The application of subsidiarity in the making of European environmental law

European EnvironmentEur. Env. 10, 85–95 (2000)

THE APPLICATION OFSUBSIDIARITY IN THEMAKING OF EUROPEANENVIRONMENTAL LAW

David Shaw1,*, Vincent Nadin2 and Kim Seaton2

1 University of Liverpool, Liverpool, UK2 University of the West of England, Bristol, UK

As the process of European integrationgathered pace, subsidiarity wasintroduced as a concept that could curbthe centralist tendencies of the EuropeanUnion. For new legislation the EUneeded to satisfy two criteria. Whatjustification was there for Europeanaction in the first place (subsidiarity)and was the intensity of the actionappropriate (proportionality)? Manyreferences were thus made to the factthat new European legislation compliedwith these two principles albeit in ageneral and imprecise manner. Thispaper attempts to understand what thetwo concepts mean in relation to twopieces of environmental legislation. Thepaper begins by discussing, in generalterms, the origins of the principles andtheir meaning in European Communitylaw. It then examines the actualarguments made in support of or tocounteract Commission proposals in thefield of environmental policy. Threeconsiderations must be satisfied. Whatlegal competence does the Commissionhave to propose legislation, and does itcomply with the subsidiarity and

proportionality principles? We concludeby suggesting that a series of decisionrules can be developed to evaluate thelegitimacy of Community action.Copyright © 2000 John Wiley & Sons,Ltd and ERP Environment.

INTRODUCTION

The European Union’s environmentalpolicy has emerged as one of the mostimportant policy arenas for Community

action. Initially environmental measures wereintroduced largely as an ad hoc and frag-mented response to particular problems orissues. They were designed to harmonize en-vironmental policy between member states,thereby helping to eliminate potential tradedistortions. By the beginning of the 1990s over200 separate pieces of environmental legisla-tion and additional accompanying measureshad been introduced (Barnes, 1998). For mostof this time the European Treaties have notgiven explicit justification for Community ac-tion in pursuit of environmental objectives.Instead such action was justified under thegeneral provisions of the Treaty of Rome,which related to the desire for the memberstates to move towards a more integratedSingle Market. With the Single European Actof 1986 a measure was introduced into theTreaties that effectively gave the EuropeanCommission an explicit competence to pro-pose environmental action at the European

* Correspondence to: Dr. David Shaw, Senior Lecturer, Depart-ment of Civic Design, University of Liverpool, Liverpool L693BX, UK.

Copyright © 2000 John Wiley & Sons, Ltd and ERP Environment.

D. SHAW ET AL.

level. Since then the legal basis for environ-mental action has been strengthened still fur-ther. At Maastricht in 1992 ‘sustainablegrowth respecting the environment’ becameone of the overarching goals of Europeanintegration. More recently, the Treaty of Am-sterdam, agreed in 1997, and ratified in 1999,set an objective for the EU to delivering sus-tainable development and ensuring that envi-ronmental considerations are fully integratedinto all other areas of policy making. Thusenvironmental concerns have certainly be-come an issue of great significance for EUpolicy makers.

The extension and expansion of Commu-nity competences has not just affected theenvironmental field, but is paralleled else-where as the process of European integrationhas gathered pace. This in turn has given riseto concern amongst some member statesabout the loss of national sovereignty tosupranational European institutions. Notwith-standing the merits or otherwise of this partic-ular perspective, the principle of subsidiaritywas formally introduced into Community lawand policy making to curb or curtail the lossof national powers to the EU. The renaissancein the use of the concept of subsidiarity hasmeant that the Community has had to con-sider the need for action more carefully and tojustify it, especially where legislation is in-volved. If action is justified, the principle ofproportionality provides a test on the intensityof action.

