some key principles of eu environmental law

Some Key Principles Some Key Principles of EU Environmental of EU Environmental

LawLawThe Precautionary The Precautionary

PrinciplePrinciple

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Environment and Sustainable Environment and Sustainable Development in the EU Development in the EU

Treaties Treaties Strong legal basis for EU competence in the Strong legal basis for EU competence in the

environmental fieldenvironmental field, since environment , since environment protection and sustainable development are among protection and sustainable development are among the basic principles and objectives of the EUthe basic principles and objectives of the EU ““DETERMINED to promoteDETERMINED to promote economic and social economic and social

progress for their peoples, progress for their peoples, taking into account taking into account the the principle of principle of sustainable developmentsustainable development and... and... environmental protectionenvironmental protection...” (TEU, Preamble)...” (TEU, Preamble)

““The Union shall...The Union shall...work for the sustainable work for the sustainable developmentdevelopment of Europe based on balanced economic of Europe based on balanced economic growth...growth...aiming ataiming at...a ...a high level of protection and high level of protection and improvement of the quality of the environmentimprovement of the quality of the environment” ” (TEU, Art. 3.3)(TEU, Art. 3.3)

TFEU, TFEU, Title XX on “Environment”Title XX on “Environment” provides the provides the framework (framework (objectives and principlesobjectives and principles) for EU policy and ) for EU policy and action in environmental mattersaction in environmental matters

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The Precautionary Principle in EU The Precautionary Principle in EU LawLaw

““Union policy ... shall be based on Union policy ... shall be based on the precautionary principle” (TFEU, the precautionary principle” (TFEU, art. 191.2art. 191.2))

Commission communication Commission communication COM(2000) 1 on the precautionary COM(2000) 1 on the precautionary principleprinciple

Developed by case law: Developed by case law: The The “Waddenzee” case“Waddenzee” case (case C-127/02)(case C-127/02)

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The twofold significance of the The twofold significance of the Precautionary Principle in the Precautionary Principle in the

Waddenzee caseWaddenzee case

A tool A tool to interpret EU normsto interpret EU norms Habitats Directive art. 6 par. 3 (“Any plan or project Habitats Directive art. 6 par. 3 (“Any plan or project

… … likelylikely to have a significant effect … shall be to have a significant effect … shall be subject to appropriate assessment of its implications subject to appropriate assessment of its implications …”) must be interpreted in light of the …”) must be interpreted in light of the precautionary principleprecautionary principle

A principle A principle integrated in EU normsintegrated in EU norms Habitats Directive art. 6 par. 3 (“the competent Habitats Directive art. 6 par. 3 (“the competent

national authorities shall agree to the plan or national authorities shall agree to the plan or project project only after having ascertained that it will only after having ascertained that it will not adversely affect the integritynot adversely affect the integrity of the site of the site concerned”): the benefit of the doubt goes to the concerned”): the benefit of the doubt goes to the environmentenvironment

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The Waddenzee case The Waddenzee case and the effectiveness of EU and the effectiveness of EU

Law Law in domestic systemsin domestic systems

Shows important role of “Shows important role of “preliminary preliminary rulingsrulings” in environmental matters ” in environmental matters

help clarify content of EU secondary legislation help clarify content of EU secondary legislation can be used indirectly by private actors to can be used indirectly by private actors to

check Member States’ conformity with EU Lawcheck Member States’ conformity with EU Law Shows potential of so called “Shows potential of so called “direct direct

effectseffects” of Directives” of Directives National Courts may assess national National Courts may assess national

authorities’ behavior against the Habitats authorities’ behavior against the Habitats Directive even without transposition of the Directive even without transposition of the Directive into national legislationDirective into national legislation

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Other implications of the Other implications of the precautionary principle in EU precautionary principle in EU

LawLaw The precautionary principle mayThe precautionary principle may justify justify

restrictionsrestrictions by Member States by Member States on other rights on other rights (e.g. free trade)(e.g. free trade) E.g. E.g. Case C-219/07Case C-219/07 on the lawfulness of a “positive list” on the lawfulness of a “positive list”

for tradable mammals in Belgium, based on precaution for tradable mammals in Belgium, based on precaution (non-tradability in case of scientific uncertainty)(non-tradability in case of scientific uncertainty)

