Is European Law Becoming More Sustainable?

Electronic copy available at: http://ssrn.com/abstract=1299130Electronic copy available at: http://ssrn.com/abstract=1299130

Published as chapter 14 in Gehring & Cordonnier Segger (dir.), Sustainable Development in World Trade Law (The Hague: Kluwer Law International, 2005)

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IS EUROPEAN LAW BECOMING MORE SUSTAINABLE?

Mario Prost*

Introduction: The European Union in a Crisis of Ideal .......................................11 The Constitutional Basis for Sustainability ..................................................4

1.1 The Early Communities ......................................................................51.2 The Evolving Community...................................................................6

1.2.1 The Single European Act (1986) .....................................................61.2.2 The Treaty on the European Union (1992) .....................................61.2.3 The Treaty of Amsterdam (1997) ....................................................71.2.4 The Treaty of Nice (2001) ...............................................................9

2 The Widening of EC Law to Non-Commercial Matters ............................112.1 Positive Harmonization.....................................................................12

2.1.1 Development of European Environmental Law............................122.1.2 EC Law and Human Rights ..........................................................142.1.3 A European Social Policy?.............................................................15

2.2 Negative Harmonization ...................................................................172.2.1 Article 30 and Mandatory Requirements .......................................182.2.2 Limitations and Safeguards against Misuse or Abuse .....................19

3 The Implementation of Sustainable Development Legal Principles ...........213.1 Precaution .........................................................................................223.2 Public Participation in Decision-Making ...........................................27

Concluding Remarks .........................................................................................32

Introduction: The European Union in a Crisis of Ideal

“Europe needs a sense of meaning and purpose”- Romano Prodi – Former President of the European Commission1

For many lawyers, the law of the European Union (EU) seems a somewhat exotic subject located somewhere between international law, constitutional law and jurisprudence. There are several reasons for this.

First, there is great controversy as regards the legal nature of the EU. From their inception, some saw the European Communities (EC) as tools for the creation of what Churchill hoped would become “a kind of United States of Europe”. Fifty years on, the degree of European integration is so advanced that, according to

* Doctoral Candidate and McGill Major Fellow in International and Comparative Law, McGill Faculty of Law; Associate Fellow, Center for International Sustainable Development Law (CISDL); LL.M. (Panthéon/Sorbonne). The author would like to thank Nicolas Lambert for his invaluable comments on earlier drafts of this contribution, as well as Martin Endicott for his assistance in editing the article.1 Romano Prodi, Shaping the New Europe (address to the European Parliament on 15 February 2000) SPEECH/00/41, online : <www.europa.eu.int>.

Electronic copy available at: http://ssrn.com/abstract=1299130Electronic copy available at: http://ssrn.com/abstract=1299130


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many commentators, the EU has become a quasi-federal state, led by clearly defined legislative, executive and judicial organs with the capacity to define the common destiny of “European citizens”. In the eyes of those commentators, the current debate on the “European Constitution” confirms this, even after its rejection by France and the Netherlands.2 Their perspective, however, while it may be broadly shared by specialist EC lawyers, is not uncontested. Many international lawyers insist that since the EU was created by international conventions, it is rightly seen not as a state or quasi-state but as an international organization.3 A comprehensive discussion of the complex nature of the European legal system is beyond the scope of this article. Certainly, and as stressed by Bertrand Badie, the EU “is neither an addition of sovereign states nor a super-state. It is something else, a non identified political object, hard to conceive” [our translation].4 It seems, nonetheless, that the ongoing difficulty to grasp the precise legal nature of the EU explains in large part the somewhat “exotic perception” of European Law.

Secondly, there is much confusion about the aim and purpose of the EU. This is rooted in what Joseph Weiler has called a “crisis of ideal”.5 To the fathers of modern Europe, it was clear that the Community they had created was not an end in itself but, rather, a process of change.6 At the end of World War II, together with the peoples of the United Nations, the peoples of Europe agreed on the creation of institutions to “save succeeding generations from the scourge of war, which twice in [a] lifetime have brought untold sorrow to mankind”.7

Maintenance of international peace and security in Europe was thus the core purpose behind the creation of the early communities and the main goal of this “process of change”. But can this purpose still be considered the ideal of Europe today? Time has dressed the wounds of war that forced the European nations of the 1950s to overcome their differences and provide “the basis of a broader and deeper community among peoples, [to] lay the foundations for institutions which will give direction to a destiny henceforth shared”.8 While the desire for peace can still mobilize support (who in Europe wants war?), it is not clear that the peace discourse can still be evoked today as the mobilizing ideal. With the potential loss of this foundational ideal may come the loss of the raison d’être of the enterprise. The EU today may lack a shared meaning and value by means of which each citizen can identify herself with it.9 In other words, the EU might

2 On the European constitution, see Eric Stein, Lawyers, Judges and the Making of Transnational Constitution, 75 AM. J. INT’L L. 1(1981); Federico Mancini, The Making of a Constitution for Europe, 26 COMMON MKT. L. REV. 595 (1989); Ernst Ulrich Petersmann, Constitutionalism, Constitutional Law and European Integration, AUSSENWIRTSCHAFT 247 (1991); Deirdre Curtin, The Constitutional Structure of the Union: a Europe of bits and pieces, 30 COMMON MKT. L. REV. 17 (1993); Trevor C. Hartley, Constitutional and Legal Aspects of the Maastricht Agreement, 42 INT’L & COMP. L.Q. 213 (1993); Pavlos Eleftheriadis, Aspects of European Constitutionalism, 21 EUR. L. REV. 32 (1996); JOSEPH H.H. WEILER, THE CONSTITUTION OF EUROPE (1999); AMARYLLIS VERHOEVEN, THE EUROPEAN UNION IN SEARCH OF A DEMOCRATIC AND CONSTITUTIONAL THEORY(2002); JEAN TOUSCOZ, LA CONSTITUTION DE L’UNION EUROPÉENNE (2002); P. Magnette ed., LA CONSTITUTION DE L’EUROPE (Paul Magnette ed., 2002).3 See in particular Alain Pellet, Les fondements juridiques internationaux du droit communautaire, 5 COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW 193 (1997). On some of the fundamentals regarding the historical origins of the EU and its institutional characteristics, see for example Bernard J.S. Hoetjes, The European Union: Evolution, Nature, and Trends, inENVIRONMENTAL LAW AND POLICY IN THE EUROPEAN UNION AND THE UNITED STATES (Randall Baker ed., 1997). 4 Bertrand Badie, Originalité et futur de la construction européenne, in GEOPOLITIQUE ET MONDIALISATION 235 (Yves Michaud ed., 2002).5 Joseph H.H. Weiler, Fin-de-siècle Europe: On Ideals and Ideology in Post-Maastricht Europe, in INSTITUTIONAL DYNAMICS OF EUROPEAN INTEGRATION – ESSAYS IN HONOUR OF HENRY F. SCHERMERS 24 (Deirdre Curtin & Ton Heukels eds., 1994).6 JEAN MONNET, MEMOIRS 522 (1976).7 Charter of the United Nations, June 26, 1945, preamble, Can. T.S. 1945 No. 7.8 Treaty Establishing the European Community, March 25, 1957, 298 U.N.T.S. 3.9 Teija Tiilikainen, Does Europe Need a Common Identity? A Comment upon the Core Problems of the CFSP, in INTERNATIONAL LAW ASPECTS OF THE EUROPEAN UNION 21 (Martti Koskenniemi ed., 1998).


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become an end in itself, no longer a means for the achievement of higher human ends.

Yves Meny, director of the European University Institute, has suggested that, together with the enlargement process, the reinforcement of neoliberal policies without their social counterpart has accentuated pre-existing contradictions and made absolutely necessary an intellectual and political effort to define the contemporary European ideal.10 To some, this effort of redefinition may seem rather rhetorical or theoretical. But ideals are constitutive of a community. They create the Community on whose existence they depend.11 Short of escaping its crisis of ideal, Europe will remain at best misunderstood and ill perceived, at worst meaningless.

As Giuliano Amato suggests it is “projects and strategic visions that are needed”.12 Europe will be better served if the current debate regarding the future of the Union not only addresses means but ends too. The purpose of this articleis to consider whether the European legal system has managed, over the past 50 years, to integrate legitimate goals into the functioning of its institutions, to make the Union more than a single economic agglomeration of States.

Specific attention will be paid to the notion of sustainable development. It indeedrepresents the current policy choice of the international community.13 Some have stressed its importance as a “conditio sine qua non for human life on this planet in the long run”.14 Perhaps it can more moderately be said to represent an important conceptual matrix resting on a basis of worldwide acceptance.15 In multilateral treaties, the constitutive instruments of international organizations, international or regional declarations, planning documents or state practice, sustainable development has emerged as an aspirational standard which requires integrationof economic, environmental and social considerations in the pursuit of development.16 It rejects the historically dominant view that economic growth is an end in itself. As stressed in the Brundtland Report, “revived growth must be of a new kind in which sustainability, equity, social justice, and security are firmly embedded as major social goals”.17

Despite the ongoing debate as to the precise meaning of sustainable development, it represents an important reference point in any reflection on the future of the European Union. A Union that integrates the precepts of sustainable development into its legal system would indeed be dedicated to the achievement of a clearly defined purpose, the importance of which has been recognised by numerous international legal instruments, such that it might escape its crisis of ideal.

10 Yves Meny, Non, l’UE n’a pas vocation à intégrer toute l’Europe, LE MONDE 2, Dec. 2002, at 42.11 Weiler, supra note 5, at 35.12 Giuliano Amato, Un coeur fort pour l’Europe, in JEAN MONNET WORKING PAPER NO.7/00, online at <http://www.jeanmonnetprogram.org/papers/00/00f0401EN.rtf>.13 ALEXANDRE KISS & DINAH SHELTON, MANUAL OF EUROPEAN ENVIRONMENTAL LAW 38 (2nd ed., 1997).14 Gunther Handl, Environmental Security and Global Change: the Challenge to International Law, 1 Y.B. INT’L ENV. L. 3, 25 (1990).15 Gabcikovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 95 (Separate opinion of Judge Weeramantry).16 As opposed to conflicting separate tracks requiring an impossible hierarchical choice - see Mario Prost, Is WTO Law Becoming More Sustainable?, 9 BRIDGES 21 (2001). 17 WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 364 (1987) [emphasis added].


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This article will demonstrate that in many respects, in particular concerning the conciliation of commercial and environmental interests, the law of the European Union can be regarded as a useful frame of reference for the evolution of meaningful principles of sustainable development law. However, until recently, the principles of sustainable development have been largely instrumentalized by the Union in the name of free trade imperatives. Prisoners of the overriding economic interest, principles of sustainable development have been slow to move beyond official rhetoric and vague commitments. Without a real integration of these interests, the notion of sustainable development may serve as an alibi. It may help the Union to shed its poor environmental or social image without obliging Members to rethink seriously the foundations of the European trading system or to directly address the relationship between trade liberalization, environmental protection and social development.

Assessing the extent to which the EU has evolved from a purely economic union to a fully integrated network of institutions aimed at promoting sustainable development requires a three-step analysis. The first step is to analyze the mandate of the European Community and to determine whether it is constitutionally empowered to implement sustainable development precepts. It will be demonstrated that although the mandate of the early communities was narrowly defined, successive amendments have equipped the EC to adopt the precepts of sustainable development. The second step is to review the progressive widening of EC law to non-commercial matters. Stressing the broadening of the European mandate alone is not sufficient. This process needs to find practical expression in a substantial reshaping of European Law. It will be demonstrated that the EC’s constitutional evolution has effectively led to the progressive development of new and very dynamic areas of Community law. The final step will be to consider the integration of sustainable development legal principles in EC law. Even though what is now referred to as “sustainable development law” is still in its infancy, there is indeed a growing feeling among international lawyers that sustainable development is no longer a mere “conceptual matrix” and is progressively developing into a body of concrete and identifiable legal norms. The sustainability of Community law can be analyzed by surveying the application of some of these principles in recent developments.

1 The Constitutional Basis for Sustainability

IOs are not innate legal beings that spontaneously come to life. They are entities created by states which originate in the desire of governments to organize collectively their cooperation in particular areas of their international relations. Accordingly, IOs are entirely pre-determined by the function, or purpose, for which they have been set up. In this respect, the International Court of Justice stated explicitly that “International Organizations are subjects of International Law which do not, like States, possess a general competence. International Organizations are governed by the ‘principle of speciality’, i.e., they are invested by the States which create them with powers, the limits of which are a function of the common interest whose promotion those States entrust to them”.18 The

18 Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, 1996 I.C.J. par. 25.


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powers of International Organizations are therefore constrained by the legal instruments by which they have been instituted. And the European Union, however integrated it might be, is no exception to the rule.

It is a key principle of European law that Community legislation have an identifiable legal basis in an article of the constituent treaties.19 Article 190 EC is clear: “regulations, directives and decisions of the Council and of the Commission shall state the reasons on which they are based.” It might be argued that, as no more than an economic union, the EC need be little concerned with the precepts of sustainable development. While the early communities were mainly, if not entirely, established to promote the economic reconstruction of Europe, however, the mandate of the European Community has evolved and nowadays comprises, explicitly in the constitutional texts of the EU, issues such as protection of the environment, social development and fundamental rights.

