Year: 2020
Type: book-chapter
Abstract: Central Issues• Since it was attributed external powers over environmental matters in the late 1980s, the EU has gradually developed a mature external environmental policy using a plethora of instruments.Moreover, it has increasingly aspired to play a leadership role in international environmental affairs, and most notably in the global fight against climate change.At present, it has established itself as a multi-layered global environmental actor, actively engaged in shaping, importing and promoting international environmental norms at various levels of global governance.• In this chapter, we examine the constitutional framework that underpins the formulation and conduct of the EU's external environmental policy and expose the reader to the key legal and policy challenges stemming from the EU's practice in this policy field through the lens of selected case-studies.• The EU's environmental policy is constitutionally linked to other external policies in a number of Treaty provisions and, in particular, the environmental integration requirement (Article 11 TFEU) and the common set of objectives for the Union's external action (Article 21 TEU).However, this constitutional imperative will often confront the EU legislator with a delicate balancing and trade-offs between environmental and other (economic, social) policy objectives.• The selected case-studies examined in this Chapter illustrate that EU external action has often involved a complex mix of policy tools, which cannot easily be placed into the neat categories of 'multilateralism', 'bilateralism' or 'unilateralism'.• A common thread running through these various EU external environmental measures is whether the Union can and should use its market size and structural power to promote -or one could even say to force -thirdcountry and global environmental action. I. The Constitutional Framework on EU External Environmental Policy A. EU External Competence for Environmental MattersThe constitutional core of EU external environmental policy is found in Title XX TFEU, which deals specifically with the environment, and which was first introduced by the Single European Act (SEA) of 1986 1 and has undergone several amendments by the Treaty of Maastricht, the Treaty of Amsterdam and the Treaty of Lisbon. 2 These provisions first lay down a set of objectives and principles for EU environmental policy which, pursuant to the principle of conferral, 3 determine the substantive scope of EU competence (whether internal or 1 Single European Act [1987] OJ L169/24, Art 130r(5). 2 For an overview of this historical evolution, see G Marín Durán and E Morgera, Environmental Integration in the EU's External Relations -Beyond Multilateral Dimensions (Oxford, Hart Publishing, 2012) 9-13.3 TEU, Art 5(2).external) in this field.The TFEU requires EU environmental policy to contribute to the pursuit of a number of objectives. Article 191(1) TFEUUnion 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 worldwide environmental problems, and in particular combating climate change.Article 191(2) TFEU further provides a number of principles that are specifically applicable to the exercise of EU environmental competence (both internally and externally) 4 as a guide for law-making and for interpretation, namely: a high level of environmental protection, prevention, precaution, rectification at the source and the polluter pays.5 At first sight, these provisions may appear relatively elaborated when compared to those of other EU external policies, such as the Common Commercial Policy (see further Chapter 7).6 Yet, the objectives and principles enshrined in Article 191 TFEU are broadly defined, rendering it almost impossible to clearly delineate the substantive boundaries of EU environmental policy.EU primary law does not, in fact, seek to (unduly) restrict the substantive scope of EU environmental competence, but leaves the EU legislator a wide margin of appreciation in deciding what action and measures, if any, are necessary to achieve the environmental objectives and principles stipulated in Article 191 TFEU.7 This seems a desirable approach, given the need for flexibility and adaptation in formulating a policy that can address a range of environmental issues and adjust to new developments and specific circumstances.As to the territorial scope of EU environmental competence, reference to 'regional and worldwide environmental problems' in Article 191(1) TFEU indicates that the EU can also take measures targeting the environment beyond its borders, in the same way in which its Member States can do so, within the limits imposed by international law on domestic environmental measures with 'extraterritorial' effects.8 Therefore, the substantive content of the EU's external environmental policy has been defined through a series of 'Environment Action Programmes' and, driven by changes in the international environmental landscape as well as by the EU's own policy priorities, has evolved considerably over the past four decades.9 Among the environmental issues prioritised by the EU in its external action, the fight against climate change has undoubtedly taken the lion's share, as could be anticipated from the prominent attention it receives in Article 191(1) TFEU. 10 In fact, the EU has aspired to play a leadership role in the global battle against climate change since the late 1980s, both by attempting to influence and strengthen the multilateral legal framework on climate change, as well as by seeking to 'lead by example' through internal climate policies and legislation -albeit, with mixed results.11H Walker and K Biedenkopf, 'The Historical Evolution of EU Climate Leadership and Four Scenarios for its Future' in S Minas and V Ntousas (eds) EU Climate Diplomacy: Politics, Law and Negotiations (Oxford, Routledge, 2018) 33, 34[T]he EU strengthened its leadership performance by venturing into multiple leadership types and fortifying its initial cognitive leadership with improved exemplary and entrepreneurial leadership.4 In addition, this is subject to the general principles of proportionality (TFEU Art 5(4)) and subsidiarity (TEU Art 5(3)).5 For a more detailed discussion, see Marín Durán and Morgera (n 2) 15-16.Note that TFEU Art 191(3) further lists a number of criteria that the EU legislator 'shall take into account' in environmental policy making, including: available scientific and technical data; environmental conditions in various regions of the EU; potential benefits and costs of action or lack of action; and the economic and social development of the EU as a whole.6 See TFEU, Arts 206-207.7 Ibid, Art 192(1).8 On this point, see further section II.C below.9 See e.g., Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 [2013] OJ L354/171 (Seventh Environment Action Programme); and its predecessor Decision (EC) 1600/2002 of 22 the European Parliament and of the Council laying down the Sixth Environment Action Programme [2002] OJ L242/1.10 This is also evident from the setting up of a specific Directorate General (DG) within the European Commission (DG Climate Action) in 2010 to deal with climate change matters, which were previously handled by DG Environment.11 K Kulovesi, 'Climate Change in EU External Relations: Please Follow My Example (or I Might Force You To)' in E Morgera (ed)
Author: Marin Duran, G
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7047100366