The European Union, its member states, and the right of Environment

“Canada, the most affluent of countries, operates on a depletion economy which leaves destruction in its wake. Your people are driven by a terrible sense of deficiency. When the last tree is cut, the last fish is caught, and the last river is polluted; when to breathe the air is sickening, you will realize, too late, that wealth is not in bank accounts and that you can’t eat money”(Osborne, 1972). These words by Alanis Obomsawin an Abenaki from the Odanak reserve during the 20th century, still hardly echoed our present situation, for most of our contemporary states. The choice of this strong words for the beginning of this research wasn’t made to sound defeatist or alarmist, but to highlight the close link between humankind and earth, and how his anthropomorphic relationship with it is currently unstainable. The environment is defined as the surroundings or conditions in which a person, animal, or plant lives or operates(“Environment | Meaning of Environment by Lexico”, 2020). But a second definition can be found: the environment is also “The natural world, as a whole or in a particular geographical area, especially as affected by human activity”(“Environment | Meaning of Environment by Lexico”, 2020). It should not simply be seen as something that should serve us and can therefore only be evaluated in terms of what it brings us. There are indeed many different theories and opinions on the question of the value of the environment and how it should be interpreted (Pearce, 1994). For this paper, however, we consider that everything that is not “human” has an intrinsic value, a natural right to exist which must then be protected as such, just as our fundamental rights.

If the environment has a value of its own, it is then in our duty to respect it. It means above all not harming it, but it goes further than simply not polluting or destroying, it also means building and consuming in harmony the natural balance of resources (example: eating seasonal products, respecting life cycle of plants etc.). Environmental protection affects all areas of our society: agriculture, industry, construction etc. It is therefore not an isolated right, but one that infuses and is integrated into all the tendencies of our current societies. Moreover, the protection of the environment (and therefore the laws related to it) covers many notions such as pollution, preservation of biodiversity, finiteness of resources, recycling, sustainable development and ecological footprint.

It is this transversal aspect of environmental protection that leads to one explanation of the legal and political interest that it aroused. Because it is not enough to leave it up to each individual to take responsibility on his or her scale for respecting the surrounding world, it is also necessary for the institutions and states to create a bigger scale legal framework (e. g. energy production, waste treatment, standards for household products).

As an additional issue, environment protection cannot simply be tackled within the national framework, since borders do not stop people, natural disasters or global warming. It hastily appeared that environmental issues call for international measures. With the opening of markets and borders, for example, environmental regulations inevitably risk becoming problematic if trading states do not legislate consistently on the subject (Zugravu, 2009).

And with spatiality, temporality must also be taken into account. A protective regulation can’t be effective if it is being changed on the whim of political actors. Environmental policies take as long to be fully implemented as it does to be effective. A perfect and indeed recent example is the slow healing of the ozone layer, mostly due to the 1987 Montreal Protocol (Boyle, 2020). It is therefore essential to have a legislative framework that can go beyond the political contingencies of countries, and that allows a constant and durable commitment.

The European Union, as a supranational institution, can meet these demands. It is a voluntary inter-state association of European countries in the economic and political fields to guarantee peace in Europe and ensure economic and social progress. Taking the place of the European Economic Community (EEC), it was created on 1 November 1993 with the entry into force of the Maastricht Treaty. Even if environmental concerns were not always independently its subject of concern, it was diffuse into its fields of actions because economic growth and social progress are areas where environment is deeply important.

In the first part, the objective of this paper is to present the evolution of environmental law in the European Union, with the question: Has the European Union been able to put in place an effective policy and legislation given the increasingly urgent problem of environmental protection? In the second part, we will look at a smaller scale, namely the member states, to reflect and enlighten how the decisions of the European Union can impact them directly. The focus will then be on 2 member states in particular: France and Germany, since they have very different state functions, and therefore allow us to see different reactions.

Part 1: Evolution of the Right of the Environment within the European Union.

It must first of all be recognised as a promising construction in this area, although the current balance sheet is still fragile on many points (I), although it must highlight its ambitions that go beyond its territory and time to respond as well as possible to the globality and sustainability of the problem (II).

I. Europe’s position on the environment: a promising construction with a still precarious balance sheet

The European Union, by its unique functioning and the scope of competence and action, has been able to integrate the environmental issue exponentially into its decisions (A). Yet, it is also its unique relation to the sovereignty of States that prevent it to produce results lower than what could be achieved (B).