The Early Communities

When the treaty of Rome was adopted in 1957, no need was perceived for common environmental, social development or fundamental rights policies. The Communities were instruments of economic, not general political, integration. It is not surprising, therefore, that there was no mention of such issues in the Treaty establishing the European Economic Community (EEC).20

EC law was not completely agnostic as regards such issues however. On the contrary, it was soon felt by many that economic growth should result not only in increasing prosperity but also in concrete improvements in human development including the environment. As a consequence, two provisions originally created for economic purposes, articles 100 and 235 EC (now articles 94 and 308 EC), were put to work as the legal basis for initial environmental legislation. They were the basis for the conception of a substantial legal framework covering air and water pollution, waste management and protection of fauna and flora.21 Thus, the birth of Community environmental policy preceded the formal inclusion of the environment as a Community objective in the constitutive treaties.

These two articles provided an incomplete and imperfect basis for environmental action however. They required that a clear link with the functioning of the common market be established before there could be a legal basis for community environmental or social action. In other words, the protection of the environment and the promotion of human rights could be furthered only incidentally, as subordinate elements of more efficient economic integration. The progress of the early communities in these fields had thus to be completed by the integration of broader objectives. This object was realized through successive constitutional amendments. 19 Not only does the legal basis of an act indicate the objective and nature of the measure which the Community can adopt, but it also sets the procedural requirements for its adoption, the Community institution competent to adopt it, and the voting majority. On the evolution of the different basis of Community action, see for example Kieran Bradley, The European Court and Basis of Community Legislation, 13 EUR. L. REV. 380 (1988).20 See STANLEY P. JOHNSON & GUY CORCELLE, THE ENVIRONMENTAL POLICY OF THE EUROPEAN COMMUNITIES 1(1995).21 See Damien Geradin, The European Community: Environmental Issues in an Integrated Market, in THE GREENING OF TRADE LAW 120 (Richard H. Steinberg ed., 2002).


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1.2 The Evolving Community

The integration of new purposes and objectives in the functioning of European institutions took place through three major constitutional reforms. The Single European Act, the Treaty on European Union and the Treaty of Amsterdam reshaped the “spiritual heart” of Europe, together with the institutional architecture of the Communities and, since 1992, of the Union. More recently, the Treaty of Nice, intended to ensure the institutional transition towards an enlarged Union, also made a modest contribution to this evolution.

1.2.1 The Single European Act (1986)

Adopted in 1986, the Single European Act (SEA) contributed to the evolution of the ECs’ limited legal foundations by providing a clear constitutional basis for environmental legislation. Its most important reform lies in inclusion of article 100A EC (now 95 EC) which, in its first paragraph, confirms the pre-existing competence of the Community to adopt environmental measures. The revolution for the protection of the environment is two-fold.

First, protection of the environment is explicitly recognised as a community objective, whereas since 1957, it had only been implicitly recognized as such. The new Environmental Title (Title VII) specifies the objectives and principles of EC environmental policy as well as guidelines regarding the procedure to be followed in the adoption of EC environmental legislation. Secondly, and most importantly, the SEA declares protection of the environment per se as a community objective and as an independent purpose, to be taken into account separately from its implications for economic integration. Thus, the SEA can be said to represent the constitutional birth of EC environmental policy and it has had a very significant impact on its development.22

1.2.2 The Treaty on the European Union (1992)

Adopted in Maastricht in 1992, the Treaty on the European Union (also known as the Maastricht Treaty) was, to quote its preamble, “a new stage in the process of European integration undertaken with the establishment of the European Communities”. It is known mainly for its institutional reforms.23 However, it made a substantial contribution to a deeper reform of the European project and its ideals. It broadened the objectives and competences of the European institutions and amended the procedural requirements for the adoption of

22 See Philippe Sands, EC Environmental Legislation. The ECJ and Common-Interest Groups, 53 MOD. L. REV. 685 (1990); Ludwig Krämer, The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law, 24 COMMON MKT.L.REV. 659 (1987); Dirk Vandermeersch, The Single European Act and the Environmental Policy of the European Economic Community, 12 EUR. L. REV. 407 (1987).23 The treaty establishes a European Union, founded on the pre-existing European Communities, but served by a single institutional framework, mainly composed of the European Council, the European Commission, the European Parliament and the European Court of Justice. See generally JIM CLOOS ET AL., LE TRAITÉ DE MAASTRICHT – GENÈSE, ANALYSE,COMMENTAIRES (1993); Deirdre Curtin, supra note 2; Ulrich Everling, Reflections on the Structure of the European Union, 29COMMON MKT.L. REV. 1053 (1992).


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community legislation, effectively laying the foundations for the Europe of the future.

For the first time in a constitutional text, it contains an express reference to sustainable development. It is made clear that the development the Union seeks to achieve is not only economic but sustainable. Article B TEU states that the Union shall “promote economic and social progress which is balanced and sustainable”.24 Further, as amended by Article G(2) TEU, the treaty establishing the European Community provides that one of the tasks of the Community is to promote throughout the Community “a sustainable and non-inflationary growth respecting the environment” (article 2).

These changes amount to more than mere rhetoric. They significantly enlarge the purposes of the Union in comparison to those of the early communities. Together with the protection of the environment, the promotion of human rights is introduced as a fundamental principle. In particular, article F.2 TEU (new article 6(2) TUE) states that “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”.

The Treaty also introduces procedural amendments, the most important of which concerns the adoption of environmental legislation. Article 130S(1) of the EC treaty (now article 175(1) EC), as amended by article G(38) TEU, provides that environmental action is to be taken by the Council in cooperation with the European Parliament.25 This represents a very important step in the development of an adequate framework for the adoption of a satisfactory environmental policy since the European Parliament is known as the most “green” of the European institutions. In addition, and in accordance with article 130S(2) EC (now article 175(2) EC), qualified majority voting replaces unanimity for the adoption by the Council of environmental legislation, except in distinct and circumscribed circumstances.26 These are fundamental constitutional amendments facilitating the adoption of environmental measures by community institutions and allowing the Union to seek sustainability in the regulation of the internal market.27

1.2.3 The Treaty of Amsterdam (1997)

Despite the significant amendments made by the SEA and the EU treaty, important reforms to improve the effectiveness of EC environmental policy were still deemed necessary after the conclusion of the Maastricht process. There were great expectations of the Amsterdam conference. Although some commentators have suggested that the Treaty of Amsterdam amounts to nothing more than a

24 Treaty on European Union (Maastricht Treaty), Feb. 7, 1992, 1992 O.J. (C 191) 1, 31 I.L.M. 253 [emphasis added].25 The cooperation procedure, as set in article 252 EC, requires that the European Parliament be given the opportunity to propose amendments to the draft legislation presented to it by the Commission. The Council can still overrule Parliament. Nonetheless, the cooperation procedure results in a greater dialogue between institutions in the making of community law.26 Those exceptions are foreseen in article 130S(2) (now 175(2)) and concern provisions of fiscal nature, measures concerning town and country planning, and energy policies. See Geradin, supra note 21, at 122.27 On the Maastricht Treaty and its implication for European policy in the field of sustainable development, see David Wilkinson, Maastricht and the Environment: the Implications for the EC’s Environment Policy of the Treaty on European Union, 4 J’L.ENVT’L L. 222 (1992).


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“Maastricht II”, failing to embrace the necessary reforms,28 it does make some very significant changes concerning protection of the environment and promotion of fundamental rights.29

In relation to protection of the environment, the Treaty introduces two amendments of considerable importance. First, the decision-making process was modified. New article 175 EC provides that the co-decision procedure, which provides the European Parliament with a real right of veto in the adoption of community legislation, is extended to almost all environmental matters.30 In addition, the Treaty contains provisions aimed at ensuring that environmental protection is considered by the European institutions as an integral ingredient in the implementation of all Community policies. Article 3(c) EC (now article 6 EC) of the Treaty states that “environmental protection requirements must be integrated into the definition and implementation of Community policies and activities […] in particular with a view to promoting sustainable development.” This represents a great advance since, as will be discussed below, integration is the cornerstone of sustainable development.

In relation to the promotion of fundamental rights, however, the balance sheet is arguably not as positive. In 1996, the Comité des sages, mandated by the European Commission to plan the protection of civic and social rights in Europe, recommended the adhesion of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).31 This proposal was rejected in Amsterdam. However, the Treaty of Amsterdam introduces a new article 6(1) TEU which speaks of a Union “founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common in the Member States”. Moreover, it reiterates the Maastricht formula of a Union respectful of “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.” (article 6(2) TEU). Thus, although the Union is not formally a party to the Convention, article 6 TEU requires that the European institutions act with respect for the principles it embodies.32

The advancement of social rights is the real disappointment. No list of such rights was directly included in the Treaty, and this despite the proposal, in pressing terms, of the Comité des sages that these rights should be afforded the

28 See Eduardo Garcia de Enterria, Les droits fondamentaux dans le traité d’Amsterdam, in MÉLANGES EN HOMMAGE À LOUIS EDMOND PETTITI 395, 401 (1998).29 Contra, see Damien Geradin, supra note 21, at 125. On the Amsterdam treaty and its impact on EC environmental law, seeHanna Sevenster, The Environmental Guarantee After Amsterdam: Does the Emperor Have New Clothes?, 1 Y.B. EUR. ENVT’L. L..291 (2000); Geert Van Calster and Kurt Deketelaere, Amsterdam, the Intergovernmental Conference and Greening the EU Treaty, 7EUR. ENVT’L. L. REV. 13 (1998).30 Treaty of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1, 37 I.L.M. 56. Referred to in article 251 EC, the co-decisionprocedure follows the pattern of the cooperation procedure, except that the Parliament, here, can either approve, reject or seek to amend the Commission’s proposal. The legislation will not be adopted until an agreement can be found between the Parliament and the Council.31 See Florence Benoit-Rohmer, L’adhésion de l’Union à la Convention européenne des droits de l’homme, 1 REV.UNIV.DTS.H. 57, 60(2000).32 Henry Schermers, Human Rights Protection in Europe: The Court of Justice of the European Communities and the European Court of Human Rights, in CONTEMPORARY INTERNATIONAL LAW ISSUES: OPPORTUNITIES AT A TIME OF MOMENTOUS CHANGE:PROCEEDINGS OF THE SECOND JOINT CONFERENCE HELD IN THE HAGUE, NETHERLANDS, JULY 22-24 1993 22 (Rene Lefeber ed., 1994).


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same status as the other fundamental rights which are to be respected by the Union pursuant to article 6 TEU.33 The new social chapter (Title XI, Chapter 1, now Title XVIII) inserted into the Treaty establishing the European Community remains very vague as to the objectives and obligations of the Community. It goes no further than to impose an ill-defined obligation to “hav[e] in mind fundamental social rights such as those set out in the European Social Charter signed in Torino on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers” in the promotion of employment and improved living conditions.34 Although it was first perceived as a mere“footnote” to the ECHR,35the European Social Charter has improved its moral and legal standing and acquired a position of its own among international sources.36 The reluctance of the Union to fully integrate these principles into the functioning of its institutions the principles set out in this instrument of great significance is of serious concern in relation to the development of a coherent European social policy.

1.2.4 The Treaty of Nice (2001)

Adopted in 2001, the Treaty of Nice restricts itself to setting out the principles and methods for changing the institutional system as the Union grows.37 Nice, it has been said, goes no further than to deal “with the leftovers of the Treaty of Amsterdam”.38 Despite the relative success of this enterprise, it only touches littleupon the objectives and ideals of the Union and the Community. However, some provisions deserve mention.

As regards the protection of the environment, the Treaty of Nice slightly amends article 175(2) EC and shortens the list of exceptional circumstances in which the Council shall act unanimously instead of by way of qualified majority. The general objectives and the decision-making process remain unchanged. It should be noted, however, that the signatories of the Treaty made a declaration on article 175, stating that “the High Contracting Parties are determined to see the European Union play a leading role in promoting environmental protection in the Union and in international efforts pursuing the same objective at global level. Full use should be made of all possibilities offered by the Treaty with a view to pursuing this objective, including the use of incentives and instruments which are market-oriented and intended to promote sustainable development”. While this statement may not be revolutionary, it builds on the constitutional evolution described above and reaffirms the concept of sustainable development as an overarching legitimate purpose.

Moreover, the Nice Treaty introduces a new article 7(1) TEU aimed at ensuring that the Union, according to article 6(1), remains founded on the principles of

33 European Commission, FOR A EUROPE OF CIVIC AND SOCIAL RIGHTS – REPORT OF THE COMITÉ DES SAGES 17-18(1996).34 Article 136 EC.35 Otto Kahn-Freund, The European Social Charter, in EUROPEAN LAW AND THE INDIVIDUAL 181, 182 (Francis G. Jacobs ed., 1976).36 Silvana Sciarra, From Strasbourg to Amsterdam: Prospects for the Convergence of European Social Rights Policy, in THE EUROPEAN UNION AND HUMAN RIGHTS 473, 480 (Philip Alston ed., 1999).37 For a critical analysis of the Treaty, see THE TREATY OF NICE AND BEYOND (Mads Andenas and John A. Usher eds., 2003) and in particular John A. Usher, Assessment of the Treaty of Nice – Goals of Institutional Reform.38 JO STEINER AND LORNA WOODS, TEXTBOOK ON EC LAW 11 (2003).


