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Free Movement of Goods and the Room for Member State Action
To what extent does EU law allow individual Member States to take measures of their own in the field of environmental policy? This question may arise for two general reasons: either because the EU has not taken regulatory action in relation to a specific problem, or because a Member State deems the EU action insufficient to address its particular situation or to achieve the level of protection for which it aims. The room for individual Member States to take measures in areas subject to EU secondary law is dealt with in Chapter 4. But already here it may be noted that the choice of legal basis for the secondary law acts in question is decisive for what room remains for action by individual Member States. When such specific EU legislation exists, any acts taken by Member States will primarily be assessed against that legislation rather than against the provisions of the Treaties. As the EU regulates ever more policy areas it is a reasonable assumption that the significance of the Treaties in defining the leeway for individual Member States gets ever smaller. But two factors maintain the significance of the Treaties in this context. One is that specific issues which a Member State wishes to regulate may in fact fall outside the purview of existing secondary law even when they at first glance appear to be covered by it. It is not sufficient to conclude that a particular policy area is regulated by secondary EU law; one must also ascertain whether the specific issue, within that policy area, which a Member State wishes to regulate is actually dealt with by the pertinent EU legislation. This is further discussed in section 4.5.
The second important factor is that EU legal acts that have environmental protection as their legal basis allow, on certain conditions, the Member States to take more protective action at the domestic level. However, such measures must always be compatible with the general requirements of the Treaties (see section 4.2.3). So once a national measure has passed the test of compatibility with EU secondary law, it needs also to be assessed against the Treaties.
The legal issue that most often arises when a Member State intends to take environmental protection measures within an area that has not (yet) been regulated by the EU, or where existing secondary law allows for more protective national measures, is whether such measures could restrict the free movement of goods within the Union. For obvious reasons this only becomes relevant when an environmental
EU Environmental Law and Policy. David Langlet and Said Mahmoudi. © David Langlet and Said Mahmoudi 2016. Published 2016 by Oxford University Press.
measure is in some way product- or market-related and can be expected to affect the functioning of the internal market. For this reason, pure nature-protection measures may not be affected by this discussion. However, surprisingly many types of measures, as well as omissions, are deemed to have an effect on the internal market.
While the Treaty provisions on the free movement of goods are what most frequently affect measures taken or contemplated by Member States in order to protect human health or the environment, such measures may in some cases also conflict with other Treaty rules. The EU regimes on state aid and competition are two such areas. However, they will, for reasons of space, not be addressed here.  Another pertinent area, environmental taxes, is briefly discussed towards the end of this chapter.
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