2.4    Effects of International Environmental Law in the European and National Law

2.4.1 Effects in the European Union

The European Union has legal personality (Art. 47 EUV) and thus also international legal capacity. The Union can also enter into contractual relations with other States or international organizations under Art. 216 I TFEU or Art. TEU. On this basis, the EU has ratified more than 40 international environmental agreements by the year 2015. These international treaties are an integral part of the legal order of the EU and apply to the institutions of the EU and for its Member States as general principles of law of the EU.

Moreover, the Lisbon Treaty has not only created a new institutional framework for the foreign policy of the EU, but therefore also for its international environmental policy. In futures the environmental competences of the Union will be decisive, according to Art. 191 ff. TFEU in conjunction with Art. 3 II and Art. 216 ff. Therefore, the EU is entitled (Art. 3 II and 2 I TFEU) for external representation of the Union if an international agreement is necessary to enable it to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope. This gives the EU a far-reaching exclusive legislative competence in international environmental policy for the EU Member States. On the basis of Art. 216 I in conjunction with Art. 218 II TFEU, the Council can decide in the framework of its political discretion. whether the EU starts international negotiations. When the Council opens negotiations, he authorizes the opening of negotiations, then sets the guidelines for negotiations, authorizes the signing and ultimately closes the Convention (Art. 218, II, IV, V and VI TFEU).

2.4.2 European Law

European law is supranational law which, unlike international law directly affect the rights and obligations of the citizen. For the institutions of the Community, the following forms of action are available:

Regulations

Directives

Decisions

Recommendations

Opinions

 2.4.3 European Legal System

Regulations are general legal principles that apply directly in all Member States, without requiring a national legislative process (Regulation (EC) no. 1272/2008 → CLP Regulation).

Directives are binding legal norms, however, the Member States have the choice of form / means (-RL (EEC) No. 313/90 → Umweltinformationsgesetz UIG) with regard to the objectives set for the Member States.

Decisions are individual acts, which are only binding the respective Member State (comparable with a German administrative act).

In contrast, recommendations and opinions are not binding and only represent the EU's views on various points.

2.4.4 Development of European Environmental Law

• Treaty of Paris 18.04.1951: establishing the European Coal and Steel Community
• ECSC (effective from 07/23/1952)
• Treaty of Rome from 02/25/1957: Treaty establishing the EEC and the European Atomic Energy Community EURATOM (effective from 01.01.1958); ECSC, EEC and Euratom form the European Community
• Paris Summit from 12.20.1972: start of environmental activities by the final declaration of the summit
• Die EG-Kommission stellt Umweltschutzprogramme (Umweltaktionsprogramme) auf, ohne dass es dafür eine Rechtsgrundlage in den Gemeinschaftsverträgen gibt: Art. 235 EWG-Vertrag:

     “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.”

• Single European Act from 28.02.1986 EEA, the environmental policy is taken up as a policy in the Treaty and the Environmental Protection explicitly constituted under Community law (in force since 01.07.1987)
• Maastricht Treaty of 07.02.1992, refining the now viable authorization for specific environmental activities of the Community (Art. 130r to t of the EEC Treaty, then Art. 174 to 176, in the consolidated version in March 2010 Art. 191 to 193 ).
• ”Treaty on European Union TEU Title XX Environment Article 191:

- 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.

The Treaty on European Union TEU regulates in Title XX Environment Article 193 as essential aspect to the development of environmental protection in the EU:

“The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission.”

Mainly framing this however is so far the EU Commission.