Principles of environmental policy of the European Union in the field of production

The article discusses the principles of environmental policy of the European Union. The principles of environmental policy of the European Union provide a certain degree of coherence in environmental protection actions of both the European Union and the Member States. Existing approaches to understanding the general principles of European Union law are analyzed. A list of principles is proposed that is used for environmental regulation in the field of production in the law of the European Union.

Key words: principles of environmental policy, principle of integration, principle of justice between generations, sustainable development, high level of protection.

Formulation of the problem. Environmental policy is one of the most important activities of the European Union. There is a large system of environmental legislation in this area, the norms of which are successfully applied to solve existing environmental problems. However, there are a number of unresolved environmental issues, including in the production sector.

Analysis of the latest research and publications. The general scientific basis for the study of this issue was the works of such specialists in the field of international law and the law of the European Union as G. Winter, A.K. Vishnyakov, A.A. Gusev, N.A. Guseva, O.L. Dubovik, A.V. Zadorozhny, L. Kremer, V.S. Stepanenko, L.M. Entin, J. Peel, N. De Sedelir, F. Sands and others. At the same time, scientific research into the principles of environmental policy of the European Union (hereinafter referred to as the EU), despite the results obtained and the experience gained, requires further improvement, especially with regard to environmental regulation in the field of production.

The deterioration of the environmental situation in Europe is influenced by a number of economic, political and legal factors. They operate in different spheres of economic activity and differ in the scale of their influence and consequences. These factors can be formulated as follows: an imperfect legislative framework, excessive exploitation of natural resources, underestimation of the indirect economic effect from environmental protection, ineffective sectoral policies (in particular in the fuel and energy complex, agriculture and forestry), macroeconomic policies that lead to extensive use of natural resources, investment policy focused on the development of exploited natural resources in various sectors of the economy, lack of an environmentally balanced long-term strategy.

EU environmental policy is based on the principles of safety and preventive action. The legal aspect of environmental policy contains a basic principle, the basis of which is that harm to the environment must be stopped, and the polluter must pay for the pollution.

The purpose of the article is to identify new trends and formulate principles of environmental regulation in the field of production in the law of the European Union.

Presentation of the main research material. When formulating EU environmental policy, the following factors should be taken into account: available scientific and technical information; environmental conditions in different EU regions; the potential benefits and costs of actions or inactions taken; economic and social development of the EU as a whole and the balanced development of its regions. The general principles of European Union law are based on the principles of international law and, in particular, on the principles of international environmental law. The basic principles of international law are enshrined, as is known, in the UN Charter, the Declaration of Principles of International Law of 1970 and the Final Act of the Conference on Security and Cooperation in Europe of 1975.

In the literature, the law of the European Union usually considers the general principles of law (freedom, democracy, respect for human rights and fundamental freedoms, principles of the rule of law), that is, a concentrated expression of the most important essential features and values ​​inherent in a given legal system. Interpreting the concept of a principle as a prescription of a basic nature that determines the essence, content and procedure for applying other norms of the legal system, the law of the European Union distinguishes the principles of supremacy and direct action that determine the relationship of EU law with the legal systems of the member states; general principles of law - the initial principles of legal regulation that operate in all areas of jurisdiction of the European Union; special principles that are valid within specific sectors or areas of legal regulation in the EU; procedural principles of the EU activities that determine the procedure for implementing the European

Union of the competence it has. The task of European environmental legislation is to translate these principles into specific responsibilities of member states. In formulating these principles, the EU Court of Justice relies on the general constitutional traditions of the member states and generally recognized principles of international law.

Thus, depending on the scope, the principles of European law can be general or special. The former relate to the legal system as a whole, the latter - to its individual branches and institutions. The general principles of European law - freedom, democracy, respect for human rights and fundamental freedoms, the rule of law and others - are important for any branch of law, including environmental law.

Special principles form the basis of legal regulation in certain spheres of public life. Special principles are enshrined mainly in the constituent agreements, and sometimes in normative legal acts of secondary law. So, paragraph 2 of Art. 191 (174) of the Treaty on the Functioning of the EU defines the principles on which the EU's environmental policy is based: the principle of prevention and preventive measures; the principle of eliminating environmental damage by addressing its source first; the “polluter pays” principle. However, an analysis of the environmental policy of the European Union allows us to conclude that there is a wider list of special principles that are also used in the production sector:

1. The principle of extended producer responsibility, which is closely related to the “polluter pays” principle in the sense that the financial responsibility that it provides is the main means of achieving the goal of implementing the principle of producer responsibility in practice. This does not mean, of course, that in certain situations, persons other than producers cannot be considered “polluters.” Thus, H. Vedder believes that the principle of extended producer responsibility has a broader meaning and includes not only the financial responsibility of the manufacturer as such, but also purely legal and practical issues. In practice, we are talking about directly achieving the goals of EU environmental policy, the participants of which collect used packaging materials from consumers and recycle them, and financing comes from recycling enterprises.

The relationship between the basic principles of European environmental policy and the principle of extended producer responsibility can be traced in the legislative acts of the European Union. Thus, in practice, the principle of extended producer responsibility was first applied in the EU Directive on end-of-life vehicles, which contains a provision that end-of-life vehicles must be transported free of charge to their disposal site. The principle of extended producer responsibility is also central to the Directive on waste of electrical and electronic equipment (WEEE), which requires EU member states to ensure that manufacturers establish a system for the collection and recycling of scrap electrical and electronic products. and, moreover, placing financial responsibility on the manufacturer for processing this waste. Such responsibility should lead to the integration of environmental concerns into product development and manufacturing processes, and ultimately to the creation of products that generate less waste during processing. The ultimate goal, on the one hand, is to prevent the generation of waste, and on the other, to ensure environmentally acceptable processing of waste generated. This Directive requires Member States to provide individuals with the opportunity to return electrical and electronic equipment for recycling free of charge and to ensure that suitable collection points are available and accessible. Waste electronic products are accepted for recycling not only from organizations responsible for collecting household waste, but also from other sources. The Directive allows manufacturers, on a voluntary basis, to create and operate waste collection and recycling systems, either individually or by combining the efforts of various enterprises. The practice of introducing similar obligations for manufacturers in the Netherlands and Germany has shown that manufacturers in practice strive to unite to create a waste collection and recycling system. The solution to the issue of producer responsibility for the disposal of electronic waste in Dutch legislation in most cases coincides with a similar approach in pan-European environmental policy.

The principle of producer responsibility breaks with the traditional approach - costs are imposed on taxpayers through special levies for environmental pollution. The implementation of the principle of producer responsibility is associated with determining which of the participants in the production-consumption chain is responsible for financing waste processing, and not with identifying the direct payer for this waste. The result is stimulation of production - the creation of environmentally friendly conditions and approaches.

