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: The EU environmental policy and rules as crafted at primary law level: converging principles to secure compliance

The possibility for the EU legal regime to implement rigorously its environmental rules stems from some cornerstone principles purposely inserted at primary law level, particularly in the TFEU.

Firstly, a striking (and unique) feature of the EU normative framework of relevance for our purposes is the principle of integration: according to article 37 of the Charter of Fundamental Rights of the European Union,

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.

This principle is the key to understanding that environmental protection and promotion can only be achieved by taking a holistic approach that encompasses all areas of law. As such, it seems remarkably intuitive of the EU primary legislator[1]: it not only avoids environmental policies being considered as recessive with regard to the other policies and priorities of the Union, but it also, and more importantly, serves as a guide for interpreting all EU policies coherently with environmental protection. The emblematic example of the importance of this intuition now consists of the Paris Climate Agreement, which requires an overall re-assessment of all human activities in order to achieve its goals and, therefore, a substantial reform of the legal framework under which these activities may (legitimately) be continued.

Another important feature of EU environmental legal principles has been set out for some time by CJEU case-law, advocating a broad definition of ‘environment’ under EU law. This notion includes the environment in the strictest sense of human health, as well as the exploitation of natural resources. The relevance of this approach is self-explanatory, as it permits the EU to implement its environmental policy very broadly, allowing it to use extensively the shared competences enjoyed by it in this area of law. In fact, as we will see below, the EU is a more powerful ‘authority’ than the Member States in enforcing environmental law and applying sanctions for infringements of its provisions; this leads to a further upside in terms of the effectiveness of EU law in our subject matter. Once again, the challenge posed by the Paris Climate Agreement to all States to achieve a complete turnaround of their societies will certainly enhance the importance of having a broad definition of environment as a legal background for law-making as well as for implementing the already existing legislation.

Finally, the pillars on which EU environmental policy is built include, notably, the standard of care for the environment that must be applied at EU level: notably, Article 191 TFEU requires ‘a high level of protection’.11 'High’ level is clearly to be interpreted in comparison to that applied within international conventions, on the matrix of which domestic - and, in our case, EU - rules are traditionally developed.

The decision to remain at the forefront of environmental protection worldwide has involved a massive effort by the EU as legislator; indeed, over 200 pieces of EU secondary legislation (mainly directives) have been adopted in this field, having clear implications on their implementation, enforcement and sanctions: the EU has created a fully-fledged legal regime to protect and promote ‘any’ aspect of the environment at EU level; this system is coupled with an efficient enforcement structure which is capable, inter alia, of imposing sanctions on Member States that do not comply with the EU rules.

Needless to say, there will be more to come and more will have to be done for the purposes of implementing the Paris Climate Agreement, but analysing the current situation certainly provides us with food for thought for the future.

  • [1] See B. Sjafjell, ‘The environmental integration principle: a necessary step towards policy coherence for sustainability’, in F. Ippolito, M.E. Bartoloni, M. Condinanzi (eds.), EU and the Proliferation of Integration Principles under the Lisbon Treaty, (Routledge, 2019); J.H. Jans, ‘Stop the Integration Principle?’ (2011) 33 Eordham Int’l L.J. 1533. 2 By contrast, this is precisely what has always happened in a similar pattern of transnational economic integration, namely the WTO system, in which any measure adopted by a contracting party to protect the environment has all too often been viewed as a sort of ‘green protectionism’, when protectionism was certainly not the rationale behind environmental measures aimed at restricting trade that is unsustainable from an environmental perspective. On this topic, the literature is vast: see, amongst others, and for further insights, M.W. Gehering, ‘Legal Transitions to the green economy’ (2016) 12 McGill Int’l J. Sust. Dev. L. & Pol’y 135; T.W. Dagne, 'The Debate on Environmentally Motivated Unilateral Trade Measures in the World Trade Organization: The Way Forward’ (2010) 9 Wash. U. Global Stud. L. Rev. 427; E. Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law, and Legal Theory (OUP, 2009); S. Char-novitz, ‘The WTO’s environmental progress’ (2007) 10 Journal of International Economic Law 685; A. Goyal, The WTO and International Environmental Law (OUP, 2006); O. Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Debate (Hart, 2004); E. Neumayer, Greening Trade and Investment: Environmental Protection Without Protectionism (Earthscan, 2001); D. Tsogtbaatar, ‘Trading for the Future: Environmental Dimensions of Global Trade’ (2000) 5 International Trade and Business Law Annual 277; M.A: Cole, “Examining the Environmental Case Against Free Trade’ (1999) 33 Journal of World Trade 183; E.U. Peters-mann, ‘International Trade Law and International Environment Law - Prevention and Settlement of International Disputes in GATT’ (1993) 27 Journal of World Trade 43. 3 C-157/96, National Farmers’ Union, ECLI:EU:C:1998:191 and T-229/04, Paraquat, ECLLEU: T:2007:217.
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