EC Directives and Regulations must derive their authority from one or more articles of the Treaty of Rome. Since the Treaty was amended by the Single European Act in 1987, environmental Directives have generally been based on either Article 100A, which deals with harmonisation relating to the establishment of the Single Market, or the "environmental" Article 130S. On several occasions the choice of legal base has led to disputes between the European Commission and the Council of Ministers.
In 1991, the Commission won a significant legal victory when the European Court of Justice held that it had correctly based the 1989 Directive on waste from the titanium dioxide industry on Article 100A, even though the Directive had environmental implications (ENDS Report 197, pp 15-16). However, the Court's most recent decision has gone in favour of the Council, to the satisfaction of most Member State governments.
The case (C-155/91, decision of the European Court 17 March 1993) concerned the legal basis of the 1991 Directive which amended the 1975 "framework" Directive on waste. The Commission had based the proposal on Article 100A, but the Environment Council amended this to Article 130S when it adopted the Directive in March 1991. It was this decision that the Commission, backed by the European Parliament, challenged.
The significance of the choice of legal base lies mainly in the difference in the procedures required for adoption of legislation. Under Article 100A, the Council may adopt legislation by qualified majority, and the European Parliament also has considerable powers to influence the content of legislative proposals through the so-called "co-operation procedure".
In contrast, legislation based on Article 130S must be adopted by unanimity, and Parliament's role is essentially limited to one of consultation only.
Furthermore, while it is clear that individual Member States may introduce stricter environmental standards where legislation is based on Article 130S, their ability to do so under Article 100A is more restricted, although there still remains some legal doubt on this point.
In the 1991 titanium dioxide case, the European Court held that since the two articles had these different procedural requirements, legislation could not be based on both and a choice had to be made between them. In line with previous authority, it argued that the choice was not a matter of discretion for the Commission or Council, but must be based on objective factors amenable to judicial review.
This statement of principle was repeated in the present case. The Court accepted that wastes, whether recyclable or not, were "goods" which in principle were subject to the general requirement concerning freedom of movement of goods under Article 30 of the Treaty. In itself, this might have suggested that Article 100A, which concerns the harmonisation of measures that might otherwise impede or distort the operation of the market, was a correct legal base. But the Court had already held in previous cases that Member States were entitled to derogate from Article 30 in the interests of the environment, requiring waste to be disposed of as close as possible to its place of production. The new framework Directive was intended to reinforce those principles, and in that context could not be regarded as intended to promote the free movement of goods.
The Court accepted that some provisions of the Directive, especially those concerning definitions, did in fact have an effect on the operation of the internal market, but in its judgement these were only ancillary to the principal objectives of the Directive. An ancillary effect was not sufficient to justify recourse to Article 100A. In this respect the Directive could be distinguished from the titanium dioxide Directive, which was intended to harmonise conditions of production within a particular industrial sector. The Court concluded that the Council was legally correct in invoking Article 130S as its basis.
The fact that legislation based on Article 100A can be agreed by qualified majority voting by the Council of Ministers has been an important underlying motive for the Commission in pressing for environmental measures to be based on that Article. If the Maastricht amendments to the EC Treaty are ratified, this factor will largely disappear since qualified majority voting will be the norm for most environmental measures based on Article 130S. The Commission may therefore not be too concerned about the implications of the Court's decision.
The result will, however, be a disappointment to the European Parliament. Under the Maastricht amendments, environmental legislation based on Article 130S will be subject to the co-operation procedure (ENDS Report 203, pp 22-23), giving Parliament potentially more influence over the content of such measures. But legislation based on Article 100A will be subject to the new "co-decision" procedure, a complex set of requirements which in the final analysis effectively give Parliament the power of veto.
In the titanium dioxide case, the European Court had noted with approval that the co-operation procedure gave the European Parliament a greater say in the outcome of legislation. In its view, this was democratically more progressive, and supported the argument for Article 100A in that case. In truth, this was more a political than a legal argument, and one which appeared to run counter to the general principle of the Court that the legal base must be chosen on objective factors.
Significantly, in the present case no mention was made of Parliament's role under the various procedures. Nevertheless, given its greatly increased powers under the as yet untried co-decision procedure, the argument about Articles 100A and 130S can be expected to continue in the future, but with Parliament rather than the Commission initiating any legal action.