Sustainable development

The concept of ‘sustainable development’, which won widespread recognition by the United Nations Conference on Environment and Development in Rio de Janeiro in 1992, was put on the international agenda by the World Commission on Environment and Development. The World Commission, better known as the Brundtland Commission, had been mandated by the UN General Assembly to critically examine issues relating to environment and development, and to propose new forms of international cooperation on these issues. ‘Sustainable development’ is a core concept in the 1987 Brundtland Commission report ‘Our Common Future’ from 19 87.^{[1] [2] [3] [4] [5] [6]} The concept is defined in this document as development that meets the needs of the present without compromising the ability of future generations to satisfy their own needs. The report also highlighted a very strong linkage between economic, social, and ecological aspects of development.

A good deal has been written in international law about the legal status of sustainable development and the possible obligations that may result from its recognition as a political or legal principle.6¹ Generally, the concept has its greatest impact by underlining the need for a long-term perspective, for example in the management of natural resources, and the need to take into account the close relationship and interaction between ecological, social, and economic factors of various types of development. Sustainable development has found expression not only in the environmental legislation of many countries, but also as a main objective in some constitutions.^ The concept has had an obvious effect in the EU too, even if its concrete political and legal effects are not easily discernible.

The idea of sustainable development was the core concept in the Fifth Environment Action Programme. It permeated the contents of the following two Environment Action Programmes and of many other policy and legal documents adopted in the past two decades.

Prior to signing the Treaty ofAmsterdam, several Member States required a direct reference to and further development of the principle of sustainable development in the EU’s basic Treaty. These requirements were met partly by adding ‘sustainable development’ to the objectives that the Union shall try to achieve and now can be found in the objectives under Article 3 (3) TEU.

Environmental aspects were not given a dominant place when the objective of sustainable development was embodied in the Treaty. The Union shall work for the sustainable development of Europe ‘based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment’.^{[7] [8] [9] [10]} However, this is compatible with the idea that economic, social, and environmental aspects must be integrated in order to achieve sustainable development. The same idea is reflected in the fact that the principle of integration of environmental concerns in other policy areas is so prominent in the TFEU. It is clear in Article 11 of that treaty, where the principle of integration of environmental concerns in the other policies of the Union is set out, that the purpose of this integration is indeed to promote sustainable development.

Sustainable development is also mentioned in the introduction to the TEU as a principle to be considered in taking measures to promote economic or social progress.6⁴ Interesting in this provision is that sustainable development is mentioned as a principle and not an aim or a concept. The choice of ‘principle’ in one of the EU’s basic treaties reflects the Member States’ opinion that ‘sustainable development’ has evolved into a legal principled Such an interpretation may also contribute to the crystallisation of its legal consequences and confirmation of its role as a basic and guiding principle for all work within the EU. Sustainable development, together with the principle of integration, is also mentioned in the EU Charter of Fundamental Rights. According to the Charter’s Article 37, a high level of environmental protection and improvement of environmental quality shall be integrated in Union policies and assured according to the principle of sustainable development.^{[11] [12] [13] [14] [15]}

There are a number of problems with defining sustainable development in more concrete terms and translating the principle into practical measures. This is particularly the case when, for example, social and ecological interests (actually or apparently^⁷ conflict.

In addition to the general wording of Article 3 TEU about what sustainable development within the EU should be based on, there is no definition of the principle/concept in the Treaty. A now repealed regulation defined sustainable development as

improvement of the standard of living and welfare of the relevant populations within the limits of the capacity of the ecosystems by maintaining natural assets and their biological diversity for the benefit of present and future generations/⁸

This definition is interesting because it underlines the need to respect the limits of the ecosystem, and thereby the need to identify these limits and to translate that knowledge into action.

What helps us most to understand the meaning of sustainable development in the EU is the Strategy for Sustainable Development initially set out in the Conclusion to the European Council in Gothenburg in 2001. This strategy supplemented the so-called Lisbon strategy, adopted by the Council the year before with the aim of making the Union the most competitive and dynamic knowledge-based economy in the world by 2010, with an environmental dimension.

In its conclusions, the European Council described sustainable development as meeting ‘the needs of the present generation without compromising those of future generations’, which is very similar to the Brundtland Commission’s definition/⁹

The Strategy states that decision-makers must identify each decision’s positive and negative effects on other policy areas and consider them. They must further estimate a proposal’s economic, environmental, and social consequences within and outside the EU when they assess the proposal’s effects/⁰

Further to a public consultation on the Strategy in 2004, the Commission drew up a communication on the progress of the Strategy and proposed orientations for its review. The European Council subsequently adopted a new Strategy for Sustainable Development at its Brussels meeting in 2006.^{[16] [17] [18] [19] [20] [21] [22]} Protection of the environment is one of the four pillars of this Strategy. Although the Gothenburg European Council proved to be a major driver towards the development of sustainable development strategies in EU Member States, EU governance arrangements were not introduced until the EU Sustainable Development Strategy was renewed in 2006.

In that 2006 Strategy document, unsustainable consumption and production patterns and a non-integrating method for defining policies are identified as the main challenges for achieving sustainable development/2 The Strategy identifies a number of ‘key targets’. As regards the environment, these include ‘to preserve the earth’s capacity to support life in all its forms, to respect the limits of the planet’s natural resources and to ensure a high level of protection and improvement of the quality of the environment’.73 The Strategy also contains a list of the main challenges such as mitigating climate change; avoiding overexploitation of natural resources, and thereby recognition of the value of the ecosystem services/⁴ and promoting sustainable consumption and production patterns. For each such challenge, there are operational objectives as well as proposed measures. The objectives in many cases reflect internationally set goals.

