sou · GLB384d4 · 1998-01-01 00:00:00 — It includes the concept of 'comparative assessment' which approximates to the 'substitution principle' since authorities will be able to compare all biologically ingredients on the market for a specific application on the basis of their environmental health risks. Those posing a significantly higher risk without offering unique benefits could be phased out. 3.8Export and Import Controls Regulation 2455/92 establishes a system of notification for exports to, and imports from, a third country of pesticides and other dangerous substances that have been severely restricted within the EC. The Regulation applies the procedure established by known as 'prior informed consent' (PIC) under which certain chemicals are not to be exported without knowledge and consent of appropriate authorities in the importing country. 3.9Transport of dangerous goods A number of Directives are intended to ensure proper enforcement of international standards of transport of dangerous goods by sea and road (one on rail is forthcoming). The EC was prompted to legislate for sea transport as a result of the sinking of a ferry at 272 An Outline of Policy in 1987 as it was carrying unknown quantities and types of dangerous cargo. The UN Recommendations for the Transport of Dangerous Goods (by air, water, road and rail) - the so-called Book - form the basis of more specific international agreements which in turn are transposed into national and EC legislation. Directive 82/501 is intended to prevent major accidents (fires, explosions etc) at certain industrial plants and to minimise those that do occur. It applies to plants using or storing certain chemicals in certain quantities. Some accidents e.g. a fire at the warehouse in have been major sources of pollution. An analysis by the Commission of 150 major accidents showed that could have been prevented by better management. The Directive places a general duty on manufacturers using dangerous substances to prevent and limit major accidents. Four specific duties then apply: -the manufacturer must produce a safety report -the manufacturer must produce a on-site emergency plan -a competent authority must produce an off-site emergency plan -the public must be informed of safety measures and of the correct behaviour to adopt in the event of an accident. Regulation 880/92 establishes a voluntary scheme for the award of ecolabels to products with reduced environmental impact, as assessed against uniform EC criteria. The criteria are drawn up on a cradle-to-grave approach based on an indicative assessment matrix and some of them refer to substances used in products. The scheme has encountered difficulties and has had a slow start. An Outline of Policy 273 There are also Directives covering worker protection (many dealing with chemicals), and also Directives dealing with pharmaceuticals, additives and contaminants in food and in drinking water. The Declaration is an Agreement between Ministers of the Environment of the North Sea countries and also Commissioner for the Environment. It is not legally binding but has the character of a political declaration. Commission is not itself responsible for managing the environment of the North Sea in the sense of e.g. controlling individual discharges or monitoring concentrations. All it can do is devise policies and ensure that these are implemented by the Member States. It can contribute to the goal of the Declaration of continually reducing discharges of certain substances with a view to elimination in a generation by: (a)ensuring that its scheme for testing new and existing chemicals results in identification of substances covered by the Declaration (b)ensuring that appropriate restrictions on marketing and use of such substances are introduced (given that Member States have limited scope to introduce their own restrictions) (c)ensuring that Member States implement the existing legislation both relating to chemicals and relating to emissions to the environment (d)reviewing its legislation to ensure that it is adequate. (Some ideas for this are suggested in section 5 below). 274 An Outline of Policy 5.0Future Development of Policy The Commission is already proposing consolidation and simplification of EC chemicals legislation e.g. the new Directive on preparations to include pesticides (see 3.4 above). In addition the following ideas could be developed. The test procedures for both new and existing chemicals should include tests for endocrine disruption, once suitable tests have been developed. The data gathered in the testing of new and existing chemicals should trigger 'downstream controls' over both products and installations. This would help to link `chemicals policy' and `pollution policy' more firmly. The new IPPC Directive offers some opportunities here since it requires an application for a permit to include a description of the substances used as inputs to an installation. The results of the tests on new and existing chemicals should ensure that inappropriate substances are not used. The EC does not yet have a fully developed policy for consumer products. At present there is the voluntary ecolabel scheme, Directive 76/764 on restrictions of certain substances and various ad hoc Directives, eg on , and packaging waste. This is a field for further attention and which the Commission is now studying. It could involve the substitution principle using the data gathered from tests on substances. The IPPC Directive foresees an inventory of emissions being published every three years by Commission. The rules for this have yet to be drawn up, but the scheme is more limited than the US TRI and can still be developed to include priority chemicals. Finally, if the success of chemical policy is to be measured then there is a need for surveillance and assessment of how much of the chemicals are actually getting to man and the environment. EC wide bio-indicators could perhaps be developed. 