by: Eric Engle

General principles of community law(1) are essentially "borrowed" either from general principles of national law(2) or general principles of international law (international treaties, equity jurisdiction ex aequo et bono, and the natural justice of jus cogens).(3) Both national and international law develop the general principles from the principles of natural reasoning,(4) natural law and natural justice. General principles of 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 ),(5) §215 (tort liability of the community founded on general principles of law of the member states),(6) §174 (source principle, polluter pays principle, principle of prevention and precaution, discussed infra)(7) and §95(3) (commission guarantee of a high level of environmental protection)(8) of the EU treaty all operate to delineate general principles of community law.

What is the nature of the general principles of community law? First, general principles of community law are both superior to the national law(9) (supremacy doctrine) and unwritten.(10) They are also general in character and multiple in number.

There are many general principles of law which have been developed and applied by the ECJ.(11) These principles have not however been catalogued in any comprehensive listing.(12) To point out how general they can be, among them is the principle of equality.(13) Stating that there is a "general principle of equality" begs the question of the content of that principle: "equality of status", "equality of opportunity", "substantive equality", "procedural equality", "proportional equality", "progressive equality" are all possible answers, to that question.

As far as the typology of the general principles is concerned, there are both interpretative (canons of construction) and substantive general principles (fundamental rights). The content of these rights is based on the structure and objectives of the community.(14) Thus there is a structural typology of general principles but as the general principles are both general and unwritten elucidating this structure definitively is problematic.(15) We shall illustrate these principles with some basic examples.

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.(16) 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) there is also a corresponding remedy.

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.(17) 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 procedural general principles of community which condition environemntal law are proportionality(18) and subsidiarity (Art 3(b)).(19) 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 undertaken. These two rules are potentially in collision and this collision is intensified in the field of general principles since the communities' general principles are defined by reference to national general principles thus leading to paradoxical "tangled hierarchies".

What happens when general principles collide? 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 express general principles.(20)

Having explained some general principles of community law which are only indirectly or procedurarlly related to environmental law yet which offer good examples of the interrelationship of these principles we now move to general principles of community law directly related to environmental law.

1. Polluter Pays Principle(22)

The essence of the polluter pays principle is simply that the person who introduces a pollutant whether of the air, the sea, or other should also be responsable for the removal of that pollution.(23) This principle can displace other general principles, such as the right to property.(24) 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 in its operation. It is not punitive (though it could also evolve into a principle of penal law) but restitutionary. The principle is economic in the sense of operating consistently with the laws of the market and also economic in the sense that its application 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 eliminates, at least in theory, the problem of free riders and overusers. In theory it leads to efficient economic allocation since costs of cleanup and benefits of pollution are closely related.

2. 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 states simply that any form of pollution should be treated as closely as possible to the source.(25) Thus air pollution should be remedied by stack scrubbers at the source. Water pollution should be remedied by filters at the source. Autos 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.

Thus the source principle in practice can only be imperfectly implemented.

3. Principle of Sustainability(26)

This raises another recognized general principle of environmental law: 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. This principle can seen as having both an economic and ecological prong.

As an economic principle sustainable development means that development which is less subject to economic cyclicity. However both Karl Marx and Milton Friedman agree that cyclical recession and unemployment are a necessary part of capitalist economies. So as an economic principle sustainability is inattainable, in the strictest sense.

When the principle of sustainability is examined as an ecological principle - that is as a principle which views the economy in terms of a cycle not of expansion and contraction, of boom and bust, but as a self contained closed loop of recirculating production and transformation and return to source, then sustainability is necessarily attained. Seen from the perspective of ecological economy the principle of sustainability holds that any economic activity must be ecologically sound and must respect the environment; at the same time that activity must also respect the worker and consumer.

As already noted the general principles have evolved over time. Having considered the existing general principles of community environmental law we can now turn to speculation as to possible future general principles.

1. A Principle of recycling?

Such a principle, if created, would be a complement to the principle of sustainability and would exemplify broader principles such as reasonability and proportionality. Basically the content of a principle of recycling would be that wherever possible recyclable and biodegradable materials should be used and that law should be interpreted and formulated to favor recycling. Recycling of some waste products is already being implemented in some communities. While many problems are necessarily international, recycling can be resolved at the local or national level and so is arguably a more feasible method to clean up the environment than global hortatory treaties such as Kyoto.

