Factors to be taken account of and financing

Article 191(3) sets out four factors that are to be taken account of in preparing the EU’s policy on the environment. First of all, available scientific and technical data must be taken into account. The Court of Justice has acknowledged that the EU legislature has a broad discretion where its action involves political, economic, and social choices and where it is called on to undertake complex assessments and evaluations. But it is nonetheless obliged to base its choice on objective criteria appropriate to the aim pursued by the legislation in question, taking into account all the facts and the technical and scientific data available.[1] [2] [3] It may be recalled in this context that the European Environment Agency (EEA) is tasked with providing the Union and the Member States with objective, reliable, and comparable information enabling them to take the requisite measures to protect the environment. Also other agencies, such as the European Food Safety Authority (EFSA) and the European Chemicals Agency (ECHA), provide the Commission with scientific and technical data and expertise. And so may Member States and other actors do within the framework of various procedures. The collection and proper use of available scientific and technical data is also closely related to, and can even be deemed a prerequisite for, dispensing with the obligation that legal proposals shall aim at a high level of protection and be based on the precautionary principle.

The second factor to be taken account of is environmental conditions in the various regions of the Union. Framework directives providing for the adoption of national or regional environmental quality objectives and programmes of measures are an obvious way to adapt the environmental policy to regional differences.!! It should be emphasised that it is explicitly environmental conditions that must be considered, rather than social and economic ones.

Account should furthermore be taken of the potential benefits and costs of action or lack of action. Obviously, the calculation of such costs and benefits can be terribly complex and subject to large uncertainties, not least since both costs and benefits of EU legislation often depend on how national administrations implement it. The methods chosen and the assumptions made can also generate very different outcomes. Nonetheless, there is an increasing emphasis in EU law-making on assessing the consequences of proposed acts. Also beyond the area of environmental policy, an impact assessment system has been put in place to ‘prepare evidence for political decision-making and to provide transparency on the benefits and costs of policy choices’^2

The final consideration complements the previous ones by making sure that EU environmental measures are designed with due consideration for the economic and social development of the Union as a whole and the balanced development of its regions. This enables a differentiated level of environmental requirements when motivated by such things as socio-economic factors or differences in infrastructure, consumption patterns, or energy supply. The Water Framework Directive (Directive 2000/60) provides an example of such considerations by allowing the Member States, when implementing water-pricing policies to provide incentives for efficient use of water resources, to have regard to the social, environmental, and economic effects of the recovery as well as the geographic and climatic conditions of the region or regions affected.[4] [5] [6] However, most provisions of most environmental measures apply without any special differentiation between Member States or regions.

Article 192 also makes clear that it is the Member States that shall finance and implement the environmental policy. However, if a measure based on Article 192(1) involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of temporary derogations, and/or financial support from the Cohesion Fund (see section 2.6) set up to provide a financial contribution, inter alia, to projects in the field of environment.

  • [1] Case C-127/07 Arcelor Atlantique and Lorraine and Others ECLI:EU:C:2008:728, paras 57—58with further references.
  • [2] See further Chapter 6.
  • [3] Communication from the Commission—Smart Regulation in the European Union (8 October2010) COM(2010) 543 final, 5.
  • [4] [2000] OJ L 327/1, Art 9. For further examples of such differentiation, see J H Jans and H H BVedder European Environmental Law After Lisbon (4th edn, Europa Law Publishing, 2011) 55.
  • [5] Case C-2/10 Azienda Agro-Zootecnica Franchini ECLI:EU:C:2011:502, para 53.
  • [6] Case C-6/03 Deponiezweckverband Eiterkopfe ECLI:EU:C:2005:222, paras 38 and 41. That anational measure that pursues different objectives does not qualify as a more stringent measure wasmade explicit in Case C-43/14 SKO—Energo ECLI:EU:C:2015:120, para 25.
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