Development of European Environmental Law: Empty Shell or Test Tube?

1. The development of the European environmental law through the Article 37 of the Charter of Fundamental Rights of the European Union: a choice between an empty shell and a test tube? Marco Túlio R. Magalhães PhD Student Universidade de São Paulo (Brazil) and Freie Universität Berlin (Germany) Contact: marucosam@yahoo.com.br

2. A. Introduction • B. The development of the European Environmental Law (EEL) • I. Phases of development of the EEL • II. A comparison to the development of the international environmental law • III. The primary and secondary legislations regarding to the EEL • IV. Comments on the development of the EEL • C. The EU Charter of Fundamental Rights and the Environmental • Protection • I. The concept of a catalogue of fundamental rights • II. The EU Charter of Fundamental Rights • III. The Article 37 of the EU Charter of Fundamental Rights • IV. A right to environmental protection passes through the test of the scrutiny of fundamental rights? • V. A procedural fundamental right to environmental protection: from na empty shell towards a test tube? • D. Conclusion • E. References

3. Main questions • What is the content of the Article 37 of the EU Charter of Fundamental Rights? • Does it include a right to a healthy and balanced environment? • Could this norm be developed, in order to include a (procedural or material) right of environmental protection?

4. The Development of the EEL Two Perspectives– similar consequences? Overview (Environmental Politic and not only Environmental Law)

5. General Perspective(3 phases) • Phase 1: 1972-1987 – Development of the Environment Policy as part of the Economic Policy (Focus on the common market) – without expressed norms of environmental protection. (although the improvement through de Action Program of 1973 • Phase 2: 1987 - 1992 – With the Single European Act (SEA) starts the beginning of a specific Environmental Policy with fundaments, principles and procedural norms. • Phase 3: From 1992 – No relevant changes regarding the formal prescriptions of the Environmental Policy, although the improvement of institutional action of the EU and the Member States. Mainstream (economic problems and crises) Actors Die EU Organs / The Member States / The EU citizens? / NGOs

6. Comparative Perspective of the Environmental International Law (EIL) 4 Main Phases • End of the 19th Century and Begin of 20th Century: Economic perspective with use of environmental resources, not a real consideration of environmental protection. • 1945 - 1950s – International Organizations (ex. United Nations), Regional Treaties with the first formal considerations about environmental protection. • from1960s or from 1970s – Declaration of Stockholm (1972) and „Brundtland Report in 1987 (World Commission on Environment and Development: Our Common Future).“ Growing concerns about environmental damages and impacts as „side effects“ os state and economic activities. • 1992-1997 and from 1997: Earth Summit 7 Rio Declaration (Agenda 21, etc) /Rio + 20 / Climate Changes Agreements?

7. Examples of environmental impacts and damages related in this period: • The negative effects of the nuclear bombs in Hiroshima and Nagasaki; methylmercury contamination at the Minamata Bay Incident (post 1950s); Trail Smelter Arbitration between United States and Canada and the trans-boundary pollution (1941); Lake Lanoux Arbitration on use of waters between France and Spain (1957); Torrey Canyon oil spill on the southwest coast of the United Kingdom (1967); the Seveso industrial accident with dangerous chemicals (1976), which prompted the adoption of the so-called Seveso-Directive (Directive 82/501/EEC); damages caused by the disintegration over Canada of the Soviet satellite "Cosmos 954" (1978); The Amoco Cadiz oil spill (1978); the Bhopal disaster caused by a gas leak incident in a industrial plant in India (1984); the Chernobyl nuclear disaster in a power plant in Ukraine (1986); the fire and chemical spill at Sandoz in the industrial area near Basel, Switzerland, with trans-boundary pollution problems in the river Rhine (1986)

8. EC Environmental Legislation • Main Highlights: • SEA and specific environmental policy (ex-Art.174-176 EGV) – until today (Art. 191-Art. 193 TFEU). • Primary Legislation (TEU and TFEU and EU Charger of fundamental rights – Objetives, Principles, protection measures, competences, decision procedures, finance aspects. • Die cross-section clause (art. 11 TFEU). • EU Level: No individual right to environmental protection. • Environmental protection as union‘s objectives – Art. 3 parags. 3 and 5 TEU / Art. 191 parag. 1 and parag. 3 TFEU.

9. Summary of the current types of rules of EEL • general provisions • rules concerning to the quality of the different elements of nature • rules regarding to specific activities and materials • rules related to the rational use and protection of the environmental resources • Remembering Art. 288 TFEU: regulations, directives, decisions, • recommendations and opinions. 

10. First Remarks • Parallel development between EEL and EIL, but with important differences; • Potential of the EU as a „global player“ on the international level of environmental protection. • Dynamic „Multi-level system“ of the EU level and significant tendency of Europeanisation of the national environmental law and policy levels (also procedural and organization levels) • Why the consideration of the Article 37 of the EU Charter of Fundamental Rights is not so often remembered in the historical development of the EEL?

