EC TREATY

FRG (2001) Notification of a draft Order amending Chemicals Orders (organotin compounds) pursuant to Article 95(5) of the EC Treaty. Cemmunicatien frem the Government of the Federal Republic ef Germany te the Eurepean Commission, 9 January. 

One of the conclusions from the 1992 United Nations Conference on Environment and Development in Rio de Janeiro (the Earth Summit) was the urgent need to find a more sustainable way of life, based on careful use of resources and a reduction in environmental emissions. There was also a call to move towards a model in which environmental enhancement is fully integrated with economic development. The consequences of this summit have been far-reaching not least by the fact that, in Europe and elsewhere, environmental protection requirements are now integrated into many policies rather than being separate pieces of legislation. Indeed Article 2 of the EC treaty states that the Community shall. .. promote throughout the Community harmonious, balanced and sustainable development of economic activities This may be viewed as the first step towards... 

National legislation which lay down a general prohibition on the use of Trichloroethylene for industrial purposes and establishes a system of individual exemptions, granted subject to conditions, is justified under Article 36 of the EC Treaty (now, after amendment. Article 30 EC, on the grounds of protection of health of humans. ... 

Commission Decision of May 24, 2006, on the national provisions notified by the Czech Republic under Article 95(4) of the EC Treaty concerning the maximum admissible content of cadmium in fertilisers (notified under document number C(2006) 2036). 

The scheme of the EC Treaty assumes that aid granted by a Member State is prohibited unless some exception or exemption is provided for in or under the Treaty.2 The general prohibition... 

It is important to appreciate, however, that even if a particular action by a Member State does amount to aid under the EC Treaty, it may still be possible for that aid to be granted an exemption under specific Treaty provisions or under legislation adopted under the auspices of the Treaty This point will be considered later (see Section 3), with particular concentration upon justifications relating to environmental matters and to the execution of an important project of common European interest . 

Thus, it is suggested that the free allocation of allowances under the EU ETS does indeed amount, prima facie, to the grant of State aid under the rules of the EC Treaty. 

As mentioned in Section 2.1, the scheme of the EC Treaty provides that, assuming that there is aid involved, that aid must be justified on some accepted ground if the grant of such aid is to be compatible with the common market. 

When the Commission takes a decision on the compatibility of any proposed grant of aid with the EC Treaty, it must respect the principle of proportionality. This is a general principle of EC law,26 which is inherent in the EC Treaty and thus applies as a matter of law to the actions of the EC institutions (here, the Commission in approving State aid)27 and to those of the Member States (when implementing or derogating from EC law see, e.g., Tridimas, 1998, ch. 4). 

It seems that the only potentially problematic element here may be criterion (5) thus, a clear explanation would be needed as to why the proposed amendments do not amount to undue favour for certain undertakings/activities, leading to concerns under the EC Treaty s rules on State aid. If the point were to redress such differentiation at present, then this would seem possibly to fit within criterion (5). 

Finally, a legislative strategy could be devised to deal with the issues raised by State aid law in this field. As with the current EU ETS Directive, the relevant legal basis under the EC Treaty for such legislation would be Article 175(1) EC, which would require a proposal from the Commission and the involvement and ultimate joint agreement of the Council and the European Parliament under the so-called co-decision procedure of Article 251 EC. If this is the only way in which to achieve the desired changes, it is vital that moves begin as soon as possible this process can be... 

In the EC Treaty itself, there are both automatic and discretionary exceptions from the prohibition, although both require Commission approval after notification of the aid by the Member State. Under the Treaty, legislation has been adopted to exempt various aids from the prohibition, in the style of the Block Exemptions used to give effect to the exemption in Article 81(3) EC. (See Joined Cases T-447/93 and T-448/93 AITEC v. Commission [1995] ECR 11-1971.)... 

Seethe EU ETS Directive, Recital 23 ( without prejudice to Articles 87 and 88 EC), Article 11(3) and Para. 5 of its Annex III. Indeed, it seems unlikely that the relevant provision in the EC Treaty (Article 175(1) EC, which conferred power upon the EC to adopt environmental legislation such as the EU ETS Directive) would allow the adoption of any wholesale exemption that would not be compatible with the provisions on State aid. 

Firmly established under Article 2 of the European Community (EC) Treaty, legislators should serve to preserve, protect and improve the quality of the environment and to protect human health. Most chemicals legislation aimed to protect human health and the environment has been introduced under the EC Treaty. It is therefore referred to EC rather than EU legislation. 

A straightforward tenet of the EC Treaty is that it is the polluter who should pay for pollution or harm caused by its activities or products. It establishes that responsibility for the causation of environmental pollution can be measured in monetary terms, but limitations in evaluating the effects of pollution (especially in terms of monetary value) severely hamper application of this principle. If applied fully, the polluter pays principle would mean that prices of all products would reflect the full cost of production and consumption, including the environmental cost [220]. In this way, final consumer use of products would be the considered to be polluting activities. 

