Principles of EU environmental law in primary legislation

1. Principles of EU environmental law in primary legislation Prof. Gyula Bándi

2. PRINCIPLES IN GENERAL • Astrid Epiney: “In my view different consideration lead to the conclusion that, in principle, the legally binding character of environmental principles cannot be denied. Firstly, their introduction into the Treaty itself, which contains legally binding articles, pleads in favour of their legally binding character. Second, the vagueness of some principles alone is not sufficient to deny their legal effect.” • De Sadeleer:„”In other words, they can stimulate new public policies. By more clearly defining the limits, within which public administration excercise their discretionary powers, these pinciples provide authorities with a more coherent orientation and consequently legitimize their actions. By freeing the courts from the constraint of an overly literal interpretation of texts, they have also an imperative function. Finally, we will see that these principles may play a determining role in balancing interests – an activity which plays an important part in post-modern law – by helping courts to understand the specific value of environmental protection measures.”

3. Principles in general 2 • Ludwig Krämer: „It is doubtful whether all these different provisions have the same legal character. As regards the principles … they constitute, in my opinion, general guidelines for Community environmental policy, but not binding rules of law which apply to each individual Community measures; nor do they contain an obligation to take specific measures in favour of the environment.” • First Instance Court, joint cases T-74,76, 83-85,132,137 & 141/00 - Artegodan case: „As regards environmental matters, the precautionary principle is expressly enshrined in Article 174(2) EC, which establishes the binding nature of that principle.”

4. Principles in general 3 Wybe Douma: • „Both rules and principles are norms, providing guidance for our behaviour. Once rules and principles are backed by the coercive power of the state (or an international organisation), enforcing them by means of appropriate penalties or remedies, they can be called legally binding rules (legal rules) or legally binding principles (legal principles). The lack of coercive power backed up by the state is what differentiates legal norms from non-legal norms such as rules of conduct, rules of etiquette, religious rules and ethical principles.” Later on precautionary principle: • „However, laid down in a treaty or national piece of legislation, the principle can bring about concrete obligations and thus resemble a legal rule.”

5. Principles in general 4 ECJ (Case 32/05., Commission vs. Grand Duchy of Luxemburg, November 30, 2006) • „34  The third paragraph of Article 249 EC expressly provides that Member States may choose the form and methods for implementing directives which best ensures the result to be achieved by the directives. It follows from that provision that the implementation in domestic law of a directive does not necessarily require legislative action in each Member State. Thus, the Court has repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may be sufficient for implementation of a directive, depending on its content. In particular, the existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures provided, however, that those principles actually ensure the full application of the directive by the national authorities and that, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts …”

6. Principles in general 5 Gerd Winter on theanalysis of the legal nature of environmental principles above can be summed up as follows: • Principles should be understood to have a legal value. Non-legal principles should be called policies, ideals, objectives, etc. • The legal value is derived from legislation or court jurisprudence. In the first case, it is based on a political decision, in the second, on common experience and common sense. • Principles are to be distinguished from rules. Principles can be balanced against conflicting principles, rules are conclusive even though they may provide for exceptions or for the balancing of conflicting concerns. • Rules that provide for the weighing of principles may give one principle a prima facie or even conclusive priority over countervailing principles. • Principles help to interpret rules, fill gaps in rules, and develop new rules.

7. TEU 1 Article 3 (ex Article 2 TEU) • 3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. • ... • 5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

8. TEU 2 Article 5 • (ex Article 5 TEC) • 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. • … • 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, 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, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. • … • 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

9. TEU 3 Article 6 • (ex Article 6 TEU) • 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. • … • 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties. • 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

10. CHARTER OF FUNDAMENTAL RIGHTS Article 37 Environmental protection • A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

11. TFEU 1 Article 11 (ex Article 6 TEC) • Environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development.

12. TFEU 2 Article 114 (ex Article 95 TEC) • 1. … as their object the establishment and functioning of the internal market. … • 3. The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective. • 4 – 10: Safeguard clause

13. TFEU 3 TITLE XX: ENVIRONMENT Article 191 (ex Article 174 TEC) 1. Objectives of environmental policy 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. 3. In preparing its policy on the environment, the Union shall take account of: Article 193 (ex Article 176 TEC) Minimum stringency clause.

