EU Environmental Law2

Objectives, Principles and Conditions
of EU Environmental Law:
the TEU ad the TFUE
1
Art. 3 TEU: one of the objectives of the EU is a high level of

protection and improvement of the quality of the environment
/ one of the aims of the EU is sustainable development.
Art. 191 TFEU: the specific environmental objectives are a
certain (high) level of protection of the e., a prudent use of
natural resources, a contribution to human health and the
promotion of e. protection at international level (see also
arts. 4, 192 and 193 TFEU).
Art. 177 TFEU: provides for the setting up of a Cohesion
Fund which shall in turn provide a financial contribution to the
environment.
RESD – Environmental Law and Regulation -- Prof. M. D'Angelosante

DEFINITION OF ENVIRONMENT
2
- No definition of the Environment is contained either in the TEU or in

the TFEU.
- However, it follows mainly from article 191 TFEU that the E. includes:
1. natural elements: such as human beings, natural resources
[including in turn water, flora, fauna (because according to art. 13
TFEU “animals” are “sentient beings”), climate, waste];
2. the man-made environment: such as land use, town and country
planning.
- Moreover, in the European Council Resolution of June 1990
(«Declaration on the Enviroment»), a right to a healthy and clean
environment was proclaimed, using the term e. in an all-embracing
meaning (extended to economic, social and aesthetic aspects, the
preservation of natural and archaeological heritage, and as a consequence
the man-made and natural environment).
RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

DEFINITION OF ENVIRONMENTAL LAW
3
… AS A CONSEQUENCE,
ENVIRONMENTAL LAW CAN BE
CONSIDERED THE TOTALITY OF THE
LEGAL MEASURES WHICH TRY TO
PREVENT, PROTECT AND IMPROVE
PARTS OR ALL OF THE EVIRONMENT,
AS DEFINED IN THE PREVIOUS SLIDE
…
DEFINITION OF WORKING ENVIRONMENT
4
The concept of «working

environment» is used in arts. 114
and 153 TFEU and concerns
conditions in the workplace,
such as air pollution, noise, risk
of accident etc.
THE GEOGRAPHICAL DIMENSION
OF the ENVIRONMENT and its consequences
5
1) Geographically the E. mentioned in the EU Treaties is not

limited to the EU’s E., as is clear from the mention of «measures
at international level and regional or worldwide environmental
problems» in art. 191 p. 1 TFEU.
2) As a consequence, the EU can take measures to protect the E.
outside the territory covered by the Treaties (for instance
measures to combat climate change).
3) However, the question of whether the EU should deal with
matters of a purely local nature is something to be answered under
the general principle of subsidiarity (see presentation n. 1) trying
to balance the ability and opportunity to solve local matters at
local level with the need to provide for EU-wide minimum
standards of enviromental protection.
the evolution of the coming into force
of binding sources of law on the E.
in the European framework (1)
6
1) The first legally binding instrumets on

environmental issues were adopted in 1975, in
particular in the area of water ad waste (see, for
instance, dec. 437/75, dir. 439/75, dir. 440/75).
2) In 1987, with the amendment of the EEC Treaty by
the Single European Act, for the first time a section for
evironmental measures was introduced into the EECT
(now arts 191-193 TFEU): however, according to this
amendment, such measures had to be adopted
unanimously…
the evolution of the coming into force
of binding sources of law on E.
in the European framework (2)
7
3) After that, when the Maastricht Treaty on the EU amended

