Integration

The need to integrate environmental concerns into other EU policies was addressed in the Third Environment Action Programme in the early 1980s, after it became known that the Community’s agriculture, transport, and regional policies were having a significant impact on the environment.^{[1] [2] [3] [4] [5]} Amendment of the EEC Treaty in 1987 through the Single European Act introduced integration as a basic environmental principle. It was then stipulated that ‘Environmental protection requirements shall be a component of the Community’s other policies’.i4i

At this time the provision on the integration of environmental protection requirements was the only so called horizontal clause in the Treaty. Since then several others have been introduced.^² In the Treaty of Maastricht, the principle was reformulated as: ‘Environmental protection requirements must be integrated into the definition and implementation of other Community policies.’

The Treaty of Amsterdam took another step forward and made the integration requirement an independent general principle in Article 6 of the EC Treaty. Moreover, the phrase ‘in particular with a view to promoting sustainable development’ was added to the existing wording of the Article. This helped to provide some legal weight to the concept of sustainable development in EU law.

After the amendments through the Treaty of Lisbon, the principle is now in Article 11 TFEU, according to which: ‘Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.’

The principle is also included in the EU Charter of Fundamental Rights, Article 37, with a slightly more conservative, but at the same time more concrete, wording: ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’

As early as during the preparatory work of the conference that adopted the Treaty of Amsterdam, the Commission undertook to draw up environmental impact assessments for all its future proposals that could be expected to affect the environ- ment.i4³ Under the UK Presidency, the European Council in June 1999 established the principle that all important Commission proposals must contain an assessment of the measure’s potential impact on the environment.^

In the Sixth Environment Action Programme, integration of environmental concerns was a central theme and was discussed in relation to several policy areas, including agriculture and fisheries, but also areas such as development aid, trade policy, and the financial sector.¹⁴5 In its mid-term review of the Sixth Action Programme for the Environment in 2007, the Commission concluded that the results had been mixed. While the agriculture sector was highlighted as an area where fundamental reforms were carried out towards seeing farmers as stewards of nature, integration in other policy areas was considered less successful. In practice, the principle had various implications and was applied in different ways within different policy areasTh⁶ Impact assessment of legislative measures was regarded by the Commission as a key to effective integration. In the review document, the Commission committed itself to developing a strategic framework for the integration of environmental concerns into other policies.1⁴⁷

The integration principle is also a core concept in the Seventh Environment Action Programme. Improvement of environmental integration and policy coherence is a priority objective of the Programme.^⁸ Accordingly, the achievement of many other priority Programme objectives is conditioned on a more effective integration of environmental and climate-related considerations into other policies. To improve environmental integration, the Programme shall ensure that by 2020 sectoral policies at Union and Member State level are developed and implemented in a way that supports relevant environment and climate-related targets and objectives. A basic requirement to achieve this objective is assessments of the environmental, social, and economic impacts of policy initiatives at appropriate Union and Member State levels to ensure their coherence and effectiveness.^⁹

What legal implications, then, does the principle of integration of environmental considerations have? A fundamental problem, as with any other legal principle, is that the Treaties lack a clear definition of what implications integration really has for drafting and implementing the Union’s policies and activities. Unless environmental concerns are sufficiently taken into consideration in the other policy areas, the environmental policy will achieve very little or no result. However, how far, and how, should environmental concerns be integrated? It is quite clear that they do not in principle trump other policy objectives.^⁰ They need, however, to be taken into account in a structured manner when a policy is being developed and measures are adopted within all other policy areas. Work on impact analyses, not ^{[6] [7] [8] [9] [10]}

only environmental but also of the social impacts of measures, is now the subject of relatively comprehensive and regularly revised guidelines.^¹

The principle can also be seen as a requirement for achieving objectives within other policy areas through measures that are as environmentally friendly as possible.152 It has also been suggested that if there is no environmentally sound alternative, the question should be whether a measure is indeed indispensable for achieving a Union objective. If not, the measure should not be taken.15³

This, however, does not answer the question of what is meant by ‘environmental protection requirement’, that is, what should be integrated. The clearest expression of such requirements is the objectives and principles set out in Article 191 (1) and (2) TFEU. This covers environmental objectives and principles on which a policy should be based, such as the precautionary principle and the polluter-pays principle. When defining what should be integrated into other policy areas, it is important that the EU environmental policy should aim at a high level of protection. Such a level should be used for assessing the measures within other policy areas. The factors set out in Article 191 (3) should reasonably be taken into account since they form an integrated part of environmental policy. They include scientific and technical data as well as the potential benefits and costs associated with taking or not taking measures.

Although the integration principle is relatively elusive and necessarily leaves a wide margin of appreciation to the EU institutions, it still has some real impact on the interpretation and application of EU law. One effect relates to the choice of legal basis for legal acts. As will be discussed further in Chapter 4, the principle of integration of environmental concerns means that measures aimed at protecting the environment may also be taken within policy areas other than environmental, and may thereby be based on other legal grounds than Article 192 TFEU.

