I. Introduction
The European Union (hereinafter: “EU”) has long positioned environmental protection as a defining feature of its constitutional identity and a cornerstone of its claim to regulatory leadership on the global stage.Footnote 1 Yet, the emergence of Omnibus legislation, i.e., legislative packages bundling amendments to multiple regulatory instruments within a single framework, presents an underexamined challenge to this constitutional architecture. The 2024 reports by Enrico LettaFootnote 2 and Mario Draghi,Footnote 3 along with the Budapest Declaration that followed,Footnote 4 emphasised the need to strengthen Europe’s competitiveness amid global economic, geopolitical and demographic challenges. In response, the European Commission (hereinafter: “EC”) introduced its first Omnibus simplification legislative package in February 2025, aiming to reduce administrative burdens for businesses by narrowing the scope of companies subject to sustainability reporting, postponing reporting deadlines and converting certain binding due diligence requirements into voluntary. This simplification initiative has raised concern among civil society about the weakening of health and environmental protections, who urged that previously agreed legislative texts should not be reopened in ways that would create confusion or uncertainty.Footnote 5 The European Central Bank highlighted issues of ambiguity and the need for regulatory clarity,Footnote 6 and over 360 EU and non-EU civil society organisations have described the package as “disastrous,” warning that it undermines the EU’s commitments to corporate accountability.Footnote 7
While scholarly attention has focused on the substance of individual environmental regulations, the constitutional implications of legislative form as a mechanism for evading EU-Treaty-level constraints have received insufficient scrutiny. This paper intervenes in that gap by examining whether this “Omnibus” form of European lawmaking enables the circumvention of substantive safeguards that EU constitutional environmental principles impose.
The analytical framework centres upon the precautionary (hereinafter: “PP”) and environmental integration (hereinafter: “IP”) principles for both constitutional hierarchy and functional necessity. The principles operate as constitutional constraints on legislative authority, determining the permissible scope and direction of EU regulatory action. The former requires protective action where scientific uncertainty persists regarding potential environmental or health harm, including placing the evidential burden on those proposing potentially harmful activitiesFootnote 8 ; it is thus concerned with how the law responds to uncertainty, indeterminacy and incomplete knowledge. The latter imposes an affirmative obligation to demonstrate how EU laws advance environmental objectives to ensure that environmental protection constitutes a component part of EU action.
The Omnibus provisions under examination engage precisely the kinds of constitutional problems these two principles are designed to regulate. Functionally, they directly engage precaution and integration in ways that, for example, the principle of prevention (the precursor of the PP) or sustainable development itself address less precisely. The issue is not merely whether the EU still pursues environmental objectives in the abstract, but whether it does so in a manner that preserves the protective logic of EU Environmental Law. Prevention is primarily concerned with avoiding harm where a risk is already sufficiently identified or concretely established; it is, therefore, not suited to measures that lower protection standards in areas such as chemicals and pesticides, where the full extent of the risk is, more often than not, unknown. Precaution, by contrast, is triggered precisely by scientific uncertainty; its distinctive contribution concerns preventing delay under the pretext that the true nature of risks is not known,Footnote 9 along with ongoing vigilance through periodic reassessment as knowledge evolves.
The IP captures the constitutional requirement that environmental considerations be mainstreamed into EU action. This is relevant where Omnibus packages “simplification” measures within broader exercises in reducing bureaucracy, boosting competitiveness and improving administrative efficiency. In such cases, the environmental consequences may be obscured by the wider legislative frame, even though the practical effect is to weaken protections. The IP, therefore, acting as an interpretive and evaluative lens, asks not only whether environmental protection survives formally, but whether it is genuinely integrated into the structure and reasoning of the legislative measure itself. Sustainable development, on the other hand, although undeniably important as a constitutional objective of Article 3 TEU, supplies a broad normative orientation to reconcile economic development, social welfare, and environmental protection, but it does not by itself provide a determinate standard for assessing the legality of specific legislative techniques or deregulatory choices. Its flexibility is, in many respects, deliberate, designed to accommodate the balancing between potentially competing objectives across varying contexts.
Although EU environmental principles undeniably encompass a degree of normative flexibility, leaving EU institutions a margin of discretion in determining how environmental protection is to be achieved, that flexibility is not unlimited; it may extend to the choice of legislative instruments, implementation mechanisms, or the balancing of competing policy considerations. However, it does not imply unrestricted authority to dilute or retreat from established levels of environmental protection, which also reveals a broader constitutional tension within the contemporary trajectory of European integration: the relationship between the EU’s claimed global environmental and climate leadershipFootnote 10 and its turn toward regulatory simplification. This new approach risks placing that self-conception under strain.
The EU’s constitutional legitimacy has depended upon what is often described as “output legitimacy”: the capacity of EU action to produce tangible collective benefits that Member States acting individually could not secure as effectively on their own.Footnote 11 High levels of environmental and health protection have long formed part of that justificatory framework, allowing the EU to present itself as a constitutional order committed to safeguarding broader social interests. From that perspective, environmental protection performs a dual constitutional function: (a) substantively, it protects public goods such as ecological integrity, public health and intergenerational welfare; and (b) institutionally, it also helps justify the expansion and exercise of supranational regulatory authority. The development of ambitious environmental standards has therefore contributed to the constitutional identity of the EU itself, distinguishing European integration from a purely economically instrumental model of governance.Footnote 12 The PP and IP are, therefore, significant not only because they structure environmental governance, but also because they embody the constitutional expectation that economic integration within the EU remains conditioned by social and protective commitments.
Three Omnibus packages merit particular scrutiny here: the Chemicals,Footnote 13 the Food and Feed Safety,Footnote 14 and the Environmental.Footnote 15 The paper undertakes a doctrinal analysis through textual reading and teleological interpretation of specific provisions whose significance lies, firstly, in their very substance, and, secondly, in the procedural nature of their “Omnibus” mechanism, and, thus, proceeds in five parts: following this introduction, Part II briefly examines the constitutional architecture of EU environmental protection through the PP and the IP, while Part III turns to an analysis of key provisions within the Chemicals, Food and Feed Safety, and Environmental Omnibus packages that raise significant constitutional concerns. Part IV discusses the shortcomings of this Omnibus triarchy within the broader analysis, and Part V concludes.
II. The constitutional pillars of EU environmental protection: precaution and integration
1. The precautionary principle (PP) through a proportionality lens
Article 191(2) of the Treaty on the Functioning of the European Union (hereinafter: “TFEU”) establishes a binding legal obligation that a high level of environmental protection must be ensured even in the face of scientific uncertainty, according to the PP. While the TFEU provision is framed in terms of environmental policy, it is well established in both EU case law and literatureFootnote 16 that the PP operates as “a general” and “autonomous” principle of EU Law,Footnote 17 with horizontal application across health and environmental domains, including consumer protection and food safety.