11 An Analysis of the Scope for National Measures for Risk Reduction within Union A paper prepared for have asked for a report covering three subjects: *An analysis of Article 100a the `environmental guarantee': Possibilities for national measures in harmonised sectors. *An analysis of Article 36: Possibilities for national measures in unharmonised sectors *A brief description of the informal decision making process in EU. Before discussing these subjects it is necessary, first, to emphasise the importance of the choice between different Articles in the as the basis for EC environmental legislation since that importantly affects the ability of Member States to have higher national standards and, secondly, to clarify what is understood by `the environmental guarantee' since this phrase has no official meaning and can be misleading. SOU 1997:84 The Scope for National Measures within the EU 277 THE CHOICE BETWEEN ARTICLES 2.1 ARTICLES 100 AND 235 Before the Single European Act amended the in 1987 there was no reference to the environment in the Treaty and all EC environmental legislation was adopted unanimously either under Article 100 or Article 235. Much of this legislation is still in force. Article 100 is concerned with approximation of national laws directly affecting the functioning of the common market ie. so that trade or competition is not distorted. Article 100 is no longer used as the Commission and Council prefer Article 100a (introduced by the Single European Act) under which legislation can be adopted by qualified majority voting (QMV). Article 235 empowers the Community to take measures to deal with any unforseen circumstances which would otherwise impede the objectives of the Community. It was no longer necessary to use it for environmental matters once the Single European Act introduced Articles 130r,s,d,t as the `Environment Title' of the Treaty. 2.2 ARTICLES 100a and 130 r,s,t. All environmental measures are now adopted under these Articles unless there are good reasons for using other Articles. Article 130 r,s,t specifically permits Member States to maintain or introduce more stringent protection measures as long as they are compatible with the Treaty. They must however be notified to the Commission. The phrase ` maintain or introduce' however does not appear in Article 100a, and therefore causes problems as discussed in section 4.4 below. When an environmental measure clearly concerns the functioning of the internal market, then Article 100a will be used rather than Article 130s. Standards for traded products eg. motor cars and are obvious examples. 278 The Scope for National Measures within the EU But there can be uncertainty whether standards relating to production processes eg. emission standards, should fall under Article 130s or 100a. An example concerns the Directive relating to the titanium dioxide industry. adopted Directive 89/428 under Article 130s. The Commission challenged this in the Court which annulled the Directive on the ground that it should have been adopted under Article 100a. A new Directive 92/112 therefore had to be adopted under Article 100a. However Directive 92/112 laid down procedures required by an earlier Directive 78/176, Article 17 of which specifically allowed Member States to set more stringent measures, so that adoption of 92/112 under the Article 100a has not prevented Member States going further if they wish. The uncertainty about the legal base and its implications for Directives relating to discharges from industrial plants is an interesting subject. However it is not discussed further here since has asked that this report should be restricted to traded products which are nearly always now adopted under Article 100a (although there are exceptions - see section 4.5 below). In brief it is really only for traded products that the Treaty may prevent Member States setting their own higher standards. EC legislation relating to production process (e.g. setting emission standards) or procedures (e.g. , safety reports under the ) allow Member States to set their own higher standards. In other words Member States are free to impose extra costs on their own industries, but may not impose extra costs on industries in other Member States that wish to export to . WHAT ENVIRONMENTAL GUARANTEE ? This phrase has no official meaning in any EU document but appears to have first been used in at the time of the negotiations for the Single European Act that was SOU 1997:84 The Scope for National Measures within the EU 279 signed in 1986. The phrase appears to be well known in the three new Member States, in , and possibly in the , but is not generally used elsewhere. The phrase was introduced in specifically to refer to the provisions set out in Article 100a(4) allowing Member States in certain circumstances to apply higher national standards, but the phrase is not really appropriate since there is no unqualified environmental guarantee (as discussed below in section 4.4) To those who are not familiar with its Danish origin, the phrase could also refer to two other `agreements' relating to the ability of Member States to have higher national standards. The first is the declaration at the Summit in 1992 at the time of the Danish referendum on the ratification of the , and the second is the to the EU of , and which allowed time limited derogations during which these new Member States are allowed to maintain higher national standards. These are described briefly below since they help to emphasise the political importance in some Member States of the ability to set higher national standards. They also set the issue in perspective. After the was signed a referendum in rejected ratification. As a result the Danish Government in October 1992 issued a Memorandum called `in Europe' which set out certain issues that troubled Danish public opinion. In response to this memorandum a `political decision' was adopted at the Summit in which allowed four `opt-outs' relating to EMU, defence, citizenship and /home affairs. It also included in an a `Declaration on social policy, consumers, environment, distribution of income' which also applied only to . 