1. Introduction
The European Union (EU) aims to ensure a ‘high level of environmental protection’. This is a key message of primary EU law, including the Treaty on European Union (TEU) and the Treaty on the Functioning of the EU (TFEU).Footnote 1 By explicitly stating its ambition, the EU sets itself apart from other environmental policy frameworks. Many of these frameworks express their aspirations with reference to principles (prevention, precaution, polluter-pays), rights (the right to a healthy environment) or positive obligations (such as a duty to prevent pollution), but few explicitly set out the appropriate standard of protection at the high end of a range of possibilities.
Strangely enough, however, the requirement to ensure a high level of protection (HLP) in relation to the environment fails to attract much attention. Those experienced with the difficulties of negotiating legislative proposals might be amused by such an apparently over-simplistic requirement. It might also be dismissed as too intrusive on the decision maker’s margin of discretion in balancing conflicting interests. As a result, the reference to a ‘high level of environmental protection’ is often treated as a mere recommendation to the legislature;Footnote 2 a policy principle that would hardly be enforceable.Footnote 3 Worse, it might be seen as a cynical embellishment used to legitimize difficult compromises.Footnote 4 Yet, a closer look at EU case law reveals that there might be more to the HLP requirement than meets the eye. The aim of this article is to stimulate debate about a more constructive approach to the requirement and its potential to contribute to the pursuit of environmental protection.
The article explores the raison d’être and the possible meaning of the HLP ambition. Although it focuses on EU law and on its technicalities, the article offers helpful insights to other transnational or federal systems. It may contribute to a better understanding of some of the challenges facing any environmental law regime that has to confront the sensitive issue of ‘ambition’.
The article deciphers the influence of the HLP requirement on case law and on judicial review of legislative and administrative discretion. It argues that the requirement goes beyond window dressing and that its added value, as revealed in the case law of the European Court of Justice (ECJ), lies both in supporting the legitimacy of bold decisions and in preventing a manifest disregard of the requisites of environmental protection.
Recent EU developments affirm the relevance of a discussion on the legal foundation and strengths of the HLP provision in the Lisbon Treaty.Footnote 5 In the field of climate change and air protection, the ambition of the new Commission package proposals has recently come under scrutiny.Footnote 6 In the areas of pesticides regulation and biodiversity, provisional Commission regulations that place restrictions on substances that pose risks to bees are being challenged in court.Footnote 7 The analysis is also timely in a neoliberal context where the weakening of EU environmental protection provisions and policies raises concerns over the regression of the current ‘acquis’.Footnote 8 Calls for simplification, less ‘red tape’ but also less regulation already affect decision-making processes and do not help to allay these concerns.Footnote 9 In addition, future bilateral trade deals might result in lower standards of environmental protection. In a context of economic crisis, where difficult trade-offs between different interests must be struck,Footnote 10 it is important to understand the potential of tools that favour the maintenance of an ambition in protecting health and the environment, including that repeated reference to a ‘high level of protection’.
The article proceeds as follows. Section 2 explains how the HLP requirement appeared in the Treaties and tracks its impact on an increasing number of provisions, from its first mention in 1986 until now. Section 3 examines the influence of the HLP requirement on ECJ case law on environmental and health-related issues, as well as on consumer protection issues. The analysis proceeds in two steps. The first step explores cases in which the HLP requirement is used as a ‘sword’ to argue for the annulment of a legal measure. The second step analyzes the potential of the HLP requirement when used as a ‘shield’ against a wide range of possible claims that might jeopardize the validity a European act or limit its effectiveness. Section 4 discusses the added value of the HLP requirement. It explains that its specificity lies in its function as a ‘target’ or ‘objective’ of a policy or a legislative measure and insists on the relevance and potential of this underestimated dimension. Section 5 clarifies the conditions under which a breach of the HLP requirement could constitute the basis for judicial review. It concludes by exploring avenues to harness the ‘sword-like’ potential of the HLP requirement and insisting on the importance, but also the fragility, of the notion of a high level of protection.
2. THE ROOTS OF THE HLP AMBITION
The insertion of the reference to a ‘high level of protection’ into European law reflects concerns over the possible detrimental effects of European integration. It represents a defensive reaction to the changes that were happening in 1986, while negotiating the so-called Single European Act Treaty (SEA),Footnote 11 30 years after the adoption of the foundational Treaty of Rome (EC) in 1957.Footnote 12 The default voting quorum for the adoption of EU legislation aimed at the establishment and functioning of the internal market had just changed from unanimity to qualified majority. This opened the prospect of speeding up the approximation of Member State laws and aligning formerly divergent national rules with harmonized EU-wide standards. The provision here at stake is the former Article 100A EC, on the approximation of laws, and not the then newly inserted environmental chapter of the Treaty. Some Member States, such as Germany and Denmark,Footnote 13 feared that the passage to a new rule of majority voting for the adoption of harmonized legislation towards the completion of the internal market, which set aside their former right of veto, would lower the general ambition of EU legislation on quality issues. They had particular concerns over the adoption of common standards relating to health, safety, environmental and consumer protection, which were treated very differently by the various Member States. This fear was fuelled by the fact that, during the negotiation process, the European Commission had not hesitated to suggest standards of protection that were less strict than pre-existing national rules.Footnote 14 In order to prevent the possibility that the new harmonized legislation would race to the bottom, the Member States obtained a guaranteeFootnote 15 in the form of a Treaty amendment.Footnote 16 The amendment stated that, in its proposals aimed at favouring the completion of the internal market and concerning health, safety, environmental and consumer protection, the Commission will take as a base ‘a high level of protection’.Footnote 17 This provision did not fully reassure the Member States. They furthermore obtained the insertion of a safeguard clause allowing Member States to apply, after the adoption of a harmonized European measure and under the control of the European Commission, their own national provisions on grounds of major needs such as human health or environmental protection. This soon created a detrimental side effect: instead of focusing attention on the level of ambition of the Commission proposals, disgruntled states needed only to activate the safeguard provision in order to try to maintain their own standards.Footnote 18
