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16.2.1.  The foundations of EU's environmental policy

    Although the European Economic Community had enough economic and political arguments for dealing with environmental problems [see section 16.1], it did not initially have a solid legal basis for so doing. In order to set Community objectives for the reduction of pollution and nuisances, reference could only be made to Article 2 of the EEC Treaty, which assigned to the Community the task, inter alia, of promoting "an accelerated raising of the standard of living" of the populations belonging to it. In order to undertake urgent measures to stop the process of deterioration of the environment, the Community provisions had to be based on Article 235 of that Treaty [Article 352 TFEU], which specifically permitted action in areas in which the Treaty had not provided the necessary powers, but which required unanimity of the Member States, with the slowness that it involved.

    The legal basis of environment policy was considerably enlarged by the Single Act of 1987 [see section 2.1] and firmly established by the Maastricht Treaty. Now, the treaty of Lisbon sets the achievement of a high level of protection and improvement of the quality of the environment among the objectives of the Union (Article 3 TEU). The common environment policy has now the following objectives: preserving, protecting and improving the quality of the environment; protecting human health; rationalising the utilisation of natural resources; promoting measures at international level to deal with regional or world-wide environmental problems, and in particular combating climate change (Article 191 TFEU, ex Article 174 TEC].

    The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191. Still, the unanimity of the Council acting after consultation of the European Parliament and the ESC is needed for: provisions primarily of a fiscal nature; measures concerning town and country planning; and measures significantly affecting a Member State's energy supply. However, 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 these matters (Article 192 TFEU, ex Article 175 TEC).

    The Member States must provide effective, proportionate and dissuasive criminal penalties in their national legislation as regards serious infringements of European law on the protection of the environment [Directive 2008/99]. These infringements include, notably: (a) the emission of materials or ionising radiation into air, soil or water; (b) the disposal of waste, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil or water, or to animals or plants; (c) the shipment of such waste; (d) the operation of a plant in which a dangerous activity is carried out; (e) the production or disposal of nuclear materials or other hazardous radioactive substances; (f) the destruction of specimens of protected wild fauna or flora species; (g) trading in specimens of protected wild fauna or flora species; (h) the significant deterioration of a habitat within a protected site; (i) the production or placing on the market or use of ozone-depleting substances.

    The Member States finance and implement the environment policy. However, without prejudice to the principle that the polluter should pay, if a measure involves costs deemed disproportionate for the public authorities of a Member State, such measure, must lay down appropriate provisions in the form of temporary derogations and/or financial support from the Cohesion Fund [see section 12.1.2] (Article 192 TFEU) and the Financial Instrument for the Environment (LIFE+) [see section 16.2].  Guidelines on State aid for environmental protection aim to ensure that such aid measures are necessary and useful and do not result in distortions of competition [see section 15.5.2].

    The protective measures adopted under Article 192 (TFEU) do not prevent any Member State from maintaining or introducing more stringent national measures [Article 193 TFEU, ex Article 176 TEC]. However, environmental protection can no longer be used as a pretext for technical barriers to trade. Internal market policy and environment policy must therefore march forward side by side. To this end, the Commission adopted on March 26, 1991, the guidelines for a legislative model seeking to reconcile the demands of the environment with those of the market. This model sets two stages for the definition of environmental standards. The first consists of the setting by the Commission of a high-level standard, in accordance with Article 95, paragraph 3 of the EC Treaty (Article 114 TFEU). This standard should be based on the technology available within a specific time span and should be applied by all the Member States as rapidly as possible. During the second stage, the the European Parliament and the Council set a "target" standard, corresponding to the highest level of protection which can be reasonably envisaged in light of the latest scientific and technological developments [see section 6.2.3].

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