European Environment, Vol. 5,33-38 (1995)

REVIEWING THE INTERIM REVIEW

Sharon Turner and John O’Shea, The Queen’s University of Belfast, Belfast, Northern Ireland

In late 1994, with 18 months experience of implementing “Towards Sustainability”, the European Commission sought to review its progress in making the transition to sustainable development. Progress, however, has been both slow and uncertain. Sharon Turner and John O’Shea examine the approach taken in the Commission’s Interim Review and suggest that there has been an unwilling- ness to openly and critically address the causes and degree of lack of progress at Community level.

CCC 0961-0405/95/020033-06 0 1995 by John Wiley & Sons, Ltd and ERP Environment.

INTRODUCTION

hen the European Community adopted sustainable development as a central W objective for the Union, it was fully

cognisant that development would not become sustainable by itself.’ To this end the European Community initiated a process of attempting to reorientate social and economic activity and thereby developed a series of tools under the Fifth Action Programme on the Environment (hereafter referred to as the Programme) to ensure the transition to sustainable development.2 However, the European Community recognized both the complexity of the sustainable development paradigm and the need for a continuous evaluation of its own efforts to embrace it. The critical question is whether the European Community has been able to build the capacity to achieve sustainable development. In other words, has it been able to utilize its existing institutions and accumulated expertise in governance, which have contributed, in part, to unsustainable development, to help it make development sustainable? In essence, has the European Community equipped itself with the right tools for the job?

The Council‘s Resolution approving the Pro- gramme in January 1993 called for a continuous review so that questions such as these could be addre~sed.~ As part of this ongoing process a comprehensive review of the general orientation of the Programme will be initiated during 1995; how- ever, in late November 1994, the European Commis- sion published an interim report reviewing progress in implementing the Programme during the period from January 1993 to June 1994.4 The rationale of the interim review was to provide a qualitative rather than a quantitative assessment of the move towards sustainable development, and underpinning this was the European Commission’s desire to begin

~

EUROPEAN ENVIRONMENT

REVIEWING THE INTERIM REVIEW

the process of defining the terms of debate in preparation for the full review itself. The purpose of this paper is to assess the overall value of the interim review in these terms.

RATIONALE OF THE INTERIM REVIEW

The interim review was not intended to measure whether the European Community has moved towards sustainable development on the basis of the quantitative targets established in the Fifth Action Programme: but instead to examine the factors within the European Community which are broadly indicative of a qualitative shift towards sustainable development. The emphasis was stated to be on: ‘. . . quality, causes and degrees of shift in direction [towards sustainable development], above all at the European Community level.. .‘.6

The interim review opens and concludes with the observation that: ’. . . sustainable development, con- tinues to be seen as the business of those who deal with the en~ironment.~

A general unwillingness to accept sustainable development within the Commission and at Member State level seems to be the main conclusion of the interim review, yet such a conclusion did not prompt the Environment Policy Review Group, which produced the interim review, to ask why progress has been so slow and erratic between the Member States and why sustainable development has not been more widely accepted within the Commission. The interim review fails to take a critical posture on these issues, which go to the very heart of a qualitative analysis. Given that this was the stated purpose of the review, it is surprising indeed that the interim review is largely uncritical of the extent of progress to date. Three main points about the interim review’s approach to the extent of progress are worthy of comment:

The descriptions in the interim review of pro- gress in implementing the Programme, although intended to be general, are some- times so general as to be misleading about the degree and quality of progress. The interim review makes few attempts to analyse the factors which have variously stimulated or restrained the transition to sustainable development-that is, to examine the causes underlying the resistance to the paradigm of sustainable development within the European Community. The interim review does not suggest how the weaknesses of the tools presently being used by the European Community to make the transition to sustainable development could be remedied.