Legal scholarship reacted cautiously to the entry of the high level of protection concept in the Treaty. It considered that the passage to qualified majority should not be delayed by the sudden creation of a new hurdle. The acceptable level of ambition should be one that does not create political difficulties for the Member States, in particular in the newly acceded southern states where environmental policies were relatively under-developed.Footnote 19 Leading authors also denounced the possible cloaking effect of the concept, in particular when used to legitimize every draft proposal linked to the completion of the internal market. In this respect, one author claimed that the institutions ‘use the formula of a high level in its reversed order: whatever is proposed or adopted is considered to be a high level of environmental protection’.Footnote 20
Similarly, it was a change of the voting quorum from unanimity to qualified majority during the 1992 Maastricht reforms that triggered the insertion of the reference to a ‘high level of protection’ in the Treaty chapter dedicated to environmental policy.Footnote 21 It is worth noting that during its first years of existence (from 1986 onwards), the chapter dedicated to the environmental action of the Community did not mention a particular ambition. The very generous safeguard clause allowing Member States to maintain or introduce more stringent protective measures compatible with the Treaty was deemed to be sufficient.Footnote 22 Not all Member States were eager to promote stringent measures in a field in which they were not themselves very active. Again, the HLP requirement was inserted only when Member States lost their right of veto.Footnote 23 The context of the early 1990s, influenced by the 1992 Rio Earth Summit,Footnote 24 was apparently more favourable to a strengthening of the environmental dimension of the European treaties. It was under the guise of target, and no longer as a mere departure point, that the ‘high level of protection’ requirement was inserted in the chapter on environmental policy. It read as follows: ‘Community 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 Community’.Footnote 25 In addition, a similar ambition was mentioned in the Treaty chapters on public health and consumer protectionFootnote 26 and, with regard to health and employment, in the very first Articles of the Treaty detailing the competencies of the (then) European Community (EC).Footnote 27
Since then, the concept has entered into further provisions of the Treaties and its scope and wording have been reinforced. In 1997, with the changes brought about by the Treaty of Amsterdam (ToA),Footnote 28 a link was made between the high level of protection which the Commission must take as a basis for its proposals in the Treaty provision dealing with the approximation of lawsFootnote 29 and the requirement that the Commission take into account in particular any new development based on scientific facts. This turned the HLP requirement into a dynamic process.Footnote 30 The requirement extends beyond the European Commission, since the Council of Ministers (representing Member States) and the European Parliament (EP) would also ‘seek to achieve this objective’.Footnote 31 The ‘high level of protection’ notion percolated also into various articles of the new Charter of Fundamental Rights of the European Union,Footnote 32 adopted in Nice in 2000. Although, at that time, the Charter existed outside the remit of the EU Treaty, it enshrined an important list of rights and principles, including important provisions on health, environmental and consumer protection.Footnote 33
The gradual expansion was not as smooth as it might appear. The draft Constitutional Treaty presented by the Praesidium in 2003 threatened to reduce the prominence of some of the provisions containing the HLP requirement, but they were soon reintroduced by way of amendment. Moreover, the Constitutional Treaty ultimately failed. The most recent modifications brought about by the 2007 Lisbon Treaty, which entered into force in December 2009, confirmed the strong presence of the requirement in many provisions, including in one of the very first articles detailing the main aims of the EU. A high level of protection and improvement in the quality of the environment is explicitly stated in a context of sustainable development,Footnote 34 and in various parts that detail the rules governing the functioning of the EU, such as in the articles dealing with the approximation of laws,Footnote 35 with environmental protection,Footnote 36 with public healthFootnote 37 and with consumer protection.Footnote 38 The Charter also explicitly refers to the HLP in relation to human health,Footnote 39 the environmentFootnote 40 and consumer protection.Footnote 41
3. IMPACT ON CASE LAW
Although the EU Treaties consecrate the notion of HLP, they offer little detail about its true meaning or its potential effects. Answers must be found in ECJ case law.Footnote 42 It is ultimately before the Court that the strengths of these various treaty provisions as part of the so-called ‘primary law’ of the EU – which refers to the rules upon which all Member States agree and which govern the functioning of the EU institutions and the adoption of their acts – are tested. A close look at EU case law reveals that referring to this ambition is not devoid of consequences. The sceptical attitude of commentators with regard to the significance of the HLP requirement, when it was first inserted in the internal market provisions of the Treaty of Rome via the SEA, apparently did not impress the Court.Footnote 43 On the contrary, the ECJ has welcomed the HLP requirement both as a possible ground for judicial review and as a convenient rhetorical boost in its interpretations.
It is easy to identify two categories of possible uses of the HLP requirement. This article refers to these as ‘the sword’ and ‘the shield’.
The first category includes cases in which the HLP requirement is used as a direct ground to petition the annulment of a legal measure, or to contest the legitimacy of the measure. Although cases are few in number, their outcomes are varied. Importantly, the Court generally considers the argument admissible for judicial review, but it rarely finds that it has sufficient merit. These cases are important as they clarify what constitutes a high level of protection. They reveal the importance of the criteria of ‘considerable improvement at the EU level’ and of ‘adopting more stringent measures than the international obligations’. They also make the search for ‘the highest possible level of protection’ less daunting. They shed light on the conditions under which changes in the level of protection, compared with the pre-existing level of ambition in a Member State or the content of a pre-existing European act, might be acceptable. Finally, the ‘sword’ cases reveal the potential of the HLP requirement as a criterion to assess the legitimacy and reach of administrative acts.
The second category of cases reveals the potential and limits of the HLP requirement as a means to insulate European acts from legal challenge.
