DRAFT PAPER: 6TH JEAN MONNET SEMINAR,
UNIVERSITY OF ZAGREB, 21 APRIL 2008
THE ROLE OF ENVIRONMENTAL PRINCIPLES IN
COMMUNITY ARTICLE 28 JURISPRUDENCE
DIGGING DEEPER INTO ENVIRONMENTAL EXCEPTIONALISM
ELOISE SCOTFORD
INTRODUCTION
The Article 281 environmental case law of the European Court of Justice – those cases in which
national ‘environmental’ legislation that prima facie infringes Article 28 is under review – is
exceptional. As a body of jurisprudence it defies expectations of legally certain reasoning,
particularly in relation to the Cassis de Dijon ‘rule of reason’.2 One way to conceive of this
body of case law is this: it is exceptional because, in the balancing of free movement of goods
and environmental protection under Article 28, environmental protection occupies a special

BSc LLB (Hons) (Syd) BCL MPhil (Oxon), Career Development Fellow in Environmental Law,
Corpus Christi College, Oxford, OX1 4JD. Many thanks to Dr Liz Fisher for her generous and timely
help on drafts of this paper. All errors are and remain mine.
1
Article 28 EC.
2
Case 120/78 Rewe Zentral v Bundesmonopolverwaltung für Branntweinn (Cassis de Dijon) [1979]
ECR 649.
1
place of prominence.
In view of the environmental agenda of the Community and the
prominence of environmental protection now in the EC Treaty,3 this form of ‘environmental
exceptionalism’ has attractive explanatory force.
In this light, the increasing role of
‘environmental principles’ (such as the principle of rectification at source and the integration
principle) in Article 28 case law reflects the elevated Community view of and concern with
environmental protection, translated into law. Some have argued that environmental principles
can thus be used to instigate and design a new turn for Article 28 environmental jurisprudence.
However, this view is too simplistic.
Community environmental principles are complex
creatures. They embody ambiguities of substance, of identity (being instruments of both policy
and law), and of regulatory competence for environmental policy in the Community. As such
they represent flashpoints for a number of challenging issues in Community environmental law,
particularly in relation to Article 28. They are signals that bigger issues lurk beneath the
surface in Article 28 environmental cases: issues of what is meant by ‘environmental
protection’, and who should decide what that meaning is. These issues reflect a conception of
Article 28 that sees Article 28 not simply as a legal site for trading off economic against social
goals, but one at which the balance of institutional regulatory competence, and institutional
choices about the nature of environmental protection, are implicated. Seen in this different
light, current academic debates about Article 28 environmental case law, which focus on issues
of legal certainty and the balance between free trade and environmental protection struck in the
outcomes of the cases, are superficial. Environmental principles are a lever deeper into the
case law. They are tools that can be used to see more difficult questions in the complicated and
contested arena of multi-level governance in which Community environmental law operates.
These questions warrant consideration.
3
Treaty of Rome, as amended (hereafter the ‘Treaty’).
2
This paper will primarily focus on three cases of the European Court of Justice
concerning Article 28 infringements sought to be justified on environmental protection
grounds: Walloon Waste,4 PreussenElektra,5 and Toolex.6
In each of these cases,
‘environmental principles’ are employed in the Court’s reasoning on justification. Part I
explores the reasoning in these cases in order to demonstrate the nature of current academic
debates in this area, and how the role of environmental principles is superficially understood in
this discussion.
Part II examines the complex and ambiguous nature of environmental
principles and indicates how their role in the Article 28 case law might accordingly be
complex. Part III presents a deeper picture of the Article 28 environmental case law, proposing
an alternative conception of the role in environmental principles in the Article 28 case law.
This deeper view explains why this case law appears so unsatisfactory (and is likely to remain
so) and uncovers the questions that warrant debate in this area.
Three caveats are made at this stage.
Firstly, while Article 29 EC is intimately
connected to Article 28, in that it is the complementary prohibition on quantitative and
equivalent restrictions on exports to that on imports in Article 28, it is not considered in any
depth in this paper. Where Article 29 cases are relevant to the discussion and arguments of this
paper, they are mentioned in passing. Detailed analysis is reserved. Secondly, Article 28 cases
that concern public health are also largely outside the scope of this paper.
There is a
considerable body of Article 28 jurisprudence that concerns national public health consumer
protection regulation in which the ‘precautionary principle’ features strongly,7 applied
explicitly by the Court as a relevant ‘environmental principle’ of the Treaty. These cases are
4
Case C-2/90 Commission v Belgium (Walloon Waste) [1992] ECR I-4431.
Case C-379/98 PreussenElektra AG v Schhleswag [2001] ECR I-2099.
6
Case C-473/98 Kemikalienspektionen v Toolex Alpha AB [2000] ECR I-5681.
7
In particular, Case C-192/01 Commission v Denmark [2003] ECR I-9693 and the line of cases that
follow its reasoning on the use of additives in food and feed.
5
3
not considered here.
It is however noteworthy that there exists an overlap between
‘environmental’ and ‘public health’ cases,8 which reflects not simply the broad and unclear
meaning of what is ‘environmental’, but raises interesting issues about patterns of contested
regulatory competence in these areas of Community law along the lines suggested in this paper.
This paper is a first step and detailed analysis of cases in which environmental principles are
employed, beyond the three ‘environmental’ cases here focused on, is a matter for further and
subsequent examination. Thirdly, and following on from this, this paper is part of a larger
inquiry into the role of ‘environmental principles’ in Community law. The methodology
underpinning this paper is one that posits that context is all important in ascertaining the roles
of environmental principles, and that precise legal contexts must thus be explored to ascertain
those roles.9 Hence the focus in this particular paper on Article 28 case law. To the extent that
it leaves questions unanswered or avenues of exploration concerning the role of environmental
principles in Community law untravelled, this is intentional. Next steps will follow.
I THREE ARTICLE 28 ENVIRONMENTAL CASES AND THE CURRENT DEBATE
The ‘environmental’ Article 28 cases with which this paper is concerned are those in which
environmental protection grounds are adduced to justify infringements of Article 28.
Article 28 infringements, which involve national regulatory measures that amount to
quantitative restrictions or measures of equivalent effect between Member States,10 can be
8
Toolex demonstrates this nicely.