As already stated, part of the rationale of the interim review was to begin the process of defining the terms of debate for the full review later this year. The interim review needs to be subjected to scrutiny because it ought to have provided the ideal oppor- tunity for the Commission to take stock of what was wrong with the lack of progress to date and to suggest pathways for improving existing structures and processes. If, as we suggest, the interim review has not looked critically at the issue of how to introduce a culture of sustainable development across the entire European Community and within the Community’s institutions in particular, then it has not raised the really important questions that the whole Commission will need to consider later this year. It is submitted that the interim review has been too complacent over the little that has been achieved to date without examining why so little has been possible and how that can be rectified.

QUALITY INFORMATION?

One of the interim review’s strongest points is that it collates, in a coherent manner, a vast amount of information from both national and European Com- munity perspectives about how sustainable devel- opment has begun to be implemented in practice. In essence, the interim review successfully conveys a quantitative snapshot of what is happening across numerous sectors of activity by literally listing what has been done. However, to have provided a quali- tative analysis of progress to date, the interim review should have provided information of a different calibre. The information should have been more detailed and more specific. Instead, the interim review is characterized by a generality of informa- tion, so much so, in fact, that the Commission could be accused of creating a misleading impression of the degree and, more importantly, the quality of the shift towards sustainable development. There are numerous instances throughout the interim review where the Commission alludes to problems, but the information provided is so general that only the very expert would appreciate the nature, scale and complexity of these problems. Given the restrictions of space, it is intended to focus only on one of the most blatant examples of this phenomenon.

In discussing the European Community’s attempts to develop a tax on carbon dioxide and energy? the interim review does not even attempt to portray a representative picture of the complete deadlock which the European Community faces on this issue. Having extolled the need for such a tax at European Community level, the review simply states that: ‘only limited progress has been made towards an agreement on the proposal’.’

34 EUROPEAN ENVIRONMENT

S. TURNER AND J. OSHEA

The issue of a European Community carbon tax is enormously complex and has aroused deep-seated conflict between the Member States, somethin which the interim review does not make clear. For nearly three years the Council of Ministers has been locked into a stalemate over whether the European Community should impose a carbon tax. Briefly sketching the positions of the Member States in Council illustrates this fact. Germany, France, the Netherlands, Belgium, Luxembourg and Italy have wholeheartedly supported the idea of a European Community carbon tax. Similarly, the cohesion states, Spain, Portugal, Greece and Ireland would like to see a carbon tax but, before agreeing to the measure in Council, also want special concessions based on their status as regions lagging behind in development. The UK, however, is resolutely opposed to any form of new taxation emanating from the European Community. As unanimity is required on issues concerning taxation, the reluc- tance of the cohesion states and the recalcitrant opposition of the UK has posed, and continues to pose, a serious barrier to progress.” In December 1994, the Council‘s stalemate reached such intense proportions that the Commission announced that individual Member States should be free to apply national carbon taxes in the absence of a European Community tax.

At the time the interim review was being written, the serious nature of the Council’s deadlock was already evident, therefore to simply state, as the interim review does, that ‘only limited progress has been made’ creates a most misleading impres- sion and cannot be considered as constituting a qualitative indicator of progress towards sustain- able development. The Commission’s continuing enchantment with taxation as a mechanism for promoting sustainable development may poten- tially be very significant, but only if agreement can be reached. However, that is a different matter entirely. In brushing over the intractable nature of the barriers to consensus within the Council, the interim review fails to address the central questions of the quality and degree of the shift towards sustain- able development in this context. Moreover, despite the European Community’s declaration of its com- mitment to greater tran~parency,’~ the review’s faiIure to convey even a representative picture of events surrounding the carbon tax debate raises important doubts about the real extent of the Com- mission’s commitment to transparency.

15

12

ANALYSING THE SHIFT?

Although it identifies the qualitative indicators of the move towards sustainable development, the

underlying cuuses for the lack of progress to date have not been addressed by the interim review. Although the interim review asserts that the Commission has initiated progress, ‘to plant the seeds of change’14 it is clear that there are funda- mental problems facing both Member States and the European Community in terms of their capacity to make the transition to sustainable development. However, there is an almost complete failure to ask why the Commission’s seeds have not germi- nated and grown uniformly at national and European Community levels.