• 2. The principle of justice between generations - each generation receives nature and cultural heritage from the previous generation, and the current generation protects it for the future. This principle is not limited to equalizing the needs for natural resources of different generations. These needs change and develop along with the development of the economy and society. Accordingly, attitudes towards various sources of natural resources and natural benefits in general are changing. However, it is possible and necessary to talk about eco-justice between representatives of different generations, meaning by this a guarantee of the transfer to future generations of the planet’s ecosystems in a state capable of performing the most important functions that cannot be replaced by artificially created technogenic systems.
• 3. A special place in the system of EU legal principles is given to the principle of integration. G. Winter notes that the principle of integration occupies a special place in the system of legal principles of the European Union. This principle is comprehensive and contributes to the transfer of environmental policy principles to other areas of EU action. The principle of integrating environmental issues is to develop new legislation in specific areas, which introduces environmental protection requirements into various areas of regulation: changes are made to existing regulations; special programs and strategies are developed; reports are prepared; working groups and committees are created.
• 4. The principle of sustainable development is a central principle of EU environmental policy. EU policies must be designed so that they take into account economic, environmental and social aspects, and that achieving goals in one policy area does not hold back progress in another. Sustainable development is determined by the following parameters: maintaining an overall high standard of living; maintaining constant access to natural resources; preventing harm to the environment. The basis of the principle of sustainable development is the idea of ​​coordinated management. The world community has determined the strategy for the existence of planet Earth for the 21st century, reflecting its basic concepts in “Agenda for the 21st Century”. It was this document that the member states used to develop their own common strategy - the Sustainable Development Strategy of the European Union.

The implementation of this principle is possible only if the member states concentrate maximum efforts and resources to implement this strategy and at the same time overcome acute current problems. Sustainable development involves having a clean environment and taking into account socio-economic parameters in order to improve the overall quality of life of EU citizens. Preventing the degradation of nature while possibly meeting the economic needs of current and future generations is the main vector for implementing the principle of sustainable development.

Regarding the principle of sustainable development, the actions of the European Union in this context can be viewed in two aspects: the creation of an internal strategy for sustainable development at the level of the European Union and the role of the European Union in promoting global sustainable development.

5. High level of protection. The environmental policy of the European Union, taking into account the various characteristics of individual regions of the EU, is focused on a high level of protection and strives to ensure it. This principle is one of the most important material principles of environmental policy.

The principle of the highest possible level of protection is derived from the totality of the norms of the contract, in particular paragraph 2 of Art. 191 (174) of the Treaty on the Functioning of the EU determines that the policy of the European Union is aimed at achieving a high level of environmental protection, but taking into account the differences in situations in different regions of the EU. According to Professor A. Epin, this principle should be introduced into the existing system.

The principle of the highest possible level of protection serves primarily to interpret and apply EU law with a view to providing (ensuring) the highest possible level of protection; it applies where EU law requires weighing up different interests or objectives. Thus, in the event of a conflict between environmental and political interests and other interests, one must proceed from the relative priority of the first. But this principle does not affect the distribution of competences in the European Union, nor its institutional framework.

Conclusions. The principles of environmental policy, common to all EU member states, can be reduced to the following fundamental provisions: the similarity of many environmental problems in European countries; mandatory implementation of jointly adopted decisions; the desire to unify pollution control measures; coordinated and united positions in international negotiations.

The studied principles of environmental policy of the European Union are based on the principles of international law. Thus, we can present a list of special principles of environmental regulation in the sphere of production in the law of the European Union: the principle of extended producer responsibility; the principle of fairness between generations; principle of integration; principle of sustainable development; the principle of the highest possible level of protection. The proposed list of principles is clearly formulated in judicial practice and doctrine.

environmental pollution production european

Literature

• 1. Charter United Nations 1945 [Electronic resource]. - Access mode: http://www.un.org/ru/documents/charter.
• 2. Consolidated version of the Treaty on and the Treaty on the Functioning of the European Union // Official Journal of the European Communities. - 2012. - C 326. - R. 181.
• 3. Resolution 2625 (XXV) of the UN General Assembly of October 24, 1970 Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations A/RES/2625(XXV) [Electronic resource]. - Access mode: http://www.un.org/ru/documents/decl_conv/declarations/intlaw_principles.shtml.
• 4. Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles - Commission Statements // Official Journal L 269. - 2000. - P. 34-43.
• 5. Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) - Joint declaration of the European Parliament, the Council and the Commission relating to Article 9 // Official Journal L 037. - 2003. - P. 24-39.
• 6. Burkinsky B.V. Economic and environmental foundations of regional environmental management and development / B.V. Burkinsky, V.N. Stepanov, S.K. Kharichkov. - O.: Phoenix, 2005. - 575 p.
• 7. Golik Yu.S. Legislation of the European Union in the field of protection of harmless animals: [form. pos_b.] / Yu.S. Golik, A.V. Voitenko, O.E. Ullya you. - Poltava, 2009. - 170 p.
• 8. Gusev A.A. Legal principles of environmental policy of the European Union / A.A. Gusev, N.A. Guseva // Regional problems of modern environmental policy. - 2006. - P. 35-37.
• 9. Dubovik O.L. Environmental policy of the European Union in the field of legal regulation of the turnover of products and products / O.L. Dubovik, A.L. Ivanova, V.T. Kalinichenko and others // Environmental law. - 2008. - No. 2. - P. 33-36.
• 10. Final Act of the 1975 Conference on Security and Cooperation in Europe: a collection of existing treaties, agreements and conventions concluded by the USSR with foreign states. - Vol. XXXI. - M., 1977. - P. 544-589.
• 11. European right to excessive middle class: [form. pos_b.] / M.M. Miki-evich, N.I. Andrusevich, T.O. Budyakova. - Lviv: Lviv National University named after. I. Franka, 2004. - 256 p.
• 12. Kremer L. Environmental law of the European Union / L. Kremer, G. Winter. - M.: Publishing house "Gorodets", 2007. - 144 p.
• 13. Law of the European Union: [handbook] / ed. OK. Vishnyakova. - O.: Phoenix, 2013. - 883 p.
• 14. Stepanenko V.S. Concept and legal significance of the principles of EU environmental policy / V.S. Stepanenko // Politics and Society. - 2006. - No. 6. - P. 83-93.
• 15. Fesyanov P.O. State regulation of environmental safety in the region: evidence from European countries / P.O. Fesyanov [Electronic resource]. - Access mode: http://www.nbuv.gov.ua/e-journals/dutp/2011_1/txts/Fesyanov.pdf.
• 16. Shevchuk V.Ya. Macroeconomic problems of steel development / V.Ya. Shevchuk. - K.: Geoprint, 2006. - 200 p.
• 17. Entin L.M. European law. Law of the European Union and legal support for the protection of human rights: [textbook for universities] / L.M. Entin. - 2nd ed. revision. and additional - M.: Norma, 2007. - 960 p.

Stepanenko Vera Stanislavovna - candidate of legal sciences, deputy, member of the commission on environmental policy of the Moscow City Duma.

The environmental and legal literature analyzes in detail the concept, main directions and trends of European environmental policy, as well as its basic (fundamental) principles, their impact on the content of regulatory legal acts of the European Union and its constituent states, on the judicial practice of the EU and national courts. National environmental legal systems of individual countries, based on the main goal of environmental law and environmental policy, have developed a broader approach to understanding the nature of environmental principles, without essentially breaking with the generally accepted approach. In a number of cases, the formulation of environmental principles is not limited to those listed in the Treaty establishing the European Community. As studies conducted by foreign experts show, environmental principles form a real and own legal field where they are transferred to more detailed national legislation or political documents. As in all cases, when an attempt is made to classify the principles of a particular legal branch and thus create an open or closed system, very heated debates arise. This fully applies to the principles of environmental policy of the European Union.