The “high level of protection,” while semantically indeterminate, has acquired substantive content through EU case law establishing it as more than a mere rhetorical aspiration. In the field of chemicals, a restriction on the placing on the market of a substance has been deemed as “often the most effective measure” for achieving the objective pursued by REACH Regulation,Footnote 18 which is to ensure a high level of protection of human health and the environment.Footnote 19 In EU waste law, the objective of protecting the environment and human health has been recognised as binding, while Member States retain a margin of discretion in determining the necessity of waste management measures.Footnote 20 In Sweden v Commission, the EU General Court recognised it as a substantive constitutional objective and clarified that protection from potentially dangerous pesticides must be based on solid evidence that “reasonably raise doubts,” in order to “prevent potential risks.”Footnote 21
The obligation to attain a high level of protection is likely to function as an interpretative principle where a conflict between economic and antagonist societal objectives arises:Footnote 22 when measures reduce protection, they have to bear the burden of demonstrating either that reductions maintain equivalently high protection through alternative means or that prior protection levels exceeded what this “high” standard requires. The PP reinforces this architecture by requiring that, where scientific uncertainty exists regarding environmental or health risks, preventive action must be prioritised; hence, it establishes a constraint on the permissible direction of regulatory change under such conditions.
Importantly, the flexibility and, perhaps, the double-edged sword of the PP is reflected in the proportionality principle, which operates in tandem with the PP or even acts as a prerequisite for its application. The PP does not mandate regulatory action in every case of scientific uncertainty, but it requires that protective measures be taken proportionate to the potential seriousness of harm, subject to the constraint that they must not be disproportionate to the legitimate objectives pursued.Footnote 23 Proportionality, enshrined in Article 5(4) TFEU as a general principle of EU law,Footnote 24 Article 1 of annexed Protocol (No 2)Footnote 25 and Article 52(1) of the Charter of Fundamental Rights (CFR)Footnote 26 demands that a measure or a legislative instrument, in this case, be proportionate and, thus, legitimate,Footnote 27 if it is:
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• appropriate (suitable, otherwise capable of contributing to the achievement of the objective pursued);Footnote 28
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• necessary (with no less restrictive and equally effective alternative);Footnote 29 and
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• proportionate stricto sensu, meaning its benefits must outweigh the negative impacts.Footnote 30
As the PP operates through proportionality, it channels regulatory discretion through demands for proper justification. While this adaptability is necessary to allow calibrated responses to different contexts, it simultaneously creates vulnerability to instrumentalisation favouring economic (or other) interests over genuine protection. As the General Court has repeatedly highlighted, the PP requires that health- and environment-related concerns must be given precedence vis-à-vis economic interests,Footnote 31 whereas measures such as setting threshold limits for chemicals, even in the face of uncertainty in relation to both the relevant damage and risks, have been deemed as not manifestly disproportionate in relation to economic interests, in order to ensure such a high level of protection.Footnote 32 However, also evident in EU case law is that an immediate optimal level of protection is not generally required,Footnote 33 a “clear” and “serious” risk must be adequately establishedFootnote 34 and a risk threshold deemed “(un)acceptable for society”Footnote 35 also exists – which, essentially, leaves room for discretion and political considerations shaped by the respective social context during the enforcement of EU law.Footnote 36
Proportionality does not mandate uniform regulatory rigour regardless of context but rather demands measures proportionate to the chosen level of protection, which, of course, implies significant interpretive discretion regarding both the protection level chosen and proportionality’s satisfaction.Footnote 37 When protections are seemingly reduced in the “simplification” context, proportionality’s flexibility risks enabling or allowing the erosion of such protections.
The challenge here is, therefore, ensuring that flexibility operates within rather than against fundamental constitutional safeguards: appropriateness requires demonstrating not merely that simplification is achieved but that it advances (or at least does not undermine) the environmental objectives that existing protections serve; necessity demands proof that reductions in protection constitute the least restrictive means of achieving administrative efficiency, requiring systematic consideration of alternatives that preserve the established protective safeguards; finally, stricto sensu balancing must account for the PP’s inherent constraint that under scientific uncertainty, quantifiable industry savings or more tangible bureaucratic-efficiency gains cannot automatically outweigh environmental and health risks that may resist precise measurement but could prove catastrophic if realised. For present purposes, this tripartite test matters because Omnibus reforms can alter not only the substance of environmental protection but also the evidential and justificatory structure through which protective measures are adopted, reviewed, amended or withdrawn.
2. Article 11 TFEU and the environmental integration principle (IP)
The Court of Justice of the EU (hereinafter: “CJEU”) first asserted that environmental protection is an “essential objective” of the European Community in 1985.Footnote 38 The Single European Act that followedFootnote 39 added Article 130R in the Treaty establishing the European Economic Community (TEEC), affirming that “[e]nvironmental protection requirements shall be a component of the Community’s other policies.” Now, the strong horizontal clauseFootnote 40 of Article 11 TFEU provides that “environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities (…),” which can be read along with Article 37 CFR to impose an affirmative, transversal constitutional obligation on EU institutions for environmental mainstreaming in the EU; in other words, for them to demonstrate ex ante, or, in the planning phase:Footnote 41 (a) if and how regulatory measures advance environmental objectives or, at a minimum, do not undermine them, and (b) to ensure that environmental protection must not merely be considered, but constitute a foundational premise of EU laws and policies.
This is complemented by Article 114(3) TFEU, which provides for a guarantee of a high level of environmental protection in achieving harmonisation. Sustainable development is also referenced in Article 3(3) TEU and provides the teleological framework within which integration operates and is “based on,” among others, on “a high level of protection and improvement of the quality of the environment.” Hence, the IP presupposes the vertical (procedural) and horizontal (material or substantiveFootnote 42 ) integration of environmental requirements across all policy areas is a prerequisite to achieve sustainable development. In the EU institutions, the IP operates horizontally and constrains the exercise of their legislative discretion and must serve as a standard for reviewing the legality of legislation.Footnote 43 The CJEU, despite not formally recognising the IP as a general EU Law principle such as the PP, has asserted regarding the choice of legal basis that the EU must comply with Article 11 when it exercises its competences,Footnote 44 and, in a judgment that has been called the “acme” of the case law,Footnote 45 the Court concluded that, thanks to the gravitas of the IP provision within the TFEU, between others, the PP extended beyond the scope of environmental policy.Footnote 46 The practical operation of the IP has shown that it does not presuppose that environmental considerations automatically prevail over all others, but rather that they are to be taken seriously within the relevant policy field, including where economic, industrial, energy, market, or other objectives are also engaged. In E.ON Biofor Sverige,Footnote 47 the CJEU confirmed its deferential approach to judicial review in technically complex environmental matters, holding that the EU legislature enjoys a broad margin of discretion under Articles 11 and 114(3) TFEU and that review is limited to manifest error or misuse of powers. In that sense, the principle is better understood as a mainstreaming obligation that also requires ex ante justification on how environmental requirements were identified, weighed and incorporated into the structure, reasoning and design of the legislative measure(s) in question. Looking back to the judicial treatment of the IP throughout the last decades,Footnote 48 it seems that the CJEU has progressively weakened the constitutional force of Article 11. While earlier case law treated environmental integration as a binding requirement applicable across EU policies, later judgments required environmental concerns to be “taken into account”Footnote 49 rather than treated as binding requirements capable of shaping the substance of EU decision-making. Nonetheless, a cautious shift in approach has been recently suggested through the Court’s recognition of Article 11 TFEU as a ground of legality review in the Mobility Package case.Footnote 50 Although the claims were ultimately dismissed, the Court conducted a substantive assessment of the environmental effects of the contested measures, recognising the IP as an operative standard of judicial review.