Taking first the problems encountered by the European Community, the interim review suggests in passing that the Commission is aware of the central cause underlying the European Communi- ty’s difficulty in making the transition to sustainable development. It states that: ‘[there is] insufficient awareness of the need and a lack of willingness to adequately integrate environment and sustainable development considerations into development and other European Community policies to the benefit of the policy itself and of the environment and sustain- able de~elopment’.’~

For the interim review to have made any assertion about the quality and degree of progress in imple- menting the Programme, it needed not only to outline the positive steps which have been taken to achieve that end, but, almost more importantly, it needed to address the factors which variously restrained or stimulated the transition to sustain- able development. In other words, the interim review ought to have taken a critical posture in reviewing the European Community’s progress to date. Sustainable development hinges crucially on the ability and capacity of the institutions of the European Community (primarily, for the meantime, the Commission), firstly, to integrate environmental considerations into European Community policies and, secondly, to persuade Member States to do the same to break away from old, unsustainable policies and to initiate new and sustainable policies. The interim review tells us that such ’environmental integration’ is taking place, prompted by Article 130r(2) EC and the Commission’s Internal Commu- nication of June 1993 on environmental integra- tion.16 However, although the interim review is able to demonstrate that some progress has been made by listing in a quantitative manner what has been done, what ought to have been of concern was, firstly, whether the mechanisms devised by the Commission to ensure sustainable development through environmental integration are proving pro- blematic and, secondly, the causes underlying these problems.

The review neither explains what it is about the structure of the Commission nor the way in which

EUROPEAN ENVIRONMENT 35

REVIEWING THE INTERIM REVIEW

policies are formulated and implemented in the European Community that accounts for this ’insuf- ficient awareness and lack of willingness to accept sustainable development’.

When environmental policy was developed in the early 1970s, the Commission understood the need for integrating environmental considerations into other European Community policies.17 However, several factors constrained the realization of this concept. Not only was the Commission’s original environmental service limited by a small budget and small staff, but, more importantly, it also had to compete with other existing policies.18 Existing Directorates-General had their own specializations and their own ways of dealing with their policy areas. There was a climate of non-communication between the environment service and other Com- mission departments which neutralized the concept of environmental integration.” It is clear that in the 1990s similar conditions prevail within the Commis- sion, except that now Article 130r(2) EC provides a Treaty basis for a more direct and confrontational role to be taken by environmental policy-makers. Article 130r(2) EC requires that environmental con- siderations be integrated into other European Com- munity policies and to this end a Commission Internal Communication of June 1993 established a series of mechanisms designed to achieve environ- mental integration within the Commission. ’O How- ever, Directorate-General XI (Environment) has still not been very successful in confronting other poli- cies about their environmental implications and in forcing change within the Commission.21 Although the interim review has correctly identified environ- mental integration as an important qualitative indi- cator of the transition to sustainable development, it has failed ask the most important questions, namely, why other Directorates-General remain unrespon- sive to environmental considerations, and why the Commission has so far been unable to overcome, to any significant degree, internal resistance to the process of environmental integration?”

It seems clear that the issue of a lack of progress in implementing sustainable development at least at European Community level revolves around the internal reorganization of the Commission and its working patterns. If progress has been slow, then it must surely relate to some problem or series of problems within the Commission. The Commission needs not only to actively promote environmental integration to make progress on sustainable devel- opment, but also to continually question the capa- city and suitability of using established institutions to achieve sustainable de~elopment.’~

Turning to the problems encountered by Member States, it is clear from even a very quick perusal of the interim review that there is a considerable lack of

uniformity between Member States in terms of attitudes, willingness and actual capacity to make a transition to sustainable development. Although the review identifies positive action where it has occurred on a national it makes no attempt to address the causes underlying the lack of unifor- mity among Member States in this regard. The interim review is silent on the many important questions which should have been asked about both the Commission’s and Member States’ capa- city and commitment to the process of making the transition to sustainable development as an integral part of its attempt to define the terms of debate in preparation for the full review of the Fifth Action Programme in 1995.

