Environmental Policy as Legal Basis (Article 192 TFEU)

As regards their legal basis, the history of EU measures primarily aimed at protecting the environment can be divided into five periods:

• 1. Before 1 July 1987, when the then EEC lacked explicit competence to adopt environmental measures;
• 2. Between 1 July 1987, when the Single European Act (SEA) gave the EEC such competence, and 31 October 1993;

• 3. Between 1 November 1993, when the Treaty of Maastricht established the European Union and gave the EC extended competencies with respect to environmental protection, and 30 April 1999;
• 4. Between 1 May 1999, when the Treaty of Amsterdam came into effect, and 30 November 2009;^[1]
• 5. After 1 December 2009, when the Lisbon Treaty came into effect.

During the first period, in which the EEC lacked explicit competence with respect to the environment, legal acts pursuing environmental objectives were based on Article 100 or Article 235 of the EEC treaty, or on both of these. None of them were directly related to environmental protection but could still be used as bases for market-related environmental measures (Article 100), and for more clear-cut environmental measures (Article 235).^[2] These measures were adopted unanimously by the Council.

This situation changed by the coming into force of the SEA, which introduced explicit provisions on environmental protection both in what was then Article 100a (later Article 95 EC and now 114 TFEU) and in Articles 130r to130t (later 174—176 EC and now 191—193 TFEU). Whereas Article 100 related to the approximation of laws, regulations, and administrative practices in the Member States for the establishment and functioning of the internal market, Articles 130r—130t were specifically dedicated to environmental measures. Environmental objectives pursued through measures based on Article 114 TFEU are thus part of the strategy to establish and maintain the internal market, whereas Articles 191—193 TFEU have been added to the Treaty to make environmental protection a policy in its own right of what is now the EU.

The Treaty of Maastricht introduced changes to both Article 100a and Articles 130r—130t, which enhanced the ability of the EC to pass legislation wholly or partly aimed at protecting the environment. Additional changes were effectuated through the Treaty of Amsterdam in 1999. These aimed to strengthen the EC’s environmental policy by making it easier to adopt new common rules pursuing a high level of protection and to give the European Parliament (EP) increased influence on the drafting of legal acts in this area. This was accomplished partly by introducing decision-making by qualified majority for most environment-related acts, and partly by giving the EP more or less equal say as the Council in the adoption of new legal acts. The Treaty of Amsterdam also renumbered the articles of the EC Treaty.

The entry into force of the Lisbon Treaty on 1 December 2009 did not entail any significant substantive changes regarding the legal basis for environmental acts or for those having the functioning of the internal market as their primary objective. However, the Lisbon Treaty both changed the name of the treaty and renumbered the provisions so that the legal basis for environmental measures is now found in Article 192 TFEU, whereas Article 114 TFEU provides the basis for measures primarily relating to the internal market.

Article 192 TFEU must be the basis for provisions which fall specifically within the environmental policy, as now defined in Article 191 TFEU, even if they have an impact on, inter alia, the functioning of the internal market. The Court of Justice has, for example, found a regulation aimed at defending the forest environment against the risks of destruction and degradation associated with fires and atmospheric pollution to inherently form part of the environmental policy, although it may have certain positive repercussions on the functioning of agriculture.5 However, an EU measure cannot be part of the environmental policy merely because it takes account of environmental protection requirements.^{[3] [4]} Indeed, such requirements must, according to Article 11 TFEU, be a component of the EU’s other policies, and the mere fulfilment of this integration principle does not justify basing a measure on the legal basis for environmental policy.⁷

• [1] The Treaty of Nice, which came into force on 1 February 2003, did not change the rules on exercise of competence in the field of environmental protection.
• [2] Art 100 related to the approximation of laws for the functioning of the common market whereasArt 235 enabled the adoption, by unanimous action, of measures necessary for the attainment of oneof the objectives of the Community relating to the common market also when the Treaty had notprovided the necessary powers.
• [3] Joined Cases C-164/97 andC-165/97 Parliament v CouncilECLI:EU:C:1999:99, para 16.
• [4] Ibid, para 15. 7 Case C-336/00 Huber ECLI:EU:C:2002:509, para 33.