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Eric
Engle,  GENERAL PRINCIPLES OF EUROPEAN ENVIRONMENTAL LAW, 17 Penn St. Envtl. L. Rev. 215 (2009).

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I. Introduction

This article outlines the general principles of European environmental law so that common law jurists can understand their potentials and limits as a means to protect the environment. General principles of law are an important source of law in public international law 1 including EU law 2 and an interpretive guide in the national law of civilian states such as France 3 and Germany. 4 They are used deductively and as guides to applying the law. 5 Though general principles of law are important as a source, 6 or at least as a persuasive guide to law in civilian *216 systems, these principles of law do not exist in the domestic law of common law states such as the United States except vestigially in the general principles used in equity proceedings (equitable maxims). 7
General principles of community law 8 were drawn from general principles of national law 9 or general principles of international law, thus from international treaties, equity jurisdiction ex aequo et bono and natural justice including jus cogens. 10 Both national and international law develop the general principles from the principles of natural reasoning, 11 natural law and natural justice. General principles of *217 community law can be embodied in treaties. The Treaty of Amsterdam itself is also a source of general principles. Articles 173 (judicial review of member states' laws against treaties and general principles of law), 12 215 (tort liability of the community founded on general principles of law of the member states), 13 174 (source principle, polluter pays principle, principle of prevention and precaution, discussed infra) 14 and 95(3) (commission guarantee of a high level of environmental protection) 15 of the EU treaty all operate to delineate general principles of community law.

II. Analysis


A. The Nature of General Principles of Community Law

General principles of community law, like the common law, are ius non scriptum, unwritten law, 16 and gain the force of law through custom. *218 General principles of EU law are unwritten and are superior to national law 17 due to the supremacy doctrine of the European Community Treaty. 18 They are also general in character and multiple in number.
The European Court of Justice (“ECJ”) has developed and applied several general principles of law. 19 These principles have not, however, been catalogued in any comprehensive listing. 20 They can be as general as the principle of equality. 21 Of course, stating that there is a “general principle of equality” ignores the question of the content of that principle: “equality of status,” “equality of opportunity,” “substantive equality,” “procedural equality,” “proportional equality” and “progressive equality” are all possible answers to that question. The open texture of the general principles makes them at once useful interpretive tools and ambiguous guides to legal decision making. They enable flexibility but risk caprice.
The general principles are both procedural (interpretative canons of construction) and substantive (fundamental rights). The content of these *219 rights is based on the structure and objectives of the community. 22 Because the general principles are general and unwritten, elucidating their structure and content is problematic. 23 We shall illustrate these principles with some basic examples.

B. General Principles of Law with Indirect Application to the Environment

There is a common law maxim that “for every right there is a remedy,” which has a corresponding equivalent in the general principles of community law. 24 This principle is an indirect source of environmental law. Thus, if there is a right to clean air and water (dependant, say, on the right to life), 25 then there is also a corresponding remedy. 26
Another general principle of community law which is indirectly applicable to the environment is the principle that member states must not legislate contrary to a European directive. 27 The member states cannot seek to frustrate the purpose of the community law through artful legislation. Thus, a community environmental directive cannot be circumvented by artfully drafted national legislation. Violating the spirit of the law through legalism is impermissible.
*220 Two general procedural principles of community action which condition environmental law are proportionality 28 and subsidiarity (Art 3(b)). 29 Proportionality holds that community action may be no broader than needed to achieve the purpose of the legislation. Subsidiarity holds that if there is an area of concurrent jurisdiction, the community should defer to the national laws where such deference is possible. National measures are to be preferred whenever possible and where community measures are to be undertaken, they must be carefully measured to achieve the end sought. These two rules are potentially in conflict with each other. This conflict is intensified in the field of general principles because the communities' general principles, though autonomous from national law, are defined similarly to national general principles. 30 This leads to “tangled hierarchies” as general principles of law exist at the national level in civilian countries, at the EU and in international law. 31
Conflicts between the Member States' and the EU's laws are resolved by the principles of subsidiarity and supremacy. But what happens when general principles themselves collide before the ECJ? The court applies a standard balancing test to determine the prevailing interest. For example, in several cases the court has found that property or other economic rights--which are themselves the subject of general principles--are not absolute but must be contextualised by other rights and general principles, including environmental ones. Thus, the general principles of property rights have been found to be no bar to environmental laws which themselves also express general principles. 32 *221 A similar analysis would apply to conflicts of general principles in the Member States' domestic legal order.

