The Principles G overning EU Environmental Law

1. The Principles Governing EU Environmental Law

2. The importance of EU Environmental Law at the European and globallevel • Environmental concerns placed at the core of EU policy and legal action • Environmental regulation significant part of EU Law in general • Creation of a comprehensive and effectivecommon environmental legal frameworkfor Member States (up to 80% of environmental norms in EU Member States stem from EU Law) • Supported by a strongimplementation and enforcementmechanismbased inter-alia on the effective role of the European Court of Justice (ECJ) • Importance of the EU Environmental Law also at the global level • EU as a fundamental actor of the international communityin environmental matters • Implementation and enforcement of International Environmental Law at EU level

3. The Legal Basis for EU Environmental Action • Strong legal basis for EU competence in the environmental field, since environment protection and sustainable development are among basic principles and objectives of the EU • “DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable developmentand... environmental protection...” (TEU, Preamble) • “The Union shall...work for the sustainable development of Europe based on balanced economic growth...aiming at...a high level of protection and improvement of the quality of the environment” (TEU, Art. 3.3) • TFEU, Title XX on “Environment”provides the framework (objectives and principles) for EU policy and action in environmental matters

4. The Legal Basis for EU Environmental Action • Competence on environmental matters is shared between Member States and the EU (except for exclusive competence on the conservation of marine biological resources under the common fisheries policy) (TFEU, artt. 3-4), • which means that EU action shall be based on the principles of: • Subsidiarity • The Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level and • Proportionality • The content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties

5. The Legal Basis for EU Environmental Action • Legal basis for potential far reaching action by the EU on environmental matters • Environmental issues are often intrinsicallytransfrontier in nature • > subsidiarity test is easily met • The Union shall aim at “high level” of environmental protection, a standard that must be applied also by EU bodies in their initiatives (TEU, Art. 3; TFEU, Art. 114.3 and 191.2) • > proportionality test is more easily met • Wide definition of “environment” • Union policy shall contribute to the protection of the “environment” interpreted in a wide sense(including e.g. landscape management, safeguarding human health) • Includes promotion of procedural rights that are relevant for environmental objectives (e.g. participation to decision making in environmental matters) • Promotion of sustainable development and environment protection at the global level(TEU, art. 3.5, 21.2.f; , TFEU, 191.1) • > potentialextraterritorialenvironmental measures (e.g. climate change, trade in wastes, trade in endangered species, driftnet fishing)

6. The Principles Governing EU Environmental Law The Precautionary Principle

7. The Precautionary Principle in EU Law • “Union policy ... shall be based on the precautionary principle” (TFEU, art. 191.2) • Commission communication COM(2000) 1 on the precautionary principle • Developed by case law: The “Waddenzee” case(case C-127/02)

8. Other potential implications of the precautionary principle in EU Law • The precautionary principle mayjustify restrictions by Member States on other rights (e.g. free trade) • E.g. Case C-219/07 on the lawfulness of a “positive list” for tradable mammals in Belgium, based on precaution (non-tradability in case of scientific uncertainty) • The precautionary principle may justify actionby EU authorities in the environmental field • E.g. Case C-405/92 on Council regulation of driftnet fishing, adopted notwithstanding scientific uncertainty • The precautionary principle may justify an infringement procedure against a Member State • E.g. Case C-355/90 Commission v. Spain regarding Spain’s violation of the EEC Treaty for not protecting important wetlands, notwithstanding the lack of evidence of declining population of relevant protected species

9. The Principles Governing EU Environmental Law Sustainable Development

10. Sustainable Development: A principle with legal meaning or a mere “concept”? • General objective of the EU (Art. 3.3, 3.5). • “DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development [...]” (TEU, Preamble) • “The Union [...] shall work for the sustainable development of Europe […]” (TEU, Art. 3.3) • “[…] the Union […] shall contribute to peace, security, the sustainable development of the Earth [...]” (TEU, Art. 3.5)

11. Sustainable Development: A principle with legal meaning or a mere “concept”? • Sustainable use (“prudent and rational”) of natural resources and sustainable management of global natural resources are objectives of EU as a whole and of its environmental policy: • The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: […] (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;” (TEU, 21.2.f ) • “Union policy on the environment shall contribute to pursuit of the following objectives: […] prudent and rational utilisation of natural resources”(TFEU, art. 191.1))

12. Sustainable Development: A principle with legal meaning or a mere “concept”? • Principle of “integration”: “Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development” (TFEU, art. 11; Charter of Fundamental Rights of the EU art. 37) • Procedural obligation: EU institutions must “take into account” environmental considerations when adopting measures under another policy • Interpretative tool: EU secondary laws must be interpreted in light of environmental objectives, even if they belong to another area of EU law • Through the integration principle, the ECJ was able to apply the precautionary principle in the agricultural and pharmaceutical sectors • Conflict resolution tool: conflicts between environmental and other objectives of the Treaty (e.g. free trade), must be resolved, according to ECJ case law, using the principle of proportionality: given the “high level” of environmental protection required by EU Law, coupled with integration, there is a strong presumption that the ECJ will hold environmental measures compatible with other objectives, such as free trade

13. Sustainable Development: A principle with legal meaning or a mere “concept”? • Intra-generational equity • Among general objectives of EU policy there is “the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty” (TEU, art. 21.2.d)

14. The Principles Governing EU Environmental Law Other Principles

15. Other Principles on which EU policy shall be based (TFEU, art. 191) • Preventive action should be taken • e.g. provisions on Environmental Impact Assessment • Environmental damage should as a priority be rectified at source • e.g. “proximity principle” in waste disposal • The polluter should pay for environmental externalities (“polluter pays” principle)