Key words: European Union, environmental policy, environmental law, environmental principles, environmental legal system, environmental law, environment, treaties, classification, European Parliament.

Stepanenko Vera Stanislavovna - PhD in Law, Deputy, Member of the Environmental Policy Commission of the Moscow City Duma.

The environmental legal literature provides detailed analysis of the definition, key directions and tendencies of the European environmental policy, as well as its basic (fundamental) principles, their influence upon the contents of normative legal acts of the European Union and its Member States, judicial practice of the EU and the supranational courts. Based upon the main goal of environmental law and policy national environmental legal systems of some states have developed a broader approach to understanding the nature of environmental principle, while not departing from the general principles. In a number of cases formulation of environmental principles is not limited to those mentioned in the Treaty establishing the European Community. As the studies of foreign specialists have shown, the environmental principles form its own real legal field where such principles are transferred into more detailed national legislation or political documents. Topical disputes arise regarding whether the system of principles of this legal branch should be classified within an open or a closed system, and the same is true towards the principles of environmental policy of the European Union.

Key words: the European Union, the environmental policy, the environmental law, environmental principles, environmental legal system, environmental law, environment, treaties, classification, the European Parliament.

Formulation of the problem. The environmental and legal literature analyzes in detail the concept, main directions and trends of European environmental policy, as well as its basic (fundamental) principles, their impact on the content of regulatory legal acts of the European Union and its constituent states, on the judicial practice of the EU and national courts.

Thus, Nicholas de Sadeleer in his work “Ecological principles, modern and post-modern law” offers a fairly clear analysis of the legal significance of environmental principles, understanding them precisely as an element of law, a legal instrument. Agreeing with G. Winter, he notes that, in contrast to the more general principles of law, which are often developed by courts through interpretation, key environmental principles are more boldly formulated in both “hard” and “soft” law. He characterizes much of modern environmental law as containing the classic features of “postmodern” law, in which the rigor, rationality and certainty of modern legal norms provide an incentive for gradual fragmentation, flexibility and dispersion. Basic environmental principles, he suggests, can provide some degree of coherence and stability in the new legal world, which requires legal and regulatory documents to be adaptable and change quickly<1>. When determining the legal nature of the principles, i.e. In addressing the question of the boundaries between environmental law and the approach to the basic problems of the nature and structure of the legal system, Professor Richard Macrory refers, like many other environmental lawyers, to the famous work of the American legal philosopher Ronald Dworkin (Ronald Dworkin) "Serious About Rights"<2>, which makes a clear distinction between legal customs and legal principles: “Both provide starting points for making specific decisions in matters of the law of obligations in specific circumstances, but they differ in the nature of the direction of action that they give”, and considers such differences with from the point of view of their practical interpretation by the courts<3>.

<1>Nicolas de Sadeleer. Environmental Principles, Modern and Post-modern Law // Principles of European Environmental Law. S. 225 - 237.
<2>Nowadays this famous work can be read in Russian, under the title “On Rights Seriously”, it was published in Moscow by the ROSSPEN publishing house (Russian Political Encyclopedia) in 2004, 302 pp., however, in a circulation of only 500 copies.
<3>Principles of European Environmental Law. Proceedings of the Avosetta Group of European Environmental Lawyers / Edited by Prof. Richard Macrory. Groningen: Europa Law Publishing, 2004. 256 s.

Ibid. S. 4 - in footnote 44.

In the recent work cited above - the book “Principles of European Environmental Law”, prepared on the basis of an analysis of practice (judicial work) by the Avocett group of environmental lawyers in Europe, it is noted that the basic environmental principles are those outlined in Art. 174 of the Treaty establishing the European Community, and in particular the principles of mandatory polluter charges (the so-called “polluter pays” principle), pollution prevention and precaution. In section 3, “The Genesis of the EU's Environmental Principles,” Professor Ludwig Krämer traces not only the historical development of these norms in the Treaty establishing the European Community, but also the political rationale for their emergence.

National environmental legal systems of individual countries, based on the main goal of environmental law and environmental policy, have developed a broader approach to understanding the nature of environmental principles, without essentially breaking with the generally accepted approach. In a number of cases, the formulation of environmental principles is not limited to those listed in the Treaty establishing the European Community. The principles formulated in the Basic Environmental Law of Portugal, for example, contain, among others, prevention, balance, participation and responsibility<4>. In the Netherlands, there are prerequisites for including key environmental principles in the main regulatory act in this area - the Environmental Management Act. G. Bundy notes the extent to which the development of key environmental principles took place in the transition countries (most of the countries of Central and Eastern Europe) in the 90s. These countries in their legislation have references to the main principles of environmental law: prevention, public participation in environmental protection, “the polluter pays”, cooperation (the principle of cooperation).

<4>Aragao A. The Application and Interpretation of the Core Environmental Principles by the Portuguese Courts // Principles of European Environmental Law. S. 151 - 179.

As studies conducted by foreign experts show, environmental principles form a real and own legal field where they are transferred to more detailed national legislation or political documents<5>. In some countries, the structure and content of environmental law principles apply only indirectly (Denmark). In contrast, in Germany, for example, both the prevention principle and the precautionary principle are contained in the Federal Law on Air Quality, Emissions, and are directly used<6>. They play an important role when German courts examine relevant infringement disputes. B.V. Wegener also notes that the principle of cooperation (cooperation), which implies the limitation of regulatory conventional instruments in favor of voluntary schemes, and the system of free choice, that is, a principle that is not in the EU Treaty, have found their place in German legislation. He refers to a controversial decision in 1998 when the Constitutional Court interpreted national waste legislation as based on the principle of cooperation, which resulted in the restriction of the use of subsidiarity in the context of certain laws, such as those governing local taxes.

<5>Whelan A. Fundamental Principles of EU Environmental Law. Irish Journal of Environmental Law, 1999. S. 37 - 57.
<6>See: Lubbe-Wolff G. Legal protection of atmospheric air // Modern environmental law in Russia and abroad. pp. 88 - 99; She // Dubovik O.L., Kremer L., Lubbe-Wolff G. The indicated essay. pp. 666 - 682.

Classification of EU environmental policy principles. As in all cases, when an attempt is made to classify the principles of a particular legal branch and thus create an open or closed system, very heated debates arise. This fully applies to the principles of environmental policy of the European Union. However, in order to make the problem more clear, we will first try to reproduce the classification prevailing in the literature, and then dwell on the scientific controversy, which is associated both with the system of principles in general and with individual principles in particular.

General principles of EU law and policy. One of the general principles of the activities of Community bodies is the self-preservation of the organization and its bodies. The goal of self-preservation develops normative actions in the form of an obligation of any one body to realize its tasks, and not to renounce its powers in favor of another body. At the same time, he must maintain a favorable ratio in terms of energy expenditure and benefits from it. Another general principle is, without a doubt, the principle of democracy. It covers the principle of the majority, protection of minorities, fundamental rights, publicity of normative activities. In the literature devoted to the problems of European law, there is debate about the extent to which it is enshrined in the Treaty, and to what extent it is used as the core of the constitutional law of the EU member states. This is decided on a case by case basis. Of great importance, as noted in the literature, is the general principle of proportionality<7>.

<7>De Burca G. The Principle of Proportionality and its Application in EC Law, 1994 // YEL. S. 195 - 150.