While much has been written about theimpacts of European environmental legisla-tion, policies and funding packages on theway that institutions and practices have beenshaped in the member states, considerablyless emphasis has been given to the reasonedjustification for the action at the level of theEuropean Union. References are made to sat-isfying or being in accord with the principleof subsidiarity, but what does this really meanand how do legislative proposals meet therequirements of subsidiarity criteria? This pa-per explores the rationale given for the intro-duction of environmental legislation at theEuropean level, and, in particular, the need tosatisfy the requirements of subsidiarity andproportionality. The paper begins by explor-

ing the meaning of the principles of subsidiar-ity and proportionality and their applicationwithin European law. This then providescriteria that can be used to justify new Eu-ropean legislation. These principles provide aframework to explore the arguments used tojustify two environmental legislative pro-posals: the 1997 Council Directive 97/11/ECamending Directive 85/333/EEC on the As-sessment of the Effects of Certain Public andPrivate Projects on the Environment (EIA Di-rective), and the proposed Council Directiveof 1996 on the Assessment of the Effects ofCertain Plans and Programmes on the Envi-ronment (SEA Directive).

THE PRINCIPLE OF SUBSIDIARITY

Historically the concept of subsidiarity can betraced back to the ideas of Plato and Aristotle.More recently it has played a significant rolein the development of European Catholic so-cial doctrine and liberal political theory. ‘Sub-sidiarity expresses a preference for lowerlevel . . . no responsibility should be locatedhigher than is necessary, . . . the principle ofsubsidiarity serves to limit state authority’(Hoffe, 1996, p. 61). Political theory offers anumber of key arguments that help to explainsubsidiarity. First, the ultimate criterion forjudging the allocation of competences be-tween different levels of governance is serviceto the individual and the preservation of per-sonal autonomy. Whilst this provides apredilection for lower levels of governance italso acknowledges, in certain circumstances,that individual autonomy might be betterserved by decisions being made at a higherlevel. Second, subsidiarity draws attention tothe principle of the sovereignty of the people,in that ‘political power does not come fromabove to be mercifully transferred to lowerlevels. It is granted from below’ (Hoffe, 1996,p. 67). From this perspective, subsidiarity isnot about the delegation of powers from ahigher to a lower authority, but about theallocation of authority to different levels. If,using the principle of subsidiarity, it is arguedthat power should be delegated, then it alsologically follows that the power should not

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have been vested in the higher authority in thefirst place. Thus a critical aspect of subsidiarityis not the devolution of decision-making, butrather ensuring that competences held atlower levels of jurisdiction are not given up tohigh levels without very good reason.

It is among the federal governments that theprinciple of subsidiarity is perhaps best under-stood although the term itself was not actuallyused in the laws of federal countries until theTreaty on European Union in 1993. Neverthe-less, there are three principles in the constitu-tional law in federal states that relate to theidea of subsidiarity. First the principle of enu-merated powers limits the power of any fed-eral government to those competencesassigned to it by lower levels. Second, wherethe federal government may have to assumeimplied powers, these are limited by the con-stitution to what is right and proper and thisoften involves reconciling individual rightswith a broader competing societal value, byimposing burdens on the former. Finally, thenature of the action that might affect individ-ual rights should not be disproportionate tothe societal cause to be protected. This againre-iterates the notion that the concepts of sub-sidiarity and proportionality are closely inter-twined.

The general normative principle of sub-sidiarity can be applied to any level of govern-ment, but with EU law it has evolved as aprinciple that deals, explicitly and exclusively,with the relationship between the EU and the15 member states. How the member statesindividually decide where competences liewithin their jurisdiction is solely a matter forthat country.

It was in the field of environmental policythat the principle of subsidiarity was firstintroduced into the Treaties in 1986. The Sin-gle European Act established environmentalobjectives in the Treaty, but the assignment ofCommunity powers was restricted by Article130r, which stated

The Community shall take action relatingto the environment to the extent to whichthe objectives . . . can be attained better atthe Community level than at the level ofthe individual Member State.

Thus it was clear that the principle was estab-lished solely in relation to environmental pol-icy and that the Community should act only ifthe member states acting individually or col-lectively could not better achieve the agreedenvironmental goals. At this stage the actualterm subsidiarity was not used within theprovisions of the Treaties, though its applica-tion was clearly implied.

