Obecné závěry: Nová reformní smlouva není s ohledem na ochranu životního prostředí krokem zpět, obsahuje některé pozitivní novinky, které by měly zvýšit transparentnost rozhodování. Přináší také nový samostatný článek dotýkající se energetické politiky. Bohužel však neruší ani jakkoli nemění smlouvu o Euratom. Významným prvkem nové reformní smlouvy je posílení role Evropského parlamentu i národních parlamentů. EP bude nově rozhodovat ve spolurozhodovací proceduře s Radou v oblastech zemědělství, rybolovu, obchodu se třetími zeměmi a v oblasti služeb. Národní parlamenty budou moci nově zpochybňovat uplatňování principu subsidiarity. Obecně by mělo platit, že pokud nadpoloviční většina národních parlamentů shledá, že připravovaná legislativa není ve shodě s principem subsidiarity, musí Komise svůj návrh přehodnotit. Fakticky to bude znamenat jeho odmítnutí, protože pak bude velmi nepravděpodobné, ža takový návrh získá podporu v Radě. Toto posílení role národních parlamentů může podle Johna Honteleze vést ke zvýšení zájmu veřejnosti, médií a politiků o politiku EU zejména v oblasti životního prostředí a udržitelného rozvoje.
Více podrobněji v přiloženém draftu hodnocení....
BRIEFING DOCUMENT ON REFORM TREATY
John Hontelez, Secretary General EEB
for Green 10 and its constituencies
This paper evaluates the content of the Reform Treaty adopted by the European Council in Lisbon on the 19th October, from an environmental perspective. It makes a judgement on whether this Treaty is improving the conditions for environmentally sound sustainable development, compared with the current Treaties, as amended for the last time at the Nice Summit in 2000.
The Reform Treaty is in fact a set of amendments to the two main Treaties governing the EU: the “Treaty on European Union” (EUT) and the “Treaty establishing the European Community” (ECT). The second one will have a new name: “Treaty on the Functioning of the European Union"” (EFUT). In fact, the notion of “Community” will disappear entirely.
These amendments will enter into force after all the European Parliament and all 27 National Parliaments have ratified the Reform Treaty. However, some amendments will only enter into force at a later date, such as on the voting system in the Council of Ministers.
The Reform Treaty can be found at:
all relevant documents at:
The analysis shows that by and large the Reform Treaty is no step backwards for the environment, that it includes positive elements with regards to democratization and transparency, and that it brings a new chapter on Energy policy which is written in balanced wordings. The negative element is that the Treaty fails to green the old mandates of the EU in the fields of agriculture, transport, trade, cohesion. And the fact that the Treaty does not abolish or change the Euratom Treaty is problematic as well.
The European Parliament gains co-decision powers on Common Agricultural and Fisheries policies, external trade, services, and increased control over the EU budget. This can bring benefits for environmental protection and sustainable development.
The environmental chapter now has special emphasis on climate change in the work of the EU at the global level. We have to fight for it that this does not downgrade EUs efforts in other major global environmental problems such as the deterioration of the planet’s ecosystems.
The opportunity of national parliaments to consider whether the subsidiarity principle is properly interpreted by the Commission can hopefully lead to an increased constructive interest by national politicians and media in EU policy making, in particular for environment and sustainable development. It could become an opportunity for environmental organisations to use. A special protocol annexed to the Reform Treaty is laying down the procedure. In most cases a negative position from a majority of parliaments is necessary to force the Commission to rethink its proposal, in other cases one-third or even one-fourth is enough (not touching upon the environment).
There are subtle changes in the articles related to rights of individuals to address the Court of Justice (articles 230 and 232), but these are not likely to introduce the right of environmental organisations to seek legal action against acts or non-acts of EU Institutions when this is affecting the environment (unless a direct and individual impact on the complainant can be proven).
Some relevant details:
- THE OBJECTIVE OF SUSTAINABLE DEVELOPMENT
Currently, the both the EUT and the ECT have an introductory article about the objectives of the EU. Both mention sustainable development, but the best text is found in the ECT, as it links sustainable development clearly to “a high level of
protection and improvement of the quality of the environment”.
The Reform Treaty abolishes the relevant article from the ECT, but it replaces the current EUT article 2 with a new article 3 which includes all the major goals of the EU: The relevant parts:
3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.
It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.
It shall promote economic, social and territorial cohesion, and solidarity among Member States.
It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.
5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
The current ECT text, now replaced by 3.3., is: The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States”.
COMMENT: The new text does keep the clear demand for ambitious and progressive environmental policies, and is by and large comparable with the ECT art. 2.
Interesting, the notion of “a high degree of competitiveness” is replaced with “a competitive social market economy”. On the other hand the notions of ”the raising of the standard of living and quality of life” does not figure anymore in the text in this wording.