This methodological approach, as well as being jurisdictionally precise, draws on literature that
concerns ‘legal culture’: see further D Nelken, 'Using the Concept of Legal Culture' (2004) 29 Australian
Journal of Legal Philosophy 1; J Webber, 'Culture, Legal Culture and Legal Reasoning: A Comment on
Nelken' (2004) 29 Australian Journal of Legal Philosophy 27.
10
Broadly interpreted in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837. For examples of
national ‘environmental’ measures that infringe Article 28, see JH Jans and HB Vedder, European
Environmental Law (3rd edn, Europa Law Publishing, Groningen 2007) 235-7.
9
4
justified legally in two ways: under Article 30’s exculpatory ground of protecting ‘the health
and life of humans, animals and plants’,11 or under the judicially derived ‘rule of reason’ which
includes ‘environmental protection’ as one of its mandatory requirements.12 There are three
main areas of confusion in the ECJ’s application of these two justifications in the Article 28
environmental case law. These areas of confusion and consequent academic debate are now be
surveyed, using three cases as illustrative examples: PreussenElektra, Walloon Waste and
Toolex Alpha.
Article 30/Rule of Reason Overlap
A division between the scope of Article 30, which allows infringing national measures to be
justified on grounds of ‘protecting the life and health of humans, animals and plants’, and the
Cassis mandatory requirement of ‘environmental protection’ exists.13 The primary reason that
this division retains significance is the rule of reason’s restriction to national measures that are
‘applicable to domestic and imported products without distinction’,
14
which does not apply
under Article 30. Once this restriction ceases to have importance however (see the second area
of confusion below), so does the division between Article 30 and the rule of reason. This is
particularly so because the distinction between protecting the health and life of humans,
animals and plants (Article 30) and environmental protection (rule of reason) is difficult to
11
Article 30 EC.
Cassis de Dijon; Case 302/86 Commission v Denmark (Danish Bottles) [1988] ECR 4607. In strict
terms, the rule of reason does not set out a justification for the infringement of Article 28, rather it
precludes its operation: A Ziegler, Trade and Environmental Law in the European Community
(Clarendon Press, Oxford 1996) 50. However, this formal distinction makes little sense: J Wiers, Trade
and Environment in the EC and the WTO: A Legal Analysis (Europa Law Publishing, Groningen 2002)
99-100. In practice, Article 30 and the rule of reason are treated as similar ‘justifications’ by the Court:
see, for example, Case C-389/96 Aher-Waggon GmbH v Germany [1998] ECR I-4473 [19].
13
A proposal to insert ‘environmental protection’ into Article 30 was rejected at the Intergovernmental
Conference preparing the Amsterdam Treaty.
14
Danish Bottles [6].
12
5
draw. The cases tell us that it lies somewhere between a case in which the survival of a species
of bee was at stake (within Article 30 as protecting the life of animals)15 and ones in which a
geographical area was at risk of overpollution from imported waste16 or the viability of a
domestic recycling industry was at issue17 (concerned with ‘environmental protection’).
Why such a distinction is drawn at all is, as a matter of common sense, unconvincing.
Protecting ‘the health and life of humans, animals and plants’ is a phrase that seems very apt to
capture a broad idea of environmental protection, as any anthropocentric view of
environmentalism would attest. Commentators share this view.18 As the Court’s reasoning in
PreussenElektra demonstrates, the distinction does not work and arguably it is no longer of any
real relevance in the case law in this area. In PreussenElektra, the Court reviewed German
‘buy local’ provisions, which obliged German network operators to purchase renewable energy
at a fixed minimum cost from German energy suppliers, for their compatibility with Article 28.
The measures infringed Article 28 (electricity is a good) and were found to be justified.
Whether they were justified by Article 30 or the mandatory requirement of environmental
protection was not specified by the Court, which found that ‘the use of renewable energy
sources [which the measure is designed to promote] is useful for protecting the environment in
so far as it contributes to the reduction in emissions of greenhouse gases which are amongst the
main causes of climate change’19 and that Community policy on climate change is ‘also
designed to protect the health and life of humans, animals and plants’.20 Commentators have
15
Case C-67/97 Criminal Proceedings against Bluhme (Danish Bees) [1998] ECR I-8033.
Walloon Waste [30].
17
Case C-203/96 Dusseldorp [1998] ECR I-4075.
18
P Craig and G de Burca, EU Law: Text, Cases and Materials (4th edn, Oxford University Press, 2008)
706-7; cf L Krämer, EC Environmental law (6th edn, Sweet & Maxwell, London 2007) 104-5.
19
PreussenElektra [73].
20
ibid [75].
16
6
understood the Court in this case to be applying the rule of reason,21 but it does so in an
unarticulated way that demonstrates the overlap of Article 30 and the rule of reason.
The Role of Discrimination
There is extensive debate about the role that discrimination has, or should have, in justifying
infringements of Article 28 on environmental protection grounds.22 Whatever the merits of this
debate, there is a significant line of case law indicating that discrimination now irrelevant in
Article 28 environmental cases. Discrimination, as an issue, appears in two guises in the
justification of Article 28 infringement. Firstly, it appears in the second sentence of Article 30,
which provides that the justificatory grounds in Article 30 ‘shall not... constitute a means of
arbitrary discrimination’. This proviso has been little discussed in the cases. This is not
surprising – it does not introduce a test of discrimination; rather it qualifies the nature of the
requirement in Article 30’s first sentence by highlighting that infringing national measures
must genuinely protect the health and life of humans etc.23 Secondly, as mentioned above, a
test of ‘indistinct applicability’ triggers the rule of reason. This form of discrimination is one
that refers to discrimination on the basis of origin. Thus, under the rule of reason, the national
measures under scrutiny must treat goods and traders alike, whatever their origin.
Such
discrimination is often equated with ‘formal discrimination’ or ‘discrimination in law’. Debate
21
F Jacobs, 'The Role of the European Court of Justice in the Protection of the Environment' (2006) 18
Journal of Environmental Law 185 191-2; S Poli, 'Case Comment: National Schemes Supporting the Use
of Electricity Produced from Renewable Energy Sources and the Community Legal Framework' (2002)
14 (2) Journal of Environmental Law 209; Wiers 98-99.
