Cooperation is an essential tool to answer the several challenges presented in the field of the environment. As environmental problems ignore political boundaries, they can be adequately addressed only through cooperation between states. For this reason, the duty to cooperate in environmental matters is particularly developed in the context of EU (administrative) law. This was the topic of my chapter to the volume on Administrative Cooperation in the European Space.

In this context, the focus of analysis was on the administrative cooperation between Member States of the EU and with the European institutions. The chapter starts by addressing the institutional framework of administrative cooperation in EU environmental law. After that, a typology of the different types of cooperation in EU environmental law, with several examples, is proposed. The chapter shows that the EU legal order contains several types of cooperation mechanisms, allowing for the development of different relations (consultation, consent, coordination).

The institutional framework

Cooperation may sometime be envisaged through the institutional framework. This can be the case of the creation of bodies or committees with representatives both of the Member State’s administrations and of the Commission, in particular its Directorate-General for Environment (DG ENVI). Networks are another example of cooperation through institutional design. In the field of the environment, one example is the European environment information and observation network (Eionet), which is a partnership network of the European Environment Agency (EEA) and its 38 member and cooperating countries. The European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) is another example.

The different types of cooperation in EU environmental law

Drawing a typology of administrative cooperation in the field of EU environmental law is not easy. The different types of cooperation duties and their quantity and complex nature are partly responsible for this difficulty. Despite these difficulties, a taxonomy of the different types of cooperation duties is possible.

I. Consultation and participation in national decision-making procedures 

A mechanism of administrative transboundary cooperation in the field of environmental law is the establishment, in national decision-making procedures, of a stage of interstate consultation. The main example of this is the consultation stage of the environmental impact assessment (EIA) procedure in a transboundary context, which is regulated by Article 7 of the EIA Directive, when the project in question is likely to have significant effects on the environment in another Member State.

Similar procedures of notice and consultation are established in Article 7 of the Strategic Environmental Assessment (SEA) Directive, when the implementation of a plan or programme being prepared is likely to have significant effects on the environment in another Member State, Article 14(3) of the Seveso Directive, and in Article 26 of the Industrial Emissions Directive.

In all these cases, the EU law establishes the need for the national decision-making procedure, that includes a horizontal consultation stage of potentially affected Member States. They (and their citizens) should be informed and have the power to issue opinions that must be taken into consideration by the Member State conducting the procedure. Thus, the national final decision must (also) be reasoned in the light of the results of the cross-border consultation.

II. Prior consent 

In some cases, notification and consultation of neighbouring states are not considered sufficient, and prior informed consent is required. In these cases, national decision-making procedures not only have a stage where other States or the Commission participate but also specify the need of a prior positive position by the other party before reaching the final decision. These cases are not common but may arise when the procedure impacts the sovereignty of other states or deals with shared resources.

Examples can be found in treaties dealing with trade in toxic or hazardous substances or wastes such as the Basel Convention, implemented in the EU through a regulation, which establish the need of explicit prior consent of all potentially affected states.

There are also cases where a prior positive opinion of the Commission is required before the national administration can adopt an act. One example can be found in Article 6(4) of the Habitats Directive. If a Member State wishes to greenlight a plan or project which has had a negative appropriate assessment of its implications for a site which hosts a priority natural habitat type and/or a priority species, in some cases, it can only invoke imperative reasons of overriding public interest, after receiving the Commission’s opinion on the matter. This opinion is, in substance, binding on the Member States – without it they cannot carry out the action in question.

III.       Coordination of national decision-making

A different type of cooperation mechanism is the establishment of duties of coordination of national decision-making procedures and action. In this case, national decision-making procedures must take into consideration the acts and positions of the other Member States involved. When several Member States are implementing the same set of EU law obligations, this may lead to joint action. The objective of this coordination is to ensure coherence of action and effective implementation of EU law.

This is especially relevant in cases of management of shared resources or ecosystems. A good example of this are the duties to cooperate in international river basin districts provided by the Water Framework Directive. Besides the cases of shared resources, EU law also establishes a duty of cooperation in cases where environmental damages affect or are likely to affect several Member States, with a view to ensuring proper and effective preventive or remedial action (Article 15(1) of the Environmental Liability Directive).