• The incorporation of the Environmental concern into the primary norms

As explained in the introduction, environmental issues have been able to acquire an increasingly important place within institutions, both national and European. But environmental concerns were not always at the centre of discussions. It took some time before the European Union was able to take a clear position on the subject.

During its conception, none of the anew European texts took into account the environmental issue, as the problem was still little known ( or informed), thus not taking a central place for the states. But in today’s world, international trade is taking on an almost central role. However, it appeared quickly that, at least pollution, was becoming a growing issue and was closely related to the Communities’ area of competences. And if for example a truck whose pollution was not regulated in the country where it collected the goods it has to deposit but was regulated in the country of destination, the exchange then would have been delicate. It was therefore in the 1960s and 1970s that, what was still the European Communities, put in place its first environmental regulations to standardise the sometimes-divergent member states’ legislation on the matter. This led to the adoption of a series of directives on the protection of natural resources (air, water), noise control, nature conservation and waste management. But the lack of a legal basis didn’t allow the regulations to be pushed further. It was therefore not until 1987 that the environmental issue was incorporated into primary texts, back then in the Treaty of Rome by the Single Act (Simonetti, 2008).

But when it comes to the environment, the European Union can only regulate and take a position on cross-border issues falling within its limited competences. But with its sui generis supranational nature, it is enabled to a certain extent to impose on States measures that are properly internal. Thus, it is organized on a principle of sharing competences, some exclusive, some shared and finally of coordination (Simonetti, 2008). As a result of the Treaty of Lisbon, sustainable development is included in the exclusive matters of the European Union (Art. 3 TFEU), in those shared (Art. 4. TFEU) and finally, more indirectly, in the area of health policy coordination (Szczekalla, 2015).

• A record thwarted by state policies and lack of hard law.

The European Union has therefore been able to use the powers granted by the States to legislate in the crucial field of the environment. But it cannot impose, by its very nature, all the necessary measures. Therefore, and even if they assigned the organization with a part of their autonomy, allowing it to enforce some of its decisions on them under penalty of sanctions, these letters are often not taken into account by States. It is so because they are negligible in terms of financial costs, often compared to what the breach can refund.

As a blatant example, the Commission began actively to pursue the recalcitrant Member States in the mid-1980s following the Seveso disaster. However, even after a conviction for non-compliance, Member States did not systematically adopt the measure. To overcome this problem, the procedure was tightened up with the entry into force of the Maastricht Treaty. As a result, States that didn’t comply with their obligations were forced to pay fines or penalty payments. But the first judgement condemning a State was only given in 2000. Moreover, the monitoring of the correct application of the European Union’s environmental law by its members doesn’t necessarily have all the necessary means to impose its norms and sentences (which is the case for all its norms in general, due to the lack of effective means but also to the sometimes complicated relationship that the member States may have to “undergo” the authority of the European Union).

However, it can be considered that the means put in place for environmental protection were (and still are) particularly low. A good example was the abortion of the establishment of a body of inspectors in the field. it was blocked in the name of the principle of subsidiarity, showing that the States wanted to retain sovereignty in this area whereas other subsidiary areas have one such as fisheries and competition. Although the European Union Network for Implementation and Enforcement of Environmental Law has been in place since 1992, it is an informal network whose tasks are education and advice, but with a lack of enforcement powers (Simonetti, 2008).

A final point has to be raised regarding the implementation of the Charter of Fundamental Rights. The text, first adopted in Nice in 2000, was recognised as a legally binding text by the Treaty of Lisbon, which came into force in 2009. Article 37 states that “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured under the principle of sustainable development.” (“Article 37 – Environnemental protection”, 2007). However, this provision has not been cited with the introduction of the other primary law texts (even though the Charter itself is part of this group, thanks to Article 6 TEU), as many criticisms have been made of the real legal value of this provision in particular. Thus, it does not entail any obligation directly on the Member States of the Union, which must ensure its implementation, but only directives of a nature relating to the European Union’s environmental policy. Whereas the other provisions of the draft Charter guarantee rights that States must recognise for everyone throughout the European Union, and this is the case, in particular, for other economic and social rights, including the right to health, the right to social assistance and the right to housing assistance. For some scholars who didn’t fail to make their voices heard, the addition of this article is more based on a desire to show what the European Union aspires to achieve but is legally empty. Then it would be soft law again.

