Some Key Principles of EU Environmental Law

1. Some Key Principles of EU Environmental Law The Precautionary Principle

2. Environment and Sustainable Development in the EU Treaties • Strong legal basis for EU competence in the environmental field, since environment protection and sustainable development are among the basic principles and objectives of the EU • “DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and... 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

3. 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)

4. The twofold significance of the Precautionary Principle in the Waddenzee case • A tool to interpret EU norms • Habitats Directive art. 6 par. 3 (“Any plan or project … likely to have a significant effect … shall be subject to appropriate assessment of its implications …”) must be interpreted in light of the precautionary principle • A principle integrated in EU norms • Habitats Directive art. 6 par. 3 (“the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned”): the benefit of the doubt goes to the environment

5. The Waddenzee case and the effectiveness of EU Law in domestic systems • Shows important role of “preliminary rulings” in environmental matters • help clarify content of EU secondary legislation • can be used indirectly by private actors to check Member States’ conformity with EU Law • Shows potential of so called “direct effects” of Directives • National Courts may assess national authorities’ behavior against the Habitats Directive even without transposition of the Directive into national legislation

6. Other 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 even justify an infringement procedure against a Member State • E.g. Case C-355/90 Commission v. Spain when Spain violated the EEC Treaty for not protecting important wetlands, notwithstanding the lack of evidence of declining population of relevant protected species

7. Some Key Principles of EU Environmental Law Sustainable Development

8. Sustainable Development: A principle with legal meaning or a mere “concept”? • “Our Common Future” or “Brundtland Report” (1987) “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs …” • International Court of Justice Gabcíkovo-Nagymaros case (Hungary v Slovakia) (1997), para. 140: “… This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development …”

9. Sustainable Development: A principle with legal meaning or a mere “concept”? • General objective of the EU as such (TEU, Preamble; Art. 3.3, 3.5). • 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 (TEU, art. 3.5, 21.2.f ; TFEU, art. 191.1) • E.g. United Nations Convention on the Law of the Sea (UNCLOS), Art. 61 on managing living resources in the EEZ: “The coastal State … shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation … measures shall … be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield …”

10. 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 all other Union policies and activities (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 • “… Today, both international and EC law require the integration of appropriate environmental measures in the design and implementation of economic development activities …” (Iron Rhine Railway Case (Belgium v The Netherlands), Arbitral Tribunal Award of 24 May 2005, par. 59) • 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, it is unlikely that the ECJ will hold environmental measures incompatible with other objectives, such as free trade • Similar value at the international level: a “meta-principle” to resolve conflicts between environmental protection in multilateral environmental agreements and free trade obligations under WTO Law

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

12. Some Key Principles of EU Environmental Law Other Principles

13. Other Principles on which EU policy shall be based (TFEU, art. 191) • Preventive action should be taken • e.g. provisions on Environmental Impact Assessment • It is considered a customary norm also in international law • 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) • environmental liability rules

14. THE EU AS AN ACTOR OF THE INTERNATIONAL COMMUNITY IN THE ENVIRONMENTAL FIELD • Promotion of sustainable development and environment protection at the global level is among the objectives and principles of EU action in environmental field (TEU, art. 21.2.f) • Promotion of legal measures to protect the environment outside of the EU (extraterritorial environmental measures) (e.g. climate change, trade in wastes, trade in endangered species, driftnet fishing) • EU as a strong player in international negotiations and policy making, and as party to international agreements • Effective implementation of International Environmental Law within the EU • Treaties binding on EU institutions and Member States • Commission role in supervising implementation by States of International conventions

15. THE EU AS AN ACTOR OF THE INTERNATIONAL COMMUNITY IN THE ENVIRONMENTAL FIELD THE “MOX” CASE(S)

16. The MOX Plant at Sellafield

17. The MOX Plant at Sellafield

18. The MOX Plant at Sellafield

19. The MOX Case(s) • The case under the UNCLOS • ITLOS, The MOX Plant Case (Ireland v. United Kingdom), ProvisionalMeasures, Order of 3 December 2001 • ArbitralTribunalOrders No. 3 (24 June 2003) and No. 6 (6 June 2008) • Dispute concerningaccess to information under article 9 of the OSPAR Convention (Ireland v. United Kingdom), ArbitralTribunal Award of 2 July 2003 • European Court of Justice, Case C-459/03, Commission v Ireland, Decision of GrandChamber 30 May 2006