The need for coordination may also lead to duties to give effect to decisions taken by other Member States. An example can be found in the EU implementation regime of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This regime provides a framework for Member State administrative decisions with transnational effect: permits and certificates issued by the competent authorities of the Member States are valid throughout the EU.

There are also cases where the Commission is empowered to issue generic guidelines to ensure harmonisation and uniform application by the Member States’ administrations. An example of this can be found in the Industrial Emissions Directive, concerning the adoption of reference documents on best available techniques (BAT).

IV.       Composite decision-making procedures

There are cases when the EU legislator requires such a high level of cooperation between administrations that it establishes a decision-making procedure, with stages at both the national and Union level, where the final decision may be taken by either one of these administrations – a composite decision-making procedure.

An example of a composite procedure is the designation of Natura 2000 sites called Special Areas of Conservation (SAC), under the Habitats Directive. The complexity of these procedures leads to possible problems of judicial protection, namely because the decision to designate a site has consequences for the owners of the land.

Exchange of information and duties of notification

The cooperative exchange of information between Member States and EU may take the form of a particular step in the decision-making process, an independent duty to inform, or may be institutionalised as a network for information exchange, allowing for a more dynamic exchange.

One example can be found in Article 27 of the Ambient Air Quality Directive, which establishes that Member States must provide information on ambient air quality to the Commission.

To ensure the effective collection, exchange and use of environmental data and information across Europe, the ‘Shared Environmental Information System’ (SEIS) was established. It is a collaborative initiative of the European Commission together with the EEA and the 39 countries of the Eionet.

The exchange of information duties may lead to the creation of databases. One example is the Major Accident Reporting System (eMARS) database, established in the Seveso Directive, that contains the reports of Member States of major accidents which have occurred within their territory.

The EU law framework provides for several examples of duties to notify neighbouring Member States and/or the Commission in case of any natural disasters, industrial accidents or other emergencies that are likely to produce transboundary effects

Conclusions

It is no surprise that, given the global scope of the environmental problems, cooperation plays a central role in EU environmental law.

Several cooperation mechanisms or instruments emerge. Some of them are institutional in nature – such as the establishment of joint bodies, or formal or informal networks. These fora serve multiple purposes, that range from the sharing of lessons learned or solutions to common problems to the guarantee of harmonisation of the interpretation and implementation of EU law.

Besides, we can also find procedural mechanisms of cooperation. There are general duties of cooperation, such as the exchanging of information or the establishment of composite decision-making procedures. However, some specificities emerge in environmental policy. These are related, on the one hand to the potentially transboundary nature of potential environmental damages – in a logic of prevention, mitigation and remediation of their effects. In cases where a national decision involving potential threats to the environment has a direct impact on the territory of another state, such as in the case of the trade in waste, the law may establish the need to obtain prior informed consent of the other state, equivalent to a veto power, because of the principle of sovereignty.

On the other hand, as nature knows no borders, EU environmental law needs to deal with questions of management of shared resources – a watercourse, a biodiversity relevant site or the atmosphere, for instance. This is the explanation for several of the coordination duties discussed, in air, water or biodiversity law.

This framework is, however, somewhat problematic. There is a multitude of mechanisms of cooperation, with different solutions being used, but the reason justifying each case is not clear. Sometimes a national decision-making procedure with a stage for consultation of neighbouring Member States (e.g., the EIA procedure), in other cases a duty to coordinate national decision-making procedures to reach a single conclusion (e.g., a single international river basin management plan), or to coordinate national decisions with EU-wide parameters (e.g., the BAT conclusions), or a composite decision-making procedure (SAC designation). In some cases, the procedure applicable for cooperation is regulated (e.g., the EIA procedure) and in other cases it is not (as in the Environmental Liability Directive). The role played by the Commission also varies significantly. This lack of clarity is problematic because it makes it difficult to anticipate the solutions adopted and the rationale behind them. It is also problematic because it leads to different levels of efficiency of enforcement (clear rules are easier to follow and to control than to have a generic duty to cooperate). Finally, this wide range of mechanisms also lead to very different degrees of access to justice to control the different types of activities.

In any case, it may be concluded that environmental policy is an area of great cooperation – both vertical and horizontal – that can serve as a laboratory to experiment cooperation mechanisms to be exported to other policy areas.

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Posted by Rui Tavares Lanceiro (Professor Auxiliar da Faculdade de Direito da Universidade de Lisboa)