According to the prevailing opinion, the principle institutional balance, although the European Court and other authorities often use this reasoning to designate the conduct of authorities as being in compliance or non-compliance with the treaty. In positive law, there is no way to determine the content of this principle, since the phrase “institutional balance” itself either contains a description of the relationship of bodies with each other (but then it forms an empty formula), or it expresses a constitutional and legal orientation (then it is outside the normative field) . In any case, it is not suitable as a separate source of normative information on the balance of powers of authorities. Normative quality can also be given to practice EU member states or Community bodies. The doctrine denotes it (practice) at both levels by customary law, drawing on examples affecting the processes and procedures of bodies. That is, despite Art. 48 of the Treaty establishing the European Union, the possibility of amending the Treaties based on customary law is not excluded in principle. But it is excluded when it directly affects the rights of individuals.

In Russian literature on the law of the European Union (Community), they are usually considered as general principles of law (with reference to Article 6 of the Treaty establishing the European Union) - freedom, democracy, respect for human rights and fundamental freedoms, principles of the rule of law, i.e. concentrated expression of the most important essential features and values ​​inherent in a given system of law<8>. Interpreting the concept of a principle as a prescription of a fundamental nature that determines the essence, content and procedure for applying the remaining norms of the legal system, we highlight in the law of the European Union the principles of the supremacy and direct effect of EU law, which determine its relationship with the legal systems of the member states; general principles of law - the initial principles of legal regulation that operate in all areas of jurisdiction of the Union and are also inherent in other democratic legal systems; special principles that are valid within certain industries (directions) or areas of its legal regulation; principles of activity of the European Union, which determine the manner in which the European Union exercises its competences<9>. According to this classification, the principles of environmental policy and environmental law are classified as special.

<8>European Law / Rep. ed. L.M. Entin. pp. 92 - 93.
<9>Environmental law in questions and answers. pp. 39 - 45.

Selected principles of EU environmental policy. These principles are also discussed in more or less detail in literature published in Russian. The greatest attention is paid to them in the textbook “Environmental Law” by Prof. L. Kremer, analyzing the principles of subsidiarity, integration, prevention and prevention, combating harmful environmental impacts at their sources, “the polluter pays”, as well as the weighing criterion<10>. To get a complete picture, we will still dwell - at least briefly - on these and other principles of EU environmental policy.

<10>Kremer L. // Dubovik O.L., Kremer L., Lubbe-Wolff G. Decree. Op. pp. 132 - 140.

1. High level of protection. According to Art. 174 Community environmental policy, taking into account the different characteristics of individual EU regions, is oriented towards a high level of protection and strives to ensure it. This principle, i.e. "high level of protection" is one of the most important material principles of environmental policy. It is specified in various articles of the Treaty establishing the European Community. It was directly included by the Treaty of Amsterdam: according to Art. 2 - the Community's objectives are to maintain a high level of environmental protection and achieve environmental quality. It should be borne in mind that “a high level of environmental protection” is not identical to the concept of “the highest possible level of protection”, which is often found in documents and scientific literature on the problems of environmental law of the EU and its member countries.

After the amendment by the Treaty of Amsterdam, Art. 95 acquired the following content: “The Commission bases its proposals in the field of health, safety, environment and consumer protection on a high level of protection and is based on all scientific results and the latest achievements. Within the framework of their competence, the same goal is pursued by the European Parliament and Advice". This provision makes clear that the principle of a high level of protection is directed, within the legislative powers, to both the European Parliament and the Council. But still, experts are of the opinion that it is not entirely clear whether judicial protection of this principle is possible. If the Commission does not take this principle into account when making its proposals, there is a position in which the European Parliament can bring an action to the European Court using Art. 230 of the Treaty establishing the European Community. I. Jans points out that this kind of argumentation is opposed by the jurisprudence of the European Court, according to which the proposals of the European Commission<11>are regarded and are, in their status, an internal preparatory act, and not a legally relevant action (or decision), as is necessary according to the requirements of Art. 230 of the Treaty establishing the European Community<12>.

<11>On the powers of the European Commission, see: European Union Law in Questions and Answers. pp. 78 - 83.
<12>Jans J.H., von der Heide A.K. Op. cit. P. 35.

Thus, judicial review of the Commission's proposals from the point of view of achieving a high level of environmental protection can be excluded. This principle is also mentioned in Directive 96/61 on integrated pollution prevention and control<13>.

<13>Abl. E.G. 1996. N L. 257/26.

1. The principle of the highest possible level of protection has a slightly different content and status. It is not enshrined in the Treaty, but is derived from the totality of its norms<14>. This principle serves primarily to interpret and apply Community law with a view to providing (ensuring) the highest possible level of protection; it applies where Community law requires a weighing of different interests or objectives, so that in the event of a conflict between environmental and political interests and other interests, the relative priority of the former must be taken into account. But this principle does not affect the distribution of competences in the European Community, nor its institutional framework. According to Professor A. Epinet, it should be implemented into an already existing system<15>.

<14>Kahl W. Umweltprinzip und Gemeinschaftsrecht. Heidelberg: C.F. Muller, 1993; Jonson S.P., Corcelle G. The Environmental Policy of the European Communities. London, 1995; Koeman N. (ed.) Environmental Law in Europf. Den Haag, 1999.
<15>Epiney A. Op. cit. P. 672.

1. The principle of prevention. This principle has been enshrined in the environmental policy of the European Community since the Maastricht Treaty and almost fully corresponds to the principle of prevention formulated in German environmental law<16>. In German law, it operates mainly in that part that concerns the right to protect atmospheric air<17>, and according to this principle, protective measures should be introduced when there is a reasonable fear (suspicion) that a certain action causes (has) a certain result - a consequence harmful to the environment, even without scientifically based evidence of the existence of a causal relationship.

<16>See for more details: Lubbe-Wolff G. Main characteristics of German environmental law // State and Law. 2000. N 1. S. 89 - 94.
<17>See about this: Lubbe-Wolff G. The right to protect atmospheric air in Germany // Modern environmental law in Russia and abroad / Ed. O.L. Dubovik. M.: INION-IGP RAS, 2001. P. 88 - 99; Bender B. // Bender B., Sparwasser R., Engel R. Umweltrecht. Grandzuge des offentliches Umweltschutzrechts. Heidelberg: C.F. Muller, 2000. Rn. 84.

Prevention of risks, threats or dangers, in contrast to prevention of dangers (threats), begins before they occur and flows into risk control<18>. This process covers spatially and temporally distant hazards, as well as cases of low probability or only suspicion of hazard<19>. This principle is based on the idea that preventive protective measures should be taken as early as possible in order to reduce and prevent risks. The principle of prevention may justify a preventive measure in relation to the occurrence of environmental harm even in the absence of proof of causation. Unlike German law, the principle of prevention does not cover preventive minimization, which is only relevant within the framework of the principle of source (pollution, exposure). It also does not cover the prevention of the use of natural resources in the sense of preserving free space, as follows from the principle of prevention. It follows from the principle of prevention that the Community, in the opinion of the Commission, has the right to establish such level of protection of the environment, people, animals and plants as it considers necessary<20>.