the EECT in 1992/93, it introduced majority decisions in
environmental matters, though some matters remained subject
to unanimous decisions.
4) Then the Amsterdam Treaty, which amended the ECT again
and came into effect in 1999, introduced the co-decision
procedure for environmental matters, though the uanimity
clause for some areas was not deleted.
5) Finally the Lisbon Treaty on the EU established, for
environmental matters, the ordinary legislative procedure as the
general rule and, in some cases, the special legislative
procedure (subject to unanimous decisions of the EU Council).
SOURCES OF EU EVIRONMENTAL LAW
in a general perspective
8
Sources of law coming from the EU are divided into primary, infra-
primary, secondary and now infra-secondary:
1. the primary are the Treaties;
2. the infra-primary are the international conventions to which the
EU has adhered;
3. the secondary are all the other sources planned and regulated
by the Treaties [they are divided into binding (regulations, decisions
and directives: according to arts. 289 ss. TFEU these sources can also be
called “legislative acts”) and not binding (recommendations and
opinions)];
4. the infra-secondary are the so called non-legislative acts, that the
EU Commission can adopt to “supplement or amend certain non-essential
elements of the legislative act” (see presentation n. 1).
SOURCES OF EU EVIRONMENTAL LAW
in a more specific perspective
9
I – the primary sources :
- need to be operationalised and made precise by secondary legislation in order to
become applicable for administrative bodies and courts or used for or against
polluters;
II – moreover the international conventions to which the EU has adhered (infra-
primary sources) are part of EU law according to art. 216 TFEU: these
conventions, in the field of the E., are so-called mixed-conventions, because the
competences for the subject-matter regulated by them is partly in the hands of
the EU and partly in the hands of the Member States (which can introduce more
stringent provisions at national level):
- as a consequence these conventions need to be transposed into EU law adopting a
directive or a regulation and into national law according to EU rules (for instance
transposing the EU directives concerned) and/or to national rules (for instance
by the internal procedure established at national level if the Member State
concerned has introduced more stringent provisions at national level than the EU
provisions).
Objectives
of EU Environmental Policy:
GENERAL REMARKS –
The ‘LIST’ of EU Environmental Objectives
10
I – art. 3 TEU fixes the general environmental objectives of the EU

(sustainable development, high level of protection and
improvement of the quality of the environment), but it is common
knowledge that the tasks of art. 3 are not an exhaustive list…
II – the general environmental objectives are completed by the

specific objectives fixed in art. 191 TFEU (1. preserving, protecting
and improving the quality of the environment; 2. protecting
human health; 3. prudent and rational utilization of natural
resources; 4. promoting measures at international level to deal
with regional or worldwide environmental problems, and in
particular combating climate change)…
Objectives of EU Environmental Policy:
GENERAL REMARKS –
The relationship between the different Objectives
mentioned in the European Treaties
11
I – However, the different objectives mentioned in the Treaties are not in a

hierarchical order…
II – …this condition can determine some matters:
1) because conflicts between different objectives can be frequent (for
instance between the need to produce some goods and the need to
protect the environment through the precautionary principle)…
2) and furthermore because the objectives, in practice, are not
binding/enforceable (for instance the possibility of an action against the
EU institution based on art. 265 TFEU for not pursuing the
environmental objectives is theoretical, since the EU institutions have a
wide discretion for taking or not taking action; moreover in addition to
EU measures there are also international, national, regional or local
measures, in a framework of shared competence and liability).
GENERAL REMARKS –
The general environmental Objectives of the EU:
SUSTAINABLE DEVELOPMENT
(in EU secondary sources of law)
12
In secondary EU legislation “sustainable development”

was only rarely defined, and with some definitions
which are not really meaningful.
For instance, in the past, the art. 2 of EU Reg. 2493/2000,
has defined it has follows: “sustainable development
means the improvement of the standard of living and
welfare of the relevant populations within the limits of
the capacity of the ecosystem by maintaining natural
assets and their biological diversity for the benefit of
present and future generations”.
GENERAL REMARKS –
(in EU primary sources of law)
13
I – Arts. 11 of the TFEU and paragraph 9 of the Recital of TEU

mention the sustainable development principle without
defining it…
II – the above mentioned notion goes back to the Report
entitled “Our common future”, which was written and sent
to the United Nations Organization in 1987 by the World
Commission on the Environment and Development;
according to this Report sustainable development is a
“development which meets the needs of the present without
compromising the ability of the future generations to meet
their own needs”.
GENERAL REMARKS –
(in EU not binding sources of law)
14
Furthermore, many European not binding sources of law