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liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. Article 7(1) TEU states that “on a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four-fifths of its members […] may determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1), and address recommendations to that State”. This represents a softening of the previous provisions since the requirement of a qualified majority replaces unanimity in those cases where the Council wishes to react to serious breaches of human rights by a Member State. Although its significance should not be overestimated (the qualified majority required is four-fifths and the powers of the Council are confined to recommendations to the State concerned), article 7(1) enhances the Union’s legal apparatus for promoting human rights and fundamental freedoms.

Lastly, it is important to note that together with the Treaty of Nice, and in accordance with the conclusions of the European Council in Cologne, a Charter of Fundamental Rights of the European Union was signed and proclaimed by the Presidents of the European Parliament, the Council and the Commission on 7 December 2000 in Nice.39 The purpose of the Charter is to catalogue certain values shared by European nations, the spiritual and moral patrimony of the Union and according to its preamble, to ensure better legibility and visibility for fundamental rights. The text deals with human dignity, fundamental freedoms, equality, solidarity, citizenship and Justice. It is based on the fundamental rights and freedoms recognized by the ECHR, the constitutional traditions of the Member States, the European Social Charter and other international conventions to which the EU or its Members are parties. For the first time in the history of the EU, there is thus a single instrument setting out the range of civil, political, economic and social rights of European citizens and all persons resident in the European Union.

However, the Charter’s legal status remains unclear. The central question, namely whether the Charter should be formally incorporated in the European legal order, was not settled in Nice. The European Council decided to postpone the decision. Furthermore, article 51(2) is clear that “this Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties”. It appears therefore that the purpose of the Charter is no more than to codify pre-existing principles. It does not participate in the progressive development of human rights protection in Europe and is neither revolutionary nor evolutionary. While it has value as a single, comprehensive instrument, its legal significance remains unclear.40

What conclusions can be drawn at this stage? Protection of the environment, social development, and the promotion of fundamental rights were outside the scope of the early communities. However, a general commitment to these objectives has been made through several successive constitutional amendments.

39 See Lord Goldsmith, A Charter of Rights, Freedoms and Principles and Sionaidh Douglas-Scott, The EU Charter of Rights: a Poor Attempt to Strengthen Democracy and Citizenship?, in Andenas and Usher, supra note 37.40 See HENRY J. STEINER AND PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 791 (2nd ed., 2000).


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Protection of the environment is now an explicit objective of the Community: it has been “constitutionalized”.41 More than that, it is now theoretically an integral part of the definition and implementation of any Community policy. Thus, a concrete “environmental dimension” can now be found in the European constitutional frame of reference.42

Human rights and fundamental freedoms are formally consecrated as foundations and purposes of the Union and are considered part of the cultural self-definition of Europe. Further, despite the timorous recognition of social rights, there is no doubt that social development has become a community objective whose achievement is the purpose of the new chapter XI of the EC treaty. Community competences now include legitimate social aims such as the protection of consumers or public health.43All this would seem to justify the conclusion of some commentators that the European Union has evolved into a viable organ for social coordination.

Today, there can be no doubt that primary EC law incorporates the necessary ingredients for the promotion of a sustainable development. Of course, the application of new constitutional principles has led to constitutional disputes, for instance between the Commission and the Council over the appropriate legal basis for community legislation.44 But it can no longer be argued that the EU is constitutionally limited in its promotion of a sustainable development. On the contrary, it may very well be that of all the international agreements that seek economic, political and social goals, the most ambitious and sophisticated is the treaty establishing the European Community.

2 The Widening of EC Law to Non-Commercial Matters

Assessing the level of sustainability of the European legal order requires a determination of whether the progressive broadening of the constitutional mandate has led to a substantial widening of Community secondary law to non-commercial issues. The simple formulation of a Title for environmental or social matters in the Treaties does not in itself ensure action by the Community.45

The following analysis focuses first on positive harmonization of domestic environmental and social policies through Regulations or Directives adopted by European institutions. It will be demonstrated that Community policies in non-commercial areas, and especially in environmental matters, developed andflourished even in the absence of explicit powers in the original ECC Treaty. The analysis will be completed by a study of negative harmonization; that is, the margin of manoeuvre which Member States enjoy to adopt domestic legislation where the Community has not acted on their behalf.

41 Gerd Winter, Constitutionalizing Environmental Protection in the European Union, 2 Y.B. EUR. ENVT’L L. 67 (2001). 42 See Guy Corcelle, La dimension ‘environnement’ du marché unique, 337 REVUE DU MARCHÉ COMMUN 125 (1990).43 Duncan French, The Changing Nature of ‘Environmental Protection’: Recent Developments Regarding Trade and the Environment in the European Union and the WTO, 47 NETH. INT’L L. R. 1, 8 (2000).44 See ERNST-ULRICH PETERSMANN, INTERNATIONAL AND EUROPEAN TRADE AND ENVIRONMENT LAW AFTER THE URUGUAY ROUND 62 (1995).45 See KONRAD VON MOLTKE, THE MAASTRICHT TREATY AND THE WINNIPEG PRINCIPLES ON TRADE AND SUSTAINABLE DEVELOPMENT 15 (1995); stressing, as an example, that despite the unambiguous EC mandate for energy policy in the Treaties, no effective EC energy policy has ever emerged until pressure was put on that issue via the debate on climate change.


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2.1 Positive Harmonization

Starting the Union on the process towards sustainability requires more than mere constitutional empowerment to do so. Legislation must be adopted as a direct result of that mandate.

2.1.1 Development of European Environmental Law

The opening of the European market to environmental initiatives preceded 1987and the SEA. It took place, step by step, from 1972 under the political impulsion of a series of six consecutive multi-annual Action Programmes.46

In October 1972, after conclusion of the Stockholm summit, known as the turning point in the development of international environmental law, a common environmental policy was for the first time proposed at the Paris summit.47 The assembled Heads of State and Governments recognized that economic development must respect ecological boundaries. They declared that “economic expansion is not an end in itself […], it should result in an improvement in the quality of life as well as in standards of living. As befits the genius of Europe, particular attention will be given to intangible values and to protecting the environment.”48

The Paris Summit marks the beginning of a Community environmental policy and it was the point of departure for the adoption of numerous environmental laws. An estimated 200 items of Union environmental legislation have been adopted since 1972.49 The development of a comprehensive European environmental legal policy was undoubtedly handicapped by the lack of clear and explicit legal basis in the treaties. European institutions were obliged to rely on the harmonization provisions of article 100 EC or the general provisions of article 235 EC. Nevertheless, a policy was existent.

The introduction of a new and explicit environment title by the Single European Act played a very significant role in the development of European environmental policy. It meant that such a policy no longer needed to be justified in terms of its contribution to economic integration.50 Successive constitutional amendments have made the community environmental policy one of the most dynamic of any in the European legal order.51

46 For a description of the successive Action Programmes, see JOHNSON AND CORCELLE, supra note 20, at 12-25.47 See RAO, INTERNATIONAL ENVIRONMENTAL LAW AND ECONOMICS 11 (2002).48 Bull. EC 10-1972. See Wybe T. Douma, Evolution and Impact of Sustainable Development in the European Union, inINTERNATIONAL ECONOMIC LAW WITH A HUMAN FACE 271, 272 (Friedl Weiss et al. eds., 1998).49 As reported on the European Union’s website: <http://europa.eu.int/scadplus/leg/en/lvb/l28066.htm>.50 David Vogel, The Making of EC Environmental Policy, in POLICY ISSUES IN THE EUROPEAN UNION 125 (Mehmet Ugur ed., 1996).51 Despite its description by certain commentators as “a younger and, in some respects, less well-entrenched policy sector than most others.”; WYN GRANT ET AL., THE EFFECTIVENESS OF EUROPEAN UNION ENVIRONMENTAL POLICY 13 (2000).


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The acquis communautaire in this field is now an extremely complex and diversified body of law.52 Initially targeting sectoral issues, it has developed in the areas of water pollution, air pollution, dangerous substances, toxic waste, nuclear safety and nature conservation.53 Since the beginning of the 1990s, however, there has been an observable change in the focus of European environmental legislation. It has been moving towards a more comprehensive approach and increasingly taking sustainability as its starting point.54 As a direct result, and besides these sectoral measures, cross-sectoral environmental provisions now appear such as the Environmental Impact Assessment Directive,55 the Directive on the Freedom of Access to Information on the Environment,56 the Regulation on a Community Eco-Label scheme57 and the Eco-Audit Regulation.58

Together with the substantive principles set out in this legislation, institutions have been created to facilitate the achievement of the objectives of Community environmental policy. For example, a regulation of 7 May 1990 established the European Environment Agency based in Copenhagen. Its purpose it to provide the Community and the Member-States with objective, reliable and comparable information at the European level to enable environmental protection measures to be taken, to assess the results of such measures and to ensure that the public is properly informed.59 A financial instrument for the environment (LIFE) was also developed. Its purpose is to assist in the development and implementation of Community environmental policy by financing ‘priority’ environmental actions,and providing technical assistance.60

Following these developments, the European Court of Justice went so far as to say that protection of the environment has become “one of the Community’s essential objectives”.61 It can be said with confidence that European environmental law has become one of the most dynamic instruments for the resolution of ecological problems on the international scene.

It is important, however, to recognise that sustainable development does notsimply equate with protection of the environment. It is a human-centered approach which focuses on economic and social objectives as well as ecological ones. As highlighted in the work of the United Nations Development Program, “sustainable human development places people at the core, and views humans as both a means and an end of development.”62 The present study must thus go beyond an analysis of environmental legislation in the internal market.

52 For a general presentation of European environmental law, see ANDREAS ZIEGLER, TRADE AND ENVIRONMENTAL LAW IN THE EC (1996); KISS & SHELTON, supra note 13; Scott, supra note 39; JAN H. JANS, EUROPEAN ENVIRONMENTAL LAW (2000).53 For a general analysis of community policy in those fields, see GERARD DRUESNE, DROIT DE L’UNION EUROPÉENNE ET POLITIQUES COMMUNAUTAIRES 524-535 (2001). For a selection of relevant EC directives and regulations in those fields, see DOCUMENTS IN EUROPEAN COMMUNITY ENVIRONMENTAL LAW (Philippe Sands & Richard G. Tarasofsky eds., 1995).54 James Cameron & J Lefevre, Sustainable Consumption in Europe: Legal Aspects, in TOWARDS SUSTAINABLE CONSUMPTION – A EUROPEAN PERSPECTIVE 143, 144 (Brian Heap & Jennifer Kent eds., 2000).55 Council Directive 85/337 on Environmental Impact Assessment, 1985, O.J. (L 175) 40.56 Council Directive 90/313 on Freedom of Access to Information on Environment, 1990, O.J. (L 158) 56.57 Council Regulation 880/92 on Community Eco-Label Scheme, 1992, O.J. (L 99) 1.58 Council Regulation 1836/93 on Eco-Audit, 1993, O.J. (L 168) 1. On those cross-sectoral legislations, see PavlosEleftheriadis, The Future of Environmental Rights in the European Union, in Alston, supra note 36, at 540-1.59 See Sands & Tarasofsky, supra note 53, at 171; and Laurens Brinkhorst, Environmental Policy in the European Community: Observations on the European Environment Agency, 15 HARV. ENVTL L. REV. 257 (1991).60 Ibid. at 203.61 Case 240/83, Procureur de la République v. Association de Défense des Brûleurs d’Huiles Usagées, E.C.R. 531 (1985).62 UNITED NATIONS DEVELOPMENT PROGRAMME, INTEGRATING HUMAN RIGHTS WITH SUSTAINABLE HUMAN DEVELOPMENT – A UNDP POLICY DOCUMENT 6 (1998).