<18>There is extensive literature on the issue of control (management) of environmental risks. See, for example: Winter G. Legal regulation of admission to the market of chemical substances // Modern environmental law in Russia and abroad. pp. 122 - 131; Dubovik O.L. Analysis of environmental risks in Russia // Ibid. pp. 132 - 145; Dubovik O.L., Giryaeva V.N. Book review: G. Winter, B. Hansurgens, G. Ginzki. Weighing risks and costs (costs) in European chemicals law: Research paper 2971/8084 // State and Law. 2000. N 9. P. 119 - 121; Ioyrysh A.I. Concept of risk: its assessment and management // Ensuring the safety of the population and territories (Organizational and legal issues). M.: IGP RAS, 1994. pp. 19 - 26; Keck V. Fundamentals of risk management in environmental law in Germany // Legal regulation of safety issues / Ed. N.I. Makhutova. M.: FTSNTP, 2002. P. 140 - 144; It's him. Risk management in environmental protection in Germany // Law and Politics. 2000. N 5. P. 118 - 125; Legal and economic problems of safety and risk management. Sat. articles. M.: FCNTP, 2003. 121 pp.; Khoruzhaya T.A. Methods for assessing environmental hazards. M.: Expert Bureau-M, 1998. 224 p. and etc.
<19>; S. 75.
<20>See: Regulation of the European Commission on the basis for the implementation of the principle of prevention (Leitlinien der Komission uber die Anwendung der Grundsatzes der Versorge. Kom..., 2000. I).

According to the Commission's recommendations, this principle means risk management with the principled acceptance of residual risks. This position, developed by the doctrine of European environmental law, governance and judicial practice, means - quite clearly - that in principle society needs to accept as theoretically conceivable, but practically unrealistic risks, that the danger lies in the area of ​​​​political responsibility. If any measures under this principle are considered necessary, they must be proportionate to the level of protection required<21>. It should be taken into account that such measures should not be discriminatory when applied. They must be consistent with previously implemented environmental protection measures. Finally, they must be based on research into potential benefits and risks (costs, costs) and must be tested and evaluated in the light of the latest scientific developments<22>.

<21>Just as one of many examples, see: Schweiger T. Report "EU enlargement and genetically modified organisms: trying to hit a moving target. Accession to the EU and its impact on the agro-industrial and food policies of Central and Eastern European countries." Kyiv: BIIC "Green Dossier", 2001. 35 p.
<22>Jans J.-H., von der Heide A.K. Op. cit. P. 37 ff.

In a legal sense, as noted almost everywhere in environmental legal literature, this principle implies the need to interpret Art. 174 of the Treaty establishing the European Community. The point is that the Community must take into account scientific and technical data when formulating environmental policy. At the same time, it should not use the “pretext of waiting” for undesirable environmental effects, leaving no doubt about proof of causation.<23>.

<23>See: Ibid. P. 38.

According to this principle, preliminary indicative scientific data is sufficient for environmental protection measures.<24>.

<24>See: Ibid. P. 37. In this regard, the results of a study of risks when introducing chemical substances into circulation are indicative. For more information about them, see: Winter G. Legal regulation of access to the market of chemical substances, as well as the above review of the book by G. Winter, B. Hansurgens, G. Ginzki.

In secondary law, an example of the formulation (designation) of this principle can be found in Directive 98/81, adopted as an amendment to Directive 90/219 on the use of genetically modified organisms in closed systems<25>. Article 5 of this Directive states that, when in doubt as to the classification of a proposed use in closed systems, more stringent protective measures must be applied, unless it is demonstrated that the use of less stringent measures is justified; it is still necessary to obtain permission from the competent authority<26>. Another example is Annex 1U of Directive 96/61 on the integrative prevention and reduction of environmental pollution. This Directive includes the provision that the determination of the best available technology should, inter alia, be based on the principles of prevention and prevention. They are found in the jurisprudence of the European Court<27>.

<25>Abl. EG, 1998; N L. 330/13. Association Greenpeace France / Ministere de 1 Agriculture et de la Piche - Slg. I, 2000. S. 1651. Similar issues are discussed by Russian specialists. See: Ensuring environmental safety when using genetically modified organisms. Collection of materials from the Round Table of the All-Russian Conference on Environmental Safety (June 4 - 5, 2002). M.: RREC, 2002. 256 p.
<26>Abl. EG 1996. N L. 257/26.
<27>Using examples of 50 cases of environmental disputes, L. Kremer examines this problem.

1. The principle of precaution (prevention, forethought). The Community's environmental policy is based on the principle “Prevention is better than cure” and, accordingly, requires appropriate measures to implement this principle. This principle allows action to protect the environment at an earlier time period. This means prioritizing the prevention of harm rather than redressing it. This provision can be seen very clearly in Directive 94/62 on packaging and packaging waste<28>. The best way to reduce packaging waste is to reduce the volume of packaging. Article 9 of this Directive requires that measures be taken to ensure that packages are placed on the market only if they comply with all the requirements of this Directive. The principle of prevention in a certain sense is, as Ya.Kh. Jans, the “pre-step” of the principle of prevention. It is broader and, within the framework of preventiveness, changes the requirements for causation. If European law separates these two principles, that is, precaution and prevention, which not everyone agrees with, then it is necessary to separate measures for their implementation, which is extremely difficult in practice. For example, L. Kremer believes, like the vast majority of German experts in the field of environmental law, that in essence these are one and the same. These two principles are so difficult to separate in content and implementation that it makes no practical sense to consider them separately<29>. And yet, in European environmental legal doctrine, the prevailing view is that the grounds and arguments for the separation of these principles are quite clearly reflected in environmental legislation. But in German law it is just as thoroughly argued and enshrined in legislation: the principle of prevention is absorbed by the principle of prevention<30>. Thus, the Third Environmental Action Program of the European Community<31>aims to prevent environmental pollution and excessive use of natural resources (environment-forming elements). Therefore, it was important for the Third Program to improve the necessary knowledge and information and make it more accessible to all participants in (environmental) decision-making, including the public<32>and establish procedures that take into account relevant knowledge at the early stages of decision-making to capture activities that significantly affect or may affect the environment.

<28>Abl. E.G. 1994. N L. 365/10.
<29>See: Kremer L. Environmental Policy of the European Union. pp. 11 - 14.
<30>Lubbe-Wolff G. Main characteristics of German environmental law. pp. 89 et seq.
<31>Abl. E.G. 1983. N C46/I.
<32>See: text of Directive 90/313 on free access to environmental information. Abl. E.G. 1990. N L. 158/36.

In this regard, the provisions of the Directive on environmental assessment are indicative<33>. Its preamble contains references to the first three Environmental Action Programs of the European Community (adopted in 1974, 1977 and 1983 respectively). It emphasizes that the best environmental policy is to prevent environmental harm in the first place, rather than deal with its consequences. Environmental assessment is itself a special example of an instrument where the principle of prevention plays a significant role<34>. In the framework of the Third Environmental Action Programme, this principle is consistent with the proposal to monitor the measures taken in order to monitor their implementation and bring them into line with new conditions and acquired knowledge. In this regard, it is necessary to mention the Directive on the harmonization of technical standards with technical and scientific progress<35>.