The growing importance of environmental protection was brought to the discussion table long before the creation of the current European Union. The European Community has begun the long road of integrating environmental law into all the areas it regulates. This undertaking has led to significant achievements, of which the creation of articles solely for this purpose in primary law is probably the most convincing. However, this observation must be qualified, with a lack of means and a text that is effectively applicable and has real repercussions. Since this is not a promising observation, it is possible to look at the problem more globally, and thus to appreciate in a new way the achievements that the European Union has been able to make.

II. An ambitious European response to the globality and sustainability of the environmental problem

The European Union was indeed able to position itself quickly on a multitude of environmental issues, although the results can’t be described as sufficient at present. But, facing the magnitude of the matter, it has been able to ambitiously project its politics into the future (A) and to express its concerns and will outside its borders (B).

• Ambitious goals for a healthier future and a better environment

The environmental concern is, in many ways, part of an approach that can’t simply focus in the present but must extend into the future. Today’s decisions can have a very large impact on tomorrow. The massive exploitation of existing natural reserves may eventually lead to irreparable shortages of essential human resources, such as water, to name only one of many examples. On the other hand, it is arduous to impose standards directly with the expectation of results the next day. No regulation can realistically require all states to produce only renewable energy and expect direct compliance. Many of the necessary environmental policies need time to be effective because of the profound transformations it requires. It is, therefore, necessary to legislate and regulate current practices but this is by no means sufficient given the importance of the subject. It is imperative to look further and to propose the long-term modifications which will allow future generations to evolve in an environment at least equivalent to ours, or even healthier and in better harmony with nature.

It is therefore true that, at the present stage of things, the protection of environmental law by the European Union may appear precarious and insufficient. But if we look at the evolution of environmental law since the existence of the institution we know today, it is possible to come to a more positive conclusion. If strong progress has been made since the starting point, then it may be possible to hope for strong progress in future times, and a constant catching up in the field.

The analysis of section 37 of the charter, for example, can be seen in a new light. It is thus easily criticized in the sense that the resulting protection is not clearly and compulsorily identifiable as many would have wished(Marin-Duran & Morgera, 2013). But it is also interesting to learn about its origin in earlier texts, to see its evolution. One of the inspirations of the text is Article 11 of the TFEU (ex Article 6 TEC) specifying that “Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development”(Szczekalla, 2015). We find here more or less the same configuration as the article of the charter, except for two details. Firstly, we can see the removal of the term “requirement”, which had otherwise been considered too difficult to define by some scholars, and the replacement by “a high level of protection”. This change in the subject of integration shows a desire for ambition in the Charter, a renewal that is more forward-looking than the previous text. The maintenance of these two texts should not be seen as a kind of contradiction of the will of the European Union, but rather as a multitude of sources from which the political institutions and the ECJ can derive maximum benefit. Advocate General Kokot expressed this view when he stated that multiple contents mean “a uniform principle of a high level of environmental protection” and should be seen as “not to be interpreted and examined separately” (Picod et al., 2020).

These tools should not simply be seen as insufficiently binding but rather as enabling the Union to use them in a more malleable and more diffuse way in all the necessary areas. Like fundamental rights, a general formulation should not be interpreted as a lack of specificity, but as a way of applying it more broadly and in a way that is better suited to the daily challenges they face. Both points of view, pessimistic or optimistic, are valid, but it is important to consider them equally, in order to be animated not by a feeling of failure but by a hope of possible improvement.
In addition to the above primary legal articles, there are countless decisions, directives, regulations and declarations referring to the environment protection. Studying them one by one here would probably not make much sense, so the choice has been made to focus on the environmental action programmes, especially the last one. The first program was established in 1973, and planned actions for 3 years, until 1976. They then followed one another with varying lengths of time (the 6th was 9 years) to arrive at the 7th programme, from 2014 to 2020. Based on a decision of the European Union, it is, therefore, a binding and directly applicable text (Halmaghi, 2016). The Seventh Programme has established 4 pillars and 9 objectives to be pursued by 2020, to achieve a sustainable, inclusive and environmentally friendly world by 2050. It focuses in particular on issues such as protecting, conserving and enhancing the EU’s natural capital; making the EU a resource-efficient, green, competitive and low-carbon economy; and protecting EU citizens from environmental pressures and risks to health and well-being (endocrine disrupters, air quality, noise pollution, nanomaterials) (Chevalier, 2015).