22
Krämer 110-113; Jacobs 189-194; Jans and Vedder 247-9; N Notaro, 'The New Generation Case Law
on Trade and Environment' (2000) 25 (5) European Law Review 467; H Temmink, 'From Danish Bottles
to Danish Bees: The Dynamics of Free Movement of Goods and Environmental Protection - A Case Law
Analysis' ([2001]) Yearbook of European Environmental Law 61, 90-92; Wiers 121-7.
23
Cf Wiers 121.
7
in this area is unhelpfully confused by loose terminology.24 The notion of discrimination might
also refer to ‘discrimination in fact’ or ‘indirect discrimination’. Cases in which the goods or
activities of traders of importing Member States are treated differently in effect by indistinctly
applicable national measures fall within these conceptions.25 Indirect discrimination, however,
is not of concern in Article 28 justificatory cases; it is an issue that is relevant to whether there
is an infringement of Article 28 at all.26 The contentious ‘discrimination’ issues when it comes
to justification under the rule of reason are whether the rule’s limitation to national measures
that are indistinctly applicable to local and imported goods and traders is (1) sensible and (2)
actually applied by the ECJ in environmental cases. The second issue can be resolved shortly:
whether distinctly or indistinctly applicable national measures (as well as measures that are
discriminatory in fact) are under scrutiny, the rule of reason, if it can still be recognised as that,
is nonetheless applied by the ECJ in environmental cases.27 The first issue, whether the
discrimination criterion is a sensible one, is not considered by the Court, which has shifted its
‘rule of reason’ jurisprudence in environmental cases without acknowledgement, but it is
considered by commentators.28
Walloon Waste demonstrated the first step towards the open application of the rule of
reason to both distinctly and indistinctly national measures, which are adopted on
environmental grounds. In this much discussed case, the Wallonian Regional Executive in
Belgium passed a decree preventing the storage, tipping or dumping of any non-Wallonian
24
C Hilson, 'Discrimination in Community Free Movement Law' (1999) 24 European Law Review 445;
Wiers 119-120.
25
As under the recycling scheme under scrutiny in Danish Bottles.
26
Particularly in light of Joined Cases C-267/91 and C-268/91 Criminal Proceedings against Bernard
Keck and Daniel Mithouard [1993] ECR I-6097. See also Opinion of AG Kokott, Case C-142/05
Aklagaren v Mickelsson and Roos, 14/12/2006. Cf the possible effect of Keck on justifications for
Article 28 infringement: Wiers 122.
27
Danish Bottles; Walloon Waste; Dusseldorp; Aher-Waggon; PreussenElektra; Case C-320/03
Commission v Austria [2005] ECR I-9871.
28
Above, n22.
8
waste in Wallonia.
The Commission brought an Article 226 enforcement action against
Belgium for infringing Article 28 in preventing the import of waste from other Member States.
The ECJ found that the Wallonian decree, while it infringed Article 28, was justified under the
‘imperative requirements relating to environmental protection’ (rule of reason). Rather than
abandoning the distinction between distinctly and indistinctly applicable measures, the ECJ
found that the Wallonian measure was not in fact ‘discriminatory’29 since waste from outside
Wallonia had a different character from Wallonian waste (there then being no question of
distinct applicability where the decree applies to different imported goods). In reasoning
widely criticised as ‘unconvincing’,30 the Court uses the principle of rectification at source laid
down in Article 174(2) of the Treaty (supported by the principles of proximity and selfsufficiency)31 to find that waste produced in different places is different, in light of the
Community environment policy embodied in this principle that waste should be disposed of as
close to its place of production as possible. The ECJ here undermines the relevance of the
Cassis discrimination test by employing this awkward reasoning.32
In PreussenElektra, the Court confirms the unimportance of discrimination under the
rule of reason, by abandoning any pretence of maintaining the distinction between distinctly
and indistinctly applicable measures. In that case, the measures in question are distinctly
Note the loose use of ‘discrimination’ by the Court but it is concerned with discrimination on basis of
origin. Cf Jans and Vedder 248.
30
Jacobs 189. The counter argument posits that waste is waste, wherever it comes from, and that this is
self-evident.
31
The Court draws on these principles from international environmental law (the Basel Convention of 22
March 1989 on the control of transboundary movements of hazardous wastes and their disposal) to
which the Community is subject (as a signatory to the Convention). It could alternatively have drawn on
the same principles from secondary Community law (Waste Directive, Article 5). The fact that it did not
do so is interesting: it contributes to the discussion of the ECJ’s role in articulating substantive
environmental policy, and where it is getting that policy from, as a matter of ‘law’. See Part III below.
32
For similar reasoning in a non-environmental Article 28 case, see Case 113/80 Commission v Ireland
[1982] ECR 1625: MP Maduro, We the court : the European Court of Justice and the European
Economic Constitution : a critical reading of Article 30 of the EC Treaty (Hart Publishing, Oxford 1998)
52.
29
9
applicable, in that they restrict free movement of electricity on the basis of its origin, yet the
ECJ has no trouble justifying the measures on environmental protection grounds.
The
irrelevance of the distinction is then reinforced in Commission v Austria,33 in which case the
ECJ applied the rule of reason with no examination of the distinct applicability of the national
measure under review, despite the Commission’s insistent arguments that its discriminatory
nature precluded justification on environmental protection grounds.34 In both these cases, the
Court refers to the ‘integration principle’ in Article 6 of the Treaty35 to support its findings that
the contested national measures fall within the scope of environmental protection justification.
Again, the Court relies on an environmental principle to smooth over the creases in its
reasoning under the rule of reason. In this way, the integration principle has explanatory force
– as a principle that requires environmental protection requirements to be integrated into all
Community policies and activities, it explains why these environmental protection cases are
exceptional, and thus why their rule of reason reasoning is exceptional. Advocates General and
commentators alike have drawn on this explanation to suggest that the integration principle not
only marks a shift in the case law, but that it should do so.36 Advocate General Jacobs in
PreussenElektra thus argues that the integration principle means that ‘special account must be
taken of environmental concerns in interpreting the Treaty provisions on the free movement of
goods’,37 and consequently that discriminatory national measures should be justifiable on
grounds of environmental protection. In current debate, therefore, environmental principles are
seen as informing and explaining current case law tests, and, in relation to discrimination under
33
Commission v Austria, above n27.
ibid [38]–[39].