<33>Directive 85/337 // Abl. EG, 1985. N L 175/40; it was later changed.
<34>This position is shared by both foreign and Russian specialists. See, for example: Bogolyubov S.A. State-legal problems of environmental assessment // State and law. 1996. N 11. P. 105 - 126; Brinchuk M.M. Legal Institute of Environmental Expertise and Its Principles // Journal of Russian Law. 1998. N 9. P. 28 - 35; Commentary on the Federal Law "On Environmental Expertise" / Ed. MM. Brinchuk. M.: Beck, 1999. 224 pp.; Krasnova I.O. Environmental impact assessment and the procedure for making government decisions: US experience // Environmental Law. 2001. N 2. S. 43 - 47; Sapranova O.I. Problems of environmental assessment in environmental-legal and other special studies (literature review for 1988 - 1994) // Bulletin of Moscow State University. 1994. N 6; Khramova Yu.R. On the issue of legal problems of carrying out environmental assessment // State and Law. 2000. N 8. P. 11 - 17; Cherp O.M. and others. Environmental assessment and environmental examination. M.: SoES, 2001. 312 p.
<35>See: Directive 86/278 (Abl. EG. 1986. N L 181/6), in particular Article 13 of this Directive - on the protection of the environment and especially land when using sewage sludge in agricultural production.

The principle of precaution (as it is called in German environmental law) migrated to Community law from the national law of Germany. However, its meaning in Community law differs from its “native” meaning. The principle of precaution in European law has both methodological and strategic content. Methodologically, the principle includes indicators for risk assessment. Strategically, according to G. Winter, it contains requirements for making a decision on intervention. In both cases, it encourages caution: in the case of risk assessment, scientific uncertainty cannot be taken as a basis, but must be examined from the point of view of whether there are even the slightest indicators of risk, the possibility of interpolating known facts, etc. Similarly, you should assess the situation and act when deciding on actions. Scientific uncertainty about such a need cannot serve as a sufficient basis for avoiding preventive measures.

The principle of precaution in German law, in addition to the above aspects and manifestations, also has instrumental and real content. The actual contents should be considered in the risk assessment in terms of effects in time and place, potential for harm to sensitive products, possible irritation and low level of harm. Instrumentation refers to a set of means related to a principle.

The actual content is practically not presented in Article 174 of the Treaty establishing the European Community. Instrumental content may be contained in the principles of source prevention and recovery. Both of these principles should be included in the list of Article 174.

Joan Scott, for example, examining the precautionary principle, its interpretation and application by the European Court, identifies its role in relation to the implementation of other environmental principles<36>. In accordance with the Treaty, this principle is established in accordance with the essence of the environmental policy of the European Union and at the same time serves the application of other significant environmental principles, for example the so-called principle of “integration”, outlined in Art. 6 EU Treaty. The European Court now supports the application of the precautionary principle in other areas of Community policy, such as agriculture and public health. This does not answer the question of what application of the principle is useful to decision makers, and D. Scott addresses this by referring to recent precedents in this area. In particular, it addresses the question of how the European judicial system, when it is necessary to assess “rational” risk, relies on the above-mentioned principle or how the WTO bodies are guided by this approach in their activities.

<36>Scott J. The Precautionary Principle before the European Courts // Principles of European Environmental Law. P. 51 - 74.

1. Source principle. The environmental policy of the European Community is based on the principle “Tackling environmental damage at its source”. To prevent environmental harm, it is desirable to use integrated prevention techniques. The source principle contains emission standards instead of environmental quality standards, for example in the areas of water and air pollution. Yes, Art. 6 of Directive 76/464 concerning pollution by the discharge of certain hazardous substances into waters provided for emission rates for substances from “black lists”<37>. An EU member state, although it could seek to pursue quality targets instead of meeting emissions targets, would only do so if it could demonstrate to the Commission that the quality targets were being met throughout the region affected by the environmental harm. The presence of German influence is confirmed by the use of the source principle in the TiO2 (titanium dioxide) Directive. In principle, as a general rule, the indicators specified in the Directive should, of course, be applied, but EU member states have an alternative, according to which and in accordance with Art. 8 Directives they can set quality objectives independently of European regulations. True, there is an important condition here: in order to use the means of national legal regulation, it is necessary to obtain permission from the European Commission.

<37>See also: Ivanova A.L. European Law of Hazardous Substances // Legal World. 2002. N 4. S. 51 - 59.

As noted in the literature, this principle played a completely unexpected role (and this is where its significance was revealed) in the decision of the European Court on the Wallonia region (Belgium). In a specific case, it was necessary to resolve the question of to what extent restrictions on the import of foreign waste by the Walloon region should be recognized as discriminatory<38>. In the opinion of the European Court, in accordance with this principle, each region, community or other administrative unit must take the necessary measures to ensure the disposal, treatment and destruction of its own waste. Waste must be destroyed as close to its source as possible, and transportation must also be limited. Accordingly, the Court recognized the restrictions imposed in Wallonia on the import of waste from certain regions as non-discriminatory and in this sense equated the source principle with the principle operating in waste law - its destruction close to the place of generation.

<38>Decision C 2/90 N C 112/I "Commission v Belgium". Slg. I, 1992, S. 4431.

1. The polluter pays. The content of this principle is perhaps most thoroughly covered in Russian environmental and legal literature. Lawsuits and discussions regarding the formulation of the principle in current acts of Russian legislation and in connection with an attempt to abolish it and restore it as one of the leading principles of environmental protection in our country are widely known.

It must be said that the environmental policy of the European Community almost initially took into account this principle and is still based on it: this means that “the culprit pays.” According to this principle, the tortfeasor bears the responsibility and costs incurred as a result of damage to the environment. This principle is contrasted with the principle of social responsibility, according to which costs resulting from damage to the environment are borne by society as a whole. In fact (and legally) - despite all the criticism<39>- it is this principle that is cornerstone in European environmental policy and has been an integral part of it from the very beginning (even in the First Ecological-Political Action Program in the field of environmental protection<40>). It is also mentioned in Recommendation 75/436 (Euratom and the Council) on cost sharing and public intervention in the determination of environmental measures<41>.

<39>L. Kremer also points out “weak” points. He writes: “But even in the European Community, such a system is only partially implemented... it must be taken into account that for numerous environmental problems, such as climate change, forest loss, soil erosion, sea pollution, smog in megacities, the cause is indeterminable. This leads to the fact that either government organizations or no one are fighting harmful effects on the environment.” Moreover, he believes that this principle “is fundamentally an economic principle of distribution of expenses, and not a legal one” (Dubovik O.L., Kremer L., Lubbe-Wolff G. Op. cit. pp. 138 - 139).
<40>Abl. E.G. 1973. N C 112/I; For more details, see: Vandekerckhove K. The Polluter Rays Principle in the European Community. 1993 // YEL. P. 201 - 262.
<41>AB1. E.G. 1975. N L 194/1.

This principle should motivate the reduction of harmful impacts on the environment and contribute to the development of technologies for the production of environmentally friendly products. It can be implemented through the approval of environmental standards. Enterprises that are recipients of environmental standards must invest in production procedures. This establishes that the causer (the polluter) actually pays. The other side of the coin, as emphasized by Y.Kh. Jans, is that it is impossible to force persons and enterprises that did not produce it to pay for environmental damage, i.e. the causer does not pay<42>.

In secondary law, as experts emphasize, one can find many examples of the application of this principle. Yes, Art. 15 Directive 75/442 on waste<43>established that the costs for waste disposal according to the “causer (polluter) pays” principle should be distributed as follows between: 1) the owner of the waste, who transfers it to a waste collection company or another enterprise that has the right to manage waste, and/or 2) previous owners or manufacturers of products that became waste.

