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Number of documents delivered: IPUSERCP3389877224 IPUSERCP3389877224 Monday, 11 July, 2011 at 20:34 BST Athens Westlaw UK The environmental implications of the Lisbon Treaty Current Document 1

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Environmental Law Review

2008

Legislative Comment The environmental implications of the Lisbon Treaty

Maria Lee Subject: European Union. Other related subjects: Constitutional law. Environment Keywords: Access to justice; Climate change; Constitutional rights; EC law; Environmental law; Public participation; Subsidiarity Legislation: Treaty of Lisbon 2007 *Env. L. Rev. 131 Keywords: Lisbon Treaty, environmental regulation, environmental policy, energy policy, public participation in decision-making, access to justice, subsidiarity The Lisbon Treaty is supposed to mark the end of the confusion brought about by failure to ratify the Treaty Establishing a Constitution for Europe,1 which came to a sorry end following negative referenda in France and the Netherlands. The Lisbon Treaty, billed deliberately disarmingly as a Treaty amending the Treaty on European Union and the Treaty establishing the European Community, was signed on 13 December 2007.2 Like the Constitution before it, whilst the Lisbon Treaty does not have a prominently green agenda, it raises a number of important issues that have preoccupied environmental lawyers for some time. Whether the Lisbon Treaty will survive the negative referendum in Ireland is still to be seen at the time of publication, but in any event its contents give us a snapshot of the current priorities of the EU's political leaders. If it is successfully ratified, the Lisbon Treaty will introduce a range of amendments to the existing European Union and European Communities treaties. The amendments include a renaming - the Treaty on European Union (TEU) survives, the EC Treaty becomes Treaty on the Functioning of the European Union (TFEU).3 The TEU sets out general principles and institutional arrangements, as well as provisions on external action, common foreign and security policy and common security and defence policy. The TFEU includes some more general principles, but primarily provisions on the procedures and specific competences of the Union. As under the defunct Constitution, the distinction between the EU and the EC is ended, creating simply a Union with legal personality. And in a move symbolic of the gradual move to co-decision (joint decision making between European Parliament and Council, with qualified majority voting in Council) across the Treaty over several rounds of Treaty amendment, we must now refer to the ordinary legislative procedure rather than co-decision, and to a special legislative procedure rather than the consultation procedure (unanimity in Council following mere consultation of Parliament). *Env. L. Rev. 132 The Lisbon Treaty contains only seven Articles. Article 1 amends the Treaty on European Union. The mighty Article 2 runs to over 90 pages and amends what was the EC Treaty. The remaining Articles contain final provisions, for example as to deposit of instruments of ratification and official languages. Article 5 (together with an Annex) provides for the renumbering of the Treaty Articles - probably necessary given the extent of the amendments, but still only 10 years after the last renumbering simplification exercise. A number of Protocols are attached to the Treaty, and they form an integral part of the Treaty. The environmental implications of the Lisbon Treaty are not immediately obvious. The Lisbon Treaty largely maintains the status quo in its explicitly environmental provisions, but Treaty change nevertheless has considerable potential to affect the future development of environmental regulation. For example, the balance of power within and between the institutions inevitably affects the development and implementation of environmental law and policy. The new rule of double majority voting in Council (at least 55 per cent of Member States, representing at least 65 per cent of the EU's population4 ) should make the finding of majorities, and hence the passing of legislation, easier. The ease with which legislation can be negotiated is of great practical significance, for both the amount but also the content of legislation. The institutional rearrangements were driven in large part by the need to accommodate the enlargement of the EU over the past few years. The impact of the new membership on environmental policy, and of EU environmental law on the environment of the new

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Member States, is a challenge that sits alongside the Treaty. Rather than consider these general questions, this note will concentrate on a few elements of the Treaty likely to be of most interest to specifically environmental lawyers: the environmental provisions; the provisions on public participation in decisions; access to justice; subsidiarity; and the Charter of Fundamental Rights.

