Environmental citizenship and the law: Repairing the European road

Journal of Environmental Law

Volumn 8, Issue 2, 1996, Pages 219-235

  Macrory, Richard ^a  

^a IMPERIAL COLLEGE LONDON   (United Kingdom)

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EID: 0000102450     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/8.2.219     Document Type: Article

References (86)

1. Treaty Establishing the European Community, Article 8: '(1) Citizenship of the Union is hereby established. Every person holding the nationality of a member-state shall be a citizen of the Union. (2) Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.' The Maastricht Treaty established both a European Union and a European Community. The Union is essentially a forum for political cooperation, and only the Community possesses legal entity, and it is within the Community structure that legislation is made. My paper will, therefore, for the most part refer to the European Community.
2. Lord Dahrendorf, 'Education for a European Britain', Royal Society of Arts, 9 June 1991.
3. Article 8a.
4. Article 8b.
5. Article 8d.
6. Principle 1.states that, 'Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature'.
7. The 1994 Report of the European Parliament's Committee on Institutional Affairs proposed a model constitution for the European Union which included a Title on Human Rights Guaranteed by the Union. These rights included, inter alia, 'Everyone shall have the right to the protection and preservation of his natural environment'. Doc EN/RR/244/244403 27 January 1994.
8. Article 66 of the Portuguese Constitution contains the most explicit expression of environmental right in European Constitutions by providing that 'everyone shall have the right to a healthy and ecologically balanced environment and a duty to defend it'. Neveretheless, only where the state has determined what makes up such an environment are these rights enforceable. For a valuable comparative study which demonstrates the problem of constructing enforceable environmental rights: see, E. Brandl and H. Bungert, 'Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad', 1992 Harvard Environmental Law Review Vol 16 No 1.
9. Nevertheless, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities recently produced an elaborate Draft Declaration of Principles on Human Rights and the Environment: see Environmental Law Network International Newsletter 2/1994 at 120, and RECIEL 1994 Vol 3 No 5 261. See also, Aguilar and Popovic 'Law-Making in the United Nations: The UN Study on Human Rights and the Environment', 1994 RECIEL Vol 3 No 5 197-205.
10. Nevertheless, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities recently produced an elaborate Draft Declaration of Principles on Human Rights and the Environment: see Environmental Law Network International Newsletter 2/1994 at 120, and RECIEL 1994 Vol 3 No 5 261. See also, Aguilar and Popovic 'Law-Making in the United Nations: The UN Study on Human Rights and the Environment', 1994 RECIEL Vol 3 No 5 197-205.
11. Nevertheless, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities recently produced an elaborate Draft Declaration of Principles on Human Rights and the Environment: see Environmental Law Network International Newsletter 2/1994 at 120, and RECIEL 1994 Vol 3 No 5 261. See also, Aguilar and Popovic 'Law-Making in the United Nations: The UN Study on Human Rights and the Environment', 1994 RECIEL Vol 3 No 5 197-205.
12. EC Commission v Germany [1991] 1 ECR 2567.
13. Article 189 EC Treaty. 'A directive shall be binding ,as to the result to be achieved, upon each Member State to which it is addressed but shall leave to the national authorities the choice of form and methods.'
14. 579. There is another line of authority within the European Court of Justice where the Court has required the formal transposition of Directives into national law but concerned with Directives based on Article 100 or 100A (harmonization in relation to functioning of the common market). Here the justification for formal transposition is distinct and based on the concept of harmonization rather than individual rights. See R. B. Macrory, 'EC Directives and UK Control Policy and Practice', 55th Conference Proceedings National Society of Clean Air, 1988.
15. Article 2 of the Directive provides that the specified limit values must not be exceeded 'in order to protect human health in particular'.
16. Directive 90/313 on Freedom of Access to Information on the Environment OJ 1990 L 158/56.
17. Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment OJ 1985 L 175/40.
18. JEC Commission v Germany [1991] 1 ECR 825.