refer to principle of sustainable development, as regards,
for instance:
- the relationship between s.d. and climate change, clean
energy, public health;
- the guiding principles for s.d. (environmental protection,
social equity and cohesion, economic prosperity…);
- the strategy for s.d. and the objectives of s.d. (climate
change, clean technologies, sustainable transport,
consumption and production…).
GENERAL REMARKS –
The general environmental Objectives of theEU:
(conclusive remarks)
15
- The EU practice shows an inflationary

use of the expression “sustainable”,
which is linked to very different
activities…
- However, the basic difficulty of knowing

what economic development is
sustainable remains…
GENERAL REMARKS –
HIGH LEVEL OF PROTECTION
(meaning)
16
I – Arts. 3 of the TEU and 191 and 114 of the TFEU refer to the aim of
reaching a high level of environmental protection…
II – however neither of them specifies what exactly is a high level of
environmental protection …
III – certainly, it is not the highest level of e.p. in absolute terms (ECJ
case law), but it could be determined by looking at environmental
standards adopted by member States that usually have a high
standard of e.p….
IV – as a consequence, it seems it is not possible to adopt measures
which only provide for the lowest common denominator of e.p.….
V – finally, according to arts. 3 of the TEU and 191 of the TFEU, the high
level of e.p. is to be achieved by the EU as a whole, not by national
measures.
GENERAL REMARKS –
HIGH LEVEL OF PROTECTION
(procedural measures)
17
I – When a EU Commission proposal is not based on a high level of

e.p., the EU Parliament has a right of action against the
Commission under art. 263 of the TFEU (however until now the
Parliament has never attempted to present any cases against the
Commission, probably because there are many difficulties in
determining what is in reality a high level of e.p. )…
II – moreover the EU Council can reach a common position and
finally adopt the proposal with a qualified majority…
III – however the sanction for not proposing or adopting measures
on a high level of e.p. is provided by art. 193 of TFEU, according
to which the Member States may, under certain conditions,
maintain or introduce more stringent national measures.
The specific environmental Objectives of the EU
as mentioned in art. 191 of the TFEU
18
I – 1. preserving, protecting and improving the quality

of the environment; 2. protecting human health; 3.
prudent and rational utilization of natural resources;
4. promoting measures at international level to deal
with regional or worldwide environmental problems,
and in particular combating climate change…
II – according to the very wide ranging meaning of these

objectives the EU environmental protection measures
cannot be considered limited to the EU’s territory.
Principles of EU Environmental Action:
GENERAL REMARKS
19
I – General principles:
1. principle of subsidiarity (art. 5 of the TEU);
2. principle of integration (art. 11 of the TFEU).
II – Specific principles (art. 191 of the TFEU):

1. precautionary principle;
2. prevention principle;
3. Polluter-pay principle.
Principles of EU Environmental Action
established in art. 191 of the TFEU:
conflicting views on their legal nature
20
I – According to some scholars the above mentioned principles

established in art. 191 of the TFEU are not binding, such as
the essential part of public international environmental law,
which is based on soft law.
II – According to other scholars these principles are binding,
even though the EU Institutions have a very wide discretion
in applying them.
III- However, the environmental principles in the TFEU are
considered less important for EU environmental law than the
other sources of law, which have developed a large number of
legislative acts that materialize these principles…
PRINCIPLE OF SUBSIDIARITY:
HISTORICAL EVOLUTION
21
I – The s. principle was first inserted in 1987 into the EC

