0521833035 cambridge university pressuments in european community environmental law apr 2006

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D O CUMENTS IN EUROPEAN COMMUNITY
ENVIRONMENTAL LAW

This is the companion volume to the second edition of Philippe Sands’ Principles of International Environmental Law and Sands and Galizzi’s Documents in
International Environmental Law. It comprises extracts from those EC Treaties,
Regulations, Directives, Decisions and other Acts of EC institutions which are
essential for anyone interested in environmental protection in the European
Community and its Member States. EC environmental legislation represents
one of the most complex and challenging legal regimes for the protection of
the environment. The significant body of legislation which now exists has given
rise to numerous disputes over its application and interpretation. This collection brings together the principal documents in an accessible form, providing
practitioners, scholars and students with the essentials necessary to understand,
advise upon and apply this body of law. Concise editorial notes summarise the
main provisions of the instruments reproduced and place them in their wider
context.
philippe sands qc is Professor of Laws and Director of the Centre for
International Courts and Tribunals at University College London and a Barrister
at Matrix Chambers. He was co-founder of FIELD (Foundation for International
Environmental Law and Development).
paolo galizzi is Marie Curie Fellow at Imperial College London and a Visiting
Scholar and Adjunct Professor of Law at Fordham University School of Law in
New York. He is also a Fellow in International and European Environmental
Law at the British Institute of International and Comparative Law, London.
He has taught international law and environmental law in several countries,
in particular Italy, the United Kingdom, Ghana and the United States, and has
published extensively on international and European environmental law.

D O CUMENTS IN
EUROPEAN COMMUNITY
ENVIRONMENTAL LAW
Second edition

Edited by
PHILIPPE SANDS AND
PAOLO GALIZZI


  
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To my students, past, present and future
PS
To my mentors, past, present and future
(Nerina Boschiero, Tullio Treves, Tullio Scovazzi, Philippe Sands,
Stephen Girvin, Erika Szyszczak, Zen Makuch and Roger Goebel)
PG



CONTENTS

Preface
part i

page xv

General principles of EC environmental law

1

1

EC Treaty, as amended by the 1986 Single European Act, the 1992 Treaty
on European Union, the 1997 Treaty of Amsterdam and the 2001 Treaty
of Nice (extracts)
3

1A

EC Treaty, incorporating amendments introduced by the Treaty of
Amsterdam, the TEU and the SEA (extracts; superseded by the entry into
force of the Treaty of Nice on 1 February 2003)
27

1B

EC Treaty, incorporating amendments introduced by the TEU and the
SEA (extracts; superseded by the entry into force of the Treaty of Nice on
1 February 2003)
38

1C

EEC Treaty, incorporating amendments introduced by the SEA (extracts;
superseded by the entry into force of the Treaty of Nice on 1 February
2003)
47

1D

Treaty establishing a Constitution for Europe, adopted by the
Intergovernmental Conference of Heads of State and Government of the
Member States of the European Union on 28 October 2004 (extracts – not yet
in force)
51

2

Decision No 1600/2002/EC of the European Parliament and of the Council
of 22 July 2002 laying down the Sixth Community Environment Action
Programme
(OJ L 242 10.09.2002 p. 1)
63

3

Communication from the Commission of 2 February 2000 on the
precautionary principle
(COM (2000) 12.02.2000 p. 1)
90

vii

viii

contents

4

Decision No 466/2002/EC of the European Parliament and of the Council
of 1 March 2002 laying down a Community action programme promoting
non-governmental organisations primarily active in the field of
environmental protection
(OJ L 075 16.03.2002 p. 1)
116

5

Regulation (EC) No 2493/2000 of the European Parliament and of the
Council of 7 November 2000 on measures to promote the full integration
of the environmental dimension in the development process of developing
countries
(OJ L 288 15.11.2000 p. 1)
128

part ii

European Community institutions and legislation

139

6

EC Treaty, as amended by the 1986 Single European Act, the 1992 Treaty on
European Union, the 1997 Treaty of Amsterdam, the 2001 Treaty of Nice
and the 2003 Act of Accession (selected articles)
141