35
Article 6 EC.
36
PreussenElektra, Opinion of AG Jacobs, Commission v Austria, Opinion of AG Geelhoed; M
Humphreys, 'Case Comment: Disproportionate and Discriminating Environmental Protection' (2007) 9
(2) Environmental Law Review 137, 147; Poli 228.
37
Jacobs 192.
34
10
the rule of reason, as a reason for clarifying that environmental protection, as a justification for
infringing Article 28, applies to distinctly as well as indistinctly applicable measures. Legal
certainty in the case law is the goal of this call for clarification.38
A Question of Proportionality
The principle of proportionality also causes considerable confusion in Article 28 environmental
cases. In theory, proportionality is a limit generally applied by the Court in reviewing national
measures that infringe Article 28 on environmental protection grounds, whether justified under
Article 30 or the rule of reason. The case law however veers between cases in which there are
detailed proportionality analyses,39 to those cases where the proportionality principle is not
considered at all40 or very weakly applied.41 When proportionality is considered by the Court,
there is confusion over its precise elements.42 This confusion is not helped by the shorthand
used in these cases requiring infringing national measures to be ‘necessary and proportionate’
to be justified.43 Necessity is best seen as an element or description of proportionality.44 The
elements or limbs that potentially comprise the proportionality test are:
1. the suitability of the national measure to the attainment of its ‘legitimate’ objective (in
these cases, environmental protection);45
2. the necessity of the measure – that it is the means of attaining its objective that is least
restrictive of the free movement of goods;
38
ibid 192.
Danish Bottles, Aher-Waggon, Commission v Austria, Case C-309/02 Radleberger
Getrankegesellschaft v Land Baden-Wuttemberg [2004] ECR I-11763; Case 463/01 Commission v
Germany [2004] ECR I-11705.
40
Walloon Waste, PreussenElektra.
41
Danish Bees.
42
Notaro 486.
39
43
44
45
Wiers cf Kramer.
Sometimes also unhelpfully referred to as ‘necessity’.
11
3. proportionality stricto sensu – that the restriction on free movement must not be
disproportionate to the legitimate aim of environmental protection pursued.
In most of the Article 28 environmental cases that consider proportionality, the Court assumes
the first element and focuses on the second.46 Only in Danish Bottles does it apply the third
element (albeit without clear elaboration) to find that the level of environmental protection set
by Denmark in the provisions of its national container recycling scheme was too high.47 This
case demonstrates why the inclusion of the third limb is so significant – it allows the ECJ to
adjudicate what is the appropriate level of environmental protection that a Member State can
pursue.48 This is a powerful limit on the regulatory discretion that Article 28 justifications
leave to Member States in environmental protection matters. In the same way, the first limb of
proportionality has the potential to restrict the discretion that Member States have to pursue
environmental policies, to the extent that the Court assesses the ‘legitimacy’ of the objective
pursued by infringing national measures, and how suitably it is achieved. In the cases, the
Court has either accepted that the objective of environmental protection is pursued by the
national measure under review49 or assessed its legitimacy and suitability favourably in
accordance with Community law.50 In both ways, the Court is affording a broad discretion to
Member States to regulate with respect to environmental protection; however the second route
does demonstrate control over that discretion.
46
Thus, both the first and third limbs of
See, for example, Aher-Waggon, Commission v Austria, Radleberger, Commission v Germany.
Cf, for example, Commission v Austria, in which case the ECJ accepts the level of protection assumed
by the Austrian measure, but focuses on whether a means less restrictive of free movement could have
been adopted.
48
Wiers 107, Maduro 56.
49
Consider Aher-Waggon: the Court did not discuss the suitability limb expressly but appeared to
assume its satisfaction in approving the German government’s concern with ensuring that its population
is protected from excessive noise restrictions [19]. Similarly, in Commission v Austria, the ECJ finds
that it is ‘undisputed that the contested regulation was adopted to ensure the quality of ambient air in the
zone concerned and is therefore justified on environmental protection grounds’, before going on to assess
whether it is the least restrictive means for attaining this air quality objective [71].
50
See Part III.
47
12
proportionality have institutional implications; they give the ECJ the power, should it choose
to exercise it, to decide how much discretion Member States should have in articulating what
environmental protection is and at what level it should be set.
As for the role of environmental principles in proportionality tests, Toolex Alpha is a
case that demonstrates how the ECJ has used an ‘environmental principle’ to inform the
proportionality inquiry. In Toolex, the infringing national measure was a Swedish regulation
that prohibited the industrial use of trichloroethylene (TCE), but which provided exemptions
for undertakings where alternatives for TCE are not yet available, conditional on the relevant
undertaking continuing to investigate (and use) safer TCE substitutes. The regulation was
found to infringe Article 28, but to be justified on public health and environmental grounds
under Article 30.51 The proportionality principle was applied very perfunctorily in this case.
There was no discussion of the various limbs of the proportionality test; rather the ‘substitution
principle’ was invoked to demonstrate compliance with proportionality.
The substitution
principle is a principle of ‘environmental management’, which embodies the idea that
dangerous substances should be systematically replaced by less dangerous ones, as soon as
they become available.52
This idea is one that is reflected increasingly in secondary
Community law, and, as a principle of Community environmental policy, it was sufficient to
sanction the proportionality of the Swedish measure in this case.53 Heyvaert notes that Toolex
might herald the demise of the proportionality principle, along with the rise of environmental
principles, ‘which could augment the Member States’ freedom to choose the means they deem
51
Note the overlap between public health and environmental grounds, which does not affect reliance on
Article 30.
52
V Heyvaert, 'Balancing Trade and Environment in the European Union: Proportionality Substituted?'
(2001) 13 (3) Journal of Environmental Law 392, 404.
53
Toolex [47].
13
appropriate to secure the desired level of health and environmental protection’.54 This is only
true in so far as Member States’ policies marry with those at Community level, as Toolex
demonstrates, thus leaving the Court with control to determine the scope of Member State
discretion in the environmental domain by measuring its exercise against the ‘principles’ of
Community environmental policy. In this way, the use of the substitution principle presents,
in different form, similar institutional implications to those latent in the first and third limbs of
proportionality, as discussed above. The substitution principle has not removed some of the
more controversial elements of proportionality; rather it has recast them in different form.
