EU Environmental Law: Sources, Instruments and Enforcement
| Published date | 01 September 2013 |
| DOI | 10.1177/1023263X1302000305 |
| Date | 01 September 2013 |
| Author | Astrid Epiney |
| Subject Matter | Article |
20 MJ 3 (2013) 403
EU ENVIRONMENTAL LAW: SOURCES,
INSTRUMENTS AND ENFORCEMENT
Reections on Major Developments
over the Last 20 Years
A E*
ABSTRAC T
e purpose of the present paper – in line with the concept of the whole issue – is to
examine some cross-cut ting questions of a constitutional nature in EU environmental law
(innovative use of sources of EU law, regulatory instruments and aspects of enforcement).
Rather than giving an overview of the development of EU environmental law and policy,
this paper will focus on these constitutional aspects with the objective of analysing the
contribution of EU environmental law and polic y to certain constitutional aspects. It will
also look at the potential rele vance of specic developments in EU environmental law and
policy for other elds of EU law and pol icy and for the process of EU integration in general.
Keywords: en forcement; EU environmental law; sou rces and principles
§1. INTRODUCTION
EU environmental policy ha s become an integral but also an import ant part of the EU’s
activities over the past 30–40 years.1 is eld of EU law is important from an ‘EU
* Fribourg/CH. e aut hor would like to t hank Benedi kt Pirker, PhD, for his help in nalizi ng the
present contribution .
1 Concerning t he development of EU environmental law, see e.g. P. ie ry, Droit de l’environnement
de l’Union europé enne (2nd edition, Bruylant , Paris 2011), p.4 et seq.; P.G.G. Davies , European Union
Environmental L aw. An Introduction to Key Sel ected Issue s (Ashgate Publishing Limited, Aldershot
2004), p.1 et seq.; J .H. Jans and H.B. Vedder, European Environmental Law (4th edition, Europ a Law
Publishing , Groningen 2012), p.3 et seq.; L. Krä mer, Droit de l’environnement de l’ Union européenne
(Schulthess Jur istische Medien AG, Basel 2011), p.3 et seq.; A. Epine y, Umweltrecht der Europäischen
Union (3rd edit ion, Nomos, Baden-Baden 2013), chapter 2.
Astrid Epiney
404 20 MJ 3 (2013))
point of view’ but also from t he ‘Member States’ point of view’: a large variety of EU legal
acts have a determining impact on the law of Member States, their envi ronmental law
being largely inuenced by EU law.2 Moreover, and of particula r interest in the context
of the present contribution, some characterist ics of environmental law have led to the
development of principles of a constitutional nature, and of a n importance reaching
far beyond environmental law. It is the purpose of the present paper to highlight some
of the developments which relate to principles and sources of EU law (§2), regulatory
instruments (§3) and aspects of enforcement (§4). It will conclude with some summar izing
remarks highl ighting in particular t he relevance of at least some of these developments
for other elds of EU law (§5).
§2. SOURCES OF EU LAW: ENVIRONMENTAL ACTION
PROGRAMMES AND ENVIRONMENTAL PRINCIPLES
In the eld of environmental law, the sources of EU law are, sensibly, the same as in
other elds of EU law. From a strictly legal point of view, no particularity is notice able.
However, two sources are particula r to environmental law and policy: environmental
action programmes (A) and environmenta l principles (B). In the following, they w ill be
briey discussed be fore a short interim conclusion (C).
A. ENVIRONMENTAL ACTION PROGRAMMES
Environmental action programmes had already been developed and adopted from
the very beginning of EU environmental law and polic y. Even if programmes also
exist in other elds of EU policies, the environmental act ion programmes have, by
contrast, a special role a nd function because of t heir legal nature. is special nature
was introduced by the Treaty of Maastr icht, which foresaw a special procedure for the
adoption of environmental action progra mmes. Today, Article192(3) TFEU provides
that environmental ac tion programmes – ca lled ‘general action programmes’ – shall be
adopted under the ordinar y legislative procedure. As a consequence, these program mes
have to be legally binding; ot herwise, the applicat ion of the ordinary legislative procedu re
would make no sense.3 As a consequence, the environmental act ion programmes are
not so law, but hard law from a legal point of view.
2 For certain Mem ber States, national envir onmental law is almost enti rely determined by EU law. But
also in genera l, it is no longer possible to cons ider and apply national env ironmental law w ithout having
regard to EU environ mental law. Even in Member States wit h a certain tr adition in environment al law
such as Germany or t he Scandinav ian States, far more t han 50% of national env ironmental law is more
or less inuenced by EU e nvironmental law.
3 Compare, for exa mple, L. Krämer, EC Environmental Law (Sweet & Maxwel l, London 2007), p.61; L.
Krä mer, D roit de l’environne ment de l’Union e uropéenne, p.33; A. Epiney, Umweltrecht der Europäischen
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