C. General Principles of Law with Direct Application to the Environment 33

1. The Polluter Pays Principle 34
The essence of the polluter pays principle is that the person who introduces a pollutant--whether of the air, the sea, or other medium--should also be responsible for the removal of that pollution. 35 This principle can displace other general principles, such as the right to property. 36 This principle was certainly not recognized at ancient Roman law. Yet, it exists, and this shows that the general principles of law can and do evolve whether by custom or natural reasoning.
The principle that the polluter shall pay is thoroughly economic and is not punitive (though it could also evolve into a principle of penal law) but rather is restitutionary. The principle is economic in that it operates consistently with the laws of the market and reduces costs to society as a whole. The polluter pays principle forces the polluter to internalize the costs associated with his or her production or consumption. Thus it *222 eliminates, at least in theory, the problem of free riders and overusers. In theory, it leads to efficient economic allocation because costs of cleanup and benefits of pollution are closely related.
2. The Source Principle
The source principle is related to the polluter pays principle but is less widely recognized as it is more recent in formulation. The source principle simply states that any form of pollution should be treated as closely as possible to the source. 37 Thus, air pollution should be remedied by stack scrubbers at the source. Water pollution should be remedied by filters at the source. Automobiles should be recycled, incinerated or buried as close to their factory as possible.
This last example helps illustrate one of the problems of the source principle. Any large object in today's industrial society is manufactured continentally if not globally. How could the source principle be applied efficiently, for example, to cars with parts from several different continents? The source principle in practice can only be implemented imperfectly.
3. The Principle of Precaution
The precautionary principle is a part of EU law. 38 It may be part of customary international law as well. 39 The precautionary principle appears in the preamble to the Rio Declaration, 40 but that may be seen as a hortatory aspirational guideline and not as binding, though it could be seen even then as evidence of a binding customary law as opinion juris. In international law, “there is no universally accepted standard definition of the Precautionary Principle.” 41 The principle of precaution arose out of German law and holds that potential pollution should be stopped before it happens--that “the damages done to the natural world . . . should be avoided in advance and in accordance with the opportunity and *223 possibility.” 42 In international law, it is argued that the principle means that “in cases when serious harm is threatened, positive action to protect the environment should not be delayed until irrefutable scientific proof of harm is available.” 43
4. The Principle of Sustainability 44
Another recognized general principle of environmental law is the principle of sustainability. This principle holds that development must be capable of being maintained over the long term and that sustainable production should be favored when possible. Sustainable development is “development which meets the needs of the present without compromising the capacity of future generations to meet their own needs.” 45 However, the aspirational goals or teleological guides that the general principles express do not necessarily result in binding international law. 46 There is no definite consensus on sustainable development internationally. 47

III. Conclusion

The general principles of law, though unwritten and by their very nature vague and ambiguous, can nevertheless be sources of principled and meaningful community environmental law, persuasive evidence for U.S. judges of international law, and interpretive guides for U.S. law. Though the only domestic homologue to the general principles of law are the general principles of equity proceedings and fundamental rights, *224 common law environmental lawyers should be aware of these general principles because much pollution goes across borders and is thus international.
a1. J.D. St. Louis; D.E.A. Paris X, D.E.A. Paris II, L.L.M. (Eur.) Bremen Dr. Jur. Bremen; [email protected]; http:// papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=879868.

1. See, e.g., Cornell University Law School Legal Information Institute, International Law, http://www.law.cornell.edu/wex/index.php/International_law (last visited ** Jan. 3, 2009).

2. The general principles are a source of law of the EU. See, e.g., Case T-83/96, van der Wal v. Commission, 1998 E.C.R. II-545, para. 46 (“It is settled case-law that fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures.”); see also European Commission, Sources of EU Law, http:// ec.europa.eu/ireland/generalinformation/legal_information_and_eu_law/sources_ eu_law/index_en.htm#4 (last visited ** Jan. 3, 2009).

3. See, e.g., L'arret Aramu (Conseil d'etat 26 octobre 1945) [highest administrative court] (Fr.).

4. See, e.g., Lexetius.com, Bundesverwaltungsgericht, http:// lexetius.com/2006,3157 (last visited ** Jan. 3, 2009) (stating that general principles of law determine the characteristics of laws which they serve to complete).

