Pertinent Principles

As noted previously, the First Environment Action Programme already set out principles for the protection of the environment at Community level.4⁷ However, it was not until the 1987 Single European Act that some of these principles were incorporated into the EEC Treaty. This was done by Article 130r (2), which contained the following principles:

• 1. preventive action should be taken;
• 2. environmental damage should as a priority be rectified at source;
• 3. the polluter should pay;
• 4. environmental protection requirements shall be a component of the Community’s other policies.

The last principle was strengthened by the Treaty of Maastricht to read:

Requirement of environmental protection must be integrated into the definition and implementation of other Community policies.

Besides, the Treaty of Maastricht added another principle to the list, namely the precautionary principle, and introduced the requirement of a high level of protection in Article 130r. The article was renamed Article 174. Through the Treaty of Maastricht, an addition to Article 2 of the EC Treaty provided that the Community shall promote sustainable and non-inflationary growth respecting the environment.

The Treaty of Amsterdam introduced important changes in principles that are now mentioned in the preamble of TFEU and are meant to be applicable to all EU activities. The principle of integration of environmental concerns in other EU policies and the principle of a high level of protection were moved to the beginning of the EC Treaty to underline the marked position of the environment in the Community. In addition, the principle of sustainable development was introduced as a new basic principle. These principles are considered today as general, with specific importance for the Union’s environmental work.

Through the Treaty of Lisbon, the place of the principles was changed. Principles of precaution, prevention, rectification preferably at the source, and polluter should pay are now included in Article 191 (2) TFEU. It is also mentioned there that the point of ^[1]

departure of Union environmental policy is a high level of protection with due regard to various regional conditions. In Article 11 TFEU, among the general principles and outside the chapter on environment, one can find the principle of integration of environmental concerns in other policies. In the TEU, sustainable development and a high level of environmental protection are named in Article 3 (3). The subsidiarity principle is also included in Article 5 (3) of the same Treaty. The latter is not specifically an environmental principle, but may be significant for defining environmental policy.

As regards the legal effects of the principles in Article 191 (2), the Court has stated that Article 191 merely sets general environmental objectives.^{[2] [3] [4] [5] [6] [7] [8] [9]} The Court has at the same time found that the Article contains ‘a series of objectives, principles and criteria which the Community legislator must respect in implementing environmental policy’^⁹ The Court has also been willing to examine whether the aim of a certain legal act has really been a high level of protection^⁰ or whether the act has been justified in accordance with the precautionary principled¹ In Sweden v Commission, the General Court annulled a Commission directive that introduced paraquat as the active substance according to Directive 91/414 on Plant Protection Products,52 stating, inter alia, that the precautionary principle and the principle of a high level of protection had been infringed^³

The Court has at the same time laid down that judicial review shall be limited to the question of whether the EU legislator in adopting a certain legal act is responsible for a manifestly incorrect assessment of conditions for the application of the article. This is because a balance is necessary between objectives and principles of the article and because of the complex implementation of the criteria.54 Thus, the Union’s legislative body has a wide discretion as regards policy formulation. It should also be noted that when these principles are treated in connection with examination of the validity of EU legal acts, they have been mainly relied on to protect the interests of individuals or to justify a contested environmental protection provision rather than to challenge a legal act for not (or not sufficiently) taking into account relevant environmental principles.55 It is also likely that the possibility of examining the compatibility of legal acts with the principles of Article 191 (2) varies depending on the clarity of the various principles.56 The principles in Article 191 (2) certainly play a role in the interpretation of EU legal acts, both those that are a part of environmental policy and those that address environmental issues although their bases are in other policy areas. An example is the Greenpeace France and Others case in which the Court interpreted the then Directive 90/220/EEC on the deliberate release of genetically modified organisms on the basis of the precautionary principle^⁷ The Directive was based on the legal ground for the internal market, the present Article 114 TFEU. In the Waddenzee case, the Court of Justice opined that the Habitat Directive shall be interpreted in the light of the precautionary principle, which was declared by the Court as one of the cornerstones of EU environmental policy.5⁸

Supposedly, the principles in Article 191 lack direct effect and cannot be the basis for decision in individual cases in the same way as, for instance, Articles 34—36 TFEU on quantitative import restrictions can.5⁹ The legal effects of other environment- related principles will be discussed presently when relevant and in the context of the respective principle.

• [1] 6 Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollutionand on the introduction of penalties for infringements [2005] OJ L 255/11 provides in its Art 3(1) ethat the Directive shall apply to discharges of polluting substances in the High Seas. 47 See section 2.2.
• [2] Case C-379/92 Peralta ECLI:EU:C:1994:296, para 57. This has been repeated in case C-378/08ERG (n 24) with respect to the principles of a high level of protection and polluter pays.
• [3] Case C-284/95 Safety Hi-Tech ECLI:EU:C:1998:352, para 36 and Case C-341/95 Bettati (n 25),para 34.
• [4] The Court has in this context stated that this level of protection does not need to be technicallythe highest possible in order to be compatible with Art 191(2). See C-341/95 Bettati (n 25), para 47.
• [5] Case C-343/09 Afton Chemical Limited ECLI:EU:C:2010:419, para 62.
• [6] 52 Council Directive 91/414/EEC concerning the placing of plant protection products on themarket [1991] OJ L 230/1. This directive has now been repealed and replaced by Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing of plant protectionproducts on the market and repealing Council Directives 79/117/EEC and 91/414/EEC [2009] OJL 309/1.
• [7] CaseT-229/04 Sweden v Commission ECLI:EU:T:2007:217, para 262.
• [8] Case C-284/95 Safety Hi-Tech (n 49), para 37 and Case C-341/95 Bettati (n 25), para 35.
• [9] It applies to cases C-378/08 ERG (n 24), C-341/95 Bettati (n 25), and C-343/09 Afton Chemical(n 51).