Environmental Integration and the European Charter of Fundamental Rights

- Some Legal Implications -

Richard Macrory

1. A Panoply of Perceptions

On November 22 last year the UK parliament held a debate on the draft Charter which had then been agreed by its drafting Convention but not yet formally proclaimed by the European Council. More than many Community documents, the Charter and its current legal status reflect difficult compromises, derived from differing perceptions on the future direction and status of the Union. The Parliamentary debate involved both Members of Parliament directing involved in the drafting, the European Minister, and selective quotations from other European politicians were liberally scattered. The selection below gives some indication of the current confused perceptions - both as to the Charter's current legal status, and what it represents for future directions.

Even though the charter was not meant to be legally binding immediately., the fact that its purpose was to make existing rights more evident and their overriding importance more visible means that European Union Citizens will have legal redress against the Commission and member states when creating or implementing Community Law...We should not get stuck on the wilder shores where the Charter is seen as a nascent constitution
(British Member of Parliament, and member of Charter Convention)

It is an essential document that foreshadows the future European Constitution we are hoping for
(Belgian Foreign Minister, quoted by Member of Parliament)

It resembles not so much a Charter of Fundamental Rights as a badly organized package tour. The authors of the European Union's proposed new human rights declaration have stuffed in a bit of everything, from the obvious to the incomprehensible.
(The Economist, quoted in debate)

Quite obviously, the charter does not only reaffirm pre-existing rights. It enshrines many new rights.
(French European Minister, quoted in debate)

It can reasonably be expected that the charter will become mandatory through the court's interpretation of it as belong to general principles of Community law
(European Commission, quoted in debate)

It will not be legally enforceable ... Is it a launch pad for something new, if not an EU constitution then something else? Of course it is not
(Keith Vaz, UK Minister for Europe)

2. Background

At the European Council of Cologne it was decided to establish a European Charter of Fundamental Rights designed to make visible to citizens of the European Union the principles of rights reflected in Art 6 of the European Union Treaty - "The Union if founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States".

The Cologne mandate stated that the Charter was to consolidate existing fundamental rights, and was to draw upon sources including the European Convention, national constitutional traditions, general principles of law, as well as economic and social rights as contained in the European Social Charter and the Community Charter of Fundamental Social Rights. There is only one explicit reference to the environment in the Charter, and this relates to the integration principles, itself clearly derived from Article 6 of the EC Treaty. The main purpose of this paper is to initiate a discussion as to whether this inclusion of the principle changes arguments concerning the legal nature of the integration principle. Giving real legal bite to the integration principles as contained in the Treaty is not easy, though I will make a case for a way of doing so. I will also argue that the inclusion of the principle within the Charterdoes not create a new right in itself, but can in a number of respects strengthen the arguments for giving greater legal force to the Treaty principle.

A 62 member "Convention" was established to prepare the draft Charter. The Convention was composed of 15 representatives of Heads of State, 2 members of each of the 15 national Parliaments, 16 European Parliament members, and one Commission President representative, the Commissioner for Justice and Internal Affairs (Vitorino). Two representatives of the European Court of Justice, and two from the Council of Europe had observer status. The Convention was presided by Roman Herzog, former President of Germany. The draft Charter was formally adopted by the Convention on October 2nd. At the Biarritz Council meeting, the Charter was unanimously agreed by Heads of State and Government.

At the Nice Council Meeting (7-9 December 2000), the Charter was formally proclaimed with the Presidency Conclusions stating that, "The European Council welcomes the joint proclamation by the Council, the European Parliament and the Commission, of the Charter of Fundamental Rights, combining in a single text the civil, political, economic, social and societal rights hitherto laid down in a variety of international, European or national sources."

The Council called for Charter to be disseminated as widely as possible.

3. Status

At present the Charter is formally stated to be a political rather than a legally binding document. The Nice conclusions note that "the question of the Charter's force will be considered later". The Charter Convention's web-site states that the Charter "will initially have a political declaration dimension". Despite the political reluctance to incorporate the Charter formally as a legal binding document, the question for this group is the extent to which it will in fact influence the legal interpretation and direction of Community environmental law. Before developing arguments further, I first outline those rights most relevant.