It is more general and therefore less practically operational than its predecessors, which may reflect a difficult agreement between the member states and the European Union. It can also be explained by the expectation of the new major climate conferences that were due to arrive during the programme and the positive assessment of the previous provisions (Chevalier, 2015).

These programmes can, of course, be criticised for their scarcity of results or the shortage of binding standards. But, once again, they must also be seen as a vector of action that looks to the future. By renewing them, the European Union opens each time a new discussion on the subject, offers an opportunity for new points of view to be addressed. They also allow states to be in a permanent dynamic on the subject and not to rest on their laurels. It is clear that more and more players are now pressing the need for greater and, above all, much more rapid results than has been anticipated over the last 20 years, but it is to be hoped that the work already done will enable the more radical changes that are needed to be made more harmoniously and acceptably for the Member States. The creation of the 8th programme this year will perhaps provide some answers to these assumptions, and if not, will still help the European Union to move forward on the issue of environmental protection.

• An opening of the European Union to the global consequences of the environmental issue

The importance of the matter is, as made explicit earlier, makes it impossible to be handled only nationally. It is therefore important that the European Union, as a supranational organisation, takes an interest in the subject of the environment and offers important protection within it. But this preservation cannot be limited to the 27 Member States. The Union also needs to coordinate with the International sphere as a whole because the ecosystem and the world, in general, does not stop at the fictitious borders created by human beings to define a territory. It is in this ambitious but above all realistic vision that the European Union took the choice on its behalf, and not simply as a grouping of several States, to undertake actions with other countries.

In the framework of its external action service (diplomatic service), the Union has set itself the objective of “high degree of cooperation in all fields of international relations” (Article 21. 2 of the TEU) (General Secretariat of the Council, 2016). In fact, from the very beginning of international legal cooperation, the EEC, and later the European Union, was the only party to the treaties. In this vast legal European movement to combat climate change, there are states and one international organisation: the European Union. This ambitious vision was introduced by the Lisbon Treaty with a new objective for the Union’s environmental policy. These two articles are therefore linked to give the European Union the legal weapons and legitimacy to be able to act outside its territory to protect the environment.

It is yet important to emphasise that if the decision to offer the European Union the possibility to have external actions on its behalf was expressed in this treaty, the extension of its power for the environmental subject did not have to wait until 2007.

Sooner, the European Union had already taken action on the environment in cooperation with external bodies. The Commission proposed to the Council, the European Parliament and the Economic and Social Committee on 13 October 1997 a strategy for Europe-Asia cooperation in the field of the environment. It suggested an action based on several points, such as promoting the establishment of research and development networks in the environmental sector between Europe and Asia (General Secretariat of the Council, 2016).

But this external openness has also enriched European law in this area, as the European Union has been implicated in international treaties legislating globally on the environmental issue from an early stage. It signed the Framework Convention on Climate Change, which was drawn up at the Rio Summit of 3-14 June 1992. It is a legally binding convention that lays the foundation of legal principles for adapting ecosystems to climate change. It then signed the Kyoto Protocol in 2002, which came into force in 2005, making it possible to combat CO2 emissions within the European Union in an even more binding manner by setting quantified limits state by state, as well as the creation of the European Environment Agency (Prieto, 2015).

In 2015, within the framework of the COP21, the Paris agreement was signed in Bourget. It is a gigantic step for the fight against climate change. 193 states plus the European Union signed it, which means that all 27 member states signed as a state but also within the framework of the Union. This text is also legally binding and consolidates the Rio agreement. It essentially sets out the efforts to be made in the coming years to limit the rise in temperature. Since then, the COPs that have followed (COP 25 in 2019 being the latest) didn’t produce texts as important as the Paris Agreement (Oberthür & Groen, 2016). These events are more directed towards discussions and, above all, monitoring of the commitments of the Paris Agreement.

The adoption of international treaties allows not only the addition of new binding texts in the pyramid of European norms but also the adoption of new European standards to comply with those commitments. For example, to comply with the Kyoto Protocol, the European Union adopted the “Energy-Climate Package”. This package binds the Member States with the so-called “3×20” targets for 2020, aiming at a 20% reduction in greenhouse gases compared to 1990 levels, a 20% increase in renewable energy in European final energy consumption and a 20% energy saving (Da Graça Carvalho, 2012).

Most of those international treaties aim for improvements by 2020. It is now 2020, and although some of the commitments have been met, the situation has not improved enough. We are therefore in a pivotal year in which new commitments and treaties must emerge, with even more ambitious goals. The European Union, after its weakening due to the Brexit, has the power to reassure its legitimacy by focusing this year 2020 on renewal of its environmental commitments and by taking the role of the leader in the field.