With a further revision to the Treaties in1992, the concept of subsidiarity was incorpo-rated more widely as a general guiding princi-ple to control or restrain what were commonlyperceived as the centralist tendencies of theCommunity and appease national govern-ments that were concerned about the steadyexpansion of Community powers (Ward,1996). Indeed, subsidiarity is sometimes de-scribed as the word that saved Maastricht(Treaty on European Union (TEU)) (Cass,1992).

The Treaty on the European Union (TEU)considered subsidiarity in two ways. First inthe Common Provisions, which act as apreamble to the Treaties, subsidiarity was es-tablished as a substantive principle in Articles1 and 2 (ex Articles A and B)1 (Peterson, 1994).

Article 1 of Title 1 Common Provisions saysin part

This Treaty marks a new stage in theprocess of creating an ever closer unionamong the peoples of Europe, in whichdecisions are taken as openly as possibleand as closely as possible to the citizen.

Article 2 of Title 1 Common Provisions thengoes on to say in part

The objectives of the Union shall beachieved as provided in this Treaty and inaccordance with the conditions and thetimetable set out therein while respectingthe principle of subsidiarity as defined inArticle 5 [ex Article 3b] of the Treaty es-tablishing the European Community.

1 Within the text we have referred to the current article num-bers reflecting the post-Amsterdam Treaty situation. The articlenumbers most readers are likely to be familiar with are addedin parentheses.


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One of the most important points to realizeabout both provisions is that, because they arepart of the Common Provisions, they have thestatus of political statements of intent andcannot be the subject of litigation and chal-lenge in the European Courts. Neverthelessthese ideas are used as normative principlesto justify particular positions and inform pol-icy debates. For example the principle of sub-sidiarity was invoked by the Committee of theRegions to support its claim for an extensionof power and responsibility at the Intergov-ernmental Conference preceding the Treaty ofAmsterdam. It argued, unsuccessfully, thataccording to the subsidiarity principle, as theEuropean institution2 closest to the citizens, itshould have a greater role in EU decision-making (Jones, 1997).

Further revisions to the Treaty Establishingthe European Community (TEC), made by theTreaty on European Union (TEU), formallyintroduced and defined to some extent theconcept of subsidiarity as a legal component,which may be challenged. Article 5 (ex Article3b) states that

The Community shall act within the limitsof the powers conferred upon it by thisTreaty and of the objectives assigned to ittherein.

In areas that do not fall within its exclu-sive competence, the Community shalltake action, in accordance with the princi-ple of subsidiarity, only if and insofar asthe objectives of the proposed action can-not be sufficiently achieved by the Mem-ber States and can, therefore, by reason ofthe scale or effects of the proposed action,be better achieved by the Community.

Any action by the Community shall notgo beyond what is necessary to achievethe objectives of this Treaty.

Ambiguities in interpreting these paragraphsled the European Council to establish an over-all approach to the application of the sub-sidiarity principle as set out in Article 5. AtEdinburgh in 1992 the European Council pro-duced a set of guidelines and basic principlesconcerning the application of subsidiarity,which was later attached as a protocol to theTreaty of Amsterdam. Because the protocolwas ratified at the same time as the Treaty ofAmsterdam it has the same legal effect asother modifications to the TEC. Meanwhile,political pressure to invoke subsidiarity led tothe Commission reviewing its proposed leg-islative programme and concluding that itneeded to withdraw, modify or revise manyof its existing proposals. In the field of envi-ronmental protection or management, theCommission brought forward proposals toconsolidate and simplify the legislative pro-cess (CEC, 1994a), making more use ofbroader framework legislation which wouldlay down basic principles and essential rules,leaving the member states discretion in rela-tion to the detailed implementation of direc-tives (CEC, 1992a,b).

The key points relating to subsidiarity con-tained in the Protocol annexed to the Treatyof Amsterdam are

� all Community institutions must ensurethe principle of subsidiarity is compliedwith,

� Article 5 shall relate only to those parts ofthe Treaty where the Community does nothave exclusive competence,

� subsidiarity is a dynamic concept, whichneeds to be interpreted in the light of theobjectives set out in the Treaties or anysubsequent amendments and

� there should be a requirement that for anyproposed Community legislation the rea-sons for it and its compliance with sub-sidiarity and proportionality must be madeexplicit. This means that the Communitymust show that the objectives of the actioncannot be sufficiently met by the actions ofthe member states themselves and there-fore can be better met by action on behalfof the Community. In fulfilling these ob-jectives the following guidelines are

2 The institutions of the EU are those bodies established todevelop and maintain the European Community. They includea European Parliament, a Council, a Commission, a Court ofJustice and a Court of Auditors. An Economic and SocialCouncil and a Committee of the Regions assist these bodies, inan advisory capacity.


