Sustainable development implies an approach to economic growth that furthers the internalisation of environmental externalities. The compatibility between trade/investment and the environment depends on a vision of the economy that respects the limits of environmental protection and stimulates exchanges in sustainable products and services. Most worrying developments regarding the future of the environment at the global level (e.g. climate change, water scarcity, deforestation, and desertification) raise fundamental questions regarding the sustainability of the current organisation of the world economy. The law – in particular economic and environmental law – has a fundamental role to play in the necessary reconceptualisation of economic growth. A central question is whether the legal system at the national, regional, and international levels promotes sustainable exchanges or on the contrary constitutes an obstacle to the implementation of the ambitious environmental policies that are needed to reorganise our society towards more sustainable patterns. The main legal challenge is to outlaw environmental regulations that are hidden protectionist measures and at the same time not unduly restrict states' freedom to implement ambitious environmental protection policies. The EU claims to be a leader in the field of environmental protection (including regarding climate change mitigation, water and forest management, and biodiversity). At the same time, economic cooperation – through the creation of the internal market – is a fundamental pillar of the EU project. Restrictions to trade, capital movement, and establishment must be abolished and competition must be promoted. The EU experience in bringing together free trade/investment and environmental protection thus provides a particularly relevant case study for research on the interaction between economic and environmental law. Recent cases before the Court of Justice of the EU (e.g. challenges against the legality of local restrictions under national renewable energy support schemes in C-204/12 to C-208/12, Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits – en Gasmarkt, Judgment of 11 September 2014) illustrate the current importance of this question under EU law.
This book makes an outstanding contribution to the debate on the integration of environmental protection under EU economic law, in particular EU law on free movement of goods, services, and establishment, and EU competition law. de Sadeleer is one of the most established environmental law scholars, known amongst other things for his seminal work on Environmental Principles – From Political Slogans to Legal Rules (OUP 2002). EU Environmental Law and the Internal Market reaches the same high academic standards as his previous work. It impresses with its comprehensive approach and depth, as well as by the accessibility of its analysis of technical legal questions.
Part I on the Introduction to EU Environmental Law covers the EU environmental objectives and principles (Section I.1), the enforcement of EU environmental law (Section I.2), the competences, powers, and legal bases for EU environmental regulation (Section I.3), and a general overview of secondary law (Section I.4). It offers what can be considered as a reference textbook on the topic – directly competing with other leading monographs on EU environmental law such as Jans and Vedder (European Environmental Law, Europa Law Publishing, 2012) and Krämer (EU Environmental Law, Sweet and Maxwell, 2012). However, although generally useful for students, scholars, and practitioners, the broad approach to the study of EU environmental law taken in Part I, to a certain extent, waters down the book's focus on the reconciliation of economic freedoms (the internal market) and the environment. On the one hand, the analysis of the objectives and principles of EU law (e.g. the environmental integration clause) and the study of the legal bases for EU environmental regulation are relevant and necessary to understand the flexibility that the EU and its member states have in derogating to economic freedoms for environmental protection purposes. On the other, it is difficult to see how the discussion of the right to environmental protection under the Aarhus Convention and human rights law, as well as the in-depth study of institutions and instruments of EU environmental regulation, fits with the main subject of the book.
Following – but not necessarily clearly building upon – the introduction to general EU environmental law, Part II on Free Movement of Goods, Services and Establishment and Part III on Competition Law and the Environment are specifically dedicated to the interaction of environmental protection with the EU fundamental economic freedoms. The focus is on the justification of economic restrictions (e.g. quantitative restrictions to trade) based on environmental considerations – a determining issue for the environmental integrity of the EU internal market. de Sadeleer manages to present the complex legal questions characterising the interaction of EU economic law and the environment in a clear and understandable way – making the technical analysis accessible to non-specialists readers. At the same time, de Sadeleer's critical reflections are of great value for scholars specialising in the field of environmental law, given the comprehensiveness of the analysis – covering not only the fundamental economic freedoms but also EU antitrust law, state aid, and services of general economic interests. de Sadeleer highlights the economic focus of the assessment of environmental measures (e.g. waste management schemes) under EU economic law: “environmental improvements that cannot be translated into economic values may not justify restrictive agreements” (p. 468). This conclusion is key because it brings forward a major conceptual bias against the environment in the EU approach to economic growth – this despite the requirement of sustainable development (including the achievement of “a high level of protection and improvement of the quality of the environment”) established in Article 3(3) of the Treaty on European Union and the principle of integration of environmental protection across EU policies.
de Sadeleer's analysis is not limited to the legality of environmental measures that restrict intra-EU economic exchanges, but includes a most interesting study of the extra-territorial dimension of EU environmental policy. Thorough referencing to scholarly writings in the field, as well as to the case law of the Court of Justice, the General Court, and to a lesser extent national courts, illustrates the depth of the analysis and care with which it has been conducted. However, references to – and comparison with – international trade law cases remain scarce and mainly confined to footnotes. This can be regretted: many of the challenges that the EU faces regarding the reconciliation of economic law and the environment are common to the international economic law system (e.g. the question of the extra-territorial application of environmental protection measures and the legality of import restrictions based on processes and production methods). Comparing the EU case law with relevant decisions by the WTO (World Trade Organisation) Dispute Settlement Body and investment arbitration panels could have reinforced the contribution of the book under review to the conceptualisation of regulatory answers to the economic law – environmental protection interaction.
To summarise, EU Environmental Law and the Internal Market provides a comprehensive, well-researched, well-written, and accessible overview of EU environmental law and of the technical questions characterising its interrelation with the fundamental EU economic freedoms and competition law. Despite possible criticism of the broad scope of the book (in particular its coverage of both general EU environmental law and the more specific issue of the legality of restrictions to economic freedoms), it will prove to be an indispensable monograph for students, scholars, and practitioners in the field.