This first part is, therefore, coming to an end. Its primary interest was to offer an overview of the relationship between the European Union and the protection of the right of the environment to “be” by itself. As vast as this subject is, the guiding thread is to allow reflection taking into account the matter as a whole, considering that there are already complete papers on each topic addressed. At this stage, we have addressed the protection of the environment in time and space and allow time for both the realistic (and somewhat pessimistic in this case) and the optimistic point of view. It is now time to look not at the European Union as such, but at the Member States and their constitutions.

Part 2: Members States’ Constitutions, European law and right of the Environment.

The European Union was able to make progress on the issue of environmental law, acting both on its domestic sphere and on the international scene. Although there is still a lack of complete binding rules, it is nonetheless important to look now at the impact of these on the legal systems of the Member States. A choice was made to focus on France and Germany. With different structures and divergent legal traditions, it allows covering a larger number of areas. The first section is focused on how the Member States dealt with the introduction of European law into their legal systems. A second section takes a more precise look into environmental constitutional law with an interrogation: Since these two rights (European and Environmental) are already introduced in the constitutions, how is the articulation between them?

I. The Incorporation of the European law into the French and German legal orders.

Before addressing the issue of European environmental law, it is important to start with European law itself. Because, if the European Union puts in place strong regulations on environmental protection, but the latter is not or only little recognized by the member states, then its effectiveness is null and void. The European Union exists by itself through these member states, relying above all on the principle of integration. This first part will, therefore, be devoted to the introduction of European law in Germany (A), and France (B), and how each country reacted according to their model.

•  The German System

Germany is a federal state. Unlike in France, the sovereign power is hence separated between the Federal State (Bundesregierung) and the Länder. This separation implies concurrent competences (Civil and criminal law, economy) and exclusive competences of the federal state (the Länder only have exclusive competences if the federal state gives them expressly). The reason for this construction goes back to the way the German state was created since at the time it was a matter of bringing together several very different peoples under a single institution. This federation has remained at the centre of decision-making in Germany leading to the current system (Miller, 2017).

Because of the familiarity of German jurists with federalism, it was less complicated for them than for others to recognize the autonomy of the European Union. In a Court of Justice of the European Communities (CJEC)decision of 1967, the German Supreme Court acknowledged the autonomy of the Community legal order (Hay, 1968). Subsequently, on 9 June 1971, it accepted the primacy of the Community laws over the German ones. The German Basic Law provided for the possibility of a transfer of powers to an interstate authority “Germany participates in the creation of a community that forms an autonomous legal order and acts are recognized as acts of sovereign power” (Steiner & Woods, 2009). The European Union’s legislation is therefore superior to the classical German laws but not superior to the constitution since it is the binding that allows European law to exist within the State.

However, in a preliminary ruling of 1974, the German court stated that EU law cannot be applied if it infringes the fundamental rights laid down in the Basic Law. This notion was to be called “constitutionality reservations” and was reiterated in 1986 in the “Solange II” rulings, the primacy of EU law is valid only as long as EU law respects its own fundamental rules concerning the transfer of sovereign rights and the direct applicability of EU law (Platon, 2014) In the judgment of 12 October 1993, the German Constitutional Court introduced additional conditions for primacy, namely that it applies “only if the EU acts within the limits of its competence”, and the German Court in this judgment recognized its competence to review primacy (Bundesverfassungsgericht, Maastricht Urteil, BVerfG 12.10.1993). In 2000 a new condition was added, the protection of the fundamental rights by the European Union should not be lower than the one already made in the German Basic Law .

After that, the Supreme Court of Germany added in a ruling of 30 June 2009, the obligation for EU legislation to respect Germany’s constitutional identity. The difficulty is to know what this term englobes. In its 2009 decision, the Constitutional Court suggests that this identity includes: the social character, the federal character of the German legal order, but above all, it insists on the democratic character of the latter. Democracy would be a fundamental element of Germany’s constitutional identity (Judgment of the Court of 11 January 2000. – Tanja Kreil v Bundesrepublik Deutschland. – Reference for a preliminary ruling: Verwaltungsgericht Hannover – Germany. – Equal treatment for men and women – Limitation of access by women to military posts in the Bundeswehr. – Case C-285/98).
It is important to highlight that in practice, the German Constitutional Court has never refused the primacy of EU texts, making those criteria more a theoretical warning than an actual barrier.