3.1. The HLP Requirement as a Sword
A considerable improvement at the EU level
In an action brought before the Court in 1997 for annulment of a Directive on deposit-guarantee schemes involving consumer protection issues,Footnote 44 the German government claimed that, because the result of implementing this Directive was a reduction in the level of consumer protection in Germany, it should be annulled on the ground of, inter alia, incompatibility with the Community’s objective of attaining a high level of consumer protection. The grounds were very explicit and directly contradicted the ambition of the EU Directive.Footnote 45 The ECJ acknowledged that there must be a high level of consumer protection concomitantly with the other freedoms that are protected in the legislation, and accepted that the discussion concerning the level of protection is relevant.Footnote 46 Yet, the ECJ decided that ‘no provision of the Treaty obliges the Community legislature to adopt the highest level of protection which can be found in a particular Member State’. For the Court, although the application of the Directive might result in a reduction in the level of protection in certain states, this does not compromise the general result which the Directive seeks to achieve, namely, a considerable improvement in the protection of depositors within the Community.Footnote 47 The Court tackled the paradox of a lowering of the level of protection for German citizens while observing the HLP requirement in the Treaty by reviewing the problem from a broader perspective: it argued that there must be a considerable improvement in the protection of depositors within the Community.
One might question whether this perspective, adopted at a time when the (then) European Economic Community (EEC) consisted of only 15 Member States, would still hold sway in today’s larger EU. With 28 Member States, does the adoption of new EU legislation not necessarily promote a considerable improvement somewhere? The message of the Court should therefore be updated in order to take into account the increased size of the EU.
High, but not necessarily the highest
In 1998, the twin judgments in Safety Hi-Tech and Bettati, which had a direct link with environmental issues, conveyed a further lesson in relation to the HLP requirement.Footnote 48 In these cases, the requirement is used in a very singular and quite pernicious way – namely, as a potential means to unravel any environmental legislation that might not correspond with the highest ambition. Even though the judgments may represent a typical example of ‘a wrong case at the wrong time’,Footnote 49 they caused much controversy. What was at stake here was not the pre-existing level of environmental protection in a Member State, but commercial interests: a firm could not be paid by its contractor for the fire-fighting products that should have been supplied as these products had suddenly become unusable as a result of a new European Regulation. The distributor contested the validity of the regulatory prohibition of hydrochlorofluorocarbons (HCFCs) in the light of the objective of the environmental chapter of the Treaty.Footnote 50 He argued that by authorizing the use of halons, which represented a much greater threat to the ozone layer, ‘the Regulation failed to ensure a high level of environmental protection as required by Article 130r(2) of the Treaty’.Footnote 51 The Court disagreed with this interpretation and concluded that the Regulation ensured a high level of protection because it adopted a more stringent measure than that deriving from the international obligations under the Vienna Convention for the Protection of the Ozone LayerFootnote 52 and its Montreal Protocol on Substances that Deplete the Ozone Layer.Footnote 53 The Court also seized the opportunity to further defuse this quite disingenuous use of the HLP requirement and made clear that:
[w]hilst it is undisputed that Article 130r(2) of the Treaty requires Community policy in environmental matters to aim for a high level of protection, such a level of protection, to be compatible with that provision, does not necessarily have to be the highest that is technically possible. As stated in paragraph 43 of this judgment, Article 130T of the Treaty authorises the Member States to maintain or introduce more stringent protective measures.Footnote 54
The flexibility arising from the first sentence of the paragraph was praised in prevailing scholarship.Footnote 55 The second part, however, was quickly forgotten, in spite of its importance as the justification for the very flexibility recognized in the first part. If the level of protection need not necessarily be the highest that is technically possible, it is because, as a result of the specific provisions of the environmental chapter on which the measure was based, Member States may always introduce more stringent protective measures.Footnote 56 The broad possibility of correction towards a higher level of protection that characterizes the environmental chapter of the EU Treaty must be read into the objective of the policy. If the EU does not necessarily need to opt for the highest possible level of protection technically, it is because the Treaty allows Member States to go even further and raise the level of protection as they wish. Although slightly contrived, the logic makes sense. In this manner, the Court avoided creating a sword of Damocles that might have jeopardized any European environmental legislation that did not meet the most stringent standards possible.
The proposed argument did not succeed in invalidating the Regulation; nor was the resulting message that constructive. The Court’s position in Safety Hi-Tech and Bettati can still easily be misinterpreted as a permission, or even an obligation, ‘not to go too far’, especially when choosing between various possible alternatives. When taken out of context, this potentially undermines the HLP requirement, as already demonstrated in a few cases.Footnote 57
The HLP requirement as a limit to delegation and an indicator of essential elements of EU legislation
The HLP requirement also has an institutional dimension as it plays a part in distinguishing between the realm of the legislature and the powers of the EU executive. It plays a role in distinguishing essential from non-essential elements of a legislative act, with implications for the scope and limits of executive tools.
In an earlier case between the EP and Council involving pesticides, the ECJ observed that Directive 91/414/EEC concerning the Placing of Plant Protection Products on the MarketFootnote 58 sought to ensure a high standard of protection of the environment, including the protection of all groundwater, and noted that this factor was decisive in its appreciation of what constitutes an essential element of the basic act, not to be modified without due respect for the appropriate legislative process.Footnote 59 Because the executive tool that set out uniform principles for the evaluation and authorization of plant protection products did not impose on Member States the need to take seriously into account the impact on all groundwater, the Court considered that it had failed to observe one of the essential elements expressly laid down by the basic Directive, which sought ‘in particular to ensure a high standard of protection’.Footnote 60 The EP’s assertion that the contested implementing act had altered the scope of the obligations imposed by the basic Directive, without following the indicated legislative procedure prescribed in the EC Treaty – which called for the EP to be consultedFootnote 61 – was therefore well founded.Footnote 62 The Court consequently annulled the disputed act of the Council. Clearly, in that case, the reference to the HLP requirement played a decisive role in assessing the bounds of the executive power, even if it featured only in the preamble to the Directive and not in its binding provisions. The Council, in its executive capacity, was not allowed to exclude the impact on all groundwater from the reach of the uniform principles imposed on Member States. The HLP plea functioned here in favour of a more thorough consideration of the importance of protecting the environment, even though it was in an agricultural context. It also helped to strengthen the prerogatives of the EP.
