The concept of harmonization in Community law is closely linked to the principles of conferral,10 subsidiarity and proportionality. In the context of
10 As amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 OJ C 306, 17.12.2007.
environmental legislation, the competence to regulate is shared between the Community and the Member States. Hence Community action must be in conformity with the principles of subsidiarity and proportionality.11
The Community can, on the basis of the principles of subsidiarity and proportionality, introduce harmonized regulation covering only certain aspects of a particular field, leaving others to be regulated by the Member States, or may decide to totally harmonize all the relevant aspects of that particular field, leaving Member States with limited discretion to adopt different approaches. In the latter cases, the freedom of Member States to regulate the field will depend both on the content of the Community legislative Act and on the legal basis on which that legislative Act was based.12 The choice therein is between partial or complete harmonization. Harmonization can be, aside from partial or complete, minimum, maximum, or anywhere between both extremes. When harmonization is complete, Member States cannot in principle go beyond the stringency level set in Community regulation. Complete harmonization is found mainly in those fields of environmental law where there is a strong relation with the free movement of goods, normally with legal basis on Article 95 EC.13 However, in the ambit of environmental law with a legal basis on Article 175, Article 176 EC guarantees that Member States can always set more stringent environmental objectives than those laid down in Community legislation, but not different policies.14
Community environmental law is generally introduced through directives while regulations are exceptional.15 Directives are mandatory as regards ends, but leave Member States freedom as regards the means. However, while some directives may introduce partial and minimum harmonization, others may introduce complete harmonization, thus resembling regulations. Whereas complete harmonization is generally necessary in the context of product standards, to avoid Member States introducing measures which amount to barriers to trade, in the context of emission standards complete harmonization is generally not required. Here, Member States and companies may have an interest in pushing for more harmonization at EU level in order to avoid distortions of competition in the internal market stemming from the differing stringency of domestic standards.
11 EC Treaty, Article 3b.
14 Kramer (2007, p. 127). See also Jans and Vedder (2007, p. 103).
15 Kramer (2007, p. 56); Jans and Vedder (2007, p. 87).
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