United Kingdom Journals

Andreas R. Ziegler, Trade and Environmental Law in the European Community, Clarendon Press Oxford 1996, 308 pp, ISBN 0 19 826246 9, Hb £45.

Reviewed by Robert Wight

Lecturer in Law
University of Essex

Copyright © 1997 Robert Wight.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Over the last decade, Environmental Law as an academic speciality has found a place in the undergraduate syllabuses of most universities. This development has brought forth a demand for texts on environmental law which shows little sign of abating, judging by the wide range of titles currently devoted to the subject. Rather surprisingly, considering the range of human activity which affects the environment, these texts tend to be rather similar in both form and substance, dealing primarily with specific legal provisions which exist to protect various media (land, air, water) and the sources from which such measures derive, domestic, international and, of course regional, through the activities of the European Community (EC). The activities of the latter have had such an impact upon the environmental law of member states that EC environmental law has become almost a sub-speciality amongst lawyers, with courses and academic texts devoted exclusively to describing and analysing the wide range of EC activity affecting the environment. It is true that many of such courses and texts tend to reflect the agenda set in the general environmental text books and this creates a difficulty.

First, the protection of the environment was not one of the aims of the original Treaty of Rome. As frequently pointed out, the word 'environment' does not appear in the original Treaty which did not expressly contain a basis for environmental law-making until the advent of the Single European Act in 1986. The extensive legislation which appeared before this date can best be referred to as environment-related (Ziegler's phrase), since much of it (including the Directives on pollution control which form the staple diet of the EC environmental lawyer) was aimed at achieving the conditions necessary for the establishment and functioning of the single market. The point is that the subject matter of EC environmental law cannot be adequately dealt with in isolation from the overall aims of the Treaties. Attempts to circumscribe the subject in terms of TITLE XVI and the pollution Directives can provide the student or reader with a distinctly limited, incomplete and distorted view of the role played by EC institutions in the environmental field. For example, one of the main pillars of the EC has been the promotion of free movement of goods. It is obvious that if member states impose differing product standards in order to comply with divergent environmental regulations this will create obstacles to free trade in such goods. The Commission is, therefore, likely to take action, not necessarily to tackle low environmental standards in some member states, but primarily to attain an internal market in those goods. A proper analysis of such EC legislation must take the entire purpose of the legislation into account and not lose sight of the primary aims of the EC Treaty. To gain a more holistic view of the subject, I would certainly recommend the text under review which, as appears from the cover, contains

"the most comprehensive overview yet published of the European Community legal mechanisms and rules concerning the relationship between the establishment of the Single European Market and the development of international, European and domestic environmental law."

What Ziegler's text highlights is the need to strike a balance between the responsibilities of the EC institutions under EC law and the responsibilities of member states in the area of environmental protection. In effect, one of the main roles of the European Court is to identify and eliminate what may be termed examples of green protectionism which are incompatible with the Treaty. As the author writes, "To find the balance is often a very difficult and delicate task."(p 5)

The text is divided into two parts. Part I examines the extent to which member states can take steps to protect their environments without infringing the freedoms and principles created by the common market. Part II describes the extent to which the EC has itself acted to harmonise environmental standards.

Starting from first principles, Ziegler takes the Community concept of free movement of goods and discusses its significance for domestic regulatory measures. As long as the concept of 'goods' is capable of embracing waste and packaging it is understandable, on environmental grounds, that states may wish to impose restrictions on the import of such materials. Whether such restrictions take the form of a quota system, or is a "measure having equivalent effect", it may be prohibited by Art 30 unless the measures are permitted by Art 36. This allows states to depart from the strictures of Arts 30 and 34, on the grounds, inter alia, of protecting the health and life of humans, animals or plants. Interestingly, the article does not expressly refer to measures protecting the environment although the European Court has included such measures under Art 36. Indeed, the case law on Art 36 probably contains the most interesting discussions of environmental protection measures before the introduction of the Environment Chapter into the Treaty. Most readers will be familiar, for example, with the discussion in the famous 'Danish bottles' case (302/86). Ziegler then proceeds to identify the conditions which must be present if the Court is to uphold such domestic measures viz, they must not be contrary to secondary law; they must genuinely be made in the interest of protecting the environment; they must not be discriminatory as between domestic and imported products, and they must be proportionate.

