Decision-making under Article 192

To be exact, the legal basis for adoption of environmental measures is Article 192, since that is the article defining how and by whom such measures may be adopted. But since Articles 191 and 193 define the content and effects of legal measures adopted based on Article 192, they too are discussed here.

Article 191 sets out the objectives of the EU policy on the environment, principles on which the policy shall be based, and factors that are to be taken account of. It also includes provisions on cooperation with third countries and with international organisations in the field of environmental protection. Article 193 provides for the right of individual Member States to maintain or adopt more stringent protective measures, as long as they are consistent with the Treaties.

According to Article 192 (1),

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.

In fact, based on this paragraph, they not only ‘decide what action is to be taken’ but also take action by adopting legal measures. The ordinary legislative procedure was discussed in section 1.7. The objectives referred to are those to the pursuit of which Union policy on the environment shall contribute, namely

• • preserving, protecting and improving the quality of the environment;
• • protecting human health;

• • prudent and rational utilisation of natural resources;
• • promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

These have been discussed rather extensively in section 2.3 and will not be further commented upon here. The same goes for the fact that EU environmental policy shall aim at a high level of protection and shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source, and that the polluter should pay. On these principles, including their implications for the drafting and implementation of environmental policy measures, see section 2.4.

The application of the ordinary legislative procedure is subject to some exceptions. On some matters the Council still makes decisions by unanimity and after merely consulting the EP. These matters, which are listed in Article 192 (2), are:

• (a) provisions primarily of a fiscal nature;
• (b) measures affecting:
  • — town and country planning,
  • — quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,
  • — land use, with the exception of waste management;
• (c) measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply.

The ordinary legislative procedure can be made to apply also to these matters, but such a decision also requires unanimity in the Council. Taxes, town and country planning, the use of land and water, and the choice between different energy sources are matters that are seen by many to come close to the core of national sovereignty. It is therefore unlikely that they will become subject to the ordinary legislative procedure within the foreseeable future.^[1] However, many measures adopted according to that procedure under Article 192(1) do have a more or less significant impact on, inter alia, land use or the choice between different energy sources.^[2]

According to Article 192(3), general action programmes setting out priority objectives to be attained are to be adopted by the EP and the Council, acting in accordance with the ordinary legislative procedure. The contents and significance of these programmes were discussed in section 2.2.

• [1] During the negotiations of the Nice Treaty the Commission and some Member States tried, without success, to make the measures covered by Art 192(2) subject to majority decision-making.
• [2] On the particular difficulties of drawing the line between environmental policy and land use, seeN de Sadeleer EU Environmental Law and the Internal Market (Oxford University Press, 2014) 154.