Sustainable Development Policy Implementation in the European Union

Don C. Smith
Malcolm Fergusson

At the founding of the European Union (EU) in 1957, there was no provision for environmental protection - much less sustainable development - in the Treaty of Rome, which provided the historical basis of the EU. The primary aim of the European Economic Community, as it was then known, was to establish a common market. It has unquestionably succeeded in achieving this objective: in many respects, the common market's existence played a significant role in helping attract $573 billion in U.S. foreign direct investment in the EU in 2000 alone, according to the EU Committee of the American Chamber of Commerce in Belgium.

At the same time, however, there has been a growing concern among Europeans about environmental quality. The concept of economic growth uncoupled from consideration of the environmental impact of this growth has simply been unacceptable in Europe, particularly in recent decades. This concern was reflected recently in a pronouncement by the European Commission stating, "The degradation of the environment is now proceeding at a frightening pace, and the continuing of current development patterns is unsustainable. It is a source of genuine concern and moral indignation." (European Commission, "Strategic Objectives: 2000-2005: 'Shaping the New Europe'" COM (2000) 154 at 11.) Moreover, when asked, "At the end of the 20th Century, what issues are most on people's minds," most Europeans (63% of those surveyed) answered "environmental issues." (European Commission, "How Europeans See Themselves," (2001) at 41).

Because there was no legal basis in the original Treaty of Rome (Treaty), early environmental measures (e.g., on vehicle noise and labeling of chemicals) were adopted on the basis that they were needed to ensure the integrity of the common internal market. An Environment Title was first introduced into the Treaty under the Single European Act of 1987, and, against a backdrop of mounting environmental pressures and concerns, the environmental provisions were progressively strengthened in subsequent revisions of the Treaty.

This process culminated in the signing of the Treaty of Amsterdam in 1997, by which the EU's 15 member states formally recognized the pursuit of sustainable development in the European Community Treaty (EC Treaty) as one of the Union's primary objectives. Specifically, EC Treaty Art. 2 provides, "The Community shall have as its task…to promote throughout the Community a harmonious, balanced and sustainable development of economic activities…" Moreover, EC Treaty Art. 6 requires that "Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities…in particular with a view to promoting sustainable development." Margot Wallström, European Environment commissioner, has gone so far as to suggest that while the first "big idea" of the EU was the common market, the next big idea should perhaps be the pursuit of "sustainable development."

Policy Pronouncements About Sustainable Development
In unmistakable contrast to the United States, references to the need to achieve sustainable development often find their way into major policy addresses in the EU. For example, European heads of state and government in 2001, noting that the achievement of sustainable development is "one of the fundamental objectives" of the EU, called for a new approach to policy-making that would take into account the environmental and social as well as economic effects of all policies. More recently, Spanish Environment Minister Jaume Matas I Palou told the European Parliament's Environment Committee that sustainable development would be one of the key objectives during Spain's EU presidency, which ran from January-June 2002. Similarly, the European Parliament's Environment Committee recently adopted a resolution, drafted by Chairperson Caroline Jackson, emphasizing that the environmental aspects of sustainable development must be put on an equal footing with social and economic considerations. Finally, European Commission President Romano Prodi has said a sustainable society is one of the EU's "top priorities."

The Need for American Lawyers to Know About EU Sustainable Development Efforts

American (and all EU and non-EU lawyers for that matter) lawyers need to follow the EU's efforts with respect to sustainable development in order to properly advise and consult with clients on how these developments may impact clients' continuing or prospective ability to do business in the EU. Several examples illustrate this importance:

• To the degree that American companies do business in the EU, they must abide by the EU's legislation as it involves the implementation of the sustainable development objective
• The European Commission has presented a Green Paper on "Promoting a European Framework for Corporate Social Responsibility," (COM (2001) 366 final, July 18, 2001), the purpose of which is to raise awareness about, as well as stimulate debate regarding, how the EU can promote corporate social responsibility further. According to the Green Paper, corporate social responsibility "means that a company contributes to a better society and environment, rather than simply focusing on the economic dimension of the business." Although the concept has a long way to go before any final decisions are reached at EU level, it does reflect a policy that American companies operating in the EU must take into account.
• EU adoption of initiatives to implement sustainable development will result in many market opportunities for enterprising American businesses. For example, it has been estimated that bringing former Eastern bloc countries (which are seeking accession into the EU) up to EU levels in terms of environmental protection may require more than $100 billion in goods and services.
• The European public, generally speaking, is highly attuned to how companies are responding to matters involving sustainable development. As a result, companies that do not take sustainable development into their overall decision-making process run the risk of alienating an enormous market and, as a result, suffering the business consequences.
• Most goods sold in the EU must meet a wide range of standards (environmental and otherwise). These are likely to become more integrated, and possibly more wide-ranging, under a planned Integrated Product Policy. (European Commission, "Green Paper on Integrated Product Policy," COM (2001) 68 final, Feb. 7, 2001).
• More specifically, some Directives require manufacturers to take responsibility for their products right through to disposal. For example, the end-of-life vehicles Directive (Directive 2000/53/EC) requires car manufacturers to bear most of the cost of scrappage of the cars that they manufacture, and upcoming legislation on waste electrical and electronic equipment will have similar provisions. Other cradle-to-grave legislation may well follow.