5. See, e.g., Mark J. Roe, Legal Origins, Politics, and Modern Stock Markets, 120 Harv. L. Rev. 460, 469 (2006).

6. See Statute of the International Court of Justice art. 38(1), June 26, 1945, 59 Stat. 1031. In fact, however, the basis of general principles of law as a source of international law is found in natural law. See Aaron Judson Lodge, Globalization: Panacea for the World or Conquistador of International Law and Statehood?, 7 Or. Rev. Int'l L. 224, 292 (2005); Jon M. Van Dyke, The Role of Customary International Law in Federal and State Court Litigation, 26 U. Haw. L. Rev. 361, 381 (2004); Joel Brandon Moore, The Natural Law Basis of Legal Obligation: International Antitrust and OPEC in Context, 36 Vand. J. Transnat'l L. 243, 273-75 (2003). Further, the ICJ is a creature of treaty, not custom. As such, states may choose not to be bound by its decisions. Its decisions do not have binding value as precedent but are only persuasive evidence of law. Furthermore, general principles of law were a source of law long before the ICJ was constituted. General principles of law are a source of international law.

7. See, e.g., Joseph R. Sozzani, Patent Law: Redefining Equitable Injunctions: Mercexchange, LLC v. Ebay, Inc., 11 J. Tech. L. & Pol'y 341, 344 (2006) (“Courts apply general principles of equity in determining the propriety of granting an injunction.”).

8. See Aron Mifsud-Bonnici, The role of the Court of Justice in the development of the General Principles of Community Law (1996), available at http://www/mifsudbonnici.com/lexnet/articles/artgenpric.html (“General principles of law can be found in all legal systems. Their function is clearly to assist where written sources of law have failed to provide an answer, since the latter can hardly cover all questions which come before the Courts. The development of general principles has, within the Member States of the European Community, taken place over a number of years. The European Court of Justice (ECJ) has developed a doctrine that rules of Community law may be derived from general principles of law in addition to treaties and EC legislation.”).

9. See generally Case C-260/89, Tileorassi v. Pliroforisses, 1991 E.C.R. I-2925; Case C-309/96, Annibaldi v. Sindaco del Comune di Guidonia, 1997 E.C.R. I-7493.

10. See Annibaldi, 1997 E.C.R. at para. 12 (“It should be observed at the outset that, as the Court has consistently held ... fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (‘the Convention’) has special significance in that respect. It follows that the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed.” (citations omitted)).

11. See generally Jean Jacques Burlamaqui, The Principles of Natural Law (Thomas Nugent trans., Cambridge Univ. Press 5th ed. 1807) (1748), available at http://www.constitution.org/brla/burla_1.htm (demonstrating a typical example of the natural reasoning which is the theoretical foundation of general principles of law, which is apparently not a pseudonym of Jean Jacques Rousseau, despite stylistic similarities). Enlightenment theories of natural law reiterated the more well known theories of natural law as based on natural reasoning (Aristotle, Cicero, Acquinas, among others), but did so from an empirical-individual base rather than from a holistic-theoretical perspective. This, however, would prove to be the undoing of much of ius naturale; absent an epistemological priority of the ideals (eidos, i.e. forms), moral principles, and goals of natural justice, the theory of natural justice founded upon natural reasoning degenerated within two centuries to the base positivism of natural law--i.e. the law of the strongest. This degeneration of legal thought was due to a failure to understand dialectical materialism even among supposedly Marxist authors. Truth is of course dialectical--it arises only out of the conflict of ideas and is grounded in material reality. Most natural law theory (not Aristotle nor Hobbes!) is, in contrast, idealist and believes, wrongly, that ideas exist independent of reality. Ideas are only reflections of matter, not the other way around.

12. See Mifsud-Bonnici, supra note 8 (“Article 173 deals with judicial review and specifies the grounds upon which an annulment can be based. The first paragraph of the Article includes the words ‘... infringement of this Treaty, or of any rule of law relating to its application...’. Therefore, the phrase ‘any rule of law’ must necessarily refer to something other than the Treaty itself. This Article has been used by the ECJ as a basis for the principle that an act of the EC may be quashed for the infringement of a general principle of law.”).

13. See id. (“Article 215 (second paragraph) is concerned with non-contractual liability, or tort, and expressly provides that the liability of the Community is based on the “general principles common to the laws of the Member States.”).

14. See European Parliament, Environment Policy, http:// www.europarl.eu.int/factsheets/4_9_1_en.htm (last visited ** Jan. 3, 2009) (“Under Article 174 (ex. 130r(2)) of the EC Treaty, Community environment policy rests on the principles of precaution, prevention, rectifying pollution at source and ‘the polluter pays.’ Article 95(100a)(3) of the EC Treaty expressly states that ‘health, safety, environmental protection’ must take as a base ‘a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers the European Parliament and the Council will also seek to achieve this objective.’ The Union thus pursues an active policy to protect the soil, water, climate, air, flora and fauna. But in accordance with the subsidiarity principle (* 1.2.2.) the Union will tackle environmental problems only when it can deal with them more effectively than national or regional government.”).