The precautionary principle may The precautionary principle may justify actionjustify action by by EU authorities in the environmental fieldEU authorities in the environmental field E.g. E.g. Case C-405/92Case C-405/92 on Council regulation of driftnet on Council regulation of driftnet

fishing, adopted notwithstanding scientific uncertaintyfishing, adopted notwithstanding scientific uncertainty The precautionary principle may even The precautionary principle may even justify an justify an

infringement procedureinfringement procedure against a Member State against a Member State E.g. E.g. Case C-355/90 Commission v. SpainCase C-355/90 Commission v. Spain when Spain when Spain

violated the EEC Treaty for not protecting important violated the EEC Treaty for not protecting important wetlands, notwithstanding the lack of evidence of wetlands, notwithstanding the lack of evidence of declining population of relevant protected speciesdeclining population of relevant protected species


LawLawSustainable Sustainable DevelopmentDevelopment

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Sustainable Development: A Sustainable Development: A principle with legal meaning principle with legal meaning

or a mere “concept”?or a mere “concept”? ““Our Common Future”Our Common Future” or “ or “Brundtland Brundtland

ReportReport” (1987) ” (1987) ““Sustainable development is development that meets Sustainable development is development that meets the needs of the present without compromising the the needs of the present without compromising the ability of future generations to meet their own needs ability of future generations to meet their own needs …”…”

International Court of Justice International Court of Justice Gabcíkovo-Gabcíkovo-NagymarosNagymaros case (Hungary v Slovakia) (1997), case (Hungary v Slovakia) (1997), para. 140:para. 140:“… “… This need to reconcile economic development This need to reconcile economic development with protection of the environment is aptly expressed with protection of the environment is aptly expressed in the concept of sustainable development …”in the concept of sustainable development …”

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or a mere “concept”?or a mere “concept”? General objectiveGeneral objective of the EU as such (TEU, of the EU as such (TEU,

Preamble; Art. 3.3, 3.5). Preamble; Art. 3.3, 3.5). Sustainable useSustainable use (“prudent and rational”) of (“prudent and rational”) of

natural resourcesnatural resources and sustainable management of and sustainable management of global natural resourcesglobal natural resources are objectives of EU as a are objectives of EU as a whole and of its environmental policy (TEU, art. 3.5, whole and of its environmental policy (TEU, art. 3.5, 21.2.f ; TFEU, art. 191.1)21.2.f ; TFEU, art. 191.1) E.g. United Nations Convention on the Law of the Sea E.g. United Nations Convention on the Law of the Sea

(UNCLOS), Art. 61 on managing living resources in the EEZ: (UNCLOS), Art. 61 on managing living resources in the EEZ: “The coastal State … shall ensure through proper “The coastal State … shall ensure through proper conservation and management measures that the conservation and management measures that the maintenance of the living resources in the exclusive maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation … economic zone is not endangered by over-exploitation … measures shall … be designed to maintain or restore measures shall … be designed to maintain or restore populations of harvested species at levels which can produce populations of harvested species at levels which can produce the maximum sustainable yield …” the maximum sustainable yield …”

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or a mere “concept”?or a mere “concept”? Principle of “Principle of “integrationintegration””: Environmental protection : Environmental protection

requirements must be integrated into the definition and requirements must be integrated into the definition and implementation of all other Union policies and activities (TFEU, implementation of all other Union policies and activities (TFEU, art. 11; Charter of Fundamental Rights of the EU art. 37)art. 11; Charter of Fundamental Rights of the EU art. 37) Procedural obligationProcedural obligation: EU institutions must “take into account” : EU institutions must “take into account”

environmental considerations when adopting measures under environmental considerations when adopting measures under another policyanother policy “… “… Today, both international and EC law require the integration of Today, both international and EC law require the integration of

appropriate environmental measures in the design and implementation appropriate environmental measures in the design and implementation of economic development activities …” (Iron Rhine Railway Case of economic development activities …” (Iron Rhine Railway Case (Belgium v The Netherlands), Arbitral Tribunal Award of 24 May 2005, (Belgium v The Netherlands), Arbitral Tribunal Award of 24 May 2005, par. 59)par. 59)

Interpretative toolInterpretative tool: EU secondary laws must be interpreted in : EU secondary laws must be interpreted in light of environmental objectives, even if they belong to another light of environmental objectives, even if they belong to another area of EU lawarea of EU law Through the integration principle, the ECJ was able to apply the Through the integration principle, the ECJ was able to apply the

precautionary principle in the agricultural and pharmaceutical sectorsprecautionary principle in the agricultural and pharmaceutical sectors Conflict resolution tool:Conflict resolution tool: conflicts between environmental and conflicts between environmental and

other objectives of the Treaty (e.g. free trade), must be resolved, other objectives of the Treaty (e.g. free trade), must be resolved, according to ECJ case law, using the principle of proportionalityaccording to ECJ case law, using the principle of proportionality: given the “high level” of environmental protection required by EU given the “high level” of environmental protection required by EU Law, coupled with integration, it is unlikely that the ECJ will hold Law, coupled with integration, it is unlikely that the ECJ will hold environmental measures incompatible with other objectives, such environmental measures incompatible with other objectives, such as free tradeas free trade Similar value at the international level: a “meta-principle” to resolve Similar value at the international level: a “meta-principle” to resolve

conflicts between environmental protection in multilateral conflicts between environmental protection in multilateral environmental agreements and free trade obligations under WTO Lawenvironmental agreements and free trade obligations under WTO Law