<43>AB1. E.G. 1975. N L 194/47. It was replaced by Directive 91/692 // AB1. E.G. 1991. N L 377/48.

1. Protective condition. Much less is written about this principle in Russian literature than about the “polluter pays” principle and others discussed above. Therefore, in our opinion, it is advisable to characterize it in this work, especially since in Russian environmental legislation it is actually used, although it is not considered as a principle. According to Part 2 of Art. 174 of the Treaty establishing the European Community, harmonization measures for the purpose of environmental protection may contain protective conditions that authorize EU member states in urgent (urgent) cases to take temporary measures to protect the environment for environmental and political reasons. But they (these measures) can in no case be determined economically and are subject to a control procedure by the Community.

In practice, there are quite a few examples of this kind of protective conditions. For example, Article 11 of Directive 91/414 on the introduction of plant protection products establishes that a Member State of the European Union, in cases where and if it has reason to believe that a product (agrochemical, pesticide) approved under the Directive poses a danger to human, animal and for the environment, its sale and use may be temporarily prohibited or restricted; Article 32 Biocide Directive<44>provides that in cases where a Member State has reason to believe that if a biocide approved under the Directive poses a risk to human or animal health or to the environment, its sale and use may be temporarily prohibited or restricted. But in both cases, it (the country) must inform both the European Commission and other EU member states about the decision on a temporary ban or restriction. A decision on this issue is made within 90 days. This actually means the minimum period that a country that initiates the introduction of temporary bans or restrictions can count on.

<44>Biocides are a frequently used European environmental term (as opposed to Russian, where the concept of pesticides is generally accepted), which means a general name for chemicals used to control plant pests. They are classified as: acaricides (anti-mite), algaecides (anti-algae), bactericides (anti-bacteria), fungicides (anti-fungi), herbicides (anti-weed), insecticides (anti-weed), molluscicides (anti-snails), nematicides (anti-worms) ), rodenticides (against rodents), viricides (against viruses). See: Environment. Dictionary-reference book. In 2 volumes. Volume 1. M.: Progress, 1999. P. 54. On the legal regulation of the handling of biocides in a special paragraph under Russian legislation in accordance with the Federal Law “On the safe handling of pesticides and agrochemicals” dated July 19, 1997 (SZ RF. 1997. N 29. Art. 3510); These are means of combating pests and plant diseases, pesticides used in agriculture and forestry and included in the State Catalog of Pesticides and Agrochemicals Permitted for Use in the Russian Federation (for more information on the legal status and regime of use of these hazardous substances, see: Dubovik O. L. Environmental law. Textbook. P. 413 et seq.; Krassov O.I. Environmental law. Textbook. M.: Delo, 2002. P. 483 - 486).

Additional classifications of environmental policy principles. Here we can highlight a rather, in our opinion, pragmatic classification of the principles of environmental policy, which was developed by Professor G. Winter, head of the Institute of European Environmental Law at the University of Bremen (Germany), who over the past decade has conducted a number of studies on current problems of environmental policy and EU law<45>. Let us describe in basic terms the concept he proposed.

<45>See, in particular, the report on the conference “30 years of EU environmental law”, held in Berlin on September 24 - 26, 2005: Dubovik O.L. EU environmental law: formation, development, achievements and current challenges // Law and Politics. 2004. N 12. P. 64, as well as the works of G. Winter cited above, including those published in Russian.

G. Winter identifies and examines the basic environmental principles of the Community, using for this purpose not only the texts of the founding Treaties and other acts of the EU, but also the recognized provisions of the environmental legal doctrine on the principles of environmental policy. As independent, unlike other scientists, he considers the following principles characterizing the directions of development of environmental law:

1. the principle of a high level of environmental protection;
2. the principle of maintaining and improving the quality of the environment;
3. the principle of stimulating international regulatory means;
4. the principle of taking into account factors of local (regional) significance;
5. the principle of precaution;
6. principle of prevention;
7. principle of sources;
8. principle of responsibility for pollution<46>.

<46>Winter G.P. 13. The ledal Nature of Environmental Principles in International. EC and German Law.

Since these principles may seem quite uncompromising, Article 174(3) of the European Convention provides an opportunity to put them on a more realistic (pragmatic) basis. According to this article, when implementing Community policies, the following should be equally taken into account:

1. accessible scientific and technical information;
2. regional differences in environmental conditions;
3. Advantages and disadvantages;
4. the level of economic and social development of the Community;
5. balanced development of regions.

Analyzing the content and interaction of these principles within the framework and with a focus on the implementation of the goals of the EU environmental policy, G. Winter, further, also takes into account the principle of integration, which occupies a special place in the system of legal principles of the European Community. This principle is comprehensive and contributes to the transfer of environmental policy principles to other areas of action of the Community. Additionally, we have to take into account the fact that such a principle as the principle of sustainable development - despite the documents adopted at the Conference in Rio de Janeiro and the large-scale measures taken by the EU for its implementation - is not directly indicated as a principle of the EU environmental policy , but is the task of the Community as a whole and a unique characteristic of the principle of integration<47>.

<47>Winter G. Op. cit. P. 14.

Considering the legal significance of the principles for the institutions of the Community, G. Winter emphasizes that the question of whether the principles can be considered directly effective or declarative is quite controversial. However, undoubtedly, in his opinion, four main directions can be distinguished in which the functional role of the principles is manifested:

1. granting the Community decision-making powers;
2. clarifying the Community's decision-making competences;
3. imposing a duty on the Community to act;
4. granting the Community the power to intervene in the area of ​​fundamental guaranteed rights.

Taking into account the provisions of Art. 174 of the Treaty establishing the European Community, for a better understanding of the legal impact of the principles, it is recommended to separate two areas:

• the area in which the principles make the activities of the Community possible, and thereby enable the competent EU bodies and institutions to act - as in the first and fourth cases;
• the area in which the principles shape or even initiate the activities of the Community, that is, they can be designated as directing functions - as in the second and third cases.

Using this very general scheme, G. Winter considers the function of granting powers, while separating the provision of the possibility of exercising the competence of the Community as such and the provision of the possibility of limiting fundamental rights and freedoms.

Application of environmental policy principles in EU jurisprudence. Most scientists and judicial practice are inclined to believe that for environmental principles the possibility of their application by courts is beyond doubt even without reference to Article 174 of the Treaty establishing the European Community. The European Court also considers them as legally binding, as well as the principles and criteria (aspects)<48>. It should be taken into account that the European Court deals with the interpretation of principles and aspects exclusively on its own, without transferring this competence to political authorities. L. Kremer notes that the European Court operates on the basis of Art. 220 - 245 of the Treaty establishing the European Community, and points out that “the Court has so far adopted about 400 decisions on environmental issues. In doing so, it tries - often with great success - to interpret modern environmental law in an environmentally friendly manner and to strengthen environmental protection<49>. L. Lavrijsen, judge of the Constitutional Court of Belgium, in his report at the conference “30 years of EU environmental law” emphasized that “over the years of its activity, the Court has rightly developed a series of general doctrines that contributed to the effectiveness of European law as a whole. These doctrines are also important for the development environmental European law"<50>. However, in its decisions it establishes only the right, or more precisely, the competence of Community bodies to regulate some matter, until the obligation to take measures based on the principles and aspects of environmental policy is established in court. But such a duty to act may be introduced from other decisions of the European Court in relation to other political sectors. However, the content of these general provisions must be interpreted with some caution, since only the core of this program of obligations enjoys judicial protection. Everything that goes beyond this framework is subject to the consideration of the legislator<51>. L. Lavrijsen emphasizes: “Since 7 February 1985, when the decision in Case L, Association de defense des brulens d,hulles usages was adopted, the Court has recognized that the protection of the environment is a “requirement of the mandate”, which, in the absence of a full-fledged harmonization of legislation may justify trade-restrictive measures in member states"<52>.