Ten years later, in relation to the same Directive on plant protection products, Sweden directly invoked a breach of ‘the principle that a high level of protection of the environment and human health is to be ensured’ in order to contest the validity of a Commission Decision before the General Court (GC) (formerly known as the Court of First Instance (CFI)).Footnote 63 Together with the ECJ, the GC forms part of the Court of Justice of the European Union (CJEU). It may hear actions brought by Member States against the Commission. The case dealt with the inclusion of the herbicide paraquat on a positive list that would allow the substance to enter the EU market, a possibility strongly opposed by Sweden. Sweden developed its HLP plea on the basis of two different submissions: the first concerned provisions in the Directive that fix limits regarding the acceptable operator exposure level to the substance. The second alleged a reduction in the level of protection that was guaranteed in the Directive. Sweden obtained the annulment of the Commission Decision as the GC declared that ‘both branches of the set of pleas in law alleging infringement of Article 5 of Directive 91/414, breach of the principle of integration, breach of the precautionary principle and breach of the principle that a high level of protection should be ensured must be substantially accepted’.Footnote 64 However, the message regarding the HLP plea is not clear. The HLP element was more implicit than directly decisive. Sweden successfully demonstrated that models and field studies showed that the level of protection in the disputed Decision did not meet the requirements set out in the basic Directive. It showed also that, because the operator exposure level would be exceeded, the Commission had failed to comply with the basic act and the HLP requirement in its examination of paraquat.Footnote 65 Yet, the GC confirmed only that the submissions alleging operator exposure above the acceptable level must be accepted,Footnote 66 without any explicit reference to the HLP. It is a tacit endorsement at most.
With regard to the second HLP-related submission, which argued that the level of protection was lower than that afforded in the basic act, the GC showed itself willing to consider the argument but did not approve Sweden’s interpretation. It explained that laying down additional requirements when including a substance in the annex to the Directive does not amount to reducing the level of protection, if only because this is allowed by the basic act itself.Footnote 67 Still, the Court did not question the relevance of the proposed linkage between the ‘principle’ that a high level of protection should be ensured and the absence of reduction in the level of protection.
In a 2008 case in which the EP sought the annulment of a Commission Decision on the restriction of the use of certain hazardous substances in electrical and electronic equipment,Footnote 68 the ECJ gave more credit to the possible influence of the HLP requirement on dispute settlement. In this case, which involved the chemical substance decabromodiphenyl ether (DecaBDE),Footnote 69 it was not the parties but the Court itself that wielded the ‘sword’. The ECJ found in the HLP requirement the grounds to consider that the Commission had infringed the basic Directive when it allowed a general exemption for the use of DecaBDE in electrical and electronic equipment. Referring to various provisions of the EC TreatyFootnote 70 and to their explicit aim of a high level of protection, the Court in Grand Chamber confirmed that the conditions for exempting the prohibition of hazardous products in such equipment must be interpreted strictly. As a consequence, and ‘without it being necessary to rule on the extent of the Commission’s discretion’,Footnote 71 the ECJ decided that a Commission Decision allowing a general exemption for the use of DecaBDE ran counter to the objective pursued by the legislature. The restrictive interpretative effects of HLP targets were instrumental in facilitating the annulment of the disputed provisions. The case confirms that a dimension of HLP can play a decisive role in assessing the boundaries of the executive power under EU law. In particular, it can be deployed to counter attempts to dilute the protective standards decided by the legislature.Footnote 72
The foundation of a no-regression principle under EU law
A recent case regarding the HLP requirement in relation to health issues invites discussion of a potentially very contentious issue:Footnote 73 does the HLP requirement entail a ‘no-regression’ principle, compared with pre-existing EU rules? Could it be a benchmark to ensure that the level of protection promoted by environmental, health or consumer-related regulations does not go backward but only moves forward and is even constantly improved?Footnote 74
Regulation (EC) No. 999/2001 laying down rules for the Prevention, Control and Eradication of certain Transmissible Spongiform Encephalopathies (Mad Cow Disease Regulation)Footnote 75 imposes an obligation on the European Commission to ‘maintain or, if scientifically justified, increase the level of protection of human and animal health ensured in the Community’.Footnote 76 The GC has explicitly described this Regulation as ‘reflecting’ the HLP requirement of the TFEU.Footnote 77 This hints at a possible linkage, as already observed in the paraquat case,Footnote 78 between the HLP argument and an obligation not to reduce the level of protection that is imposed by the basic act.