Such institutional implications are where things start to get interesting in the Article 28
environmental cases, as the following Parts of the paper will demonstrate. However, academic
debate on proportionality in these Article 28 environmental cases has not been preoccupied
with such concerns.55 Rather, it is often concerned with the outcomes in the cases where
proportionality is discussed and ascertained, viewing proportionality analysis in terms of a
balance between trade and environmental concerns, and outcomes as trade or environmentallyoriented in the balance.56
II ENVIRONMENTAL PRINCIPLES: AMBIGUOUS IN NATURE AND COMPLEX IN
APPLICATION
The Single European Act saw the beginning of a period in which ‘environmental principles’
have been introduced and increasingly prioritised in Community law, in line with the
54
Heyvaert 405.
Cf Wiers and Maduro, above n48.
56
See, for example, Heyvaert; Jacobs; Notaro.
55
14
prioritising of environmental protection goals in the Treaty.57 The following Community
environmental principles, at least, can now be identified:
1. the four principles of Community environmental policy in Article 174(2) of the Treaty:
the precautionary principle, the preventive principle, the principle of rectification at
source and the polluter pays principle;
2. the ‘integration principle’ of Article 6;58 and
3. those principles that find expression in, or ‘emerge’ from, secondary legislation (eg
principles of proximity, self-sufficiency, and substitution).59
Already one of the complicating features of ‘environmental principles’ is apparent – they are an
amorphous group of ideas that do not take the same form or have a common derivation. They
are linked generally by a common theme of embodying ideas that support environmental
protection.
Also, they do not embody precise rules.60
57
Commentators like to talk of
After successive Treaty revisions (Single European Act, Maastricht and Amsterdam Treaties in
particular), environmental protection is prioritised in the Treaty as follows. The Community has as one
of its basic tasks in Article 2 EC the promotion of ‘a high level of protection and improvement of the
quality of the environment; also, in Article 2, the Community is to execute its task by establishing a
common market and by implementing the policies and activities in Article 3 EC, which include an
environmental policy (Article 3(l) EC). In addition, environmental protection now finds a place in
Article 6 EC’s requirement that environmental protection requirements must be integrated into all
Community policies and activities (the ‘integration principle’), as a reason for and a reason for
derogating from harmonisation measures under Article 95 EC, and as a central plank of the head of
Community competence and policy in Title XIX. Within Title XIX, Community environmental policy
that aims at a high level of protection is to be based on four principles: the precautionary principle, the
preventive principle, the principle of rectification at source and the polluter pays principle
(Article 174(2) EC). No other area of Community policy in the Treaty is prescribed by principles in this
way. For a survey of the history of these developments, see Jacobs, 185-7; Notaro, 467-8.
58
Note Article 6 is not referred to as the ‘integration principle’ in the Treaty, but is identified as such by
the Court and commentators across the board.
59
Directive 2006/12/EC on waste [2006] OJ L114/9, Article 5 (principles of self-sufficiency and
proximity); Directive 89/391/EEC on the introduction of measures to encourage improvements in the
safety and health of workers at work [1989] OJ L 183/1, Directive 90/394/EEC on the protection of
workers from the risks related to exposure to carcinogens at work (Sixth individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC) [1990] OJ L196/1) (substitution principle).
60
Any lengthy discussion on the nature of principles and rules from a jurisprudential perspective is
avoided, as it is liable to fall into an area of academic scholarship (founded on Dworkin’s theory of rules,
principles and policies) that has been developed in a different legal context (in particular, judicially
developed principles in common law litigation) and that prescribes the legal nature of ‘principles’. This
15
environmental principles as a group,61 which suggests that they are equivalent, or at least
related, concepts. Such an assumption of equivalence between environmental principles is not
here assumed; rather their contextual identity is explored in Article 28 jurisprudence.
In this particular legal context, we can see that environmental principles are implicated
and related in the ECJ’s reasoning in four ways. Firstly, as seen in Part I, the ECJ has
increasingly relied on environmental principles to develop its reasoning in Article 28
environmental cases; at the same time such reasoning is faltering on orthodox lines of
Article 28 justification.
Secondly, environmental principles represent the basis of
‘Community’ policy on the environment.62
The meaning of this is ambiguous.
Does
Community environmental policy mean environmental policy determined by Community
institutions, within their sphere of competence? Such a position is uncontroversial to the extent
that the Community has competence to develop environmental policy.63 However, it has the
potential to be controversial in that environmental policy is explicitly a shared competence –
Member States have a reserved role in formulating environmental policy and regulation64 – and
paper aims to investigate and not prescribe. On this alternative literature, see, by way of introduction, R
Dworkin, Taking Rights Seriously (2nd edn, Duckworth, London 1978) Chs 3,4; M Doherty, 'Hard Cases
and Environmental Principles: An Aid to Interpretation?'[2002] (3) Yearbook of European
Environmental Law 57.
61
See, for example, N de Sadeleer, Environmental Principles : From Political Slogans to Legal Rules
(OUP, Oxford 2002); A Epiney, 'Environmental Principles' in R Macrory (ed) Reflections on 30 Years of
EU Environmental Law (Europa Law Publishing, Groningen 2006); S Bell and D McGillivray,
Environmental law (6th edn, OUP, Oxford 2006) 59-78.
62
Article 174(2) states that ‘Community policy on the environment’ shall be based on the four principles
there set out. Equally, in Article 6, the integration principle extends to all Community policies and
activities. However, those principles derived from secondary Community legislation are different – they
are expressly environmental policy determined by Community institutions. However to the extent that
these legislative principles exist in framework Directives, like the Waste Directive, they leave Member
States room to implement and interpret them as they choose, and so some ambiguity remains as to who is
responsible for the formulation of policy based on these environmental principles.
63
Article 6, 95, 175 EC in particular.
