The environmental management system between freedom of will and legal imperative
| Author | Cristina Mihaela Salca Rotaru |
| Position | Senior lecturer, Phd, Transilvania University of Brasov, Faculty of Law, Brasov, Romania |
| Pages | 192-201 |
192 CRISTINA MIHAELA SALCĂ ROTARU
ENVIRONMENTAL LAW
The environmental management system between
freedom of will and legal imperative *
Cristina Mihaela SALCĂ ROTARU**
Abstract
The management systems developed by the standardization organizations at
international or regional level, have as a general principle the expression of freedom of
will regarding their implementation within an organization. The current importance of
environmental protection is capable of causing changes in the application of this
principle. A special feature is established in the legislation of the European Union, and
consequently in the national one, regarding the environmental management systems.
This feature, which is the object of the present study, consists in the gradual
transformation of freedom of will into legislative imposition, regarding the
implementation of such a management system.
Keywords: Public Law, Environmental Law, Environmental Management System,
implementation, freedom of will
Introduction
Community environmental programs have had as a feature, starting with the
sixth program, the promotion of sustainable development through the use of an
instrument of collaboration and partnership with their companies and
organizations, namely voluntary commitment in the form of a community,
environmental and audit management system (EMAS).
At the base of the sixth environmental program (2002-2012) stood the
polluter-pays principle, the precautionary and preventive action principle, and
the principle of rectification of pollution at source1 and for its purposes, a number
* The article was prepared for the International Law Conference, "Current Issues within EU
and EU Member States Legal Framework", 3rd edition, held in Braşov (Romania) and organized by
the Faculty of Law – Transilvania University of Braşov on the 29th and 30th of November 2019.
** Senior lecturer, Phd – Transilvania University of Braşov, Faculty of Law, Braşov, Romania,
rotaruc@unitbv.ro.
Law Review vol. X, issue 2, July-Decembre 2019, pp. 192-201
The environmental management system between freedom 193
of means, including encouraging the wider application of EMAS2. It is worth
noting that at that time Regulation 761 of 2001 regarding the voluntary
participation of organizations in a community environmental management and
audit system (EMAS)3 had recently entered into force and generalized to all
organizations4 what Council Regulation (EEC) No 1836/935 regulates only for
companies in the industrial sector.
We can say that this is the moment when voluntary environmental
commitment, in the form of the environmental management system (SMM),
becomes an important legal instrument regarding environmental protection at
Union level. From here, the SMM and especially EMAS has a rapid evolution
both in terms of specific legislation and in its evolution as a legal instrument.
1. Initial vision on EMAS
The 7 years of experience gained at EU level, by applying Regulation
1836/1993, generated in 2001 the entry into force of Regulation 761 of 2001 and
the generalization of the application of EMAS, considering that ”EMAS should be
made available to all organisations having environmental impacts, providing a
means for them to manage these impacts an to improve their overall
environmental performance.”6 Referring to the general elements of an
environmental management system (and probably a reference to the system
developed in the form of ISO 14001, n.n7.) it is shown that ”in addition to the
1 Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002
laying down the Sixth Community Environment Action Programme, art.2, alin.(1), published in JO
L 242, 10.9.2002, p. 1-15.
2 Decision No 1600/2002/EC, art.3, pc.5.
3 Published in JO L 114, 24.4.2001, p. 1-29.
4 Art.2 pc. (s) : "organisation" shall mean a company, corporation, firm, enterprise, authority or
institution, or part or combination thereof, whether incorporated or not, public or private, that has
its own functions and administrations.
5 Council Regulation (EEC) No 1836/93 of 29 June 1993 allowing voluntary participation by
companies in the industrial sector in a Community eco-management and audit scheme, published
in JO L 168, 10.7.1993, p. 1-18.
6 Regulation (EC) No 761/2001 of the European Parliament and of the Council of 19 March 2001
allowing voluntary participation by organisations in a Community eco-management and audit
scheme (EMAS), pc.7 of the preamble, published in JO L 114, 24.4.2001, p. 1-29.