- ENVIRONMENTAL POLICY INTEGRATION AND CONSISTENCY
Article 6 of the ECT will become Article 11 of the EFUT. It only has an editorial change and will read: “Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities, in particular with a view to promoting sustainable development”.
There is also a general article in the EFUT requiring consistency:
Article 7: The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.
- INCREASED POWER OF THE EUROPEAN PARLIAMENT
The Reform Treaty is increasing the areas where for the co-decision procedure applies. This procedure will be called: “the ordinary legislative procedure”. It will apply unless said differently in the new Treaties.
The co-decision procedure already applied for, for example, Internal Market, Transport, Environment (with exceptions, see art. 175, para 2). With the Reform Treaty it expands to decisions regarding, for example,
Agriculture and fisheries (article 32-38 and 162),
- In particular to “establish the common organisation of agricultural markets provided for in Article 34(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy.” But NOT on “measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.” Such decisions remain in the hands of Council only.
- Also, decisions regarding the European Agricultural Guidance and Guarantee Fund, Guidance Section.
(liberalization of) Services (article 49-55)
Transport (article 70-80)
A difficult chapter concerning decisionmaking procedures. The only part where the co-decision procedure is clearly new is deciding on “appropriate provisions for sea and air transport. They shall act after consulting the Committee of the Regions and the Economic and Social Committee.
External trade (“common commercial policy”) (article 131-134, to become 188b and 188c)
- at least for regulations on the “ measures defining the framework for implementing the common commercial policy” (new Article 188.c.2) .
- but the control over the Commission’s approach in trade-negotiations remains the exclusive right of the Council. The Parliament will only be informed.
Cohesion Policy (Structural and cohesion funds) (article 158-162)
Article 161: Without prejudice to Article 162, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure .and consulting the Economic and Social Committee and the Committee of the Regions, shall define the tasks, priority objectives and the organisation of the Structural Funds, which may involve grouping the Funds. The general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing financial instruments, shall also be defined by the same procedure.
A Cohesion Fund set up in accordance with the same procedure shall provide a financial contribution to projects in the fields of environment and transEuropean networks in the area of transport infrastructure.
- PUBLIC PARTICIPATION
Including the citizens initiative
New: Article 8b
1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
3. The Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.
The procedures and conditions required for such a citizens' initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.
Article 15 (old 255):
1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.
3.1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.
3.2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council by means of regulations, acting in accordance with the procedure referred to in Article 251.
3.3. Each institution shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents in accordance with the legislative act referred to in the second subparagraph..
3.4 The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.
3.5. The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.".
- THE ENVIRONMENTAL CHAPTER
Articles 174 to 176 of the ECT will be amended in several ways. Below the old text (including editorial changes) with the substantial changes indicated:
1. Union policy on the environment shall contribute to pursuit of the following objectives:
- preserving, protecting and improving the quality of the environment;
- protecting human health;
- prudent and rational utilisation of natural resources;
- promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.”.
3. In preparing its policy on the environment, the Union shall take account of:
- available scientific and technical data;
- environmental conditions in the various regions of the Union;
- the potential benefits and costs of action or lack of action;
- the economic and social development of the Union as a whole and the balanced development of its regions.
4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned,
The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.
1. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Community in order to achieve the objectives referred to in Article 174.
2. By way of derogation from the decisionmaking procedure provided for in paragraph 1 and without prejudice to Article 95, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:
- provisions primarily of a fiscal nature;
- measures concerning town and country planning, land use with the exception of waste management and measures of a general nature, and management of water resources;
- measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.
The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.";
3. general action programmes setting out priority objectives to be attained shall be adopted by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.
The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.
4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy.
5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of:
- temporary derogations, and/or
- financial support from the Cohesion Fund set up pursuant to Article 161.
The protective measures adopted pursuant to Article 175 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the Commission.
- THE NEW ENERGY CHAPTER
Highlighted the specific positive references (the last one guaranteeing that the EU cannot impose nuclear energy on a MS):
TITLE XX ENERGY
1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market;
(b) ensure security of energy supply in the Union; and
(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and
(d) promote the interconnection of energy networks.
2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 175(2)(c).
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.
- ENVIRONMENTAL CRIME
Apparently, a new article in the EFUT is going to make it possible to adopt a Directive on Environmental Crime, while the current Treaties, according to a verdict of the Court of Justice of 23/10/07 do not allow for this.
The basis is the co-decision procedure, but, as you will see below, a Member State can call upon the European Council to interfere.
The relevant parts of Article 69f :
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 68.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles 10(2) of the Treaty on European Union and Article 208d(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.