64
Article 5 EC (which used to be solely located in the environmental title of the Treaty: ex-Article
130r(4)), Article 176 EC. Note that Member State competence is not limited to action that is best taken
at Member State level (limit of subsidiarity), but that Member States enjoy a discretion to take more
protective environmental action. What this additional margin of discretion allows is complicated by the
fact that it must be exercised in accordance with the Treaty, but surely it cannot mean that it is limited by
16
so any articulation of ‘Community’ environmental policy by Community institutions (including
the ECJ) must respect that division of power. Thus, and in line with Article 176 EC, this first
interpretation of ‘Community environmental policy’ reserves discretion to Member States to
articulate environmental policy, however they conceive it.
Or does ‘Community’
environmental policy mean environmental policy for the entire Community, for Member States
individually and the Community as a whole, whichever institutions (Community or Member
State) are responsible for its articulation? Militating in favour of this second interpretation is
the oft-recognised problem that environmental issues do not necessarily respect national
boundaries. However, sometimes environmental problems are localised to Member States (eg
pollution of groundwater, those that relate to local planning etc) – the very reason why
subsidiarity is such an appropriate prescription in this area.
This second interpretation opens
up the possibility of Community institutions assuming control of the content of environmental
policy throughout the Community, and is particularly pertinent in the ECJ’s review of Member
State action in Article 28 cases, in which it relies on principles of ‘Community’ environmental
policy, since in these cases it is concerned with Member States’ discretion to assert their own
environmental policy.
Thirdly, the principles all have ambiguous identities as instruments of law and policy.
They are conceptions of environment policy, which are legally prescribed by different forms of
Community law (Treaty, secondary law). This ambiguity is highlighted nicely in the wording
of Article 174(2) EC: ‘Community policy on the environment shall be based [on the four
environmental principles there set out]’.65 This split legal/policy identity suggests two things:
(1) that the principles have legal roles of some sort (the nature of which this paper explores in a
the Community institutions’ view of what ‘environmental protection’ is? See Part III below. Position
post-Lisbon?
65
See further E Scotford, 'Mapping the Article 174(2) Case Law: A First Step to Analysing Community
Environmental Law Principles' (2008) Yearbook of European Environmental Law (forthcoming).
17
particular legal context), and (2) that policy choices are implicated when the principles are
relied on. This second suggestion augments the complexity of the issue just discussed in
relation to competence.
The issue of competence for formulating environmental policy
involves not simply a balance between Community and Member State institutions in
formulating environmental policy, but between types of institutions – both policy-making
(legislature/administration) and law-deciding (courts). To the extent that principles are imbued
with both policy and legal prescriptions, the use of principles by the ECJ has the potential to
erode the (assumed) demarcation between political and legal institutional roles and to implicate
the Court in policy choices relating to environmental protection. This possibility is very real in
light of the fourth common feature of the environmental principles that are implicated in the
ECJ’s Article 28 reasoning: these principles are undefined. It is possible to identify general
ideas underlying the principles, but defining them with precision is no easy task. Let us take,
by way of examples, the integration principle and the principle of rectification at source. The
integration principle in Article 6 provides that ‘environmental protection requirements’ must be
integrated into all Community policies and activities. However it is far from clear what
constitute ‘environmental protection requirements’, how they might be integrated and what
Community ‘activities’ are covered.66 Some ECJ case law has indicated that the mandatory
requirement of ‘environmental protection’ should be informed by the four principles in
Article 174(2);67 the ‘environmental protection requirements’ of the integration principle would
likely be similarly construed. This leads to the second example of the principle of rectification
66
In particular, it is not clear whether this covers the activities of the Community courts, or how such
incorporation by the courts might take place. In so far as this paper examines how the ECJ has relied on
the integration principle in its reasoning, judicial developments go some way to filling in these gaps.
67
Walloon Waste above; Case C-209/98 Sydhavnens Sten & Grus ApS [2000] ECR I-3743 [48].
18
at source, which is closely related to the principles of proximity and self-sufficiency.68 The
general idea underlying this principle is that environmental damage should be rectified by
targeting its original cause, by requiring preventive action at source rather than at any other
point on the continuum of activity that results in environmental harm. Several commentators
have pointed out that blunt ‘across-the-board, undifferentiated’ applications of this principle
might lead to the compromising of environmental objectives.69 Thus, in relation to waste
management, requiring that all waste be disposed of or treated as close to its generation as
possible might prevent waste from being treated at more efficient, ‘environmentally friendly’
facilities further afield, or lead to the drawing of arbitrary geographical boundaries to restrict
‘rectification’ to the ‘source’ of an environmental problem. Such a requirement would conflict
with the preventive principle (that, broadly speaking, environmental damage should be
prevented rather than cured),70 thereby undermining ‘environmental protection’ and
demonstrating that the principles interact with each other and can operate in tension.71 Such
arguments, more than anything, demonstrate and reinforce the contested nature of
‘environmental protection’; this contest lies at the heart of these definitional complications in
relation to environmental principles.
What constitutes ‘environmental protection’ is,
68
Notaro finds that these two principles are subsumed under the principle of rectification at source. The
principle of proximity concerns resolving environmental problems closely or proximately to their place
of generation (assuming this can be identified), while the principle of self-sufficiency requires particular
areas to be ‘self-sufficient’ in managing and remedying their actions that compromise the environment.
For a consideration of these principles in relation to waste, see JH Jans, 'The Status of the SelfSufficiency and Proximity Principles with regard to the Disposal and Recovery of Waste' (1999) 11
Journal of Environmental Law 121.
69
Heyvaert, 405-6. See also Notaro 477-8; G Van Calster, 'Court Criticises Restrictions on Free
Movement of Waste' (1999) 24 (2) European Law Review 181, 183.
70
For the layers of meaning trapped in the ‘preventive principle’, see E Scotford, 'Trash or Treasure:
Policy Tensions in EC Waste Regulation' (2007) 19 (3) Journal of Environmental Law 367.
71
Note that these tensions are recognised in the proximity and self-sufficiency principles that find
legislative expression in Article 5 of the Waste Directive, above. In Article 5, these principles are
tempered by limits as to ‘appropriateness’ and ‘cost’. At the same time a considerable ambiguity is
introduced in Article 5(1), in its prescription that both Member States individually and the Community as
a whole become self-sufficient in waste disposal. Which is it?