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suggested: does the issue have a transna-tional dimension, which cannot be regu-lated by member states alone; does theaction of member states alone or would thelack of community action conflict withother requirements of the Treaty andwould action at the Community level bringclear benefits,

� the Commission shall submit an annualreport to the European Council and Parlia-ment on the application of subsidiarity andproportionality.

In essence, the principle of subsidiarity en-shrined in EU law is concerned with whetheror not the Community should act. If the Com-munity institutions are satisfied of the needfor action, then a second test is required. Thisis the proportionality principle, which consid-ers whether the intensity of any proposedaction is really justified.

THE PROPORTIONALITY PRINCIPLE

Proportionality is a long-standing principle inEuropean law, which ensures a proportionaterelationship between the means and the endsin legislative measures (Lasok and Bridge,1994). Put very simply and succinctly, propor-tionality means ‘don’t use a sledgehammer tocrack a nut if a nutcracker will do’. Within thecontext of European Community law the prin-ciple was used much earlier and with muchgreater frequency than subsidiarity. Indeedthe first application of the principle was in adispute under the original Coal and SteelCommunity Treaty dating back to 1955 (Case8/55 Fedechar v High Authority (1954–1956)).More recently the principle has been closelyallied to subsidiarity with an explicit referenceto the proportionality principle in Article 5 ofthe TEC, which states

Any action by the Community shall notgo beyond what is necessary to achievethe objectives of this Treaty.

Once the legitimacy of community action isdetermined by applying the subsidiarity prin-ciple, proportionality is then applied to test

the intensity of the action. Proportionality canassist in determining the scope of the legisla-tion, avoiding excessive detail and limitingthe intrusiveness of actions. The Commissionannounced to the Edinburgh Council that itsposition regarding proportionality would beto ‘. . . as far as possible favour frameworklegislation, minimum norms and mutualrecognition and more generally [seek to]avoid detailed and legislative prescriptions’(CEC, 1992a, p. 2). The Edinburgh Council(CEC, 1992b) also agreed a set of principlesregarding the application of the principle ofproportionality, which were transposed intothe protocol attached to the Treaty of Amster-dam. The key components of the protocol are

� any burdens whether administrative or fi-nancial should be minimized and be pro-portionate to the objective to be achieved,

� the Community action should be as simpleas possible, which usually implies direc-tives as the most appropriate legislativetool where there is a choice, and discretionand flexibility for the member states in themethod of implementation,

� preference should be given to encouragingco-operation between member states, co-ordinating national action or complement-ing, supplementing or supporting suchaction,

� consideration should be given to voluntarycodes,

� Community measures should leave asmuch scope as possible for national legisla-tion, and respect well established nationalarrangements and member states’ legalsystems,

� member states should be free to set higherstandards when Community minimumstandards are set and

� where difficulties are localized and onlycertain member states are affected, anynecessary Community action should notextend to other member states unless thisis necessary to achieve the objectives of theTreaty.

Thus the two principles of subsidiarity andproportionality place on the institutions of theEuropean Union the need to provide both a


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carefully reasoned explanation of the needfor Community action and also justificationthat the type of action proposed is appropri-ate. In the next part of the paper we con-sider the arguments put forward to justifytwo pieces of environmental legislation thathave, or potentially have, significant impactsfor planning practice. Our discussion isbased on an analysis of the reasoned justifi-cation for the legislation. There are three keytests to be applied. First, does the Commis-sion have a legitimate competence to pro-pose new legislation in this field? Second,do the proposals meet the requirements ofsubsidiarity? Finally, can the intensity of theproposed action be justified?