280 The Scope for National Measures within the EU ``on European Union does not prevent any from maintaining or introducing more stringent protection measures compatible with the : -in the field of working conditions ...; -in order to attain a high level of consumer protection (Article 129a (3) of the ); -in order to pursue the objectives of protection of the environment (Article 130t of the ).'' (Bulletin of the EC 12- 1992 p26) This Declaration was perhaps designed to reassure Danish public opinion by clarifying certain provisions of the Treaty. However, it could be said to be misleading because it did not explain that it only applied to environmental protection measures adopted under Article 130r,s,t, and not to measures adopted under Article 100a. This Declaration does not guarantee anything with respect to Article 100a, and indeed does not add anything to the existing Treaty. Following the Summit a second referendum in narrowly approved the which was then ratified by . 3.2 THE TREATY OF ACCESSION (, , ) During negotiations for accession of the ability of Member States to set higher standards arose again. The Bulletin of the EU (3-1994 p 64) records the negotiations in February and 1994 as follows: `The applicant countries undertook to accept the entire acquis communautaire, including the Treaty on Union, with no opt-outs, although technical adaptations were made or transitional periods granted in some areas in order to accommodate certain specific SOU 1997:84 The Scope for National Measures within the EU 281 The Bulletin of the EU (12-1993 p 97) explains what these specific problems were: `Considerable progress was made on the chapters covered by the Treaty on European Union and on standards and the internal market... In a small number of sectors where there were still sticking points on environmental standards, health and safety, it was agree that there would be four year transitional periods. During that time the acquis would be reviewed. This represents considerable progress in the negotiation on free movement of goods...' of the Accession (OJ C241 29.8.94) which formalised the agreements reached during negotiations confirms that there are no opt-outs from the acquis, or from the Treaties, but that there are some transitional provisions. Article 112(1) of the specifically states that the provisions (ie legislation) set out in not apply for four years. Article 112(2) then says that within that period the provisions will be reviewed in accordance with EC procedures, and that at the end of the period the acquis will apply to the new Member States under the same conditions as in the present Member States. Thus there is no `guarantee' that the existing EC legislation will be modified within the transitional period to match any existing higher Swedish standards. Indeed no such guarantee can be given since any proposal to amend an existing EC Directive has to be adopted following the prescribed procedures, and a qualified majority of Member States may not agree that the higher Swedish standards are appropriate. It follows from the discussion above that there is no unqualified `environmental guarantee'. 282 The Scope for National Measures within the EU Declaration of 1992, nor the provides one. Such guarantee as is provided by Article 100a(4) is heavily qualified as discussed below. Indeed it would be much better if this informal phrase was no longer used. POSSIBILITIES FOR `NATIONAL MEASURES' IN `HARMONISED SECTORS' FOR TRADED PRODUCTS `Harmonised sectors' is understood here to mean subjects covered by specific EC legislation. `National measures' is the phrase used in Article 100a (4) and is understood to mean national measures going beyond (more stringent than) EC standards. 4.2 THE GENERAL PROHIBITION ON IMPEDIMENTS TO TRADE The original created a customs union and a common market an essential feature of which is that goods can be traded freely between Member States. The Single European Act introduced the phrase `internal market' which is now more precisely defined in Article 7a as "...an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured..." Article 100a is used to approximate national laws, regulations and administrative actions so as to complete the internal market. One intention is to prevent non-tariff or technical barriers to trade. Member States may in theory adopt more stringent standards than EC standards for products manufactured within their own , but since they may not refuse entry into their own market of products manufactured elsewhere if they conform to the EC standards, then purely national standards (ie. applying only to domestically produced products) are rather ineffective. SOU 1997:84 The Scope for National Measures within the EU 283 Article 100a must be understood in relation to Article 30 which is an essential element of the customs union and states that: `quantative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States' A national environment product standard can be an example of a `measure having equivalent effect' to a quantitative restriction and will thus be prohibited. Article 100a will then allow such standards so long as they are approximated (or harmonised) so as not to restrict imports by applying the same standards to all Member States. It is clear therefore that import restrictions are not permitted unless exceptions have been made. 4.3 EXCEPTIONS - ARTICLE 36 AND ARTICLE 100a (5) One general exception is provided by Article 36 which states: `The provisions of Articles 30 and 34 shall not preclude prohibitions on restrictions on