19
scientifically and politically, often very difficult to articulate.72 These general ‘environmental
principles’ do not resolve the difficulties, and their application thus tends to be a ‘precarious
exercise’.73 In this way, EC environmental principles can viewed as ‘multi-meaning normative
statements’,74 representing a stage of political agreement (between Member States about
Community environmental policy in the case of the Treaty principles, and between Community
institutions in the case of secondary Community law that gives rise to environmental
‘principles’), whereby ‘agreement is reached in the form of words when there is no agreement
on what the words mean’.75
In the result, the undefined nature of EC environmental principles leaves room for
manipulation of the ambiguities that they embody, in particular as to their substantive policy
nature and relating to the sharing of environmental competence between Community and
Member State institutions. These considerations are particularly pertinent in considering how
the ECJ employs the principles, since the Court’s use of them implicates (often implicitly), at
the minimum, a consideration of these difficult issues and, at most, choices as to their
resolution. This in turn raises questions about the role of the ECJ in deciding on the nature of
Community and Member State environmental policy.
III A DEEPER PICTURE OF THE ARTICLE 28 ENVIRONMENTAL CASE LAW
From the ambiguities in the environmental principles identified in Part II, two stand out as
particularly relevant in understanding the implications of their employment by the ECJ in the
Article 28 environmental case law: their reflection of the shared competence for environmental
72
See J Dryzek, The Politics of the Earth (2nd edn, Oxford University Press, 2005).
Heyvaert 405.
74
Maduro 18.
75
T Hartley, 'Five Forms of Uncertainty in European Community Law' (1996) 55 Cambridge Law
Journal , 273.
73
20
policy at the Community level and the uncertainty of their substantive meaning. When the ECJ
uses environmental principles to inform and support its reasoning in justifying national
measures that infringe Article 28, it is enlivening these two issues. Thus, the Court’s reasoning
exposes two principal questions at stake in the Article 28 environmental case law: (1) what is
the nature of environmental protection?; (2) who should be responsible for deciding this (or
where does the institutional balance of environment regulatory competence lie)? We now take
a deeper look into the Article 28 environmental case law to see how these questions are
implicated, revisiting the three main cases discussed in Part I.
Balancing Regulatory Competence
Maduro, in his extensive and insightful treatise on Article 28, suggests that this Treaty
provision involves ‘an allocation of competences between the EU and Member States and a
balance between different economic, social and cultural values’.76 In this way, the Court’s
interpretation of Article 28 and its justifications allows it to determine the extent to which a
Member State is competent to maintain its own regulation in particular social domains,
measured against the Community standard that Article 28 imposes for the free movement of
goods.77 However, the Court’s balancing of regulatory competence under Article 28 is not the
only word on the balancing of environmental regulatory competence at the EC level. As seen
above, the Community and Member States share competence for environmental policy, under
the principle of subsidiarity and the provisions of Title XIX in the Treaty. Thus the decision
that Article 28 cases force with respect to environmental regulatory competence is a complex
one – it concerns a coordination of economic and environmental goals in a governance
76
77
Maduro 21.
The ‘rule of competences’ approach to Article 28: ibid 167-8.
21
framework in which it is unclear (or to be decided) where the competence for setting those
environmental goals lies.
This complexity of balancing regulatory competence reflects one aspect of the
ambiguity of ‘Community’ environmental principles, as noted in Part II: either they are
confined in their operation either to Community institutions operating within their sphere of
environmental policy competence, or they set a broader prescription for Community and
Member State institutions in setting environmental policy.
A closer look at the use of
environmental principles in the cases demonstrates that the Court has made a choice in favour
of the latter interpretation. Thus, in Walloon Waste, the awkwardness of the ECJ’s reasoning
can be explained by the Court’s prioritising of Member State environmental policy that accords
with the prescription in Article 174(2) that ‘Community’ policy on the environment shall be
based on the principle of rectification at source. Thus, in this case, the principle of rectification
at source is operating at two levels.
Formally and particularly, it informs the test of
discrimination applied to trigger the rule of reason justification.78 However, viewed differently,
the principle informs the rule of reason more generally. It informs the ‘imperative requirement’
of environment protection since the principle of rectification at source is prescribed in
Article 174(2) as founding Community environmental policy, and this motivates the resolution
of the discrimination question. In this way, Community environmental policy particularises the
Member State policy that may be adopted to derogate from the Article 28 free movement
guarantee in the name of environmental protection, thus qualifying the scope of regulatory
competence accorded to the Member State under Article 28. Viewed in this second light, the
uncomfortable application of the discrimination test is explained – the issue of discrimination is
simply not that important to the Court in its reasoning. What is important is supporting a
78
Cf Doherty, 60-62; S Weatherill, 'Publication Review: "Free Movement of Goods in the European
Community" (Peter Oliver)' (2003) 28 (5) European Law Review 756, 758.
22
Member State measure that is consistent with the principle of rectification at source – a central
plank of Community environmental protection policy.
In a similar way, in PreussenElektra, the ECJ defers to a Community conception of
environmental protection to approve the infringing German provision under review. The Court
spends some time assessing whether the aim of the German renewable energy measure is
compatible with Community environmental objectives.79 Climate change is an area where the
Community and Member States have assumed joint responsibility, since both are signatories of
the United Nations Framework Convention on Climate Change. The Court uses this fact to
assume that Member State and Community policy in this area are aligned (which is not an
unreasonable assumption), and cites a host of Community legislation on renewable energy
promotion to approve the aim of the national measure under review. Thus the Court here
assumes a role in approving the substance of national environmental policy that limits the
discretion of the German governmental to set its own regulatory agenda with respect to climate
change. The Court’s use of the integration principle to support its reasoning confirms that its
main concern in reviewing the German measure is its alignment with Community
environmental policy.80
It does this without any analysis of the nature of the shared
competence for environmental policy, which is particularly acute with respect to an issue like
climate change.
The cases in which the ECJ spends time assessing proportionality involve similar
assumptions and choices as to the scope of national environmental regulatory discretion.
As
seen in Part I in the discussion of Toolex, the Court again defers to the ‘Community’ version of
environmental protection in reviewing the proportionality of the Swedish measure prohibiting
use of TCE, through its reliance on the substitution principle. As in the above cases, the ECJ
79
80
PreussenElektra [73]–[78].
ibid [76].