14. Summary 1 I. General EU principles with a special environmental emphasis in primary legislation: • sustainable development • high level of protection • integration • subsidiarity (due to its roots in EC primary legislation)

15. Summary 2 II. Specific environmental principles in primary legislation • prevention, • rectification at source, • precaution, • the polluter pays principle, • high level of protection and • minimum stringency clause/safeguard clause. (Jans-Vedder, 2008)

16. Summary 3 III. General principles with special importance in the field of environment • principle of proportionality, • direct effect/applicability of the community law

17. I. General EU principles with a special environmental emphasis in primary legislation: Sustainable development / sustainable growth? • Changing wording in the EU in 2010 (2010.3.3. COM(2010) 2020 final) • What is SD at all? Example: ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, 2 April 2002 (reinforced by the Resolution No. 7/2012, Committee on International Law on Sustainable Development • The duty of States to ensure sustainable use of natural resources • The principle of equity and the eradication of poverty • The principle of common but differentiated responsibilities • The principle of the precautionary approach to human health, natural resources and ecosystems • The principle of public participation and access to information and justice • The principle of good governance • The principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives

18. I. General principles 2 high level of protection • What is the basis of comparison? integration • A practical implementation of SD principle? Ludwig Krämer: „ The decisive point is that ’integration’ is not a single, isolated aciton, but that it is a continous process.” • „Contrary to the widespread opinion, Article 11 TFEU therefore constitute an objecive of EU policy and not a principle. ... to take the environmental objective of a high level of protection and the improvement of the queality of the environment into account.” Owen McIntyre: „For example, the proliferation of integration principles under the Lisbon Treaty requiring that a wide range of policy objecrives, additional to those relating to the environment, are to be taken into account in defining and implementing European Union policies generally, has raised new uncertainties about the priority accorded to, and justiciability of, the principle of environmental integration. (Art 7-10 and 12-13 TFEU)”

19. I. General principles 3 Article 7 The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers. Article 8(ex Article 3(2) TEC) In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women. Article 9 In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health. Article 10 In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 11(ex Article 6 TEC) Environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development. Article 12(ex Article 153(2) TEC) Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities. Article 13 In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.

20. I. General principles 4 Subsidiarity (due to its roots in EC primary legislation) • Historical roots in the Environmental Title in SEA, 1986. • Ludwig Krämer: „It is not a rule of competence, but a principle which predetermines the activity of the Community and, as such, has legal force.” • Aurdlian Portuese: „The principle of subsidiarity is double-edged; it can be used to justify both increased centralization and increased decentralization…. The subsidiarity principle is not an ordinary political principle; it is an efficiency principle that is interpreted as such by the European Court of Justice (ECJ).” • A. Toth: „there are few concepts in the Maastricht Treaty, or indeed in Community law as a whole, which are more elusive then the concept of subsidiarity.” • Subsidiarity entails also the idea of shared responsibility, if the Community’s environmental policy is interpreted correctly.

21. I. General principles 5 My favourite case - Case N. 176/03: Commission vs. Council, September 13, 2005., environmental criminal law: • „14. … The Council has considered this proposal but has come to the conclusion that the majority required for its adoption by the Council cannot be obtained. The said majority considered that the proposal went beyond the powers attributed to the Community by the Treaty establishing the European Community …” • „27. Not only is there no express conferral of power in that regard, but, given the considerable significance of criminal law for the sovereignty of the Member States, there are no grounds for accepting that this power can have been implicitly transferred to the Community at the time when specific substantive competences, such as those exercised under Article 175 EC, were conferred on it.”

22. I. General principles 6 According to the Court: • „47. … As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence (see, to that effect, Case 203/80 Casati [1981] ECR 2595, paragraph 27, and Case C‑226/97 Lemmens [1998] ECR I‑3711, paragraph 19). • 48     However, the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.”

23. II. Specific environmental principles in primary legislation

24. II. Specific environmental principles 2 prevention, (rectification at sourceis mostly similar, no way to make a distinction of understanding – this only highlights the direction) At source: difference between end-of-pipe and cleaner production • Jans-Vedder:“The Third Environmental Action Programme focused strongly on the prevention principle. Prevention rather than cure was the central theme of this programme.” • Waste management related case-law – example: Case N. 194/05, Commission vs. Republic of Italy, December 18, 2007 • „33.      The term ‘discard’ must be interpreted in the light not only of the fundamental aim of the directive, which, according to the third recital in the preamble thereto, is ‘the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste’, but also of Article 174(2) EC. The latter provision states that ‘Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken … ‘. It follows that the term ‘discard’ – and, accordingly, the concept of ‘waste’, within the meaning of Article 1(a) of the directive – cannot be interpreted restrictively ...”