11. The meaning of a Charter of Fundamental Rights • Historical references - Magna Carta Libertatum (1215,) Petition of Rights (1628), Habeas Corpus Act (1679), Bill of Rights (1668), Virginia Bill of Rights (1776), Déclaration des Droits de l’Homme et du Citoyen (1789); (Lincoln Conception) „[...] and that government of the people, by the people, for the people, shall not perish from the earth.“ • History of the fundamental rights as the history of the control of state power / Rule of Law / Constitutional state • Rights and liberties, individual subjective approach. • Link with democracy, humans rights and rights of citizens • Is the EU Charter of fundamental rights approaching these perspectives?

12.  CONTENTS • PREAMBLE • TITLE I DIGNITY • TITLE II FREEDOMS • TITLE III EQUALITY • TITLE IV SOLIDARITY • TITLE V CITIZENS' RIGHTS • TITLE VI JUSTICE • TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER

13. The EU Charter of Fundamental Rights • 1999/2000 (not binding – soft law) • After the Treaty of Lisbon (binding as Primary Legislation) • Rights, Liberties and principles (3 elements) • „Opt-out“ option – The problems regarding social rights • Enlargement of competences x stablishing new forms of fundamental rights (here we also find the discussion about Article 37 regarding environmental protection)

14. 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. • Remarks • Principle – not a right to a healthy environment • A strong debate in the formulation (fear of a increase of actions and judicial and administrative demands) • Skepticism about individual subjective right in this area • Repetition of norms of TFEU (Art. 11 and Art. 191 parag. 2 phrase 1 / maybe also Art. 3 TEU ) • Unsystematic and superfluous prescriptions in the context of a catalogue of fundamental rights.

15. Alternatives propositions • A) Individual (subjective) right to a healthy and balanced environment? • The problems related to the literature regarding fundamental rights • 1) Approach to liberal rights (negative rights); • 2) Approach to social rights (positive rights); • If the EU Charter is referred as a Charter of Fundamental Rights, but – instead of the establishment a right – only affirms a principle of action for the Union in the Article 37, which practically repeats the wording of what is already disposed on the Treaties of the European Union, it could be compared to a empty shell – which contains a external structure without a tangible object inside. • B) The formulation of procedural environmental rights (Calliess; Ermacora; Orth).

16. B) Procedural Environmental Rights in Europe? • 3 Elements (milestones) are already cristallized in EU and national levels (and also international law level) (Aarhus-Convention Articles. 1, 4, 6, 9); Principle 10 Rio-Declaration): • (a) right on access to information(Art. 4); • (b) right to public participation in decision-making (Art. 6); • (c) right on access to justice in environmental matters (as much as necessary to enforce the two others rights) (Art. 9) • Implementation by Member States

17. Two possible alternative formulations • „Jeder Mensch hat das Recht auf eine saubere und gesunde Umwelt, sowie deren Erhaltung und Schutz. Dieses wird durch Rechte auf Information, Beteiligung im Verwaltungsverfahren und effektiven Zugang zum Gericht gewährleistet“ (Christian Calliess / Germany) • „Everyone has the right to a clean natural environment. This right is subject to reasons of overriding public interest. It includes the right to participation in decision making, the right to access the courts and the right to information in environmental matters. 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 .“(Felix Ermacora)

18. Advantages of those propositions • Concrete procedures could be derived from those propositions. • Every person could defend his/her own interests regarding environmental protection. • Improvement of specific principles for legislation and administration, in order to ensure the rights of participation of citizens and NGOs in environmental decisions. • A good solution regarding the problems of the fundamental rights doctrine (negative and positive rights). • The emphasis on the possibility of a (limited) subjective approach of protection of public interests. • Improvement of the meaning of this right in an unique prescription (symbolic effect). • Emphasis of the rights based approach and position of EU citizens at the EU level. • Clarifies the duties of Organs and Member States in this field.

19. Final remarks • Important development of EEL by the different treaties • Good institutional and legal fundaments (EU Environmental Legislations and Policy), dynamic and multi-level instruments. • Potential of the EU as a „global player“ in the context of environmental protection / Europeanisation • Appeal for the improvement of the EU Charter of Fundamental Rights, in order to establish new rights. • Refuse of proposition and maintenance of principles only in a catalogue of fundamental rights, as the example regarding environmental protection (empty shell). • Defense of procedural environmental rights in the EU level with the three elements of Aahrus Convention, as an adequate and possible experience regarding the development of the EEL (test tube) . • Improvement of the participation of EU Citizens at the EU level.

20. THE END • Thank you! • Marco Túlio R. Magalhães • PhD Student • Universidade de São Paulo (Brazil) and Freie Universität Berlin (Germany) • Contact: marucosam@yahoo.com.br