Principles of international environmental protection - Introduction to International Environmental Law - page 91

It should be pointed out that both the EU and its member states are parties
to most international environmental treaties (so-called mixed treaties). The
EU incorporates environmental treaties as part of its legal system. As the CJEU
has stated, environmental treaties are considered hierarchically to be higher
than the EU's secondary legislation - that is, directives and regulations -
although there have been dissenting opinions on this. Highest in the EU
environmental law hierarchy are the founding treaties and the general legal
principles as they are now recorded in the Treaty on the Functioning of the
European Union, Article 191(2): 'The Union's environmental policy is based
on the precautionary, preventive action, correction at source and “polluter
pays” principles.'
EU environmental law, comprising the EU principles, laws and envi-
ronmental treaties, covers most of the major areas of environmental
protection. It is constantly changing. International environmental treaties
are constantly being amended to meet new challenges, and the EU (and
often its member states) is required to adopt these amendments in its legal
system. The EU's own environmental actions are altered and extended,
which has over time reduced the scope of the member states' environmental
law and policy.
When the EU decides whether to participate in the negotiations of a new
environmental treaty or whether it enacts a new environmental protection
directive, it is imperative to know what kind of competence it has vis-à-vis
the member states: exclusive, shared or supporting. The EU competence is
always 'derived competence': the member states must submit their compe-
tence to it through founding treaties.
The EU legal order relies on the Treaty on the European Union, and the
Treaty on the Functioning of the European Union, which are the highest legal
norms of the EU, equivalent to domestic constitutions. 9 These two treaties
constitute the consolidated version of the founding treaties which have, over
time, been amended by successive treaties such as Maastricht (1992), Amsterdam
(1997) and Lisbon (2009). With the 2009 Lisbon treaty amendments, the divi-
sion of competence between the EU and its member states is, for the fi rst time,
recorded in a treaty, the Treaty on the Functioning of the European Union.
Environmental law and policy in the EU is generally an area of shared
competence: both the EU and its member states have competence here. The
EU has exclusive competence on certain aspects of environmental politics such
as the conservation of marine biological resources under the common fi sheries
policy and the common commercial policy. Member states can still apply
stricter regulation than the environmental protection directives require, and
they can regulate certain segments of environmental law independently. The
internal (in relation to member states) and external (in relation to the rest of
the world) competence of the EU largely overlap with regard to environmen-
tal protection.
An interesting example of the intricacies of EU competence is the forestry
policy.