25. II. Specific environmental principles 3 precaution • Vorsorgeprinzip in Germany in the 80s – acid rain, climate issues, North Sea pollution • Wybe Douma: „the fact that the precautionary principle is codified in a treaty or in national legislation indicates that it is a legal norm, a legally binding norm to be precise. This also holds true for the precautionary principle since it was laid down in the EC Treaty. It forms a legal obligation for the Community institutions.” • Center for Progressive Reform White Paper #1007,October 2010: „Thus, the Precautionary Principle serves as an important corrective to the distorted incentives created by free markets.”

26. II. Specific environmental principles 4 RIO DECLARATION 1992: Principle 15. • In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. CONVENTION ON BIOLOGICAL DIVERSITY: • Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat,

28. II. Specific environmental principles 5 BSE case - Case N. 180/96, United Kingdom vs. Commission • „98. At the time when the contested decision was adopted, there was great uncertainty as to the risks posed by live animals, bovine meat and derived products.” • 99. Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. • 100. That approach is borne out by Article 130r(1) of the EC Treaty, according to which Community policy on the environment is to pursue the objective inter alia of protecting human health. Article 130r(2) provides that that policy is to aim at a high level of protection and is to be based in particular on the principles that preventive action should be taken and that environmental protection requirements must be integrated into the definition and implementation of other Community policies.”

29. II. Specific environmental principles 6 Artegodan-case - First Instance Court, joint cases T-74,76, 83-85,132,137 & 141/00, Artegodan GmbH and others vs. The Commission, November 26, 2002.: • 184. It follows that the precautionary principle can be defined as a general principle of Community law requiring the competent authorities to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests. Since the Community institutions are responsible, in all their spheres of activity, for the protection of public health, safety and the environment, the precautionary principle can be regarded as an autonomous principle stemming from the abovementioned Treaty provisions.

30. II. Specific environmental principles 7 the polluter pays principle J. McLoughlin - E. G. Bellinger: • “The ‘polluter pays’ principle ... implies that in general it is for the polluter to meet the costs of pollution control and prevention measures, irrespective of whether those costs are incurred as a result of the imposition of some charge or pollution emission, or are debited through some other suitable economic mechanisms, or are in response to some direct regulation leading to some enforced reduction in pollution.” • Standley and Metson case - Case 293/97, preliminary ruling in the case of the Queen vs. Secretary of State for the Environment and Minister of Agriculture, Fisheries and Food ex parte: H.A. Standley and Others and D.G.D. Metson and Others, April 29, 1999.

31. II. Specific environmental principles 8 high level of protection • See above! • Case N. 284/95, preliminary ruling in the Safety Hi-Tech Srl and the S. & T. Srl. case which was brought before a reconciliation body (Giudice di Pace di Genova), July 14, 1998, “49 Finally, whilst it is undisputed that Article 130r(2) of the Treaty requires Community policy in environmental matters to aim for a high level of protection, such a level of protection, to be compatible with that provision, does not necessarily have to be the highest that is technically possible. ...”

32. II. Specific environmental principles 9 minimum stringency clause/safeguard clause ( principle: Jans-Vedder, 2008) • Case 203/96, preliminary ruling in a case in which the Chemische Afvalstoffen Dusseldorp BV and Others as plaintiffs filed a complaint against Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, June 25, 1998. „50 In those circumstances the answer to the first question must be that the Directive and the Regulation cannot be interpreted as meaning that the principles of self-sufficiency and proximity are applicable to shipments of waste for recovery. Article 130t of the Treaty does not permit Member States to extend the application of those principles to such waste when it is clear that they create a barrier to exports which is not justified either by an imperative measure relating to protection of the environment or by one of derogations provided for by Article 36 of the Treaty.”