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or a mere “concept”?or a mere “concept”? Intra-generational equityIntra-generational equity

Among general objectives of EU policy Among general objectives of EU policy there is the “the sustainable economic, there is the “the sustainable economic, social and environmental development social and environmental development of developing countriesof developing countries, with the , with the primary aim of eradicating poverty” primary aim of eradicating poverty” (TEU, art. 21.2.d)(TEU, art. 21.2.d)


LawLawOther PrinciplesOther Principles

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Other Principles Other Principles on which on which EU policy shall be based EU policy shall be based

(TFEU, art. 191(TFEU, art. 191)) Preventive actionPreventive action should be taken should be taken

e.g. provisions on Environmental Impact e.g. provisions on Environmental Impact AssessmentAssessment It is considered a customary norm also in international It is considered a customary norm also in international

lawlaw

Environmental damage should as a priority Environmental damage should as a priority be be rectified at sourcerectified at source e.g. “proximity principle” in waste disposale.g. “proximity principle” in waste disposal

The polluter should pay for environmental The polluter should pay for environmental externalities (“externalities (“polluter payspolluter pays” principle)” principle) environmental liability rulesenvironmental liability rules

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THE EU AS AN ACTOR OF THE EU AS AN ACTOR OF THE INTERNATIONAL THE INTERNATIONAL COMMUNITY IN THE COMMUNITY IN THE

ENVIRONMENTAL FIELDENVIRONMENTAL FIELD Promotion of sustainable development and Promotion of sustainable development and

environment protection environment protection at the global level is at the global level is among the objectives and principles among the objectives and principles of EU of EU action in environmental field (TEU, art. 21.2.f)action in environmental field (TEU, art. 21.2.f) Promotion of legal measures to Promotion of legal measures to protect the protect the

environment outside of the EUenvironment outside of the EU (extraterritorial (extraterritorial environmental measures) (e.g. climate change, trade in environmental measures) (e.g. climate change, trade in wastes, trade in endangered species, driftnet fishing)wastes, trade in endangered species, driftnet fishing)

EU as a strong player in EU as a strong player in international negotiationsinternational negotiations and and policy making, and as party to policy making, and as party to international international agreementsagreements

Effective Effective implementation of International implementation of International Environmental LawEnvironmental Law within the EU within the EU

Treaties binding on EU institutions and Member StatesTreaties binding on EU institutions and Member States Commission role in supervising implementation by States of Commission role in supervising implementation by States of

International conventionsInternational conventions

THE EU AS AN ACTOR OF THE EU AS AN ACTOR OF THE INTERNATIONAL THE INTERNATIONAL COMMUNITY IN THE COMMUNITY IN THE

ENVIRONMENTAL FIELDENVIRONMENTAL FIELDTHE “MOX” CASE(S)THE “MOX” CASE(S)

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The MOX Plant at The MOX Plant at SellafieldSellafield

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The MOX Case(s) The MOX Case(s)

The case under the UNCLOSThe case under the UNCLOS ITLOS, The MOX Plant Case (Ireland v. United ITLOS, The MOX Plant Case (Ireland v. United

Kingdom), Provisional Measures, Order of 3 Kingdom), Provisional Measures, Order of 3 December 2001December 2001

Arbitral Tribunal Orders No. 3 (24 June 2003) and Arbitral Tribunal Orders No. 3 (24 June 2003) and No. 6 (6 June 2008)No. 6 (6 June 2008)

Dispute concerning access to information Dispute concerning access to information under article 9 of the OSPAR Convention under article 9 of the OSPAR Convention (Ireland v. United Kingdom), Arbitral Tribunal (Ireland v. United Kingdom), Arbitral Tribunal Award of 2 July 2003Award of 2 July 2003

European Court of Justice, Case C-459/03, European Court of Justice, Case C-459/03, Commission v Ireland, Decision of Grand Commission v Ireland, Decision of Grand Chamber 30 May 2006Chamber 30 May 2006

some key principles of eu environmental law

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