More stringent protective measures

A core feature of the legal basis for environmental policy is the provision in Article 193 TFEU according to which:

The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission.

This can also be phrased as legal acts based on Article 192 not entailing complete harmonisation but rather establishing a minimum level of protection. The obligation to notify more stringent measures enables the Commission to assess the general compatibility of such measure with the Treaties. However, a failure to notify does not in itself render more stringent measures unlawful.!⁴

What then are ‘more stringent protective measures’? The Treaties provide no definition. It should, however, be evident that for a measure adopted by a Member State to be more stringent than an EU measure it must generally take the same approach to the environmental problem at issue as the EU measure. The Court of Justice has referred to measures of domestic law which ‘pursue the same objective’ as an EU legal act or which ‘follow the same policy of protecting the environment’ as such an act.15 As long as this requirement is fulfilled, there seem to be many ways in which a protective measure can be more stringent.

Stricter thresholds for what kind of waste may be accepted in landfills have been found to constitute a more stringent protective measure. The same goes for the fixing of earlier time limits for obtaining a certain target and the extending of restrictions (on landfilling) to a wider group of substances compared to what is required by an EU act.^{[1] [2] [3]} Measures which, with a view to protecting wild bird populations, prohibit the construction of certain wind turbines in areas forming part of the Natura 2000 network, rather than merely making authorisation of such activity conditional upon a prior assessment of the environmental impacts, have also been found to constitute more stringent protective measures.!⁷ However, the imposition of a gift tax on the ‘free’ allocation of greenhouse gas emission allowances intended to obtain additional revenue for operators of photovoltaic power stations was not regarded by the Court of Justice as a more stringent protective measure since it was deemed to pursue objectives different from those of the ETS Directive (2003/87) setting up the emissions trading scheme.!⁸

Some EU acts based on Article 192 explicitly state that they shall not prevent Member States from having more stringent measures. The Environmental Liability Directive (2004/35/EC) provides ‘the identification of additional activities to be subject to the prevention and remediation requirements of this Directive and the identification of additional responsible parties’ as examples of such permissible measures.!®

In addition to being compatible with the Treaties, more stringent national measures must also, when relevant, be consistent with other pieces of secondary EU law. That follows from secondary EU law being based on the Treaties. The Treaty provisions that typically restrict the room for more stringent provisions are those prohibiting, while also providing for exceptions, quantitative restrictions on imports and exports and all measures having equivalent effect, that is, Articles 34—36 TFEU.2⁰ In addition to these, the rules on state aid (Arts 107—109 TFEU) and on discriminatory taxation (Arts 110—113 TFEU) may also conflict with more stringent measures depending on the nature and design of such measures (see further Chapter 3).

Can Article 193 always be used to justify more stringent protective measures regardless of how a specific legal act based on Article 192 is worded and what purposes it pursues? As previously noted, the ‘centre of gravity’ principle for choosing the correct legal basis means that a legal act may have, for example, the functioning of the internal market as an important objective even though it has been based on Article 192 TFEU, since environmental protection has been deemed to be the dominant objective. There is a clear risk that the functioning of the internal market is undermined if the Member States are allowed to apply more stringent measures in all situations. Pertinent examples are the very detailed rules on shipment of waste between the Member States in Regulation 1013/2006, which have obvious implications for the functioning of the market for, inter alia, recovery operations, but which are based on an article corresponding to the current Article 192 TFEU.

Both teleological reasons and the history of Article 193 have been adduced as arguments against an interpretation according to which the Member States have an unrestricted freedom to apply more stringent measures.2¹ But one cannot easily disregard the fact that Article 193, which is clearly systematically superior to provisions in secondary law, unreservedly states that ‘measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures’ as long as they are compatible with the Treaties. The Court of Justice has also repeatedly held that EU rules do not seek to effect complete harmonisation in the area of the environment.22