The initial rule was to destroy the whole herd of animals to avoid the threat of mad cow disease. This rule was later relaxed when total herd culling could be considered disproportionate given the availability of disease-detecting tests. France reacted fiercely as it considered the new regime to be too weak, and contested the legality of the respective Commission Decision. France uncompromisingly argued that the European Commission breached its obligation to ensure a high level of protection of human healthFootnote 79 as well as the precautionary principle in relation to risk management.Footnote 80 However, this plea failed to convince the GC, not because it would be unfit for judicial review but because the Court considered that it could not find any manifest error in the assessment. On appeal, France insisted on the need for a more subtle assessment, based on the specific wording of the basic act. It argued that it was not sufficient to check whether the HLP requirement had been respected ‘in general’, but that the GC should have verified that the measures maintained or increased the level of protection of human health. The ECJ, acting as an appeal court from the GC, accepted that the approach should be refined given the specific wording of the basic act, but changed perspectives as to how the comparative clause must be interpreted. It considered that the clause was indeed inserted in order to prevent any lowering of the level of protection in the EU that might occur through executory measures, but that the provision must not be interpreted as excluding any relaxation from earlier preventative measures. It considered that the comparison – in that specific case and with due regard to the specific wording of the mandate given to the Commission in the Mad Cow Disease Regulation – must not be carried out with reference to the level of protection resulting from earlier preventative measures adopted in the same field, but refers ‘in general to the level of health “assured in the [EU]”’.Footnote 81 For the ECJ, it cannot be ruled out that, in the light of scientific progress, the same level of protection may be ensured by less restrictive measures. This is because the level of protection of human health is tightly correlated with the level of risk deemed acceptable for society, which depends in turn on the scientific knowledge available at a given moment.Footnote 82 The assessment of a possible ‘regression’, in relation to the mandate given to the Commission, is flexible and depends on how risk management has evolved, not on the content of the previous regime. This very accommodating interpretation renders review of the achievement of an equal or higher level of protection extremely flexible when risk management is involved.
No direct effect
In the area of consumer protection, the Schulte case concerned customers who complained about the weak level of ambition of their own national law in protecting a loan agreement. They sought to invoke the HLP requirement directly in national court proceedings. However, the ECJ disagreed that the HLP requirement as incorporated in Article 114 TFEU (formerly Article 95 EC) could have a ‘direct effect on Member States’ and could be relied on directly as a basis for obligations that are binding on a Member State.Footnote 83 It nonetheless endorsed the interpretative role of the argument in reviewing a national measure’s compliance with EU law by affirming that ‘at the most the provision could be used as an aid to interpretation of the Directive’.Footnote 84
Assessment
The sample is too small to draw decisive conclusions but is nevertheless instructive. Firstly, the HLP argument is justiciable. When pleas relate to acts of EU institutions, the Court does not reject them as being irrelevant, or as encroaching on the discretion of the decision maker. Secondly, a clear divide exists between judicial review of the ambition of a basic legislative act and judicial review of the ambition of an executive or delegated act. The intensity of review is considerably higher in the latter than in the former scenario. Thirdly, the Court apparently does not wholeheartedly endorse the original objective of the first Treaty amendments with regard to the HLP requirement, which was to resist a weakening of pre-existing levels of protection. The Court refuses, however, to set aside the requirement. In that regard, the Court explains the position that ‘the HLP does not necessarily mean the highest level of protection’. The Court even provides a set of possible indicators that could help in identifying compliance with the HLP requirement. Among them, the acknowledgement that the measure is more stringent than related international obligations is worth noting.Footnote 85
3.2. The HLP Requirement as a Shield
There is extensive case law in which the HLP requirement has proved useful as a shield to enhance the legitimacy of EU acts and defend them against a wide array of claims.
Supporting the choice of Article 114 TFEU as the appropriate legal basis
Choosing the right legal basis (the specific treaty provision on which an EU regulation or directive is based) is an important requirement under EU law, given the principle of conferral, or attributed powers.Footnote 86 The legal basis determines the extent of the EU competence. It settles the appropriate decision-making procedure for the adoption of the measure concerned. It determines the essential requirements of each specific policy. To verify that the correct legal basis has been selected is part of the mandate of the European Court. In that regard, it is noteworthy that the Court used the HLP requirement at an early stage to confirm the legality of Article 114 TFEU on the approximation of laws (formerly Article 100A EC) over Article 191 TFEU (formerly Article 130R EC). Article 114 was arguably the more democratic treaty basis because it demanded a deeper involvement of the EP in decision making than did earlier incarnations of Article 191 TFEU. Because Article 114 TFEU refers to the need to take as a basis a high level of protection, the Court decided that it ‘expressly indicated’ that the objectives of environmental protection may be effectively pursued and that environmental measures were not the exclusive preserve of the Council.Footnote 87 The rationalization did not stop there as the Court further exploited the potential of the HLP requirement, this time to settle sensitive health-related issues and to avoid the competency constraints that characterize EU health policies. In health matters, the EU may only ‘complement’ but not ‘harmonize’ national legislation, except in a few limited areas such as measures regarding medicinal products, devices for medical use, veterinary and phytosanitary fields, blood and its derivatives.Footnote 88
Notwithstanding this restriction, the ECJ has used two tools that expand the potential for harmonization. Firstly, the Court referred to the integration principle, as expressed in the health policy chapter,Footnote 89 according to which a high level of human health protection is to be ensured in the definition and implementation of all EU policies and activities. Secondly, the Court read Article 114 TFEU expansively and interpreted it to mean that the article explicitly requires that a high level of protection of human health ‘is to be ensured’Footnote 90 or ‘should be guaranteed’Footnote 91 in achieving harmonization. This is not the exact wording of the Treaty.Footnote 92 The Court arguably used this approach in order to force the use of Article 114 TFEU as the appropriate legal basis in cases where health issues, including tobacco-related illnesses, were at stake, and to favour Article 114 TFEU over a health-related specific legal base that does not cover the possibility of European harmonization as such.Footnote 93 The Court considers that because a high level of human health protection is to be ensured in the definition and implementation of all EU policies and activities, one can safely say that proposals based on Article 114 encompass that dimension just as one can accept the possibility of harmonization in health-related areas.Footnote 94
Avoiding diluted interpretations
The ECJ favours teleological interpretationFootnote 95 and states that the provisions of a given law must be interpreted in the light of its purpose. Thus, directives must be interpreted in a way that safeguards their practical effect or ‘effet utile’. Conversely, interpretation must not jeopardize the fundamental objective of the legislation. The recognition of the importance of this objective has a consolidating effect. It offers the potential to avoid diluting interpretations and to confirm strong positions. In that regard, it is worth noting that the HLP, often linked to or expressed as the target of a policy, has the potential to reinforce teleological interpretation.
