‘A LEGAL ASSESSMENT
OF EUROPEAN
EFFORTS TO ADDRESS
ENVIRONMENTAL
DISASTERS’
Anna-Athina
Environmental Law
Autumn term 2007
Preface
Environment is our shelter and our home. It does not belong only to us, but also to our children. Without a healthy environment, life as we know, will come to an end. States around the world, and the community itself, have taken the appropriate measures to protect the environment and prevent environmental disasters. But what is going to happen when, because of natural phenomena or human action such emergency situation occurs a country? What if the State does not have the means to face such disaster on her own? The European Community, according the subsidiarity principle and article 308 of the Treaty establishing the European Community, had take some steps to handle the situation: Council decision of
SUBSIDIARITY PRINCIPLE
‘A principle of the European Union, introduced by Article 3b of the Maastricht Treaty[*], ensuring that in areas which do not fall within the exclusive competence of the EU, it shall not take action unless the objectives of the proposed action cannot be adequately achieved by individual member states. Thus it provides for legislation at national level’ that the definition given, for the subsidiarity principle, by the ‘
The first most remarkable attempt to achieve the previously stated goal, which also demonstrates the faced practical difficulties is the discussion of the Economic and Social Committee on the proposal for directive 96/61 on integrated prevention and pollution control. The Committee discussed the pros and cons of fixing Community-wide emission limit values for industrial installations. It was stated: ‘the subsidiarity principle, properly understood, is not inconsistent with the establishment of limit values at European level. The high level of protection in the Community called for in the E.C. Treaty can only be achieved if European limits values are set’. Although eight members stated that: ‘ the subsidiarity principle, properly understood, is consisted with the establishment of limit values at
Actually, because of the diversity of legal structures amongst Member States, it is difficult to establish common European rules concerning the environment. For instance, at present, Member States such as
ARTICLE 308 AND DECISION-MAKING PROCEDURE
According to Article 2 of the E.C. Treaty, the Community own to ‘promote a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment’. At the same time Article 130r determines that, Community policy on the environment contributes ‘to pursuit to the following objectives:
A. preserving, protecting and improving the quality of the environment,
B. protective human health,
C. prudent and rational utilisation of natural resources,
D. promoting measures at international level to deal with regional or worldwide problems’
The decision making procedure, to achieve the above goals, is provided by the Treaty establishing the European Community. As far as environmental measures are concerned since 1987, Article 175 has become the legal basis. However, Article 308 is still in used, especially in those cases where there is no other legal basis exists. According to this Article: ‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.’
Consequently, the conditions of implementation for this article are as follows:
- the action by the community should be necessary to succeed in one of the objectives of the Community
- the objective should be in the course of the operation of the common market
- the treaty establishing the European Union has not provided the necessary powers,
- there should be proposal by the Commission and consultation of the
- European Parliament
- The Council must act unanimously.
COUNCIL DECISION OF
(2001/792/EC,Euratom)
Council decision of
At the induction of the decision there is a reference of the goals, the principles and the framework that this decision is based on. It is mentioned that, this mechanism will make support available ‘in the event of major emergencies which may require urgent response action’. The value of prevention and the principle of subsidiarity are noticed of great importance. Furthermore, ‘assistance interventions would either be conducted autonomously or as a contribution to an operation led by an international organisation’, and ‘participation in such mechanisms would be open to the candidate countries’. That is to say that an international organisation can be established to achieve the objectives of these decision and that countries outside the Community can take part in this mechanism.
Article 1.2 determines the intention of the mechanism, ‘the mechanism is intended to help ensure better protection, primarily of people but also of the environment and property, including cultural heritage, in the event of major emergencies, i. e. natural, technological, radiological or environmental accidents occurring inside and outside the Community, including accidental marine pollution’. It is a fact that the mechanism is also established to protect the environment and especially to help deal with disasters resulting from natural, technological, radiological or environmental accidents. Any disaster that had to do with animals, forests, biodiversity, earthquakes, tsunami, floods, explosions with environmental effects, are can activate the above mechanism. It can also be stated that the emergency had to be major, what are the criteria for major are not defined. It is remarkable that this mechanism is set for the disasters occurring not only inside but also outside the Community. Article 1.2 continues mentioning the general purpose of the mechanism which is:
- support in the event of such emergencies
- facilitate improved coordination of assistance intervention provided by the member states and the community.
According to article 2 in case of a major emergency within the Community, the
The Member States have to ensure their capability, towards the Community, to aid the function of the mechanism to facilitate reinforced cooperation in civil protection assistance interventions. So, the Member States have to identify in advance intervention teams, select experts, provide relevant information on these teams and experts, be prepared to provide other intervention support and determine the competent authorities and the contact points, and finally to inform the community about their actions (article 3).