19. A similar argument is found in Case C-13/90 Commission v France [1991] ECR 1-4327 which again concerned the air quality Directives. In insisting upon formal transposition into national law, the Court in part justified their argument by suggesting that these Directives imposed obligations on potential polluters.
20. It has been suggested that the Court will in practice be liberal in interpreting that Environment Directives create or imply rights, as the case law quoted above suggest: I. Pernice, 'Kriterien der normativen Umsetzung von Umweltrichtlinien der EG Lichte der Rechtsprechung des EuGH', 1994 Europarecht 325.
21. For a lengthier discussion on various forms of transposition see, J. Jans, 1995 European Environmental Law at 119 seq (Kluwer: London).
22. Under this doctrine, even where a Member State has not implemented a Directive properly into national law, certain provisions of Directives provided they are precise and certain may be invoked before national courts but only against Government or other 'emanations of the State' and not other individuals; see, Case-91/92 Dori v Recreb Srl [1994] ECR 1-3325 which confirmed that the doctrine could not be invoked against private parties. See generally, S. Prechal, Directives in European Community Law, 1995 (Oxford University Press: Oxford).
23. In the environmental field, see especially, L. Kramer, 'The Implementation of Community Environmental Directives: Some Implications of the Direct Effect Doctrine', 1991 Journal of Environmental Law Vol 3 No 1 39. In practice, both in the United Kingdom and before the European Court of Justice (but not in countries such as the Netherlands), it has proved difficult to date to convince the courts that environmental directives have direct effect: see, J. Holder, 'A Dead-End for Direct Effect?', 1996 Journal of Environmental Law Vol 8 No 2.
24. In the environmental field, see especially, L. Kramer, 'The Implementation of Community Environmental Directives: Some Implications of the Direct Effect Doctrine', 1991 Journal of Environmental Law Vol 3 No 1 39. In practice, both in the United Kingdom and before the European Court of Justice (but not in countries such as the Netherlands), it has proved difficult to date to convince the courts that environmental directives have direct effect: see, J. Holder, 'A Dead-End for Direct Effect?', 1996 Journal of Environmental Law Vol 8 No 2.
25. Case C-106/89 Marleasing SA v La Commercial International de Alimantiacion SA [1990] ECR 1-4135 where the European Court of Justice held that national law whether or not introduced to implement Community obligations must be interpreted in such a way as to ensure conformity with Community directives 'in so far as possible'. The limits of the doctrine are still being worked out.
26. Cases C-6/90 and C-g/go Frankovitch v Italian State [1991] 1-ECR 5357. For the most recent judgment concerning the principles see, Cases C-46/93 and C 48/93 Brasserie du Pecheur SA v Germany; R v Secretary of State for Transport ex parte Factortame and others ('Factortame III'), [1996] 75 CMLR 889.
27. See generally, P. Birnie and A. Boyle, International Law and the Environment 1993 (Oxford University Press: Oxford), esp 160 seq; P. Sand, The Effectiveness of International Environmental Agreements 1992 (Grotius: Cambridge); D. Freestone, 'The Road from Rio: International Law after the Earth Summit', 1994 Journal of Environmental Law Vol 6 No 2 193.
28. See generally, P. Birnie and A. Boyle, International Law and the Environment 1993 (Oxford University Press: Oxford), esp 160 seq; P. Sand, The Effectiveness of International Environmental Agreements 1992 (Grotius: Cambridge); D. Freestone, 'The Road from Rio: International Law after the Earth Summit', 1994 Journal of Environmental Law Vol 6 No 2 193.
29. See generally, P. Birnie and A. Boyle, International Law and the Environment 1993 (Oxford University Press: Oxford), esp 160 seq; P. Sand, The Effectiveness of International Environmental Agreements 1992 (Grotius: Cambridge); D. Freestone, 'The Road from Rio: International Law after the Earth Summit', 1994 Journal of Environmental Law Vol 6 No 2 193.
30. Annex IV, Montreal Prototcol on Substances that Deplete the Ozone Layer, 1987; Article 10, Framework Convention on Climate Change, 1992.
31. Annex V, Montreal Protocol. Freestone, op cit, describes the enforcement regime as One of the strictest devised for a global treaty of this kind'.
32. One of the four defined functions of the Commission under the Treaty is to 'ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied'. The existing case-law on standing, however, means that it is not a duty which could be enforced in law by third parties.
33. In the environmental field see, R. Macrory, 'The Enforcement of Community Environmental Laws: Some Critical Issues', 1992 Common Market Law Review 347.
