Come on, let’s make a plan—towards an 8th EU environmental action programme

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Notes

  1. 1.

    First EAP (1973–1976), OJ 1973, OJ C 112 p. 1; Second EAP (1977–1982), OJ 1977, C 139 p. 1; Third EAP (1982–1986) OJ 1983, C 46 p. 1; Fourth EAP (1987–1993), OJ 1987, C 328 p. 1; Fifth EAP (1993–2000), OJ 1993, C 138, p. 5; Decision 1600/2002 on a Sixth EAP (2002–2012) OJ 2002, L 242 p. 1; Decision 1386/2013 on a Seventh EAP (2013–2020), OJ 2013, L 354 p. 171.

  2. 2.

    The EU research policy follows research framework programmes since the 1980s, see now Article 182 TFEU.

  3. 3.

    Decision 1386/2013 (fn. 1), Article 4(3).

  4. 4.

    Commission, COM (2019) 233 and the accessory document SWD (2019) 181. See also the intermediate and the final assessment of the 6th EAP, COM (2007) 225 and COM (2011) 531.

  5. 5.

    Decision 1386/2013 (fn. 1), Article 2. According to the Commission, COM (2019) 233, the first three objectives were thematic objectives, the four following accessory objectives and the last two horizontal objectives. The nine priority objectives were the following: (1) protect, conserve and enhance the Union’s natural capital; (2) turn the Union into a resource-efficient, green and competitive low-carbon economy: (3) safeguard the Union’s citizens from environment-related pressures and risks to health and well-being; (4) maximize the benefits of Union environmental legislation by improving implementation; (5) improve the knowledge and evidence base for Union environment policy; (6) secure investment for environment and climate policy and address environmental externalities; (7) improve environmental integration and policy coherence; (8) enhance the sustainability of the Union’s cities; (9) increase the Union’s effectiveness in addressing international environmental and climate-related challenges.

  6. 6.

    Ibidem, Article 3.

  7. 7.

    L. Krämer, Un programme d’action sans actions: le 7e programme de l’Union européenne pour l’environnement, Revue du Droit de l’Union européenne 2014, p. 9. I had already reached the same conclusion on the draft for a 6th EAP (Decision 2179/98, OJ 1998, L 275 p. 1), see L. Krämer, EU Environmental Law 8th ed. London 2015, paragraph 2-42.

  8. 8.

    European Economic and Social Committee, Opinion on the 7th EAP, OJ 2013, C 161, p. 77, paragraph 1.3: “(The 7th EAP) is characterised by a lack of specifics”; paragraph 1.4: “(It is) more a report on the environmental situation than a genuine policy document or action programme”; paragraph 1.6: “(It) hardly offers any proposals on how these failures might be mitigated or eliminated altogether”; paragraph 3.4: “(It) essentially reiterates what has already been set out in the Commission’s environment policy communications, strategies, flagship initiatives and roadmaps”.

  9. 9.

    Committee of the Regions, Opinion on the 7th EAP, OJ 2013, C 218, p. 53, paragraph 12: “(The Committee) calls for concrete and, wherever possible, quantifiable targets to be set for 2020… The proposals should have a clear timeframe (with a final objective, intermediate objectives and interim evaluations) linked to appropriate actions”.

  10. 10.

    L. Krämer, Chronique: protection de l’environnement, Annuaire du Droit de l’Union européenne 2014, p. 748.

  11. 11.

    Commission, COM (2019) 233, p. 1.

  12. 12.

    Commission, SWD (2019) 181, Annex 5.

  13. 13.

    Commission, COM (2019) 233, conclusion: “the Commission finds that the programme facilitated an important shift in policymaking—it is now more widely recognised that environmental protection, social benefits and sustainable growth go hand in hand. The programme has supported important new agendas such as the circular economy and the Sustainable Development Goals. Having a long-term vision for the first time in an EAP has been a useful policymaking tool—both as a complement to more short-term policy goals and as a feature that all stakeholders could use as guidance for their activities. The enabling framework has directed—in a unique way—attention and resources to the main challenges we face in the EU environmental policy: lack of implementation, information, investment and integration”.

  14. 14.

    Commission, SWD (2019) 181, Annex 6.

  15. 15.