15. See id.

16. See Thierry Smets, Les sources du Droit, http:// users.skynet.be/sky19192/lessourc.htm (last visited ** Jan. 3, 2009) (translating in English to the following: “There are, moreover, numerous unwritten rules which are admitted by the collective conscience and which appear so evident that the legislator does not deem it necessary to specify them in a legal text.”).

17. See Sources d'Europe, Centre d'Information sur l'Europe, Droit communautaire, http://www.info-europe.fr/europe.web/document.dir/fich.dir/QR001038.htm (last visited ** Jan. 3, 2009) (translating in English to the following: “Above national law, community law has constraining effects with regard to the Member States and their residents and carries a unified legal protection to all European citizens (norms of safety, for example). Community law rests on general principles which, although unwritten, impose themselves at the time of the editing of all the texts of community law: the rule of law, the protection of fundamental rights, the non-cumulation of sanction.”).

18. See Treaty Establishing the European Community art. 5, Dec. 24, 2002, 2002 O.J. (C 325) 41-42 [hereinafter EC Treaty]. See generally Case 26/62, N.V. Algemene Transp. v. Nederlandse Administratie de Belastingen, 1963 E.C.R. 1; Case 6/64, Costa v. E.N.E.L., 1964 E.C.R. 585.

19. See Case 122/78, SA Buitoni v. Fonds d'orientation et de régularisation des marchés agricoles, 1979 E.C.R. 677, 684 (discussing the principle of proportionality); see also Case 265/78, Ferwerda v. Produktschap voor Vee en Vlees, 1980 E.C.R. 617, 630 (discussing the principle of legal certainty).

20. See Case C-361/97, Rouhollah Nour v. Burgenländische Gebietskrankenkasse, 1998 E.C.R. I-3101, para. 1 (“In its case-law the Court of Justice of the European Communities has developed and applied numerous general principles of law. These general principles of law include principles which apply in a State governed by the rule of law, such as the principle of proportionality ... the principle of legal certainty.... There is, however, no comprehensive catalogue of fundamental rights in Community law. Reference is made to Recommendation R(94) 12, adopted by the Committee of Ministers of the Council of Europe on 13 October 1994, on the independence, effectiveness and role of judges, which provides inter alia that the term of office and salary of judges must be guaranteed by law.” (citations omitted)).

21. See Case C-309/96, Annibaldi v. Sindaco del Comune di Guidonia, 1997 E.C.R. I-7493, para. 18 (“Under the second subparagraph of Article 40(3) of the Treaty, the common organization of the agricultural markets to be established in the context of the common agricultural policy must ‘exclude any discrimination between producers or consumers within the Community.’ That prohibition of discrimination is merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law.”).

22. See European Disability Forum, Guide to the Amsterdam Treaty, http://www.edf-feph.org/Papers/teudocs/en/gat4-en.htm#I (last visited ** Jan. 3, 2009) (“The European Court of Justice, which has the task of interpreting Community law, has developed a number of general principles to assist it in its interpretative task. These general principles are not listed in the Treaty. Rather, they are based on constitutional principles shared by the Member States and on the nature, structure and objectives of the Community. Respect for fundamental rights is explicitly stated by the European Court of Justice to ‘form an integral part of the general principles of Community law.”’).

23. See Mifsud-Bonnici, supra note 8 (“General principles of law can be divided into three groups, namely, principles of administrative legality and due process, the economic pillars of the internal market, and fundamental rights. There are, however, a number of important general principles which straddle all three categories. Equality would be a typical example.”).

24. See Case T-172/98, Salamander v. European Parliament and Council, 2000 E.C.R. II-2487, para. 78.

25. See Jerry V. DeMarco, The Supreme Court of Canada's Recognition of Fundamental Environmental Values: What Could Be Next in Canadian Environmental Law?, 17 J. Envtl. L. & Prac. 159, 177 (2007) (“There is an obvious area of overlap between the human health aspects of environmental rights and the ‘right to life, liberty and security of the person’ in s. 7 of the Charter.”).

26. See Marbury v. Madison, 5 U.S. 137, 144 (1803). Note, however, that simply having a remedy doesn't mean that the remedy is in the hands of the holder of the right.

27. See Salamander, 2000 E.C.R. at para. 35 (“That prohibition of any action contrary to the objectives of a directive should be regarded as a general principle of law which must be observed both by the public-law bodies of the Member States and by all subjects of private law such as the applicants.”).

28. See Case T-125/96, Boehringer Ingelheim Vetmedica GmbH v. European Union, 1999 E.C.R. 1-008, para. 73 (“The principle of proportionality has been recognised in settled case-law as one of the general principles of Community law. According to that principle, measures of the Community institutions must not go beyond what is appropriate and necessary for achieving the objectives legitimately pursued by the measure in question, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least restrictive and that the disadvantages caused must not be disproportionate to the aims pursued.”).