The Commission shall publish a report about the implementation of the Strategy for Sustainable Development every two years. The European Council should also every other year provide general policy guidelines, strategies, and instruments for sustainable development based on the Commission’s progress reports.75

In its recent reviews of EU sustainable development, the Commission has listed a series of measures that have been adopted, but at the same time, it emphasises that unsustainable trends persist in a number of areas. Among other things, it is mentioned that demand for natural resources exceeds what the earth can manage in the long term, and that biological diversity worldwide is declining/⁶ The 2015 Commission’s monitoring report of the Strategy for Sustainable Developmen/7 emphasises the close relation between the economic, environmental, and social dimensions of the Strategy. The Commission has evaluated the progress towards sustainable development using several indicators. The conclusion about progress since 2001, when the Strategy was launched, and in the past five years is that weak economic activity in the short term has reduced some pressure on the environment, but overall progress is mixed.

It can be questioned whether the ecological dimension has really been treated as equal to or as a long-term condition for the economic and social dimensions of EU policies. However, the EU has not been markedly more successful in achieving the economic aims of the Treaty of Lisbon than with the ecological aims of sustainable development.

In summary, there is inflation in the use of ‘sustainable development’ in the EU’s various policies, and it is difficult to give the concept a clear content in every specific situation. At the same time, sustainable development is gaining more and more the character of a legal principle. The challenge ahead is to link it clearly to concrete measures. Regarding the environmental dimension of the principle, this linkage can inter alia be achieved through defining—according to the best scientific knowledge—the ecological limits that human activities must respect to be sustainable in the long run, and then connecting them to effective policy instruments. It is also important that the Court of Justice finds the opportunity to directly address the possible legal content of sustainability.^[23]

• [1] p Wenneras The Enforcement of EC Environmental Law (Oxford University Press, 2007) 197.
• [2] Case C-6/99 Association Greenpeace France and Others ECLI:EU:C:2000:148.
• [3] Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee ECLI:EU:C:2004:482.
• [4] 59 Kramer EU Environmental Law (n 26) 6.
• [5] World Commission on Environment and Development Our Common Future (Oxford UniversityPress, 1987).
• [6] See, among others, N Schrijver and F Weiss (eds) International Law and Sustainable Development:Principles andPractice (Martinus NijhoffPublishers, 2004); M-C Cordonier Segger and A Khalfan, SustainableDevelopment Law: Principles, Practices and Prospects (Oxford University Press, 2004). A more theoretical analysis of what sustainable development means in a legal context is provided in M Decleris The Law of SustainableDevelopment: General Principles (Commission of the European Union, 2000).
• [7] See, eg, Constitution of Sweden, Instrument of the Government, Section 1:2, para 3.
• [8] Art 3(3) TEU.
• [9] 64 The ninth paragraph of the introduction to the EU Treaty mentions that the parties are determined to ‘promote economic and social progress for their peoples, taking into account the principle ofsustainable development and within the context of the accomplishment of the internal market and ofreinforced cohesion and environmental protection’.
• [10] This can be compared with the international difference of opinions between, for instance, the EUand the US as regards whether the precautionary principle (as it is called in Europe) is a legal principle,as claimed by the EU, or an approach, as the US emphasise, thereby referring to it as a precautionaryapproach.
• [11] Charter of Fundamental Rights of the European Union [2012] OJ C 326/391, Art 37.
• [12] This tends to depend on the time perspective that is adopted.
• [13] 68 Council Regulation (EC) No 3062/95 on operations to promote tropical forests [1995] OJL 327/9.
• [14] See, eg, Presidency’s conclusions, Gothenburg European Council, 15 and 16 June 2011, SN 200/1/01/REV 1,para 19.
• [15] Communication from the Commission—Sustainable Development in Europe for a BetterWorld: A Strategy for Sustainable Development in the European Union (Commission’s Proposal toEuropean Council in Gothenburg) (15 May 2001) COM(2001) 264 final, Section III, para 2.
• [16] Communication of the Commission—Draft of Declaration on Guidelines for a Sustainable
• [17] Development (25 May 2005) COM(2005) 218 final.
• [18] 72 Ibid, 2. 73 ibid, 3.
• [19] Ecosystem services are functions that are useful, and in certain cases necessary, for human beings.Some examples are insects that pollinate cultivations, water that is purified through natural earth layers,or plants that produce oxygen.
• [20] EU’s Renewed Strategy for Sustainable Development, 10917/2/06 REV 2, 26—7.
• [21] 76 See, eg, Mainstreaming sustainable development into EU policies: 2009 Review of the EuropeanUnion Strategy for Sustainable Development (24 July 2009) COM(2009) 400 final, 2.
• [22] Eurostat, Sustainable Development in the European Union: 2015 Monitoring Report of the EUSustainable Development Strategy (Publications Office of the European Union, 2015).
• [23] The Court has in several cases touched upon aspects of sustainability or indirectly confirmedthe principle’s legal relevance. See, eg, Case C 43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias andOthers ECLI:EU:C:2012:560 in which the Court interpreted the condition in Art 6(4) of the HabitatsDirective (92/43/EEC) that when a plan or project is carried out for imperative reasons of overridingpublic interest, the Member State must take all compensatory measures necessary in the light of theobjective of sustainable development.