The Legal Basis of European Union Policy: The Case of Environmental Policy

Abstract

The choice of the legal basis for a given measure can influence the procedure by which legislation is adopted, and thereby the scope and content of EU policy. The ambiguity surrounding the choice of legal basis for environmental acts based in Articles 130s and 100a opened the way for a ‘legal-basis game’, where EU institutions chose the legal basis partly on the basis of political considerations. In the period 1987–93, the two most important legal bases for environmental acts (Articles 130s and 100a) were subject to very different procedures for adoption (unanimity and qualified majority voting, respectively). From 1993 onwards, both articles were subject to qualified majority voting. After a general discussion of the choice of legal basis and its significance for policy, this paper examines the choice of legal basis for environmental legislation during the period 1987–99. I conclude that, although the legal-basis game is played out with respect to certain acts, there is little evidence that it is a regular and systematic feature of the policy process in the EU.