Reliance on the HLP has indeed proved to be quite effective in preventing restrictive interpretations that tend to narrow the scope of EU legislation. It helped to insert quails, partridges, pigeonsFootnote 96 and giltsFootnote 97 within the scope of Directive 96/61/EC on Integrated Pollution Prevention and Control (IPPC).Footnote 98 It consolidated the right to bring an action to prevent pollution, including the availability of an injunction against a permit as a remedy, where necessary.Footnote 99 It also helped to ward off attempts made by Member States to narrow the scope of the Strategic Environmental Assessment DirectiveFootnote 100 and of the Waste Framework Directive.Footnote 101 Teleological interpretation also helped to strengthen the threshold of compliance: because a legislative act pursues a high level of protection, a Member State (and its industrial installations) must comply fully with it.Footnote 102 In the cases just mentioned, the ECJ’s references to the HLP emanate directly from the wording of the secondary legislation under scrutiny. However, if the HLP requirement is not expressly mentioned in the directive or regulation at issue, the Court will introduce it by directly invoking the Treaty and affirming the requirement in relation to the legal basis or even to the fundamental objectives of the Treaty. In such cases, it is the aim governing the policy itself, as laid down in the TFEU, which helps to avoid restrictive interpretations. This process is decisive in a consistent series of casesFootnote 103 that deal with the concept of waste and, particularly, what it means to ‘discard’ an item. This is so even if the reference is enshrined in a ‘package’ of provisions that often also includes the precautionary principle. The HLP requirement is also key in assessing the manoeuvring room available to Member States regarding their power to restrict movements of waste and keep them on their territory if they consider that recovery in the destination state could harm human health and the environment.Footnote 104 It plays an important role in the Court’s refusal to accept weak interpretations of the Waste Water DirectiveFootnote 105 and in its confirmation that treatment is an obligation for all urban waste water, and not only for water that is directly discharged into a sensitive area.Footnote 106 However, the trend is not fully consistent. In some cases, the HLP wording could have reinforced or even changed the interpretation in favour of a stricter environmental protection framework, but it was not mentioned.Footnote 107
A way to bridge transition gaps
The HLP requirement plays a role in preserving the effects of an annulled measure. In Inter-Environnement Wallonie and Terre Wallonne, the ECJ accepted that the possibility ‘cannot be ruled out’ that the objective of a high level of protection of the environment being pursued by EU policy in the area of environmental protection may be better achieved by maintaining the effects of an annulled order during the short period necessary for its redrafting rather than by retroactive annulment.Footnote 108
A convenient tie-breaker
The HLP requirement may also help to close complex debates. In a few cases, the reference to the requirement has acted as a final decisive argument, or as a presumption in helping to settle disputes in a peremptory way, without any detailed explanation as to its supposed content. In these instances the Court refers to the HLP requirement in a rather oblique manner, injecting general statements into its deliberations such as ‘this is confirmed by the objective of ensuring a high level of protection’ or ‘this means that the measure is not capable of compromising the objective of a high level of protection’.Footnote 109 In these situations, the ECJ’s deployment of the HLP requirement comes across as rather cynical and its functionality appears quite far removed from pursuing environmental goals.
Testing the limits
The ‘shield effect’ is also important in consumer protection cases, but it operates within clear limits.Footnote 110 The Court is very clear that recourse to the HLP requirement in consumer protection issues is of no avail where complete and maximum harmonization has been reached. This approach to harmonization, which leaves Member States with no opportunity to adopt stricter measures once the common standard has been fixed, characterizes the field of consumer protection, in contrast to the area of environmental protection.Footnote 111 In recent cases involving commercial practices, Member States have argued that they acted in favour of a high level of consumer protection. The Court considered this not to be an appropriate basis to justify measures that are stricter than the harmonized EU legislation, as the Treaty does not provide for any leeway in that regard.Footnote 112
Assessment
The findings of the ECJ show that the HLP requirement may function as an interpretative tool that can consolidate the legitimacy of EU acts, without always necessarily endorsing a true attempt to reach a higher level of protection. The Court tends to call on HLP to get out of difficult situations and often relies on alternative treaty bases. There is a trend in cases that review the compatibility of national measures with EU law to use the HLP requirement to boost legal arguments that could also have been promoted on the basis of the ‘effet utile’ doctrine. It is indeed already well known that a directive or a regulation must be interpreted in the light of its objective and in such a way as to ensure that it is fully effective. Still, the HLP dimension further helps to fend off attempts to dilute the stringency of some EU requirements, as it insists on the need to pursue a certain degree of ambition in the area of environmental protection. However, the case law is not fully consistent and may still evolve in various directions.
4. ADDED VALUE – THE IMPORTANCE OF SETTING A TARGET
4.1. The Target and its Foundations
As expressed by Advocate General Bot in 2003,Footnote 113 both the TFEU and the Charter of Fundamental RightsFootnote 114 raise the general interest in a high level of environmental protection ‘to the status of an EU target’. The strength and particularity of the HLP requirement lies primarily in its status of ‘target’. The HLP is the raison d’être of EU policy on the environment, while the principles of prevention, precaution, correction by priority at source and polluter-pays are its foundations.Footnote 115 The Court in Grand Chamber confirmed this distinction, which follows from the very wording of the Treaty, when it specified that the precautionary principle ‘is one of the foundations of the high level of protection pursued by Community policy on the environment’.Footnote 116
A distinction must thus be drawn between these various elements, even if they are closely related. In the area of risk management, the link between the HLP requirement and precaution is admittedly very tight. They form an unavoidable duo: distinct, but necessarily combined. This became clear in the Artegodan case, in which the GC relied on the health dimension of the environmental chapter in the TFEU in combination with the HLP requirement to justify elevating the precautionary principle to a general principle of EU law.Footnote 117
However, the HLP is often mentioned without any reference to the precautionary principle. Although precaution and the HLP requirement both deal with ambition (the level of protection to be pursued), precaution under EU law always implies situations where risks and uncertainty are combined.Footnote 118 This is not intrinsic to the HLP requirement. The peculiarity of HLP lies in its bold questioning of the ambition as such, with no necessary link to issues of scientific uncertainty.
