Challenging a Commission refusal to allow the introduction of more stringent national measures

Doherty, Michael (2004) Challenging a Commission refusal to allow the introduction of more stringent national measures. Environmental Law Review, 6. pp. 120-126. ISSN 1461-4529

Abstract

The introduction of qualified majority voting in the EC Treaty raised the possibility of some uncomfortable restrictions on Member States’ national environmental policies. The fact that legislation passed under Article 175 EC has a dominant aim of protecting and improving the environment means that it is consistent to allow Member States the possibility of introducing or maintaining more stringent national environmental measures, subject to supervision by the Commission. For legislation produced under Article 95 EC the position is somewhat different. The principal aim of such legislation is the harmonisation of divergent national laws and practices to promote the functioning of the internal market. To allow divergent national legislation would seem to undermine the rationale for harmonisation. To insist on absolute harmonisation under conditions of qualified majority voting, on the other hand, may result in a harmonised standard below that of a Member State or, in a Member State being unable to respond to an environmental problem, demanding a higher standard than the harmonised level. Article 95(4) and (5) EC represent the compromise between these competing concerns. This was the first case in which the Court was called upon to interpret and apply Article 95(5) EC.