Preventive action

The prevention principle means that the EU should try to prevent environmental damage by acting before it has already occurred. It has long been known that prevention of environmental damage is to be preferred to restitution after the damage has occurred. This is partly because it is often impossible to repair damage to the environment and partly because even if it is possible to repair or in a way manage the damage, the costs of prevention are normally much lower than the costs when the damage is already a fact.

The principle became important in the Community through the Third Environment Action Programme. Today, it is in Article 191 (2) TFEU as one of the principles on which EU environmental policy is based. The EU has a number of tools to implement the principle. The usual ones are to establish emission limits, impose licensing requirements, and introduce economic instruments. The preventive approach has also led to the development of rules on, for example, environmental impact assessment and environmental audit. The objective of these instruments is to combine economic development and the desire to prevent environmental problems.

Article 192 says nothing about how prevention should take place, so the legal implications of the principle are not clear. A number of legal acts explicitly refer to a duty to take preventive measures. Among others, waste-related EU rules require that negative impacts of the generation and management of waste shall be prevented,^{[1] [2] [3] [4] [5] [6] [7] [8]} while the Industrial Emissions Directive requires that pollution shall be avoided through appropriate preventive measures.ⁿ⁷

• [1] Directive 2008/98/EC of the European Parliament and of the Council on waste [2008] OJ L312/3, Art 1.
• [2] Directive 2010/75/EU on industrial emissions (n 40), Art 3.
• [3] Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro ECLI:EU:C:1999:422, para 51.
• [4] Kramer EU Environmental Law (n 26) 24—6.
• [5] 12° The principle has been invoked by the Commission before the EU Court in certain othercases that have had nothing to do with waste. An example is Case C-438/07 Commission v SwedenCLI:EU:C:2009:196.
• [6] Case C-2/90 Commission v Belgium ECLI:EU:C:1992:310, para 34.
• [7] Ibid, para 35. Convention on the Control of Transboundary Movement of Hazardous Wastesand Their Disposal (‘Basel Convention’) (Basel, 22 March 1989) 1673 UNTS 57.
• [8] Case C-422/92 Commission v Germany ECLI:EU:C:1995:125, para 34.