Ziegler concludes Part I by considering measures which may fall foul of Community Competition Law. Examples brought before the Court have included an industry joint-venture scheme for recycling glass and a voluntary agreement entered into by a member state and domestic industry for the environmental purpose of limiting the use of CFC's. A second category of cases have involved the use of state aid i.e. the provision of financial incentives by the member state in order to promote environmentally sound behaviour. The latter are generally prohibited under Art 92 but exceptions are permitted on a case by case basis. Ziegler includes the Guidelines on State Aid for Environmental Protection [1994] OJ C 72/3-9 in an Annex. The use of state aid does, of course, give rise to serious concern about whether they breach the 'polluter pays' principle.

Part II presents an overview of the EC's environmental (or environmental-related) policy. The initial question is to decide what effect the subsidiarity principle (Art 3a) has, or will have, on this policy. The principle provides that the Community should only act where [the protection of the environment] can be better protected at Community level than at national level. This remains to be seen, and Ziegler's only comment is to note that it will be hard to arrive at a demarcation line. Personally, I have always thought that environmental protection is, par excellence, an area in which the role of the Community should be paramount, a view which appears to coincide with that of the current UK Government.

A second, preliminary point is to decide upon which article to base secondary legislation. This is something of a vexed question because, as stated above, measures which deal with, say, the problem of waste disposal, will also affect the functioning of the internal market, thus providing the legislator with a choice of article upon which to base his directive. Under changes wrought by the Maastricht Treaty the choice is far more than of academic interest because of differences in the voting procedures in Council and the rights of the European Parliament which turn upon the choice of article. I found Ziegler's Chapter on this complex issue particularly lucid.

Ziegler then provides an overview of EC environmental policy as it appears in Art 130 r-t, and highlights the link between this and other policy areas which affect the environment, notably the Common Agricultural Policy and the Common Transport Policy. There is now an obligation to integrate environmental concerns into both policies, but not a great deal has been done under the latter. This is, perhaps, unfortunate due to the serious effects of vehicle emissions on atmospheric pollution, but it does allow member states freedom to adopt (or not to adopt) their own measures in this area.

The standard EC approach to environmental regulation through prohibitions, restrictions and fixed standards is well known and well documented. EC lawyers are perhaps less familiar with the alternative approach to environmental protection which is also within the remit of the EC i.e. the imposition of so-called green taxes, meaning higher taxes imposed on goods which are not produced in an environmentally-friendly manner, or the provision of subsidies or financial incentives for those which are. The Community can adopt provisions for the harmonisation of indirect taxation (Art 99), provided they are necessary for the establishment of the internal market. Again, not a great deal has happened so far, so member states are free to introduce their own environmental taxes (for example, the UK landfill tax). Perhaps the most interesting proposal in this field has been the much discussed energy tax to combat global warming from carbon dioxide emissions. Ziegler notes that EC industry is generally opposed to the proposal on the grounds that most non-EC countries do not have such taxes. A quasi-fiscal role for the UN would be an interesting proposal! Environmental subsidies from the EC are available, for example, under the LIFE programme but one is left to wonder whether this falls within the spirit of the polluter pays principle.

The penultimate chapter discusses the external role of the EC in both framing and implementing international environmental policy. Ziegler discusses the respective competencies of the EC and its component member states to enter into international agreements. It seems that the EC has the power to enter into international commitments which are necessary to achieve the objectives of the Treaty. In any event, the EC has signed a number of Multilateral Environmental Agreements. Ziegler also refers to the Community's role in signing commodity agreements with third party states incorporating environmental conditions (for example, the trade in tropical timber) and adopting direct trade-related environmental measures (TREMs) to protect the non-domestic environment. The final Chapter contains Ziegler's conclusions about the need to find a balance regarding the protection of the environment in the EC context, i.e. to integrate the single market with the need for environmental protection.

This is an excellent and worthy addition to any environmental lawyer's library. It is a concise, comprehensive and clearly written overview of a crucial area of law, not always highlighted in general environmental texts. I view it as an invaluable, relatively up to date (January 1996) reference tool, which comes combined with exhaustive footnoted references to primary and secondary sources (not confined to those written in English) and a useful bibliography.

Although the necessity of achieving a balance between the requirements of environmental protection and the requirements of the single market is highlighted by the book, Ziegler seems rather reluctant to comment upon whether the balance presently attained is satisfactory. This is unfortunate in that the opinion of an academic of such undoubted expertise as displayed by Ziegler would be invaluable. Still, I shall certainly look out for future publications of this author where he will perhaps feel less constrained about advancing his personal opinions.

A final point worth mentioning is that Ziegler writes as a non EC citizen; he is Swiss. He is therefore spared the understandable temptation to approach his subject from a domestic perspective, a weakness of some writing in this area.