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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 7373
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Police and Judicial Co-operation). The first pillar contrasts limited their sovereignty rights thereby conferring
with the other two, notably in terms of its institutional supremacy to Community law in the event of a conflict
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arrangements and legal impact. The legal order pertaining with national rules and, in certain circumstances,
to the first pillar is of a supranational nature unique in the conferring Community rights on individuals that are
sphere of international relations. Specifically, policy directly enforceable before their respective national courts
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decision-making within the EC is subject to a system of (doctrine of ‘direct effect’). In addition, the ECJ has held
supranational as opposed to intergovernmental governance, that national courts and authorities are under a general duty
orchestrated principally through three international to ensure that, as far as possible in accordance with national
institutions: the European Commission, Council of the EU law, they interpret national rules in line with Community
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and the European Parliament. law (doctrine of ‘indirect effect’).
The influence of individual Member States in the In contrast with the first pillar, the second and third
decision-making process has increasingly diminished over pillars are devoid of any special supranational status and
time as a result of successive amendments made to the EC have been constructed on the basis of an
Treaty, starting with the Single European Act (SEA) 1985. 10 intergovernmentalist framework. Specifically, policy
The so-called ‘Community method’ of adopting legislative decisions are required to be adopted pre-eminently on the
measures under the EC Treaty has always foreseen that the basis of unanimous agreement among Member States at
Commission is vested with a monopoly over proposing EC Council level, with limited powers being conferred on
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legislation. Moreover, several policy areas covered under the European Commission and European Parliament.
the auspices of the first pillar are now wholly subject to Moreover, the legal impact of the second and third pillars
majoritarian decision-making. In particular, save for a few is far less, their provisions and measures having a legal status
policy areas, legislative decisions made by the Council of essentially akin to that of international agreements under
the EU, the Union institution which represents the standard rules of international law. The law pertaining to
individual interests of the Member States, are most the second and third pillars is not capable of being directly
commonly subject to qualified majority voting (QMV) effective, although the ECJ has confirmed that the doctrine
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which means that no single Member State may, at least in of indirect effect applies with respect to framework
theory, veto the adoption of a Community policy measure. decisions adopted under the aegis of the third pillar. In
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With regard to the common environmental policy of the addition, the jurisdiction of the ECJ to review pillar three
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EC, under Article 175 EC most policy decisions are taken norms and decision-making is relatively restricted
in accordance with the ‘co-decision’ legislative procedure, 12 compared with its powers of judicial scrutiny in relation to
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which requires QMV at Council level together with a first pillar law. The court has no express powers to review
majority of votes within the European Parliament in
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support of adoption of a legislative proposal. The ECJ has
clarified that the first pillar constitutes a special legal order 14 First confirmed in Case 6/64 Costa v ENEL [1964] ECR 585.
in international relations, in which Member States have 15 The leading case is Case 26/62 Van Gend en Loos [1963] ECR 13.
16 See eg Case C–106/89 Marleasing [1990] ECR I-4135.
17 See art 23 EU (re second pillar measures) and art 34(2) EU (re
third pillar measures).
9 Articles 29–42 EU. 18 The ECJ has clarified that Member State courts are obliged to
10 The SEA 1985 introduced the so-called ‘cooperation interpret national rules as far as possible in accordance with pillar.
procedure’ into several EC policy areas (set out in art 252 EC), Three measures are intended to be legally binding on the Member
which envisages qualified majority voting within the Council of the States (doctrine of indirect effect). See Case C–105/03 Criminal
EU and significant powers of influence for the EP (see art 252 EC). Proceedings against M Pupino [2005] ECR I–5285.
By virtue of subsequent amendments made to the EC Treaty, the 19 ibid para 43.
cooperation procedure has largely been replaced by the co-decision 20 See art 35 EU, which provides for limited access to the Court
procedure (set out in art 251 EC) as the standard Community of Justice by way of annulment proceedings or by way of a request
legislative procedure. for a preliminary ruling from national courts in relation to third
11 Article 175(2) EC stipulates that in certain areas of pillar measures. Only Member States and the Commission have
environmental policy the Council of the EU is to decide by way of legal standing to bring annulment proceedings (art 35(6) EU) and
unanimity, namely in relation to: provisions of a fiscal nature; Member States have the right to opt out of or restrict the operation
measures affecting town and country planning, quantitative water of the preliminary ruling procedure (art 35(2)-(3) EU). No
resources management or water resource availability or land use provision is made for non-contractual liability proceedings against
(apart from waste management); or measures significantly affecting Union institutions and organs involved in third pillar activities.
a Member State’s choice between different energy sources and the Finally, the ECJ has no jurisdiction to review the validity or
general structure of its energy supply. proportionality of operations carried out by national law
12 As set out in art 251 EC. enforcement authorities in relation to the third pillar or the
13 It should be noted that art 251 EC prescribes different types of exercise of Member State responsibilities with regard to the
minimum EP majorities at separate stages of the co-decision maintenance of law and order and safeguarding of internal security
procedure. (see arts 33 and 35(5) EU).

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