As with the consideration of any new paradigm, there are significant risks as well as opportunities associated with the EU's embrace of sustainable development. Consequently, putting aside the matter of whether the objective of sustainable development is realistic or not, the reality is that sustainable development is on the EU radar screen and it is not likely to disappear anytime soon.

Success of Integration
The real key with respect to EU efforts to implement sustainable development policies involves the degree to which individual policies are being amended to reflect the goal of sustainable development. The individual policies that are being looked at include several huge elements of the EU economy: agriculture, energy and transport. Thus far, the results of implementation are somewhat uneven, with some areas (e.g., transport) being dealt with more successfully while others (e.g., agriculture) lag to some degree. (Institute for European Environmental Policy, "The Effectiveness of EU Council Integration Strategies and Options for Carrying Forward the 'Cardiff" Process," (2001) http://europa.eu.int/comm/environment/enveco/integration/german_study.pdf). Notwithstanding, the fact is that in stark contrast to the United States, the EU is moving ahead.

Beyond sectoral integration, the EU is also developing a Sustainable Development Strategy, and at their recent summit meeting in Barcelona, EU heads of state and government reiterated that, "Economic, social and environmental considerations must receive equal attention in policymaking and the decision taking process." They also repeated calls for a sustainability impact assessment of all major European Community policy initiatives.

Prospective EU Leadership on Sustainable Development

EU leadership on sustainable development will become even clearer in the next few months as the EU and its member states consolidate their world leadership role in promoting the Kyoto Protocol. The EU, in another example of divergence with the United States, has enthusiastically embraced the Protocol as evidenced by its ratification of the Protocol.

Moreover, the EU is gearing up to play a major role at the U.N.'s World Summit on Sustainable Development (Rio + 10) in South Africa in August, and deliberately accelerated its work on the Kyoto Protocol in order to ratify it in time for Rio + 10. While the United States remains passive at best and indifferent at worst about the summit, the EU has energetically embraced it and will play a commanding role at the summit.
Obviously, the EU's effort to achieve sustainable development will not be achieved overnight, just as the development of the industrial revolution and the fossil fuel economy were not achieved overnight. Notwithstanding the difficult issues ahead, however, the EU is demonstrating global leadership on the issue of sustainable development - leadership that must be taken as real although the results may, in some cases, be years away from full realization.

Conclusion
Despite the somewhat uneven integration of sustainable development into EU policies, the EU is a considerable distance ahead of other major economic powers such as Japan and the United States. And unlike in the United States, where political leaders from both sides of the aisle are reluctant to embrace sustainable development, leaders in the EU who do not embrace sustainable development are the exception rather than the rule.

Moreover, notwithstanding U.S. recalcitrance at almost every level to accept the concept of, much less deal with, sustainable development, American lawyers are duty bound to represent their clients in EU matters fully and completely. As a consequence, it is not enough for an American lawyer to avoid mention of EU matters to clients simply because no similar action is being undertaken in the United States. This is particularly so if a client has current or potentially future interests in doing business in the EU.

At one time it was generally accepted that on most environmental policy issues, the United States provided the guiding moral and political leadership. Now, however, and particularly with respect to the pursuit of sustainable development, the environmental leadership mantle has been firmly grasped by the EU. Put in a broader perspective, the EU has embarked on pioneering efforts that no other developed country has been willing to undertake. In so doing, it has effectively elevated its efforts to that of world leadership, a position of prominence it seems unlikely to abandon.

Don C. Smith is an adjunct professor of European Union Law and Policy at the University of Denver College of Law. He can be reached at donsmith@du.edu. Malcolm Fergusson is a senior fellow at the Institute for European Environmental Policy in London. He can be contacted at mfergusson@ieeplondon.org.uk.