    To give but one example: As regards Directive 91/676 on nitrates, OJ 1991, L 375 p. 1, the Commission stated (SWD (2019) 181 p. 146): “On nitrates from agricultural sources, the latest available data indicate that nitrate concentrations decreased in both surface and groundwater in 2012–2015. However, agricultural pressure on water quality are still problematic and are often due to the intensive use of fertilisers and manure. This leads to high nutrient surpluses that are transferred to ground and surface waters. For this reason, despite positive overall trends, nitrate pollution and eutrophication hotspots continue to cause problems in many Member States”.

    This declaration does not state, why Directive 91/676 (fn. 14) continues not to be fully applied, 27 years after its adoption; why the Commission generously grants derogations from its application, sometimes for the whole territory of a Member State (24 derogations between 2002 and 2018); why it did not impose amendments to the national nitrate plans and measures, following the model of the national air quality plans; what measures it took since 2013 to ensure compliance with the Directive; and what kind of action it took against the 20 Member States which are, according to COM (2019)149, fn 75, not in compliance with the Directive.

  16. 16.

    European Environment Agency, Environmental Indicator Report 2018, Copenhagen 2018.

  17. 17.

    Commission, COM (2019) 233 p. 12; SWD (2019) 181, Annex 6 p. 1ss, splits this up: Limited progress for biodiversity loss; some progress for fresh and marine waters, land use and soil, forests and the nutrient cycle; substantial progress on communication and awareness raising. This evaluation appears much too optimistic.

  18. 18.

    See SWD (2019) 181, Annex 6, p. 149ss: substantial progress was made for sustainable production and consumption, some progress for waste issues.

  19. 19.

    Commission SWD (2019) 181, Annex 6, p. 171ss. Air quality in the EU does not appear, though, to have improved. No actions were taken since 2013 on drinking or bathing waters.

  20. 20.

    Commission, COM (2017) 63 and COM(2019) 149. These documents are completed by Staff Working Documents (SWD) for each individual Member State.

  21. 21.

    For example, 26 Member States do not fully comply with the environmental liability directive; 18 Member States should reduce their NOx and NO2 air emissions and concentrations, 13 Member States do not manage noise properly, etc.

  22. 22.

    The Commission justifies this attitude by the need to establish and maintain an atmosphere of mutual trust and confidence with Member States. The Court of Justice accepted this argument which remains, nevertheless, anachronistic: in a democratic system which establishes an internal market, where boundaries do not count any more, openness and transparency create trust and confidence, also on the side of citizens, whereas secrecy and confidentiality increase mistrust and reservations.

  23. 23.

    Commission SWD (2019) 181, Annex 6, p. 192 ss.

  24. 24.

    Ibidem, p. 100. As regards the notice itself, see Commission C(2017) 2616.

  25. 25.

    Commission SWD (2019)181, Annex 6, p. 191ss.

  26. 26.

    Regulation 1293/2013, OJ2013, L 347 p. 185. LIFE concerns, overall, 35 countries.

  27. 27.

    Regulation 614/2007, OJ 2007, L 149 p. 1.

  28. 28.

    Commission SWD(2019) 181, Annex 6, p. 208ss.

  29. 29.

    Court of Justice, case C-57/16P, ClientEarth v. Commission, ECLI:EU:C:2018.660. The judicial battle alone took five years.

  30. 30.

    Commission SWD (2019) 181, Annex 6, p. 222ss.

  31. 31.

    Commission SWD (2019) 181, Annex 6 p. 228ss.

  32. 32.

    See L. Krämer, Sustainable development of natural resources by the EU, in: H. Tegner Anker–B. Egelund Olsen (eds): Sustainable development of natural resources. Instruments and approaches. Cambridge a.o. 2018, p. 13.

  33. 33.

    Commission, SWD (2019) 181, Annex 6, p. 232ss.

  34. 34.

    Commission, SWD (2019) 181, p. 12.

  35. 35.

    See in particular European Council, conclusions of 23 and 24 October 2014, EUCO 169/14 on the policy targets until 2030.

  36. 36.

    Both the European Economic and Social Committee (fn. 7), paragraph 1.3, and the Committee of the Regions (fn. 8), paragraph A.1, denounced the lack of political will as the reason why past EAPs had not been properly implemented.

  37. 37.

    Article 191 TFEU explicitly stipulates that EU environmental policy shall contribute to the protection of human health.