Treaty, but limited to environmental matters.
II- The Maastricht Treaty, in 1993, repealed that provision
and inserted a new art. 3b – the present art. 5 of the
TEU – into the Treaty.
III – The Amsterdam Treaty, in 1997, added to the ECT a
Protocol on the application of the principles of
subsidiarity and proportionality.
IV – Finally, the Lisbon Treaty placed the principle at art.
5.
LEGAL NATURE
22
I – The s. principle is not a rule of competence but a

principle which concerns the exercise of that
competence.
II – As a consequence, when taking action EU
Institutions have to demonstrate that the conditions
of art. 5 of the TEU and of the Protocol are complied
with.
III – However they benefit from a large amount of
discretion on the question of what content a
measure should have.
application to the field
of environmental protection
23
For the Environment, much depends

on the interpretation given to the
requirement that the objective of
environmental protection cannot be
sufficiently achieved by Member
States and can thus be better
achieved at EU level.
some matters related to the application in the field
of environmental protection
24
However, it is not easy to

establish general rules to
show when environmental
policy objectives can be
better attained at EU level...
of environmental protection:
conflicting views (1)
25
… a) for instance, Member States with an active

environmental policy of their own may well
think that measures at national level are a better
solution…
… b) however, some other Member States find it
difficult or impossible to implement an effective
environmental protection, since environmental
protection policies are perceived as slowing
down economic develoment…
of environmental protection:
conflicting views (2)
26
… c) on the other hand, action at EU

level is often a means of ensuring that
environmental measures are taken in
all Member States, especially because
many environmental policies cannot
seriously be taken at national level
alone.
the meaning of “better” in art. 5 of the TEU
27
What “better” means in art. 5 of the TEU is not

at all clear: it could mean quicker, more
effective, cheaper, more efficient, closer to the
citizens (i.e. not too centralized), more
democratic, more uniform, more consistent
with measures adopted in other parts of the
industrialized world.
As a consequence, it will, therefore, have to be
decided on a case by case basis.
the ambiguous nature of the principle
28
The ambiguous nature of the subsidiarity

principle determines that at the end of
almost any discussion on a specific topic
the policy-maker plays a central role,
having to weigh political, economic,
cultural, social, legal and environmental
aspects as best he can.
In the above mentioned framework, the
question of what measures have to be taken
is of a political nature, not a legal nature.
PRINCIPLE OF INTEGRATION:
evolution and main contents
29
The clause of integration was firstly introduced in the

1987 version of the ECT, and is at the moment
established in art. 11 of the TFEU, according to which
“Environmental protection requirements must be
integrated into the definition and implementation of
the Union policies and activities, in particular with a
view to promoting sustainable development”.
As a consequence, the p. is based on the concept that
environmental requirements and policy cannot be seen
as an isolated green policy (which groups, for instance,
specific actions on the protection of air, water, soil
and so on…), because the environment is also affected
by other policies (such as transport, energy, etc.…).
meaning of “environmental protection requirements”
30
“Environmental protection
requirements” are first of all the
different objectives laid down in
arts. 3 of the TEU and 191 of the
TFEU (for instance ensuring
sustainable development, preserving,
protecting and improving the quality
of the environment) .
the interpretation of art. 11 of the TFEU
31
1. The interpretation of art. 11 of the TFEU is

wide because , wherever a measure is taken
under the TF EU, full consideration must be
given to protecting the environment .
2. However , EU Institu tions have a very broad
discretion in putting the principle of
integration into practice .
3. Finally , the question of what extent such
measures are to be taken is in many cases
of a political not a legal nature .
THE PRECAUTIONARY PRINCIPLE :
MEANING (1)
32
1. At EU level the precautionary principle was inserted in the

ECT in 1993 and now is established in the TFEU.
2. However its origin and content are unclear: in fact, since
no definition exists in the Eurpean Treaties, the principle
is open to broad interpretation.
3. For instance, the Convention on the protection of the
marine environment in the North-East Atlantic, to which
the EU adhered, described it as a principle: “by virtue of
which preventive measures are to be taken where there
are reasonable grounds for concern that substances or
energy introduced directly or indirectly into the
environment may bring about damage to human health,
harm living resources […] even where there is no
conclusive evidence of a causal relationship between the
inputs and the effects”.
MEANING (2)
33
1. However, the precautionary principle is mentioned also in

the Rio Declaration of the United Nations on Environment
and Development (1992), according to which “where there
are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for
proponing cost-effective measures to prevent
environmental degradation”.
2. Moreover the EC Commission adopted in the year 200o a
Communication on the p. principle where it stated:
“whether or not to invoke the precautionary pinciple is a
decision exercised where scientific information is
insufficient […] and where there are indications that the
possible effects on the environment […] may be
potentially dangerous and inconsistent with the chosen
level of protection”.