FINAL CONCLUSIONS: A CONSPIRACY OF SILENCE?

Although the interim review concludes that the ‘seeds of change have been planted, and now need ‘water and warmth to blossom’, it gives no indication of the type of environment into which these seeds have been sown.25 If the review had fulfilled its promise and provided a truly qualitative analysis, the unreceptive nature of the environment in which sustainable development is expected to grow would have been made clear. Rather than trying to present the European Community’s experience of sustainable development as a rose without thorns, the interim review would have been more constructive and therefore more helpful had it attempted to identify the nature and location of the thorns inherent to the process of transition to sustainable development.

In failing to adopt a critical position in the interim review, the Commission was unable to address possible remedies to the problems being encoun- tered by both the European Community and Member States, a discussion which should have been an essential part of a qualitative analysis. Instead, the review concludes with a statement that ’there is now a need to look at how to move towards a new model of development’.26 The reader is then simply presented with a list of changes which the Environment Policy Review Group considers necessary to ensure movement towards this ‘new model’.’

The interim review does not explain what it means by ’a new model of development’. Does it mean that different tools are needed to achieve sustainable development or is it seeking to adopt a new paradigm altogether? We can only assume that the Environment Policy Review Group meant that new mechanisms are needed to ensure the transition to sustainable development. One thing seems to

36 EUROPEAN ENVIRONMENT

S. TURNER AND J. OSHEA

emerge clearly from the interim review, namely, that the European Community as a whole has reached an impasse with the existing tools it has chosen as the means to embrace sustainable devel- opment. Although the interim review states that the Member States and the Commission ‘need to recom- mit themselves, at the highest political levels, to move in the right direction, recognizing that a considerable part of the Fifth Programme falls to be carried out at levels other than the European Community level’ and that ‘there still remains a failure to get to the real heart of some of the key issues’, it arrives at the rather surprising conclusion that ‘the overall message of this Report is one of cautious optimism’.28 It is submitted that the interim review as a whole, but in particular the ‘Final Conclusion‘, hints in a veiled manner at the exis- tence of fundamental barriers in the path of the European Community’s transition to sustainable development, but, in what amounts almost to a ’conspiracy of silence’, it chooses not to articulate their quality, causes or degree.

CONCLUSIONS

The overall impression created by the interim review is one of complacent acceptance by the Environment Policy Review Group and the Com- mission that sustainable development, because it remains somewhere on the political agenda, will somehow materialize. The serious issues raised by the transition to sustainable development are neither made clear by the interim review nor brought centre stage. This raises the fundamental question of whether the European Community has the capacity to be sufficiently self-critical as it under- takes the full review of the Programme. Will it address the issues left out by the Environment Policy Review Group? Will it be able to adequately define the terms of the debate concerning the future of sustainable development within the European Community? The interim review is, in summary, a disappointing, complacent and uncritical document that does not raise the important questions which needed to be raised at this juncture in the European Community’s transition to sustainable develop- ment. It can only be said that this does not bode well for the full review expected later this year.

NOTES

The Treaty on European Union, signed 7 February 1993 and in force in November 1993, amended Article 2 of the Treaty ofRome to include a new objective promoting ’sustainable and non-inflationary growth respecting the environment” Commission of the European Communities, COM (92)

23 FinallVols I-Ill, ’Towards Sustainability: A Commu- nity Programme of Policy and Action in Relation to the Environment and Sustainable Development’. OJ C 13811, 17.05.93 - Council Resolution of 1 February 1993 on a Community Programme of Policy and Action in Relation to the Environment and Sustainable Development.

4Comrni~sion of the European Community, COM (94) 453 Final, ‘An Interim Review of Progress in Imple- menting the Fifth Action Programme on the Environ- ment’. OJ C138118, para 44. Supra note 4 at 1. Supra note 4 at 3 and again at 53.

