71.The European Union (EU) is a unique and complex regional system of integration composed of 28 European countries. With the objective to foster cooperation between the Member States and cooperation across the countries, European institutions are responsible for creating common principles and instruments. As stated in Article 5 of the Treaty on European Union (TEU):
“the limits of Union competences are governed by the conferral principle.[…] Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States”.112
72.Environment is a shared competence between the EU institutions and the Member States.113 Originally focused on economic integration, more importance was given to economic provisions than to environmental protection in EU Treaties until 1986, when specific environmental provisions had been introduced into primary EU law. Since the entry into force of the Lisbon modification in 2009, primary law is currently composed of the European Treaties: Treaty on European Union (TEU) and Treaty of the Functioning of the European Union (TFEU) and the Charter of fundamental rights.
73.The principle of direct effect is a fundamental principle of EU law that means that certain EU law provisions that are sufficiently clear, precise and unconditional are immediately applicable and can be invoked by individuals before a national or a EU court. A second fundamental principle in EU law is the primacy principle, namely the obligation for national authorities to give primacy to EU law over conflicting domestic provisions. However, there is no direct effect of the provisions of Articles 191 – 193 of the Treaty of the Functioning of the European Union (TFEU) (positive obligations), unlike Articles 34, 35, 101 and 107 TFEU (negative obligations) that enjoy direct effect. In addition, human rights as such were not recognized in the first steps of the European integration. This gap in the judicial protection of individual has been filled by the innovative case law of the Court of Justice of the European Union (hereinafter, CJEU, the Court or the Court of Luxembourg) according to which human rights are protected in EU law, as they are based on the common constitutional values of the Member States.114 The Court's case-law has been codified in article 6 of the TEU:
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law”.115
74.In addition, under the 2009 Lisbon Treaty, the accession of the EU to the European Convention on Human Rights (ECHR) became a legal obligation.116 The 47 Member States of the Council of Europe and the EU finalized a draft accession document on 5th April 2013. The CJEU's position on the text is still pending. The EU accession to the Convention would offer a great potential for development of the relationship between human rights and the environment. Indeed, the ECrtHR could refer easily to EU environmental instruments promoting a high level of protection and conferring obligations for EU institutions and States when implementing the EU law. This implies that the EU institutions would pay major attention when drafting the environmental law with regards to individual rights protected by the Convention and Article 11 TFEU on the integration principle, in a more integrated system.
75.Several national constitutions of European countries enshrine a constitutional right to the protection of the environment.117 For example, the Portuguese Constitution of 25 April 1976 stipulates in Article 66: “Everyone shall possess the right to a healthy and ecologically balanced human living environment and the duty to defend it”. However, such a mention of a right to a healthy environment does not exist in EU primary law.
76.EU law does offer a wide range of environmental legal instruments. Article 3 of the TEU and Articles 6, 11, and 191 – 193 of the TFEU set a series of principles and criteria, which have to be respected by the institutions in defining and implementing the environmental policy. This report will focus on the principle of integration of Article 11 (TFEU) and the objective of a high level of protection of the environment (Articles 191 – 193 TFEU).
77.Principle of integration
Article 11 TFEU states:
Environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development.
78.The principle of integration points out that the environmental dimension of all EU policies must be taken in the drafting of the EU legislation. This means that EU institutions should integrate environmental considerations into their decision-making process that translate into procedural standards such as the introduction of Environmental Impact Assessment (EIA)118 and of Strategic Environmental Assessment (SEA)119. EU institutions publish annual reports on the application of the integration principle.120 Thus the concept of sustainable development has been widened and reinforced following the introduction of the integration principle.
1.Objective of a high level of protection of the environment
79.Article 191 § 2 of the TFEU states:
Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union.
80.This objective is reiterated in Articles 3 § 3 TEU (common provisions) and 114 § 3 TFEU (approximation of laws). EU institutions are thus developing high environmental standards, which could have an impact outside European borders.121 The promotion of a high level of environmental protection means, for the EU Institutions, to refer to the precautionary principle. The EU has developed its own concept of precaution, which has had to be defended against its critics, notably within the WTO.122
81.The principle of precaution is designed autonomously by the European Union in view to establish a high level of protection of environment and human health. The European Commission published in 2000 a Communication on the precautionary principle, stating that
Decision-makers are constantly faced with the dilemma of balancing the freedom and rights of individuals, industry and organizations with the need to reduce the risk of adverse effects to the environment, human, animal or plant health. Therefore, finding the correct balance so that the proportionate, non-discriminatory, transparent and coherent actions can be taken, requires a structured decision-making process with detailed scientific and other objective information.123
1.The Charter does not state that environmental protection constitutes a human right
82.Article 37 of the Charter of fundamental rights of the European Union states:
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.124
83.The Charter confirms or repeats EU treaty provisions on environmental protection. This article does not formulate any individual right related to environment in opposition to other provisions of the Charter that formulate individual rights.125 There are no individual beneficiaries, just obligations for Member States.126 In the line with a teleological interpretation of the Charter, the right to a healthy environment might be deduced from article 37 combined with article 1 on the right to human dignity, article 2.1 on the right to life, article 3.1 on the right to the physical integrity of the person, article 6 on the right to liberty and security and article 7 on the right to respect for private and family life.