The legal framework governing the efforts in

The legal
framework

governing

the

EU‘s

efforts

in
promoting

EU environmental
standards


in
third

States

The
Hague
, 19 April 2013

Ludwig Krämer

Kramer.ludwig@skynet.be

Table
of

content

1.
The
Lisbon

Treaties




2. The EU: global
player

or

environmental
promotor
?


3.
EU environmental
standards



4.
Globalizing

EU
standards


5.
Coercive

and

non
-
coercive

measures


6.
Measuring

effectiveness


7.
Concluding

remarks

The
Lisbon

Treaties

-
Contribute

to

sustainable

develpment

of

the

Earth (
Article

3 TEU)

-
Contribute

to

free

and

fair
trade
,
eradication

of

poverty

and

the

protection

of

human
rights

(
Article

3 TEU)

-
Foster
the

sustainable

enviornmental

development

of

developing

countries,
with

the

primary

aim

of

eradicating

poverty

(
Article

21 TEU)

-
Help
developing

international
measures

to

preserve

and

improve

the

quality

of

the

environment

and

the

sustainable

management

of

global
natural

resources
, in
order
to

ensure

sustainable

development

(
Article

21 TEU)

-
Preserving
,
protecting

and

improving

the

quality

of

the

environment
,
protecting

human
health
,
contribute

to

a
prudent

and

rational
utilisation

of

natural

resources

and

promoting

measures

at

international
level

to

deal
with

regional
or

worldwide

environmental
problems
,
and

in
particular

combating

climate

change

(
Article

191 TFEU)

-
Have

as

the

primary

objective

the

reduction

and
, in
the

long

term
,
the

eradication

of

poverty

(
Article

208 TFEU

The EU:

global
player

or

environmental
promotor
?

1.
The
making

of

meaningful

global environmental
agreements

becomes

progressively

difficult



Kyoto2,
Forests
,
Whaling
,
Aarhus
,
Arctic
, Marine
pollution
, Cars,
C
hemicals



2. The
main

reason
: erst kommt das Fressen und dann

die

Moral



first

economic

growth

(
competitiveness
),

then

environmental

protection


3. WTO
prohibits

unequal

treatment

of

like

products
, but
does

not
prohibit

the

protection

of

the

environment


4. The
choice
,
whether

to

be

a global
player

or

an environmental
promotor
,
is

a
political

, not a legal
choice
.

EU environmental
standards

1.
Sustainability
,
high

level

of

protection
,
prudent

use

of

natural

resources
,
protection

of

human
health
,
protect

and

improve

the

quality

of

the

environment


2.
These
standards

were

concretised
,
within

the

EU,
by

a
considerable

number

of

legally

binding

provisions
, in all environmental
sectors


3.
Options
for

policy

towards

third

countries:



3.1
let

the

buyer

beware

(
caveat

emptor
)



3.2
prior

informed

consent

(
R
otterdam
Convention

–

Basel
Convention
)



3.3
apply

the

EU
internal

standards

also
to

exports



3.4
allow

imports

only
,
when

EU
internal

standards

are

respected

EU
standards


Products
and

waste

1.
Products



car

emissions



chemical

restrictions



pesticides



energy
-
using

products




electrical
-
electronic
goods




2.
Waste



cars

and

ships



electrical
-
electronic
waste




hazardous

waste



nuclear

waste




EU
standards


Biodiversity

1.
Meat
import

standards

and

animal

welfare

standards


2.
Trade in
endangered

species


3. Habitat
and

species

protection

(
Directive

92/43)


4.
Sustainable

use

of

pesticides


5.
Pesticide

residues


6.
Fisheries

standards

(
mesh

size
,
by
-
catch, EU
standards

in
third

countries‘
waters
,
waste

treatment
)


EU
standards


I
nstallations

and

horizontal
issues

1.
Installations



-

Best
available

techniques



-

Basic
requirements

(CSR):
waste

disposal
,
waste

water
,
accident




participation
, human
rights



2. Horizontal
issues



-

Aarhus

Convention

on
transparency
,
participation
,
access

to

justice
,


NGO
promotion




-

impact

assessment

of

projects
,
plans

and

programmes




-

public

procurement



-

EIB
standards

for

linking

credits

to

environmental
compliance

Globalising

EU environmental
standards

1

1.
Internationally
,
the

EU
is

re
-
active
, not
active


2.
Globalising

through

import
-
related

measures



-

climate

change

(
FLEGT;
biofuels
)



-

food

(
residues
,
organic

food
, GMOs)



-

international
rules

(
hazardous

waste
,
ozone
-
depleting

substances
, CITES)


3.
Globalising

through

export
-
related

measures



-

international
rules

(
hazardous

waste
,
mercury
,

POPs)



-

?