Under the current state of the law, Germany accepts the primacy of EU law over the Constitution, but with conditions of respect for the competences attributed to the EU, and with the difficulty that the German Constitutional Court claims to be able to control the primacy through ultra vires control, (this question remains open, Ruling 16 June 2015: “Gauwilers”) (IIEA Germany Group Chair, 2015).

Although these different developments and the dialogue between the German Supreme Court and the EU Court of Justice seem to reveal a complicated relationship, the German legal order is probably the one that has been able to integrate the issue of European law in the fastest way. Although some reservations have emerged, it never addressed the fundamental question of the place of EU law, unlike France.

• The French System

France is one of the most striking examples of a unitary state. The reasons for this model are once again rooted in its history. Its unitary model dates back to long before the 1789 revolution and was preserved after it. A key reason for this form of governance is the belief in the indivisibility of sovereignty. Reflecting this, the introduction of the current constitution states that “France is an indivisible, secular, democratic and social Republic”, then in Article 3 that “National sovereignty belongs to the people” and that “No section of the people or individual may claim to exercise it”(Melin-Soucramanien, 2005). Even if, for organizational reasons, the state has to resort to the Deconcentration and Decentralization of powers, the fact remains that no other institutions than the parliament have sovereignty prerogatives. It is this peculiar relationship with the division of power that will make it difficult for France to integrate and to uphold the rule of European law.

Moreover, not all supreme courts in France have reacted in the same way and at the same time.

The first to recognise the principle of primacy is the Court of Cassation on 24 May 1975 in its “Société des cafés Jacques Vabres” ruling. Using Article 55 of the Constitution, the Court thus refused to apply a national text because it contradicted a provision of the Treaty of Rome (Magnon, 2014).

Another jurisdiction had more difficulty in making the same conclusion: The Council of State. However, since it couldn’t overrule provisions of the Constitution, it too had to recognize the primacy principle after the introduction of Article 55. But because of how it was written, it enabled the Council to make a subtle distinction with previous treaty legislation. In its ruling “Syndicat des fabricants des semoule de France” of 1 March 1968, it stated that, under Article 55 of the Constitution, primacy did indeed exist but only over laws predating European law, thus allowing subsequent laws to always be applied even if they clashed. (Bétaille, 2009)

However, in 1979, the Conseil d’état finally overturned its jurisprudence in its Nicolo judgment of 20 October (Bétaille, 2009).

Nevertheless, this change was due to extraneous pressures, mainly that France was in danger of being condemned by the Court of Justice. In domestic law too, the position of the Council of State was no longer consistent, since the Constitutional Council, in a judgment of 15 January 1975 (74-64 DC), declared itself incompetent in the interpretation and application of Article 55, giving this obligation to ordinary judges (Hunter-Henin, 2011). In its 2007 Arcelor ruling, the Conseil d’état also implicitly accepted the principle of the primacy of EU law, provided, however, that the EU act does not undermine a principle inherent to France’s constitutional identity (Hunter-Henin, 2011).

With the Maastricht Treaty, a revision of the constitution to allow adaptation with the introduction of a new part Title 15 “Of the European Communities and the European Union” brings together the new Articles 88-1 to 88-7 (Melin-Soucramanien, 2005). It is, therefore, the introduction of a specific chapter affirming the participation of the French Republic in the European Union. But this introduction has again not been interpreted by all in the same way. Pierre Mazeaud (at that time Chairman (RPR) of the Law Committee of the National Assembly) will then consider that this text shows that the law of the European Union derives its authority in the legal order from the French constitution, thus remaining the supreme norm, supremacy that he wanted to reaffirm (Chirac & Mazeaud, 2005). But with the Lisbon treaty and the development of more European norms and integration, the question around the place of European texts made all the courts agreed.

In the present French legal order, International law and European Law are well distinguished, and the legal system well recognized the primacy of the EU law.

II. Environmental law: relationship between European and constitutional protection.

One way around this is to remember how fundamental rights were chosen and written into the Charter of the European Union. The idea was not to impose an arbitrary choice of rights and obligations from above, but rather to use what was already being done in the member states to find a consensus. Thus, it is the “constitutional traditions” that served as the foundation for the drafting of the Charter. It should then seem logical that the chances of a specific right in one of the constitutions being opposed to a charter right should be rather low.
In order to reflect on this hypothesis, we will first look at the constitutional protection of the environment in Germany and then in France. We will then see whether the articles themselves or laws deriving from its principles have been opposed or not to the law of the European Union (article of the charter or law deriving from it).

