Constitutionalisation of Environmental Protection in EU Law

In her latest publication, Constitutionalisation of Environmental Protection in EU Law, (Europa Law Publishing, 2020) Alicja Sikora makes a tour de force through one of the most complex and legally sensitive topics currently on display in EU law. What is the legal protection that the Treaties provide to the goals of environmental protection, and how can we make sense of the legal provisions governing this matter, particularly after the momentous changes introduced following the Lisbon Treaty?

At a time in which the Green New Deal becomes a priority of the Commission’s agenda, and whilst the European Central Bank has openly launched the debate over the “greening” of monetary policy, this book appears as a timely contribution that will certainly shape the discussion in the legal fora. The issue is not only academic, but a highly practically one and with enormous implications in terms of policy choices. The abstract nature of some of the discussions covered by the book should not fool the reader into believing that these elucidations are for a theoretical purpose only. Quite the contrary, the analysis undertaken by Sikora at a conceptual level will drive lawyers and policy makers into specific decisions, conditioned by the scope, content and legal nature of many of the provisions in the current Treaties and analysed in thorough detail throughout the book.

The book is structured in a way that facilitates the reader’s journey through a complex subject. The clarity of language and exposition is also a positive asset which enhances the book’s virtues. With an opening focusing on the historical evolution of environmental protection in the European Communities and the Union, the book quickly evolves into the legal terrain to focus on the main theoretical issues at hand. What does it mean to enshrine environmental protection in the Treaties, and what does the evolution of the Treaties themselves say about the current status quo? What impact did fundamental rights have in this policy as a result of  the introduction of Article 37 of the Charter in 2009? How did the Convention reach the conclusion that environmental protection needed reinforcement in the Charter? These and other queries are portrayed in their historical context and will serve the reader as a valuable background for the moment in which the author deals with them in detail.

The point that proves most useful (at least in this reviewer’s opinion) is provided in Chapter II, where a thorough textual and conceptual analysis of all the relevant Treaty provisions on environmental protection takes place. The author analyses each one of these provisions with the aim of setting the scene and drawing specific findings from each norm, but interprets them in the broader context of the overall framework. The fact that environmental protection appears in Article 3(3) TEU, but also in Articles 11 and 191 TFEU and in Article 37 of the Charter requires some serious scrutiny in order to clarify what the founding fathers actually intended. The conclusion in the book is very reasonable: the combined reading of Articles 3(3) TEU and 11 TFEU is the result of a process of constitutionalisation of environmental protection, whilst Article 37 is an articulate provision facilitating subjective protection for individuals. The overall result is a coherent system of legal protection with important implications on the practical sphere.

The domain in which such practical implications are shown is that of judicial review. In Chapter IV the author displays an impressive array of case law knowledge and expertise and manages to put some coherence in a usually rather incoherent set of judicial decisions on environmental protection. The theoretical underpinning of the previous chapters helps the reader navigate through a complex and convoluted case law, with the surprising outcome of showing a coherent thread throughout most of the Court of Justice’s rulings on the environment. From issues of competence to matters on the standing of NGOs, the role of constitutionalisation of environmental protection becomes the leit motif of a case law that has gradually reinforced the EU’s environmental goals and policies through the law. Integration through law also can manage to be environmental protection through law, thus proving that the constitutionalisation that the author promotes is not only a speculative proposal based on her own assumptions, but also a practical reality in the Court’s case law.

Of course, not everything is rosy and there are serious challenges ahead. The author does not ignore them and she confronts them directly, sometimes with constructive proposals and at other times with a certain degree of frustration. For example, Article 37 of the Charter is mostly a declaratory right according to the author, who has undertaken a thorough textual and contextual analysis of the provision and the Court’s case law. However, the full potential of this rule can be exploited through a more compartmentalised approach toward environmental protection. In other words, by focusing on environmental policy through its specific compartments, for example in the case of water or clean air policy and law, Article 37 of the Charter can have enormous potential when combined with specific remedies, as is the case of the infringement procedure. Thus, by approaching the issues through a constructive methodology that attempts to maximise the aims of the Treaties, Sikora succeeds in overriding the current limitations and proposes interesting ways forward.

But the main virtue of this book appears in the title itself. Environmental policy in the EU has gone through a process of constitutionalisation, something that was unimaginable two or three decades ago. The basis of Sikora’s theoretical proposals stand firm and she succeeds in giving meaning to a complex, convoluted and not always coherent set of rules, to the point that constitutionalisation seems, at times, like the only way forward for the European environmental policy.

Daniel Sarmiento is a Professor of EU Law (Complutense University of Madrid) and Editor-in-Chief of EU Law Live