Nonetheless, it is evident from the case law that environmental measures do in fact contain provisions which pursue objectives other than environmental protection and that the Member States are not in all cases free to overrule these objectives by means of more stringent protective measures. In 2010, in a case concerning Directive 2000/53/EC on end-of-life vehicles, the Court of Justice found that more stringent protective measures must be compatible with the provisions of the treaties ‘and, inter alia, must not frustrate the achievement of the objective pursued in the second instance by that directive, namely to ensure the smooth functioning of the internal market and to avoid distortions of competition in the Union.2³ It is thus clear that objectives other than environmental protection pursued by ‘Article 192 legal acts’ can limit the right to take more stringent measures if such measures would undermine those objectives. It must be noted, however, that Directive 2000/53/EC is unusually explicit about pursuing additional objectives and even states in its preamble that national measures concerning end-of-life vehicles should be harmonised in order, first, to minimise the impact on the environment, ‘and, second, to ensure the smooth operation of the internal market and avoid distortions of competition in the Community’^⁴ Thus, it does not require much interpretation to conclude that the Directive was meant to provide a level of harmonisation required for the internal market to operate smoothly. That the French system gave the ‘certificate of destruction’, the use of which was prescribed by the Directive, a function different from that laid down in the Directive was found to jeopardise the coherence between the national approaches and, consequently, the functioning of the internal market. Therefore the Court concluded that the function of the document may not be altered even if the French system were to afford better traceability of end-of-life vehicles.25

As regards our initial question about the detailed rules on shipments of waste between Member States, it should be noted that Regulation 1013/2006 refers to the necessity of providing procedural safeguards for the notifier in the interests of, inter alia, the proper functioning of the internal market.26 However, an obligation not to restrict procedural safeguards is anyway likely to follow from general principles of EU law and can thus not be disregarded by reference to Article 193 TFEU. ^{[4] [5] [6] [7] [8]}

It should also be noted that the fact that a Member State considers its existing national provisions to be generally better able to ensure the objective pursued by an environmental directive than the provisions of the Directive itself does not release it from the obligation to transpose the Directive unless the national provisions actually ensure the full application of the Directive by the national authorities. Where the Directive seeks to create rights for individuals, the legal situation arising from those national rules must be sufficiently precise and clear and the persons concerned in a position to know the full extent of their rights and obligations and, where appropriate, to rely on them before the national courts.2⁷

The Court of Justice has made clear that, when adopting stricter measures, Member States still exercise powers governed by EU law and are subject to the requirements of the Treaties. However, the EU principle of proportionality does not apply to stricter national measures to the extent that such measures go beyond the minimum requirements laid down by the EU environmental act at issued⁸

The effects of Article 193 should not be exaggerated. The Member States are generally not very prone to adopt measures which go beyond what is required by EU environmental law (so-called ‘gold-plating’).29 But it is important that the possibility for doing so exists, both for individual Member States that want to pursue a more ambitious environmental policy and because such measures can prompt further development of the common EU standards.

The obligation to notify the commission of more stringent national measures does not prevent Member States from applying such provisions pending a decision by the Commission. It is for the Commission to object to notified measures if it, for example, considers them to be incompatible with Articles 34 and 36 TFEU, or not to constitute more stringent measures but rather measures of a different nature than those required by the EU legal act at issue.

• [1] Case C-6/03 DeponiezweckverbandEiterkopfe (n 15), paras 44 and 49.
• [2] Case C-2/10 Azienda Agro-Zootecnica Franchini (n 14), para 52. For further examples of morestringent measures see Case C-281/11 Commission v PolandECLI:EU:C:2013:855.
• [3] Case C-43/14 SKO—Energo (n 15), para 25. 4 Directive 2004/35, Art 16.
• [4] Jans and Vedder European Environmental Law After Lisbon (n 13) 119.
• [5] See Case C-2/10 Azienda Agro-Zootecnica Franchini (n 14), para 48 with further references.
• [6] Case C-64/09 Commission v France ECLI:EU:C:2010:197, para 35.
• [7] Directive 2000/53/EC of the European Parliament and of the Council on end-of-life vehicles—Commission Statements [2000] OJ L 269/34, preambular para 1.
• [8] Case C-64/09 Commission vFrance (n 23), para 37. 26 Preambular para 19.