The EU and International Environmental Law

The importance of EU Environmental Law at the European and global level Environment at the core of EU policy and legal action Environmental regulation significant part of EU Law in general Comprehensive and effective environmental legal framework for Member States (up to 80% of environmental norms in EU Member States stem from EU Law) Supported by a strong implementation and enforcement machinery based inter-alia on the effective role of the European Court of Justice (ECJ) Importance of the EU Environmental Law also at the global level EU as a fundamental actor of the international community in environmental matters Pursues environmental protection at the global level Implementation and enforcement of International Environmental Law at EU level

Basic principles and objectives of the EU in the Environmental field High level of environmental protection and Sustainable development In the EU “…promote economic and social progress for their peoples, taking into account the principle of sustainable development and... environmental protection...” (TEU, Preamble) “...work for the sustainable development of Europe based on balanced economic growth...aiming at... high level of protection and improvement of the quality of the environment” (TEU, Art. 3.3)

Basic principles and objectives of the EU in the Environmental field High level of environmental protection and Sustainable development Outside of the EU “…contribute to peace, security, the sustainable development of the Earth [...]” (TEU, Art. 3.5) “…help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;” (TEU, 21.2.f ) “Union policy on the environment shall contribute to pursuit: […] prudent and rational utilisation of natural resources” (TFEU, art. 191.1)) “the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty” (TEU, art. 21.2.d)

Basic principles and objectives of the EU in the Environmental field The Precautionary Principle “Union policy ... shall be based on the precautionary principle” (TFEU, art. 191.2) Preventive action should be taken e.g. provisions on Environmental Impact Assessment Environmental damage should as a priority be rectified at source e.g. “proximity principle” in waste disposal The polluter should pay for environmental externalities (“polluter pays” principle)

The Legal Basis for EU Environmental Action Strong legal basis for EU competence in the environmental field, since environment protection and sustainable development are among basic principles and objectives of the EU

The Legal Basis for EU Environmental Action Competence on environmental matters is shared between Member States and the EU (except for exclusive competence on the conservation of marine biological resources under the common fisheries policy) (TFEU, artt. 3-4), means that EU action shall be based on the principles of: Subsidiarity The Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level and Proportionality The content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties

The Legal Basis for EU Environmental Action Legal basis for far reaching action by the EU on environmental matters Environmental issues are often intrinsically transfrontier in nature > subsidiarity test is easily met The Union shall aim at “high level” of environmental protection, a standard that must be applied also by EU bodies in their initiatives (TEU, Art. 3; TFEU, Art. 114.3 and 191.2) > proportionality test is more easily met Wide definition of “environment” Union policy shall contribute to the protection of the “environment” interpreted in a wide sense (including e.g. landscape management, safeguarding human health) Includes promotion of procedural rights that are relevant for environmental objectives (e.g. participation in decision making relating to environmental matters) Promotion of sustainable development and environment protection at the global level (TEU, art. 3.5, 21.2.f; , TFEU, 191.1) > potential extraterritorial environmental measures (e.g. climate change, trade in wastes, trade in endangered species, driftnet fishing)

The Principles Governing EU Environmental Law The Precautionary Principle

The Precautionary Principle in EU Law “Union policy ... shall be based on the precautionary principle” (TFEU, art. 191.2) Commission communication COM(2000) 1 on the precautionary principle Developed by case law: The “Waddenzee” case (case C-127/02)

Other potential implications of the precautionary principle in EU Law The precautionary principle may justify restrictions by Member States on other rights (e.g. free trade) E.g. Case C-219/07 on the lawfulness of a “positive list” for tradable mammals in Belgium, based on precaution (non-tradability in case of scientific uncertainty) The precautionary principle may justify action by EU authorities in the environmental field E.g. Case C-405/92 on Council regulation of driftnet fishing, adopted notwithstanding scientific uncertainty The precautionary principle may justify an infringement procedure against a Member State E.g. Case C-355/90 Commission v. Spain regarding Spain’s violation of the EEC Treaty for not protecting important wetlands, notwithstanding the lack of evidence of declining population of relevant protected species

The Principles Governing EU Environmental Law Sustainable Development

Sustainable Development in EU Law General objective of the EU (Art. 3.3, 3.5). “… promote economic and social progress for their peoples, taking into account the principle of sustainable development [...]” (TEU, Preamble) “…work for the sustainable development of Europe […]” (TEU, Art. 3.3) “…contribute to peace, security, the sustainable development of the Earth [...]” (TEU, Art. 3.5)

Sustainable Development in EU Law Sustainable use (“prudent and rational”) of natural resources and sustainable management of global natural resources are objectives of EU as a whole and of its environmental policy: “…define and pursue common policies and actions …work for a high degree of cooperation in all fields of international relations, in order to: […] (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;” (TEU, 21.2.f ) “Union policy on the environment shall contribute to pursuit: […] prudent and rational utilisation of natural resources” (TFEU, art. 191.1))

Sustainable Development in EU Law Principle of “integration”: “Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development” (TFEU, art. 11; Charter of Fundamental Rights of the EU art. 37) Procedural obligation: EU institutions must “take into account” environmental considerations when adopting measures under another policy Interpretative tool: EU secondary laws must be interpreted in light of environmental objectives, even if they belong to another area of EU law Through the integration principle, the ECJ was able to apply the precautionary principle in the agricultural and pharmaceutical sectors Conflict resolution tool: conflicts between environmental and other objectives of the Treaty (e.g. free trade), must be resolved, according to ECJ case law, using the principle of proportionality: given the “high level” of environmental protection required by EU Law, coupled with integration, there is a strong presumption that the ECJ will hold environmental measures compatible with other objectives, such as free trade

Sustainable Development in EU Law Intra-generational equity Among general objectives of EU policy there is “the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty” (TEU, art. 21.2.d)

THE EU AS AN ACTOR OF THE INTERNATIONAL COMMUNITY IN THE ENVIRONMENTAL FIELD Promotion of sustainable development and environment protection at the global level is among the objectives and principles of EU action in environmental field (TEU, art. 21.2.f) Promotion of legal measures to protect the environment outside of the EU (extraterritorial environmental measures) (e.g. climate change, trade in wastes, trade in endangered species, driftnet fishing) EU as a strong player in international negotiations and policy making, and as party to international agreements Effective implementation of International Environmental Law within the EU Treaties binding on EU institutions and Member States Commission role in supervising implementation by States of International conventions A negative role?

THE EU AS AN ACTOR OF THE INTERNATIONAL COMMUNITY IN THE ENVIRONMENTAL FIELD THE “MOX” CASE(S)

The MOX Plant at Sellafield

The MOX Plant at Sellafield

The MOX Case(s) The case under the UNCLOS ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001 Arbitral Tribunal Orders No. 3 (24 June 2003) and No. 6 (6 June 2008) Dispute concerning access to information under article 9 of the OSPAR Convention (Ireland v. United Kingdom), Arbitral Tribunal Award of 2 July 2003 European Court of Justice, Case C-459/03, Commission v Ireland, Decision of Grand Chamber 30 May 2006