29. See Mifsud-Bonnici, supra note 8 (“The concept of subsidiarity must be distinguished from the other general principles discussed above. This is because, unlike the above principles, it is not a creation of the ECJ but is indeed a written provision introduced by the Maastricht Agreement. The second paragraph of Article 3b of the EC Treaty as inserted by the said Agreement reads: ‘In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.”).

30. See Stephen B. Land, Strange Loops and Tangled Hierarchies, 49 Tax L. Rev. 53, 83-84 (1993).

31. See id.

32. See Boehringer, 1999 E.C.R. at para. 103 (“As regards, more particularly, the impact of the measures in question on the economic interests of the applicants, the Court held in Case T-113/96 Dubois v. Council and Commission [1998 ECR II-125, paragraphs 74 and 75, that, whilst the freedom to pursue a trade or profession forms part of the general principles of Community law, that principle does not constitute an unfettered prerogative, but must be viewed in the light of its social function.”).

33. See Alfred Rest, International Environmental Law in German Courts, 27 Eur. Pub. L. 409, 409 (1997), available at http:// www.xcom.it/icef/abstracts/rest2.html (“As to various environmental law principles, belonging today to customary law ... some were also incorporated into national laws. The precautionary principle for example is anchored in section 5 para.1 of the Federal Act for Protection against Emissions.... The polluter-pays-principle lays the foundation for the Environmental Liability Act of 1990.... Whilst the principle of early information is incorporated in the Environmental Information Act of 1994 ... the environmental impact assessment is ruled by the law on Environmental Impact Assessment of 1990.... Both Acts also implement EC Directives... these general international environmental concepts are also incorporated into national laws and thereby directly applicable.” (citations omitted)).

34. See European Parliament, Environment Policy, supra note 14 (“Under Article 174(130r)(2) of the EC Treaty, Community environment policy rests on the principles of precaution, prevention, rectifying pollution at source and ‘the polluter pays.”).

35. See Case C-293/97, The Queen v. Secretary of State for the Environment, 1999 E.C.R. I-2603, paras. 51, 52.

36. See id. at paras. 91-95 (“The powers conferred on the Community legislature by Article 130r of the Treaty must therefore be taken as the framework within which to examine whether the measures in issue comply with the polluter pays principle.... There are two aspects to that principle.... It must be understood as requiring the person who causes the pollution, and that person alone, to bear not only the costs of remedying pollution ... but also those arising from the implementation of a policy of prevention.... It can therefore be applied in different ways.... Thus, it may be applied either after the event or preventively before the harm occurs.”).

37. See id. at paras. 51, 52.

38. See EC Treaty, supra note 18, art. 174.

39. See Natasha Affolder, Domesticating the Exotic Species: International Biodiversity Law in Canada, 51 McGill L.J. 217, 229 (2006).

40. See United Nations, Rio Declaration on Environment and Development, Report of the United Nations Conference on the Human Environment (1972), available at http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163.

41. Nadine Barron & Ed Couzens, Intellectual Property Rights and Plant Variety Protection in South Africa: An International Perspective, 16 J. Envtl. L. 19, 21 (2004).

42. Shawn Kolitch, The Environmental and Public Health Impacts of U.S. Patent Law: Making the Case For Incorporating a Precautionary Principle, 36 Envtl. L. 221, 243 (2006).

43. Barron & Couzens, supra note 41, at 21.

44. See European Parliament, Environmental Policy, supra note 14 (“The Treaty of Amsterdam has heightened the profile of European Union environment policy. Changes to the preamble and Article 2(B) of the EU Treaty strengthen the principle of sustainable development, so that it is now one of the EU's main objectives.”).

45. World Comm'n on Env't and Dev., Our Common Future: Report of the World Commission on Environment and Development 40 (Oxford Univ. Press 1987).

46. See generally Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002) (demonstrating an alien tort claim for pollution in combination with injury to the right to life rejected).

47. See George Van Cleve, Regulating Environmental and Safety Hazards of Agricultural Biotechnology for a Sustainable World, 9 Wash. U. J. L. & Pol'y 245, 252 (2002) (“There is no formal global consensus on environmental principles or policies necessary to create a sustainable environment. In part, this results from the U.S.'s refusal to ratify significant international environmental agreements over the past two decades. These include the Convention on Biological Diversity, which was an outgrowth of the Rio de Janeiro Summit; its offshoot, the Cartagena Protocol on Biosafety; and the Kyoto Protocol on Climate Change.”).