This constitutional framework guided by the PP and IP establishes the evaluative architecture of the present analysis in order to determine whether the Omnibus provisions examined here constitute a systematic retreat from EU-Treaty-mandated protection. Do the Omnibus provisions reverse the protective obligations imposed by the PP? Do they eliminate safeguards without proper justification? Do they proceed without demonstrating environmental advancement or an analysis of the least restrictive alternative? Do they prioritise industry savings whilst omitting assessing the potential environmental costs? These questions, grounded in the principles examined above, guide the analysis that follows.
III. The triarchy of the selected Omnibus packages
The analysis in this section does not attempt to demonstrate empirically, at this stage, that the Omnibus packages have already produced concrete environmental harm, as such an assessment depends upon implementation, enforcement and how (or whether) the evolving scientific evidence is incorporated in practice. Where provisions reverse established protective frameworks or alter the epistemic structure of risk governance without satisfying the requirements of said principles, they are assessed as legally deficient regardless of whether their ultimate environmental effects have not yet materialised. The inquiry here is constitutional and structural, examining whether the legal design, procedural architecture and mechanisms embedded within the Omnibus packages are capable of lowering the level of environmental protection guaranteed under the PP and IP.
1. The Chemicals Omnibus
The Chemicals Omnibus, published in July 2025, presented itself as a neutral exercise in administrative simplification. A specific provision is relevant here.
The Cosmetics Products Regulation (hereinafter: “CPR”)Footnote 51 regulates the safety of products in contact with the external parts of the human body, and the proposed amendments raise concerns. Currently, it includes a strict protective framework for CMR (carcinogenic, mutagenic or toxic for reproduction) substances, prohibiting their use in cosmetic products, subject to narrow derogations under Article 15. With the Omnibus, the new paragraph 5 provides that, where a substance poses a CMR risk solely through ingestion or inhalation, its use will not be prohibited for dermal application. This is problematic on several levels.
First, it relies on a route-of-exposure distinction that the scientific literature treats with caution and rests on the assumption that a substance classified as carcinogenic or reprotoxic via one route of exposure poses no appreciable risk via a different route; however, this cannot be so straightforwardly drawn from current toxicological researchFootnote 52 and sits uneasily with the core of the PP that requires protective decision-making in the face of scientific uncertainty. The proposed route-of-exposure distinction effectively presumes sufficient scientific certainty regarding the absence of dermal risk despite the uncertainty of the literature. While the jurist seeks certainty, the scientist points to the uncertainty that is inherent in ecological risk,Footnote 53 to which the regulator has responded with the PP. To legislate upon this route-of-exposure distinction as though it were scientifically settled would appear to misapply (or, worse, to disregard) the PP’s core requirement that action be taken precisely in the face of scientific uncertainty. After all, the PP requires that the most reliable scientific data available and the most recent results of international research inform protective decisions,Footnote 54 meaning that scientific uncertainty requires adaptive and precautionary decision-making as knowledge evolves and the perceived severity of the risk is altered, and vice-versa.Footnote 55 It follows that where a measure is adopted for precautionary reasons, the evidentiary threshold for reversing it should be high, and the competent institution should bear the burden of demonstrating on the basis of new scientific evidence founded on the principles of “excellence, transparency and independence”Footnote 56 that the precautionary basis no longer applies.
Second, even though it should fall to producers seeking to place hazardous substances on the market to demonstrate the absence of “unacceptable” risk,Footnote 57 the Omnibus shifts this by permitting continued use unless and until harm is demonstrated through a specific exposure route. The Council has entirely redacted this proposal, maintaining the ban on CMRs in cosmetic products in its current state.Footnote 58
Furthermore, a considerable extension of the existing transition period until the prohibition of the use of a newly classified CMR substance is proposed (15(7)), during said transition period hazardous substances would continue to be in circulation to provide manufacturers with an “appropriate adjustment period” (recital 22). This proposal appears difficult to reconcile with a PP framework that opposes subordinating protection to economic convenience, especially in circumstances where the margin for tolerating exposure should, in principle, be at its narrowest, such as with CMRs. Even under a proportionality analysis, such an extension normalises prolonged exposure to substances whose classification already constitutes, in principle, sufficient grounds for their prompt removal from the EU market, in breach of the PP and the “high level of environmental protection” EU objective, which would demand rapid cessation of such an exposure.
2. The Food and Feed Safety Omnibus
The Food and Feed Safety Omnibus emerged in the series of Omnibus packages following a shift in priorities of the agricultural sector already apparent in early 2025, where the “Vision for Agriculture and Food” was published by the ECFootnote 59 and, according to which, pesticides were framed as levers for food sovereignty instead of potential health and environmental hazardsFootnote 60 and no pesticide reduction targets were set, contrary to the previous commitments in the BiodiversityFootnote 61 and the Farm to Fork Strategies,Footnote 62 which included targets to reduce by 50% the use and risk from chemical pesticides and by 50% the use of the more hazardous ones by 2030. However, as emphasised in the literature, the most significant threats to food security arise from climate change and the ongoing loss of biodiversity, including pollination and natural pest regulation through pesticides.Footnote 63 At the same time, growing evidence indicates that mixtures of pesticide residues are causing widespread, landscape-scale contamination, extending even to remote and protected ecosystems,Footnote 64 while degradation products of fluorinated pesticides, such as trifluoroacetic acid (TFA), have already transgressed planetary boundaries.Footnote 65
This Omnibus, published in December 2025, revealed provisions that fundamentally alter the temporal structure, and, consequently, the substantial nature of EU pesticide regulation through the Plant Protection Product Regulation (hereinafter: “PPPR”).Footnote 66 The most significant change is the transition from time-limited to unlimited approvals for pesticides, except in narrowly defined cases, such as “candidates for substitution” substances (Article 24). From a constitutional perspective, the significance of this amendment lies less in any immediately demonstrable environmental consequence than in its restructuring of the precautionary architecture of the PPPR itself. In essence, the current system where active substances are approved for fixed periods of ten (Article 5) to fifteen years (Article 22) before a mandatory reassessment, by the power of the new proposed Article 5, is eliminated; as a complementary trade-off mechanism, the EC is granted an ad hoc discretion to periodically identify substances that demand a renewal procedure (by proposed Article 18) or “targeted reassessments” (by the new Article 18a). The initiation of such procedures, though, will be based on “indications” of safety concerns for human or animal health or the environment and new scientific or technical knowledge, among others.
