Soft Law in Environmental Matters and the Role of the European Courts: Too Much or Too Little of It?

Abstract

Environmental policy entered the EU Treaties with the Single European Act. The Maastricht Treaty significantly changed and strengthened the provisions on environmental law and policy, as it made environmental protection an explicit aim of the European Community (EC), now European Union (EU), and empowered the Council to adopt environmental measures by qualified majority voting and no longer unanimity.1 Since the entry into force of the Treaty in 1993, EC (now EU) activity in the field of environmental policy has accelerated, resulting in an impressive body of legislative and non-legislative measures, which includes, according to the Commission, more than 200 pieces of EU legislation.2 Some legislation is sector-specific covering water, air, nature, waste, noise, and chemicals. Other measures are horizontal in nature and cut across all environmental sectors, for example, environmental impact assessments, access to environmental information, public participation in environmental decision making, and liability for environmental damage. Many of these measures deal with extremely technical issues, for example standards for pollutants such as ozone, particulate matter, and nitrogen dioxide, the requirements to ensure that surface waters in the EU keep a ‘good ecological status’ and a ‘good chemical status’ or the adequate conservation measures to preserve a certain natural habitat. Because of the consequent difficulties in the interpretation and application of the relevant pieces of EU law for national administrations, the environmental field has seen an impressive growth in the use of soft law measures. These measures come in the various forms of guidance documents, Commission notes, interpretative communications, and so on.