GENERAL PRINCIPLES OF EUROPEAN ENVIRONMENTAL LAW,
17 Penn St. Envtl. L. Rev. 215 (2009).
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
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
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.
A. The Nature of General Principles of Community Law
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.
They are also general in character and multiple in number.
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.
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
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
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.
Two general procedural principles of
community action which condition environmental law are
proportionality 28 and subsidiarity (Art
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
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
A similar analysis would apply to
conflicts of general principles in the Member States' domestic
C. General Principles of Law with Direct Application to the
Polluter Pays Principle 34
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.
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.
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.
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.
Principle of Precaution
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
Principle of Sustainability 44
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
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];
1. See, e.g., Cornell
University Law School Legal Information Institute, International
(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
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
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.
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
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
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
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
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
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
19. See Case 122/78, SA
Buitoni v. Fonds d'orientation et de rÃ©gularisation des marchÃ©s
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
20. See Case C-361/97,
Rouhollah Nour v. BurgenlÃ¤ndische 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
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
37. See id. at paras. 51,
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.”).