imports... on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures ...; or the protection of industrial and commercial property. Such prohibitions or restriction shall not, however, constitute a means of arbitrary d iscrimination or a d isguised restriction on trade between Member States'. Article 100a (5) allows a `safeguard ' to be written into a measure (Directive or Regulation) allowing Member States to take their own provisional measures for `one or more of the non-economic reasons referred to in Article 36'. They are to be subject to a Community control procedure. Article 36 does not refer specifically to the environment but refers to the `protection of health and life of humans, 284 The Scope for National Measures within the EU animals or plants'. It will therefore cover some environmental measures where the effect on humans, plants or animals is direct but may not cover some measures where the effect is indirect. The may not adopt permanent measures, but only provisional ones under Article 100a(5). This allows the Commission to examine them and to decide whether they should be translated into EC legislation and applied to all Member States. If the Commission believes the measure is justified it can propose EC legislation. If it considers it is not justified it can instigate infringement proceedings under Article 169 against the to prohibit the measure becoming permanent. The provisional measures under Article 100a(5) cannot apply unless a Directive or Regulation includes a `safeguard ' and in the absence of a general power to adopt more stringent national measures it is important for a Member State (such as ) which may wish to set more stringent standards to try and ensure that a safeguard is always introduced when negotiating a Directive being adopted under Article 100a. This is happening eg. with the proposed biocides Directive. 4.4 EXCEPTIONS - ARTICLE 100a(4) Article 100a(4) allows a to apply more stringent standards after a measure has been adopted under Article 100a, but subject to four conditions, the fourth one of which is ambiguous. The first condition is that the measure has been adopted by a qualified majority and not unanimously. It is not clear what purpose is served by this condition which has resulted in the absurd situation of several Member States voting against a measure so as to ensure that it was not adopted unanimously with the result that a qualified majority is not obtained. The point has been under discussion in the Intergovernmental Conference that is now revising the Treaty and the Irish Presidency published a text in with the words `acting by a qualified SOU 1997:84 The Scope for National Measures within the EU 285 majority' deleted. It seems possible that the change will be made. The second condition is that the grounds for applying for national provisions are `the protection of the environment or the working environment' or among those referred to in Article 36. This is therefore broader than the provisions relating to the `safeguard ' (see 4.3 above). The third condition is that the Commission is notified. The Commission then has to verify that the measures are not `a means of arbitrary discrimination or a disguised restriction on trade'. The fourth condition is that the is to apply national provisions. Some commentators believe this means only applying pre-existing national provisions, and not introducing new provisions, while other commentators believe it also means introducing new provisions. The Commission takes the former view while some Member States seem to take the latter view. The arguments on interpreting the ambiguous word apply are as follows. Article 130t uses the words `maintaining and introducing' which is unambiguous and must mean pre-existing national provisions (maintain) or a new provisions (introduce). It is argued by some that if Article 100a (4) was supposed to mean maintain and introduce those words would have been used but since a different word was used a different meaning must be intended. A contrary argument is that if the Treaty had intended to mean maintaining an existing standard it would have used the single word maintain which is clear, and that the use of the word apply must therefore be intended to cover both maintain and introduce. It seems that the Environment Ministries of several Member States believe that the word apply means maintain and introduce (although it is not clear whether this is the formal view of their Governments which probably have not been stated). This appears to have been the understanding of the Danish Government when the Single European Act was negotiated. However the Commission appears to take the view that apply only means maintain (1). 286 The Scope for National Measures within the EU Commission has a duty to confirm the national provisions its view is very important. As a result the Danish government has been careful not to use Article 100a(4) since this would test the promises it made before the referendum to ratify the Single European Act(2). To answer one of the questions posed by : it is clear that a can try to maintain an existing standard (if the conditions in Article 100a(4) are fulfilled), but it is not clear whether it can introduce one later. This uncertainty can be resolved in one of two ways. First, the wording can be changed during an Intergovernmental Conference to amend the Treaty, and the point is under discussion at the present IGC. If amendment is not achieved at the present IGC, preparations can be put in hand to present a stronger argument at the next IGC (see section 4.6 below). Secondly a test case can be brought before Court of . Given the strong bias in the Treaty to the concept of a `common market' and an `internal market' it is quite possible that the Court of would favour the internal market arguments unless a very good and clear case can be made. The danger of bringing a case is that it will be lost.