4.2. Relevance of a Target
The status of the HLP as a target is significant under EU law for various reasons.
As shown in the analysis of the ‘shield’ case law above, the target of a legislative act or of a policy is a decisive factor where case law embraces teleological interpretation: the target often guides the reasoning of the judge in order to avoid diluting interpretations that would weaken EU law.Footnote 119
The target is also decisive in appreciating limits to delegation stemming from a basic act: the target helps to distinguish what is essential from what is not, and therefore cannot or can be lawfully delegated.Footnote 120 The target of the basic act also helps to determine the delegate’s margin of discretion and curtails discretion when the basic act directly fixes a mandate that, because of the aim pursued, must be interpreted strictly.
Additionally, the target is a pivotal element in reviewing the proportionality of EU legislation. More often than notFootnote 121 EU measures are expected to be proportionate to the aim of the proposed measure. Indeed, settled case law affirms that the principle of proportionality requires that EU measures do not exceed the limits of what is appropriate and necessary ‘in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, one must resort to the least onerous one, and whatever the disadvantages are must not be disproportionate to the aims pursued’.Footnote 122 The objectives or aims pursued are truly deciding factors in the review of proportionality; they are the steady elements, beacons in a sea of possibility, against which the acceptability of restrictive measures is to be tested. Here, a reference to the HLP target may be sufficient to overcome the proportionality hurdle, especially when judicial review is limited to measures that are manifestly inappropriate.Footnote 123 Francis Jacobs considers it ‘safe to say that if the set objective involves a high level of protection, the restraints will inevitably be also higher. So, endorsing higher levels implies a readiness to accept more restrictive measures, as that is the very nature of proportionality’.Footnote 124
Yet, a target is rarely isolated and must often be read in combination with others. Still, concurrent targets are not necessarily conflicting but can reinforce each other.Footnote 125 The Court sometimes organizes targets hierarchically and gives precedence to the protection of health and the environment, as it did with regard to the REACH Regulation on chemical substances.Footnote 126 Even when the Court decided that it was necessary to ascertain whether, in exercising its discretion, the EU legislature attempted to achieve a degree of balance between the protection of health, the environment and the consumer on the one hand and the economic interests of traders on the other, it clarified that such a balance must be struck ‘while pursuing the objective assigned to it by the Treaty to ensure a high level of protection of health and environmental protection’, thus adding a special weight to the last dimension.Footnote 127
It is also settled case law that although some freedoms and rights form part of the general tenets of EU law – such as the freedom to pursue a trade or a business and the right to own property – they do not amount to unfettered prerogatives but must be seen in the light of their social functions. Consequently, they may be restricted, provided that these restrictions correspond in fact with the objectives of general interest pursued by the EU.Footnote 128 In that regard also the target that is being pursued by the restrictive measure plays a crucial role. It often happens that the ECJ, when confronted with conflicting rights or freedoms of equal value, considers that the interests involved must be weighed with regard to all the circumstances of the case in order to determine whether a fair balance was struck.Footnote 129 One cannot find such an explicit review of a ‘fair balance’ where the ECJ observes, on the contrary, that the ‘the importance of the objective pursued by the disputed regulation may justify adverse consequences, even substantial adverse consequences, for certain traders’. In notorious cases such as Fedesa (hormones) and Arcelor (emissions trading),Footnote 130 the Court has indeed affirmed that the importance of the public interest objectives pursued, including health and environmental protection, is such that it justifies even substantial negative economic consequences for certain operators. This remains applicable even if it has also been made clear that the EU legislature’s exercise of its discretion must not produce results that are ‘manifestly less appropriate than those that would be produced by other measures that were also suitable for those objectives’.Footnote 131
The fact that a disputed regulation entails serious economic consequences therefore does not suffice to conclude that it is disproportionate or unbalanced for the purpose of judicial review. This is far from the comforting idea of a principle of ‘equilibrium’ in assessing the legality of EU acts. The GC recently linked this quite radical pronouncement to the HLP target, at least in relation to the public health dimension of the TFEU.Footnote 132
4.3. Special Effects of Integration
The potential of the HLP requirement as a way to expand the reach of EU law by enabling recourse to treaty bases warrants further reflection on the possible impact of the so-called ‘integration clauses’ of EU primary law and on the logic developed in the settled case law. The strength of an integration clause, also referred to as a ‘mainstreaming’ or ‘horizontal’ clause,Footnote 133 depends on its weight (what it refers to) and formulation (how it is phrased). When the integration clause states that a high level of human health protection shall be ensured in the definition and implementation of all EU policies and activities,Footnote 134 it is a strong requirement. The alchemy of linking Article 114 TFEU on market harmonizationFootnote 135 with the requirement to integrate health and environmental considerations in all EU policies has unlocked the door to harmonization in health-related issues, as discussed in the case law analysis above. Moreover, harmonization occurs under the condition that a high level of protection is guaranteed. This necessarily turns the HLP requirement into an ‘obligation’ rather than a mere recommendation. It is because of the integration clause, which brings with it the HLP requirement, that the EU may circumvent the limitations of Article 168 TFEU.Footnote 136 The Court’s reasoning, referring to Article 114 TFEU to promote maximum harmonization in health issues, will be acceptable in the long term only if the HLP concern is genuine. In that regard, the test will not be whether the legislator has adopted the highest level of protection possible but rather if it has not committed an obvious error of appreciation. A complete harmonization on the basis of the lowest common denominator would not be legitimate, nor would the generalization of a very low level of health protection.
