"Environmental guarantee" that never was

When the Danes voted in a referendum against the ratification of the Maastricht Treaty, other Member States gave the Danish Government a helping hand at the EC summit in Edinburgh in December 1992. They allowed Denmark to opt out of several of the Treaty's main provisions, and also agreed a declaration that the Treaty did not prevent any Member State from maintaining or introducing stricter environmental and certain other laws than those adopted at EC level. With these assurances secured, enough Danes were persuaded to change their minds in a second referendum to allow ratification to go ahead.

On the environmental front at least, the Danes were led up the garden path. In the passage dealing with Member States' freedom to have stricter national laws, the Edinburgh declaration referred only to Article 130 of the Treaty - the main article on environmental protection which already allowed them this latitude. But it made no mention of Article 100a, on which most EC environmental laws relating to traded goods are based, and which imposes clear limits on Member States' freedom to go further than EC rules.

Article 100a was introduced by the previous amendment of the Treaty, the Single European Act of 1986. At the time it became known in Denmark as the "environmental guarantee" because it allowed Member States in some circumstances to apply higher national standards. But the restrictions it imposed were so extensive that the article never had the character of a guarantee - and those restrictions have now been tightened so much by the new Amsterdam Treaty that the revised Article 100a comes perilously close to guaranteeing that no Member State will ever be able to go further than EC law.

The amendments to Article 100a may assume considerable political significance. In Denmark, where public opinion has shifted further against the EC since 1992, they are likely to receive close attention in the build-up to a referendum on ratification of the new Treaty.

The amendments are also something of a ticking time-bomb for the three latest entrants to the EC - Austria, Finland and Sweden. As part of their terms of accession, they were allowed to maintain stricter national environmental, health and safety rules until 1998 - their own "environmental guarantee".

By next year, the European Commission should in principle have decided whether to propose changes to existing EC laws to bring them into line with those higher standards. But if it decides not to or simply fails to do so, or any such proposals are rejected by other Member States, the new entrants are supposed to come into line with existing EC rules - implying a potential drop in their domestic standards. They may, of course, seek to invoke clauses of the Treaty to enable them to maintain their standards, but the latest amendments may make this more difficult too.

Under the Treaty, all quantitative restrictions on imports or measures having "equivalent effect" - such as an environmental standard for a product - are prohibited in the interests of free trade, unless a specific exception is provided by the Treaty.

One such exception is in Article 36, which allows national import restrictions on various grounds - including "the protection of health and life of humans, animals and plants" - provided they are not "a means of arbitrary discrimination or a disguised restriction on trade."

Another is in Article 100a, which enables a "safeguard" clause to be written into an EC Directive or Regulation allowing a Member State to take "provisional" measures on the grounds permitted by Article 36. It is then for the Commission to decide whether to propose harmonising legislation or to attempt to block the national measure.

A third exception, also in Article 100a, enables a Member State to "apply" more stringent national standards after measures are adopted at EC level under that article.

Under Article 100a as it existed before the Amsterdam Treaty, four conditions had to be met for such a national measure to be legal:

  • The EC legislation concerned must have been adopted by qualified majority rather than unanimity.

  • The grounds for the national measure must be the "protection of the environment or the working environment" or any of those allowed by Article 36.

  • The national measure must be notified to the Commission, which must verify that it is not "a means of arbitrary discrimination or a disguised restriction on trade."

  • The Member State must, as noted above, "apply" a national measure. The meaning of this term has provoked much legal dispute. Some argue that it allows a Member State only to "maintain" legislation in force before the EC measure was adopted, while others contend that it also enables a country to "introduce" new legislation after adoption of the EC measure. The issue has yet to be put to the test before the European Court of Justice.

    Those in favour of allowing greater latitude to Member States to introduce their own stricter environmental legislation on products pressed during the Intergovernmental Conference for amendments to make it clear that they were allowed both to maintain and to introduce such laws. The distinction has indeed been incorporated in the Amsterdam Treaty - but not at all in the way they had bargained for.

    The main changes to Article 100 are as follows:

  • Where an EC harmonisation measure is adopted and a Member State wishes to "maintain" a national law on the grounds allowed by Article 36 or "relating to the protection of the environment or the working environment", it must notify the Commission and explain its grounds for doing so.

  • Where an EC harmonisation measure has been adopted and a Member State wishes to "introduce" its own legislation it may do so on the basis of "new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure," and must make a similar notification to Brussels.

  • In either case, the Commission is obliged to approve or reject such national measures within six months "after having verified that they are not a means of arbitrary discrimination or a disguised restriction on trade between Member States and that they shall not constitute an obstacle to the functioning of the internal market." If the Commission fails to decide within six months the measure will be deemed to have been approved, although it can extend the decision period by six months "when justified by the complexity of the matter and in the absence of danger to human health."

  • The requirement that stricter national laws are allowed only where an EC harmonisation measure is adopted by qualified majority has been dropped.

    Nigel Haigh of IEEP believes that the revised Article 100a is a step forward in recognising explicitly that Member States may in principle introduce stricter national standards. But overall, he says, "it is so hedged about with restrictions that it may not be workable, and will probably not survive."

    The first two hurdles put in place for a Member State wishing to introduce a stricter law - the need for new scientific evidence, and the confinement of the environmental problem to that country alone - are high enough in themselves. But the third hurdle - that the national measure must not obstruct free trade - is couched in such absolute terms that no national measure is likely to cross it.

    "Higher national standards are inevitably an obstacle to free trade," says Mr Haigh. "The question should be whether they are a serious obstacle - it's a matter of proportionality. Take the 1986 Danish bottles case: the European Court of Justice accepted that the Danish ban on selling beer in cans made it more difficult for German brewers to sell in Denmark, but they could if they wanted to - they just had to sell in bottles. The can ban was not an absolute obstacle, and the Court held that the environmental end justified the means."

    The door has not been completely closed on national initiatives, though it is now only slightly ajar. In his report to Sweden's Chemicals Policy Committee, Mr Haigh identified three main options open to a Member State keen to preserve room for higher national standards:

  • Press for the inclusion of a "safeguard" clause in future EC product legislation introduced under Article 100a.

  • Seek to get product rules adopted under Article 130 - though the precedents for this are very few.

  • Where no EC harmonisation measure has been adopted, invoke the Article 36 exception in support of a national law.

    In addition, a Member State could seek a test case in the European Court of Justice to determine the scope for stricter national laws. The Danish Government has been notably reticent about taking this risk for fear of upsetting the political applecart at home. But one of the greener Member States may now decide to pursue such a case in order to bring home how restrictive the Treaty amendments are, and to give it ammunition to seek changes to Article 100a at the next revision of the Treaty.

    With their options narrowed by the Treaty amendments, countries may be impelled to work harder to have their policies taken up at EC level. But this will be a wearisome task, involving much lobbying of the EC institutions and other Member States, and one with no guarantee of success.

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