Nature and limits of the environmental objectives

The development described above has resulted in formulation of the EU environmental objectives in Article 191 (1) TFEU as follows:

Union policy on the environment shall contribute to the pursuit of the following objectives:

• — preserving, protecting and improving the quality of the environment;
• — protecting human health;
• — prudent and rational utilization of natural resources;
• — promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

A core issue for understanding EU environmental law—and indirectly its environmental policy—is of course what is meant by ‘environment’ in this context. In addition to such fairly obvious things such as conservation of biological diversity and protection against pollution, the Union’s environmental policy also embraces more indirect protective measures such as liability for environmental damage, penal sanctions for breach of environmental rules, access to environmental information, and the right to participate in decision-making on major industrial and other activities that may affect the environment. The cultural environment, also, is partly covered by environmental rules. For instance, assessment according to the directive on environmental impact assessment covers both direct and indirect effects of a project on material resources and the cultural heritage.^{[1] [2] [3] [4] [5] [6]}

The ambition ‘to improve the environment’ refers primarily to situations where the environment has been adversely affected by human activities and improvement has the character of restoration. However, it is difficult or impossible in many cases to define a ‘natural’ state of the environment if one by that means a state where nature is unaffected by human beings: human activities have affected nature to a greater or lesser extent virtually everywhere. And, as noted previously, the cultural environment is itself sometimes described as one of the factors to be protected by environmental law measures.

The second environmental objective is to protect human health. This eliminates any doubt about the environmental nature of measures such as the protection of drinking water; such measures are neither market-related rules nor purely environmental ones. The objective also emphasises the intimate connection between the state of the external environment and the ability of human beings as a part of biological diversity to maintain good health^⁹ It is obvious that the protection of human life and health when threatened by external environmental factors and hazardous activities is a subject for environmental policy. On the other hand, protection of the working environment is separately regulated in the EU2° (even if considerable overlapping occurs with environmental rules and particularly rules relating to the internal market). The same goes for the fight against the major health scourges.21

Questions relating to the protection of animals generally fall within the EU’s agricultural policy, but the distinction is not entirely clear and some aspects of animal protection exist in rules adopted on the other legal bases, for example environmental protection.22

Rational use of natural resources is the third objective. The term ‘natural resources’ is not defined. In academic publications and policy documents, it receives a rather broad definition.2³ It therefore covers both living and non-living resources and includes energy. ‘Rational utilisation’ seems to refer to the sustainable use of natural resources. Such use requires that the rights of future generations not be compromised for the meeting of the needs of the current generation.

The last objective in Article 191 (1)—the promotion of measures at international level to deal with regional or worldwide environmental problems, and in particular climate change—contains no new obligation, but only confirms long- term EU practice, as witnessed in the numerous regional and international agreements to which the EU is party. The question of the geographical boundaries of environmental policy is considered further presently.

Note that objectives are just objectives, and to give them effect they must be transformed into concrete measures decided according to the legislative procedures enshrined in Article 192 TFEU. They give no clear answer as to what legislative measures shall be adopted or how they should be formed. As the Court of Justice has expressed it, in this provision only the Union’s general objectives for the environment are defined since the current Article 191 TFEU leaves it to the Council of the European Union to decide what measures shall be adopted.^{[7] [8]}

The Council, now usually together with the EP, has thus a significant possibility to make its own assessment. For example, there is no requirement for ‘equal treatment’ of various environmental problems. A legal act may treat a certain negative effect on the environment of a substance (for instance depletion of the ozone layer)25 without simultaneously treating another effect of the same substance (for instance contribution to climate change).^[9]

• [1] Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain publicand private projects on the environment [1985] OJ L 175/40. Protection of the cultural patrimonymust also be taken into consideration when locating landfills according to Council Directive 1999/31/EC on the landfill of waste [1999] OJ L 182/1, Annex 1.
• [2] This reflects the view expressed in the 1972 Declaration of the United Nations Conference on theHuman Environment (Stockholm Declaration) (Stockholm, 16 June 1972) (1972) 11 ILM 1416 andthe 1992 Rio Declaration on Environment and Development (Rio de Janeiro, 14 June 1992) (1992)
• [3] 31 ILM 874.
• [4] 2° Art 153 TFEU. 21 Art 168 TFEU.
• [5] See, eg, Council Directive 1999/22/EC of 29 March 1999 relating to the keeping ofwild animalsin zoos [1999] OJ L 94/24.
• [6] J H Jans and H H B Vedder European Environmental Law (4th edn, Europa Law Publishing,2012) 37.
• [7] Case C-378/08 Raffinerie Mediterranee (ERG) ECLI:EU:C:2010:126, para 45; Case C-379/92Peralta ECLI:EU:C:1994:296, para 53.
• [8] CaseC-341/95 Bettati ECLI:EU:C:1998:353, paras 42—44.
• [9] 26 L Kramer EU Environmental Law (7 th edn, Sweet & Maxwell, 2012) 8.