The EU General Court has repeatedly held that the extensions of authorisations without reassessments are of an exceptional and temporary nature, and that they “may not be applied automatically, still less systematically.”Footnote 67 Now, the proposed removal of a re-assessment obligation would allow potentially unsafe substances to remain on the market year after year without the rigorous re-evaluation that periodic renewal mandated thus far.Footnote 68 Where the PPPR establishes a presumption in favour of precautionary re-evaluation of safety (a presumption EU case law has treated as legally required), the Omnibus creates a presumption of continued market presence without intervention. The burden of justification thus shifts from industry, which must periodically justify continued approval, to regulators, who must justify grounds for removal (for example, through withdrawal proceedings under Article 21(3) PPPR).
Under the PP conditions of scientific uncertainty, the burden of proof rests with those seeking to introduce or maintain potentially harmful activities, not with those seeking to prevent harm.Footnote 69 The General Court has upheld restrictions despite acknowledged scientific uncertainty and data gaps, stressing that “the scientific risk assessment is not required to provide the institutions with conclusive Footnote 70 scientific evidence of the reality of the risk and the seriousness of the potential adverse effects were that risk to become a reality.”Footnote 71 Most recently, the renewal of the herbicide flufenacetFootnote 72 was rejected after it was concluded that it had not been demonstrated, given current scientific and technical knowledge, that it would not have harmful or unacceptable effects on the environment.Footnote 73 In the Omnibus, the EC attempts to placate such uncertainty concerns by adding that “most approved active substances have gone through at least one renewal process already and that new active substances are expected to have better toxicological and ecotoxicological properties.”Footnote 74
This, unfortunately, remains concerningly unsubstantiated and hard to align with the PP logic of periodic review and re-examination embedded in the PPPR. The mere fact that an active substance has undergone a renewal procedure once does not, in itself, provide any guarantee as to its continued safety. To suggest (and, even more so, to regulate) otherwise risks undermining the precautionary and adaptive character of the EU pesticide and, more broadly, constitutional, acquis. Indeed, chemicals and pesticide regulation frequently demonstrate the opposite phenomenon, namely that uncertainty deepens as evidence accumulates regarding chronic exposure and cumulative toxicity,Footnote 75 especially in complex areas such as endocrine disruption.Footnote 76 The General Court itself has ruled that, despite delayed and subtle accumulation that is subject to various unknown factors and the surrounding uncertainty, potential risk is sufficient for restrictions based on solid, serious and conclusive evidence, even if it does not rule out any scientific uncertainty.Footnote 77 In the significant 2001 Monsanto caseFootnote 78 it was confirmed that the adoption of protective measures (in the present case, requiring re-assessments of previous authorisations) presupposes that a risk assessment has been carried out, revealing indications which make it reasonably possible to conclude, despite falling short of eliminating scientific uncertainty, that the implementation of such measures is necessary in order to avert a potential risk to human health and the environment. In the glyphosate saga, frequently conflicting evidence regarding chronic health effects and environmental toxicity has been accumulating for many years, while studies have documented potential endocrine-disrupting effects, neurodevelopmental toxicity, and severe impacts on organisms.Footnote 79 Diflufenican, a PFAS herbicide,Footnote 80 has been considered as persistent and toxic since 2015, however its approval was recently extended as (or despite) more time was needed for its proper evaluation.Footnote 81 These are not substances for which scientific uncertainty has resolved in favour of demonstrated safety; on the contrary, they are substances for which uncertainty has deepened and ramified as research has progressed. Scientific uncertainty is not an exception but an inherent feature of chemicals, or, in the present context, of pesticide regulation, reinforcing (rather than diminishing) the need for rigorous, iterative and regulated scientific assessment grounded in the PP. Any approach that presumes improved safety based on prior renewal and aspires, hopes or expects that new substances will be safer risks weakening the very safeguards designed to protect human health and the environment.
Under the current regulatory architecture, applicants must submit updated dossiers addressing new evidence, Member State rapporteurs then evaluate that evidence against current scientific standards, and risk managers must decide whether an altered regulatory status is warranted. This process forces regulatory authorities to confront available and emerging scientific evidence rather than permitting the passive continuation of prior authorisations. The PP does not permit static maintenance of protection established at a single moment, but rather a dynamic assessment and measurement environment capable of incorporating evolving scientific understanding as uncertainty gradually resolves or, as frequently occurs, as new dimensions of uncertainty emerge. Per EU case law, hazard identification or “data collection” should be newFootnote 82 (not outdated) and a dynamic knowledge-responsiveness angle must be embedded into protection, as protective measures should be “based on the most reliable scientific data available”Footnote 83 and involve “the most recent results of international research.”Footnote 84
It follows that, in the light of new scientific data, a review should be required to assess the continued validity of the older. Periodic reassessment per the PPPR constitutes precisely such a mechanism, creating checkpoints at which evidence must be evaluated and at which the burden of demonstrating continued safety returns to the applicant. In the words of its own Recital 15 PPPR, “in the interest of safety, the approval period (…) should be limited in time. (…) [A]ny developments in science and technology should be taken into account when any decision regarding the renewal of an approval is taken.” It is often during periodic renewals that scientific evidence emerges, allowing regulatory restrictive action, such as in the mancozeb ban.Footnote 85
New scientific studies revealing chronic health effects, ecosystem impacts or interactions within chemical mixturesFootnote 86 often emerge at the national level or through academic research not captured in industry-sponsored dossiers submitted for EU approval. This is specifically why EU jurisprudence has imposed a duty on authorities to take account of the most recent results of international research and not to give greater importance to the studies provided by applicants,Footnote 87 in accordance with the PP paradigm.Footnote 88 The Paris Court of Appeal recently held the French State accountable for ecological harm resulting from outdated and inadequate pesticide environmental risk assessments, obliging it to update its evaluation protocols and review all pesticide authorisations within 24 months.Footnote 89 In the Omnibus regime, this is further directly contradicted by the proposed amendment to Article 36(3), according to which Member States would be required to rely exclusively on “the last assessment conducted at EU level” for the active substance – essentially, on assessments frozen in time. In July 2022, 72% of the substances approved as “candidates for substitution” had received at least one extension of their approval period due to delays in their risk assessment, and, in most cases, this extension had been repeated for several consecutive years.Footnote 90 Now, not only are delays and gaps in enforcement addressed by the Omnibus, but established precautionary mechanisms, such as the periodic reassessment, are proposed to be severely weakened.