7

Council Regulation (EEC) No 1210/90 of 7 May 1990 on the establishment
of the European Environment Agency and the European environment
information and observation network
(OJ L 120 11.05.1990 p. 1)
168

7A

Decision of 21 March 1997 on public access to European Environment
Agency documents
(OJ C 282 18.09.1997 p. 5)
181

8

Council Resolution of 7 October 1997 on the drafting, implementation and
enforcement of Community environmental law
(OJ C 321 22.10.1997 p. 1)
185

part iii

The relationship between environmental protection, financial assistance
and free trade
193

9

75/436/Euratom, ECSC, EEC: Council Recommendation of 3 March 1975
regarding cost allocation and action by public authorities on environmental
matters
(OJ L 194 25.07.1975 p. 1)
195

10

Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a
Cohesion Fund
(OJ L 130 25.05.1994 p. 1)
202

11

Regulation (EC) No 1655/2000 of the European Parliament and of the
Council of 17 July 2000 concerning the Financial Instrument for the
Environment (LIFE)
(OJ L 192 28.07.2000 p. 1)
228


ix

contents

11A

12

part iv
13

13A

Regulation (EC) No 1682/2004 of the European Parliament and
of the Council of 15 September 2004 amending Regulation (EC)
No 1655/2000 concerning the Financial Instrument for the
Environment (LIFE)
(OJ L 308 05.10.2004 p. 1)
242
Community guidelines on State aid for environmental protection
(OJ C 037 03.02.2001 p. 3)
249
Procedural techniques of environmental protection

273

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the
effects of certain public and private projects on the environment
(OJ L 175 05.07.1985 p. 40)
275
Directive 2001/42/EC of the European Parliament and of the Council
of 27 June 2001 on the assessment of the effects of certain plans and

programmes on the environment
(OJ L 197 21.07.2001 p. 30)
295

14

Council Directive 96/61/EC of 24 September 1996 concerning integrated
pollution prevention and control
(OJ L 257 10.10.1996 p. 26)
308

15

Recommendation 2001/331/EC of the European Parliament and of the
Council of 4 April 2001 providing for minimum criteria for environmental
inspections in the Member States
(OJ L 118 27.04.2001 p. 41)
333

16

Directive 2003/4/EC of the European Parliament and of the Council
of 28 January 2003 on public access to environmental information and
repealing Council Directive 90/313/EEC
(OJ L 41 14.02.2003 p. 26)
344

17

Directive 2003/35/EC of the European Parliament and of the Council

of 26 May 2003 providing for public participation in respect of the
drawing up of certain plans and programmes relating to the environment
and amending with regard to public participation and access to justice
Council Directives 85/337/EEC and 96/61/EC
(OJ L 156 25.06.2003 p. 17)
357

18

Directive 2004/35/EC of the European Parliament and of the Council of
21 April 2004 on environmental liability with regard to the prevention and
remedying of environmental damage
(OJ L 143 30.04.2004 p. 56)
363


x

contents

part v

Protection of air quality

389

19

Council Directive 84/360/EEC of 28 June 1984 on the combating of air
pollution from industrial plants

(OJ L 188 16.07.1984 p. 20)
391

20

Council Directive 93/76/EEC of 13 September 1993 to limit carbon dioxide
emissions by improving energy efficiency (SAVE)
(OJ L 237 22.09.1993 p. 28)
400

21

Council Directive 96/62/EC of 27 September 1996 on ambient air quality
assessment and management
(OJ L 296 21.11.1996 p. 55)
406

22

Regulation (EC) No 2037/2000 of the European Parliament and of the
Council of 29 June 2000 on substances that deplete the ozone layer
(OJ L 244 29.09.2000 p. 1)
420

23

Directive 2002/3/EC of the European Parliament and of the Council of
12 February 2002 relating to ozone in ambient air
(OJ L 067 09.03.2002 p. 14)
459

24

Directive 2002/91/EC of the European Parliament and of the Council of
16 December 2002 on the energy performance of buildings
(OJ L 001 04.01.2003 p. 65)
485