2. A Principle of "zero tolerance"?

This principle does not exist in environmental law. If the same mentality towards criminals who pollute the environment with poisonous air and water were taken toward criminals who pollute the environment with poisonous drugs then we would soon see a number of state owned factories (nationalisation through forfeiture laws) and many persons who were in suits and ties would find themselves in prison working at low wages to pay into a victims' compensation fund. Basically a zero tolerance principle would mean that toxic torts would be taken seriously and that the lives of all persons, wealthy or not, would be protected, by penal sanction if necessary. This principle could also be called the principle of penal treatment for penal acts. Persons whether acting through or for a company or on their own should be criminally responsable for poisoning the environment. Penalisation of pollution would of course not apply to mere aesthetic injuries and should only be reserved for torts which actually or potentially maim, cripple or kill. However since any defendant would claim no actual knowledge or intent it should not be limited to intentional torts - proving the subjective element of an act is factually impossible. One can doubt that criminal treatment for criminal acts will happen in environmental law: but many people would have said the same thing about "victimless" drug crimes in the 1970s.

The general principles of law, though unwritten and by their very nature vague and ambiguous, can nevertheless be a source of principled and meaningful community environmental law. Several principles of community environmental law are already recognized and have been duly cited. This paper also shows how existing general principles of law can be applied to environemental problems and considers potential new principles which would be better able to comprehend the complex fact patterns of international environmental law.

Such judicial activism while possible is in no way guaranteed nor necessarily effective or desirable and must be contextualized within a perceptive appreciation of political realities. Effective community legislation, must be perceived as politically legitimate. While the topics of democratic deficit and employment and industrial policy are outside the scope of this paper those problems do indicate practical limits on the possibility of judicial activism via the general principles of law.

That being said there is sufficiant methodological and doctrinal material to support such activism. Thus the potential for judicial activism in environmental law is yet another example of "virtual Europe": potentially the Brussells bureaucracy is all powerful, yet in practice is severely limited by the political insulation which was needed to establish the common market. If Europe is to "deepen" its political base it must overcome democratic deficit and open itself to democratic influences. This indicates the practical limits on the use of general principles of community law to obtain political goals.

ENDNOTES

1) Aron Mifsud-Bonnici, "General Principles",

"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.",

Aron Mifsud-Bonnici, "The role of the Court of Justice in the development of the General Principles of Community Law", http://www.mifsudbonnici.com/lexnet/articles/artgenprinc.html

2) Case C-260/89 ERT [1991] ECR I-2925, paragraph 41)."

Daniele Annibaldi and Sindaco del Comune di Guidonia, Presidente Regione Lazio.

Case C-309/96, http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=C-309%2F96&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

3) "It should be observed at the outset that, as the Court has consistently held (see, in particular, Opinion 2/94 of 28 March 1996 [1996] ECR I-1759, paragraph 33), 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 (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41)."

Case C-309/96, http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=C-309%2F96&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

4) For a typical example of the natural reasoning which is the theoretical foundtion of general principles of law see: "The Principles of Natural Law" , J.J. Burlamaqui, " Vol. 1 (1748: Geneva), http://www.constitution.org/burla/burla_1.htm The example is more interesting for its obscurity and similarity to other then contemporary theorists notably J.J. Rousseau, also resident of Geneva at about that time. 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 wholistic-theoretical perspective. This however would prove to be the undoing of much of jus natural: absent an epistemological priority of the ideals (eidos, i.e. forms) and 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.

5) "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."

Aron Mifsud-Bonnici, "The role of the Court of Justice in the development of the General Principles of Community Law", http://www.mifsudbonnici.com/lexnet/articles/artgenprinc.html

6) Art. 159 (ex. art. 215). "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." Aron Mifsud-Bonnici, "The role of the Court of Justice in the development of the General Principles of Community Law", http://www.mifsudbonnici.com/lexnet/articles/artgenprinc.html

7) "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 roblems only when it can deal with them more effectively than national or regional government. European Parliament, "Environment policy: general principles", http://www.europarl.eu.int/factsheets/4_9_1_en.htm

8) European Parliament, "Environment policy: general principles", http://www.europarl.eu.int/factsheets/4_9_1_en.htm

9) "Supérieur au droit national, le droit communautaire a des effets contraignants à l'égard des Etats membres et de leurs ressortissants et apporte une protection juridique unifiée à tous les citoyens européens (normes de sécurité, par exemple).

Le droit communautaire repose sur des principes généraux qui, bien que non écrits, s'imposent lors de la rédaction de tous les textes de droit communautaire: l'Etat de droit, la protection des droits fondamentaux, le non cumul des sanctions..."

