Legislation note: The Environmental implications of the Lisbon Treaty


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Keywords: Lisbon Treaty, environmental regulation, environmental policy, energy policy, public participation in decision-making, access to justice, subsidiarity

The Lisbon Treaty is supposed to mark the end of the confusion brought about by failure to ratify the Treaty Establishing a Constitution for Europe,1 which came to a sorry end following negative referenda in France and the Netherlands. The Lisbon Treaty, billed deliberately disarmingly as a Treaty 'amending the Treaty on European Union and the Treaty establishing the European Community', was signed on 13 December 2007.2 Like the Constitution before it, whilst the Lisbon Treaty does not have a prominently 'green' agenda, it raises a number of important issues that have preoccupied environmental lawyers for some time.

Whether the Lisbon Treaty will survive the negative referendum in Ireland is still to be seen at the time of publication, but in any event its contents give us a snapshot of the current priorities of the EU's political leaders. If it is successfully ratified, the Lisbon Treaty will introduce a range of amendments to the existing European Union and European Communities treaties. The amendments include a renaming - the Treaty on European Union (TEU) survives, the EC Treaty becomes 'Treaty on the Functioning of the European Union' (TFEU).3 The TEU sets out general principles and institutional arrange¬ments, as well as provisions on external action, common foreign and security policy and common security and defence policy. The TFEU includes some more general principles, but primarily provisions on the procedures and specific competences of the Union. As under the defunct Constitution, the distinction between the EU and the EC is ended, creating simply a Union with legal personality. And in a move symbolic of the gradual move to co-decision (joint decision making between European Parliament and Council, with qualified majority voting in Council) across the Treaty over several rounds of Treaty amendment, we must now refer to 'the ordinary legislative procedure' rather than co-decision, and to 'a special legislative procedure' rather than the consultation procedure (unanimity in Council following mere consultation of Parliament).

The Lisbon Treaty contains only seven Articles. Article 1 amends the Treaty on European Union. The mighty Article 2 runs to over 90 pages and amends what was the EC Treaty. The remaining Articles contain final provisions, for example as to deposit of instruments of ratification and official languages. Article 5 (together with an Annex) provides for the renumbering of the Treaty Articles - probably necessary given the extent of the amend¬ments, but still only 10 years after the last renumbering 'simplification' exercise. A number of Protocols are attached to the Treaty, and they form an integral part of the Treaty.

The environmental implications of the Lisbon Treaty are not immediately obvious. The Lisbon Treaty largely maintains the status quo in its explicitly environmental provisions, but Treaty change nevertheless has considerable potential to affect the future devel¬opment of environmental regulation. For example, the balance of power within and between the institutions inevitably affects the development and implementation of environmental law and policy. The new rule of'double majority'voting in Council (at least 55 per cent of Member States, representing at least 65 per cent of the EU's population4) should make the finding of majorities, and hence the passing of legislation, easier. The ease with which legislation can be negotiated is of great practical significance, for both the amount but also the content of legislation. The institutional rearrangements were driven in large part by the need to accommodate the enlargement of the EU over the past few years. The impact of the new membership on environmental policy, and of EU environ¬mental law on the environment of the new Member States, is a challenge that sits alongside the Treaty. Rather than consider these general questions, this note will concen¬trate on a few elements of the Treaty likely to be of most interest to specifically environmental lawyers: the environmental provisions; the provisions on public partici¬pation in decisions; access to justice; subsidiarity; and the Charter of Fundamental Rights.

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