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2.1.2 EC Law and Human Rights

Human rights belong to the European tradition. In 1950, the Member States of the Council of Europe codified the most fundamental human rights in the European Convention on Human Rights. Until the 1970s, however, no human rights policy was endorsed by the Communities. The first step towards adopting a policy was made in 1977 in a joint declaration of the Parliament, Council and Commission. It stressed “the prime importance they attach to the protection of fundamental rights” and that “in the exercise of their powers and in pursuance of the aims of the European Communities they respect and will continue to respect these rights.”63

A more formal introduction of Human Rights into the European legal order was decided in Maastricht in the form of new article 6(2) TEU, stating that the Union shall respect fundamental rights, as guaranteed by the ECHR. It remains doubtful, however, whether this statement alone can be said to represent a coherent and satisfactory basis for Community action in the field of human rights. According to two eminent scholars:

the human rights policies of the European Union are beset by a paradox. On the one hand, the Union is a staunch defender of human rights in both its internal and external affairs. On the other hand, it lacks a comprehensive or coherent policy at either level and fundamental doubts persist whether the institutions of the Union possess adequate legal competence in relation to a wide range of human rights issues arising within the framework of community policies.64

Certainly, and as recalled in article 6(1) TEU, “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms”. Moreover, protection of human rights in the Community legal order has been developed in the case law of the European Court of Justice.65 The Court has made clear on many occasions that “fundamental rights form an integral part of the general principles of [Community] law.”66 The work of the Court goes beyond that simple statement and the rights which have so far been expressly recognized by the Court as forming part of the Community legal order include the right to property, the right freely to choose and practice a trade or profession, freedom of trade, the right to an effective legal remedy before the national courts, freedom of trade union activity, prohibition of discrimination based on sex, religious equality, freedom of expression and the right to respect for private life and medical secrecy.67 Some commentators go so far as to call human rights

63 See Ingrid Persaud, The Reconstruction of Human Rights in the European Legal Order, in EUROPEAN CIVIL LIBERTIES AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS 347, 350 (Conor A. Gearty ed., 1997).64 Alston and Weiler, An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights, Jean Monnet Working Paper, No. 1/99, online at: <http://www.jeanmonnetprogram.org/papers/99/990101.html>, at 6.65 See Francis G. Jacobs, European Community Law and the European Convention on Human Rights, in Curtin & Heukels, supranote 5, at 561. On the contribution of the Court to the protection of Human Rights, see Maurice H. Mendelson, The European Court of Justice and Human Rights, 1 Y.B. EUR. L. 125 (1981); Joseph H.H. Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities, 61 WASH. L. REV. 1103 (1986); Andrew Clapham, A Human Rights Policy for the European Community, 10 Y.B. EUR. L. 309 (1990).66 Case 4/73, Nold KG v. Commission, 49 E.C.R. 507 (1974).67 See Jacobs, supra note 65, at 562.


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“constitutional principles” of the Union.68 This is certainly premature, as human rights tend to be perceived by the Court as mere guidelines, rather than strict obligations.69 But human rights exist in European Law and the Union did not come to the field of human rights in Maastricht with a blank sheet.

Yet, despite the frequency of statements underlining the importance of human rights and the existence of a variety of significant individual policy initiatives, the European Union continues to lack a full-fledged human rights policy.70 The most obvious symptom of this is the refusal of the Community to accede to the ECHR. In 1978, the European Commission proposed to begin a process aimed at the European Community’s accession to the ECHR.71 The result of accession would be that Community institutions might be found to be in violation of the Convention by the Court in Strasbourg. However, the proposal was not taken up by the Council and the Member States. The result is that, whilst the Treaty rhetoric mirrors a vague normative commitment to the ECHR, this commitment is not matched by political practice.72 What is more, it is unlikely the situation will change in the future, at least in the short term. The Court of Justice has confirmed the impossibility of the Community acceding to the ECHR in an article 228 opinion. It stated that “as Community law now stands, the Community has no competence to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”.73 Doing so, the Court “placed the ball firmly back in the courts of the Member States”.74

While it can be concluded that fundamental human rights already constitute a “philosophical, political and legal substratum”75 that influences the evolution of Community law, it is obvious that a coherent Union policy is still lacking. This was exemplified at Nice by the apparent incapacity of the Union to decide the legal status of the Charter of Fundamental Rights of the European Union. Thus, the unavoidable fact does remain that the Community is incapable, to this day, to articulate a uniform human rights policy.76 Noting this, Judge Ress of the European Court of Human Rights has asked provocatively whether, despite the rhetorical commitments, the Community could itself fulfil the prerequisites for membership of the European Council.77

2.1.3 A European Social Policy?

It has been thought for some time that social rights are inherent in Western European democracies, that these societies all share the common idea that all 68 See Koenraad Lenaerts, La protection des droits fondamentaux en tant que principe constitutionnel de l’Union Européenne, inMELANGES EN HOMMAGE À MICHEL WAELBROECK 423 (M. Dony ed., 1999).69 See the Wachauf Case: “international treaties concerning the protection of human rights on which the Member States have collaborated or to which they have acceded can only supply guidelines to which regard should be had in the context of Community Law”; Case 5/88, E.C.R. 2639 (1989); see Giorgio Gaja, The Protection of Human Rights under the Maastricht Treaty,in INSTITUTIONAL DYNAMICS OF EUROPEAN INTEGRATION – ESSAYS IN HONOUR OF HENRY F. SCHERMERS 549, 550 (Deirdre Curtin & Ton Heukels eds., 1994).70 See Alston & Weiler, supra note 64, at 7.71 Memorandum adopted by the Commission, April 4, 1979, Bull. EC, Supp. 2/70.72 Alston & Weiler, supra note 64, at 11.73 Opinion 2/94, E.C.R. I-1759 (1996).74 Antony Arnull, Left to Its Own Devices? Opinion 2/94 and the Protection of Fundamental Rights in the European Union, in THE GENERAL LAW OF EC EXTERNAL RELATIONS 61, 67 (Alan Dashwood & Christophe Hillion eds., 2000).75 Case 11/70, Internationale Handelsgesellschaft, E.C.R. 1125 (1970).76 IAN WARD, A CRITICAL INTRODUCTION TO EUROPEAN LAW 144 (2003).77 Georg Ress, Democratic Decision-Making in the European Union and the Role of the European Parliament, in Curtin & Heukels,supra note 5, at 160.


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public power is held only in the interests of the people and exists only for promoting the well-being of all the people.78 That perception has been confirmedby certain developments, in particular with respect to the free movement of persons and the principle of non-discrimination. It was also confirmed by the adoption, in 1989, of the Community Charter of Fundamental Social Rights (by all the Member States except the United Kingdom). The Social Charter, even though it was in itself a political declaration, led to the enactment of some important pieces of social legislation, including directives on working time79, posted workers80 or young workers.81 However, many of the rights contained in the Charter have not been reflected in any legislation, leading to the inclusion in the Treaty on European Union of a protocol on social policy aimed at implementing the Social Charter (later included in Title XI of the EC Treaty).The impression of “social awakening” was confirmed by the 1999 adoption in Cologne of a “European employment pact” aimed at reducing unemploymentthrough a macro-economic dialogue between the Commission, European social partners, the European Central Bank and ministers of economy.82

Yet the reality behind the perception of a Union spontaneously pursuing social objectives is somewhat different. As with civil and political rights, social rights are rhetorically embodied in the foundational treaties. However, observers have pointed at the constant reluctance of the European Commission to introduce social policy regulations, even in areas largely endorsed by public opinion.83 And where the Union has indeed decided to intervene, it has done so spasmodically and its decisions have generally been toothless.84 The Lisbon strategy85, inaugurated in March 2000 and aimed at making the European economy more knowledge-based and competitive, is one recent illustration of this trend. If the Lisbon strategy does indeed, more than any other action plan before, embrace criteria of a social nature (employment rates, public expenditure on education etc.), the strategy adopted by the Commission is one of open co-ordination based on commonly agreed “benchmarks” of a persuasive rather than coercive nature.86

Moreover, the end-product of the Lisbon process will be the adoption by the European Council of “policy guidelines” which, too, will lack binding force and justiciability. These “soft’ guidelines are not devoid of effect. They certainly favour political coordination in areas where Community competences are disputed.87 However, it is yet another example of the difficulty for the EU to move beyond economic integration to undertake some basic societal choices, as regard working conditions, health and welfare services, poverty or social exclusion for instance.

78 See Philip Allot, The European Community is not the True European Community, 100 YALE L.J. 2485, 2491 (1991).79 Council Directive 93/104, 1993, O.J. (L 307) 18.80 Council Directive 96/71, 1997, O.J. (L 18) 1.81 Council Directive 94/33, 1993 O.J. (L 216) 12.82 Bull. EU 6-1999.83 See the example of social labelling and Fair Trade as discussed by Caoimhin Macmaolain, Ethical Food Labelling: The Role of European Union Freetrade in Facilitating International Fairtrade, 39 COMMON MKT. L.REV. 295 (2000). See more generally Carlos Ball, The Making of a Transnational Capitalist Society: The Court of Justice, Social Policy and Individual Rights under the European Community’s Legal Order, 37 HARV. INT’L L.J. 314 (1996).84 See Catherine Barnard, EC ‘Social’ Policy, in THE EVOLUTION OF EU LAW 479, 487-493 (Paul Craig & Grainne de Burca eds., 1999).85 See, among many, A. Wallace, Completing the Single Market: the Lisbon Strategy, in DEVELOPMENTS IN THE EUROPEAN UNION 2 100 (Maria Green Cowles & Desmond Dinan eds., 2004).86 On benchmarking, see Caroline de la Porte and Philippe Pochet, Social Benchmarking, Policy Making and New Governance in the EU, 11.4 J’L EUR. SOC’L POL’Y 291 (2001).87 See Vassilis Hatzopoulos, A (More) Social Europe: A Political Crossroad or a Legal One-Way? Dialogues Between Luxembourg and Lisbon, 42 COMMON MKT.L.REV. 1599 (2005).


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As economic growth is by no means a guarantee for social welfare, thousands of European citizens would still like to see a more “social Europe”.88 Even though it has received numerous interpretations, the rejection of the Constitution by French and Dutch voters seems to be one very topical expression of this call for a more visible and direct intervention of the Union in the social field.

In the absence of positive social regulations, the ECJ, it has been noted, has shown some awareness of social considerations in various fields of EU law. A rich case law has been developed for instance regarding the mobility of pension and healthcare rights89, the protection of employees in case of insolvency of their employer90 or full recognition of professional qualifications.91 This judicial activism, however, is aimed at promoting efficiency, foster labour mobility and its adaptability. It does not embrace social rights intrinsically and the Court always reasons by reference to basic Treaty Freedoms. Even in instances where the Court explicitly recognizes the social dimension of some of the Treaty’sprovisions, mention is always made of the overriding “market-making” purpose of such provisions. In its landmark decision in Defrenne (II) for instance, the Court recognized that Article 199 “forms part of the social objectives of the Community” but also stressed that it “pursues a double aim”. The first aim, it recalled, is to avoid a situation where states which have implemented social regulations suffer a competitive disadvantage in intra-Community competition as compared with states which have not yet developed such regulations.92

If some substantial progress has been made, the development of social rights, it seems, is largely a prisoner of the values of market integration. Social rights are not protected for their own sake but are employed instrumentally as vectors of economic integration in the Community.93 Some authors go so far as to suggest that European institutions have not taken fundamental rights seriously.94 This article suggests, more moderately, that there has always been a “social dimension” to Europe which tends, however, to be compromised by the prevailing economic interest. In sum, as a Member of the European Parliament put it: “although the importance of the social dimension of European integration is frequently stressed in statements of principles and broad objectives, social policy at EU level still is the poor cousin of the Economic and Monetary Union”.95

2.2 Negative Harmonization

Until such a time as the Community has acted, Member States may generally retain or introduce such measures as they deem appropriate to further environmental, human rights or social aims. There are limits on the ability of

88 See Des milliers de manifestants réclament une ‘Europe sociale’, LE MONDE, April 3, 2004. 89 See e.g. Cases 182/78, Pierrik II, E.C.R. 1977 (1979); 120/95, Decker, ECR I-1831 (1998) and 158/96, Kohll, E.C.R. I-1931 (1998).90 See e.g. Cases C-6 & 9/90, Francovich, E.C.R. I-5357 (1991) and 479/93, Francovich II, E.C.R. I-3843 (1995).91 See e.g. Cases 24/86, Blaizot, E.C.R. 379 (1998) and 224/98, D’Hoop, E.C.R. I-6191 (1995). 92 Case 43/75, Dufrenne v. Sabena, E.C.R. 455 at 471 (1976).93 See Miguel Poiares Maduro, Striking the Elusive Balance Between Economic Freedom and Social Rights in the European Union, inAlston, supra note 36, at 452.94 Jason Coppel & Aidan O’Neill, The European Court of Justice: Taking Rights Seriously?, 29 COMMON MKT. L.R. 669 (1992).95 Anne Van Lancker, EMU as a Lever for Europe’s Social Policy (Paper presented at the Institute for European Studies’s first annual colloquium The European Union: One Market, One Social Model?, September 2001) at 1. Online at <http://www.iee.umontreal.ca/pubicationsfr_fichiers/ALLOCUTIONS/VanLancker-texte.pdf>.


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Member States to take unilateral action however, a “ceiling” beyond which neither the Community nor its Member States may lawfully venture.96 Member States are required to respect a certain set of conditions ensuring the negative harmonization of domestic legislation.

2.2.1 Article 30 and Mandatory Requirements

Two sets of exceptions allow Member States to regulate in the face of the fundamental principles of free-trade. Those exceptions are embodied in article 30 EC, on the one hand, and in the well-established case-law on mandatory requirements, on the other hand. Article 30 provides:

the provisions of article 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.

