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.
Keywords: case law, disputes, environmental policies, environmental protection, European Community, European Community legislator, European Court of Justice, European legislation, European policy, free movement of goods, freedom of trade, institutionalization, Member States, supranational governance, supranationalism
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