Another questionable proposal is Article 20(2) (similar to the extension of the transition periods of CMR substances in the Chemical Omnibus) where “grace periods” are extended by double (during which companies must phase out substances whose authorisation has been withdrawn) when there are no “other available reasonable means” to the withdrawn substances, i.e., when there are no alternatives that preserve the same function at an adequate level. It also reframes the regulator’s response in that regard, as, contrary to the existing unequivocal obligation to remove such substances from the market immediately because of “immediate” concerns for human/animal health and the environment, it also introduces a higher threshold, requiring concerns to be not only “immediate” but also “serious.” In those cases, the PP demands rapid termination of exposure, and, under the principle of proportionality, a short implementation period might be justified; moving, however, from a maximum of eighteen months to three-year extensions appears to subordinate health and environmental protection to industry continuity. This invites an interpretative flexibility and a vague “cost-benefit” balancing that could give industry leeway to justify continued use, leaving uncertainty over who determines what constitutes a “reasonable” alternative, which should, in any case, be interpreted narrowly; notably, the CJEU has held that replacements do not necessarily need to be of identical performance to that of restricted substances, and that such claims are likely to prevent such replacement.Footnote 91
The IP imposes a firm affirmative obligation to demonstrate that and how regulatory measures, including legislative amendments, advance, or at least do not undermine, environmental objectives. Pesticide regulation intersects with multiple environmental protection objectives, including biodiversity conservation, soil health, pollinator protectionFootnote 92 and water quality.Footnote 93 Analysis shows that, if the Omnibus enters into force, forty-nine synthetic pesticides could automatically receive unlimited approval as of 1 January 2027, including highly problematic glyphosate, acetamiprid and some PFAS pesticides.Footnote 94 The Mobility Package Footnote 95 judgment established that the EU legislature must “base its choice on objective criteria” and demonstrate that “it took into consideration all the relevant factors and circumstances of the situation that [the] provisions are intended to regulate” with “sufficient information to allow it to assess proportionality.” Proceeding without any IP assessment demonstrating how the aforementioned provisions remain compatible with objectives such as the protection of biodiversity, pollinators, water quality and soil integrity also fails this standard.
Thus, removing the automatic requirement for the industry to submit updated toxicity, epidemiology, real exposure and ecotoxicity data during renewal procedures and proceeding without any IP assessment demonstrating how unlimited pesticide approvals advance or even remain compatible with fundamental EU commitments for environmental protection across the legislation body, appears highly problematic, if not legally contestable. The stated rationale of “simplification” and reducing administrative burden cannot satisfy the IP’s integration requirement: while simplification is a procedural objective, IP mandates the integration of environmental considerations into both procedural decision-making processes and substantive environmental advancement, and at a minimum prohibits the weakening, stalling or repeal of existing environmental safeguards. Where a measure may increase environmental risks by eliminating reassessment mechanisms that have historically identified and banned harmful substances, the burden of demonstrating environmental integration shifts to the advocates or to those proposing it. From an IP perspective, this reliance upon “simplification” and “burden reduction” is insufficient unless accompanied by a demonstrable assessment showing that environmental protection objectives remain substantively safeguarded. Article 11 TFEU does not prohibit consideration of economic or administrative objectives; however, it requires that environmental protection requirements be integrated into the formulation of Union laws and policies themselves rather than treated as residual constraints secondary to competitiveness. The EC has not satisfied – indeed, not even acknowledged – this burden here, apart from vaguely affirming that “The initiative does not go beyond what is necessary to achieve the objectives of simplification and burden reduction without lowering the protection of human health and environment” (p 17).
3. The Environmental Omnibus: the last straw in a series of disappointments?
The proposed Regulation on speeding up environmental assessments,Footnote 96 as part of the Environmental Omnibus that was published in December 2025, demands further scrutiny.
In a similar spirit to the new Article 16b(2) of Directive (EU) 2018/2001Footnote 97 (“RED II”), which aimed to accelerate the development of renewable energy projects, the proposed Article 8 establishes that killing or disturbance of protected species under the BirdsFootnote 98 and HabitatsFootnote 99 Directives during the implementation of any project or plan pursuant to the Environmental Impact Assessment (EIAFootnote 100 ) and Strategic Environmental Assessment (SEAFootnote 101 ) Directives (so, not limiting this to renewables) shall not be considered “deliberate” and thus not prohibited under Articles 5 and 12(1)–13(1), respectively. This depends on the implementation of “appropriate and proportionate mitigation measures” and the consideration of “best available technologies.” “Deliberateness,” though, has been defined by the CJEU as capturing also situations of foreseeability and risk acceptanceFootnote 102 and transforms what both the Habitats Directive (Article 12) and the CJEU have named as a “system of strict protection” requiring “coherent and coordinated measures of a preventive nature”Footnote 103 into a permissive regime in which routine mortality becomes acceptable, provided procedural boxes are ticked. The constitutional dimension of this transformation becomes clearer when the provision is assessed against the Court’s interpretation of the scope of strict protection: in Föreningen Skydda Skogen,Footnote 104 the Court held that strict protection obligations apply regardless of whether a species has reached favourable conservation status, and that Member States cannot narrow protection on the basis that a species is common or locally thriving. The Court has consistently interpreted these provisions of the Habitats Directive strictly because they constitute central mechanisms of the Directive’s protective system. Here, permitting operators are allowed to proceed with activities known or possible (including accepting that they may) cause mortality by converting a result-based obligation (no killing/disturbing) into an accepted standard of mitigation efforts. Via the proposed Article 8, anticipated harm is normalised de lege lata.
The PP permeates the design and operation of the EIA/SEA regime, which promotes actions that pre-empt serious or irreversible harm, even without complete scientific certaintyFootnote 105 and identifies and reduces the uncertainties and negative impacts associated with development.Footnote 106 The PP acts as their conceptual pillar, and it is invoked (a) when varying degrees of uncertainty as regards environmental effects are identified, (b) when there are reasonable grounds for concern about the severity of suchFootnote 107 and (c) when “no reasonable scientific doubt remains” as to the absence of adverse effects for permitting to move forward.Footnote 108 In turn, the Habitats Directive provides for a specific “appropriate” assessment procedure of a plan or a project likely to affect protected sites and species, to effectively “prevent adverse effects on the integrity of protected sites as the result of the plans or projects being considered.”Footnote 109 Through them, the PP prioritises prevention over remediation to ensure that nature protection does not yield to pressures. The PP requires that protection-level reductions under uncertainty be justified by demonstrating either the resolution of prior uncertainty or the adoption of equivalent protective alternatives. Mitigation technologies, however, can now seemingly be used regardless of whether uncertainty remains about their effectiveness, which might vary considerably across species, the ecological context, and the technology employed, and have also failed to achieve zero net loss of biodiversity in practice.Footnote 110
Environmental protection is a component of EU law under the IP; this sits uneasily with any regime that presumes harmlessness in advance or substitutes a procedural promise of mitigation for an actual assessment of environmental effects.Footnote 111 Satisfying the IP criterion here would require demonstrating that regulatory changes advance environmental objectives or, at a minimum, do not compromise them. Approaches that avoid harm entirely are EU-constitutionally preferred to compensatory approaches that accept harm and attempt ex post remediation. This is reinforced, rather than weakened, by the EU Biodiversity Strategy for 2030,Footnote 112 which frames nature protection and conservation as a central recovery objective, and by the Nature Restoration Regulation,Footnote 113 which establishes binding restoration targets covering at least 20% of the EU’s land and sea areas by 2030 and all ecosystems in need of restoration by 2050.
