, so that the more strict measures are recognised as such when pertinent and eventually extended to the whole EU unless it is determined by specific national conditions.

that certainly and while the possible need for harmonisation measures are mentioned in Art. 130 R 3 (and then of safeguard clauses) that Art. 130 R is a "de minimus" article and therefore more strict measures can in general be taken.

that even when Art. 100A is the legal basis we are not under a total harmonisation regime. That it is again clearly a "de minimus" Article when it relates to measures applying to processes where the main goal (as in the case of the Titanium Directive) is to assure fair competition. In the case of products and even where a clause of free circulation is included, what also requires, as appropriate, a safeguard clause, then there is the possibility, under certain conditions, to use the "environmental guarantee" as established by Article 100 A 4 and/or the particular safeguard clause both submitted to a control procedure generally handled by the EC. the experience showing that once the burden of the procedure and in a more limited way, the burden of the proof, is assured, there is every chance not only of the appropriate more strict measures to be kept but of them being extended to Community level unless there are very specific national conditions.