25

Directive 2003/30/EC of the European Parliament and of the Council of
8 May 2003 on the promotion of the use of biofuels or other renewable fuels
for transport
(OJ L 123 17.05.2003 p. 42)
498

26

Directive 2003/87/EC of the European Parliament and of the Council of
13 October 2003 establishing a scheme for greenhouse gas emission
allowance trading within the Community and amending Council
Directive 96/61/EC
(OJ L 275 25.10.2003 p. 32)
507

26A

Directive 2004/101/EC of the European Parliament and of the Council of
27 October 2004 amending Directive 2003/87/EC establishing a scheme
for greenhouse gas emission allowance trading within the Community, in

respect of the Kyoto Protocol’s project mechanisms
(OJ L 338 13.11.2004 p. 18)
532


xi

contents

27

part vi

Decision No 280/2004/EC of the European Parliament and of the Council
of 11 February 2004 concerning a mechanism for monitoring Community
greenhouse gas emissions and for implementing the Kyoto Protocol
(OJ L 049 19.02.2004 p. 1)
541
Biodiversity and nature conservation

553

28

Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild
birds
(OJ L 103 25.04.1979 p. 1)
555

29

Council Regulation (EEC) No 348/81 of 20 January 1981 on common rules
for imports of whales or other cetacean products
(OJ L 039 12.02.1981 p. 1)
565

30

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural
habitats and of wild fauna and flora
(OJ L 206 22.07.1992 p. 7)
568

31

Council Regulation (EC) No 338/97 of 9 December 1996 on the protection
of species of wild fauna and flora by regulating trade therein
(OJ L 061 03.03.1997 p. 1)
584

32

Council Directive 1999/22/EC of 29 March 1999 relating to the keeping of
wild animals in zoos
(OJ L 094 09.04.1999 p. 24)
609

part vii

Waste

615

33

Council Directive 75/442/EEC of 15 July 1975 on waste
(OJ L 194 25.07.1975 p. 39)
617

34

Council Directive 91/689/EEC of 12 December 1991 on hazardous waste
(OJ L 377 31.12.1991 p. 20)
627

35

Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision
and control of shipments of waste within, into and out of the European
Community
(OJ L 030 06.02.1993 p. 1)
638

36

Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste
(OJ L 182 16.07.1999 p. 1)
672

xii

contents

37

Directive 2000/53/EC of the European Parliament and of the Council of
18 September 2000 on end-of-life vehicles
(OJ L 269 21.10.2000 p. 34)
698

38

Directive 2000/76/EC of the European Parliament and of the Council of
4 December 2000 on the incineration of waste
(OJ L 332 28.12.2000 p. 91)
716

part viii Dangerous substances

741

39

Council Directive 92/3/Euratom of 3 February 1992 on the supervision and
control of shipments of radioactive waste between Member States and into
and out of the Community
(OJ L 035 12.02.1992 p. 24)
743

40

Council Regulation (Euratom) No 1493/93 of 8 June 1993 on shipments of
radioactive substances between Member States
(OJ L 148 19.06.1993 p. 1)
753

41

Council Directive 96/82/EC of 9 December 1996 on the control of
major-accident hazards involving dangerous substances
(OJ L 010 14.01.1997 p. 13)
761

42

Directive 2001/18/EC of the European Parliament and of the Council of
12 March 2001 on the deliberate release into the environment of
genetically modified organisms and repealing Council Directive
90/220/EEC
(OJ L 106 17.04.2001 p. 1)
787

part ix

Water quality

837

43

Council Directive 75/440/EEC of 16 June 1975 concerning the quality
required of surface water intended for the abstraction of drinking water in
the Member States
(OJ L 194 25.07.1975 p. 26)
839

44

Council Directive 76/160/EEC of 8 December 1975 concerning the quality
of bathing water
(OJ L 031 05.02.1976 p. 1)
845

45

Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water
treatment
(OJ L 135 30.05.1991 p. 40)
851


contents

xiii

46

Council Directive 98/83/EC of 3 November 1998 on the quality of water
intended for human consumption

