EC ENVIRONMENTAL PRINCIPLES

1. EC ENVIRONMENTAL PRINCIPLES Richard Macrory LLM EC Environmental Law 2010/11I

2. ART 191 TFEU • Union policy contributes to OBJECTIVES • Union policy based on PRINCIPLES • Union policy takes account of CONSIDERATONS • With respective spheres of competence INTERNATIONAL CO-OPERATION

3. Art 174 objectives • PROTECT AND IMPROVE ENVIRONMENT (eco-centric) • PROTECT HUMAN HEALTH (anthropogenic) • PRUDENT USE OF RESOURCES (economic rational) • INTERNATIONAL CO-OPERATION (political)

4. Art 191EC Treaty PRINCIPLES AIM AT HIGH LEVEL OF PROTECTION TAKE INTO ACCOUNT REGIONAL DIVERSITY THE PRECAUTIONARY PRINCIPLE PREVENTATIVE ACTION RECTIFICATION AT SOURCE POLLUTERS PAY

5. TREATY PRINCIPLES – WHAT DO THEY MEAN IN LAW? “The above-mentioned principles are of a binding nature so that their non-respect by a specific Community measure can lead to the nullity of that measure.” A Epiney (1997)

6. An ALTERNATIVE VIEW • “The question is whether the environmental principles of Art 174(2) EC are also such principles which Community legislation may not impinge. In my opinion this is not the case.” L KRAMER (2007)

7. PRINCIPLES ACCORDING TO DWORKIN • RULES : applicable in all or nothing fashion • PRINCIPLES : moral dimension, argues for solution but not binding, often weighed against other principles • POLICY : collective social, economic, or political goal to be reached Dworkin (1977)

8. PRINCIPLES Rules and principles “point to particular decisions about legal obligation in particular circumstances but they differ in the character of direction they give” A principle “states a reason which argues in one direction but does not necessitate a particular decision”

9. FURTHER DISTINCTIONS A DIRECTLY APPLICABLE RULE AN OBLIGATION TO REACH A GOAL AS FAR AS POSSIBLE (optimierungsgebote) ALEXY (1994)

10. ECJ and PRINCIPLES BETTATI v SAFETY HIGH TECH (1998) Ban on ozone depleting substances Company claims that Community chose wrong target – breached ‘high level’ principle “In view of the need to strike a balance between certain of the objectives and principles mentioned in [Art 191]and of the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question of whether the Council by adopting the regulation committed a MANIFEST ERROR of APPRAISAL regarding the conditions for the application of Art [191] of the Treaty”

11. POLLUTERS PAY PRINCIPLE • Appeared in first action programme – environmental policy not to rely on state aid • Introduced in Treaty 1987 • Originally a policy concept to ensure environmental costs fully internalized • In reality Potential Polluter Pays to Prevent Pollution

12. POLLUTERS PAY PRINCIPLE • In litigation increasingly used as a defence by industry against unfair burdens • STANDLEY DECISION (1999) Should farmers bear full cost of nitrate prevention when not 100% responsible? Nitrates Directive held compatible with principle, but in implementation by MS: “The Directive does not mean that farmers must take on the burden for the elimination of pollution to which they have not contributed.”

13. RECTIFICATION AT SOURCE • APPEARED IN FIRST ACTION PROGRAMME 1973 • APPEARS IN TREATY 1987 • NOT WELL DEVELOPED IN POLICY TERMS BUT INFLUENTIAL IN COURT DECISIONS ON FREE MOVEMENT

14. ECJ and RECTIFICATION AT SOURCE • WALLONIA WASTE (1992) Belgium region bans imports of waste. Environment can justify restrictions on free movement but must not discriminate: LIKE GOOD MUST BE TREATED ALIKE BUT because of rectification at source principle local waste distinct in kind from non-local waste though physically the same – therefore no discrimination

15. ECT and RECTIFICATION AT SOURCE • PreussenElektra (2001) German energy law promotes local wind generation. Breaches free movement, and discriminates between local and non-local Advocate General Jacobs says it is discrimination but should be justified because of environment. ECJ should address this head-on

16. RECTIFICATION AT SOURCE “National measures for the protection of the environment are inherently liable to differentiate on the basis of the nature and origin of the cause or harm, and are therefore liable to be found discriminatory, precisely because they are based on such accepted principles as that ‘environmental damage should as a priority be rectified at source.’ “ (AG Jacobs)

17. PREVENTION AND PRECAUTION • Prevention appears in first EC Action Programme • Prevention put in Treaty in 1987 • Precautionary principle not mentioned in action programmes and inserted in Treaty amendments 1991

18. PREVENTION PRECAUTION DISTINCTION? • ‘There seems to be no Community action which would be possible under the precautionary principle but not under the prevention principle - and vice versa. Since both principles are in practice almost always used together and there is no definition of them in the EC Treaty, the added legal value of one to the other is not visible - therefore they should be used synonymously’ KRAMER 2007