Derogations are permitted only exceptionally and on a tightly justified, ad hoc basisFootnote 114 such as via Articles 6(4) and 16 of the Habitats Directive, and not through a blanket presumption that harm has been avoided because mitigation has been promised, as above. The proposed Article 14 introduces a new extremely broad classification of “strategic sectors” whose projects are presumptively deemed to serve the “overriding public interest” grounds of derogation under said Article 6(4) – so, even in priority natural habitats and/or locations of priority species.Footnote 115 This classification extends beyond renewables, which were already controversially granted such presumptive status under Article 16f RED II, to encompass AI factories or gigafactories, supercomputer facilities, and ports, among others (recital 3), despite the Court’s consistent insistence that Article 6(4) “must be interpreted strictly” as a derogation from strict protection,Footnote 116 that economic cost of the steps that may be considered in the review of alternatives “is not of equal importance to the objective of conserving natural habitats and wild fauna and flora” and cannot alone be determining,Footnote 117 and that determination of overriding public interest must follow a case-by-case evaluation weighing benefits against the specific ecological damage of the project in question.Footnote 118 Pre-classifying entire economic sectors as overriding public interest eliminates this individualised assessment, converting what the case law has insisted must be genuinely exceptional into a general rule. The EC’s assertion that energy- and emissions-intensive infrastructure contributes to “decarbonisation, resource efficiency and resilience” (recital 6) and directly serves the public health and safety requirements of Article 6(4) defies the common and jurisprudential understanding of the provision.Footnote 119
From both an IP and a PP perspective, Article 14 represents a serious misallocation of the burden of justification, which should continue to be placed on those seeking to depart from protective standards, not on those seeking to maintain them. Crucially, it risks reconfiguring the constitutional relationship between development (or sustainable development, as understood in EU law, calling for non-negotiable ecological limits to be respectedFootnote 120 ) and environmental protection, by turning the latter (the presumptive framework that constitutes a condition for development) into a competing interest required to defend its continued applicability against pre-established developmental priorities. Pursuant to the IP, environmental protection requirements must be integrated into the definition and implementation of EU policies, which means that development objectives cannot simply be presumed to prevail over conservation interests. PP requires a demonstration, on a context-specific basis, that environmental costs are justified. Here, though, even though environmental authorities continue to be responsible for deciding whether to apply said derogation in specific plans and projects, it seems the burden is shifted onto them to show why a strategically classified project potentially falling under Article 14 should not benefit from exemption rather than requiring applicants to justify why it should. In practice, this not only weakens precautionary environmental permitting but also risks producing a structural bias in favour of projects backed by significant public investment and political priority, where authorities may be tempted to accelerate assessments and derogation tests. The result may be a gradual normalisation of the “overriding public interest” paradigm beyond its intended exceptional function.
IV. Discussion
Notoriously,Footnote 121 the Omnibus giant has proceeded without impact assessments (which allow for assessing whether the proposed measures constitute the least restrictive means of achieving legitimate objectives and flow directly from the PP and IP)Footnote 122 and public and inter-service consultations,Footnote 123 relying instead upon “urgency” justificationsFootnote 124 that the European Ombudswoman has already characterised as maladministration.Footnote 125 These procedural shortcomings are not incidental administrative oversights, but they rather reflect a deeper failure to properly operationalise EU Environmental Law constitutionalism in the design and adoption of the Omnibus packages. Legal scholarship has suggested that IP operates both externally and internally: externally, by requiring environmental objectives and principles under Article 191 TFEU to be integrated into non-environmental policy areas and legislative measures, whereas internally, by requiring EU environmental legislation itself to be interpreted consistently with the objectives, principles and criteria of Article 191, even where these are not expressly reflected in the relevant secondary legislation.Footnote 126 Deficiencies in process can produce deficiencies in substance. When it comes to the procedural integration of the IP, for example, and despite any discourse regarding its nature as a principle or objective,Footnote 127 the IP requires that environmental considerations be incorporated from the outset of the legislative design process, mainly through environmental assessments of a certain thoroughness and quality.Footnote 128 This also includes broad consultations with expert bodies and stakeholders, as well as access to relevant scientific information.
Omnibus legislation appears capable of operating as a mechanism that enables the dilution of the recognising and protective standards that the IP and PP, as pillars of EU Environmental Law, demand. The constitutional obligation to demonstrate how regulatory measures advance environmental objectives is inverted: reductions in protection that would trigger intensive scrutiny if proposed individually are included within broader narratives of regulatory “simplification” and, in this way, evade the constitutional review that their substantive character warrants; or, worse, the reduction of environmental protection standards is not even recognised by the regulator itself. Economic expediency and administrative efficiency are repeatedly advanced as justificatory rationales without a correspondingly rigorous demonstration that environmental objectives remain safeguarded. Yet, the Regulations and Directives examined in this paper share a common teleological orientation: the prevention of environmental harm and the protection of human health. In turn, the reduction of protective standards in sectoral legislation, and, even more so, their elimination, requires specific justification demonstrating either the resolution of prior uncertainty or the adequacy of protective safeguards put into place. The Omnibus packages examined in this paper include such reductions without fulfilling these prerequisites. This dynamic is reinforced by the generally asymmetrical application of proportionality review under the PP.Footnote 129 As illustrated by the Opinion of Advocate General Sharpston in Blaise,Footnote 130 the PP has not usually been invoked to challenge measures alleged to be insufficiently protective,Footnote 131 as judicial review has tended to focus on whether precautionary action disproportionately restricts economic interests, while displaying considerably greater deference towards legislative choices lowering environmental safeguards, where the PP cannot be used – at least on its own – to challenge measures that are “not precautious enough.”Footnote 132 Proportionality has been applied with varying degrees of intensity across the years, ranging from a deferential approach to rigorous examination of the justification.Footnote 133 The result is a structural imbalance in which deregulation and the reduction of protective standards may proceed without the heightened scrutiny that precautionary logic itself would appear to require, despite academic criticism calling for stricter procedural guarantees and more intensive review in cases involving environmental and health risks, in order to counterbalance the broadening of discretionary powers that is inherent in the PP.Footnote 134
At the core of the Omnibus problem lies a lack of sufficient (if any) justification. The EC has not demonstrated that such safeguards or alternatives to the alleged “simplification” measures were seriously considered, much less that they proved incapable of achieving simplification objectives while preserving precautionary safeguards, because it presupposed that the protection of human health and the environment is not affected in the first place. In technically complex environmental and health matters, the deployment of the PP under a proportionality lens requires a reasoned and reviewable account of why a more protective alternative would not suffice. Where there is a choice between several appropriate measures, recourse must be had to the least onerous.Footnote 135 Proportionality review in such contexts does not eliminate political discretion but structures it through requirements of rationality, evidence and justification. The Omnibus packages examined in this paper do not convincingly demonstrate that the proposed changes represent the least restrictive means of achieving regulatory simplification (i.e., the “necessity” angle of proportionality) by proving that alternative approaches that could reduce administrative burdens were examined without eliminating precautionary safeguards.
