A large part of European conservatives seems poised to hollow out the project that was supposed to be the legacy of their very own Commission President Ursula von der Leyen. However, it will be posited here that their drive is at odds with the European constitutional framework, which should be read as containing a general principle of ‘environmental and climate-political non-regression’.
The current backlash against ‘green’ rules
In late June, the European Commission announced to revoke its proposal for a ‘Green Claims Directive’, which it had published two years ago with the aim to protect consumers from misleading claims about the environmental impacts of products and services, thus contributing to its broader initiative to move towards a circular economy. The announcement caused some turbulences in Brussels, leading the Commission to (re)reverse course within a matter of days. Nevertheless, the future of the (proposed) Directive seems very much uncertain. To fully understand why this legislative file led to so much tension and flip-flopping within Brussels, one has to understand the broader trends this move exemplifies.
While the first term of Commission President Ursula von der Leyen saw the announcement of the European Green Deal as its centerpiece – reacting to the obligations of the Paris Agreement and to widespread student climate protests throughout the continent – political tides and narratives have shifted since. Dovetailing with trends seen across the pond and elsewhere, “cutting red tape” and “competitiveness” are the new buzzwords leading into von der Leyen’s second term. Early on, that sparked fears that under the guise of ‘cutting red tape’ important achievements of the Green Deal might be watered down, (cf. Calliess and Eller/Duval). During the last months it became clear that those fears were indeed justified. In late February the Commission announced the first of multiple so-called ‘Omnibus’-packages, aimed at ‘simplifying’ various requirements of the Corporate Sustainability Due Diligence Directive and the Corporate Sustainability Reporting Directive. A move that inter alia exempts companies from the duty to implement corporate climate plans and which scholarly commentators have simultaneously described as “unlikely to ease administrative burdens meaningfully” and “weakening measures to manage climate-related risks”. In May, the Commission announced another round of ‘simplification’ in the Common Agricultural Policy further decoupling it from Green Deal ambitions. In June, the European legislator eased car makers’ obligations regarding CO2 emission performance standards, while the European Peoples Party remains committed to wholesale scrap the requirement for new passenger cars to run emission free starting 2035. And while the Commission at the beginning of July proposed an ambitiously sounding climate goal for 2040, various ‘flexibilities’ (e.g. the possibility to use carbon credits) have been introduced to appease conservative-led governments and MEPs. The list could go on.
It is crucial to note, that many of those examples reveal not a mere push for ‘simplification’ but rather deregulation and are often proposed without conducting an environmental impact assessment as principally required by the Commission’s Better Regulation Guidelines. For anyone concerned about the increasingly visible consequences of the ecological polycrisis on the livelihood of European citizens, this trend of backtracking should be worrying.
Non-regression as a general principle of EU law?
In light of the fact that the current regulatory framework already seems insufficient to set the EU on course to meet its own climate targets, scholarly debate has started whether there might also/even be constitutional safeguards preventing such backsliding.[1] Adding to this debate I will propose in what follows, that ‘environmental and climate-political non-regression’ should indeed be recognized as a general principle of EU law.
First, a quick reminder of the role of general principles in the European constitutional framework is necessary. Although many aspects thereof remain debated, a quick sketch of pertinent characteristics must suffice for this contribution. The concept of general principles of EU law has been steadily developed in the CJEU’s case law since the Union’s beginnings in the European Coal and Steal Community and evolved most prominently in the realm of fundamental rights, (see e.g. the cases Stauder and Internationale Handelsgesellschaft). To establish general principles the Court typically adopts a comparative approach, drawing from both international law and Member States’ constitutional traditions, (see e.g. Nold v Commission para 13). However, the CJEU sometimes also draws on the EU Treaties themselves, for example by recognizing the general character of principles enshrined in specific chapters of the Treaties, (see Artegodan GmbH and Others v Commission paras. 181 et seqq). Once established, general principles are regarded as an autonomous source of EU law on the same rank as primary law (Audiolux para 63). From this ‘constitutional status’ three main functions of general principles are derived. They serve (1) to guide interpretation of Union law, (2) to fill normative gaps within the Treaties or EU legislation, and lastly (3) as grounds for judicial review. Crucially, this third function enables the CJEU to declare void any EU legislation (or set aside national legislation falling within the scope of EU law) that contravenes a general principle.
Starting from this understanding of general principles, let us now turn to the question whether ‘environmental and climate-political non-regression’ should be regarded as such.
Firstly, there is a comparative argument to be made, given that the concept of environmental non-regression is already rooted at the various levels of the regulatory framework on the climate and environmental crises. On the international level, the concept can inter alia be found in international investment and trade law since the 1990s. The investment and trade agreements between the EU and third countries typically contain a clause prohibiting the parties to seek comparative advantages by dropping environmental standards, (see recently e.g. Article 391(2) ‘Brexit-Agreement’). Furthermore, the concept is emerging in international environmental law binding the EU and its Member States. The Paris Agreement is based on the notion of constant progression, essentially being the flip-side to non-regression. This can inter alia be seen in the parties’ obligation to continuously update their nationally determined contributions requiring a “progression beyond the Party’s then current nationally determined contribution”, (see Article 4(3)). Additionally, the concept is already rooted in various European legislative files (e.g. Article 6(2) Habitats Directive and Article 4(1)(a)(i) Water Framework Directive) and also recognized in several Member States. Ever since 2006 the Belgian Constitutional Court interprets the right to the protection of a healthy environment enshrined in Article 23 of the Belgian Constitution as containing “une obligation de standstill”, prohibiting unjustified regressions, (here para. B.10.). In Germany most scholars seem to agree that Article 20a Grundgesetz (GG) contains a notion of environmental non-deterioration, although scope and contours of that notion remain contested.[2] In its famous ‘climate order’ (internationally better known as the Neubauer case) the Federal Constitutional Court seemed to agree, noting in an obiter dictum that any weakening of climate goals would have to be justified in light of Article 20a GG, (para. 212). Lastly, in France a “principe de non-régression” was introduced more recently, although not through constitutional amendment but on the legislative pathway.
