Geographical limits of EU environmental policy

As already mentioned, one objective of EU environmental policy is to promote measures at international level to solve regional and global environmental problems. This raises the question of whether there is any geographical restriction at all on EU environmental policy.

Note that the word ‘environment’ is not geographically defined in Article 191(1) TFEU and hence there is no strict limit on the application of environmental policy. The environment of the European Union in many cases cannot be treated separately from the local, national, regional, or global environment.

A potentially more problematic question is whether EU environmental policy shall also contain measures specifically aimed at protecting the environment outside the EU even in cases where there is no clear physical connection to the environment in the Union. Where, in that case, can measures be taken?

It is a basic, if not unconditional, principle of international law that States are not allowed to enforce measures within the borders of other States’ territorial jurisdiction. The legal conditions for regulating activities or measures within other States’ territories are more complex. For instance, criminalising serious breaches when they occur outside a State’s own territory is generally accepted and in certain cases is even prescribed in international law. In practice, however, many States, like the EU, have made significant commitments as regards freedom of trade. These commitments limit their ability to stop goods from other States, for example, with reference to their environmental effects.

The rules of the World Trade Organization (WTO) render it particularly difficult to stop the import of certain goods with reference to the circumstances of their manufacture (for instance what type of wood has been used, how animals have been captured, or how carbon-intensive the production has been) rather than to the physical characteristics of the goods (eg a product containing environmental/ health-hazardous chemicals).

The EU has nevertheless adopted numerous legal acts that wholly or partially aim to protect human health and/or the environment outside the Union. These are primarily legal acts that prohibit or limit the import or export of certain products. The acts do not prohibit or directly permit certain action within another State’s territory, but try to influence the situation within other States by for example preventing environment-hazardous substances from reaching there, or by decreasing demand through closing the EU market to a certain product. These rules will be enforced within the EU or at its external borders even though the effects are expected to be achieved outside those borders^⁷

Many of these legal acts are based on international agreements, even though the EU normally applies protective measures against non-parties to such agreements as well. In certain cases, the compatibility of the EU rules with, for instance, WTO rules can be questioned. At the same time, international environmental agreements and strong international opinion have often been the legal and political support for the EU’s line of argument. This area of law is complex,2⁸ but Canada and Norway initiated a dispute settlement process in the WTO claiming that EU Regulation 1007/2009 on trade in seal products is incompatible with WTO regulations^⁹ The Appellate Body in its report of 22 May 2014 found that although the EU measure was provisionally justified under the public morals exception the way it was designed and applied was inconsistent with WTO law.^{[1] [2] [3] [4]}

As regards direct application, including enforcement of EU rules outside the territories of Member States, the marine environment is of particular importance. A common starting point for national legislation is that implementation of the rules should be limited to the State’s territory (including the territorial sea) unless otherwise stipulated. It has long been unclear whether EU environmental rules can be applied in the exclusive economic zone (EEZ), which may be extended to a maximum 200 nautical miles (about 370 kilometres) measured from baselines (normally the coastlines).^{[5] [6] [7] [8] [9] [10] [11] [12]}

Case C-6/04 Commission v United Kingdom concerned the alleged failure of the United Kingdom to implement the EU Habitat Directive in its EEZ. According to the Commission, Member States shall implement the EU legislation in those areas where they exercise sovereign rights.32 The Court of Justice noted that it was common ground that the United Kingdom exercises sovereign rights within its EEZ and its continental shelf, and the Habitat Directive is thereby applicable beyond Member States’ territorial waters.33 The United Kingdom had therefore to implement the directive in its EEZ.

It is difficult to interpret the decision of the Court other than that the obligation to implement the directive in the EEZ follows directly from the fact that a Member State has sovereign rights with respect to a particular issue. The conclusion is that Member States shall also implement other environmental directives in the EEZ to the extent that they are relevant and regulate an activity for which these States enjoy sovereign rights in the zone. States have such sovereign rights with respect to exploration, exploitation, conservation, and administration of living and nonliving resources on the seabed and its subsoil as well as in the overlying waters in the EEZ.34 The same applies to exploration and exploitation activities in the continental shelf.35

There are good reasons to apply the same argument to other activities for which a coastal State has jurisdiction. ‘Jurisdiction’ is a weaker concept than sovereign rights and can imply that the State’s rights are directly defined and limited by international law. At the same time, jurisdiction in this case means in principle the right to set conditions for carrying out an activity due to, for instance, its expected negative impact on the environment. 3^fi

Not only the Court of Justice but also the EU legislator itself has foreseen the application of environmental protection directives in the EEZ. The EIA Directive3⁷ is, according to its wording, limited to territories of the Member States. Despite this, it follows unequivocally from the Carbon Capture and Geological Storage (CCS) Directive that the EIA Directive shall apply to the geological storage of carbon dioxide in the EEZ.3⁸ The EU legislator has thus seen no formal obstacle in applying rules of environmental impact assessment in the EEZ despite the current wording of the relevant directive.