Since Stauder (1969) and Handelsgesellschaft (1970), the ECJ has held that "respect for fundamental rights forms an integral part of the general principles of Community law protected by the Court of Justice". In its case law the Court has been careful to emphasize that it does not regard the European Convention on Human Rights or other international provisions as a direct source of positive rights - rather such commitments, together with provisions in national constitutional provisions, represent an expression of the human rights which are an integral part of the Community order. Apart from the ECHR, other international inspirations have included the 1961 European Social Charter and Conventions of the International Labour Organization (Defrenne v Sabena (1978)). Other principles, such as lawyer/client confidentiality have been drawn from national traditions (AM & S Europe Ltd (1982)). The provisions of the Charter itself are said to be essentially a declaration of existing rights drawn from international and national traditions, and therefore in keeping with the approach of the ECJ. In that sense it can be argued that the Charter, until and unless it is given special legal status within the Community order, does not affect the existing legal status of human rights within the Community. But, given its distinctive Community origin, and accompanying declarations from Community institutions, I have little doubt that it will act, as it were, as the first point of reference for the ECJ.

The case-law to date indicates that while Community legislative acts can be challenged before the ECJ as contrary to human rights the Court in practice is very reluctant to reach a decision that would annul such an act. I am not aware of any environmental measure that has been successfully challenged, nor indeed where human rights has formed the basis of any such challenge. On the other hand, where administrative actions are concerned, including enforcement steps in competition law, or where procedural safeguards can be inserted without affecting the substance of the Community measures, legal actions have been more successful.

Despite the rather cautious approach to date, we could predict a more vigorous attitude in the future. The Amsterdam amendments have undoubtedly strengthened the status of human rights within the Union. Art 6 of the TEU now states that the Union is "founded on" respect for human rights (rather than as previously, the Union would respect such rights) and since Amsterdam is justifiable by the ECJ. Art 7 introduces a new sanction measure invocable by the Council against States in persistent breach of Article 6. Art 49 makes respect for fundamental rights in Article 6 a condition of application for membership of the Union (Art 49).

4. The Charter Rights and the Environment

The Charter does not declare environment rights explicitly, and only one provision mentions the environment, yet a number of the what might be described as classical human rights may clearly have an environmental dimension. There are three categories of rights - (i) classical freedom style rights; (ii) procedural rights; and (iii) what might be described as social/economic rights. The inclusion of this latter category of rights is described as an innovation of the Charter, not replicated in equivalent international statements.

(i) Classical freedom rights

Art 2.1 Everyone has a right of life.

The Indian High Court, in particular, has interpreted the equivalent provision in the Indian Constitution to imply a quality of life, involving minimum environmental standards. It seems unlikely at present that European courts will develop interpretations along these lines.

Art 7 Everyone has the right to respect for his or her private and family life, home and communications.

Developing case law of the European Court of Human Rights has held that the equivalent right in the European Convention can be breached where authorities fail to take effective enforcement or remedial action in the case of severe environmental degradation. See in particular Lopez Ostra (1994) and Guerra (1998).

(ii) Procedural Rights

Art 41 Right of Good Administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

In Art 41(2) this right is stated to include the right of every person to be heard before any individual measure which would affect him or her adversely is taken, the right to see files, and the obligation of the administration to given reasons.

Art 47 Effective remedy

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

The Article then provides that everyone is entitled to a fair and impartial hearing within a reasonable time by an independent and impartial tribunal, and to have the possibility of being advised, defended, and represented. Legal aid is to made available to those who lack sufficient resources to ensure effective access to justice.

Article 47 is not free-standing, but dependent on the alleged violation of other rights and freedoms. Nevertheless, it could be significant in the context of environmental challenges, and the rights of third parties. Jans (European Environmental Law, 2nd ed., 2000), queries whether the existing restrictive approach of the ECJ to standing issues where Commission decisions are challenged (Greenpeace) is consistent with the the Convention's fundamental rights concerning access to justice.

(iii) Social/economic rights

Art 35 Health Care

Everyone has the right of access to preventative health care and the right to benefit from medical treatment under the conditions established by national laws and practice. A High level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

The integration principle repeats Article 152 of the Treaty, but the Nice Conclusions expressly highlighted the need to implement "rapidly and fully" this principle in the context of consumer health and safety. It noted in particular the Council Resolution on the Precautionary Principle.

Art 37 Environmental Protection

A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

This principle of course reflects Art. 6 of the Treaty though not word for word and there are some potentially significant changes in emphasis:

- It uses the phrase "a high level of environmental protection and the improvement of the quality of the environment" rather than "environmental protection requirements"

The integration is into the "policies of the Union" rather than, as under Art 6, "into the definition and implementation of the Community policies and activities refereed to in Article 3". A legalistic interpretation would conclude that the Charter's principle applies only to policies of the Community as listed in Art 3 (agriculture, fisheries, transport, common commercial, social, development cooperation) while the wording of Art 6 is wider and applies to activities as well as policies (eg includes competition, approximation of laws concerning common market, promotion of research, measures in the spheres of energy, tourism). It is true that Amsterdam amendments expressly broadened the application of the integration to avoid this type of interpretation, though I have always been dubious whether a Court would actually have followed such a restrictive line.