THE ENVIRONMENTAL PROVISIONS

The explicitly environmental elements of the Treaty are little changed. The relevant Articles are no longer 174-76, but 191-93. The principles and objectives of environmental policy remain virtually the same (precautionary principle, polluter pays principle, etc). The balance between measures to be adopted under what are now the ordinary legislative procedure and the special legislative procedure remains. In particular, whilst the bulk of environmental measures have long been subject to co-decision and qualified majority voting, certain sensitive issues are still subject to unanimity in Council, and hence the national veto.5 As under the existing Treaty, those sensitive matters can be moved to the ordinary procedure (qualified majority voting) by unanimity.6 *Env. L. Rev. 133 The main innovation in the Environment Title is the first (albeit modest) Treaty mention of climate change. Climate change was not such a hot topic during the negotiation of the Constitution, and so this is completely new to the Lisbon Treaty. The last indent of Art 191(1) TFEU is amended, so that Article 191(1) [formerly 174(1)] now reads: 1. Union policy on the environment shall contribute to pursuit of the following objectives: --preserving, protecting and improving the quality of the environment, --protecting human health, --prudent and rational utilisation of natural resources, --promoting measures at international level to deal with regional or with regional or worldwide environmental problems, and in particular combating climate change The final italicised phrase is new. This confirms and reinforces established political commitment to the importance of climate change, in respect of international action specifically. Legally, climate change is anyway presumably a worldwide environmental problem, not to mention also addressed by the first three indents of paragraph 1, and of course the Treaty points in no particular direction in respect of addressing climate change. Politically, the EU has seen itself as a leader in this area for some time. Climate change is perceived as an issue with great popular resonance, where the EU wishes to be seen to provide something obviously valuable beyond what the Member States can provide. This change must mean that the EU's current strong presence on the international stage will not easily be sidestepped if climate change ceases to be politically attractive, and arguably also prioritises climate change within environmental measures. Picking one environmental problem (however serious) has to raise certain concerns about ongoing efforts to take a more holistic, integrated and sophisticated approach to environmental governance. On the visibility of environmental policy among the Union's other policies, it is salutary to recall that early versions of the draft Constitution (prepared by the Convention on the Future of Europe7 ) hinted that the Treaty status of environmental policy could be downgraded, prompting an enormous effort to reinstate environmental policy at the heart of the Treaty.8 In the final Constitution, the obligation to seek a high level of environmental protection continued to find its place in the Union's objectives in the first part of the Constitution. The new Article 3(3) of the TEU, replacing Article 2, now provides as follows: 3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. This provides a slight change of emphasis from similar provisions formerly contained in Article 2 EC. In particular, the promotion of scientific and technological advance is new here, and the different limbs of sustainable development (environmental, social, economic) are very apparent. Sustainable development is also an element of Article 3(5) on external matters: 5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the *Env. L. Rev.

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134 sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.9 The integration principle is repeated in the same terms as before, in Article 11 TFEU: Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development. The principle is, though, arguably less visible than before. In particular, it sits alongside other similar provisions, for example as to consumer protection, employment, animal welfare and discrimination. And whilst the integration principle is in place, it has not been followed through explicitly in other policies of the Union. The argument that environmental protection works best if it is part of other key policy areas, rather than an isolated special interest, is generally accepted. However, Treaty provisions on these other policies, for example agriculture, industry, transport, tourism, contain no explicit reference to the objectives of environmental protection or sustainable development. Most strikingly perhaps, environmental protection still does not feature explicitly in Article 36, formerly Article 30 (and before that, of course, Article 36), which provides for qualifications to the principle of free movement. Energy policy is an exception on this front. The Energy Title is new, containing the new Article 194 TFEU. Not only is one of the aims of energy policy to promote energy efficiency and energy saving and the development of new and renewable forms of energy, but all of the aims of energy policy should be pursued with regard for the need to preserve and improve the environment.

PROVISIONS ON DEMOCRATIC PRINCIPLES

Provisions for public participation in decision-making have become something of a conventional feature of environmental legislation over recent years, perhaps best marked at EU level by the moves to implement the Aarhus Convention.10 Public participation is now a thoroughly mainstream part of discussion of good environmental governance, even if the objectives of participation are more controversial, and achieving meaningful participation in practice remains challenging. Public participation has significant instrumental attractions for the EU, particularly in the environmental sphere, with its legacy of poor implementation and the general need for public engagement on issues such as waste reduction and climate change. Rather than these instrumental questions, the Lisbon Treaty, like the Constitution before it, picks up on the democratic possibilities of participation, particularly appealing because of the resistance of the democratic deficit at EU level to the more traditional responses of representative democracy. The Lisbon Treaty reinforces the significance of participation in political life generally, not just in environmental matters. Alongside an affirmation that the working of the Union shall be founded on the principle of representative democracy, making the predictable *Env. L. Rev. 135 appeal to the European Parliament and to the Council (accountable to national parliaments or citizens) for that claim, Article 11 of the TEU calls on participatory mechanisms. The Treaty confirms and strengthens relatively familiar commitments to openness, transparency, dialogue, consultations and exchanges of view, suggesting that these are a fundamental part of a constitutional commitment to democracy. Public participation seems to be increasingly central to contemporary environmental governance; these measures indicate its wider perceived importance, and its role at the EU level. The Lisbon Treaty also provides for the possibility of a citizens' initiative:

Article 11(4)
Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties. The initiative does have considerable appeal in an environmental context, in particular by providing at least political (if not legal, there being no obligation on the Commission) pressure to sidestep the official agenda. As under the Constitution, the details of this provision are to be filled out by legislation, including the highly sensitive question of the necessary inclusion of different Member States:

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Article 24
The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions required for a citizens' initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come. Whilst the enhanced Treaty status of participatory mechanisms is likely to be welcomed by most of those concerned with the environment, the normal caveats apply. Most obviously perhaps, even the most progressive public participation is no guarantee of green outcomes, although it may improve the likelihood that environmental issues will be part of the debate. Whilst the citizens' initiative is directly inclusive (although even here there is a risk of manipulation by elites, and of deepening divisions between different parts of the Union), public participation rarely means the participation of individuals. At this level, participation is likely to be restricted to organised pan-European interest groups; the contribution of participation to democracy in any familiar sense is by no means automatic. In our case we are most interested in the potential role of environmental interest groups; even as far as instrumental (environmentalist) understandings of public participation are concerned, prospects will be restricted by the relative lobbying resources of environmental interest groups and industry.

ACCESS TO JUSTICE
One element of public involvement in decisions that has received considerable attention recently is access to justice. This is a question addressed by the Lisbon Treaty, although not in the part of the Treaty that addresses participatory democracy. As the law stands, ordinary private (non-privileged) applicants must be directly and individually concerned by a matter to have standing before the Court of First Instance, which we must now learn to call the General Court. The interpretation of individual concern has been notoriously narrow: the measure challenged must affect the *Env. L. Rev. 136 applicant's position by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually.11 This largely excludes the challenge of measures on environmental grounds, since environmental impacts are by definition shared. The Court of Justice has confirmed, notwithstanding a devastating critique of the status quo by Advocate General Jacobs, that any change on standing would have to come from Treaty revision.12 The Lisbon Treaty has amended access to justice, with a new paragraph 4 of Article 263 (formerly 230): Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. So there is no longer any requirement for individual concern in respect of a regulatory act which does not entail implementing measures. Mysteriously, regulatory act is not mentioned anywhere else in the Treaty, and so the extent to which standing is relaxed will depend on judicial interpretation of this phrase. The wording survives from the Constitution, but the Lisbon Treaty does not pick up on the Constitution's re-categorisation of EU laws and procedures into legislative acts and non-legislative acts. Quite how this will play out is still to be seen. It is likely that individual concern will no longer be required of decisions addressed to someone else, and possibly even in respect of legislation (although in this case, why refer to a regulatory act?).13 This change has obvious potential to be very significant in the challenge of measures by environmental interest groups.

SUBSIDIARITY
The principle of subsidiarity has always exercised environmental lawyers, and indeed was initially introduced into the new environmental title of the Single European Act, before being promoted to the front of the Treaty. Despite the high profile of the principle politically, subsidiarity has had limited legal impact, never becoming a key element of judicial review. Given the overwhelmingly political implications of subsidiarity, it is perhaps to be expected that the Court of Justice would take a relatively hands off approach to the issue. However, leaving decisions on the limits of Union competence in the hands of the European institutions has its own problems. As well as confirming the jurisdiction of the Court of Justice on subsidiarity, the Constitution introduces a novel political process

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involving national parliaments. A Protocol attached to the Lisbon Treaty requires that draft legislative acts (including proposals from the Commission) contain: a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators.14 *Env. L. Rev. 137 The draft acts must also be sent to each national parliament, which is given the opportunity to produce a reasoned opinion if it is of the view that the proposal breaches the principle of subsidiarity. The EU's legislative institutions would have to take account of the reasoned opinions. If sufficient parliaments (one third: each national parliament has two votes, the division of which will depend on national parliamentary systems) provide such a reasoned opinion, the institution is required to review its proposal, and although it need not withdraw or amend it, it must give reasons for its decision. National governments and EU institutions are very much trying to sell the Lisbon Treaty on its enhanced role for national parliaments. In fact, very little has changed from the ill-fated Constitution.15 One relatively modest substantive amendment to this Protocol is that, where the ordinary legislative procedure applies, if more than one half of national parliaments produce a reasoned opinion and the Commission chooses to maintain the proposal, the Commission's reasoned opinion justifying its view that the proposal complies with the principle of subsidiarity, together with the national reasoned opinions, has to be submitted to the European Parliament and the Council. These bodies then have a duty to consider whether the legislative proposal is compatible with the principle of subsidiarity. If either 55 per cent of the members of the Council or a majority of the votes cast in the European Parliament think not, the legislative proposal shall not be given further consideration. The Protocol gives the national parliaments no authority over the course of legislation, and even the possibility of rejection by Council or Parliament adds nothing to the powers of these institutions under the ordinary legislative procedure. However, this introduction of external monitoring attempts to put scrutiny of subsidiarity in the hands of the institutions most affected by possible EU overreaching. Given the continued controversy over subsidiarity in the environmental field, both the obligations on the presentation of environmental measures and those on national parliaments are potentially significant.

