European environmental constitutional law

EU flags blowing in the windClick to enlarge
EU flags blowing in the wind
Source: jorisvo / Fotolia.com

The primary-law basis of European law are the Treaty on European Union (EU Treaty, EUT) and the Treaty on the Functioning of the European Union (TFEU). The Treaty of Lisbon, which also includes a number of Protocols, amended European primary law on 1 December 2009. Its name comes from the fact that the treaty was adopted by the informal European Council meeting in Lisbon on 18/19 October 2007.

EU-Vertrag und Vertrag über die Arbeitsweise der Europäischen Union (AEUV)

The Treaty of Lisbon aims to modernise and reform the EU. It pursues the following main objectives:

  • To make the EU more democratic. The EU is to satisfy European citizens’ expectations with regard to high standards of responsibility, openness, transparency and involvement.
  • To enable the EU to work more efficiently. The Treaty puts it in a position to tackle the global challenges that face it today, such as climate change, security, and sustainable development.

The following provisions of the treaties are of particular relevance to European environmental law:

  • Art. 2 of the EU Treaty – as a general target norm of the European Union – commits the Union to “sustainable development of Europe on the basis of balanced economic growth”. In accordance with Recital 9 of the preamble to the EU Treaty it makes environmental protection, via the principle of sustainability, into an integral component of economic development. Art. 2 of the EU Treaty, by requiring a high degree of environmental protection and improvements in environmental quality, also upgrades environmental protection to an equivalent and equal-ranking task alongside the other tasks mentioned. Art. 114 para. 3 of the TFEU confirms this high status of environmental protection. It states: “The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection”.
  • Art. 11 of the TFEU contains two important principles of European environmental law: the principle of integration and the principle of sustainability.  The principle of integration calls for effective incorporation of the requirements of environmental protection in policies and measures that are outside the field of environmental policy. The aim is to promote sustainable development.
  • Art. Art. 191 of the TFEU gives specific shape to the environmental tasks of the Union. Art. 191 para. 1 of the TFEU defines the tasks and objectives of environmental protection. The Treaty of Lisbon added the task of combating climate change. Para. 2 sentence 1 defines the quality of environmental protection policy. Corresponding to Art. 2 EUT and Art. 114 para. 3 TFEU, a high level of protection is to be targeted. Art. 191 para. 2 also contains the Union’s environmental policy objectives and the principles to be observed, such as the precautionary principle, the polluter-pays principle, and the principle of rectification at source.
  • Art. Art. 194 of the TFEU gives the Union an independent responsibility in the field of energy policy, which it exercises with regard for the need to preserve and improve the environment. Thus the Union is obliged to promote energy efficiency, energy saving and the development of new and renewable forms of energy.

Research activities of the Federal Environment Agency

EU member states are entitled to stand up for regional products

People who buy products from their region are doing something for the environment, because shorter transport distances mean less traffic and hence less air pollution and less noise.
The study undertaken for the Federal Environment Agency by Dr. Ulrich Karpenstein and Bettina Werres (law firm of Redeker Dahs Sellner Widmaier) under the title of “Staatliche Unterstützung regionaler Produkte – Eine rechtliche Analyse” (“State Promotion for Regional Products – A Legal Analysis”) shows that it is possible to promote regional products without adversely affecting free competition in Europe.
For example, it is permissible to use private seals of quality which publicise the fact that transporting a regional product causes less pollution. However, the state is also at liberty to provide general information about the benefits of regional products and above all to publish life-cycle analyses.
The study is published in German as Volume 42/04 and in English as Volume 43/04 in the Federal Environment Agency’s series TEXTE.