MEANING (3)
34
Finally the European Council defined

the precautionary principle as
follows: “in case of scientific
uncertainty”, it is necessary to “use
the appropriate assessment
procedures and preventive measures
in order to avoid damage to human
health and the environment”.
what art. 191 p. 2 of the TFEU does not establish
35
Even though sometimes the secondary sources of EU

Law establish that the adoption of the precautionary
principle requires a scientific assessment of risks …
…art. 191 of the TFEU does not contain any such

condition...
…as a consequence, it is possible to argue that the EU

secondary sources of law (as mentioned in presentation
n. 1) sometimes try to limit the application of the
precautionary principle as established in the TFEU and
in the position expressed by the European Commission
(see previous slides).
THE PREVENTION PRINCIPLE :
MEANING
36
It is unclear to what extent the pevention principle has

a content independent from the precautionary p. …
… because both principles are, in practice, almost

always used together and there is no definition for
either of them in the TFEU …
… however, it could mean that measures have to be

taken earlier, to prevent damage occurring…
…this also makes economic sense since it is normally far

more costly to remedy impairment after it has occurred.
historical background (1)
37
- The principle that environmental

damage should be rectified at source
was inserted into the Treaty in 1987;
- certainly, as in all other cases EU
Institutions have a large discretion
as to what measures they wish to
take, and the content of these
measures…
historical background (2)
38
- though, since 1991-92, the EC debate on

deregulation, subsidiarity and
flexibility started…
- … as a consequence EC practice started
to prefer quality standards (for instance
regarding air and water pollution),
rather than the rule that environmental
damage should be rectified at source in
an absolute meaning.
THE POLLUTER-PAYS PRINCIPLE :
GENERAL FRAMEWORK
39
- It was introduced into the Treaty in 1987, though it has

existed at EEC level since the ‘70s (not binding sources of law);
- it is an economic principle and has to be understood as
expressing the concept that the costs of environmental damage
should be borne by the person who caused the pollution;
- However, the content of this principle is difficult to
determine, because it is not easy to ascertain: a) who the
polluter is, b) who should pay, c) damage in another country, d)
how much should be paid, e) if an investment in cleaner
technologies can be considered a payment;
- the European Council interpreted the p.p. principle as
follows: “prices shall reflect the true societal costs of
consumption and production and polluters should pay for the
damage which they caused to […] the evironment. This, indeed is
far away from a legally binding principle”.

THE POLLUTER-PAYS PRINCIPLE :
some of the most important matters
related to its application
40
- No EU text contains provisions on who shall pay for

what or any other provision which puts the polluer-
pays principle into practice;
- if, according to the p.p. principle, the polluter and not
the taxtpayer had to pay for pollution, subsides and
State aid would not be in line with this pinciple and
would have to be deleted (however, EU measures had
from the beginning accepted that some economic
operators or the member Sates may receive
environmental aid covered by public funds);
- in practice, in all Member States and at EU level the
clean-up of the evironment is seen as a task for public
authorities, especially because such an identification of
the polluter is pratically impossible in many cases.
Conditions of EU Environmental Action:
GENERAL REMARKS
41
- A r t . 1 9 1 p . 3 o f t h e T F E U l i s t s 4 c on d i t i o n s w h i c h
E U e n v i r o n m e n t a l p o l i c y s h o u l d t a k e i n to
account;
- the provision addresses all EU Institutions and
bodies;
- h o w e v e r , n o d e t ai l s ar e gi v e n ;
- i n E U p r a c t i c e t h e s e c o n di t i o n s o n l y pl a y a
subordinate role: indeed their legal impact is
hardly measurable, except for the cost-benefit
condition, which is used by economic operators
t o m a n a g e t h e e n v i r on m e n t a l c o s t s o r m a ke t h e
polluter pay.
1) AVAILABLE SCIENTIFIC DATA
42
- This criterion requires taking into account the

scientific/technical data available ;
- However, the EU does not need to order its own
studies before adopting its policy, but may simply
draw on the available data;
- moreover it is not necessary to give scientific
evidence that a specific measure would be effective;
- in order to improve information on the
environment, a European Environmental Agency
has been set up in Copenhagen since 1990; the
Agency has been operational since the end of 1993.

