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16.2.2.  The principles of EU's environmental policy

    The common environmental policy is based on the precautionary and preventive action principles, on the principle that environmental damage should to the extent possible be rectified at source and on the principle that the polluter should pay (Article 191 TFEU, ex Article 174 TEC). According to the Commission the precautionary principle may be invoked when the potentially dangerous effects of a phenomenon, product or process have been identified by a scientific and objective evaluation, and this evaluation does not allow the risk to be determined with sufficient certainty [COM/2000/1]. As regards the measures resulting from use of the precautionary principle, they may take the form of a decision to act or not to act. The response depends on a political decision and is a function of the level of risk considered "acceptable" by the society on which the risk is imposed.

    Indeed, the European Union's work on the environment is marked more and more by an integrated, preventive approach taking account of human activities and their consequences for the environment as a whole. The pro-active policy of voluntary prevention is manifested in the Directive on the assessment of the effects of certain public and private projects on the environment and on natural resources, known as the environmental impact assessment (EIA) Directive, requires an assessment to be carried out by the competent national authority for certain projects which have a physical effect on the environment. It takes into account the commitments entered into under the international "Espoo" Convention on Environmental Impact Assessment in a Transboundary Context, particularly concerning the types of project for which impact assessment is compulsory [Directive 2011/92, last amended by Directive 2014/52]. According to this Directive, the promoter of the project, whether it be industrial, agricultural or relating to infrastructure, has to supply detailed information on its possible consequences for air, water, soil, noise, wild animals and their habitats, etc. The decision of the public authority as to whether to authorise the project must weigh the economic, social or other advantages of the project against its environmental consequences. In accordance with the UN Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention), the public (one or more natural or legal persons) may participate in the drawing-up of environmental standards concerning waste, air quality and the protection of water [Decision 2005/370 last amended by Decision 2006/957]. Member States should ensure that members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of Directive 2003/35.

    Another Directive known as the Strategic Environmental Assessment (SEA) Directive, supplements the environmental impact assessment system for projects introduced by the ΕΙΑ Directive by imposing an assessment, including an environmental report, during the preparation of a plan or programme and before its adoption or submission to the legislative procedure [Directive 2001/42]. The authorities and the public affected or likely to be affected by or having an interest in the decision-making process have the opportunity to express their opinion on the environmental effects of a draft plan or programme.

    The "polluter pays" principle, which is mentioned in Article 191 § 3 of the TFEU (ex Article174, § 2, of the EC Treaty), means that the cost incurred in combating pollution and nuisances in the first instance falls to the polluter, i.e. the polluting industry. Given, however, that the polluting industry can pass the cost of the prevention or elimination of pollution on to the consumer, the principle amounts to saying that polluting production should bear: the expenditure corresponding to the measures necessary to combat pollution (investment in apparatus and equipment for combating pollution, implementation of new processes, operating expenditure for anti-pollution plant, etc.); and the charges whose purpose is to encourage the polluter himself to take, as cheaply as possible, the measures necessary to reduce the pollution caused by him (incentive function) or to make him bear his share of the costs of collective purification measures (redistribution function). The European guidelines on State aid for environmental protection, which we have seen in the chapter on competition [see section 15.5.2.], are designed to ensure that aid granted for environmental purposes complies with the "polluter pays" principle.

    Based on the "polluter pays" principle, an important directive establishes a framework of environmental liability with regard to the prevention and remedying of environmental damage, including transboundary damage, but excluding damage caused by force majeure or expressly authorised activities [Directive 2004/35, last amended by Directive 2013/30]. It aims at preventing environmental damage to water resources, soil, fauna, flora and natural habitats and at making the polluters pay whenever damage cannot be avoided. Risky or potentially risky activities include activities releasing heavy metals into water or the air, installations producing dangerous chemicals, landfill sites and incineration plants. Member States are required to ensure that all environmental damage is restored, which entails assessing the gravity and extent of the damage and determining the most appropriate restoration measures to be taken. If the costs of implementing the prevention and restoration measures were not borne directly by the operator who caused the pollution, the competent authority must make sure that they are recovered from the operator. Member States are also required to promote the development of financial security products and encourage operators to take out financial security cover. Non-governmental environmental protection organisations and persons who have a sufficient interest, i.e. who have suffered damage, can request the competent authority to take action and challenge any action or inaction by the competent authorities.

    Another means for the prevention of pollutions is the "ecolabel", which guides the consumers towards "clean" products [see section 11.1] and incites the industrialists to produce them, thus contributing to the efficient use of resources planned and to a high level of environmental protection [Regulation 66/2010]. The scheme functions on a voluntary basis and may be applied to a product belonging to product groups for which ecological criteria have been set by the Commission in accordance with the regulation.

    A competent body in the Member State, in which the product is manufactured, placed on the market for the first time or imported is responsible for deciding whether or not to grant the eco-label, after assessment of the ecological performance of the product in accordance with the general principles given in the Regulation and the specific criteria set by the Commission, assisted by a committee of representatives of the Member States. In this way, the Commission established the ecological criteria for several categories of manufactured products, including laundry detergents [Decision 95/365], dishwater detergents [Decision 1999/427], indoor paints and varnishes [Decision 1996/13] and refrigerators [Decision 1996/703].

    Prevention is also the objective of the Regulation on the "eco-audit" scheme, which allows voluntary participation by companies in the industrial sector in a European eco-management and audit scheme (EMAS) [Regulation 1221/2009]. This scheme is based on three elements: the establishment and implementation by the companies in question of environmental policies, programmes and management systems for their production sites; systematic, objective and periodical evaluation of the efficiency of these programmes and systems by independent verifiers; and annual information for the general public in the form of "environmental declarations" by companies participating in the system. The EMAS logo is meant to raise the profile of businesses determined to improve their environmental performance by participating in the scheme.

    The Commission should take account, in its proposals for measures of other common policies, of the micro-economic implications of the various measures envisaged on the environment, by evaluating their cost and, if appropriate, their effect on the prices of the products concerned, giving consideration to the desired objectives, on the one hand, and to international competitiveness, development and employment, on the other. But it is not always possible to compare the cost of proposed measures with the expected advantages of a reduction in the social cost of pollution and an improvement in the quality of the environment. Those advantages would have to be interpreted and considered, but their evaluation in monetary terms would pose problems, which are particularly difficult to resolve.

    In a Green Paper the Commission defined a strategy on an integrated product policy to promote production and consumption of greener products, with three main objectives: to stimulate consumer demand for greener products by providing easily accessible, understandable and credible information and by using eco-labelling to inform consumers about the environmental performance of products; to strengthen business leadership in green production; to use a differentiated taxation mechanism applying reduced VAT rates on products bearing an eco-label [COM/2001/68].

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