- It states that integration is to be ensured "in accordance with the principles of sustainable development" rather than "in particular with a view to promoting sustainable development". The wording suggests a rather greater limitation. This will be significant particularly if the Prodi Sustainable Development Strategy (being prepared for the Stockholm Summit in the summer of 2001) gives greater emphasis to economic aspects of sustainable development than the environment - as currently seems likely.

4. Legal Aspects of the Integration Principle

The EC Treaty is, as far as I know, the only constitutional document in the world which gives expression to the principle of environmental integration; ditto now the Charter of Fundamental Rights. Many analysts are agreed that such integration is perhaps the most important but also most challenging aspect of contemporary environmental policy. The expression of the principle in the Treaty has clearly boosted the importance given to administrative initiatives to ensure improve integration.

The question for lawyers, however, is the extent to which such a principle has legal bite, and then whether its reflection in the Charter of Fundamental Rights adds to the argument. So I start with the integration principle as it appears in the Treaty, and raise a number of issues concerning its potential legal significance.

The integration duty has already be referred to in a number of cases before the ECJ but essentially in the context of appropriate legal bases for Community measures - and has been given a legitimizing or enabling effect (see Chernobyl (1990) and TO2 (1991). The more interesting question for lawyers is the extent to which the duty can be invoked in a legal arena to restrain Community action which infringes the principle, or whether the Community can be required to take action - certainly the statement in Chernobyl I that "all community measures must satisfy the requirements of environmental protection" hints at a duty that is more than simply an enabling one, but closer analysis suggests the difficulties involved in giving the duty legal substance.

Most legal traditional place constitutional duties under two broad categories - (a) directory duties which are essentially policy statement not enforceable in themselves but they may assist or color the interpretation of other duties (b) mandatory requirements which are self-executory in the sense that they impose duties which are enforceable and require no further legislation. Directory duties have influence, of course, and there are strong arguments for treating the integration duty as directory only - indeed this is how it as been handled in the case-law to date concerning legal bases. The language is ambiguous (especially the lack of meaning of environmental protection requirements), it is expressed in positive rather than negative terms, (which does not assist justifiability) and the extent to which the duty relates to complex policy and administrative judgments support the directory arguments.

On the other hand, the background and history of the duty suggest that Members States have consistently strengthened the language of the duty, and this might encourage an activist Court to treat this as a mandatory requirements. In this context, it seems to me that its reflection in the Charter of Fundamental Rights assists this interpretation. The Charter is not a constitution but what it says - a attempt to consolidate fundamental rights within the Community. A Court therefore might be inhibited in treating some provisions within the Charter as directory only , in the same way it might handle a more all embracing constitutional document. Moreover there are are at least five other integration duties under the Treaty (health, employment, consumer protection, industry and culture) (Macrory 1999). Only health and the environment have been singled out for inclusion in the Charter - reinforcing the argument that these duties should be treated in a different way. This argument is supported by the fact that in relation to economic and social rights contained in the European Social Charter and the Community Charter of Fundamental Rights of Workers, the Cologne Mandate to the Convention specifically requested it to include only rights Òinsofar as they do not merely establish objectives for action by the Union. Distinguishing between rights and desirable policy objectives was not easy - but the process background lends support to the argument that the integration duty is something distinct from a mere policy goal, and more akin to a right.

5. Who is bound by the duty and to who is it owed?

Art 6 of the EC Treaty does not define who is bound by the integration duty., but essentially it must apply to bodies responsible for elaborating Community policies. Although most attention has been focussed to date on Commission initiatives, other policy making bodies, including the Council and Parliament must similarly be bound.

Are Member States, not acting in Council, also bound? The Art. 6 duty refers to the implementation of policies, and to the extent that Member States have discretion in the way that they implementing particular policies, I see little reason why they should not also be directly bound by the integration duty. Suppose for instance Member States have been requested to designate and notify national roads to from part of the Trans-European Network? If little or not attention was paid by national authorities to the environmental implications of choices, could one argue that the integration duty is applicable?

The principle in the Charter, though it does not expressly refer to implementation, reinforces this argument. In the context of fundamental human rights the ECJ has developed case-law holding that when interpreting and implementing Community law, Member States are obliged to respect fundamental human recognized as part of the Community order ((Commission v Germany (1989), Wachauf v Germany (1989) etc.) If the integration duty is now accepted as a expression of human rights, it is clearly consistent with the ECJ approach to apply it to Member States where implementing Community policy.

