Guiding principles on the environment: draft statutory guidance

Draft statutory guidance on the guiding principles on the environment and the duties set out in Part 2 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.

3. Environmental principles in EU Law

3.1 Environmental principles have been established at an international level since the 1970s and have been a key part of the approach to addressing environmental challenges for many years. The European Union treaties[5] ("the EU Treaties") contain a number of general principles such as subsidiarity, proportionality and public participation.

3.2 In addition, and of relevance in the context of the guiding principles in the Continuity Act, Article 191(2) of Treaty on the Functioning of the European Union[6] ("the TFEU") sets out that EU policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It states that policy on the environment should be based on four core EU environmental principles:

  • the precautionary principle;
  • the principle that preventive action should be taken;
  • the principle that environmental damage should as a priority be rectified at source; and
  • the principle that the polluter should pay.

3.3 These principles do not create any direct legal rights, but guide and shape the development of EU environmental law and policy, including the setting of environmental standards. They are sometimes described as having a constitutional character and are a part of the environmental acquis. Some of the principles are directly incorporated into specific EU legislation. For example, the precautionary principle is reflected both in the regulation of chemicals and in fisheries management laws. While the principles are undefined in the EU treaties, the EU Commission has issued guidance on the application of the precautionary principle and the Court of Justice of the European Union ("CJEU") has considered questions of interpretation of environmental law, including the application of the principles.

3.4 In addition, Article 11 of the TFEU requires the integration of environmental protection requirements into the definition and implementation of EU policies, in particular with a view to promoting sustainable development.

3.5 The CJEU applies the principles in the interpretation of EU legislation, including the EU treaties[7]. For example, the CJEU has sometimes relied on one or both of the precautionary principle and the principle that preventative action should be taken to help reach their conclusions in various cases in relation to animal health[8], habitats[9] and waste[10]. More detail on the EU environmental principles, and other environmental principles enshrined in international conventions and agreements, is provided in Annex B.



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