7 The ISO 14001 environmental management system, developed by the International
Standardization Association under the ISO 14000 class of standards, was launched in 1996, hence
the EMAS standard developed by Regulation 1836/93. The recognition of the ISO 14001 standard at
EU level was achieved through Commission Decision of 16 April 1997 on the recognition of the
international standard ISO 14001:1996 and the European standard EN ISO 14001:1996, establishing
specification for environmental management systems, in accordance with Article 12 of Council
Regulation (EEC) No 1836/93 of 29 June 1993, allowing voluntary participation by companies in
194 CRISTINA MIHAELA SALCĂ ROTARU
general requirements of the environmental management system EMAS places
special significance on the following elements: legal compliance, improvement of
environmental performance and also external communication and employee
involvement.”8
For a correct and uniform application, new regulations have been developed
in the form of Regulation 761 of 2001, Commission recommendation of 7
September 2001 on guidance for the implementation of Regulation (EC) No
761/2001 of the European Parliamentand of the Council allowing voluntary
participation by organisations in a Community eco-management and audit
scheme (EMAS)9.
In 2006, following the 2004 modification of the ISO 1400110 standard, it was
considered that ”Part A of Annex I to Regulation (EC) No 761/2001 should be
amended to take account of the European Standard EN ISO 14001:2004.”11 Thus,
since 2006, there is a closer approximation between the two environmental
management standards EMAS and ISO 14001, at least in terms of the general
requirements on the environmental management system.
The first legislative requirements regarding EMAS take the form of
recommendations, which respected the initial vision on it, ie a voluntary
environmental agreement. Thus the first legislative reference after 2001 we find it
in Directive 96 of 200212, which at art. 6 paragraph (6) shows that ”Member States
shall encourage establishments or undertakings which carry out treatment
operations to introduce certified environmental management systems in
accordance with Regulation (EC) No 761/2001 of the European Parliamentand of
the Council of 19 March 2001 allowing voluntary participation by organisations
in a Community eco-management and audit scheme (EMAS)”. Starting with
2004, SMM is part of the specific requirements regarding the technical
capabilities for the public procurement of works, goods and services, but only for
public works contracts and public services contracts, and only in appropriate
cases where it is necessary to indicate the environmental management measures
the industrial sector in a Community eco-management and audit scheme; published in JO L 104,
22.4.1997, p. 37-38
8 Regulation (EC) No 761/2001, point 17 of the preamble.
9 Published in JO L 247, 17.9.2001, p. 24-47.
10.The modification of the ISO 14001 standard was imposed by the International Organization
for Standardization (ISO) in order to improve its compatibility with the ISO 9001 standard.
11 Commission Regulation (EC) No 196/2006 of 3 February 2006 amending Annex I to Regulation
(EC) No 761/2001 of the European Parliament and of the Council to take account of the European
Standard EN ISO 14001:2004, and repealing Decision 97/265/EC, published in JO L 32, 4.2.2006,
p. 4-12.
12 Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on
waste electrical and electronic equipment (WEEE), published in JO L 37, 13.2.2003, p. 24-39.
The environmental management system between freedom 195
that the economic operator can apply during the execution of the contract13. In
this sense, it was necessary to require the production of certificates drawn up by
independent bodies at testing the compliance of the economic operator with
certain environmental management standards, they shall refer to the Community
Eco-Management and Audit Scheme (EMAS) or to environmental management
standards based on the relevant European or international standards certified by
bodies conforming to Community law or the relevant European or international
standards concerning certification14.
Almost the same terms15 are also found in Directive 17 of 200416, with the
distinction that in the preamble of the document the point 53 shows that in
appropriate cases, in which the nature of the works and/or services justifies
applying environmental management measures or schemes during the
performance of a contract, the application of such measures or schemes may be
required.
The gradual transition from an EMS as a voluntary requirement to a
legislative requirement, is made from 2005, through Directive 32 of 200517 which
imposes certain ecological design requirements. Thus, for energy-using products
(EuP), in order to improve the energy efficiency and the level of protection of the
environment, some requirements regarding the conformity assessment are
imposed (art. 8 of the directive). These requirements are considered to be fulfilled
either if an internal design control is carried out, as set out in Annex IV, or if the
organization has a management system, as set out in Annex V18. In support of the
affirmation of transforming the requirement regarding the freedom to have an
environmental management system, art. 8, paragraph (2) thesis 3 of the directive
states: If an EuP covered by implementing measures is designed by an
organisation registered in accordance with Regulation (EC) No 761/2001 of the
European Parliament and of the Council of 19 March 2001 allowing voluntary
13 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the
coordination of procedures for the award of public works contracts, public supply contracts and
public service contracts, art. 48 art. (2) lit. (f), published in JO L 134, 30.4.2004, p. 114-240.
