The treaty of Lisbon and European environmental law and policy

Journal of Environmental Law

Volumn 22, Issue 2, 2010, Pages 285-299

  Vedder, Hans ^a  

^a UNIVERSITY OF GRONINGEN   (Netherlands)

Author keywords

Environmental policy; EU law; Institutional reform; Treaty of Lisbon

Indexed keywords

ENVIRONMENTAL JUSTICE; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; EUROPEAN UNION; INSTITUTIONAL REFORM; INTERNATIONAL AGREEMENT; LAW ENFORCEMENT;

LISBOA [PORTUGAL]; LISBON; PORTUGAL;

EID: 77954522389     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqq001     Document Type: Article

References (76)

1. These are the Single European Act (1987), the Treaty of Amsterdam (1997) and the Treaty of Nice (2000).
2. [2004] OJ C310/1, hereafter referred to as Constitutional Treaty
3. The proceedings of this Convention are available online from:
4. The text of the Declaration is available from: . Central themes to be addressed by the Convention were: A better division and definition of competence in the European Union, simplification of the Union's instruments, more democracy, transparency and efficiency in the European Union and towards a Constitution for European citizens.
5. Presidency Conclusions of 21/22 June 2007, 11177/1/07 REV 1
6. Para 1 and Annex I to the Presidency Conclusions of 21/22 June 2007, 11177/1/07 REV 1
7. It was Part II of the Constitutional Treaty
8. Art 6(1) TEU. Hereafter EU will be used to refer to the old EU Treaty whereas TEU will refer to the Treaty on European Union as amended by the Treaty of Lisbon. For this article the consolidated versions of the TEU and TFEU published in the [2008] OJ C115 have been used.
9. Art 1, third paragraph,TEU and art 1(2) TFEU
10. Art 289 TFEU in connection with 294 TFEU
11. Art 15 (5) EU
12. Inter alia as a liaison between the Commission and the Council, arts 17(4) and 18 EU
13. Art 17 (6) EU
14. Art 17(5) EU
15. The eighth recital of the preamble to the EU Treaty reads as follows 'DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields [emphasis added]'and will become the ninth recital
16. The reference in art 2, first indent, EU also appears to be confined to economic development
17. Art2(5)TEU
18. Art21(2)(d)and(f)TEU
19. Art 13 TFEU, see further below Section 2.3.
20. Art 3(3), fourth indent TEU
21. Joined cases C -133/93, C -300/93 and C -362/93 Crispoltoni [1994] ECR I-4863, para 31
22. The absolute and imperative language of art 3(3), fourth indent TEU appears to indicate a priority for the cultural heritage to the detriment of the level of animal welfare. The fact that the animal welfare integration principle itself also contains this essential reservation confirms this view.
23. Art 37 Charter of Fundamental Rights of the European Union [2000] OJ C364/1
24. See on this special status: NML Dhondt, Integration of Environmental Protection into other EC Policies (Europa Law Publishing, Groningen 2003) 100 ff and SA de Vries, Tensions within the Internal Market (Europa Law Publishing, Groningen 2006) 18 ff
25. Art 167(4) TFEU, currently art 151(4) EC
26. Art 173(3) TFEU, currently art 173(3) EC
27. Art 175 TFEU, currently art 159 EC
28. See art 4 TFEU
29. See art 6 TFEU
30. Environmental protection and cohesion are both listed in art 4 TFEU as shared competences
31. As a result of Regulation 1/2003 the national competition authorities must also apply arts 101 and 102 TFEU, see further: HHB Vedder, Competition Law and Environmental Protection: Towards Sustainability? (Europa Law Publishing, Groningen 2003) 192 ff
32. Art 191 (1), fourth indent, TFEU
33. This has not kept a number of politicians from adopting widely differing views on this provision, see J-P Bonde, From EU Constitution to Lisbon Treaty, 66ff.
34. For the short overview of the Treaty given by Belgian Minister De Gucht in the Belgian Parliament, see at 7.
35. Cf D Benson and A Jordan, 'A Grand Bargain or an "Incomplete Contract"? European Union Environmental Policy after the Lisbon Treaty' (2008) EEELR 280-90, at 284. This is also evidenced by the leadership position the EU sees for itself with the Energy and Climate Package.
36. Art 26(2) TFEU, currently art 14 EC
37. Protocol No 27 on the Internal Market and Competition
38. The first-ever citizens' initiative in the Netherlands concerned animal welfare and the transition to organic animal husbandry
39. Art 11(4) TEU
40. Nevertheless, this provision does address some of the issues brought forward by the Avosetta Group, see JH Jans (ed.) The European Convention and the Future of European Environmental Law (Europa Law Publishing, Groningen 2003) 117 ff.