  38. 38.

    Directive 2000/60, OJ 2000, L 327 p. 1.

  39. 39.

    Directive 2008/105, OJ 2008, L 348 p. 84.

  40. 40.

    5th EAP (fn. 1), paragraph 94. These measures included the setting up of several dialogue bodies, accessible and efficient complaint facilities for citizens, practicable access to the courts, attribution of a key role to the European Environment Agency in implementation and enforcement matters, better inspections, harmonized fines and penalties for non-implementation and an optimum transparency of the implementation process.

  41. 41.

    Commission, COM (2011) 531, p. 12.

  42. 42.

    Decision 1386/2013 (fn. 1), Annex, paragraph 57.

  43. 43.

    The Commission action plan on environmental complaints at national level, COM (2018) 10, is an accumulation of suggestions to issue guidance documents, exchange experience, improve expertise, and facilitate the exchange of good practices. The likelihood that this plan will have any influence, appears close to zero. And in particular, the Commission carefully avoids to even address, not to talk of improve the system for environmental complaints at EU level.

  44. 44.

    General Court, case T-330/18, Carvalho a.o. v. European Parliament and Council, ECLI:EU:T:2019:324. The application was held inadmissible, because the applicants were not individually concerned. The case is on appeal (C-565/19).

  45. 45.

    Decision 1386/2013 (fn. 1), Annex, paragraph 1: “In 2050, we live well, within the planet’s ecological limits. Our prosperity and healthy environment stem from an innovative, circular economy where nothing is wasted and where natural resources are managed sustainably, and biodiversity is protected, valued and restored in ways that enhance our society’s resilience. Our low-carbon growth has long been decoupled from resource use, setting the pace for a safe and sustainable global society”.

  46. 46.

    Directive 2007/60, OJ 2007, L 288 p. 7.

  47. 47.

    Directive 2010/75, OJ 2010, L 334 p. 17.

  48. 48.

    Directive 2004/35, OJ 2004, L 143 p. 56.

  49. 49.

    Directive 2008/98, OJ 2008, L 312 p. 3, as amended.

  50. 50.

    Directive 2019/904, OJ 2019, L 155 p. 1.

  51. 51.

    Directive 1999/31, OJ 1999, L 182 p. 1.

  52. 52.

    Regulation 1367/2006, OJ 2006, L 264 p. 13.

  53. 53.

    Directive 92/43, OJ 1992, L 206 p. 7, Article 8.

  54. 54.

    Decision 93/26, OJ 1993, L 309 p. 1.

  55. 55.

    Decision 98/216, OJ 1998, L 83 p. 1.

  56. 56.

    Directive 1999/31 (fn. 50), Article 14.

  57. 57.

    See in particular Commission COM (88)338 and COM (2000)20.

  58. 58.

    See generally on this European Environment Agency, The European environment—state and outlook 2015. Synthesis report, Luxemburg 2015, Chap. 3.

  59. 59.

    Directive 2009/128, OJ 2009, L 309 p. 71.

  60. 60.

    Commission COM (2013) 918 p. 5.

  61. 61.

    Commission Regulation 2016/646, OJ 2016, L 109 p. 1.

  62. 62.

    L. Krämer, Impact assessment and environmental costs in EU legislation. Journal for European Environmental & Planning Law 2014 p. 209ss.

  63. 63.

    Directive 2000/14, OJ 2000, L 162 p. 1.

  64. 64.

    Decision 1386/2013 (fn. 1), Annex, paragraph 54.

  65. 65.

    Regulation 1367/2006, OJ 2006, L 264 p. 13.

  66. 66.

    Regulation 1/2003, OJ 2003, L 1 p. 1, Article 7(2). The Commission does not consider a complaint in the general interest to have a legitimate interest.

  67. 67.

    Regulation 2017/625, OJ 2017, L 95 p. 1, Article 116. “Food and feed law” includes pesticides.

  68. 68.

    Article 1(1), 10(3) and 11(2) TEU; 15(1) and 298(1) TFEU.

  69. 69.

    Regulation 401/2009, OJ 2009, L 126 p. 13, Article 2(h).

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Krämer, L. Come on, let’s make a plan—towards an 8th EU environmental action programme. ERA Forum 20, 659–681 (2020). https://doi.org/10.1007/s12027-019-00589-3

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