THE LEGISLATIVE COMPETENCEFOR ACTION

The original EIA Directive was a long timein gestation, with some governments, nota-bly the UK and Denmark, blocking earlierproposals primarily because of concerns re-garding the potential undermining of sover-eign powers (Wood, 1995). Eventually suchreservations were overcome and Directive85/337/EEC was adopted in 1985 (CEC,1985), predating the Single European Act,and thus well before environment was ex-pressed as a Community objective in theTreaty. Justification for this action camefrom the general provisions of the TEC. Ar-ticles 94 (ex Article 100) and Article 308 (exArticle 235) both provide the Commissionwith the authority to bring forward legisla-tive proposals in those areas of policy whereit does not have any clear competence toact, but where the action would help to es-tablish, improve or promote the functioningof the Common Market. Tillotson (1996)notes how these general provisions havebeen used extensively to account for a widerange of Community actions, with Article308 being the main source justifying envi-ronmental action prior to the Single Eu-ropean Act (SEA). By the time the amendingEIA Directive 97/11/EC was approved thescope for action in the environmental field

was very different. The TEU established thebroad policy principle of European activity,which ensured ‘sustainable non inflationarygrowth respecting the environment’ (Article2, TEU, 1997). The proposal to amend theoriginal EIA Directive (CEC, 1994b), usedArticle 174 (Article 130r) of the TEC as thelegal basis for its action. Article 130r pro-vided that

1. Community policy on the environmentshall contribute to the pursuit of the fol-lowing objectives:

(i) preserving, protecting and improvingthe quality of the environment;

(ii) protecting human health;(iii) prudent and rational utilisation of

natural resources. . .2. Community policy on the environment

shall aim at a high level of protectiontaking into account the diversity of situa-tions in the various regions of the Commu-nity. It shall be based on the precautionaryprinciple and on the principles that pre-ventative action should as a priority betaken, that environmental damage shouldbe rectified at source and that the pollutershould pay. Environmental protection re-quirements must be integrated into thedefinition and implementation of otherCommunity policies.

The Commission argued not only that EIAhad an important role in the functioning ofthe internal market (the original justificationfor action), but that it must be seen as a basicinstrument of environmental policy, provid-ing competent authorities with the necessaryenvironmental information needed to reachinformed decisions as to the likely conse-quences of major projects (CEC, 1994b). Inaddition, action was justified on the groundsthat there was evidence that the original Di-rective had not been applied in a sufficientlyco-ordinated manner throughout the Com-munity. Article 11(4) of Directive 85/337/EECrequired research evaluating the efficiencyand effectiveness of the implementation of theoriginal directive, and this was used as sup-port for an amending Directive (CEC, 1993).


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Article 175 (ex Article 130s) provides de-tails of the procedures to be followed beforethe proposed legislation can be approved. Inessence there is a requirement that the Com-mission must consult on its proposal withthe European Parliament and the Economicand Social Committee (ECOSOC). Both con-curred with the legislative competence foraction and indeed the Parliament suggestedthe reference to the European Union’s FifthEnvironmental Action Programme, whilstnot having any legal standing, wouldstrengthen the justification for action, a viewendorsed by the European Council (CEC,1996a).

For the proposed Council Directive on theAssessment of the Effects of Certain Plansand Programmes on the Environment, thelegal justification was also Article 174. Therationale for bringing a proposal forward inthe first place was threefold. First, the Com-mission’s report on the effectiveness of theoriginal EIA Directive acknowledged thatproject level assessment took place too latein the decision-making process to address allthe significant issues (CEC, 1993). Second,the Community and each member state hadsigned the Espoo Convention, which wasconcerned with the transboundary nature ofpollution. This international convention ac-knowledged the need for environmental as-sessment above the project level. Third,given the common EU goal of achieving sus-tainable development, the EU’s Fifth Envi-ronmental Action Programme argued thatthere was a need to evaluate the environ-mental implications of all relevant plans,policies and programmes. Such argumentswere put forward in a draft proposal to theCouncil in 1996 (CEC, 1996b), and weresubsequently the subject of consultationby the European Parliament, ECOSOCand the Committee of the Regions. Therewas no dispute over the legal basis for ac-tion, though the Parliament suggested some30 amendments of substance to the Direc-tive. Some of these have been incorporatedinto a revised proposal brought forward bythe Commission in February 1999 (CEC,1999).

