A high level of protection

According to Article 3 TEU, the Union shall aim at a high level of protection and improvement of the quality of the environment. This is reflected in more specific provisions in the TFEU. The principle of a high level of protection was introduced in the EEC Treaty through the Single European Act in 1987 in the provision that today is Article 114 (3) TFEU. It was to be applicable to measures that were adopted on the basis of the then Article 100a whose main purpose was the realisation of the internal market. Through the Treaty of Maastricht the principle was introduced also in the then Article 174 EC (current Article 191 TFEU) in the chapter on environmental policy. Although the basic idea is similar in both articles, the wording of the obligation in Article 191 (2) TFEU is different from that of Article 114 (3). According to the latter, ‘the Commission in its proposals ... concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts’. The EP and the Council shall also seek, within their respective powers, to achieve this goal. Since it is the latter two institutions that adopt legislative acts—often after making significant changes to the Commission’s original proposal—there is no requirement that a high level of protection actually be reflected in the legislation, as opposed to the proposals. It goes without saying that it is difficult to make a judicial review of whether the EP and the Council have actually sought a high level of protection.

A different wording is used in Article 191 (2), according to which ‘Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union.’ While Article 191(2) is about EU environmental policy as a whole, the Court of Justice, as mentioned earlier, has been prepared to examine whether the purpose of a legal act is really a high protection.[1] [2] [3] [4] [5] In Sweden v Commission, the General Court annulled the Commission’s directive that permitted the use of paraquat as an active substance under Directive 91/414 on Plant Protection Products. The basis for that was, among other things, that the principle of high level of protection had been in- fringed.95 This was particularly interesting since Directive 91/414, and thereby the Commission’s amending directive, both rested on the legal basis for agricultural policy. The principle of high level of protection is not expressly mentioned there, but applies because of the integration of environmental concerns in all other EU policy areas under Article 11 TFEU.

Despite these and other cases in which the principle of high level of protection has been used by the Court,9fi the EU legislator undoubtedly enjoys a considerable discretion when determining how to aim at a high level of protection. This follows not least from the fact that there is no clear definition of what constitutes such a level. Obviously, a high level of protection is not necessarily the same as the technically highest possible level.97

In the absence of a clear standard, it seems reasonable that a relative assessment can be indicative. The level that environmentally more ambitious Member States apply in their legislation should then be the basis for the EU’s own measures. This level may be adopted and implemented with due regard to regional differences within the European Union. Statements in various policy documents such as declarations and action programmes can also contribute to the definition of what a high level is.9®

One must also consider the scientific knowledge about the risks of the activities and substances involved. In an interpretation of the provision of the Treaty concerning high level of consumer protection (current Article 169 TFEU), the General

Court has stated that for a high level of protection, the institutions of the Union shall ‘ensure that their decisions are taken in the light of the best scientific information available and that they are based on the most recent results of international research’."

A Member State that is not satisfied with the protection level that an EU legal act provides may take a more stringent protective measure so long as the EU act is one based on EU environmental competence. However, if the main objective of the legal act providing the high level of protection is the internal market, the situation is different. This will be dealt with in Chapter 4.

The principle of high level of protection can also affect the interpretation of legal acts. The Court of Justice has, for example, found, in the context of interpreting a national authority’s discretion to oppose a shipment of waste, that the objective of promoting a high level of protection might be undermined if the authority concerned were prevented by EU law from relying on its own standards, representing a high level of environmental protection.[6] [7] [8] [9] [10]

  • [1] Case C-341/95 Bettati (n 25), para 47 and Case C-284/95 Safety Hi-Tech (n 49), para 49.
  • [2] CaseT-229/04 Sweden v Commission (n 53), para 262.
  • [3] 96 For a thorough account of such cases, see N de Sadeleer EU Environmental Law and the InternalMarket (Oxford University Press, 2014) 52—6.
  • [4] Case C-341/95 Bettati (n 25), para 47 as well as Case C-284/95 Safety Hi-Tech (n 49), para 49.
  • [5] 9® Kramer EU Environmental Law (n 26) 12.
  • [6] Case T-13/99 Pfizer Animal Health ECLI:EU:T:2002:209, para 158.
  • [7] 1°° Case C-277/02 EU-Wood-Trading ECLI:EU:C:2004:810, para 47.
  • [8] See, for example, Case T-229/04 Sweden v Commission (n 53), which relates to the implementation of Directive 91/414/EEC concerning the placing of plant protection products on the market (n82), which rests on the legal basis for the common agricultural policy.
  • [9] Ю2 Case T-13/99 Pfizer Animal Health (n 99), para 114.
  • [10] See, for example, Regulation (EC) No 1907/2006 of the European Parliament and of theCouncil of18 December 2006 concerning the Registration, Evaluation, Authorisation and Restrictionof Chemicals (REACH) [2006] OJ L 396/1 which is based on the legal basis for the internal market(current Art 114 TFEU). Its provisions are explicitly based on the precautionary principle. Art 1(3).
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