14 Directive 2004/18/CE, art. 50.
15 Directive 2004/17/CΕ of the European Parliament and of the Council of 31 March 2004
coordinating the procurement procedures of entities operating in the water, energy, transport and
postal services sectors, art.52 paragraph (3), published in JO L 134, 30.4.2004, p. 1-113.
16 Directive 2004/17/CΕ of the European Parliament and of the Council of 31 March 2004
coordinating the procurement procedures of entities operating in the water, energy, transport and
postal services sectors,, published in JO L 134, 30.4.2004, p. 1-113.
17 Directive 2005/32/EC of the European Parliament and of the Council of 6 July 2005
establishing a framework for the setting of eco-design requirements for energy-using products a,
published in JO L 191, 22.7.2005, p. 29-58
18 Annex V of the directive contains elements similar to an environmental management system
but applied to the energy consumer product.
196 CRISTINA MIHAELA SALCĂ ROTARU
participation by organisations in a Community eco-management and audit
scheme (EMAS) and the design function is included within the scope of that
registration, the management system of that organisation shall be presumed to
comply with the requirements of Annex V to this Directive.
Regarding batteries and accumulators, although technological achievements
that improve their performance are encouraged, regarding the environment and
on their entire life cycle, including through participation in a Community eco-
management and audit scheme (EMAS)19, in art. 13 para. (2) of the directive only
shows that Member States shall encourage treatment facilities to introduce
certified environmental management schemes in accordance with Regulation
(EC) No.761/2001 of the European Parliamentand of the Council of 19 March
2001 allowing voluntary participation by organisations in a Community eco-
management and audit scheme (EMAS), which only concerns the last part of the
life cycle.
In this period, for the generalization at EU level of the importance of the
environmental management systems and not to be excluded from the recognition
of the effort in environmental protection, they are recognized as being close to
the EMAS system and other environmental management standards existing in
the legislation of other Member States, such as Austria and Germany20.
2. EMAS reform and determining the growth of its implementation
I mentioned that the beginning of the importance given to the SMM can be
found in the EU's environmental action plans, and especially in the sixth
program. In the mid-term evaluation of this program21, it was shown that it is
needed ”to improve the functioning of the voluntary instruments that have been
designed for industry: EMAS and Ecolabel. These tools have a great potential but
have not been fully developed. The Commission will revise these schemes in
order to promote their uptake and reduce administrative burdens in their
management”. In 2008, another communication22 shows that EMAS helps
19 Directive 2006/66/CE of the European Parliament and of the Council of 6 September 2006 on
batteries and accumulators and waste batteries and accumulators, preamble, pc. (12), published in
JO L 266, 26.9.2006, p. 1-14.
20 Commission Decision of 19 November 2007 on the recognition, in accordance with Article 9 of
Regulation (EC) no. 761/2001 of the European Parliament and of the Council, of the certification procedures
necessary for the voluntary participation of organizations in the community system of environmental
management and audit (EMAS), published in JO L 303, 21.11.2007, p. 37-37.
21 Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions on the Mid-term review of the Sixth
Community Environment Action Programme, COM(2007) 225 final.
22 Commission communication of 16 July 2008 on the action plan on sustainable consumption and
production and industrial policy, referred to in point. 4 of the preamble to Regulation 1221 of 2009.
The environmental management system between freedom 197
organizations optimize their production processes, reduce their impact on the
environment and use resources more efficiently.