In both cases the legal basis for actiondoes not appear to be a matter of dispute.Nevertheless, what both case studies serveto illustrate is the long and protracted pro-cess of getting Community legislationadopted. In the case of the EIA Directive itwas over three years between the originalproposal to amend Directive 85/337/EEC andfinal Council approval and a further twoyears before it had to be fully implementedin each of the member states. With the SEADirective a firm proposal did not emergeuntil early 1999, and it is still difficult toanticipate when final approval might be re-ceived. But how did the legislation complywith the principle of subsidiarity?

MEETING SUBSIDIARITYREQUIREMENTS

Although each proposal refers to subsidiar-ity, there is surprisingly little explicit discus-sion of the principle to be found in theproposal’s Explanatory Memorandum, gen-eral commentary on the proposal or theOpinions of the Committee for the Regions,ECOSOC or the European Parliament.However, a closer reading of such docu-ments suggests that four types of argumentcan be found justifying how each Commu-nity action satisfies the subsidiarity princi-ple.

1. Decisions should be made as close to thecitizen as possible. This criterion isderived from the TEU. Whilst formallyhaving no legal status or standing it is aprinciple that is frequently invoked tojustify the nature of the legislation. Inboth cases the nature of the instrument,namely a directive, ensured, or will en-sure, that this rule is complied with.This was on two grounds. First, the di-rectives, as secondary legislation,provide a broad framework for action,but the precise details of implementa-tion are left to the member states3. Thusthe proposal for the SEA Directive states


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Whereas, having regard to the princi-ple of subsidiarity and in order to en-sure the requisite uniformity andtransparency, it is appropriate that thisDirective sets out the broad principlesof the environmental assessment sys-tem, leaving the procedural details tothe Member States (CEC, 1996b, 1999)

Second, with the existing EIA and pro-posed SEA directives the actual decision-making power is left unaltered. Thecompetence for decision-making stillresides with the competent or responsibleauthority. All that is changed is the needfor environmental matters to be consid-ered more explicitly in the decision-mak-ing procedures. Thus in its Opinion onthe Proposed SEA Directive ECOSOCnoted ‘. . . the power of assessment aswell as the final decision remain the ex-clusive competence of the responsible au-thority, in keeping with subsidiarity’(ECOSOC, 1997, Section 2.12).

2. Sufficiency. The sufficiency argument isbased on the TEC and the idea that Com-munity action is necessary because the‘objectives of the proposed action cannotbe sufficiently achieved by the memberstates. . . by reason of the scale or effects’.Within this subheading a number of dif-ferent arguments are put forward to jus-tify the action. The transboundaryexternalities of environmental problemsare an important perspective. The re-search into the original EIA directivehighlighted the lack of consultation forlarge-scale projects in border areas wheresignificant impacts might be experiencedacross a national frontier. Thus, actionwas needed to ensure that consistent andsystematic transnational consultation was

practiced throughout the EU. In addition,there was a need for action to ensure thatthe EU as a body, and the individualmember states themselves, complied withinternational obligations. In 1991 the EUand all the individual member states hadsigned the Espoo Convention. This,amongst other things, required decision-makers to take due cognizance of theviews of institutions, organizations andgroups outside the country where theproject is proposed that may suffer ad-verse environmental effects. Furthermore,considerable variations in practice alsomeant that the general object of the EIADirective of 1985, to afford common envi-ronmental protection across the commu-nity, could not be met. Therefore therewas a need to promote a more harmo-nized approach, thereby avoiding poten-tial distortions in the market place. Thiswas a view shared by the Commission(CEC, 1994b) and ECOSOC (1994). Fi-nally, one of the key arguments for theproposed SEA Directive was the need foragreed minimum standards and proce-dures to ensure a high level of protectionfor the environment, which the memberstates would not or could not meet alone.

