
Contents
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I The Policy Domain I The Policy Domain
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THE TREATY THE TREATY
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Legal basis of secondary legislation Legal basis of secondary legislation
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LEGISLATING LEGISLATING
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LOBBYING LOBBYING
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LITIGATING LITIGATING
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II Free Movement of Goods and the Environment II Free Movement of Goods and the Environment
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BALANCING TRADERS' RIGHTS AGAINST THE GENERAL INTEREST BALANCING TRADERS' RIGHTS AGAINST THE GENERAL INTEREST
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ADBHU: limits to “Freedom of Trade” ADBHU: limits to “Freedom of Trade”
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TRADERS' RIGHTS, THE COMMUNITY INTEREST, AND MEMBER STATE AUTONOMY TRADERS' RIGHTS, THE COMMUNITY INTEREST, AND MEMBER STATE AUTONOMY
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Commission v. Denmark: environmental protection as mandatory requirement Commission v. Denmark: environmental protection as mandatory requirement
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Commission v. Belgium: preemption and mandatory requirements Commission v. Belgium: preemption and mandatory requirements
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III The Court and Legislative Authority III The Court and Legislative Authority
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THE COURT AS TRUSTEE THE COURT AS TRUSTEE
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Determining legal basis Determining legal basis
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Transposition failures Transposition failures
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THE COURT AS AGENT: INTERPRETING THE DIRECTIVES THE COURT AS AGENT: INTERPRETING THE DIRECTIVES
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Lappel Bank: balancing ecological and economic interests Lappel Bank: balancing ecological and economic interests
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IV Conclusion IV Conclusion
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5 Environmental Protection
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Published:September 2004
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Abstract
An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of the Single European Act (SEA) of 1985, when the Member States formally recognized the EC's legislative authority in the field, and the strengthening of these competences in 1992 by the Treaty of European Union and in 1997 by the Treaty of Amsterdam. Partly owing to lack of Treaty basis, and partly because of factors to be discussed in this chapter, the influence of the legal system on the development of the EC's policy has not been as pervasive as it has been for the main categories of law and policy established under the original Rome Treaty. The first section, ‘The Policy Domain’ provides a brief overview of the evolution of environmental protection as a supranational field of governance. The second focuses on the attempts of the European Court of Justice (ECJ) to manage the relationship between freedom of trade (free movement of goods) and the EC's environmental policies, showing that this case law served to legitimize the EC's competences in the field before the SEA. The third section assesses the Court's interactions with the EC legislator and the Member States from the perspective of delegation theory, examining both what happens when the ECJ acts as a trustee of the Treaty, and when it functions as an agent of the legislator, i.e. when it is asked to resolve disputes about the meaning of provisions contained in EC statutes; no evidence was found that the ECJ regularly defers to the interests of powerful Member States, rather, it has pursued the ‘Community's interest’, broadly conceived, even when engaging in routine statutory interpretation.
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