(OJ L 330 05.12.1998 p. 32)
865

47

Directive 2000/60/EC of the European Parliament and of the Council of
23 October 2000 establishing a framework for Community action in the field
of water policy
(OJ L 327 22.12.2000 p. 1)
879



PREFACE

The protection of the environment is arguably one of the most successful policies in the
European integration project. When originally conceived, the instrument establishing
the European Economic Community included no specific provision on the environment. However, this did not prevent the Community’s institutions from adopting
environmental legislation as early as the 1970s. The original Treaty of Rome has been
amended several times since its adoption and the protection of the environment is
now one of the key policies of the European Community.
EC environmental legislation has grown over the years and now represents one of
the most complex and challenging legal regimes for the protection of the environment. The significant body of legislation which now exists has given rise to numerous
disputes over its application and interpretation.
This collection of documents in EC environmental law comprises extracts from
those EC Treaties, Regulations, Directives, Decisions and other acts of EC institutions
which are essential for anyone interested in environmental protection in the law of the
Member States and at the EC and international levels. This collection aims to provide
practitioners, scholars and students with the essentials necessary to understand, advise
upon and apply this body of law. The main objective of the volume is to bring together

the principal documents in an accessible form that provides the reader with the key
information on the relevant areas of law. This book also serves as a companion to the
second edition of Philippe Sands’ textbook Principles of International Environmental
Law (2nd edition, 2003, Cambridge University Press) and to Sands and Galizzi’s
Documents in International Environmental Law (2nd edition, 2004, Cambridge
University Press).
This volume builds on a previous edition published in 1995 by Manchester
University Press and edited by Philippe Sands and Richard Tarasofsky. Since then,
the EC Treaty has been fundamentally amended on several occasions and numerous
pieces of new legislation have been adopted. This volume represents an up-to-date
collection of the most important documents in EC environmental law and, like its
predecessor, aims to make easily accessible the text and key information on the documents reproduced. The documents reproduced in this volume are available on the
web, but we nevertheless consider that advantages may be obtained in reproducing
them in a single volume. Books can follow us around. Over time we can highlight key
provisions, insert notes, and compare texts wherever we are and as much as we like.
xv


xvi

preface

The success and demand for similar volumes in other fields testifies that books still
have a fundamental role to play in the internet era.
This volume does not purport to be comprehensive and the documents selected
are those that we felt are of more general interest and that we use more frequently in
our courses on EC environmental law and in our professional life. Making a selection of the documents to be included did require some difficult choices, but this
was necessary to produce a volume that we hope will be easily manageable, suitable
and accessible to a wide audience.1 The documents that have been included reflect
a wide spectrum of approaches taken in the development of EC environmental law.

They address each of the main environmental media and sectors (air, water, flora
and fauna) and particular sources of pollution (hazardous substances and wastes),
some of the rules governing the economic aspects of the Community legal order and
some of the emerging techniques for applying environmental standards (for example, environmental impact assessment, access to environmental information). Each
document is presented according to the same format and is introduced with a short
Editorial Note, which summarises the main provisions of the instrument and places it
in its wider context. The legal status of the legislative acts, including amendments, is
generally current to December 2004. If available, consolidated versions of documents
have been provided.2 In other cases, the original text of a document and the text of
amendments have been reproduced. For most of the documents, the entirety of the
text is provided. In some cases, however, we have provided only those extracts of
instruments which relate specifically to environmental matters (e.g. the EC Treaty as
amended) or we have omitted annexes or appendices which include detailed technical
arrangements of less interest to the general reader or which do not relate expressly to
environmental issues.
Acknowledgements
Many people deserve recognition for the successful conclusion of this project. We
would like to recognize the assistance provided by Angela Williams, and also Zen
Makuch and Karen McDonald. Our colleagues in the Department of Environmental
Science and Technology at Imperial College (and particularly the then Head of
Department, Professor John Beddington) and at the Faculty of Law at University
College London (in particular Professors Jeffrey Jowell and Richard Macrory and
Dr Jane Holder) have provided strong support and encouragement, for which we
are enormously grateful. We extend our thanks also to Fordham University School of
Law in New York City, and in particular to Professors Sheila Foster and Roger Goebel,
to Associate Dean Matthew Diller and to Dean William Treanor, to Peter Davies at
1
2