4.
Regionalised

agreements




The Cotonou
Partnership

Agreement

1.
Concluded

in 2000
between

the

EU
and

79 countries
from

A
frica
,
the

Caribbeans
,
and

the

Pacific (ACP countries),

2.
Concluded

for

a
period

of

20
years
,
every

5
year

a
revision

(2005, 2010)

3.
Objective
:

„
Reducing

and

eventually

eradicating

poverty
,
consistent

with

the

objective

of

sustainable

development
“ . „The
principle

of

sustainable

management

of

natural

resources

and

the

environment
,
including

climate

change
,
shall

be

applied

and

integrated

at

every

level

of

the

partnership
“
(
Article

1)


„The
central

objective

of

ACP
-
cooperation

is

poverty

reduction

and

ultimately

its

eradication
;
sustainable

development
;
and

progressive
integration

of

the

ACP
countries
into

the

world

economy
“ (
Article

19)

4.
sections
:
economic

development
;
social

and

human
development
; regional
cooperation

and

integration

cross

cutting

issues

(
environment

a.o
.)



Globalising

EU environmental
standards

2


3.
Globalising

through

regional environmental
agreements



The Cotonou Agreement
could

establish
a
valuable

playing

field

for

promoting

environmental
standards



Making
agreements

on



-

Aarhus

principles

(
transparency
,
participation

access

to

justice
, NGOs)


-

Impact
assessment

of

projects
,
plans

and

programmes



-

Habitat (
and

species
)
protection
,
Articles

4
to

6, 13
–

16
of

Directive

92/43



-

Sustainable

use

of

pesticides




-

Public
procurement



-

Waste

and

waste

water

treatment



-

Corporate environmental
responsibility

(CSR)



-

Linking
export

credits
, State
aid

to

environmental
compliance

Until

now
,
there

is

no

serious

attempt

to

export

standards


Coercive

and

non
-
coercive

measures

1.
The
experience

with

non
-
coercive

measures



1.1
Climate

Change
Convention

and

post
-
Kyoto



1.2 Joint, but
differentiated

reponsibilities



1.3 Rio
Principles



1.4 Global
Millenium

Goals (2000)



1.5 Corporate
Social

Responsibility
.


2.
Enforcement

mechanisms

for

global environmental
agreements

do not
work
.


3.
There

is

little

hope

to

(
agree

better

global environmental
agreements

(b)
establish

better

enforcement

mechanisms
.


4.
Proposal

for

a
way

forward
:



(a)
make

regional environmental
agreements




(b) link
financial

assistance

to

compliance


Measuring

effectiveness

of

EU
standards

application

in
third

countries

1.
Include

systematic

ex
-
post
evaluation

of

agreements
,
projects
,
plans

and

programmes
,
where

the

EU
is

involved
.


2.
Ensure

transparency

of

the

evaluation
.


3.
Ensure

detailed

reports

on
the

state

of

the

environment

(„
Aarhus

Convention
“)
which

also
report

on
failures

(
auditing
-
type
reports
).


4. Name
and

shame

EU
acts

and

omissions

and

EU
companies
.


5. Link
financial

assistance

to

environmental
compliance


6.
Be

self
-
critical

and

not
self
-
complacent



Concluding

remarks

1




The EU
is

obliged

to

promote environmental
protection

globally
.
It

is

a
political

choice
,
how

serious

it

takes

this

obligation
. The
mere

promotion

of

„
sustainability
“
is

not
helpful
.
And

it

is

doubtful
,
whether

the

„
reduction

and
, in
the

long

term
,
the

eradication

of

poverty
“
is

a
better

objective

and

not
too

vague

and

general
.


Concluding

remarks

2



Any

environmental
measure
,
whether

internally

or

externally
,
will
raise

the

tension

between

EU
competitiveness

vs. EU
environmental
promotion

Concluding

remarks

3



Though

the

EU
sees

itself

as

a model
for

reconciling

environmental
protection

and

economic

growth
,
it

has

not
gained

sufficient

international
credibility

and

leadership

capacity
, in
particular

because

all
too

often

it

does

not
speak

with

one

voice
.

Concluding

remark

4


As global environmental
agreements

are

difficult

to

make

(USA,
China,
Russia

etc
),
the

EU
should

go

for

regional
environmental
agreements
,
for

example

by

filling

the

Cotonou
-
Agreement
with

environmental
life
.
There

are

numerous

such
agreements

possible

which

would

not
significantly

impair EU global
competitiveness
.

Concluding

remarks

5



Regional environmental
agreements

should

set

precise
,
verifiable

targets

which

can

be

measured
.
Systematic

ex
-
post
evaluation

of

agreements
, but also
of

projects
,
plans

and

programmes
,
where

the

EU
participates
,
should

be

foreseen
.
These
evaluations

should

be

self
-
critical

and

not
only

self
-
complacent
,
and

should

be

published
.

Concluding

remarks

6


EU
financial

assistance

(
credits
,
guarantees
,
etc
)
should

be

linked

to

the

compliance

with

established
,
concrete

environmental
objectives
.
It

should

be

accompanied

by

a
monitoring

system
.

Concluding

remarks

7


EU
internal

product

regulation

(
cars
,
chemicals
,
pesticides
)
went

from

optional
directives

to

total
harmonisation

directives

to

regulations
.
This

is

a model
for

export

standards

for

products

which

are

at

present

at

the

optional (+)
stage
.