INTERLINKS IN EU LEGAL CULTURE BETWEEN:
– THE INTERNAL MARKET
– EU COURTS
– EU ENVIRONMENTAL LAW

• Developed from sui generis polity in 1958 to an ‘ever closer union’ (1 TEU)
• Market liberation central:
– Free movement of goods and factors of production
– ‘cooperation and integration that would make pan-
European armed conflict inconceivable’
– ‘we’re not here just to make a single market, that doesn’t interest me, but to make a political union’ (Delors)
• The internal market has a double edged quality: husbands economic activities and furthers integration

- Narrow definition
- competition law
- Broad definition
- Article 11 TFEU: environmental protection integrated in Union’s policies and activities

• It has the qualities of a Russian dolls (Armstrong)
- Narrow
- Article 26 (2) TFEU: ‘internal market shall compromise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.’
- Broad
- abolishing barriers to trade, harmonising and approximating legislation with the aim of facilitating firms work across borders
- Finalising the market is an ‘ongoing’ project

• Specific market-based legal framework
• Agenda set at creating an integrated and competitive market

• ‘Goods’
– Case 7/68 Commission v Italy: that can be ‘valued in money and which are capable, as such, of forming the subject of commercial transactions’
– Wallon case
• Control of fiscal measures: Art. 30, 110 TFEU
• Quantitative barriers and all measures having equivalent effect: Art
34-35 TFEU
– Dassonville: ‘capable of hindering directly or indirectly, actually or potentially intra-Community trade’.
– Danish Bottles case
– Bluhme case

• Art 36 TFEU (health, animals and plants)
– Direct discrimination
– Bluhme + Mickelsson and Roose

• Cassis de Dijon exemption
– Indirect indiscrimination
• disperse national provisions must be accepted, in so far, as such rules, applicable to national domestic and imported productions without distinction, may be deemed necessary in order to satisfy national mandatory requirements
• E.g. public health, fairness of commercial transactions, consumer protection
– Danish Bottles:
• ‘protection of the environment is one of the Community’s essential objectives, which may as such justify certain limitations of the principle of the free movement of goods’
– Wallon case (direct discrimination)

• Keck- exemption
– Selling arrangement (use, not product-related)
– Applies indistinctly
– Affecting products in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States, do not fall within Art 34 TFEU
• Mickelsson and Roos (AG Kokott)
• New development: access to market (userequirements)

• ’there is enormous and immediate potential for stimulating investment and new jobs in environmental sectors…full implementation of the existing waste legislation by
Member States would create 40,000 jobs and save € 72 billion a year compared to non-implementation’
• ’I believe that the economy and the environment are deeply inter-linked and inter-dependent. I believe that the only way to develop sustainably is through making the way our economies work sustainable. And I believe the Single
Market can be a driving force for greening the economy’

• Commission Communication: Building the
Single Market for Green Products
– E.g. Uniform way of promoting green credentials

• ‘a highly politicized choice of ethos, ideology and political culture’ is crafted, which follows an economic rationale that also seeks to protect high social and environmental standards’ (Weiler)
• Art. 3(3) TEU: ‘a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.’

• Former Article 308 EC, as well as Article 95 EC, which allows harmonisation of national laws on the basis of furthering the establishment of the internal market, and creates residual general powers for the Union to safeguard the functioning of the internal market respectively
• Art 114(3) TFEU: approximation of laws, high level of env protection is required

• 80/778/EEC Drinking Water Directive
• 89/428 EEC Titanium Dioxide Directive
• ’Economic Spillovers’
• What does it all mean?
– The internal market has a kaleidoscope of aims, incl. creating prosperity, social security and environmental protection
– Market creation is used to expand on environmental law competences

• By 2006 more than 700 judgments, 50 legislative acts that directly or indirectly regulate environmental matters (Jacobs)
• Art 19 TEU: ‘shall ensure that in the interpretation and application of the Treaties the law is observed.’

• Promotes European integration also in interpreting environmental laws
• Has lead to conflicts between free market provisions and environmental protection
– Balancing act

• ADBHU case
– ‘the principle of freedom of trade is not to be viewed in absolute terms but is subject to certain limits justified by the objectives of general interest pursued by the (then-) Community’
– EU law must be seen in the perspective of environmental protection, which is one of the
Community’s essential objectives’

• Cartagena Protocol – an international agreement, which aimed to control the transboundary movement and management of living modified organisms
– Trade measure (Art 300 EC, 133 EC)
– Or environmental agreement (175 EC)

• Bluhme and Preussen Elektra
– fall within the scope of Article 34 TFEU
– justified these on the grounds of protecting and preserving the bee population, and promoting renewable energy
• Distinctly
• Indistinctly
– justified, one of the arguments being that the protection of the environment is one of the
Community’s essential objectives.

Is it fair to say that the court is activist? Ought it be?

Should environmental concerns be resolved at the decision-making or the judicial level?

• Focus of court is the effective and uniform application of EU law (Sobotta)*
– Art 263 (uniformity)
– Art 258-260 (effectiveness – most EU env laws)
• This has had an effect on EU env law
• It is not an environmental law court
– Grand Chamber:
• 2006-2011: 282 cases in total
• Only 10 raised environmental questions
C Sobotta, ’Compliance with European Environmental Law – Deficiencies and
Approaches. The role of the CJEU’ (2012) 9 JEEPL 91-107

• Internal market is a ‘gigantic regulatory object’, incl. the adoption of 300+ directives and regulations only in the first five years
• Freer markets, more rules
• Mainly ’command-and-control’ type of EU environmental regulation, and in the form of directives

• Command-and-control
– ‘obscure, complex and inaccessible’
– Damages the competitiveness of European business, the employment prospects of European citizens and inhibits economic growth

• Better Regulation/ Smart Regulation agenda)
– Following Lisbon Agenda
– simplify legislation, reduce administrative burdens, and increase economic competitiveness
– Create ‘win-win’ situations
• Ecological modernisation
– Environment + economy go hand in hand
– Dimas
• Europe ‘needs to invest more in innovative ways to protect the environment while boosting the EU’s competitiveness.’

• Weatherill
– any assessment and reform of EU legislation is directly linked to EU’s institutional framework
• i.e. who legislates better?
– Subsidiarity principle
– It is based on value judgments
• ‘Markets exist to serve a purpose which is to deliver sustainable prosperity for all, and they will not always do this on their own. Regulation has a positive and necessary role to play.’ (Commission Communication)

• EU constructs the internal market via regulation that the EU courts interpret
• EU env law tends to be constructed and reformed so as to help enhance the internal market and its competitiveness
• Env protection is used in this trade-liberated context, inter alia, by the EU court to further
European integration
– Balancing act