Constitutionalisation of environmental protection in EU law

Foreword vii
Contents xi
Preface
The purpose of this book 2
The structure of this book 4

Chapter I Environmental Protection in the EU Constitutional Perspective
1 Introductory remarks and conceptual framework 8
1.1 The environment and environmental protection 8
1.2 Constitution of the EU legal order 15
1.3 The concept of constitutionalisation 20
1.4 Global environmental constitutionalism 24

2 Hierarchy of EU constitutional norms 28
2.1 Pluriconstitutionalism and the internal structure of EU constitutional law 28
2.2 The ‘foundational values’ (‘founding principles’) of the EU legal order 30
2.3 The rule of law as a foundational value of the EU legal order 36
2.4 Environmental protection within the EU constitutional order 39

3 The constitutionalisation of environmental protection: history and legitimacy 40
3.1 From the origins to the ‘heart’ of the Community’s action 40
3.2 The constitutive phase of environmental protection (1970’s) 42
3.3 The normative phase of environmental protection (1980’s) 45
3.4 The consolidating phase of environmental protection (1990’s) 47
3.5 The constitutional phase: the Charter of Fundamental Rights and the Constitutional Treaty 52
3.6 The Lisbon Treaty and future perspectives 55

4 A broader theoretical perspective: the values of democracy and the rule of law in the context of environmental protection 59
4.1 Constitutionalisation and democracy 59
4.2 The relationship between democracy and environmental protection 60
4.3 Environmental democracy in the EU legal context 62
4.4 The ‘environmental rule of law’ and the ‘rule of law for Nature’ as innovative concepts 68

5 Conclusion 72

Chapter II A High Level of Environmental Protection in EU Law
1 The concept of ‘a high level of environmental protection and improvement of the quality of the environment’ in the normative structure of the Treaties 74
1.1 Article 3(3) TEU and Article 37 of the Charter as expressions of one constitutional principle 74
1.2 A high level of environmental protection as a ‘principle’ rather than an ‘objective’ 81
1.3 Two expressions of a common principle: distinguishing between Article 3(3) TEU and Article 37 of the Charter 87

2 Article 37 of the Charter of Fundamental Rights – in search of the environmental identity of the Union 93
2.1 The origins of Article 37 of the Charter – discussions within the Convention 93
2.2 Article 37 of the Charter in comparative legal context 101
2.2.1 The concept of environmental rights in the international and EU legal perspectives 101
2.2.2 The entrenchment of environmental protection and environmental rights in the national constitutions 109
2.3 Exploring the legal parameters of Article 37 of the Charter of Fundamental Rights 125
2.3.1 Article 37 as a (false) ‘solidarity right’ in the Charter 125
2.3.2 Article 37 of the Charter – reaching beyond the dichotomy between ‘rights’ and ‘principles’ 129

3 Article 37 of the Charter of Fundamental Rights as a cluster of three legal concepts 135
3.1 The principle of sustainable development 135
3.2 The principle of integration 145
3.3 A high level of environmental protection and improvement of the quality of the environment 152

Chapter III Solidarity as a Prism for Constitutionalisation of Environmental Protection in EU Law
1 The EU principle of solidarity as a constitutional principle 164
1.1 Introductory remarks 164
1.2 The multidimensional nature of the principle of solidarity in the EU legal order 165
1.2.1 The principle of solidarity in the EU treaties 165
1.2.2 Solidarity and other fundamental EU law concepts 168
1.2.3 Solidarity as a founding value and principle of EU law 172