THE PRINCIPLES OF EUROPEAN ENVIRONMENTAL LAW
The principles of European environmental law are identified in Article 191(2) TFEU (Title XX, Environment), and are:
- the precautionary principle
- the principle of preventive action
- the principle of correction, as a priority at source, of damage caused to the environment
- the polluter pays principle.
These are general principles to be implemented by the European legislator (in so-called “secondary legislation”) and must express their preceptive value in sectoral policies.
These principles have been incorporated into the Italian constitutional system by Article 3b of Legislative Decree No. 152/2006 (Environmental Code).
1) The precautionary principle
The precautionary principle is the willingness to act preemptively in the face of uncertain risks, on an attempt to prevent future harm before it arises.
The precautionary principle originated in international environmental law. A subject of international debate since the 1980s, it was explicitly recognized by the 1992 Rio Declaration on Environment and Development, which states in Article 15 that: «In order to protect the environment, States shall widely apply, according to their capabilities, the Precautionary Principle. Where there is a risk of serious or irreversible damage, the absence of absolute scientific certainty shall not serve as a pretext for postponing the adoption of appropriate and effective measures, including cost-effective measures, aimed at preventing environmental degradation.». Its purpose is, therefore, to prevent serious and irreversible environmental damage by forbidding actions that cause or increase the risk, even in the absence of scientific certainty about their cause
With the Maastricht Treaty, the precautionary principle also entered the positive law of the European Union, being provided for in Article 191(2) TFEU, according to which: «Union policy on the environment shall aim at a high level of protection, taking into account the diversity of situations in the various regions of the Union. It shall be based on the principles of precaution and preventive action (...).». The principle was then further regulated by secondary legislation and, in particular, by the Commission Communication on the Precautionary Principle, Brussels, Feb. 2, 2020.
Later, it was also introduced into the Italian legal system with the Environmental Code, which in the first part (Common Provisions and General Principles) and in particular in Art. 3bis, stipulates that «The protection of the environment and natural ecosystems and cultural heritage must be guaranteed by all public and private entities and natural and legal persons, public or private, through appropriate action that is informed by the principles of precaution, preventive action, correction, as a priority at the source, of the damage caused to the environment, as well as the ‘polluter pays’ principle, which, pursuant to Article 174, paragraph 2, of the Treaty of the European Unions, govern the community's policy in environmental matters.».
2) The principle of prevention
The principle of prevention aims to prevent environmental damage by taking measures to anticipate and avoid the occurrence of damage. In this sense, it is teleologically superimposable on the precautionary principle. Unlike the precautionary principle, the prevention principle is concerned with the anticipation of “certain” and “evident” harm. The precautionary principle responds to the goal of preventing harm resulting from engaging in activities known to be dangerous to the environment and thus taking into account known risks.
The Artegodan judgment (EC Trib., Nov. 26, 2002, T-74/00, Artegodan) of the EC Tribunal affirms in paragraph 184 that the precautionary principle is a general principle and autonomous from the precautionary principle.
The principle of preventive action or prevention is explicitly referred to in international law (thus, for example, for the 1990 Bergen Declaration, States must take measures in order to “anticipate, prevent and attack the causes of environmental degradation”).
The prevention principle was one of the eleven objectives and principles listed in the EU's first environmental action program in 1973. Later, it found application in various policies; in EU waste policy (e.g., incineration, landfill, and wastewater), among water management requirements, in biodiversity protection, in environmental impact assessment, and in other areas of environmental regulation.
Today, the principle of prevention is also mentioned in Article 191(2) TFEU, which states: “Union policy on the environment shall aim at a high level of protection, taking into account the diversity of situations in the various regions of the Union. It shall be based on the principles (...) of preventive action (...).”
Later, it was also introduced into the Italian legal system with the Environmental Code, which in the first part (Common Provisions and General Principles) and in particular in Article 3bis, states that “The protection of the environment and natural ecosystems and cultural heritage must be guaranteed by all public and private entities and by public or private natural and legal persons, through appropriate action that is informed by the principles (...) of preventive action (...).”
3) The principle of correction, as a priority at the source, of environmental damage
The principle of correction, as a priority at the source, of environmental damage refers to the willingness to address environmental damage where it occurs. The principle emphasizes proximity to the source to effectively combat the accumulation of negative externalities. In contrast to the precautionary and prevention principles, the principle of correction, as a priority at the source, of damage operates for cases where, having failed to prevent damage, ex post action must be taken to restore the status quo ante by first addressing the source of the damage found. However, the principle of correction, as a priority at the source, of damage to the environment also expresses an indirect preventive value, inspiring the prevention regulations that intervene on the sources of possible damage.
Today, the principle of prevention is also mentioned in Article 191(2) TFEU, which states: “Union policy on the environment shall aim at a high level of protection, taking into account the diversity of situations in the various regions of the Union. It shall be based on the principles (...) of rectifying, as a priority at source, damage to the environment (...).”
Later, it was also introduced into the Italian legal system with the Environmental Code, which in the first part (Common Provisions and General Principles) and in particular in Article 3ter, states that “The protection of the environment and natural ecosystems and cultural heritage must be guaranteed by all public and private entities and public or private natural and legal persons, through appropriate action that is informed by the principles (...) of the correction, as a priority at the source, of damage to the environment (...).”
4) The polluter pays principle.
The “polluter pays” principle (also referred to as PPP) requires polluters to bear the cost. The “polluter pays” principle aims to overcome “the externalization of the cost of pollution” by requiring polluters to “internalize” the cost of potential pollution in the production process, so that society does not have to bear the subsequent costs.
Today, the principle of prevention is also mentioned in Article 191(2) TFEU, which states: “Union policy on the environment shall aim at a high level of protection, taking into account the diversity of situations in the various regions of the Union. It shall be based on the principles (...) of the polluter pays.” Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, establishes the rules based on the “polluter pays” principle. This means that a company that causes environmental damage is responsible for it and must take responsibility for taking the necessary preventive or remedial action and bear all related costs. The directive was amended in 2019 by Regulation (EU) 2019/1010, which harmonizes and simplifies reporting requirements in environmental legislation. The newly introduced rules, effective June 26, 2019, are as follows.
Subsequently, it was also introduced into the Italian legal system with the Environmental Code, which in the first part (Common Provisions and General Principles) and in particular in Article 3bis, states that “The protection of the environment and natural ecosystems and cultural heritage must be guaranteed by all public and private entities and public or private natural and legal persons, through appropriate action that is informed by the principles (...) of the polluter pays.”