CONSTITUTIONALISING THE ENVIRONMENT AND FUNDAMENTAL RIGHTS

Environmental lawyers have a strong, if relatively young, tradition of talking the language of constitutionalisation. Although the explicitly constitutional language has been dropped from the Lisbon Treaty, the environment has long had constitutional status given its place in the Treaties since the Single European Act. Debate about the constitutional character of environmental law often turns to the language of rights, and the inclusion of environmental protection and the integration principle in the Charter of Fundamental Rights, which would have been incorporated into the Constitution, but is given the same legal value as the Treaties by Article 6(1) TEU.16 Whilst the Charter loses the prominent position it would have gained under the Constitution, it otherwise remains unchanged. Article 6 of the TEU also provides for the EU to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is of course much judicial and other debate on the adaptation of other rights found in the Charter, such as the right to life or to a private and family life, to address environmental issues. Sustainable development appears in the preamble to the Constitution: *Env. L. Rev. 138 The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, services, goods and capital, and the freedom of establishment. The only explicitly environmental provision of the Charter is not framed in the language of rights: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.17 It will be interesting to watch the development of the debate about environmental rights at EU level,

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where the judiciary has already demonstrated a willingness to take a teleological approach to environmental law. The Charter is an indication of the impossibility of ignoring the question of environmental rights; although also of how controversial explicit rights to environmental quality remain.

CONCLUSION
Even with its conservative approach to specifically environmental issues, a number of important questions are raised for environmental lawyers by the Lisbon Treaty. It has only been possible to touch on them here. The provisions discussed in this note amount to the culmination (for now) of a series of debates that have been going on for many years. However the ratification process plays out this time, the ways in which the Treaty deals with these perennial issues are likely to be important points of reference for the future. Maria Lee 18 University College London Env. L. Rev. 2008, 10(2), 131-138

1.

OJ 2004 C310/1.

2.

OJ 2007 C306/01.

3.

Lisbon Treaty, Art. 2.

4.

New Art. 16 TEU. Transitional measures, introduced at the insistence of Poland, mean that for a period a significant opposition to a measure falling short of this (one third of Member States, 25% of the population) will lead to efforts to seek a compromise solution.

5.

The list of matters requiring unanimity in Council is unchanged, new Art. 192(2):(a) provisions primarily of a fiscal nature;(b) measures affecting:-- town and country planning,-- quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,-- land use, with the exception of waste management;(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.

6.

This has been reworded: The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.

7.

See http://europa.eu/scadplus/european_convention/index_en.htm.

8.

See the discussion in J. Jans and J. Scott, The Convention on the Future of Europe: An Environmental Perspective (2003) 15 Journal of Environmental Law 323.

9.

See also the new Chapter of the TEU General Provisions on the Union's External Action.

10.

Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (UNECE: Aarhus, 1998).

11.

ase 25/62 Plaumann v Commission [1962] ECR 207.

12.

Case C-50/00P Unin de Pequeos Agricultores v Council [2002] ECR I-6677.

13.

The Constitution has been pleaded before the Court of First Instance, but the CFI limited itself to stating that a Treaty cannot lead to an amendment of the current system before it enters into force, Case T-386/04 Eridania v Commission [2005] ECR II-2531. Note that A-G Colomer has stated in passing that the Constitution is consistent with the expansive approach of A-G Jacobs in UPA, ibid: see Case C-110/03 Belgium v Commission [2005] ECR I-2801.

14.

Protocol on the Application of the Principles of Subsidiarity and Proportionality, which should be read alongside the Protocol on the Role of National Parliaments in the European Union.

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15.

See G. Barrett, The King is Dead, Long Live the King: The Recasting by the Treaty of Lisbon of the Provisions of the Constitutional Treaty concerning National Parliaments (2008) European Law Review 66.

16.

The Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom states that no justiciable rights are created by the Charter in either Poland or the UK.

17.

Article 37.

18.

I am very grateful to Ned Westaway for his excellent research assistance. 2011 Vathek Publishing