Sources d'Europe, Centre d'Information sur l'Europe, "Droit communautaire", http://www.info-europe.fr/europe.web/document.dir/fich.dir/QR001038.htm

10) "Il existe par ailleurs de nombreuses règles non écrites qui sont admises par la conscience collective et qui semble tellement évidentes que le législateur n'a pas estimé devoir les préciser dans un texte de loi : ce sont les principes généraux du droit (exemple : les droits de la défense)."

Thierry Smets, "Les sources du Droit", http://users.skynet.be/sky19192/lessourc.htm

11) "'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 (see Case 122/78 Buitoniv FORMA [1979] ECR 677, at p. 684), the principle of legal certainty (see Case 265/78 Ferwerda v Produktschap voor Vee en Vlies [1980] ECR 617, at p. 630), etc. 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."

12) "'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 (see Case 122/78 Buitoniv FORMA [1979] ECR 677, at p. 684), the principle of legal certainty (see Case 265/78 Ferwerda v Produktschap voor Vee en Vlies [1980] ECR 617, at p. 630), etc. 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. "

13) "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"

Case C-309/96

http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=C-309%2F96&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

14) "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"

"General principles of Community law" European Disability Forum, Guide to the Amsterdam Treaty, http://www.edf-feph.org/Papers/teudocs/en/gat4-en.htm#I

15) "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." Aron Mifsud-Bonnici, "The role of the Court of Justice in the development of the General Principles of Community Law", http://www.mifsudbonnici.com/lexnet/articles/artgenprinc.html

16) Salamander v Parliament and Council, T-172/98

http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=T-172%2F98&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

17) "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. "

Salamander v Parliament and Council, T-172/98

http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=T-172%2F98&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

18) "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 (Case C-331/88 The Queen v Minister for Agriculture, Fisheries and Food and Secretary of State for Health, ex parte Fedesa and Others [1990]

ECR I-4023, paragraph 13, and Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraph 96)."

Boehringer Ingelheim Vetmedica GmbH v. Council of the European Union T-125/96

http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=T-125%2F96&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

19) "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.'",

Aron Mifsud-Bonnici, "The role of the Court of Justice in the development of the General Principles of Community Law", http://www.mifsudbonnici.com/lexnet/articles/artgenprinc.html

20) "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."

Boehringer Ingelheim Vetmedica GmbH v. Council of the European Union T-125/96

http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=T-125%2F96&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

21) "As to various environmental law principles, belonging today to customary law 6), some were also incorporated into national laws. The precautionary principle for example is anchored in § 5 para.1 lit.2 of the Federal Act for Protection against Immissions (BundesImmissionsschutz-Gesetz [BImSchG]) 7). The polluter-pays-principle lays the foundation for the Environmental Liability Act of 1990 (Umwelthaftungs-Gesetz) 8). Whilst the principle of early information is incorporated in the Environmental Information Act of 1994 (Umweltinformations-Gesetz) 9), the environmental impact assessment is ruled by the law on Environemtal Impact Assessment of 1990 (Umweltvertraglichkeitsprufungs-Gesetz) 10). Both Acts also implement EC Directives. ...these general international environmental concepts are also incorporated into national laws and thereby directly applicable" Alfred Rest, University of Cologne

"International Environmental Law in German Courts"

http://www.xcom.it/icef/abstracts/rest2.html

22) "Environment policy: general principles "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'."

European Parliament, http://www.europarl.eu.int/factsheets/4_9_1_en.htm

23) Case C-293/97, The Queen v. Secretary of State for the Environment and Minister of Agriculture, Fisheries and Food ex parte: H.A. Standley and Others and D.G.D. Metson and Others

24) "91. 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.

92. There are two aspects to that principle.

93. 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, (35) but also those arising from the implementation of a policy of prevention. (36)

94. It can therefore be applied in different ways. (37)

95. Thus, it may be applied either after the event or preventively before the harm occurs."

Case C-293/97, The Queen v. Secretary of State for the Environment and Minister of Agriculture, Fisheries and Food ex parte: H.A. Standley and Others and D.G.D. Metson and Others

25) See, e.g. C-293/97, The Queen and Secretary of State for the Environment, Minister of Agriculture, Fisheries and Food, ex parte: H.A. Standley and Others and D.G.D. Metson and Others, Judgment.

26) "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." European Parliament "Environment policy: general principles", http://www.europarl.eu.int/factsheets/4_9_1_en.htm