When evaluating the implementation of EMAS23, a low level of adoption was
found, which was generally due to a lack of awareness and market recognition;
lack of recognition in public policy; compliance and verification costs, and in
particular a lack of integration into public policy in the form of incentives and
relief from other regulatory requirements ('regulatory relief'), the lack of
promotional activities, and the existence of a globally recognized and less
demanding environmental management system (ISO 14001) which is the market
leader. Moreover, it was stated that the uptake of EMAS is significantly lower
compared to ISO 14001. In particular, the impact of EMAS has suffered from the
competition with ISO14001 which provides an less demanding alternative to
EMAS through harmonised rules and procedures for environmental
management recognized at global level. Nevertheless, the interaction between
the two schemes has been constructive and EMAS has inspired new and
improved developments under the global ISO 14001 standard brining it closer to
EMAS although significant differences remain.
Thus, in 2009, starting from the need to increase the number of organizations
participating in the EMAS system, including small and non-Community
organizations, as well as the need to improve system requirements and ensure
the relevance and comparability of information obtained by using such a system,
the reform of EMAS was passed through Regulation 122124. Indeed, another
purpose of the regulation isto create a single credible scheme and avoid the
establishment of different national schemes”.25
The first aspect, that of increasing the number of organizations, including
outside the Community, was achieved in 2011 by Decision 83226 which, as shown
in the introductory part of the Annex, opening up EMAS to third countries
provides organisations from all sectors with a tool for achieving a high
environmental performance levels that can be publicly recognised by
23 Report from the Commission to the European Parliament and to the Council on the review of
implementation of Regulation (EC) No 122/2009 of the European Parliament and of the Council of 25
November 2009 on the voluntary participation by organisations in a Community eco-management and audit
scheme (EMAS) and the Regulation (EC) No 66/2010 of the parliament and of the Council of 25 November
2009 on the EU Ecolabel, COM(2017) 355 final, p.3-5.
24 Regulation (EC) No 1221/2009 of the European Parliament and of the Council of 25 November
2009 on the voluntary participation by organisations in a Community eco-management and audit
scheme (EMAS), repealing Regulation (EC) No 761/2001 and Commission Decisions 2001/681/EC
and 2006/193/EC, published in JO L 342, 22.12.2009, p. 1-45.
25 Preamble of the Regulation no 1221/2001, point 29.
26 CommissionDecision of 7 December 2011 concerning a guide on EU corporate registration, third
country and global registration under Regulation (EC) No 1221/2009 of the European Parliamentand of the
Council on the voluntary participation by organisations in a Community eco-management and audit scheme
(EMAS), published in JO L 330, 14.12.2011, p. 25-38.
198 CRISTINA MIHAELA SALCĂ ROTARU
stakeholders of the European Community. Also in order to determine the growth
of SMM implementation, EMAS was also attached to the eco-label, to achieve
significant changes in overall consumption and production patterns and, through
this, deliver significant environmental benefits beyond the companies and
organizations deciding to be part of the schemes.27
Under the second aspect, of the optimization of the production processes
through an SMM, in 2011 the indicative lists28 of the sectors were published, for
which reference documents will be elaborated that certify best environmental
management practice and environmental performance indicators for specific
sectors29. Also, these documents "should help organizations better focus on the
most important environmental aspects in a given sector. We can say that for these
sectors of production have been developed a series of environmental protection
requirements, through which an indirect imposition of the implementation of an
EMS at the level of organizations is realized, as I will show below.
A combination of the two previously mentioned aspects can be found in
requirements are interspersed with the requirements of the quality management
system. Thus, the environmental requirements are documented according to the
quality management system, but the verification of the quality management
system regarding the compliance with the environmental requirements can be
done through the environmental verifier, as defined by the EMAS Regulation
(art. 3, art. 4 and art.6 of the Regulation 333 of 2011).
3. Indirect imposition of an SMM implementation
Subsequent to the year 2009 that marked the reform of EMAS, a series of
normative acts are drafted and entered into force at EU level, which have the
effect, at least indirectly, of imposing an SMM.
27 Report from the Commission to the European Parliament and to the Council on the review of
implementation of Regulation (EC) No 122/2009 of the European Parliament and of the Council of 25
November 2009 on the voluntary participation by organisations in a Community eco-management and audit
scheme (EMAS) and the Regulation (EC) No 66/2010 of the parliament and of the Council of 25 November
2009 on the EU Ecolabel, COM(2017) 355 final, p.3.