34. Article 171. The Court has yet to fine a Member State under these procedures.
35. Council Directive 91/692/EEC, Standardizing and Rationalizing Reports on the Implemention of certain Directives relating to the Environment.
36. Originally known as the 'Chester Network' after the place of its first meeting and established in 1992, now called IMPEL.
37. Established under EC Regulation 1210/90. Despite pressure from the European Parliament, the powers and duties of the Agency were at the time deliberately restricted to avoid it becoming directly involved in issues of implementation and enforcement, but its terms of reference are to be reviewed.
38. Sometimes three years as in the Environmental Assessment Directive.
39. It may be that under the Access to Environment Information Directive there would be a legal right to obtain such documentation.
40. European Parliament and Council Directive 94/62/EC on Packaging and Packaging Waste, Article 16. Reproduced in JEL Vol 7 No 2.
41. Considerable discussions were held between the UK Government and the European Commission over the enforcement provisions in the Water Bill 1989 leading to amendments to the text of the Bill.
42. Case C-2/88 Zwartweld [1990] ECR 1-3365.
43. Notice of Cooperation between National Courts and the Commission in Applying Articles 85 and 86 of the Treaty, OJ 1993 C39/6; Notice of Cooperation between National Courts and the Commission in the State Aid Field, OJ 1995 C312/8.
44. Once enforcement proceedings are commenced, however, the Commission may find itself inhibited from redefining issues or raising new points as stated in the Reasoned Opinion.
45. Joined Cases C-46 and 0-48/93 Brasserie du Pecheur SA v Germany R v Secretary of State for Transport ex parte Factorlame [1996] 75 CMLR 889. According to the Court of Justice, one of the factors to be taken in account when determining whether a Member State should be liable was 'the fact that the position taken by a Community institution may have contributed towards the omission', (para 56).
46. 'The Conference agrees that the Intergovernmental Conference to be convened in 1996 will examine to what extent it might be possible to review the classification of Community Acts with a view to establishing an appropriate hierarchy between the differing categories of Act.' This Declaration followed unsuccessful proposals made at the time, notably by the European Parliament to reclassify Community acts, which included the abolition of Directives and the creation of a new form of general legal instrument, a 'Loi': see, Resolution of the European Parliament on the Nature of Community Acts, OJ 19910/129/136.
47. House of Lords, gth Report Session, The Implementation and Enforcement of Environmental Legislation 1991-92 (HMSO: London).
48. See also, G. Winter (ed), 'The Directive: Problems of Construction and Directions for Reform' in Sources and Categories of European Union Law 1996 (Nomos Verlagsgesellschaft: Baden-Baden).
49. For a recent and firmly argued liberal approach see the judgment of Otton J in R v Her Majesty's Inspectorate of Pollution and the Minister of Agriculture Fisheries and Food ex parte Greenpeace Ltd 1994 Journal of Environmental Law Vol 6 No 2,
50. and case analysis by Purdue, ibid.
51. The Court has also recently confirmed that there is no provision in the Treaty for third parties to challenge the legality of Directives, as opposed to Regulations or Decisions: Asocarne v Council Case T-99/94, quoted in M. Beloff, supra.
52. Case 25/62 Plaumann v Commission [1963] ECR 95. It would seem that the Court would prefer such issues to be brought to their attention by a reference from the national courts under Article 177, but this will not necessarily deal with the legal control of the Commission's activities.
53. Stichting Greenpeace Council and others v EC Commission, Case T-585/93 12.2.94, 1996 Journal of Environmental Law Vol 8 No 1.
54. For a similar result see, Case T-117/94 Associazione agricoltori della procinca di Rivigo et all v EC Commission, concerning a challenge to a decision of the Commission to grant financial assistance for conservation measures under the LIFE fund.
55. Case T-219/95R Danielsson and others v Commission of the European Communities, 22 December 1995.
56. See, L. Kramer, 'Public Interest litigation in Environmental Matters before the European Courts' 1996 Journal of Environmental Law Vol 8 No 1.
57. R. Macrory (ed), (1982) Britain, Europe and the Environment (Imperial College Centre for Environmental Technology: London).
58. Case 0-309/89 Cordorniu v EC Council [1995] CMLR 561.