A complete list of EC environmental legislation in force and the full text of such legislation can be found at

analytical index 15.html.
Consolidated versions of the various documents are provided by the Community’s institutions purely as a
documentation tool and the institutions do not assume any liability for their contents.


preface

xvii

the University of Nottingham, and to all the students who have taken our courses on
EC and international environmental law for their forbearance and insights. Thanks
also for the generous support and assistance received from the EU Sixth European
Framework Research Programme and its Marie Curie Fellowship.
A special thanks is owed to Cambridge University Press and more specifically to
Finola O’Sullivan and Jane O’Regan for their support, help and patience (particularly
for this volume) throughout this project.
Last but not least, this collection could not have been published without the assistance of Edem Kuenyehia and Natalia Schiffrin, unique friends and sources of constant
inspiration and joy in our lives.
Needless to say, such errors and omissions as might have crept in remain the full
responsibility of the co-editors.
philippe sands
University College London
paolo galizzi
Imperial College London and Fordham University School of Law New York
February 2005



PART I
General principles of EC environmental law

1
Treaty establishing the European Community
27 March 1957 (extracts; as amended by the 1986
Single European Act, the 1992 Treaty on European
Union, the 1997 Treaty of Amsterdam and the 2001
Treaty of Nice)

Editorial note
The Treaty establishing the European Community (formerly European Economic
Community, EEC) was designed to create a common market among Western European Member States. When adopted in 1957, it included no rules on environmental
protection. The Treaty has been amended several times: it was amended in 1986 by
the Single European Act (SEA) and in 1992 by the Treaty on the European Union
(TEU). It was further amended in 1997 and in 2001 (respectively by the Treaty of
Amsterdam and the Treaty of Nice). The EC Treaty has also been amended by the various accession treaties following the several enlargements of the Community, which
over the years has expanded from its original six founding Members to the current
twenty-five Member States. Of particular significance are the changes to the Treaty
made as a result of the Treaty on the Accession of ten new Member States, which was
signed on 16 April 2003 and came into force on 1 May 2004.
In particular, the SEA, adopted in February 1986 and entered into force on 1 July
1987, included new specific rules on environmental protection (the then Title VII of
the EEC Treaty), which were further expanded upon by the Treaty on European Union,
signed on 7 February 1992 and entered into force on 1 November 1993. The TEU,
also known as the Maastricht Treaty, changed the name of the European Economic
Community to simply ‘the European Community’. It also introduced new forms of
co-operation between the Member States – for example on defence, and in the area
of ‘justice and home affairs’. By adding this inter-governmental co-operation to the
existing ‘Community’ system, the Maastricht Treaty created a new structure with

three so-called ‘pillars’ which is political as well as economic, known as the European
Union (EU). The Treaty of Amsterdam, signed on 2 October 1997, entered into force
on 1 May 1999, amended and renumbered the EU and EC Treaties (for example,
Articles 130r, 130s and 130t, the three provisions on the Title on the Environment,
have respectively become Articles 174, 175 and 176). The Treaty of Nice, signed on
26 February 2001, entered into force on 1 February 2003.
3


4

i general principles

The EC Treaty will be superseded by the Treaty establishing a Constitution for
Europe adopted at an Intergovernmental Conference by the Heads of States and
Governments of the Member States of the European Union on 18 June 2004. The
final text of the Treaty establishing a Constitution for Europe was signed in Rome on
29 October 2004 and will then be subject to ratification (parliamentary approval
and/or referendum) by the twenty-five Member States of the Union. If approved by
all the Member States, the Treaty will enter into force on 1 November 2006.
The EC Treaty prohibits, subject to certain qualifications, quantitative restrictions
on imports from Member States and measures having equivalent effect (Articles 23–
25 and 28). Quantitative restrictions on exports are also prohibited between Member
States (Article 29). All these provisions are subject to exceptions based on the protection of the health and life of humans, animals or plants, so long as such measures
do not arbitrarily discriminate or act as a disguised restriction to trade (Article 30).
EC rules on competition specifically prohibit any practice which has as its object
or effect ‘the prevention, restriction or distortion of competition’ (Article 81), and
the abuse by an undertaking of its dominant position is prohibited if trade between
Member States is affected (Article 82). The Treaty also prohibits State aids (subsidies)
which distort or threaten to distort competition, but certain exceptions are allowed