The ECJ made clear that as article 30 is an exception, it should be interpreted strictly. It is, in the words of the Court, “an exception to the fundamental principle of the free movement of goods and must, therefore, be interpreted in such a way that its scope is not extended any further than is necessary”.97 The main consequence of that restrictive interpretation is that article 30 is regarded as an exhaustive list of treaty exceptions.98

Since neither environmental nor social development are explicitly mentioned as justifications, there is no express confirmation that such purposes justify derogation from the principles of free-trade. In practice, there is little doubt that they do, however, and their aims can be targeted through the imperatives of public policy or human, animal and plant health and life.99 This has been confirmed on many occasions by the ECJ.100

In addition to the treaty exceptions, the ECJ has established autonomous case-law exceptions. In the Cassis de Dijon case, the Court determined that obstacles to the free movement of goods in the Community are acceptable insofar as they are necessary to satisfy mandatory requirements. The Court referred to “mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer”.101 The list is not exhaustive. In subsequent case-law, a number of mandatory requirements have been added, including protection of the environment, the promotion of human rights or the improvement of working conditions.102

96 JOANNE SCOTT, EC ENVIRONMENTAL LAW 64 (1998).97 Case 13/78, Eggers, E.C.R. 30 (1978).98 Case 113/89, Commission v. Ireland, E.C.R. 1625 (1981).99 The perception of the environment through the imperatives of human, animal or plant health and life corresponds to the dominant anthropocentric (as opposed to intrinsic) approach on the international plane, defining the environment mainly as the human habitat. The Rio declaration, for instance, speaks of the environment as “our home” [preamble].100 Case 54/85, Mirepoix, E.C.R. 1067 (1986) ; Case 125/88, Nijman, E.C.R. 3533 (1989).101 Case 120/78, Cassis de Dijon, E.C.R. para. 8 (1978).102 See Case 302/86, Commission v. Denmark, E.C.R. 4607 (1986) and Case 155/80, Oebel, E.C.R. 1993 (1981).


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Treaty exceptions and case-law exceptions have traditionally been regarded as complementary but distinct. This distinction, however, is merely artificial.103

Article 30 and mandatory requirements serve a common purpose and both express the residual competence of the Member States to act in a manner which may exert an impact on free movement of goods. They provide a legal basis for individual Member States to adopt environmental or social regulations and so promote sustainable development when Community institutions are silent or paralyzed. However, limitations and safeguards have been developed against the misuse of the exceptions. These have substantially reduced the regulatory freedom of individual states and illustrate the complex relationship between economic, environmental and social development.

2.2.2 Limitations and Safeguards against Misuse or Abuse

There are two limitations on the exceptions. The first is in the second sentence of article 30 which provides that exceptions shall not “constitute a means of arbitrary discrimination or a disguised restriction on trade between Member states”. This is a very classic clause in international trade law, which can be found in other legal instruments such as the preamble to GATT article XX.104 It aims to ensure that no Member State invokes article 30 exceptions as a means to escape its legal obligations under the constitutive treaties.

Past experience has shown that sanitary or environmental exceptions have regularly been used by some states to justify the adoption of disguised trade restrictions with indirect protectionist objectives. Such measures, notably emanating from the United States, have led to important disputes, particularly before GATT and WTO panels, as in the Tuna-Dolphin, Gasoline and Shrimp-Turtle cases.105 The clause is essentially an expression of the fundamental principle of good faith in international law, understood as the general obligation of fidelity and loyalty to the treaty and its purposes.106 This foundational principle, which one eminent scholar identified as belonging to those “institutions” governing international relations as a whole,107 logically conditions the adoption of environmental or social measures within the internal market. This first limitation applies to treaty exceptions and case-law exceptions alike.108

The second limitation, equally applicable to both treaty and case-law exceptions,109 lies in the so-called “proportionality” test and is of greater interest for present purposes. It is widely accepted that the proportionality of means and

103 See Case 389/96, Aher Waggon, E.C.R. I-4473 (1998) and Case 203/96, Dusseldorp, E.C.R. I-4075 (1998). See also French, supra note 43, at 24.104 Article XX allows adoption of environmental measures “subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail”.105 United States – Restrictions on Imports of Tuna, Report of the Panel submitted to the Parties on 16 August 1991, IBDD, 39S/174; United States – Standards for Reformulated and Conventional Gasoline, AB, AB-1991-1, WTO-Document WT/DS2/AB/R, adopted 20 May 1996; United States – Import Prohibition of Certain Shrimp and Shrimp Products, 20 September, 1999, WTO Doc WT/DS58/AB/R (AB Report).106 Gabcikovo-Nagymaros Project (Hungary/Slovakia), I.C.J. 114 (1997).107 DINH NGUYEN QUOC, PATRICK DAILLIER AND ALAIN PELLET, DROIT INTERNATIONAL PUBLIC 126 (6th ed., 1999).108 Case 240/83, Procureur de la République v. Association de Défense des Brûleurs d’Huiles Usagées, E.C.R. 531 (1985); see Matthew L. Schemmel & Bas de Regt, The European Court of Justice and the Environmental Protection Policy of the European Community, 17 B.C. INT’L. & COMP. L. REV. 53, 77 (1994).109 Case 302/86, Danish Bottles, E.C.R. 4607 (1986).


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ends has been a general principle of Community law from the early years of the Coal and Steel Community.110 Proportionality may be described as the sufficiency of the causal link between a measure and its legitimate objective.111 The principle implies that, although states have a discretionary power to decide what degree of protection they wish to assure, they must always take account of the fundamental requirements of the free movement of goods. The ECJ has stressed on many occasions that “appraising the proportionality of national rules which pursue a legitimate aim under Community law involves weighing the national interest in attaining that aim against the Community interest in ensuring the free movement of goods”.112 In other words, Community law requires that the trade impact andcost of a restrictive measure bears a reasonable relationship to the importance of the social objective it is designed to achieve.113

In measuring the “sustainability” of this approach, it is useful to draw a comparison with the principles adopted in other fora. The case law developed within the WTO Dispute Settlement Body is of particular interest. From a series of GATT and WTO panel reports interpreting GATT article XX (the equivalent of article 30 EC), a very strict “necessity” test has emerged. It requires that the Member State adopts “among the measures reasonably available to it, that which entails the least degree of inconsistency with other GATT provisions”.114 According to this empirical principle, the Member State is obliged to select a measure which either will not breach its GATT obligations or will have the least restrictive effect on free-trade.115 The panel settling the first Tuna-Dolphin case went as far as to say that the Member State must have “demonstrated…that it had exhausted all options reasonably available” to justify the adoption of a trade-restrictive measure on the basis of GATT article XX.116 Thus WTO law only permits adoption of trade-restrictive measures on the basis of article XX insofar as those measures are strictly “unavoidable”.117

This approach is, of course, in direct contradiction with the imperatives of prevention and precaution that are inherent in sustainable development theory. Sustainable development calls for a pro-active approach rather than reactive approach and is precisely aimed at avoiding any development process based on short-term and emergency measures. Sustainable development forces States to think “intergenerationally” and implies the adoption of measures which may be avoidable today but which will, for future generations, be absolutely unavoidable. For this reason, the “necessity” test seems to be an obstacle to the achievement of sustainable development objectives.

110 JOCHEM WIERS, TRADE AND THE ENVIRONMENT IN THE EC AND THE WTO – A LEGAL ANALYSIS 72 (2002) and Grainne De Burca, The Principle of Proportionality and its Application in EC Law, 13 Y.B. EUR. L. 105 (1993).111 Olivier Corten, The Notion of ‘Reasonable’ in International Law: Legal Discourse, Reason and Contradictions, 48 INT’L &COMP.L.Q. 613, 623 (1999).112 Case 169/91, Stoke-on-Trent, E.C.R at ¶ 15 (1991).113 Steve Charnovitz, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 CORNELL INT’L L.J. 459, 481 (1994).114 United States – Section 337 of the Tariff Act of 1930, Report adopted on 7 November 1989, 36S/345 at ¶ 5.26.115 See Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, 25 J. WORLD TRADE 37 (1991) or Aaditiya Mattoo & Petros C. Mavroidis, Trade, Environment and the WTO: the Dispute Settlement Practice Relating to Article XX of the GATT, in INTERNATIONAL TRADE LAW AND THE GATT/WTO DISPUTE SETTLEMENT SYSTEM 327 (Ernst-Ulrich Petersmann ed., 1997).116 United States – Restrictions on Imports of Tuna, Report of the Panel submitted to the Parties on 16 August 1991, IBDD, 39S/174, I.L.M. 1594, ¶ 5.28 (1991). 117 Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, Report of the Panel adopted on 7 November 1990, 37S/200, ¶ 74.


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The “proportionality” test, as implemented in Community law, is more progressive.118 Proportionality, by allowing an equitable balancing of commercial, environmental and social costs, permits a real integration of these three legitimate purposes. By contrast, the “necessity” test subordinates non-economic considerations and pushes them back at the periphery of the market.119 The proportionality approach is to be favoured from a sustainable development perspective. Proportionality gives Member States the opportunity to adopt “reasonable” measures which are not necessarily unavoidable, providing they do not restrict free-trade more than “necessary” to achieve the social goal at stake. Itemphasises both the need to assess whether the restrictive measure adopted threatens the objectives of trade liberalization and the need to assess whether the normal functioning of the internal market threatens the social goal pursued by the restrictive measures.

Through the evolution of positive and negative harmonization, Community law is progressively opening the doors of European integration to non-commercial considerations. But the road to sustainable development is complex. As has been observed, both environmental and social rights are still largely perceived as vectors of economic integration. They are only rarely embraced for their own sake, are often employed instrumentally and are compromised in favour of the overriding economic interest. The fact remains that the elimination of obstacles to the free movement of goods is considered crucial for the smooth functioning of the internal market.120 It is treated as a condition sine qua non that will rarely allow for the serious consideration of competing interests.

This situation is not set in stone however. Sustainable development, initially no more than a conceptual matrix, is now being translated into a corpus of increasingly well-defined legal principles. As this Chapter goes on to illustrate, Community law is, more than the legal framework of any other economic organization, implementing some of those legal principles.

3 The Implementation of Sustainable Development Legal Principles

Sustainable development law is still in its infancy. The striking contrast between the ostentations of the World Summit for sustainable development, held in Johannesburg in 2002, and the complete absence of binding instruments adopted on that occasion, even on those topics where emergency measures are needed, is just one example among many.121

Boyle and Freestone suggest however that sustainable development “is not simply phenomenological, although [it is] important in that respect. More

118 Contra see Bradley J. Condon, Reconciling Trade and Environment : A Legal Analysis of European and North American Approaches, 8 CARDOZO J. INT’L. & COMP. L. 1 (2000).119 On necessity and proportionality, see MARIO PROST, D’ABORD LES MOYENS, LES BESOINS VIENDRONT APRÈS.COMMERCE ET ENVIRONNEMENT DANS LA ‘JURISPRUDENCE’ DU GATT ET DE L’OMC 33-40 (2005).120 Harrie Temmink, From Danish Bottles to Danish Bees: The Dynamics of Free Movement of Goods and Environmental Protection – A Case Law Analysis, 1 Y.B. EUR. ENVTL. L. 61, 62 (2000).121 For a critical commentary of the work of the World Summit on sustainable development, see in particular Marc Pallemaerts, International Law and Sustainable Development: Any Progress in Johannesburg?, 12 R.E.C.I.E.L. 1 (2003); Virginie Barral, Johannesburg 2002: Quoi de neuf pour le développement durable?, 107 R.G.D.I.P. 415 (2003); Sandrine Maljean-Dubois, Environnement, développement durable et droit international. De Rio à Johannesburg, A.F.D.I. 592 (2002).


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fundamentally, [it] pose[s] some of the most interesting challenges to international law-making, while also offering innovative solutions to some of the systemic problems of the international legal order”.122

On many occasions, European institutions have taken note of this challenge. They have repeatedly designated sustainable development as a leading policy objective. The Dublin Declaration on the Environmental Imperative of June 1990 emphasized, for example, that Community actions “will be developed on a coordinated basis and on the principles of sustainable development”.123

However policy documents, declarations and action plans are no more than soft law instruments. They are instruments of “weak sustainability”, inspirational in character but formally non-binding. The way toward “strong” sustainability requires attention to the more precise legal principles that have gradually developed out of the sustainable development matrix.

The sustainability of Community law can be analyzed by surveying the application of some of these principles in recent developments. The task is not an easy one given the “many compendia of principles derived from the grand […] concept ‘sustainable development’”.124 As this study is non-exhaustive, an arbitrary choice has had to be made. Specific attention will be paid to two fundamental principles, one substantive and one procedural in nature: precaution and public participation. It will be argued that, despite the growing concern among international scholars that sustainable development is a mere policy guideline without legal implications, some of the principles of international sustainable development law have had concrete legal significance in positive Community law.