Application of the EU’s substantive environmental rules in the EEZ shall of course take place with due regard to the specific conditions prevailing there. Many rules are more or less obviously designed for the Member States’ terrestrial territory or adjacent coastal areas. The majority of legal acts relating to activities that take place in the EEZ should nevertheless be extended to that zone, at least with respect to their basic objectives and principles. Among those directives whose application in the EEZ seems to be rather self-evident are the EIA Directive, the Directive on the assessment of the effects of certain plants and programmes on the environment (the SEA Directive),^[13] and the Industrial Emissions Directive.^{[14] [15] [16] [17] [18] [19]} In Case C-188/07 Commune de Mesquer the Court touched on the question of application of the Waste Framework Directive (then Directive 75/442/EEC) in the EEZ, but found that the case could be decided without elaborating on this matter.4¹

The Framework Directive for a Marine Strategy provides further support for the implementation of other relevant EU environmental rules in the zone.42 The Directive, itself applicable ‘up to the outermost reach of the area where a Member State has and/or exercises jurisdictional rights’ according to the Law of the Sea Convention,43 requires Member States to take necessary measures to achieve by 2020, and maintain, good environmental status in the marine environment. The objective and structure of the Directive shows that this should include application of relevant environmental legal acts within the application area of the Directive, at least when this is necessary for achieving or maintaining good marine environmental status.

The application of EU legal acts to ships belonging to non-EU member states must be consistent with the rules of the international law of the sea.44

It is not so clear how far the EU environmental rules shall be applicable outside Member States’ exclusive economic zones, that is, on the High Seas or in the maritime zones of other States. There is no formal obstacle to EU regulation of its own Member States’ activities on the High Seas as long as they are within the framework of general jurisdictional rules of the law of the sea.

The Court has held that the Union has the same possibility to legislate in respect of matters falling within its competence that a Member State has as flag State.45

There may be practical reasons why EU environmental rules shall not apply to ships that navigate in a different part of the world. The applicability of EU rules in such cases cannot be taken for granted. However, there are examples of environment- related legal acts that are specifically applicable on the High Seas.⁴⁶

• [1] Examples of such legislative acts are Regulation (EC) No 689/2008 of the European Parliamentand of the Council concerning the export and import of dangerous chemicals [2008] OJ L 204/1;Regulation (EC) No 1007/2009 on trade in seal products [2009] OJ L 286/36.
• [2] See, eg, E Vranes Trade and the Environment: Fundamental Issues in International and WTO Law(Oxford University Press, 2009) and D Langlet Prior Informed Consent and Hazardous Trade: RegulatingTrade in Hazardous Goods at the Intersection of Sovereignty, Free Trade and Environmental Protection (2ndedn, Kluwer Law International, 2009) Chaps 10—12.
• [3] See WT/DS400, European Communities—Measures Prohibiting the Importation andMarketing of Seal Products.
• [4] Reports of the Appellate Body (22 May 2014) WT/DS400/AB/R and WT/DS401/AB/R.
• [5] The Exclusive Economic Zone (EEZ) is defined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (10 December 1982, Montego Bay) 1833 UNTS 3, Section V
• [6] 32 Case C-6/04 Commission v United Kingdom ECLI:EU:C:2005:626, para 115.
• [7] Ibid, para 117. It should also be mentioned that the British High Court as early as 1999 held thatthe Habitat Directive was applicable beyond the area of the territorial sea. R v Secretary of State for Tradeand Industry ex parte Greenpeace [1999] All ER (D) 1232.
• [8] UNCLOS (n 31), Art 56. 35 Ibid, Art 77.
• [9] 36 Generally on coastal State jurisdiction in the EEZ, see Y Tanaka The International Law of the Sea
• [10] (2nd edn, Cambridge University Press, 2015) Chaps 4 and 8.
• [11] Dir 85/337/EEC (n 18), Art 3.
• [12] Directive 2009/31/EC of the European Parliament and of the Council on the geological storageof carbon dioxide [2009] OJ L 140/114, particularly Art 2 and Art 7.
• [13] Directive 2001/42/EC of the European Parliament and of the Council on the assessment of theeffects of certain plans and programmes on the environment [2001] OJ L 197/30.
• [14] Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions(integrated pollution prevention and control) [2010] OJ L 334/17.
• [15] Case C-188/07 Commune de Mesquer ECLI:EU:C:2008:359, paras 60—1.
• [16] 42 Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy (Marine Strategy FrameworkDirective) [2008] OJ L 164/19.
• [17] Ibid, Art 3(1) a.
• [18] Case C-286/90 Poulsen and Diva Navigation ECLI:EU:C:1992:453, paras 9—10.
• [19] Case C-405/92 Mondiet ECLI:EU:C:1993:906, para 12.