A/ Constitutional environmental law in France and Germany

• Germany

As in many cases, the implementation of an article or clause concerning environmental law in the constitution was not done from the beginning. It took until the 1990s for the idea to emerge, and it was in 2002 that this right was finally incorporated into the German Basic Law (Weidner, 1995). While it can be argued that it was the start of public debates in the 1970s that initiated this change, it is also important to note that it was the Länder that first added an environmental clause to their constitutions, even in the east (Weidner, 1995). As in the case of the European Union (which is not a federal state, however), it is the constitutions of the states that probably helped with federal advance. Inspired by its changes and thus by the importance of the issue for the German people, the Bundesregierung implemented Article 20a in the German Basic Law: “The State, thus also assuming its responsibility towards future generations, shall protect the natural foundations of life and animals by exercising legislative power within the framework of the constitutional order and executive and judicial powers under the conditions laid down by law and the law” (Germain, 2005).

This is a “purpose assigned to the state” (in contrast to a “fundamental right”, a “state structure” and a “mission of the legislator”, which are all 4 categories of “norms” that can be found in the German constitution). In practice, this means that it is an objective right, but without a subjective aspect, and therefore cannot be directly invoked by a litigant or creates a subjective remedy (contrary to the fundamental right). It can, however, limit a fundamental right, specify it or be independent of it (contrary to a mission of the legislator) (Germain, 2005).
It should be noted that for what there is of the text itself, the notion of future generations is of interest since it provides a direct bridge to the definition of sustainable development. It also allows for a precautionary appeal on their behalf (Germain, 2005).

As far as its specific control is concerned, it is up to the constitutional judges to check whether or not laws comply with the provisions of Article 20A. However, to date it has only made a “light” control, i. e. it has only characterized a law as “protecting by the natural foundations of life and animals” if it actually protects less than its previous law (Germain, 2005).

• France

The introduction of environmental law into the French constitution is very different from German one, a difference mainly due to the way they operate. It is again interesting to see how the different types of separation of power and the internal organisation of the country influence fundamental rights.

The first thing that we will have to look into in greater depth is the very functioning of the constitution in France. Until 1972, the only text that had any real legal value and was therefore binding was the body of the text. But the Constitutional Council, in a very important ruling of 16 July 1971 on “freedom of association”, began its reasoning with “Having regard to the Constitution and in particular its preamble”, thus including for the first time the preamble as having as much constitutional value as the rest of the text (Mouton & Bioy, 2018). But what this in fact implies is that the texts cited in the latter then also have the same value as the Constitution. The preamble to the 1946 constitution and the 1789 declaration of the rights of man and the citizen would be found there at that time. It was not until 2001 that the President of France began to issue and work on the idea of adding environmental provisions to constitutional laws (a desire notably linked to the work already done by neighbouring countries) (Prieur, 2008). After the meeting of experts and a citizens’; consultation, the Environmental Charter was presented to both chambers in 2004 and was subsequently voted on by Congress (meeting of both chambers) in Versailles on 28 February 2005. This formation made possible a constitutional revision of the preamble, which became “The French people solemnly proclaim their attachment to human rights and to the principles of national sovereignty as defined in the Declaration of 1789, confirmed and supplemented by the preamble to the Constitution of 1946, as well as to the rights and duties defined in the Charter of the Environment of 2004″, and the texts cited therefore have as much legal value as the articles themselves (Prieur, 2008).

As far as the text itself is concerned, and unlike the German text, which is based on the state, most of the articles put citizens at the epicentre. An approach that can be qualified as anthropocentric, it speaks of people’s rights (to live in a balanced and healthy environment) but also of their duties (to take part in the preservation and improvement of the environment). The principle of precaution is also included, since Article 3 states that each person must “foresee and avoid the occurrence of any damage which he or she may cause to the environment or, failing that, limit the consequences of such damage ” (Bourg & Whiteside, 2007).