3.1 Precaution

Machiavelli declared in 1513 that all wise princes should “not only have to watch out for troubles at hand, but also for those ahead, and endeavour diligently to avoid them; for once trouble is foreseen, it can be easily remedied; however, if you wait for it to become evident, the medicine will be too late, for the disease will have become incurable”.125 This principle, intended as a general rule of good governance, summarizes what, nearly four centuries later, has become one of the cardinal standards of international environmental law, a “Golden rule for the environment”: prevention. 126

Given the sensitive nature of the environment, prevention is often the only responsible and logical approach because in many cases, damage will be irreparable.127 This was made clear by the International Court of Justice in the 1997 Gabcikovo Nagymaros case where it held that “in the field of environmental

122 Alan Boyle & David Freestone, Introduction, in SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAW 1 (Alan Boyle & David Freestone eds., 1999).123 Bull. EC 6-1990.124 M.C.W. Pinto, The Legal Context: Concepts, Principles, Standards and Institutions, in Weiss, Denters and de Waart, supra note 48, at 17.125 NICCOLO MACHIAVELLI, THE PRINCE 17 (Mark Musa trans., 1964).126 ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW 263 (2nd ed., 2000).127 See Winfried Lang, Mise en oeuvre des règles en matière d’environnement – Commentaire sur une résolution de l’Institut de Droit International du 4 septembre 1997, REV. B.D.I. 556, 557 (1997).


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protection, vigilance and prevention are required to take account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage”.128

One of the most widely accepted forms of the general imperative of prevention is the precautionary principle.129 Article 15 of the 1992 Rio Declaration provides a widely recognised definition of precaution:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.130

In other words, the precautionary principle makes clear that “in the face of a peril to the environment, conclusive scientific proof is [not] a prerequisite, nor uncertainty an obstacle, for taking measures to counter it”.131 The dissociation between scientific certainty and political decision-making therefore characterizes the precautionary approach.132 Moreover, precaution is generally apprehended as a direct corollary of sustainable development since both principles emphasize foresight and the need for a proaction rather than reaction.133 Rehbinder has even called precaution and sustainability “two sides of the same coin”.134

Implicit precautionary thinking emerged within the European Union during the first four Action Programmes on the environment. These non-binding Programmes were primarily developed because, for a long time, the EC Treaty did not provide an express legal basis for environmental measures.135 They implicitly refer to precaution in a number of instances. The First Action Programme states as a general principle of Community policy action that “the best environment policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects”.136

The Third Action Programme added that, in order to give full effect to the principle of prevention, “it is necessary to formulate and introduce procedures for judgment which will ensure that the appropriate facts are considered early in the decision-making processes relating to any activity likely to affect the

128 Supra note 15, at ¶ 140.129 Prevention and precaution, though often used synonymously, are two distinct principles. Preventive measures represent measures adopted before occurrence of any definitive damage, but on the basis of scientific certainties. Precautionary measures, on the other hand, represent preventive measures adopted in the absence of final scientific evidence as to a potential damage to the environment or human health. The distinction between “potential” and “proven” risk therefore founds the parallel distinction between precaution and prevention. See on this point PHILIPPE KOURILSKY & GENEVIEVE VINEY, LE PRINCIPE DE PRECAUTION: RAPPORT AU PREMIERE MINISTRE 18 (2000); and Marie-Claire Cordonier Segger & Markus Gehring,Precaution, Health and the World Trade Organization: Moving Toward Sustainable Development, 29 QUEEN’S L.J. 133, 137 (2003).130 Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/6/Rev.1, (1992), 31 I.L.M. 874 (1992).131 ARIE TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW 11-12(2002).132 For a (brillant) description of the concept of precaution, see Olivier Godard, De la nature du principe de précaution, in LE PRINCIPE DE PRÉCAUTION – SIGNIFICATIONS ET CONSÉQUENCES (Edwin Zaccai & Jean-Noel Missa eds., 2000); and TROUWBORST, supra note 131, at 1-31.133 James Cameron, The GATT and the Environment, in GREENING INTERNATIONAL LAW 100, 117 (Phlippe Sands ed., 1993).134 Eckard Rehbinder, Precaution and Sustainability: two sides of the same coin?, in A LAW FOR THE ENVIRONMENT – ESSAYS IN HONOUR OF WOLFGANG E. BURHENNE (Alexandre Kiss & Francoise Burhenne-Guilmin eds., 1994).135 See LUDWIG KRÄMER, EC ENVIRONMENTAL LAW 55 (2003).136 First Environmental Action Programme 1973-1976, O.J. (C 112) 1 (1973).


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environment significantly”.137 The Fourth Action Programme stressed that “environmental policies are conceived and implemented in stages, moving from perception of an environmental problem (either an actual problem or –preferably – at the stage at which it is still only potential) to the institution and enforcement of necessary measures whether remedial or preventive”.138

The penetration of the precautionary approach into European legal rhetoric is also confirmed in secondary legislation. Implied precaution can be found in the 1979 Birds Directive ensuring protection of species which are not yet in direct danger of extinction.139 Better known is Directive 81/602 imposing a moratorium on the use of certain bovine growth hormones in European cattle raising, as well as on the sale of animals raised with such hormones. This was on the basis that “due to the residues that they leave in meat, certain substances with a thyrostatic oestrogenic, androgenic or gestagenic action may be dangerous for consumers”.140

The ban was later extended to any nation wishing to export beef to the EC141 and led to the well-known 1998 dispute between the EC and the United States and Canada before the WTO Dispute Settlement Body. In that case, the EC argued that, in order to take action, “it is not necessary for all scientists around the world to agree on the ‘possibility and magnitude’ of the risk, nor for all or most of the WTO Members to perceive and evaluate the risk in the same way”.142

No less important was the 1990 GMOs Directive. It laid down a range of precautionary procedures aimed at containing the use of GMOs where “the precise nature and scale of risks associated with genetically modified organisms are not yet fully know”.143 The European Court of Justice acknowledged the precautionary nature of these procedures in the 2000 Greenpeace case. It held that “observance of the precautionary principle is reflected in the…obligation[s] laid down in Article 11(6) [12(4) and 16] of Directive 90/220”.144

Explicit precautionary language was first introduced into primary community law in 1990. In the European Council’s “environmental imperative”, the Heads of State and Government called for “a further action program on the environment to be elaborated on the basis of the principles of sustainable development, preventive and precautionary action and shared responsibility”.145 A giant step was made two years later in Maastricht, with the constitutional recognition of the precautionary principle as a basis for Community action. Article 174EC states: “Community 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 Community. It shall be based on the precautionary principle and on the principles that

137 Third Environmental Action Programme 1982-1986, O.J. (C 46) 1 (1983).138 Fourth Environmental Action Programme 1987-1992, O.J. (C 328) 1 (1987).139 Council Directive 79/409 on the conservation of wild birds, O.J. L103 (1979). Article 4 provides that the directive shall apply to “a) species in danger of extinction; b) species vulnerable to specific changes in their habitat; c) species considered rare because of small populations or restricted local distribution; d) other species requiring particular attention for reasons of the specific nature of their habitat”.140 Council Directive 81/602 concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action, O.J. L 222 (1981); emphasis added.141 Council Directrive 96/22 concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of beta-agonists, O.J. L 125 (1996).142 EC Measures concerning Meat and Meat Products (Hormones), Report of the Appellate Body of 13 February 1998, WT/DS26/AB/R – WT/DS48/AB/R, paragraph 121.143 Council Directive 90/220 on the Deliberate Release into the Environment of Genetically Modified Organisms, O.J. L. 117 (1990).144 Case 6/99, Association Greenpeace France and Others v. Ministère de l’Agriculture et de la Pêche and Others, E.C.R. 1651, at ¶ 44 (2000).145 Council Resolution on the Fifth Action Program, adopted in Dublin on 26 June 1990.


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preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay”. This article is of the utmost importance since it obliges all Community institutions to apply precaution when shaping any policy and law which has a potential effect on the environment. Article 174 EC is arguably the most significant of all treaty references to the precautionary principle in international law.

The Maastricht Treaty, and its consecration of the precautionary principle as a “constitutional” principle of European law, have had a very significant impact on the subsequent development of secondary community law. Not only has the number of pieces of legislation adopting a precautionary approach grown substantially, but since 1992, the references to precaution have been increasingly explicit. The 1992 Habitat Directive, for example, puts the precautionary principle into operation by stating that when there is uncertainty as to the consequences of certain activities on the habitat of the species to which the Directive applies, no license will be issued by the national authorities for such projects.146 Of an equally precautionary nature is the Driftnets Ban Regulation, which imposes a ban on the use of driftnets longer than two and a half kilometres. It only permits derogations from the ban in those instances where scientific evidence show “the absence of any ecological risk”.147

The bovine spongiform encephalopathy (BSE or “mad cow” disease) crisis probably represents the most explicit and widely debated case of precaution within the Union. In 1996, the European Commission introduced emergency safeguard measures aimed at protecting public health from the possible transmission of the BSE to humans (Creutzfeldt-Jakob disease). A moratorium on the export of cows and derived products from the United Kingdom was imposed on the basis that “under current circumstances, a definitive stance on the transmissibility of BSE to humans is not possible [and] a risk of transmission cannot be excluded”.148 The Decision of the Commission was subsequently the object of many cases brought before the European Court of Justice.149 In its final judgment, delivered in 1998, the Court decided that the Commission’s decision was fully justified, adequate and effective and had been adopted in a timely manner. It recalled that “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent”.150 This confirms that the Commission’s attitude in the BSE crisis was a proper application of the precautionary principle.

In its 1996 Directive on Integrated Pollution Prevention and Control, the European Council made direct application of the precautionary principle in laying down new measures “necessary to implement integrated pollution prevention and control in order to achieve a high level of protection for the environment as a

146 Council Directive 92/43 concerning the Conservation of Natural Habitats and Wild Fauna and Flora, O.J. L 206(1992); see Wybe Th. Douma, The Precautionary Principle in the European Union, 9 R.E.C.I.E.L. 132, 134 (2000).147 Council Regulation 345/92 on certain technical measures for the conservation of fishery resources, O.J. L 042 (1992), article 1 [emphasis added].148 Commission Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, O.J. L078 (1996), preamble. 149 See Douma, supra note 146, at 136-137.150 Case 157/96, The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, E.C.R.I-2265, ¶ 63 (1998).


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whole”.151 The Directive mainly obliges Member States to ensure that installations under their jurisdiction are operated so as to prevent pollution “in particular through application of the best available techniques”.152 Most importantly, the Directive obliges Member States, when it comes to issuing a permit or defining the conditions for industrial installations to function, to take into account “generally or in specific cases when determining best available techniques […] the principles of precaution and prevention”.153

More recently, the Council decided, as “an interim measure taken as a precaution”, to prohibit four antibiotics used in animal food despite the fact that suspected human health risks had been “neither proven nor disproven”.154 It is a decision where the precautionary principle is the ultimate reference in a case of grave and irreversible risk.

This rapid survey of secondary law makes clear that Community law has, for some time, incorporated the principle of precaution. The application of the precautionary principle by European institutions, especially the Commission, has not always been coherent however. The Novartis and Monsanto Decisions suffice as an illustration. The European Council adopted a precautionary approach in relation to the commercialization of Genetically Modified Organisms on the internal market. However, the Commission decided in 1998, in application of the procedure set up in Directive 90/220,155 to authorize the placement on the market of Novartis and Monsanto maize.156 This decision clearly disregards precaution. Indeed, the potential consequences for biodiversity and for human health of the breeding of such genetically modified seeds appear to have been ignored. Surprisingly, however, the Commission refused to authorize the release on the market of a similar product several months later. On that occasion, it stressed that without an adequate evaluation as to the potential consequences of a horizontal transfer of genes from the GMO to humans, animals or the environment, it is impossible to fully evaluate the security of the transgenic product at stake.

Largely as a reaction to the Commission’s policy incoherence, 1999 saw the European Council impose a de facto moratorium on the release of GMOs for the duration of the revision process of Directive 90/220.157 The Council urged the Commission “to be in the future even more determined to be guided by the precautionary principle” and called for “clear and effective guidelines for the application of this principle”.158 After the Directive was revised,159 and some agreement had been reached regarding new standards for the traceability and labelling of genetically modified products,160 the moratorium was ended in May

151 Council Directive 96/61 concerning integrated pollution prevention and control, O.J. L. 257, preamble (1996).152 Ibid., article 3.153 Ibid., annex IV.154 Council Regulation 2821/98 regarding withdrawal of the authorisation of certain antibiotics, O.J. L 351, preamble (1998).155 For a description of the GMO directive and its approval procedure, see Thorvald Spanggaard, The Marketing of GMOs: A Supra-national Battle over Science and Precaution, 3 Y.B. EUR. ENVTL. L. 79, 86-92 (2003).156 Commission Decision 98/292 and Decision 98/294 concerning the placing on the market of genetically modified maize, O.J. L 131 (1998).157 See Mathieu Turcotte, La bataille des OGM: survol des positions et des solutions canadienne, américaine et européenne, 34 R.J.T. 625, 652 (2000).158 Id.159 Council Directive 2001/18 on the Deliberate Release into the Environment of Genetically Modified Organisms and Repealing Council Directive 90/220, O.J. L 106 (2001).160 David Vogel, The Politics of Risk Regulation in Europe and the United States, 3 Y.B. EUR. ENVTL. L. 1, 12 (2003).