28 Communication from the Commission — Establishment of the working plan setting out an
indicative list of sectors for the adoption of sectoral and cross-sectoral reference documents, under Regulation
(EC) No 1221/2009 on the voluntary participation by organisations in a Community eco-management and
audit scheme (EMAS), published in JO C 358, 8.12.2011, p. 2-5.
29 Regulation (EC)No 122/2009, point 19 of the preamble.
30 Council Regulation (EU) No 333/2011 of 31 March 2011 establishing criteria determining when
certaint ypes of scrap metal cease to be waste under Directive 2008/98/EC of the European
Parliamentand of the Council, published in JO L 94, 8.4.2011, p. 2-11.
The environmental management system between freedom 199
Since 2010, for industrial activities that require integrated pollution control,
one of the three minimum criteria taken into account when systematically
assessing environmental risks, is operator participation in the Union's
Environmental Management and Audit System (EMAS), pursuant to Regulation
routine controls is closely linked to the existence or non-existence of an SMM,
and especially EMAS, at the organization level.
Different from the Regulation 333 of 2011, the Regulation 1179 of 2012,
referring to the compliance with the environmental requirements and criteria
specific to its regulatory field, refers to the imperative existence of a management
system to be verified by an environmental verifier, so as defined by the EMAS
Regulation32. We should note that, based on the provisions of the EMAS
Regulation, environmental verifiers shall assess whether an organisation's
environmental review, environmental policy, management system, audit
procedures and their implementation comply with the requirements of this
Regulation33. The same note also includes the provisions of Regulation 715 of
201334, which at art. 5 impose the existence of a management system, verified by
an environmental verifier, not only to the manufacturer, but also to the previous
owner or supplier of copper waste. Thus the obligation of such a management
system to the entire chain of copper waste processing is extended.
Because the imposition of the existence of an SMM and especially of an
EMAS organization is already foreseen, in 2013, in the form of a guide, the norms
that establish the steps required to participate in EMAS35 are developed. Thus,
starting with 2015, they are regulated, according to Regulation (EC) no.
31 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on
industrial emissions (integrated pollution prevention and control), art.23, par.(4), published in JO L
334, 17.12.2010, p. 17-119.
32 Commission Regulation (EU) No 1179/2012 of 10 December 2012 establishing criteria determining
when glass cullet ceases to be waste under Directive 2008/98/EC of the European Parliament and of the
Council, art. 5, published in OJ L 337, 11.12.2012, p. 31–36.
33 Regulation (EU) No 1221/2009, art. 18, par. (1).
34 Commission Regulation (EU) No 715/2013 of 25 July 2013 establishing criteria determining
when copper scrap ceases to be waste under Directive 2008/98/EC of the European Parliament and
of the Council, published in OJ L 201, 26.7.2013, p. 14–20.
35 Commission Decision 2013/131/EU of 4 March 2013 establishing the user’s guide setting out
the steps needed to participate in EMAS, under Regulation (EC) No 1221/2009 of the European
Parliament and of the Council on the voluntary participation by organisations in a Community eco-
management and audit scheme (EMAS), published in OJ L 76, 19.3.2013, p. 1–39. It was modified in
2017 by Commission Decision (EU) 2017/2285 of 6 December 2017 Amending the user's guide
setting out the steps needed to participate in EMAS, under Regulation (EC) No 1221/2009 of the
European Parliament and of the Council on the voluntary participation by organisations in a
Community eco-management and audit scheme (EMAS), published in OJ L 328, 12.12.2017,
p. 38–86.
200 CRISTINA MIHAELA SALCĂ ROTARU
1221/2009, in the legal form of the decisions, good practices of environmental
management for:
- retail trade sector36,
- the tourism sector37,
- the food and beverage manufacturing sector38,
- agriculture sector39,
- the electrical and electronic equipment manufacturing sector40,
- the public administration sector41,
- the car manufacturing sector42,
36 Commission Decision (EU) 2015/801 of 20 May 2015 on reference document on best
environmental management practice, sector environmental performance indicators and
benchmarks of excellence for the retail trade sector under Regulation (EC) No 1221/2009 of the
European Parliament and of the Council on the voluntary participation by organisations in a
Community eco-management and audit scheme (EMAS), published in OJ L 127, 22.5.2015, p. 25–60.