From the perspective of the present analysis, the effectiveness of the PP is most pronounced when operationalised through proportionality review to translate precaution into a structured assessment and incorporate a normative preference for – or precedence of – health and environmental protection within a “balancing exercise.” In cases of judicial review, the EU legislature must prove that it took into consideration all relevant factors and circumstances of the situation a legislative act was intended to regulate, and that it had sufficient information to conduct a proportionality assessment.Footnote 136 EU institutions are bound by the principle of good administration according to Article 298(1) TFEU and Article 41 of the Charter of Fundamental Rights of the EU, which imposes obligations of transparency, impartiality, and procedural efficiency upon all EU bodies acting in the exercise of public authority. This translates into the EU authorities having a legal duty to explain how a measure contributes to upholding the PP and IP and promotes “a high level of environmental protection” in the EU, also according to the fundamental duty to state reasons under Article 296 TFEU.Footnote 137 It is for the public body to demonstrate that its action was necessary and suitable to achieve the end in view.Footnote 138 In any instance, realism demands admitting that this cost-benefit mechanism is not a panacea, as marginal or ambiguous reductions in protection may still fall through the cracks – be it through the Omnibus or otherwise.
A recurring difficulty within the Omnibus packages is that quantified industry savings are presented in isolation from the broader externalities that deregulation may generate. For example, in the Food and Feed Omnibus, the EC quantifies administrative cost savings of €1 billion for businesses in 2027–2029 (p 19). This figure, though, appears in isolation, without corresponding quantification of potential societal costs, i.e., environmental and health impacts, in the form of the negative externalities that the Omnibus measures might generate through prolonged exposure to substances whose risks remain scientifically contested.Footnote 139 In the EU, societal costs attributable to pesticides were €2.3 billion in 2017.Footnote 140 Similarly, a 2026 EC study estimated that the cost borne by society from PFAS unabated chemical pollution in Europe (including PFAS pesticides) would reach approximately €440 billion by 2050, whereas restricting them altogether would save €110 billion by 2040.Footnote 141 However, in the Environmental Omnibus, it is claimed that “no measure is likely to pose significant risks to the environment, most are neutral, and some are environmentally positive.”Footnote 142 Without going into detail on some of the positives of the package, such as streamlining and digitalisation, it has been found that the lack and poor implementation of existing environmental laws costs European society €180 billion annually due to higher health and environmental damage,Footnote 143 whereas it would take less than that (€122 billion per year) to fix it.Footnote 144 According to the UN, investing in a healthy nature and land, and a pollution-free planet may generate substantial global macroeconomic gains (US$20 trillion per year by 2070).Footnote 145 Therefore, administrative cost savings to industry represent only one dimension of a far more complex cost-benefit, “balancing” or proportionality stricto sensu calculation through a PP lens.
The implications of these developments extend beyond the specific packages examined here; they showcase a fundamental shift in how the EU approaches tensions between (intended, doubtful if fully realised) regulatory efficiency, economic competitiveness, and EU environmental constitutionalism. The result is, unfortunately, not “simplification” but a structural lowering of legal ambition, in which safeguards of the established environmental acquis are treated as obstacles to be streamlined rather than constitutional requirements to be justified.
Where integration is implemented only superficially, the principle of sustainable development risks becoming counterproductive, as it unevenly combines environmental considerations with broader economic objectives and perpetuates environmentally harmful developmental patterns.Footnote 146 Properly understood, therefore, the IP requires more than a symbolic acknowledgment of environmental concerns. EU policies should not contribute to environmental deterioration, but rather aim to improve environmental conditions or, at the very least, ensure no net harm. EU agricultural legislation has been annulled for infringement of the principle of a high level of human health and environmental protection;Footnote 147 in practice, the annulment resulted from the application of the IP, among others.Footnote 148 In that sense, the IP presupposes a principle of non-regression in environmental protection, preventing and prohibiting environmental backsliding.Footnote 149 Read in conjunction with Article 37 CFR and Article 3(3) TEU, which require not only a high level of environmental protection but also the improvement of environmental quality, Article 11 TFEU implies that environmental standards once integrated into EU policies cannot subsequently be weakened without undermining the constitutional logic of integration itself. Hence, the IP not only aligns with, but also reinforces, non-regression: once environmental considerations have been embedded in EU law, any subsequent amendment must preserve at least an equivalent level of protection and environmental performance. “Taking Article 11 TFEU seriously”Footnote 150 requires understanding that the IP is, or should be, capable of shaping and exerting real influence on the substantive outcome of legislative and regulatory choices. On that basis, secondary legislation may be subject to annulment not only where the integration duty has been entirely overlooked but also, more demanding in practice, where it has been formally considered yet inadequately implemented.
Looking ahead, the analysis undertaken in this paper suggests that the constitutional discipline imposed by precaution and integration requires not only ex ante stronger institutional operationalisation within EU law-making, but also ex post accountability mechanisms to ensure compliance. Legislative amendments should be accompanied by concise PP and IP impact statements that demonstrate why reduced protection is justified, why and how equivalent safeguards are put in place, and, at a minimum, how existing environmental objectives are not undermined. This is aligned with the dual nature of the IP, which imposes both procedural obligations, such as assessing the environmental impact of acts and measures, and substantive obligations requiring the meaningful integration of environmental protection, alongside the “do no significant harm” logic underpinning EU instruments such as the EU TaxonomyFootnote 151 and Recovery and Resilience Facility Regulations.Footnote 152
Better Regulation rules must be applied in a predictable, consistent and non-arbitrary manner, including in situations of alleged “urgency,” a term which should be clearly defined.Footnote 153 Despite potential counter-arguments that they constitute soft law instruments binding neither the legislature nor the courts as such, the EU Court has previously ruled that when it comes to rules of conduct, through which an EU institution imposes a limit on the exercise of its discretion, it cannot be precluded that, on certain conditions and depending on their content, such rules may produce legal effects.Footnote 154 The European Ombudsman has held that EU institutions and bodies should apply the rules they have established for themselves.Footnote 155
Where analytical documents replace impact assessments, they must meet minimum substantive standards and provide timely, evidence-based information to co-legislators and the public, especially when protection-level reductions are proposed, and demonstrate proportionality lato sensu and compliance with the PP and the IP, based on sufficient and relevant information. In situations such as the ones discussed in this paper, where the EC maintains that a proposal does not reduce the level of protection, safeguards such as a reviewable non-regression analysisFootnote 156 against backsliding in areas touching on environmental and health protectionFootnote 157 (and which has been met with increasing caution by EU jurisprudenceFootnote 158 ) should be triggered.