59. In other cases, the Court appears to have adopted the view that if the challenged act was truly a Regulation which by its nature had general application, third parties would not the right to challenge it: see, T-472/93 Campo Ebro v EU Council [1996] CMLR 1038. In Cordorniu the Court appeared to have accepted that an act could both be a true Regulation and of individual and direct concern at the same time.
60. See in particular, European Parliament Committee on Budgets, Report on the 1996 Draft Budget as modified by the Council A4-0305/95 11.12.95, and Final Adoption of the General Budget of the European Union for the financial year 1996 OJ L 22 29.1.96. I am grateful to David Wilkinson of the Institute for European Environmental Policy for information on these political developments.
61. See e.g., 'Green ing the Treaty II: Sustainable Development in a Democratic Union', Climate Action Network et al, 1995.
62. EC Treaty Article 1386.
63. Other than to protect the interests of the position.
64. Among the general tasks of the Community defined in Article 2 of the Treaty as amended are the promotion of 'sustainable and non-inflationary growth respecting the environment'. See generally, R. Macrory and M. Hession M, 'Maastricht and the Environmental Policy of the Community: Legal Issues of a New Environment Policy' in Legal Issues of the Masstricht Treaty, O'Keefe and Twomey (eds), 1993 (Chancery Publications: London).
65. Article 130r EC Treaty. 'Environmental protection requirements must be integrated into the definition and implementation of other Community policies.' Although the sentiment is clear, the precise legal meaning of this requirement, let alone its institutional implementation, remain unclear.
66. Article F2. 'The Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member States as general principles of Community law.' But under Article L this provision is excluded from the jurisdiction of the European Court of Justice.
67. F. Jacobs, 'Human Rights in the European Union', 1994, Durham European Law Institute.
68. See generally, R. Macrory and M. Hession 'Balancing Trade Freedom with the Requirements of Sustainable Development' in The European Union and World Trade Law, Emilou and O'Keefe (eds) 1996 (Wiley: Chichester).
69. Article 130r.
70. ADBHU [1985] ECR 531. 'The principle of free movement of goods and freedom of competition together with freedom of trade as a fundamental right are general principles of law which the Court ensures observances.'
71. Since 1969 the Court of Justice has recognized that Community Institutions must comply with basic human rights, and that these doctrines may also apply to Member States when applying Community law. But under Community law they do not apply to national legislation per se, and in this respect can be contrasted with the economic rights granted under the Treaty; see Jacobs, op cit.
72. Confirmed in ADBHU supra, though in practice the Court is more likely to find other Community policy objectives justify action despite its conflict with Article 30.
73. Article 36.
74. The sole called 'rule of reason'.
75. In Case 302/86 Commission v Denmark [1988] ECR 4607 (Danish bottles), the European Court explicitly recognized that environmental protection, though not mentioned as such in Article 36, was such a ground.
76. See, the Spaak Report, Brussels 1956.
77. The contrast between the objective examination of trade restrictive measures and the more political evaluation of environmental appears plausible. But it has to be said that when one examines the cases concerning alleged trade restrictive measures, it is clear the court is often equally faced with many ambiguities, and is often engaged in complex social and political choices.
78. Op cit.
79. Alternative approach might be that the role of the court should be determine whether an activity harmed the environment but to leave it to the national authority to dermine what level of harm should be permitted, subject to proportionality.
80. See supra 7. Some Nordic countries are thought to support the inclusion of such a right during the current Inter-Governmental Conference.
81. N. Haigh, Manual of Environmental Policy: the EC and Britain, (Longmans: London).
82. Supra 60.
83. N. Neuwahl, 'Individuals and Gatt: Direct Effect and Indirect Effects of the General Agreement on Tariffs and Trade in The European Union and World Trade Law', 1996, op.cit.
84. No doubt the courts would have to develop thresholds since so many activities are environmental damagings but the same developments and drawing back can be seen in the case-law on restrictions of trade and measures of equivalent effect. But the purpose of the proposal is to permit the development of principle rather than lay down over-prescriptive rules in advance.
85. Transport and the Environment, 1994 (HMSO: London).
86. G. K. Chesterton, The Scandal of Father Brown, 'Point of the Pin', 1935.