19. PREVENTION AND PRECAUTION(2) RISK PREVENTION Known impacts Known probabilities (asbestos) reduce risk UNCERTAINTY PRECAUTION Known impacts reduce exposure Unknown probabilities (food additives) IGNORANCE EXTRA PRECAUTION Unknown impacts anticipate, inherent Unknown probabilities properties of substances, Surprises (e.g. ozone layer) resilience by diversity

20. Precaution and waste • “The aim of Art 174(2) EC which provides that Community policy on the environment is to aim at a high level of protection and is to be based in particular on the precautionary principle and the principle that preventative action be taken….[i]t follows that the concept of waste cannot be interpreted restrictively” ARCO [2000] ECR I-4475 para 37-40

21. PRECAUTIONARY PRINCIPLE COMMISSION COMMUNICATION 2000 Decisions in absence of evidence require other checks against abuse – proportionality, no zero risk, based on risk assessment

22. Hard cases and principles • Hart’s ‘penumbra of uncertainty’ • PALIN GRANIT - left over stone - either waste that falls away and not and end product or not a residue but a by product which can be marketed

23. ECJ and Precaution • UK v COMMISSION (1996) (BSE) “Where there is uncertainty as to the existence 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.”

24. ECJ AND PRECAUTION (2) • PFIZER (2002) – ban on anti-biotics in animal foodstuffs • Precautionary Principles crosses over to agricultural measure because of Art 6 Integration Principle • Many of principles in Commission Communication adopted

25. PFIZER (2) “Under the precautionary principle the Community institutions are entitled in the interests of humans to adopt on the basis of as yet incomplete scientific knowledge protective measures which may seriously harm legally protected positions and they enjoy a wide discretion in this respect.”

26. PFIZER (3) Precautionary Principle in context of administrative law BUT Institutions cannot “adopt arbitrary measures which cannot in any circumstances be rendered legitimate by the precautionary principle.”

27. PFIZER (4) RISK ASSESSMENT IN 2 stages • LEVEL of risk deemed unacceptable. Primarily a political decision based on high level of human protection but not zero risk (disproportionate) • RISK ASSESSMENT – scientific assessment carried out by experts on principles of ‘excellence, transparency, and independence’

28. PFIZER (5) But can one adopt measures against a hypothetical risk? Reduce public concern even when baseless? Was European Court in Pfizer over influenced by WTO approach to precaution?

29. A CAUTIOUS APPROACH • “Where there are significant risks to the environment, the Government will be prepared to take precautionary action to limit the use of potentially dangerous materials or the spread of potentially dangerous pollutants even where scientific knowledge is not conclusive, if the balance of likely costs and benefits justifies it” UK Government Environment White Paper 1990

30. ROYAL COMMISSION ON ENVIRONMENTAL POLLUTION • “We emphasise that we regard [the precautionary principle] as a rational response to uncertainties in the scientific evidence relevant to environmental issues and uncertainties about the consequences of action or inaction” RCEP 21st Report Setting Environmental Standards 1998

31. Principles as Political Expediency • The Environmental principles “constitute principles for political or legislative decision and are often used - and as a sort of leitmotif - to explain or justify a decision already taken.” KRAMER

32. ECJ and Coherence • “If there is the suspicion that the ECJ is using principles in an a la carte manner simply to justify policy outcomes rather than genuinely be directed to those conclusions….the principles would lose [their] justificatory power” (Doherty, Yearbook of European Environmental Law”.

33. PRECAUTION IN NATIONAL COURT UK HIGH COURT DOCKGRANGE (1997) (waste imports, mixing ‘harmless’ wastes) “Where there is legitimate room for uncertainty, then the precautionary principle argues in favour of a more restrictive approach until the facts are known. However, there is no justification for applying such a restrictive approach where, as here, the facts are known.”

34. De Sadeleer (2002) on PRINCIPLES Modern Law is characterized by: • System of law based on rationality and belief in progress • Set of rules organized in coherent and hierarchical fashion • Courts develop some principles to fill gaps

35. De Sadeleer (2) POST MODERN law characterized by: - loss of system, and scepticism about primacy of reason • State gives ways to plurality of sources both international and sub-national • Many types of law – formal, soft law, advice, explosion of initiatives • No coherence

36. De Sadeleer (3) “The State has in effect altered its method of societal intervention by abandoning classical legal imperatives (the Thou Shall Not approach) in favour of the ‘let’s work together’ approach that mingles aspirations, encouragement, and threats.”

37. PRINCIPLES in a POST MODERN WORLD • Could bridge the gap between modern and post modern law • Adds a degree of coherence and stability to legal system but not losing need for adaptation and flexibility