Domain-specific scientific justification should also be required, supported by consultation with the relevant expert bodies, such as EFSA and ECHA. The first two pillars of the Aarhus ConventionFootnote 159 (access to information and public participation in decision-making), as implemented for the EU institutions through the Aarhus Regulation,Footnote 160 along with Articles 10 and 11 TEU on civil society participation, also give concrete expression to this dimension by ensuring that environmental concerns can be raised, tested, and reviewed before harms are locked in through legislative or administrative action. Article 9 of the Regulation requires effective public participation in the preparation of plans, programs and normative acts concerning the environment. The Commission’s consultation on the Environmental Omnibus generated approximately 200,000 citizen responses, who opposed weakening environmental protections.Footnote 161 Although the Regulation’s public participation provisions are expressed in discretionary language (e.g., “shall provide, through appropriate practical and/or other provisions, early and effective opportunities…”), they nevertheless establish important guarantees central to EU environmental governance, as confirmed by EU case law.Footnote 162 Complaints to the Aarhus Convention Compliance Committee, which has previously found the EU in non-compliance with public participation requirements,Footnote 163 could be a longer-term accountability avenue that would generate political and reputational pressure alongside environment-protective interpretive guidance to inform subsequent legislative proceedings.
The Omnibus structure strategically complicates parliamentary scrutiny by combining problematic provisions with broadly popular simplification measures, making disaggregated rejection complex. However, even under exceptionally expedited timelines, consultations should remain meaningful and integral to the process. Strengthening parliamentary capacity would transform the legislative process into a more effective constitutional filter. At the same time, the Parliament and the Council should be afforded sufficient opportunity to exercise effective scrutiny before adoption.
The European Ombudswoman’s finding of maladministration in November 2025Footnote 164 is the most significant institutional check thus far. Complementing the Aarhus Convention provisions discussed above, and following the Aarhus Regulation’s amendment in 2021 in order to widen the scope of the mechanism for internal review of all administrative acts that may contravene environmental law,Footnote 165 NGOs and members of the public have the right to request an internal review of EU acts or omissions under Article 10 of the Aarhus Regulation. Where such a request is refused or is inadequately addressed, the institution’s response may be challenged before the Court under Article 263 TFEU.Footnote 166 What the Court may review in such proceedings, however, is the legality of the institution’s response to the internal review request (that is, the decision rejecting or inadequately addressing that request) and not, at least in principle, the legality of the underlying act itself. Nonetheless, landmark post-2021 case law, while emphasising that, especially when an institution has a wide margin of discretion, the review of whether procedural guarantees were observed is of fundamental importance,Footnote 167 has, at the same time, indirectly engaged with the legality of the underlying measure and scrutinised the regulatory choices behind the institution’s response when assessing its adequacy.Footnote 168
Despite concerns regarding inconsistency, fragmentation in enforcementFootnote 169 and the Regulation’s application to administrative acts or omissions rather than legislative measures such as the Omnibus packages, Article 263 TFEU remains available for annulment actions alleging incompatibility with EU Treaty provisions, including the IP and PP under Articles 11 and 191(2) TFEU. At the judicial stage, the EU judge should apply scrutiny to “simplification” measures, and the EU institutions should be required to show, in a substantiated and reviewable manner, that PP and IP obligations have genuinely been met. Especially in terms of an enforceable obligation, the answer to the infringement question will depend on whether the duty to promote environmental objectives, or to refrain from undermining them, can be spelt out concretely enough for a court to feel comfortable calling it an obligation.Footnote 170
V. Conclusions
EU Law principles are supposed to guide interpretation, fill gaps, be grounds for reviewing the legality of legislative acts, and, thus, serve the cohesion and coherence of the EU legal order.Footnote 171 On the one hand, the IP has been implemented through multiple fields of EU policy;Footnote 172 however, if implemented only superficially through the principle of sustainable development, it risks becoming counterproductive by subsuming environmental considerations within broader economic objectives and perpetuating environmentally harmful developmental patterns.Footnote 173 On the other hand, PP standards embodied in instruments like the PPPR or the Habitats Directive were hard-fought achievements reflecting decades of regulatory developmentFootnote 174 as the regulator’s response to the limitations of science in assessing complex and uncertain ecological and health risks.Footnote 175 Both principles embody what might be called “constitutional capital,” namely, the regulatory frameworks through which the EU shows its commitment to certain values. The obligatory language used throughout the paper is intended in two distinct senses. As already mentioned, the PP is recognised by the CJEU as a general principle of EU law and as a binding element of the Union’s environmental acquis under Article 191(2) TFEU. The IP in Article 11 TFEU is a Treaty obligation with constitutional force, but its precise justiciable content is less fully developed in case law. The argument advanced here is therefore that first, these two principles already constrain EU law-making, and, second, that they do not only constitute principles but should be read, and in some respects further developed, as enforceable obligations capable of limiting deregulation in environmental matters.Footnote 176 Their loss or weakening, if the Omnibus trajectory advances unchecked, would call into question the EU’s commitment to its own foundational values.
The substantive “greening” of all areas of law has long been – and remains – one of the most defining challenges in the normative world.Footnote 177 Once environmental protection has been embedded across multiple fields of EU policy, any legislative reduction in protection must be treated as an exception requiring explicit, evidence-based, and democratically accountable justification. Against this backdrop, Omnibus legislation deserves enhanced scrutiny because it can package rollbacks within reform agendas, making reductions in protections perhaps less visible and less contestable under Article 263 TFEU than they would be in stand-alone amendments.
Instead of asking whether a measure maintains or enhances the high level of protection required by the PP and IP, discourse has shifted towards administrative convenience, speed and competitiveness. That shift is difficult to reconcile with EU Environmental Law, which does not allow protection to be diminished without explicit and reviewable justification, true integration to be ignored, or precaution to be replaced by presumptions of efficiency. Persisting on this course risks not only weakening safeguards in sectoral legislation but, more fundamentally, eroding the constitutional standing of environmental protection within the EU legal order.
Competing interests
The author declares none.
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