3. Benefit. The benefit argument is alsoderived from the TEC and is based on thenotion that effective action can be betterachieved at the level of the Communityrather than the member states operatingin an ad hoc individual manner. Severalarguments are pursued. The modifica-tions introduced in the amended EIADirective should introduce much greaterclarity and efficiency into decision-making. There should also be muchgreater understanding of the projectsthat require an environmental assess-ment; the competent authority and theproject proponent should agree as tothe types of information required; accessto information should be easier anddecision-making should be made moretransparent. In the case of the SEADirective, it was argued that the effectsof incomplete coverage are transna-tional, and thereby prevent a minimum

3 Within federal systems the competence to act may not lie atthe level of the state, but a subnational levels of government.Within Germany for example environmental issues are a Land(state) rather than a federal responsibility. Therefore it is theLand, not the federal government, that must transpose thisEuropean legislation into their own laws. Because the treatiesforming the European Community define the relationship be-tween the European Institutions, and the member states, it isincumbent on each member state to ensure that European lawis properly transposed into a national context even though thespecific competence might not rest at that jurisdictional level.


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level of environmental protection. There-fore intervention is necessary at the EUlevel to counteract this problem, whichwould inevitably benefit the Commu-nity as a whole. Improved integration co-ordination and the harmonization of envi-ronmental policies, processes andprocedures would thus help to protect theenvironment and at the same time reduceany real or perceived distortions in themarket place.

4. Deficiencies in existing Community legisla-tion. Deficiencies in existing Communitylegislation were used as a justification fornew proposals in relation to both pro-posed directives. In the original EIA Direc-tive (337/85/EC) Article 11 requiredresearch to review the effective implemen-tation of the directive five years after itwas transposed into national law. The re-sults indicated that many of the originalobjectives of the directive were not beingsatisfied and there were considerable vari-ations in practice (CEC, 1993). For exam-ple, it was considered that restricting EIAto major project proposals resulted in theassessment occurring too late in the deci-sion-making cycle. There was a need toconsider environmental effects more com-prehensively and holistically through anenvironmental appraisal of plans, policiesand programmes. Hence a new SEA Direc-tive was proposed. Similarly in amendingthe EIA Directive Recital 4, which acts as apreamble to the directive itself, arguedthat ‘It is necessary to introduce provisionsdesigned to clarify, supplement and im-prove the roles on the assessment proce-dures, in order to ensure that the Directiveis applied in an increasingly harmonizedand efficient manner’ (CEC, 1997, Recital4).

Thus with both proposals there are severalarguments used by the Community institu-tions to justify the need for action. The first ofthe two subsidiarity principles can thereforebe said to have been satisfied, and indeedthere seems to be a degree of consensusamong the Community institutions regardingthe need for action. The second principle,

proportionality, considers the intensity of theaction.

MEETING PROPORTIONALITYREQUIREMENTS

In arguing that the intensity of the legislativeintervention does not go beyond that which isrequired to meet the objectives of both pro-posed directives, five general arguments havebeen put forward. These are drawn from theProtocol, the findings of the European Courtof Justice and long-standing general princi-ples. It is here that there seem to be moredisagreements because the intensity of theaction might have implications that are dis-proportionate on governments and a range ofother organizations. This was certainly thecase with the proposed SEA Directive.

1. Proportionality. The specific proportionalityargument focuses on whether any disad-vantages imposed by the intervention areexcessive in relation to the perceived ad-vantages. This is an argument voiced bythe UK government in its concerns regard-ing the proposed SEA Directive. Becausestrategic environmental assessment is stilla relatively new discipline and practice israpidly evolving, it can be argued that it ispremature to codify practice. To do somight impose an inflexible and ultimatelyineffective regime on member states. Thelegal interpretation of the directive mayalso create many interpretation problems,for example with the precise meaning ofthe term ‘town and country planning’,which could impose huge burdens on themember states and responsible authorities,which may be disproportionate to anybenefits gained.