The Court of Justice noted this already in 1999 in a case relating to a legal acTh⁴ which after the Chernobyl disaster limited imports of agricultural products from third countries. Greece questioned the legal basis of the act and argued that since its main purpose was to protect human health, it should be based on the equivalent of the current Article 192 and not on the article relating to the common trade policy, which the Council had decided. The Court rejected this argument by referring to the fact that all EU measures must satisfy the requirements of environmental protection, and a measure did not need to be considered as a part of environmental policy just because it concerned environmental protection.155 ^{[11] [12] [13] [14] [15]}

In another example, the Court confirmed that in fisheries policy, conservation measures, including those aimed at protecting species other than those that are caught, could be considered as a part of fisheries policy as long as the question is mainly one of regulating fishing activities.^⁶

As indicated above in the discussion of principles underlying environmental policy, these principles can be used for interpreting provisions within other policy areas. This is an expression of integration of environmental requirements. Among others, the Court of Justice has interpreted Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms in the light of the precautionary principle.^⁷ In the Concordia Bus case/5⁸ the Court interpreted Directive 92/50/EEC on the coordination of procedures for the award of public service contracts^⁹ in the light of integration policy. The case concerned the possibility of imposing environmental requirements in public procurement, which the relevant directive at that time did not expressly permit. The Court, referring to the integration principle, found it could not be ruled out that the contracting authority could apply environmental protection criteria when assessing the most economically advantageous tender.^⁰

The Court thus paved the way for a formal amendment of EU law concerning public procurement. This enabled Member States to include environmental protection requirements in the list of criteria for assessing the most economically advantageous tender. The integration principle thereby has the effect that legal rules outside the area of environmental policy can be interpreted in light of the Treaties’ environmental protection requirements.

A third issue concerning effects of the integration principle is whether the legality of a legal act can be challenged on the ground that the principle of environmental integration has not been considered. EU institutions’ broad discretion to make their assessments when they apply this type of requirement in complex situations suggests that a legal act could be annulled on this basis only in exceptional cases.^¹

In Sweden v Commission, the General Court annulled one of the directives that had been issued by the Commission with reference, inter alia, to an infringement of the principle of a high level of protection. 162 The Commission’s measure was based on the legal ground for the agriculture policy. The requirement of high level of protection could therefore be only the result of integration of environmental protection considerations in this policy area. In practice, the annulment was the result of applying the integration requirement. ^{[16] [17] [18] [19] [20] [21] [22]}

• [1] For a description of the development of the integration principle, see A Comolet and ADecininck ‘Le principe d’integration. Historique et interpretation’ (2001) 5 Revue Europeenne de Droitde lEnvironnement 152—67; N Dhondt Integration of Environmental Protection into other EC Policies—Legal Theory and Practice (Europe Law Publishing, 2003).
• [2] Art 130r(2) in the then EEC Treaty.
• [3] For an overview, see de Sadeleer EU Environmental Law and the Internal Market (n 96) 22—5.
• [4] This was mentioned in a declaration appended to the Final Act of the Conference. See document CONF 400/97 CAB, 68. A similar declaration had been appended to an annex to the Treaty ofMaastricht.
• [5] Presidency’s conclusions, document SN 150/1/98 REV 1.
• [6] Dec 1600/2002/EC (n 10) 1.
• [7] 146 See, among others, S Mahmoudi ‘Integration of Environmental Considerations into Transport’in R Macrory (ed) Reflections on 30 Years of EU Environmental Law: A High Level of Protection (EuropeLaw Publishing, 2006) 183—95; R Williams ‘Community Development Corporation Law, SustainableDevelopment and the Convention on Europe: From Dislocation to Consistency?’ (2005) 4 Yearbook ofEuropean Environmental Law 303—75.
• [8] Mid-term review of the Sixth Community Environment Action Programme (n 13), section 5.3.
• [9] Seventh Environment Action Programme (n 3), Art 85. 14® Ibid, Art 89.
• [10] 150 Kramer EU Environmental Law (n 26) 20.
• [11] See European Commission, Guidelines on Impact Assessment (19 May 2015) SWD(2015) 111final, Chapter III.
• [12] 152 Jans and Vedder European Environmental Law (n 23) 22.
• [13] Dhondt Integration of Environmental Protection (n 140) 478.
• [14] Regulation (EEC) No. 3955/87 on the Conditions Governing Imports ofAgricultural ProductsOriginating in third countries following the accident at the Chernobyl nuclear station [1987] OJL 371/14. This regulation has been repealed and now replaced by Council Regulation (EC) No733/2008 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power station (Codified version) [2008] OJL 201/1.
• [15] Case62/88 Hellenic Republic v Council ECLI:EU:C:1990:153, para 20.
• [16] Case C-405/92 Mondiet (n 45). 157 Case C-6/99 Greenpeace France (n 57).
• [17] 158 CaseC-513/99 Concordia Bus Finland ECLI:EU:C:2002:495.
• [18] 159 Council Directive 92/50/EEC relating to the coordination of procedures for the award of
• [19] public service contracts [1992] OJ L 209/1. This directive was repealed in 2004 by Directive 2004/18/EC, which in turn is now replaced by Directive 2014/24/EU of the European Parliament and of theCouncil on public procurement and repealing Directive 2004/18/EC [2014] OJ L 94/65.
• [20] Case C-513/99 Concordia Bus (n 158), para 57.
• [21] Jans and Vedder European Environmental Law (n 23) 26.
• [22] CaseT-229/04 Sweden v Commission (n 53), para 262.