5. CONCLUSION
It was easily foreseeable, but it is now confirmed: the ‘sword’ path is much trickier than the ‘shield’ path. The concrete level of ambition deemed acceptable for society in a specific EU act, in areas such as the environment or health protection, results from a complex political choice which lies with the competent authority and not with the Court.Footnote 137 Judicial review of the substance is therefore often confined to examining whether the exercise by the authority of its powers is vitiated by an evident error of assessment, whether through an abuse of power or by exceeding the limits of discretion. From this vantage point, establishing that an institution did not commit an evident error or exceed its powers is easier than doing the opposite. The HLP requirement will therefore more easily be deployed to affirm EU authority than to dismantle it. The ‘sword’ path is not conclusively barred, but it must be used selectively. The ECJ case law shows that two avenues are at least worth considering.
The first avenue concerns the conformity testing of the relation between a basic act and its delegation or executory measures. When a mandate has been given, the delegate’s margin of discretion is necessarily limited: delegated acts must remain in conformity with the essential elements of a basic act, including its aims. In this regard, the HLP dimension has already proved to be useful in the annulment of Commission decisions.Footnote 138
The second avenue relates to the harmonization of measures based on the harmonization clause of Article 114 TFEU.Footnote 139 Here, the HLP requirement may be interpreted as a specific duty that limits the discretion of the decision maker. While acknowledging that a degree of political compromise is inevitable, Weatherill and Oliver assert that ‘a manifest neglect to address the protective quality of the harmonized rule or a manifest error of appraisal regarding the applicable conditions would provide a basis for annulment of an adopted act’.Footnote 140 Generalizing the lowest level of protection, or adopting a standard that would result in a real reduction in protection at EU level may well be an indicator of such a manifest neglect or error of appraisal. Admittedly, this would impact only on the most obvious situations.
Paradoxically, challenging the legality of the level of protection of an EU act adopted on the basis of the environmental chapter of the TFEUFootnote 141 is a dead end. This is because of the possibility of correction towards a higher level of protection afforded in Article 193 TFEU. That specific chapter creates a ‘system’ for achieving the target of the policy by combining, on the one hand, the minimal protection which the harmonized rule has crystallized and, on the other hand, the opportunity left to Member States to reinforce that protection. In this area, indeed, there is always, legally speaking, the possibility open to Member States to reinforce the standard of protectionFootnote 142 even if this is not an easy political choice.Footnote 143 However, the ECJ would entertain arguments that challenge the adequacy of the basic level of protection afforded by the EU legal act. Evidence that the level of protection is lower than that provided by internationally agreed common obligations might convince the Court.Footnote 144 The HLP requirement could also prove to be useful in affirming the legality of national opt-up measures.Footnote 145
In the future, the HLP requirement might also be applicable in relation to the acceptance of national measures that impact on the free movement of goods, insofar as environmental protection is concerned, and in situations where Member States act on their own initiative and in fields that have not yet been harmonized at EU level. Various steps have already been taken in that regard in the area of health protection and education, with an impact on the burden of proof and the assessment of proportionality. National measures that have an impact on freedom of establishment or equal access to education may be justified if they meet a certain threshold. According to the ECJ, proactive national measures that restrict freedom of establishment may indeed be justified insofar as they satisfy a new criterion – that of making a ‘contribution to achieving a high level of protection’ of healthFootnote 146 – without going beyond what is necessary to achieve that goal.Footnote 147 Moreover, any difference in access to education that could be indirectly discriminatory on the basis of nationality may also be justified by the objective of maintaining a balanced high-quality medical service open to all ‘in so far as it contributes to achieving a high level of protection of health’.Footnote 148
These observations demonstrate that the HLP requirement, in the Treaty as well as in secondary legislation, has grown some teeth through case law. It could grow more. HLP requirements are indeed powerful enough to transcend the various apparent categories and wordings that characterize primary law, thus endorsing decompartmentalized approaches and creating a true new dynamic.
However, I consider that the HLP requirements are not yet sufficiently strong to exist as autonomous principles that emerge ‘beyond the texts’.Footnote 149 They remain tethered to the Treaties. As a consequence, they could still easily be jeopardized if they are not explicitly maintained as part of primary EU law, and attempts have already been made in that regard. Such a removal would raise important questions on the legitimacy of EU powers regarding environmental protection. The origin and developments of HLP requirements are indeed closely linked to the process of European integration. They germinated not from serenity but from fear – the fear of the lowering of pre-existing levels of protection. Nor do they emanate from earlier or parallel developments which occurred at the international level and which could maintain their dynamism. They are deeply linked to the conferral of competences from the national to the transnational, in this case the European, level, and to the questions regarding harmonization and the appropriate standard of protection that emerged through this process. It is therefore essential to bring these requirements more effectively into the light in order to consolidate and develop their potential, should it be minded to further promote that specific ambition in the framework of substantial large-scale legislative and regulatory integration.
The evolution of the HLP in case law stands in contrast to the feeble impact of the requirement on the legislative process itself.Footnote 150 Judges would be hard pressed to find much justification for compliance with HLP requirements in the (pre-)legislative history of EU acts. Even the regulatory impact assessments that accompany European Commission proposals do not systematically address the HLP requirement when assessing possible policy options. A ‘test of the high level of protection’ is nowhere to be found, although such a test would be anchored in primary EU law and would befit the Commission’s role as ‘guardian of the Treaties’. Is it because, in developing new administrative practices,Footnote 151 no thought was given as to whether these more superior regulation processes should have been cast in a very particular mould – a mould that, even in a flow of modernization, must comply with the hierarchy of sources of EU law, at the top of which primary EU law imposes a certain ambition to environmental protection? These final reflections are beyond the scope of this contribution, but may open the door to further stimulating debates.