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2004. Although this provoked an avalanche of criticism, the release of GMOs into the European market may now start again.161

Despite some evidence of incoherent application, both primary and secondary community law are giving life to the precautionary principle. The ECJ has often confirmed the relevance of the precautionary principle in interpreting Community law.162 Recently, the Commission reiterated its commitment to the principle in a communication dedicated entirely to precaution, partly in response to the Council’s call for more coherence.163 In the communication, the Commission states that the precautionary principle is “a general [principle] which should in particular be taken into consideration in the fields of environmental protection and human, animal and plant health”.164 It recalls that “the precautionary principle has been politically accepted as a risk management strategy in several fields”165 and states that reliance on the precautionary principle constitutes “an essential plank”166 and a “key tenet”167 of its policy.

Trouwborst, the author of what remains the most comprehensive study on the precautionary principle in international law, concluded in 2002 that “in summary, amongst the many international organizations involved in the legal development of the principle, the European Union occupies a place in the front ranks”.168

Despite some degree of incoherence in the manner of the principle’s application,this opinion remains accurate today.

3.2 Public Participation in Decision-Making

The appearance of the sustainable development paradigm on the international scene has coincided with the widespread recognition of the process of globalization. While globalization is said to be a potential source of new economic prosperity, it is at the same time condemned as the cause of environmental degradation and social breakdown. This has led to calls for “global governance” by which to regulate economic activities and meet the aspirations of sectoral interests, be they environmental or social.

From Seattle to Porto Alegre, the “democraticidal” nature of international economic institutions has been denounced as an obstacle to sustainability.169 As the scepticism about free-trade economics grows stronger than ever, the necessity of a revision of the economic institutions’ governance structure becomes inescapable if legal regimes governing international trade are to gain political legitimacy.

161 See Arnaud Leparmentier, La levée du moratoire sur les OGM provoque une avalanche de critiques, LE MONDE, May 20, 2004, at 7.162 See the recent Case T-70/99 of 30 june 1999 where the Court affirms that “requirements linked to the protection of public health should undoubtedly be given greater weight that economic considerations”.163 For a critical analysis of the Communication, see Natalie McNelis, EU Communications on the Precautionary Principle, 3 J.INT’L. ECON. L. 545 (2000).164 Communication from the Commission on the Precautionary Principle, COM (2001) 1, at 9.165 Ibid. at 8.166 Ibid. at 12 [emphasis added].167 Ibid. at 2 [emphasis added].168 TROUWBORST, supra note 131, at 148.169 Sophie Meunier, Trade Policy and Political Legitimacy in the European Union, 1 COMP. EUR. POL. 67 (2003).


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The European Union, needless to say, is not immune from this general call for better governance. European integration is largely perceived as a process that has been historically driven by elites rather than the citizens themselves. Many see the European Union, and especially the Commission (the “bureaucrats in Brussels”) as an “alien government of strangers”.170 The democratic malaise, or “democratic deficit” as it is most often referred to, is a conspicuous factor in the “EU labyrinth”.171Assessing whether EC law is becoming more sustainable therefore calls for scrutiny of Community efforts to tackle the problem of governance.

The use of the concept of governance has spread with astonishing rapidity among academics and practitioners. Despite its growing currency, however, it still lacks an official and widely accepted definition. The vagueness of the notion explains, to some extent, its success. There is however a degree of agreement that “governance is a method/mechanism for dealing with a broad range of problems/conflicts in which actors regularly arrive at mutually satisfactory and binding decisions by negotiating and deliberating with each other and co-operating in the implementation of these decisions”.172 In short, governance addresses issues of “deliberation” and “implementation” in the exercise of authority. This study will focus on an important aspect of governance: public participation in decision-making in environmental matters.173

Public participation in decision-making very soon emerged as a fundamental principle of sustainable development. The Brundtland Report, for instance, found that “sustainable development requires: […] a political system that secures effective citizen participation in decision making”. Later, the Rio Declaration stressed that sustainable development issues “are best handled with participation of all concerned citizens, at the relevant level”.174 Agenda 21 provided that “one of the fundamental prerequisites for the achievement of sustainable development is broad participation in decision making”.175 Kiss and Shelton have summarized the idea of public participation as follows: “public participation is based on the right of those who may be affected to have a say in the determination of their environmental future”.176 Public participation, it is felt, will enhance environmental protection.177

The issue of public-participation is of particular significance in the European Community since it has always, to some extent, been a contested political entity. Indeed, for the main part of its history, the European Community has largely remained, or was largely perceived as, an elite-driven and technocratic institution.178 If the relatively narrow mandate of the early communities allowed

170 See Andrew Moravcsik, Despotism in Brussels? Misreading the European Union, 80 FOREIGN AFF. 114 (2001).171 DANIEL GUÉGUEN, GUIDE PRATIQUE DU LABYRINTHE COMMUNAUTAIRE (9th ed., 2003).172 Philippe C. Schmitter, What is There to Legitimize in the European Union… And How Might This be Accomplished?, inMOUNTAIN OR MOLEHILL? A CRITICAL APPRAISAL OF THE COMMISSION WHITE PAPER ON GOVERNANCE (Christian Joerges, Yves Meny & Joseph H.H. Weiler eds.), Jean Monnet Working Paper No. 6/01, 25.7.2001, COM (2001) 428 online : <www.jeanmonnetprogram.org/papers/01/010601.html>.173 For the study to be perfectly complete, emphasis should be put as well on social aspects of sustainable development. The choice to concentrate on environmental matters is justified, however, by the fact that the most significant evolutions in community law, as to enforcing a system of good governance, have emerged in this field.174 Rio Declaration on Environment and Development, supra note 130, principle 10.175 UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, AGENDA 21, UN Doc. A/CONF.151/26/Rev.1, 31 I.L.M. 874 (1992), paragraph 23.2.176 KISS & SHELTON, supra note 126, at 204.177 Jenny Steele, Participation and Deliberation in Environmental Law: Exploring a Problem-solving Approach, 21 OXFORD J. LEGAL STUD. 415, 416 (2001).178 See Martin Slater, Political Elites, Popular Indifference and Community Building, in THE EC: PAST, PRESENT AND FUTURE 83(Loukas Tsoukalis ed., 1983).


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the making of European law and institutions to take place while the people remained indifferent, the progressive broadening of the Community’s competence, beyond the economic into more diverse political spheres, has led to a heated public debate on legitimacy. General dissatisfaction has grown at the making of Community law, and in particular as to the prominent role of the Commission, an organ appointed by the European Council in quasi-secrecy and on the basis of very limited popular consent. As Smith notes: “it is one thing for elites in Brussels, Strasburg, and some European capitals to identify with and work for a united Europe, quite another to attribute such sentiments and beliefs to the great mass of the middle and working class, let alone the surviving peasantries of Southern and Eastern Europe”.179

A European Parliament was created by the Treaty of Rome to voice the interests of European citizens. Very quickly, however, it became clear that the Parliament “lays in its legislative emasculation”.180 The power of the Parliament was limited by the Rome Treaty to the giving of assent to legislation presented to it. Successive reforms have changed that situation. The first noteworthy reform concerns the designation of European MPs. Originally designated by domestic parliaments, the European Parliament has, since 1979, been elected by direct universal vote.181 Although the envisaged uniform system of election has not yet been implemented, the introduction of direct elections alone results in increased public participation in decision-making. Citizens can now participate in the making of Community law through direct representation in the European Parliament.

More importantly though, in some policy areas, the European Parliament (EP) has developed from a mere consultative body into a real decision-making organ. This is the case notably in relation to environmental protection. In this field, the EP, which originally only had the right to be consulted, is now a “partner in the co-decision procedure in almost all environmental decisions”.182 The co-decision procedure, it is worth recalling, means full equality between the EP and the Council. The latter cannot override the Parliament’s rejection of a measure, as it may do by unanimous vote, in areas where the cooperation procedure applies. The EP therefore has a real legislative role in relation to almost all environmental issues, and is the locus of democratic authority in the EU.

However, the EP is still often reduced to a simple role of “institutionalized opposition” to the Council and lacks a positive right of initiative and of leadership in Community decision-making.183 Experience has shown, for instance, that in the conciliation procedure aimed at reconciling divergences between the Parliament and the Council, the Council’s position regularly prevails over that of the Parliament, especially in environmental matters.184 Ensuring good governance within European institutions therefore requires more diverse processes of openness to public participation in multiple instances and institutions. These must go beyond mere parliamentary representation.

179 Anthony Smith, National Identity and the Idea of European Unity, 68 INT’L AFF. 55, 72 (1992).180 WARD, supra note 76, at 24.181 Decision of 20 september 1976, O.J. L 278 (1976). See STEINER & WOODS, supra note 38, at 20.182 Ludwig Krämer, Thirty Years of EC Environmental Law: Perspectives and Prospectives, 2 Y.B. EUR. ENVT. L. 155, 160 (2001).183 Ibid., at 163. 184 Krämer, supra note 135, at 43.


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At the moment, there is no requirement in the legislative process for general and systematic institutional representation of, or consultation with, environmental interest groups or individual citizens. Hearings of interested groups are only sporadically organized by Community institutions, on a purely ad hoc and sectoral basis. On occasion, secondary legislation requires Member States to ensure some degree of public participation in the implementation of Community law. The Environmental Impact Assessment Directive, for example, requires that the public be given “the opportunity to express an opinion before the development consent is granted” and adds that “the results of consultations and the information gathered…must be taken into consideration in the development consent procedure”.185 The IPPC Directive, for its part, requires that “MemberStates shall take the necessary measures to ensure that applications for permits […] are made available for an appropriate period of time to the public, to enable it to comment on them before the competent authority reaches its decision”. 186

The involvement of interested organizations and individual citizens in the environmental law-making process remains weak however. This is not only problematic for the legitimacy of democratic decision-making. NGOs, expert groups and other organizations play a double role in governance: not only do they channel public opinion into the process of deliberation, and then “translate” the political debate back to the public, they also advance the cause of environmental protection by improving the outcomes of decision-making and helping to ensure “better” decisions.187 It should be kept in mind that scientific expertise is of the utmost importance in environmental matters. As ecological issues are inescapably embedded in a scientific context, “politicians cannot exercise control over environmental outcomes without recourse to scientific findings… They are dependent on what the practices of science uncover about the laws of nature”.188 The European Environmental Agency was set up to provide the community institutions and the Member States with such objective and reliable scientific information. However, multiple and preferably opposed sources of information are needed to promote the adoption of the most appropriate environmental protection measures.189 Citizens’ involvement in Community decision-making is currently informal, weak and diffuse. As a result, there is still the widespread opinion that decision-making in the community is “opaque…complicated and very complex…The public is shut out from the process”.190

Community institutions are aware of the problem. Several decisions in the past ten years have addressed the issue of public participation. For example, the European Community and all the Member States decided to become signatories to the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters. The Convention generalizes the imperative of public participation and “brings the citizens a little closer to the

185 Council Directive 85/337 on the Assessment of the Effects of Certain Private and Public Projects on the Environment, O.J. L 175 (1985).186 Council Directive 96/61, supra note 151, article 15.187 Steele, supra note 177, at 438-440.188 James N. Rosenau, Global Environmental Governance: Delicate Balances, Subtle Nuances, and Multiple Challenges, inINTERNATIONAL GOVERNANCE ON ENVIRONMENTAL ISSUES 19, 33 (Mats Rolen et al. eds., 1997).189 See Renaud Dehousse, Misfits: EU Law and the Transformation of European Governance, in GOOD GOVERNANCE IN EUROPE’S INTEGRATED MARKET 207, 224-227 (Christian Joerges & Renaud Dehousse eds., 2002).190 Ress, supra note 77, at 166.


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decision-making process”.191 It requires mandatory procedures for public hearings in respect of decisions on specific activities and ensures that “due account is taken” of the outcomes of this public participation.192 The Convention also places an obligation on the parties to ensure public participation in the preparation of any plan or program relating to the environment.193 The UN Secretary-General has called it “the most ambitious venture in the area of ‘environmental democracy’ so far undertaken”194 and it will undoubtedly have a major bearing on EC law by broadening and generalizing public-participation in community lawmaking.195

On two occasions, the Commission has insisted on the issue of public participation as one of great importance in the elaboration of its policy. In its sixth Environmental Action Programme, it dedicated a title on “policy making based on participation and sound knowledge” and stated that “broad involvement of stake-holders will be central to the successful implementation of the Sixth Programme. Sound scientific knowledge and economic assessments, reliable and up-to-date environmental data and information and the use of indicators will underpin the drawing-up, implementation and evaluation of environmental policy”.196

The same year, the Commission issued an entire communication on the issue of governance. Its White Paper on European Governance197 was received rather coldly by commentators. It was called an “abject failure”,198 omitting to deal with the central problems affecting the “messed up” decision-making structures of the EU.199 Nevertheless, it is important to underline that “participation” is one of the keywords of the White Paper.200 The Commission, noting that “it is time to recognize that the Union has moved from a diplomatic to a democratic process”,201 states that, in order to meet the expectations of the Union’s population, it should “connect Europe with its citizens”,202 follow a “less top-down approach”203 and make policy-making “more inclusive and accountable”.204

The concrete reforms envisaged in the White Paper focus on a limited approach to participation. They emphasize, in quite vague rhetorical proposals, the consultative or pre-decision phase rather than the decision itself. That said, the White Paper represents a fundamental shift in the discourse of the Commission. No longer is the legitimacy of the Union thought to be based solely on the

191 Steele, supra note 177, at 418.192 Aarhus (Denmark), 25 June 1998, 38 I.L.M. 517 (1998), article 6.8.193 Ibid., article 7: the parties shall “make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public”.194 Kofi A. Annan, Foreword in THE AARHUS CONVENTION: AN IMPLEMENTATION GUIDE (Stephen Stec ed., 2000).195 Peter Davies, Public Participation, the Aarhus Convention, and the European Community, in HUMAN RIGHTS IN NATURAL RESOURCE DEVELOPMENT 155, 184 (Donald N. Zillman et al. eds., 2002). See also Vera Rodenhoff, The Aarhus Convention and its Implications for the ‘Institutions’ of the European Community, 11 R.E.C.I.E.L. 343 (2002).196 Sixth Environmental Action Programme 2001-2010, O.J. (L 242) 5 (2002).197 Commission White Paper on European Governance, July 25,2001, COM (2001) 428.198 See Christian Joerges, The Commission’s White Paper on Governance in the EU – A Symptom of Crisis?, 39 COMMON MKT.L.REV. 441, 445 (2002).199 Fritz W. Scharpf, European Governance: Common Concerns vs. The Challenge of Diversity, in Joerges, Meny & Weiler, supra note 172, at 2.200 See Paul Magnette, European Governance and Civic Participation: Can the European Union be Politicized?, in Joerges, Meny & Weiler, supra note 172, at 1.201 White Paper, supra note 197, at 29.202 Ibid. at 3.203 Ibid. at 4.204 Ibid. at 8.