There are therefore 10 sections in this charter, which are more or less precise, but which are considerably more precise than what can be found in other constitutions since in other cases it is generally a single provision. But does this precision really provide more effective protection? the question divides the doctrine. In France as in Germany, the content of the constitution (or constitutional block) can have several classifications. Thus, we find either objectives, principles or rules that are legally enforceable. Depending on this, the articles then have a different legal scope and cannot be used in the same way among judges. These distinctions, however, are not textual but come from the jurisprudence of the Constitutional Council. It is consequently difficult to be clear which provision has which power, and for how long, since a reversal of case law can always take place (Prieur, 2008).

However, in addition to its doctrinal quarrels, the Conseil d’Etat issued a ruling on 3 October 2008 recognising the possibility for an individual to invoke the charter against a law enforcement decree, opening up the possibilities for the direct justiciability of the charter ( Saube et al., 2017).

B/ Introduction of European environmental law in France and Germany, conflictual or harmonious relationship?

We have seen so far in this section how, on the one hand, France and Germany have been able to integrate European Union law into their national law, how the constitutional courts have been able to propose case law adapted to this new legal order and, on the other hand, how they have been able to integrate environmental law into their constitutions. It seems appropriate to recall that there would be much more to say in these two parts, but it would then deserve a whole paper dedicated to each of the subjects, or even to each of the countries. From the beginning, this paper’s objective was clear: to provide an overview of European environmental law, and then each of its components (European law and constitutional environmental law) in two countries with different systems, in order to bring them closer together and provide the tools for further study.

It seemed logical to end this reflexion with a section on the relationship between constitutional environmental law and European law. However, my research on the subject was unsuccessful (for lack of means or tools). It will then be more general and deductive than it should have been. I hope, however, that it will once again provide sufficient tools for understanding the relationship between constitutional law and European law.

A first reflexion can be done on the possible conflict of norms between the provisions of primary European texts (Charter of Fundamental Rights, treaties etc. . . ) and constitutions, and to look as if either offers provisions that might appear to be contrary. From a rather general formulation, the articles of the European Union, the German constitution, and even the environmental charter, it is then at first sight complicated to see a clear opposition. All the texts have the same objectives and are written in more or less similar terms. The differences that can be found are, in my opinion, more a question of grammar, which must be adapted to the rest of the texts in which they are found and the legal environment in which they are positioned, without creating legal discrepancies.

However, discrepancies may legitimately arise in secondary texts, such as directives or regulations for European law and laws or executive texts for national systems. But here the question is settled more quickly since the primacy applies to laws and decrees, therefore European Union law will prevail over national texts, so if the directive is in line with primary law, it will have to be de facto applied by the courts in the same way as the divergent national text.

The last case would then be a text of secondary legislation of the European Union which would be in conflict with one of the constitutional provisions. In France, this eventuality was dealt with by the Constitutional Council in 2004 with the “Loi pour la confiance dans l’économie numerique” decision. Indeed, thanks to the theory of the “screen directive”, the output of this decision is that the French judge (constitutional council or council of state, since the latter has followed this case law) cannot declare an act of secondary legislation of the European Union (directive or decision etc. . . ) contrary to the Constitution. It may, however, declare a national legal text deriving from the European text (e. g. a decree implementing a directive) to be unconstitutional, provided that the latter is express and does not give rise to any doubt. In the end, this makes it possible to judge a French text with a French standard, and thus get around the question of the conflict of standards between national and European standards (Pignarre, 2013).

The German Basic Court also opted for this position, even before France. This case law was recalled in 2007 by a court order (Pignarre, 2013).

In all these cases considered, therefore, it seems unlikely that the situation of differences on environmental issues could lead to a conflict of standards before the judge. If this conflicting hypothesis is then ruled out, we can then hope for a cooperative relationship between the European Union and the Member States.

Conclusion

As broad and complex that the subject of Environmental law could be, it is important to sometimes try to see the bigger picture. In the European Union, France and Germany, a lot had been done, and a lot it yet still to be done. But even in being so different (different history, types or organisation/entity), they still joint in quite similar objectives when it comes to the protection of the environment. It hasn’t been said before, but contrary to other rights or subjects whose visions depends heavily on historical and cultural aspects, the Environment can and should be a universal gathering point.

The present times (COVID-19 pandemic) might change a lot of what had been said in this paper, for the worst or the best. The European Union is being put to the test, and states has now the choice to close or open themselves to the world. Is environment concern going to be wipe off for the sake of economic recovery? Are all the efforts explained in this research going to be destroyed? It is too soon to know, and hopefully a brighter future is waiting, because “If civilization has risen from the Stone Age, it can rise again from the Wastepaper Age” (Barzun, 1959).