2. Necessity. The necessity argument suggeststhat the action is required to achieve theobjectives of the Community. From thepoint of view of the EIA Directive threearguments can be put forward for satisfy-ing this criteria. First the TEC provides thelegislative competence to require the EU toafford the environment a high degree ofprotection. Achieving consistent environ-mental assessment procedures between


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member states is necessary because theywould help to protect the environment forsociety in general. In addition it is arguedthat there was need for greater clarity andconsistency of approach between memberstates, thereby avoiding any potential dis-tortions in the market. Finally there is aneed to ensure that all the member statesadequately address global or internationalagreements in a co-ordinated manner. Inaddition, with the proposed SEA Direc-tive, the Commission maintains that a non-binding recommendation, i.e. anythingless than a directive, would be insufficientto correct the identified deficiencies of in-complete coverage of assessment proce-dures and inconsistent environmentalstandards (CEC, 1996b). Therefore com-munity action of this sort is necessary.

3. Suitability. The suitability debate is con-cerned with evaluating whether the pro-posals are both appropriate and effectivemechanisms for achieving their legitimateaims. Are the least onerous means beingadopted? It is the nature of the action thatis critical here. Because both proposalscome in the form of directives, it is arguedthat the EU provides a framework withinwhich the member states have discretionto implement the detail.

4. Fairness. The fairness argument is con-cerned with the burden imposed on indi-viduals or organizations in ensuring thatthe details of the directive are met. Withthe amendments to the EIA Directive theCommission originally argued that thenew proposal would not alter the actualscope of the obligations enshrined in theoriginal directive. The European Parlia-ment dissented from this view. New pro-cedures and extended lists of projectsinevitably impose additional requirementsupon both competent authorities and pro-ject proponents. However the cost implica-tions were marginal vis a vis overall projectcosts and the potential benefits of protect-ing a general societal value, namely theenvironment. Thus the advantages far out-weighed any additional burdens. Further-more, because the Directive applies

minimum standards across the EU, its ap-plication is in effect neutral.

5. Variation. Finally, the variation argumentsuggests that any proposed action shouldnot prevent higher standards being im-posed by individual member states. This isan interesting, complex and paradoxicalargument. With the proposed SEA Direc-tive, variation is reflected in the Commu-nity’s assertion that the proposal is onlyintended to set minimum standards of en-vironmental protection and that, as thedetailed arrangements for implementingthe directive are the responsibility of themember states, there is scope for individ-ual member states to impose higher stan-dards if they wish. However, it was thevariation of approach that was then usedin the EIA Directive to justify modifica-tions to the procedures to try and ensuregreater harmonization. Five years after thenew EIA Directive has been fully imple-mented (Spring 1999) a further evaluationstudy into the effectiveness of the modifi-cations to achieve their desired ends isrequired. Despite increased harmonizationin procedures the nature of the instrument,namely a directive, still leaves consider-able discretion at the level of the memberstate and this may be used to argue for afurther harmonization at some stage in thefuture, though amending the directivewould clearly be a long drawn out andslow process.

CONCLUSIONS

From this analysis it is clear that EuropeanCommunity legislative proposals are sub-jected to considerable scrutiny by most of theEU institutions. This means that the legisla-tive process is often long, slow and tortuous,with initial proposals taking many years be-fore the Council finally approves them. Fur-thermore this evaluation requires that threetests are satisfied. Does the Community havethe legal competence to act? Does the pro-posal satisfy the subsidiarity principle interms of justifying the need for action? Doesthe proposal satisfy the proportionality princi-ple in terms of arguing that the intensity of


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the action is appropriate? Underpinning theserequirements is a complex set of arguments ordecision rules that need to be satisfied beforethe legislation can be approved. Unless thereis unanimous agreement amongst all the insti-tutions that these rules are satisfied then legis-lation can be blocked or delayed. Clearly theapplication of the principles of subsidiarityand proportionality in practice require muchcareful consideration.

ACKNOWLEDGEMENTS

The research for this paper was carried out as part of aDepartment of the Environment Transport and the Re-gions Research Contract (No. 17225) entitled ‘Subsidiarity and proportionality in the spatial planning activitiesof the European Union’. The authors are grateful to theDETR for permission to publish work resulting fromthis contract. The views and opinions expressed in thispaper are those of the authors themselves and certainlydo not reflect the views of the DETR.

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The application of subsidiarity in the making of European environmental law

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