Constitutionalisation of environmental protection in EU law

Foreword vii
Contents xi
Preface
The purpose of this book 2
The structure of this book 4

Chapter I Environmental Protection in the EU Constitutional Perspective
1 Introductory remarks and conceptual framework 8
1.1 The environment and environmental protection 8
1.2 Constitution of the EU legal order 15
1.3 The concept of constitutionalisation 20
1.4 Global environmental constitutionalism 24

2 Hierarchy of EU constitutional norms 28
2.1 Pluriconstitutionalism and the internal structure of EU constitutional law 28
2.2 The ‘foundational values’ (‘founding principles’) of the EU legal order 30
2.3 The rule of law as a foundational value of the EU legal order 36
2.4 Environmental protection within the EU constitutional order 39

3 The constitutionalisation of environmental protection: history and legitimacy 40
3.1 From the origins to the ‘heart’ of the Community’s action 40
3.2 The constitutive phase of environmental protection (1970’s) 42
3.3 The normative phase of environmental protection (1980’s) 45
3.4 The consolidating phase of environmental protection (1990’s) 47
3.5 The constitutional phase: the Charter of Fundamental Rights and the Constitutional Treaty 52
3.6 The Lisbon Treaty and future perspectives 55

4 A broader theoretical perspective: the values of democracy and the rule of law in the context of environmental protection 59
4.1 Constitutionalisation and democracy 59
4.2 The relationship between democracy and environmental protection 60
4.3 Environmental democracy in the EU legal context 62
4.4 The ‘environmental rule of law’ and the ‘rule of law for Nature’ as innovative concepts 68

5 Conclusion 72

Chapter II A High Level of Environmental Protection in EU Law
1 The concept of ‘a high level of environmental protection and improvement of the quality of the environment’ in the normative structure of the Treaties 74
1.1 Article 3(3) TEU and Article 37 of the Charter as expressions of one constitutional principle 74
1.2 A high level of environmental protection as a ‘principle’ rather than an ‘objective’ 81
1.3 Two expressions of a common principle: distinguishing between Article 3(3) TEU and Article 37 of the Charter 87

2 Article 37 of the Charter of Fundamental Rights – in search of the environmental identity of the Union 93
2.1 The origins of Article 37 of the Charter – discussions within the Convention 93
2.2 Article 37 of the Charter in comparative legal context 101
2.2.1 The concept of environmental rights in the international and EU legal perspectives 101
2.2.2 The entrenchment of environmental protection and environmental rights in the national constitutions 109
2.3 Exploring the legal parameters of Article 37 of the Charter of Fundamental Rights 125
2.3.1 Article 37 as a (false) ‘solidarity right’ in the Charter 125
2.3.2 Article 37 of the Charter – reaching beyond the dichotomy between ‘rights’ and ‘principles’ 129

3 Article 37 of the Charter of Fundamental Rights as a cluster of three legal concepts 135
3.1 The principle of sustainable development 135
3.2 The principle of integration 145
3.3 A high level of environmental protection and improvement of the quality of the environment 152

Chapter III Solidarity as a Prism for Constitutionalisation of Environmental Protection in EU Law
1 The EU principle of solidarity as a constitutional principle 164
1.1 Introductory remarks 164
1.2 The multidimensional nature of the principle of solidarity in the EU legal order 165
1.2.1 The principle of solidarity in the EU treaties 165
1.2.2 Solidarity and other fundamental EU law concepts 168
1.2.3 Solidarity as a founding value and principle of EU law 172

2 The concept of intergenerational equity (solidarity) in environmental law 175
2.1 The theoretical foundations of the concept of intergenerational equity (solidarity) 175
2.2. The principle of intergenerational equity (solidarity) in international law 180

3 Mapping the contours of the relationship between solidarity and the environment in EU law 186
3.1 The concept of solidarity in the EU environmental framework 186
3.2 The environmental dimension of solidarity between generations in EU law 189
3.3 ‘Environmental solidarity’ in the EU legal order – perspectives and questions 196

Chapter IV Judicial Coherence in Enhancing Environmental Protection
1 The role of EU judicature in ensuring environmental protection 202
1.1 The constitutional role of EU judicature 202
1.2 Environmental protection and the balancing of fundamental rights and freedoms 206
1.3 The impact of environmental considerations on the legal concepts related to private enforcement 213
1.3.1 The role of private enforcement in enhancing environmental protection 213
1.3.2 The concept of ‘concern’ in relation to direct effect 215
1.3.3 Entitlement to a judicial review of discretionary measures 218
1.3.4 Shaping the standard of judicial review carried out by national courts 220
1.3.5 Determining the scope of remedies available before the national courts 224
1.4 Environmental protection in the context of public enforcement 226
1.4.1 The role of public enforcement in enhancing environmental protection 226
1.4.2 Article 37 of the Charter as the potential subject matter of infringement proceedings 230

2 The Court of Justice as environmental protector: alternative ways of enhancing environmental protection through judicial practice 238
2.1 Environmental rights derived from (other) fundamental rights 238
2.1.1 ‘Environmental jurisprudence’ of the European Court of Human Rights 238
2.1.2 Drawing inspiration from the ‘environmental’ jurisprudence of the European Court of Human Rights in the EU legal framework 246
2.2 ‘Compartmentalised environmental rights’ in EU law 255
2.2.1 The concept of ‘compartmentalised environmental rights’ 255
2.2.2 Towards the right to water in EU law 256
2.2.3 Towards the right to clean air in EU law 268

3 Access to environmental justice in the EU legal order 277
3.1 The procedural dimension of the constitutionalisation of
environmental protection 277
3.2 Effective environmental protection before the national courts (Article 267 TFEU) 279
3.2.1 ‘Wide access to justice’ in environmental matters 279
3.2.2 Reliance on Article 47 of the Charter in the context of environmental protection 283
3.3 Effective environmental protection before the EU Courts (Article 263 TFEU) 289
3.3.1 The role of the EU Courts in ensuring wide access to justice in environmental matters 289
3.3.2 Legal standing in direct actions before the EU Courts in environmental matters 297
3.3.3 The standing of recognised environmental organisations before the EU Courts 307
3.3.4 The scope and intensity of judicial review carried out by the EU Courts 312

Bibliography 318
Table of Cases 358
Table of Legislation 370
Index 376