37 Commission Decision (EU) 2016/611 of 15 April 2016 on the reference document on best
environmental management practice, sector environmental performance indicators and
benchmarks of excellence for the tourism sector under Regulation (EC) No 1221/2009 on the
voluntary participation by organisations in a Community eco-management and audit scheme
(EMAS), published in OJ L 104, 20.4.2016, p. 27–69.
38 Commission Decision (EU) 2017/1508 of 28 August 2017 on the reference document on best
environmental management practice, sector environmental performance indicators and
benchmarks of excellence for the food and beverage manufacturing sector under Regulation (EC)
No 1221/2009 of the European Parliament and of the Council on the voluntary participation by
organisations in a Community eco-management and audit scheme (EMAS), published in OJ L 223,
30.8.2017, p. 1–35.
39 Commission Decision (EU) 2018/813 of 14 May 2018 on the sectoral reference document on
best environmental management practices, sector environmental performance indicators and
benchmarks of excellence for the agriculture sector under Regulation (EC) No 1221/2009 of the
European Parliament and of the Council on the voluntary participation by organisations in a
Community eco-management and audit scheme (EMAS), published in OJ L 145, 8.6.2018, p. 1–64.
40 Commission Decision (EU) 2019/63 of 19 December 2018 on the sectoral reference document
on best environmental management practices, sector environmental performance indicators and
benchmarks of excellence for the electrical and electronic equipment manufacturing sector under
Regulation (EC) No 1221/2009 of the European Parliament and of the Council on the voluntary
participation by organisations in a Community eco-management and audit scheme (EMAS),
published in OJ L 17, 18.1.2019, p. 94–123.
41 Commission Decision (EU) 2019/61 of 19 December 2018 on the sectoral reference document
on best environmental management practices, sector environmental performance indicators and
benchmarks of excellence for the public administration sector under Regulation (EC) No 1221/2009
on the voluntary participation by organisations in a Community eco-management and audit
scheme (EMAS), published in OJ L 17, 18.1.2019, p. 1–57.
42 Commission Decision (EU) 2019/62 of 19 December 2018 on the sectoral reference document
on best environmental management practices, sector environmental performance indicators and
benchmarks of excellence for the car manufacturing sector under Regulation (EC) No 1221/2009 on
the voluntary participation by organisations in a Community eco-management and audit scheme
(EMAS), published in OJ L 17, 18.1.2019, p. 58–93.
The environmental management system between freedom 201
and for the other sectors identified in the 2011 Communication, such as the
waste management sector, construction, telecommunications, these are still in
work.
The common point of these regulations is that they provide specific
guidelines for each sector:
- include best environmental management practices, environmental
performance indicators for specific sectors and, where appropriate, parameters of
excellence and classification systems that identify performance levels,
- focus on relevant environmental issues (direct and indirect) and
- although it is aimed primarily at organizations already registered in EMAS,
they target both organizations that intend to register in EMAS in the future and
those organizations that want more information on best environmental
management practices, in order to improve them. environmental performance.
It is important that the organizations for which such documents were created
must take them into account when implementing their own environmental
management system, with the specification that the cost-benefit ratio must
nevertheless be considered.
4. Conclusions
Environmental management systems are a useful tool for environmental
protection, mainly because they oblige organizations to have a coordinated and
coherent action in this area. The existence of two major environmental
management systems (ISO 14001 and EMAS) that, although they have the same
purpose and almost the same structure, has led to the possibility of choosing
between the implementation of one or the other, depending on the organization's
position towards environmental problems or economic interest. of it. This choice
is also based on the fact that these systems represent a voluntary environmental
agreement of the organization.
The youth of SMM can be compensated by the value of this instrument, an
insufficient value actually exploited. Targeting the European Union towards
finding viable solutions for environmental protection can result in the
transformation, if not direct, of at least indirect SMM, and especially EMAS, into
a mandatory instrument for those organizations operating in more
environmentally sensitive areas.
These statements are in line with the legislative developments and the
transformation of EMAS presented in this article, as well as with the new policy
requirements regarding environmental protection.