(Article 87).
The SEA introduced specific provisions relating to the protection of the environment which, as mentioned earlier, have been further expanded upon by the subsequent amending treaties. Article 2 now specifies that the Community shall have as
its task, inter alia, the promotion of ‘balanced and sustainable development of economic activities’ and of ‘a high level of protection and improvement of the quality of
the environment’. For this purpose, the Treaty specifically recognises that the Community’s activities include ‘a policy in the sphere of the environment’ (Article 3(l)).
The principles of subsidiarity and proportionality shall guide the Community action
(Article 5). Article 6 requires that ‘Environmental protection requirements must be
integrated into the definition and implementation of the Community policies’ for the
promotion of sustainable development. Prohibitions or restrictions on imports and
exports may be justified under Article 30, inter alia, for ‘the protection of health and
life of humans, animals or plants’. Article 95 allows Member States to enact stricter
national measures following harmonisation legislation for the protection of the environment subject to specific conditions and procedures. Article 174(1) specifies the
objectives of the Community’s environmental policy: preservation, protection and
improvement of the quality of the environment; protection of human health; prudent
and rational utilisation of natural resources; promotion of international measures to
deal with regional and global environmental problems. The Community’s action shall
aim at a high level of protection and shall be based on the precautionary principle,
the principle of prevention, the proximity principle and the polluter pays principle
(Article 174(2)). The Community’s policy shall take into account, inter alia, available scientific and technical data and the costs of action (or inaction) according to


1 ec treaty (2001)

5

Article 174(3). The Community’s environmental legislation shall be adopted by qualified majority under the so-called co-decision procedure (Article 175(1)), although in
specified cases unanimity is still required (Article 175(2)). Member States may adopt
more stringent protective measures, if compatible with the Treaty (Article 176).
This section reproduces the text of the EC Treaty as amended by the SEA, the
TEU, the Treaty of Amsterdam and the Treaty of Nice, which has been in force from
1 February 2003 (Document 1).

It is followed by selected provisions from the 1957 EC Treaty as modified by the
Treaty of Amsterdam (Document 1A), the 1957 EC Treaty as modified by the TEU
(Document 1B) and the EEC Treaty as modified by the SEA (Document 1C). These
provisions have been reproduced to allow the reader to compare the relevant provisions and assess the amendments, and also to provide the necessary background for
understanding the legal basis upon which the European Court of Justice has interpreted and applied the law from time to time. Extracts from the Treaty establishing a
Constitution for Europe have also been included (Document 1D).
With effect from 1 May 2004 there are twenty-five members of the European Community: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Germany,
Greece, Finland, France, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Malta, The Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, United
Kingdom.
Source: C/235/40 Official Journal of the European Communities 24.12.2002
Treaty establishing the European Community 27 March 1957 (extracts; as
amended by the 1986 Single European Act, the 1992 Treaty on European Union,
the 1997 Treaty of Amsterdam and the 2001 Treaty of Nice)
Preamble
[The Heads of State,]
Determined to lay the foundations of an ever closer union among the peoples of
Europe,
Resolved to ensure the economic and social progress of their countries by common
action to eliminate the barriers which divide Europe,
Affirming as the essential objective of their efforts the constant improvements of
the living and working conditions of their peoples,
Recognising that the removal of existing obstacles calls for concerted action in order
to guarantee steady expansion, balanced trade and fair competition,
Anxious to strengthen the unity of their economies and to ensure their harmonious
development by reducing the differences existing between the various regions and the
backwardness of the less favoured regions,
Desiring to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,