33. II. Specific environmental principles 10 • Case N. 6/03, preliminary ruling in an ongoing procedure between the Deponiezweckverband Eiterköpfe and the Land Rheinland-Pfalz, April 14, 2005 52  It follows that a measure of domestic law, such as that at issue in the main proceedings, which seeks to reduce the amount of waste going to landfill and which applies to waste other than municipal waste, is compatible with the Directive and constitutes a more stringent protective measure for the purposes of Article 176 EC.” • Gold-plating? see: www.avosetta.org, Meeting 06/07 February 2009: "Stricter national environmental standards after minimum harmonization”

34. III. General principles with special importance in the field of environment principle of proportionality Danish bottle: Case 302/86, Commission vs. Denmark, September 21, 1988 • The Court’s essential conclusion with regard to the proportionality of the case was as follows: • „21. Nevertheless, the system for returning non-approved containers is capable of protecting the environment and, as far as imports are concerned, affects only limited quantities of beverages compared with the quantity of beverages consumed in Denmark owing to the restrictive effect which the requirement that containers should be returnable has on imports. In those circumstances, as restriction of the quantity of products which may be marketed by importers is disproportionate to the objective pursued.”

35. III. General principles with special importance 2 The joint application of three control methods: • whether the measure at issue serves the legitimate objective well; • the measure needs to be necessary, paying primary attention to the fact that there is no less restrictive measure in order to achieve the set objective; • the measure has to be proportionate and well-balanced in the sense that any violation or restriction caused by the measure should be in a proper balance with the gained advantages (in particular advantages gained for the Community) without allowing any discrimination.

36. III. General with special importance 3 Case N. 463/01, Commission vs. German Federal Republic, December 14, 2004 • 78. However, in order for such rules to comply with the principle of proportionality, it must be ascertained not only whether the means which they employ are suitable for the purpose of attaining the desired objectives but also whether those means do not go beyond what is necessary for that purpose (see Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 57).

37. III. General with special importance 4 direct effect/ direct applicability of EU law Source: Simmenthal II. case,(Case 106/77, preliminary ruling in a case between Amministrazione delle Finanze dello Stato and Simmenthal spa, March 9, 1978, E.C.R. (1978) 00629. „26. It follows from the answer to the first question that national courts must protect rights conferred by provisions of the community legal order and that it is not necessary for such courts to request or await the actual setting aside by the national authorities empowered so to act of any national measures which might impede the direct and immediate application of community rules.” The Bolzano airport case (Case 435/97, preliminary ruling in the World Wildlife Fund (WWF) and Others vs. the Autonome Provinz Bozen and Others case, September 16, 1999) • „44. However, the fact that the Member State has the discretion referred to in the previous paragraph is not in itself sufficient to exclude a given project from the assessment procedure under the Directive. If that were not the case, the discretion accorded to the Member States by Article 4(2) of the Directive could be used by them to take a particular project outside the assessment obligation when, by virtue of its nature, size or location, it could have significant environmental effects. • 45. Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects.”

38. III. General with special importance 5 Case 213/03, preliminary ruling in the case between Syndicat professionnel coordination des pêcheurs de l'étang de Berre et de la région and the Électricité de France (EDF), July 15, 2004 „39 According to the settled case-law of the Court, a provision in an agreement concluded by the Community with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see inter alia Demirel, cited above, paragraph 14, and Case C-171/01 Wählergruppe Gemeinsam [2003] ECR I-4301, paragraph 54). Case 201/02, preliminary ruling in the lega dispute between the Queen on the application of Delena Wells vs. Secretary of State for Transport, Local Government and the Regions, January 7, 2004. • 56. As to that submission, the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights … • 57. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned

39. III. General with special importance 6 In accordance with the practice developed by the Court and put into a system by legal experts, the direct effect of the Community legal regulations can fundamentally be ascertained based on the presence of three criteria: • the provision should be defined in a clear and unambiguous way; • it should not be tied to any condition; • it should not depend on further implementation action of the authorities of the Community or of member states; • a fourth criterium can be added to this, namely, that the given provision, whether directly or indirectly, grants rights to citizens which they can enforce agaisnt individual Member States. • As long as it is a directive that is at issue, then, as a fifth requirement, appears the time at the disposal to be spent on the transposition, or, with respect to the given legal instrument, we can safely state: time spent unsuccessfully.

40. III. General with special importance 6 Case C‑240/09, preliminary ruling Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, 8 March 2011 (Slovak bear) • 44      … an agreement … must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure … • 45      It must be held that the provisions of Article 9(3) of the Aarhus Convention do not c40ontain any clear and precise obligation capable of directly regulating the legal position of individuals. … that provision is subject, in its implementation or effects, to the adoption of a subsequent measure. • 52      In those circumstances, the answer to the first and second questions referred is that Article 9(3) of the Aarhus Convention does not have direct effect in EU law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law.