To protect occupational and consumer health from DCM, Germany set technical standards on DCM sales. National measures would not have been practical for regulating the trade and marketing of DCM in the EU. Action to restrict the marketing of dangerous substances to protect human health or the environment must comply with Article 95 of the EC Treaty relating to the internal market. Objecting to immediate adoption of EU standards to ensure adequate risk reduction, the UK - a major producer of DCM - declared that it was necessary to conduct full risk assessments of alternative substances, as well as a detailed socio-economic analysis of... 

Before completion of an EU risk assessment on TCE, Sweden decided that epidemiological evidence on the hazardous properties of the chemical was sufficient to warrant strict regulatory control in the workplace (through the application of Article 138 of the EC Treaty). Sweden therefore began to implement a company use-specific authorisation system. Sweden s action was later challenged by the European Commission as causing unnecessary barriers to trade, but a European Court of Justice ruling upheld the Swedish system. 

The research further concludes that chemical uses should be subject to a permitting mechanism at Member State rather than EU level when a political response to control occupational exposure in industrial settings is necessary at a national level. This follows the evidence from the interviews that indicate that serious political pressure at national levels may arise if certain chemicals are not included in an authorisation process (Section 5.3 - Box 5.1). Making these uses subject to Member State permitting-based schemes therefore enables national authorities to set the appropriate level of occupational health protection. While implementing measures relating to Article 138 of the EC Treaty is outside the immediate scope of REACH, it will ultimately affect decision-making. 

Measures implemented through national permitting schemes could include occupational exposures for industrial and/or professional uses. In particular, Member States should always have the option of operating national permitting schemes when this is deemed necessary to achieve levels of protection for occupational exposures in industrial settings (following Article 138 of the EC Treaty). 

Socio-economic considerations for measures aimed at achieving occupational or environmental protection set under legislative frameworks based on Articles 138 or 175 of the EC Treaty would be outside the scope of REACH. For standards under Directive 98/34 proportionality must already be demonstrated by the Member State through the notification procedure. 

Regulation (EC) No. 1882/2003 of the European Parliament and of the Council of 29 September 2003 adapting to Council Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in instruments subject to the procedure referred to in Article 251 of the EC Treaty. Official Journal, L 284, 31/10/2003, 0001-0053. 

The principle of subsidiarity, as laid down in Article 3B of the EC Treaty, is a general guideline for the action of the EU inter alia, in the field of the environment. It comprises two tests. First, it formally introduces an efficiency testinto the EC Treaty. Matters that can be dealt with better at the EU level should be regulated by the EU matters that are better dealt with by the Members States should be left to their competence. Secondly, it comprises the principle of proportionality. This principle adds to the efficiency consideration that matters which are dealt with at a European level should not regulate more than is strictly necessary. The efficiency and proportionality tests in Article 3B, if correctly used, allowfor an optimal differentiation of rules with an effective distribution of competencies between the EU and the Member States. 

Until recently neither the ECl nor the Commission had the power to enforce the compliance with the judgement of the ECl. However, since the entry into force of the Maastricht Treaty, a new Article 171 has heen introduced in the EC Treaty, stating that ... 

The measures authorised under paragraph 2 may involve derogations from the rules of the EC Treaty and from this Act to such an extent and for such periods as are strictly necessary in order to attain the objectives referred to in... 

The terms of Lithuania s EU accession are noteworthy in two important respects. First, Article 4 of the Fourth Protocol provides Lithuania with more than 10 years of protection under Article 37 of the Act of Accession rather than the usual three, for the specific issue of energy supply disruption. Article 37 permits, at the Commission s discretion, substantial measures up to, and including, derogations from the EC Treaty and the Act of Accession. However, and most importantly, such powers cannot permit a life extension for Ignalina 2 beyond December 31, 2009. That is, such measures are not in the gift of the Commission and would require a higher-level reform of the Treaty and Act of Accession itself, and as such would require the agreement of all EU member states. 

The Court of Justice has the imjxjrtant task of monitoring the legahty of actions by the Community institutions and providing legal protection. The apphcation of Community law by the Member States is also subject to the independent judicial scrutiny of the European Court of Justice. In addition, the Court gives the national courts guidance on the interpretation of the EC Treaty and Community legal acts. 

Two different types of Directives have to be distinguished. Directives can be issued on the basis of article 95 or article 136 of the EC Treaty. 

The classification of substances in annex I of Directive 67/548/EEC [3-1] is obligatory for all Member States in the European Community, because all regulations of the free market are based on Article 95 of the EC treaty any national modification is not allowed. 

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