‘The initial idea for a Community carbon tax was raised in Commission Proposal 89/8/91 - A Community Strategy to Limit C02 Emissions and to Improve Energy Efficiency. This was followed by the publica- tion of Commission of the European Communities, COM (92) 226 Final and a draft Directive on a CO2/ Energy Tax in May 1992. See also EIS, Europe Insight, 01.05.92 - ’Carbon Tax: Outline of the Proposed Directive’. Supra note 4 at 13.

“See, for example, Paleokrassas, 1. Chances for the introduction of a CO2/ energy tax (1994) 4 European Access 10-13 and Skjaerseth, J.B. (1994) The climate policy of the community: too hot to handle? 1. Commom Market Studies, 32(1), 2546. Also Giesbert, L. Practical inter-relationships between EU environmental protec- tion and trade policy concerns and impact of environ- mental barriers to trade on competitiveness: economic and fiscal instruments (including C02lenergy tax, water discharge and waste fees). Paper presented at the International Bar Association Seminar on Trade and Environment, Dublin, 24-26 November 1994; and Gyselen, L. The emerging interface between competi- tion policy and environmental policy in the European Community. Paper presented at the International Bar Association Seminar on Trade and Environment, Dublin, 24-26 November, 1994.

“See Skjaerseth, J.B. (1994) The climate policy of the community: too hot to handle? J. Commom Market Studies, 32(1) 25-46. RAPID Doc 94-4,10 December 1994 -Conclusions of the Presidency of the European Council in Essen, 9-10 December 1994. RAPID, PRES 94-273, 16 December 1994-Brussels Environment Council, 15 - 16 December 1994. EIS, Europe Environment, 20 December 1994 - Environment Council: Council Abandons Common Carbon Tax. See also RAPID Memo 95-22, 1 March 1995 - EU climate change strategy: a set of options.

l3 See Treaty on European Union Declaration 17 on the Right of Access to Information which states that: ’The Conference considers that transparency of the deci- sion-making process strengthens the democratic nature of the institutions and the public’s confidence in the administration. The Conference accordingly recom- mends that the Commission submit to the Council no later than 1993 a report on the measures designed to improve public access to the information available to the institutions’. See also Snyder, F. (1993) The effectiveness of european community law: institu- tions, processes, tools and techniques, M.L. R., 56,19-54.

l4 Supra note 4 at 53. l5 Supra note 4 at 2. I6Supra note 4 at 48. l7 Environmental integration, as a concept, has had a long

EUROPEAN ENVIRONMENT 37

history in the Community’s Environment Action Programmes. See, for example, OJ C222/22,20 Decem- ber 1973.

I8Kramer, L. (1990) EEC Treaty and Environmental Protection, Sweet & Maxwell, London, at para 4.39 et seq. Kramer, L. (1992) Focus on European Environmental Law, Sweet & Maxwell, London, at 62 et seq.

l9 Kamminga, M. (1994)Improving integration of envir- onmental requirements into other community policies European Environmental Law Review, 23-26.

2o Following pressure from the Commission, Article 130r(2) EEC was added to the Treaty of Rome by the Single European Act, stating that ’environmental protection requirements shall be a component of the Community‘s other policies‘. This was amended and strengthened by the Treaty on European Union, so that Article 130r(2) EC now states that ‘environmental protection requirements must be integrated into the definition and implementation of the Community’s

REVIEWING THE INTERIM REVIEW

other policies’. On the mechanisms established to ensure environmental integration within the Commis- sion, see RAPID lP/93/427,3 June 1993 - Integrating the environment into other policy areas within the Commission.

’lSee OShea, J. Including the excluded? The interface between the European Community’s environmental policy and its natural resource management policies, LL.M Thesis, submitted 1995.

22 Ibid. 23 See generally Norgaard, B (1994) Development Betrayed:

The End of Progress and a Co-Evolutionary Revisioning of the Future, Routledge, London.

24 Supra note 4 at I. 25 Supra note 4 at 53. 26 Bid. 27 Bid. 28 Ibid.

38 EUROPEAN ENVIRONMENT