2) ENVIRONMENTAL CONDITIONS
IN DIFFERENT REGIONS OF THE EU
43
- This criterion requires taking into

account the environmental conditions
in the various regions of the EU;
- However, the condition does not
require the taking into accout of
divergencies, for instance those
related to the specific derogations
contained in some national
legislations.
3) THE POTENTIAL BENEFITS AND COSTS
OF ACTION OR LACK OF ACTION
(POTENTIAL BENEFITS AND CHARGES)
44
- the discussion on the benefits and costs of EU environmental

measures has been reduced to the economic costs and
benefits, even though the economists have, until now, not
developed a standardized method of how to calculate them;
- however, this consideration should not be limited to the
economic aspects, but has to include social, employment,
ecological, human and other aspects;
- if, after these considerations, doubts still persist, the
precautionary or prevetive principle comes into play;
- finally, according to the political resolutions adopted by the
EU Council and the decisions on the environmental action
programs under art. 192 p. 3 of the TFUE, it is normally
sufficient proof that, according to the best knowledge of the
Eu institutions, the benefits of a specific measure outweigh
the disadvantages.
4) ECONOMIC AND SOCIAL DEVELOPMENT
(of the EU as a whole
and the balanced development of its regions)
45
- This criterion means that

environmental protection
provisions should not be imposed
at the expense of economic
growth;
- it covers all economic and social
development.

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Objectives, Principles and Conditions

Art. 3 TEU: one of the objectives of the EU is a high level of

RESD – Environmental Law and Regulation -- Prof. M. D'Angelosante

- No definition of the Environment is contained either in the TEU or in

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

The concept of «working

1) Geographically the E. mentioned in the EU Treaties is not

1) The first legally binding instrumets on

3) After that, when the Maastricht Treaty on the EU amended

I – art. 3 TEU fixes the general environmental objectives of the EU

II – the general environmental objectives are completed by the

I – However, the different objectives mentioned in the Treaties are not in a

In secondary EU legislation “sustainable development”

I – Arts. 11 of the TFEU and paragraph 9 of the Recital of TEU

Furthermore, many European not binding sources of law

- The EU practice shows an inflationary

- However, the basic difficulty of knowing

I – When a EU Commission proposal is not based on a high level of

I – 1. preserving, protecting and improving the quality

II – according to the very wide ranging meaning of these

II – Specific principles (art. 191 of the TFEU):

I – According to some scholars the above mentioned principles

I – The s. principle was first inserted in 1987 into the EC

I – The s. principle is not a rule of competence but a

For the Environment, much depends

However, it is not easy to

… a) for instance, Member States with an active

… c) on the other hand, action at EU

What “better” means in art. 5 of the TEU is not

The ambiguous nature of the subsidiarity

The clause of integration was firstly introduced in the

1. The interpretation of art. 11 of the TFEU is

1. At EU level the precautionary principle was inserted in the

1. However, the precautionary principle is mentioned also in

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

Finally the European Council defined

Even though sometimes the secondary sources of EU

…art. 191 of the TFEU does not contain any such

…as a consequence, it is possible to argue that the EU

It is unclear to what extent the pevention principle has

… because both principles are, in practice, almost

… however, it could mean that measures have to be

…this also makes economic sense since it is normally far

- The principle that environmental

- though, since 1991-92, the EC debate on

- It was introduced into the Treaty in 1987, though it has

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

- No EU text contains provisions on who shall pay for

- This criterion requires taking into account the

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

- This criterion requires taking into

- the discussion on the benefits and costs of EU environmental

- This criterion means that

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