The Commission still detains a very important role consists mainly of administrative and coordinative duties. In accordance with article 4 the Commission shall establish and manage a monitoring information centre, a reliable common emergency and communication and information system, small team of experts to deal with current problems, set up a training programme, collect information about the production of medicines by the Member States that can be used in situations of emergency, set up a programme of lessons learned from the interventions, the introduction of the utilisation of new technologies in the mechanism and take the proper course of action to facilitate transport of resources.
There are 2 ways to request for assistance by other Member States in case of emergency within the Community. Firstly, through the monitoring and information centre the Commission shall be informed and then the Commission shall notify the Member States facilitate their action and provide them with the proper information. Secondly the
Article 8 prescribes Commissions authority. Commission’s primary goal is to set rules concerning specific matters: resources available for assistance intervention, the monitor information centre, the common emergency communication and information system the assessment and /or coordination system and the criteria for the selections of experts, the training programme, information on medical resources, and the interventions inside and outside the Community.
It is more than obvious that this mechanism has the potential to become a very important instrument to face environmental disasters. When the prevention measures, do not succeed there is a solution: the mechanism set up by Council decision of 23 of October. It gives hope that disasters concerning the environment can be controlled by coordinate efforts of the Community and the
COMMISSION DECISION
OF
(2004/277/EC,Euratom)
The above commission decision lay down ‘rules for the implementation of Council Decision 2001/792/EC, Euratom establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions’.
‘A monitoring and information centre’ is set up by article 4 of the decision. This centre is legal obligated to often update the information given by the participating states, concerning their duties resulting from 2001/792/EC, their ability to keep producing medical resources, as well as their ‘working and emergency procedures’. Moreover the centre have to keep contact with the contact point of the States participating the Mechanism and to participate in the ‘lesson learned’ programme. Lastly, it is necessary to involve in many stages of the training courses and tabletop exercises.
Article 8 establishes CECIS ‘a common emergency communication and information system’ which is constituted by three parts: ‘a network layer’, ‘an application layer’ and a ‘security layer’. At the same time, the GIP ‘a global implementation plan’ is established (article 13). The GIP specialize community activities, the most important of which are: the practice of the above named layers, secure confidentiality of the programme, and provide the implementation of CESIS.
It is a fact that States have duties towards the mechanism ‘the participating States shall provide and regularly update their information on the experts selected in accordance with Article 3(b) of decision 2001/792/EC, Euratom’[‡]. Also, the criteria of selection and the activities of the experts are determined. The responsibilities of the Monitor and Information Centre are mentioned:
‘A. written confirmation of the mission;
b. the objectives of the mission;
c. the envisaged duration of the mission;
d. the local contact person information;
e. the insurance condition coverage;
f. the daily compensation allowance to cover expenses;
g. the specific payment conditions;
h. guidelines for technical experts, assessment experts, coordination experts and heads.
Chapter 6(VI) is dedicated to the training programme concerning the ‘target groups’[§].
It had to be marked that, the mechanism is not only available to countries inside the Community but also to the ones outside. There are two ways, for a non
Conclusion
Some very important measures are taken in the field of protection from environmental disasters. Nevertheless, recent events (for instance, the tsunami that hit
Taking everything into account, it should be reminded that ‘However, where an accident causes an individual person to lose, e.g. a leg, the damages-medical cost, loss of future income, increased expenses, money for pain and sufferings- will never lead to the physical restoration of that person. In the same way it is normally not possible to restore an environment which has be destroyed.’[§§]
[*]‘ARTICLE 3b
The Community shall act within the limit of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty’
(
If action by the Community should prove necessary to attain one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.
[‡] Article 14, Commission Decision of 29 December (2004/277/EC)
[§] ‘a. participating States’ intervention teams;
b. participating States’ intervention team leaders, their deputies and liaison officers;
c. experts of the participating States as set out in Article 15;
d. national key point staff;
e. official of the community institutions;’
[**] ‘Environmental Law, 4th edition, David Hughes, Tim Jewell, Jason Lowther, Neil Parpworth, Paula de Prea. Butterworths Lexis Nexis. Page 74
[††] (http://ec.europa.eu/environment/civil/prote/cp02_en.htm)
[‡‡] (http://ec.europa.eu/environment/civil/prote/cp02_en.htm)
[§§] ‘Focus on European Environmental Law’ Kramer, second edition,
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