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making of good policies. The importance of the process by which the policies are made has also been recognised.

European institutions ought to act as visibly as national governments since, in certain areas, up to 70% of new regulations affecting the lives of people in Europe now have EU origins. There is a need for more generalized and systematic participation of the public in the decision-making procedures. As the competences of the Community grow, its policies have an increasing impact on people’s lives. This calls for more social control and accountability. At the same time, it is important to be cautious in comparing the EU with national regimes. Analyzing European institutions in terms of good governance through the same normative criteria applied to Nation States would be like “describing oranges with a botanical vocabulary developed for apples”.205

Unquestionably, EU governance is largely characterized by a net empowerment of the executive. The prominence of the Commission and the Council in European law-making is a matter of fact. It is undisputed that the fabric of community law remains distant from European citizens. Much of Community law which affects people’s lives seems increasingly either trivial and irritating or important, but at such a level of remoteness that there seems little prospect of any influence over the policy and little understanding of why it ought to be decided at a European rather than at any other level. This is why it is important to make the policy-making more inclusive and accountable. Would the EU fail to address these issues, the dislocation between rhetoric of public involvement and the reality might generate enough discontent, concern and distrust to compromise the future of the Union.

Yet, the anatomy of European Law reveals some striking characteristics. The growing of the Parliament into a real legislative assembly is of paramount importance. The use of a Parliament to control the decision-making process of intergovernmental organs is indeed “an almost purely European endeavour” 206

and is absolutely unequalled in any other international economic institution. It reflects the unfathomable mysterious nature of the European Union: not yet a federal State, but certainly an organisation with such magnitude and integration that it cannot be thought of purely as an intergovernmental organization.207As Giddens suggests the EU “is the most important and promising experiment in transnational governance going on”.208 Thus, in spite of many peculiarities and idiosyncrasies, the EU may very well be, for issues of governance in international economic institutions, the model of the genre.

Concluding Remarks

Writing at the turn of the century, Bauman, an eminent sociologist, summed up what he perceived as a dominant trend of the 20th century: “le XXe siècle a excellé dans la ‘suproduction’ de moyens; les moyens ont été produits à un

205 Joseph H.H. Weiler, European Models: Polity, People and System, in LAWMAKING IN THE EUROPEAN UNION 3, 7 (Paul Craig & Carol Harlow eds., 1998).206 Ress, supra note 77, at 154.207 Weiler, supra note 205, at 7-9. In the view of the author, “in some […] spheres EU governance is international; in other spheres it is supranational; in yet others it is infranational”.208 ANTHONY GIDDENS, THE THIRD WAY: THE RENEWAL OF SOCIAL DEMOCRACY 141 (1998).


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rythme toujours plus rapide, dépassant les besoins connus et jugés nécessaires. D’abord les moyens – les besoins viendront après”.209 First the means, then the necessary needs. The aim of this Chapter was to assess whether European Law has been capable of integrating the needs expressed in the concept of sustainable development into the internal market.

The sustainability of EU Law is of concern to European citizens in the first place. But it also affects the international community as a whole. Indeed, Europe plays a role as the originator of several of the world’s environmental problems, as was highlighted at the World Summit on Sustainable Development. Additionally, Europe and its law are monumentally important factors in the development of international trade law. The Union has always been a fascinating laboratory, constantly scrutinized by the rest of the international community. This is even more so as it has just enlarged to ten new Member States.

At first glance, and in comparative perspective, the widening of European law to take account of environmental and social, as opposed to economic, needs is remarkable. Commentators are clear that “the EU maintains the most well-developed and environment-friendly trade-environment rules and institutions”210

and that “EC law has enabled the integration of trade, economic and environmental law to a degree so far not possible in other international organizations”.211 Certainly, the legislative effort within the EU, aimed at harmonizing trade and environment regulations, is unprecedented and has not yet been replicated in other regional or global trade regimes. More than anywhere else, the Union has opened its doors, in a very sophisticated fashion, to fundamental interests relating to environmental protection, human rights and social development.

However, a careful analysis of factual data suggests that the EU’s progress towards sustainability remains slow. The progress made in the field of environmental protection – the domain where the most elaborated and comprehensive legislative framework has been set up – will suffice to illustrate this. In its 1999 Second Report on the State of the European Environment, the European Environment Agency unambiguously entitled its chapter: “some progress, but a poor picture overall”. It released a particularly negative evaluation of issues such as biodiversity, coastal and marine areas, rural areas, mountain areas or soil degradation, stating that “for most of the issues there has either been insufficient progress towards recovery of a healthy environment, or unfavourable underlying developments”.212 In its Sixth Environmental Action Programme, the Commission observed that

despite the improvements on some fronts, we continue to face a number of persistent problems. […] Forecasts suggest that, with current policies and socio-economic trends, many of the pressures that give rise to these problems […] will worsen over the coming decade.213

209 Zygmunt Bauman, Identité et mondialisation, in QU’EST-CE QUE LA SOCIETE? 448 (Yves Michaud ed., 2000).210 Richard H. Steinberg, Explaining Similarities and Differences across International Trade Organizations, in Steinberg supra note 21,at 117.211 ERNST-ULRICH PETERSMANN, INTERNATIONAL AND EUROPEAN TRADE AND ENVIRONMENTAL LAW AFTER THE URUGUAY ROUND 91 (1995).212 EUROPEAN ENVIRONMENTAL AGENCY, ENVIRONMENT IN THE EUROPEAN UNION AT THE TURN OF THE CENTURY – SUMMARY 7 (1999). Online at <http://reports.eea.eu.int/92-9157-202-0-sum/en/eu_98_uk.pdf>.213 Sixth Environment Action Programme, supra note 196, at 10.


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Lastly, in its 2003 third report on Europe’s environment, the European Environmental Agency noted that, despite some improvements made in the areas of protection of the ozone layer, air and water pollution, “developments since the mid-1990s have essentially confirmed the conclusions of the second assessment” and “environmental impacts caused by economic developments and general patterns of production and consumption are typically not taken into account”.214

There are several explanations for the continuing deterioration of the environment. Many have argued that the procedure for decision-making in environmental matters is such that it requires, in most of cases, unanimity among the members of the Community. Hence, environmental laws often represent “lowest common denominator” legislation.215

I believe the explanation lies elsewhere. Sustainable development requires more than a balancing of conflicting interests. History suggests that where efforts are made to reconcile policies in the fields of economic, ecological and social development, the dialogue established often turns out to be one between the deaf.216 Most often the balancing of trade, environmental and social interests will confirm the primacy of the market over any non-commercial interest. “Between equal rights, Marx once famously wrote, force decides”.217 In a market economy, force is in the hands, however invisible they might be, of the market, not the environment.

Sustainable development thus proposes a paradigmatic shift from a logic of conciliation to a logic of integration. It entails more than simply “searching the balance” or “bridging the gap” and calls for a real “marriage of environment and development”.218 Sustainable development requires a systemic and systematic interpenetration of environmental and development policies. Without embracing this key principle, the EU will hardly ever been perceived as a model of sustainability.

Recent developments in EC law show some elements of assimilation of the integrative logic. The Treaty of Amsterdam states that “environmental protection requirements must be integrated into the definition and implementation of Community policies and activities…in particular with a view to promoting sustainable development”.219 In a 1998 Communication to the Council, the Commission invited the Council to “declare its firm commitment to ensuring that article 6 [on integration] of the new Treaty will be rapidly implemented in practice; for an inter-institutional partnership to integrate the environment into all community policies”.220 In 2001, the Council passed a resolution adopting the EU strategy for sustainable development. It held that “the process of integration

214 EUROPEAN ENVIRONMENTAL AGENCY, EUROPE’S ENVIRONMENT: THE THIRD ASSESSMENT – SUMMARY 5 (2003). Online at <http://reports.eea.eu.int/environmental_assessment_report_2003_10-sum/en/kiev_sum_en.pdf>.215 Ernst R. Klatte, The Evolution, Operation, and Future of Environmental Management in the European Union, in Baker, supra note 3, at 81-82.216 Christoph Bail, The Promotion of Policy Coherence on Trade and Environment: a Role for the European Union, in TRADE AND THE ENVIRONMENT: THE SEARCH FOR BALANCE 333 (James Cameron et al. eds., 1994).217 KARL MARX, CAPITAL: A CRITIQUE OF POLITICAL ECONOMY 243 (1996).218 Maria P.W. Silveira, The Rio Process: Marriage of Environment and Development, in SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAW (Winfried Lang ed., 1995).219 See supra note 30.220 Communication from the Commission to the European Council – Partnership for integration – A Strategy for Integrating Environment into EU Policies, COM/98/333 final.


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of environmental concerns in sectoral policies…must continue and provide an environmental input to the EU Sustainable Development strategy”.221 Finally, the Commission recalled in its Sixth Action Programme for the environment the need for “integration of environmental objectives into the early phases of the different sectoral policy processes and [for] an ability to assess and make informed decisions over a much longer time horizon”. It proposed the establishment of “additional ‘integration’ mechanisms within the Commission [to] ensure that environmental protection requirements are fully assessed in the preparation of all Commission policy initiatives” and reaffirmed its will to “continue to stimulate commitments to implement the Treaty requirement on environmental integration…and ensure that the strategies produced are translated into effective action”.222

The EU, it seems, has thus started to tackle the integration issue. But it may be that we are witnessing a change of style rather than substance. The European Environment Agency, in its third State of the Environment Report, dedicated an entire chapter to the issue of integration. It reported that

integration initiatives have as yet had a relatively minor impact on the political agenda, as they have not commanded sufficient political will to address some of the fundamental problems that still exist. Where integration has progressed, it has been largely as a result of more pressing political problems, such as the Kyoto protocol…Establishment of a minimum requirement for implementation and follow-up of integration strategies has yet to be taken forward.223

This is not surprising. Behind the statements that integration shall be at the core of any EC policy remains the simple truth that decision-making procedures are still utterly different in the fields of economic development, environmental protection and social development; that the legal basis for community action varies from one area to the other; and that European case law continues to maintain a strict distinction between commercial and environmental jurisdiction.

The need for visible and systematic action is absolutely vital. In its absence, the concept of sustainable development will be nothing more than a nebulous Community principle “entitled to a place in the Pantheon of concepts that are not to be questioned in polite company”.224 Indeed, without a real and substantive integration of economic, ecological and social development, the sustainable development rhetoric may provide the Union with an “alibi” to rehabilitate the ideology of economic growth without rethinking the foundations of the European trading system or addressing the complicated relations between trade liberalization, environmental protection and social development considerations.

In 1989, former President of the European Commission Jacques Delors urged the Member States to put “some flesh on the Community’s bones” and to give it “a little more soul”.225 The need was pressing in the Europe of 1989. It is

221 A Sustainable Europe for a Better World: a European Union Strategy for Sustainable Development, COM (2001) 264.222 Sixth Environment Action Programme, supra note 196.223 EUROPEAN ENVIRONMENTAL AGENCY, supra note 214, at 274.224 Vaughan Lowe, Sustainable Development and Unsustainable Arguments, in Boyle & Freestone, supra note 122, at 30-31.225 Cited in Andrew Clapham, A Human Rights Policy for the European Community, 10 Y.B. EUR. L. 309, 366 (1990).


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inescapable in the Europe of 2006. A genuine commitment to sustainable development should raise environmental protection and social development to equal status with the EC’s policy on economic integration. This will enable legal challenges to the EC’s policy on economic integration when they prove incompatible with the EC’s environmental and social objectives. A dream, some might say. But as Vaclav Havel once observed: “we shall never build a better Europe if we cannot dream of a better Europe”.

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Is European Law Becoming More Sustainable?