The ‘environmental guarantee’ is a popular term for a provision of the EC Treaty which, in certain circumstances, allows Member States to maintain their national rules although EU requirements for internal market harmonisation are in place. Under that provision, it is also possible for a Member State to introduce new national rules based on new scientific evidence on environmental protection or the protection of the working environment in the context of a problem which is specific to the Member State in question.
Article 95 contains the legal basis for the harmonisation of national legislation to ensure the functioning of the internal market. In addition, Article 95(4) contains an exemption under which a country may maintain special national rules relating to the environment, the working environment, health, etc., and Article 95(5) allows a country to introduce national rules under certain conditions.
When a Member State has informed the Commission that it wants to maintain national rules in an area or to introduce new rules, the Commission has six months to approve or reject the national provisions in question following an investigation to determine whether the rules are a means of arbitrary discrimination or a covert restriction of trade between EU countries and whether the rules constitute an impediment to the functioning of the internal market.
If the Commission has not taken a decision within the period of six months, the national provisions are deemed to be approved. The Commission may also inform the Member State in question that the period of investigation is extended by a period of up to six months if the question is complicated or there is no risk to human health.
If, on the basis of an environmental derogation, a Member State is given leave to maintain or introduce national provisions which depart from certain harmonisation requirements, the Commission immediately investigates the matter to decide whether it should propose an adjustment to the EU rules.
The scope of the environmental derogation has been the subject of discussion between EU opponents and supporters. The criteria for the application of the environmental derogation are laid down by Commission practice and the case law of the Court of Justice. An example of the debate on the scope of the environmental derogation is provided by the so-called food additives case (see below).
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4. If, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them. Major needs according to Article 30: grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. |
| Denmark has sought to apply the environmental derogation in order to maintain current Danish rules on the use of nitrites, nitrates and sulphites as food additives instead of introducing the EU provisions contained in European Parliament and Council Directive No 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners (miscellaneous additives Directive). During the discussion of the Directive, Denmark drew attention to health problems arising from extending the use of nitrites, nitrates and sulphites, which the proposal called for, but the Directive was adopted nevertheless. The Danish Government then decided to apply the environmental derogation and to maintain the existing Danish provisions on the three substances, except in those areas in which the Directive had more restrictive provisions. In October 1999, the Commission informed the Danish Government that the Commission would not accept Denmark’s use of the environmental derogation in this case. Denmark therefore introduced the less stringent EU rules on nitrates, nitrites and sulphites. The Danish Government subsequently brought an action against the Commission in the EC Court of Justice seeking annulment of the Commission Decision because it had been taken on incorrect grounds. According to the Judgment of the Court of Justice of 20 March 2003, Denmark was allowed to maintain the stricter rules on the quantity of nitrite and nitrate in foods, but the judgment did not uphold Denmark’s position regarding the requirements for sulphites. The judgment was therefore in many instances interpreted as half a victory for Denmark and half a defeat. On the other hand, the June Movement observed that the Judgment should not be interpreted as a victory for the environmental derogation, which should guarantee the right of individual countries to apply stricter rules. The June Movement pointed out that the Court of Justice supported its judgment concerning nitrites and nitrates by referring to the fact that the EU’s Scientific Committee for Food (SCF) had recommended that the EU should tighten up its rules on the matter. Conversely, the Scientific Committee had not recommended stricter rules on sulphites. (The June Movement may be briefly described as a cross-party movement grouping both supporters and opponents of original EC membership, but all are agreed that the development of the Community into a superstate is neither in Denmark’s nor in Europe’s interest.) |