41. These are the exclusive (art 3 TFEU) and shared competence (art 4 TFEU) and areas where the EU may only support, coordinate or supplement the actions of the member states (art 6 TFEU) excluding harmonisation (art 2(5) TFEU)
42. Art 3(1)(d) TFEU, cf joined cases 3, 4 and 6/76 Kramer [1976] ECR 1279
43. Art 4(2)(e) TFEU
44. Art 4(2)(i) TFEU
45. Art 4(1) in connection with 5(1)(2) TEU
46. JH Jans (ed.) The European Convention and the Future of European Environmental Law (Europa Law Publishing, Groningen 2003) 117 ff.
47. Art5(3)TEU
48. COM (2006)232, see IP/07/1988 for an overview of discussions in the Council
49. Laid down in Protocol No 36 on Transitional Provisions, notably Title II
50. See: D Wilkinson, D Benson and A Jordan, 'Green Budgeting', in A Jordan and A Lenschow (eds), Innovation in Environmental Policy? Integrating the Environment for Sustainability (Edward Elgar, Cheltenham 2008) 81
51. Art 194(3) TFEU
52. Art 194(2), second subparagraph,TFEU
53. It is widely accepted that Directive 2003/96 [2003] OJ L283/51, on the taxation of energy products and electricity is ineffective. In this regard it is interesting to notice that the Commission has recently published a proposal for strengthening this Directive, see: .
54. For example, on the consultation of the European Parliament, Case C-65/93 European Parliament v. Council [1995] ECR I-653.
55. Concerning transport policy, the EC Treaty already used the codecision procedure, but provided for the consultation of the European Parliament and unanimity in the Council whenever a transport measure could affect the standard of living and level of employment in certain regions, and the operation of transport facilities (art 72(2) EC). Following the entry into force of the Treaty of Lisbon, such effects shall be taken into account, but do not rule out the applicability of the ordinary legislative procedure.
56. A rt 314 TFEU
57. Art 43(3) TFEU
58. Art 218 TFEU requires the European Parliament's consent for the conclusion of such agreements
59. For an overview see: JH Jans, 'Environmental Spill-Overs from the European Court of Justice' (2008) 31 Fordham Int'l LJ 1360
60. Case C -105/03 Pupino [2005] ECR I-5285
61. For example, Case C-387/97 Commission v Greece [2000] ECR I-5047, para 80, Case C-304/02 Commission v France [2005] 3 CMLR 13, para 85 (analysed (2006) 18 JEL 289) and Case C-121/07 Commission v France, judgment of 9 December 2008, nyr, para 61
62. Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and Others v Commission [1998] ECR I-1651
63. Regulation 1367/2006 [2006] OJ L264/13
64. JH Jans and HHB Vedder, European Environmental Law (Europa Law Publishing, Groningen 2008) 214
65. The judgment of 15 October 2009 in Case C-263/08 Djurgarden-Lilla Va« rtans Miljo« skyddsfo« rening v Stockholms kommun genom dess markna« mnd, nyr, does, however, show that the Court is willing to adopt a rather extensive interpretation of the Aarhus Package insofar as it is addressed to the member states
66. For an overview see S Stetter, 'Maastricht, Amsterdam and Nice: The Environmental Lobby and Greening the Treaties' (2001) EELR 150-9
67. This concerns the environmental guarantee in art 95(4)-(6) EC
68. This would involve adding environmental protection to the list of grounds in art 30 EC
69. Moreover, see G Monti,'Article 81 EC and Public Policy' (2002) 39 CML Rev 1057-99 for a proposal to include such concerns in art 81(3) EC
70. S Stetter, 'Maastricht, Amsterdam and Nice: The Environmental Lobby and Greening the Treaties' (2001) EELR 150-9, contains an overview and impact analysis of the environmental lobby campaigns during previous treaty amendments
71. Art 16 EC will become art 14 TFEU. The political character follows from the fact that importance of such services is underlined without prejudice to the (unamended) provisions of the TFEU that govern the relation between such services and internal market law.
72. Protocol No 26
73. Case C-209/98 Sydhavnens [2000] ECR I-3743, notably para 75
74. Green Paper on market-based instruments for environment and related policy purposes, COM (2007) 140
75. Moreover, Case C-405/07 P Netherlands v Commission [2008] ECR I-8301 shows that the environmental guarantee in art 95 EC is quite adequate
76. For example, Directive 2008/1 concerning integrated pollution prevention and control [2008] OJ L24/8 and Directive 2008/98 concerning waste [2008] OJ L312/3, Directive 2008/99 on environmental crime [2008] OJ L328/28. Furthermore, the Energy and Climate Package has been adopted [2009] OJ L140.