Sustainability policy and the law.

VerfasserKarsten, Jens

1 Sustainability across Community law and policy

On 3 March 2008, the Council of Ministers at its 2856th meeting uniting the Environment Ministers of the European Union, stressed, on the subject of "Sustainable Consumption and Production", that it:

  1. "REITERATES that the promotion of sustainable consumption and production is one of the key challenges for the EU and that economic growth must be further decoupled from negative environmental impacts and must be achieved within the carrying capacity of ecosystems;

  2. WELCOMES the Commission's intention to present a Sustainable Consumption and Production Action Plan and an Action Plan on Sustainable Industrial Policy as early as possible in 2008; EXPECTS the Action Plans to contain concrete objectives and actions such as reducing negative environmental impact by providing a framework for the design and introduction of new or improved products and establishing favourable market conditions for environmentally-friendly technologies, products and services, elements for setting targets to improve energy and resource efficiency, promoting continuous improvement of performance labelling schemes, improving existing economic instruments, promoting their wider use and mechanisms for their follow-up, enhancing internalisation of external costs, as well as promoting environmental management schemes and sustainable consumption and sustainable lifestyles;

  3. INVITES the Commission to present its Communication on Green Public Procurement in 2008, and ENCOURAGES the Commission to explore different measures, including the possibility of setting targets, which should enable the EU and the Member States to reach the objective of fulfilling by 2010 an EU average level of Green Public Procurement equal to that currently achieved by the best performing Member States, and to establish a process involving the Member States for the identification of Green Public Procurement criteria and follow-up;

  4. UNDERLINES the need for a more sustainable use of natural resources in the EU, in relation also to the impact of this resources use beyond our continent, as highlighted in the Council conclusions of 23 October 2006."

Member States are thus reigniting the spark of a meaningful sustainability policy spreading over several areas of Community responsibilities. We learn from these statements that at least three Commission documents are in the making, meant to design sustainability policies for consumption and production, (1) for industry, (2) and for public procurement. (3) Elsewhere (4) the Commission indicated that concepts of sustainability should become part of its policies on agriculture, energy, research and development policy, fisheries and transport. It is also continuing to examine the use of market-based instruments for the greening of the economy. (5) The approaching end of the EU's current political cycle, (a new European Parliament will be elected in June 2009 and the mandate of the present European Commission expires in October 2009) does not seem to bring a slowdown in sustainability policy. On the contrary, 2008 may possibly become the year when sustainability policy comes of age by establishing itself as the ingredient of practically all EU policies. What matters for the private individual (and thus the consumer) is that all policy-makers, in these and other statements, expressly or implicitly, appeal to EU citizens to endorse sustainable lifestyles. Both the supply side and the demand side of the economy are asked to change and the homo a economicus is henceforth expected to turn into a homo sustinens (Siebenhuner 2000). Lifestyle is a key word in this context. As a result, national wealth may soon no longer be measured in GDP but also as ecological well-being (6) and personal happiness, not as the ability to participate in mass consumption but, inter alia, as a clear environmental consciousness. (7)

Put boldly as a radical change of a postmodern economy, or humbly as the consumer's contribution to a better natural and social environment, either way the EU's political agenda spelled out above will impact on EC consumer law and policy. To assess this impact and to give the reader an idea about the state-of-play in sustainable consumption law is the purpose of this treatise. Outside the field of environmental law and policy itself, the "greening of consumerism" is perhaps the most developed example for the spill-over effect of environmental concerns into internal market policies. Although no attempt shall be made to provide an exhaustive description of today's law enacted for that purpose, it is worthwhile taking a cursory glance over the acquis communautaire relevant to the area. It is intriguing to examine how the renewed political interest in sustainable consumption is reflected in legislation. Although hard questions must be asked about the effectiveness of these laws cumulating in the query: Does disclosure work? Sustainability policy for consumers so far has largely appealed to the rational faculties of the consumer's mind and the ability to adapt his and her behaviour to environmental concerns. But, with the prospect of climate change, are such relatively soft policies workable? Or do they need to be replaced by a 'harder' approach, mandated by the "climate imperative," forcing the market and the market-citizen to change more fundamentally?

2 Barriers and drivers for sustainable consumption (8)

A textbook definition based on the fullness of available research on sustainable consumption today would describe sustainable consumption as "the use of goods and services that respond to basic needs and bring a better quality of life while minimising the use of natural resources, toxic materials and emissions of waste and pollutants over the life cycle, so as not to jeopardise the needs of future generations." Under this--rather cumbersome--working title it has been debated at World Summits and lesser events as the consumer's contribution to the 'greening' of the economy.

One could put it much simpler however. Sustainable consumption is--at least within the policy debate reflected in this essay--environmental economics for consumer markets. (9) While there is an important academic and civil society debate on the scale and scope of this concept, in particular on the dimensions of social and cultural sustainability and the relative "strength" or "weakness" of the ecological sustainability, a broad consensus has emerged within and across the different arenas of debate that the goal of environmental sustain-ability across generations constitutes the very core of sustainable development. Sustainable consumption is hence viewed as a concept of law and policy aiming to steer consumer behaviour towards more environmentally-friendly, and possibly socially equitable consumption choices.

More practically speaking, sustainable consumption policy shall encourage consumers to choose products and services which are--in both production and use--energy-efficient, resource "light", minimally polluting, and disposable and/or recyclable with the least impact on the environment at the end of their lifespan. Moreover, these products (and their production technologies) should not impose irreversible risks on society, should not harm norms of other cultures and should be produced under socially acceptable conditions. More difficult to communicate than these straightforward strategies of "high efficiency" and "more fairness" are strategies of "sufficiency." These include a reflection upon one's needs prior to any purchase, the decision to consume less, and/or to opt for communal use of products (pooling, sharing, leasing).

Research on sustainable consumption has generated empirical evidence on barriers and drivers that hinder and motivate consumers to adapt more sustainable lifestyles. On the negative side a number of factors have been identified as posing barriers to change such as higher prices, modest interest in low level behaviours, entrenched habits and norms, "lock-ins" due to long-term binding strategic consumption decisions, perceived inconvenience of "green" products and services, unattractive design, low sense of agency of consumers, lack of trust in scientific results, and psychological effects such as the preference of the present have been detected as important barriers to change. On the...

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