23
here implicitly decides where the balance of regulatory competence for articulating
environmental policy lies, and finds that balance lies in favour of the Community. In other
cases where proportionality is considered, but environmental principles are not, the Court
makes similar decisions on regulatory balance. To the extent that it restricts its analysis to the
‘necessity’ of the measure under review (that it is least restrictive of intra-Community trade), it
reserves a relatively broad margin of discretion to Member States to regulate in those areas of
social policy identified in Article 30 or as mandatory requirements.
However, if the Court
investigates the first or third limbs of proportionality in any depth, it erodes the regulatory
competence of Member States preserved by the Article 28 justifications, as seen in Danish
Bottles.
By appreciating the balancing of regulatory competence that goes on in these
Article 28 environmental cases, the institutional implications of these decisions become
apparent. The Court, by prioritising Community understandings of environmental policy, is
making implied choices about the nature of the shared competence for environmental policy in
the Community, effectively choosing that it is not all that ‘shared’.81 To the extent that
Community and Member State views on environmental policy align, this is not hugely
problematic; however to assume complete equivalence is to negate Member State regulatory
autonomy in this sphere and to undermine the nature of ‘shared competence’.
The
justifications to Article 28 are intended to create a space in which national competence for
social policy is preserved; in the Article 28 environmental cases, this space is eroded,
particularly through the use of environmental principles.
This fits with Maduro’s idea of majoritarianism, that the Court’s Article 28 reasoning is simply
concerned with whether the regulations under review ‘correspond to the European majority policy on the
issue under review’: Maduro 58.
81
24
The Nature of Environmental Protection
In eroding the scope of national regulatory competence for environmental policy through the
use of environmental principles in Article 28 cases, the ECJ implicates another complex issue
that is latent in environmental principles: the nature of environmental protection. In order to
find that the national provisions under review comply with a Community understanding of
environmental protection (or the protection of the life and health of humans, animals and
plants), the Court must have a view of the nature of that understanding substantively. It does
not discuss this view in any explicit depth however, relying often on a superficial appreciation
of environmental principles to identify what constitutes ‘environmental protection’. As seen in
Part II, such a superficial approach overlooks the ambiguities of substance embodied in the
principles.
Take Walloon Waste as an example. In finding that the Belgian measure conformed to
the principle of rectification at source and principles of proximity and self-sufficiency, the
Court did not acknowledge the substantive complexities involved in those principles. In
particular, the principle of rectification at source can compromise environmental protection if
applied too strictly, and without acknowledging its symbiosis with the preventive principle;
also, the principle of self-sufficiency might be applied at a local, regional, national or
Community-wide level.82 There is an argument that it would have been preferable for the
Court, in Walloon Waste, to have articulated that the principle of self-sufficiency applied at a
Community-wide level, which would have condemned the Belgian regulation.83
Such ambiguities in environmental principles show that there are debates of substance
to be had about the nature of environmental protection, and that they are not resolved by
82
83
Note the ambiguity in Article 5 of the Waste Directive.
Notaro 477-8; Van Calster 182-3.
25
asserting that a particular environmental principle applies.84 In assuming control for assessing
whether national measures, which infringe Article 28, conform to Community environmental
policy, the Court involves itself in articulating the substantive nature of that policy. From this
involvement, two issues flow: firstly, the extent to which the Court should openly articulate its
reasoning on the nature of environmental protection; secondly, whether it should be involved in
deciding such issues at all. On the first issue, it is no doubt helpful to call for the Court to be
more explicit in its reasoning. On the second issue, however, a more difficult question about
the role of the Court in the institutional balance of the Community is raised. It is one thing to
say that there should be more debate on the nature of environmental protection; it is another to
say that the ECJ is the appropriate forum for resolving that debate. That the Court finds itself
in a position where it is making choices about the nature of environmental protection is the
product of a number of pieces in the architecture of Community law: the existence of ‘multimeaning normative statements’ (ie environmental principles) to found Community
environmental policy (the meaning of which statements needs to be decided by someone or
some institution), the shared competence for environmental policy between the Community and
Member States (the precise nature of which sharing needs to be decided by someone or some
institution), and the nature of Article 28, which casts a broad net in its supervision of national
social regulation and provides a site for these undecided issues to be resolved.
A problem in the Article 28 case law is the limited scope for its articulated tests to
grapple with these bigger questions. As Maduro states, the ‘specific legal logic [of free
movement rules has extended much beyond its natural area] to new fields without
contextualisation..., without being adapted to its new functions.’85 The aim of this paper has
84
A similar debate can be had about the nature of the substitution principle, which its invocation in
Toolex provokes: see Heyvaert 406-7.
85
Maduro 23.
26
been to contextualise Article 28 in relation to Community environmental law, and to identify
some of its functions in that context. As a result of this identification, we are left with difficult
questions of institutional conflict to confront. Environmental protection is an important but
elusive goal, and Article 28’s jurisprudence demonstrates that there is a deep institutional
tension over the responsibility for its achievement – between the Community and Member
States, and between the ECJ and the non-judicial institutions of the Community. Identifying
these difficult questions helps to explain the exceptional nature of the Article 28 environmental
cases, although it does not provide an easy answer for their (judicial) resolution. It may well be
that this case law is bound to be unsatisfactory, in terms of legal certainty, while these bigger
issues loom.
CONCLUSION
In the literature, the debates in this area of ‘environmental’ Article 28 jurisprudence are often
put in terms of a trade-off between free trade and environmental protection when the outcomes
of the ECJ’s environmental cases are under scrutiny, or in terms of legal certainty (with a view
to there being ‘certain’ jurisprudence that protects the environment) when the reasoning
adopted in these cases is analysed. Looking closely at these Article 28 cases shows that the
terms of these debates are too superficial.
The real debates are (1) what constitutes
environmental protection, and (2) who, in the Community context, has the responsibility for
determining how it should be achieved – Community or Member State institutions, courts or
legislatures. These issues are at play in all environmental Article 28 cases, but the introduced
role of principles provides a lever for their articulation. Until these issues are confronted and
debated (academically, institutionally, judicially), the reasoning in environmental Article 28
cases will remain incomprehensible and the outcomes unpredictable. In addition, the role of
the Court is called into question to the extent that is making unilateral choices about what
27
constitute environmentally protective measures, in a manner that disguises debate about how
environmental protection is best achieved and who is competent (and/or best placed) to make
such choices.
28