The Role of the European Court of Justice in the Protection of the Environment

• Published in: Journal of environmental law 2006, Vol.18 (2), p.185-205
• Main Author: Jacobs, Francis
• Format: Article
• Language: English
• Subjects: Archives & records; Case law; Criminals; Economic integration; Electricity; Environmental conditions; Environmental law; Environmental legislation; Environmental policy; Environmental protection; Environmental treaties; Europe; European Court of Justice; European law; European Union; Human rights; Law enforcement; Legislation; Member states; Objectives; Political action committees; Political activism; Provisions; Treaties
• ISSN: 0952-8873; 1464-374X
• DOI: 10.1093/jel/eql012

More than 700 judgments concerning environmental matters have been given by the European Court of Justice. The Court has performed a difficult task, if not always coherently, but imaginatively, boldly and with broadly satisfactory results. One of the critical areas of case law concerns the reconciliation of market integration and environmental protection. The Court gave environmental protection a constitutional status even before an explicit environmental legal basis existed in the Treaty and has held that the protection of the environment is an acceptable Cassis de Dijon 'mandatory requirement' which national authorities could rely on to justify restriction of movement of goods from other Member States. Yet to date, the Court has sidestepped the question whether such measures can be discriminatory or not. The laudable enthusiasm of the Court to assess such environmental measures favourably should not come at a price of damaging legal certainty, and it should either extend the mandatory requirements generally to national discriminatory measures or explicitly give a more favourable treatment to environmental protection requirements. The case law concerning the application of the principle of proportionality to both Community and national measures also suggests a favourable treatment being given to the environment. The judicial system in the EU concerning the enforcement of Community law is unique. Yet the recent judgment of the Court which held that the environment provisions of the Treaty could provide a legal basis for a Community measure concerning national criminal laws was heavily criticised in the United Kingdom. A closer examination of the judgment suggests that it was not as radical or intrusive as it has been characterised.