As to whom the duty is owed, again the Treaty is silent. We can start with narrower interpretations and confined it to other Community institutions (Commission, Parliament etc.) or include as well, Member States. This essentially reflects the broad standing provisions contained in Art 230 of the Treaty, though Parliament can still only act to protect its prerogatives. Where third party challenges directly before the ECJ are involved we know that Art 230 as interpreted by the ECJ, makes it near impossible for a third party to achieve standing where general environmental interests are at stake. Even if one could now characterize the integration duty as a fundamental right, I am not convinced that that this directly affects the interpretation of "direct and individual concern" under Art 230, or would require a more liberal approach. It might, though, assist in justifying a more relaxed approach if the ECJ wishes to develop that way. It would argue that where fundamental rights were at issue, these were more readily characterized as of direct and individual concern even though others might also be affected.

When it comes to invocation by individuals before the national court, it would have to be argued that the integration duty had direct effect. There is clearly a strong argument that it is insufficiently clear and unconditional to have such effect. But here again the inclusion within the Charter could strengthen the argument for direct effect. It can now be argued that the integration duty is a right. This will not be conclusive, though, and existing case law has generally been careful to distinguish the question of whether a provision has direct effect and whether it is designed to confer rights on individuals (see Commission v Germany (1995) etc.). My own conclusion at present, is that the duty would not have direct effect, and given the restrictive condition on direct access to the ECJ, it will remain a duty that is essentially invocable by Member States and Community Institutions.

6. Giving legal meaning of the duty

The Treaty duty refers to "environmental protection requirements". My own view is that this must mean something more than the environmental content of existing Community legislation since this would add little to the existing legal framework. At the other extreme, there are real problems in interpreting the phrase to refer to an objective level of environmental protection determined in the absence of Community legislation. Courts would be directly determining the moral and economic choices involved in environmental standard setting, and in most countries where constitutional rights to environmental well-being exist courts have for precisely this reason been reluctant to treat such rights as directly enforceable (Brandl & Bungert 1992, and Fenrandez 1993). Between the restrictive interpretation and the conceptual difficulties of objective standards, I have argued for a third approach (Hession and Macrory 1998) This uses the principles of environmental policy contained within the Treaty (the basis objectives, a high level of protection, precaution, prevention, rectification at source, etc.) as a basis for review. - Kramer (2000) supports this view. The Charter's reference to a "high level of protection" reinforces this approach. Except in the most extreme cases, successful review will not be easy but at least this is an approach consistent with the Treaty.

Courts are, however, generally happier at developing procedural rather than substantive protections when dealing with issues of high policy. Art 253 contains the requirement that regulations, directives, and decisions state the reasons upon which they are based, and infringement of such a procedural requirement is a ground for annulment. Adopting the line that it is is more productive to view the integration principle as a procedural requirement rather than a principle giving rise to a substantive result, it is possible to give it legal bite in the context of the requirement to provide reasons. The argument would require that regulations and directives to be subjected to a form of environmental appraisal or other method of rational decision making, which demonstrates consistency (or at least no major conflict ) with the principles of a high level of protection and other general Treaty provisions. In this way the requirement of environmental integration becomes an essential element of the reasoning process. The inclusion of the duty, albeit in a modified form, in the Charter is politically significant and innovative. From a strict legal perspective, I am not convinced that it marks a step change in existing arguments over the legal enforceability of the integration principle - but, as indicated above, to the extent the principle could now be described as fundamental right, it may assist the arguments need to give the duty more than political significance.

References

Brandl & Bungert Constitutional Entrenchment of Environmental Protection: A Comparative Analysis, Harvard Environmental Law Review (1992) Vol 16.1 1-89

Craig & De Burca EU Law Text Case and Materials, Oxford University Press, 1998

Fernandez State Constitutions, Environmental Rights Provisions and the Doctrine of Self Execution, Harvard Environmental Law Review (1993) Vol 17 333-387

Hession and Macrory (1998) The Legal Duty of Integration in OÕRiordan and Voisey (eds) The Transition towards Sustainability, Earthscan

Jans, European Environmental Law, 2nd edition 2000, European Law

Kraemer, EC Environmental Law, 4th edition, Sweet and Maxwell

Macrory, An Environmental Perspective in O'Keefe and Twomey, 1999 Legal Issues of the Amsterdam Treaty, Hart Publishing