In light of the important implications of general principles for the horizontal and vertical division of powers in the Union, some readers may still not be convinced by the comparative argument outlined so far. After all, is the concept not embedded rather implicitly than expressly within the Paris Agreement? And is its proliferation on Member State level not far away from constituting a critical mass or even providing clear contours of such potential principle? To be truly compelling the argument for a general principle of environmental non-regression might thus need a supporting column within primary law itself. It is purported here, that Articles 11 and 191 TFEU read in conjunction with Article 37 CFR could serve as such a supporting column. Article 11 TFEU obliges the Union to integrate environmental protection requirements into its policies and activities. Given its clearly obligatory language (‘must’) and its history of being constantly reinforced by the pouvoir constituent it can serve as a first anchoring point for a general principle limiting legislative discretion. Article 191 TFEU and Article 37 CFR provide further context on the ‘environmental protection requirements’ which have to be integrated. Mirroring Article 3(3) TEU, both norms require the Union to improve the quality of the environment. The idea of improvement, firmly rooted in these provisions, is incompatible with environmental backsliding, or even with mere standstill.[3] Read together, these norms thus build a supporting column for a general principle of environmental and climate-political non-regression, strengthening the comparative argument.
Responding to likely critics
Given that such principle would allow the CJEU to review and potentially nullify EU action backtracking from previous environmental standards or set aside national regressions within the realm of EU law, it is likely to face some criticism. In this final section I want to address two of such potential critiques.
First, a recognition of such principle could spark fears of judicial activism, and the unduly trespassing upon legislative terrain (cf. the recent arguments for broad judicial deference to legislative choices from van den Brink). Given the superior demo(i)cratic legitimacy of the (European and national) legislator, such concerns should not be brushed away lightly. However, they are attenuated in various ways. Crucially, the recognition of a principle of environmental non-regression would not take environmental issues off the political agenda. It would not be the CJEU drawing up environmental policies, rather discretion remains firmly within the hands of the legislator. This discretion would merely be provided with a constitutional baseline. Or put differently, it is still the ‘tandem bicycle’ of the national and European legislator (with all its democratic legitimacy) drawing up every detail of environmental policy along its way. The tandem is just forced to cycle up a slightly inclined road, stripped of the possibility to freewheel down the next decline. Furthermore, such ‘trias politica concerns’ could be alleviated by attaching a relative rather than absolute character to the principle, hence still allowing certain regressions if they are justified by a proportionate pursuit of another general interest of the Union. However, the review of justifiability would have to become stricter – e.g. by only allowing regressions for exceptional reasons of overriding public interest – the further the Union strays from the pathway to meet its environmental and climate goals. Otherwise, environmental policy could suffer a ‘death by a thousand cuts’.
Second, concerns about limited judicial capacity to adjudicate in complex environmental matters – often levied against climate litigation in recent years – can also be circumvented. I believe, the epistemic hurdles would not be insurmountable if the standard of judicial review applied by the CJEU would be normative rather than material. It is well within the capacity of the Court to assess whether legal backtracking occurs, inter alia through any reduction in scope, stringency, or level of enforcement of the previous normative framework protecting the environment and climate. That the Court itself seems comfortable to assess whether a regression from previous normative levels of protection occurs can be seen when looking at the Court’s Repubblika ruling, (paras 60 et seq.).
Conclusion
To sum up, I believe there is a serious case to be made for the recognition of a general principle of environmental and climate-political non-regression, drawing from both comparative arguments and primary law itself. Likely criticism can be attenuated by refining the standard of judicial review attached to it. If recognized, it could provide a constitutional baseline, preventing the most shortsighted deregulatory impulses. In doing so it could impede the pendulum of environmental policy from swinging back and forth too erratically and provide continuity needed in these times of fundamental economical and societal adaptation.
[1] The authors thoughts were inter alia inspired by the idea of constitutional safeguards voiced by Clemens Kaupa at a recent Seminar at the University of Amsterdam,
[2] see Wiedmann (n 1) with further references.
[3] Similar, but understanding non-regression not as a self standing general principle but rather an element of the high level of environmental protection the Union aims for: Nicolas de Sadeleer, EU Environmental Law and the Internal Market (OUP 2014), 45; Delphine Misonne, ‘The Importance of Setting a Target: The EU Ambition of a High Level of Protection’ (2015) 4 Transnational Environmental Law 11.
Simon M. Mauer studied law at Goethe University Frankfurt and Utrecht University. He has a special interest in European constitutional law and in the green transition.
*This contribution is a shortened and pointed version of the author’s Master Thesis, recently handed in at Utrecht University.