<48>On this, see the jurisprudence of the European Court, in particular the decision: C-180/96. BSE-Slg. 1 (1998). S. 2265; C-341/95. Bettati-Slg.l (1998). S. 4355.
<49>Dubovik O.L., Kremer L., Lubbe-Wolff G. Decree. Op. P. 153.
<50>Law and politics. 2004. N 12. P. 65.
<51>Winter G.P. Op. cit. S. 7807.
<52>Law and politics. 2004. N 12. P. 65. Moreover, he believes that the Court is developing the basic doctrines of European environmental law in several directions. First of all, this is the enforcement of regulation, i.e. "the obligation of EU member states to introduce Community norms into rational legislation, to transpose and ensure the practical application of directives, the direct effect of their action, their interpretation. Holding EU member states accountable for violating Community legal norms also contributes to the effective application of European environmental law" ( Ibid., p. 65).

The questions of greatest interest for Russian scientists and practitioners are: how environmental principles and similar norms are currently used and applied by the judicial system in European countries in the case of legal decisions, and also to what extent the environmental principles outlined in the Treaty are influenced approach of the European Court of Justice in specific significant cases. Environmental principles are applied not only by the European Court, but also by courts at national level<53>.

<53>On the application of European environmental law in Italy, Germany and other EU member countries, see: Grassi S. The Environmental Principles of the EC Treaty as a Legal Basis for Judicial Decisions in the Italian Case Law // Principles of European Environmental Law. S. 115 - 125; Montini M. Further Observations on the Application of EC Environmental Principles before Italian National Courts // Ibid. S. 127 - 130; Lieselotte Smorenburg-van Middelkoop. European Environmental Principles in Dutch Gase Law // Principles of European Environmental Law. S. 133 - 158; Angel-Manuel Moreno. The Application of the Core EC Environmental Principles by Spanish Courts // Principles of European Environmental Law. P. 181 - 192.

Of particular interest when analyzing the effect of the principles of Art. 174 of the Treaty establishing the European Community provide grounds for going beyond the array of secondary legislation. The literature notes that in the field of secondary legislation, Member States have the right, under Articles 94(4) and (5) of the Treaty establishing the European Union and/or Article 176 of the Treaty establishing the European Community, in certain circumstances, to adopt regulations that go beyond Community law . In this matter, the applicability of the principles of environmental law as the basis for such actions is important. Any additional activity is possible due to the specified articles “in connection with environmental protection”. Thus, these grounds provide an opportunity, but at the same time establish restrictions for complementary activities of the participating countries<54>.

<54>On the implementation of the principles in judicial practice, see also: Dubovik O.L., Stepanenko V.S. Decree. Op. pp. 128 - 130.

Bibliography:

1. Winter G. Legal regulation of admission to the market of chemical substances // Modern environmental law in Russia and abroad. 2001.
2. Dubovik O.L. Analysis of environmental risks in Russia // Modern environmental law in Russia and abroad. 2001.
3. Dubovik O.L., Giryaeva V.N. Book review: G. Winter, B. Hansurgens, G. Ginzki. Weighing risks and costs (costs) in European chemicals law: Research paper 2971/8084 // State and Law. 2000. N 9.
4. Ioyrysh A.I. Concept of risk: its assessment and management // Ensuring the safety of the population and territories (Organizational and legal issues). M.: IGP RAS, 1994.
5. Keck V. Fundamentals of risk management in environmental law in Germany // Legal regulation of safety issues / Ed. N.I. Makhutova. M.: FCNTP, 2002.
6. Keck V. Risk management in environmental protection in Germany // Law and Politics. 2000. N 5.
7. Legal and economic problems of safety and risk management. Sat. articles. M.: FCNTP, 2003.
8. Khoruzhaya T.A. Methods for assessing environmental hazards. M.: Expert Bureau-M, 1998.
9. Kloepfer M. Umweltrecht. Munchen: C.H. Beck, 1998. 4. Rn. 12.82 ff.
10. Bender B. Op. cit. Rn.; Gethmann C.F., Kloepfer M. Handeln unter Risiko im Umweltstaat. Berlin, 1995.
11. Regulation of the European Commission on the basis for the implementation of the principle of prevention (Leitlinien der Komission uber die Anwendung der Grundsatzes der Versorge. Kom..., 2000. I).

References (transliteration):

1. Vinter G. Pravovoe regulirovanie dopuska na rynok khimicheskikh veshchestv // Modern ekologicheskoe pravo v Rossii i za rubezhom. 2001.
2. Dubovik O.L. Analiz ekologicheskikh riskov v Rossii // Sovremennoe ekologicheskoe pravo v Rossii i za rubezhom. 2001.
3. Dubovik O.L., Giryaeva V.N. Retsenziya na knigu: G. Vinter, B. Khansyurgens, G. Gintski. Vzveshivanie riskov i stoimosti (raskhodov) v evropeiskom prave obrashcheniya s khimicheskimi veshchestvami: Issledovatel"skii doklad 2971/8084 // Gosudarstvo i pravo. 2000. N 9.
4. Ioirysh A.I. Kontseptsiya riska: ego otsenka i upravlenie im // Obespechenie bezopasnosti naseleniya i territorii (Organizatsionno-pravovye voprosy). M.: IGP RAN, 1994.
5. Kek V. Osnovy menedzhmenta riskov v ekologicheskom prave Germanii // Pravovoe regulirovanie problem bezopasnosti / Pod red. N.I. Makhutova. M.: FTsNTP, 2002.
6. Kek V. Management riskov v okhrane okruzhayushchei sredy v FRG // Pravo i politika. 2000. N 5.
7. Khoruzhaya T.A. Metody otsenki ekologicheskoi opasnosti. M.: Ekspertnoe byuro-M, 1998.
8. Kloepfer M. Umweltrecht. Munchen: C.H. Beck, 1998. 4. Rn. 12.82 ff.
9. Bender B. Op. cit. Rn.; Gethmann C.F., Kloepfer M. Handeln unter Risiko im Umweltstaat. Berlin, 1995.

European law as the basis for determining the goals and principles of EU environmental policy. European law (EU law) and European politics since the creation of the first Communities, i.e. first in the 50s of the last century, are developing extremely intensively and, most importantly in this case, are increasingly influencing (positively or negatively) decision-making processes and the practice of their implementation in the field of environmental protection.

Here, on the one hand, in relation to environmental policy, important experience has been accumulated in making environmental and political decisions, environmental action programs, legal regulation, judicial practice, implementation of economic and economic-legal measures, division of competence between bodies (legislative, executive and judicial ) Community and EU Member States. On the other hand, the volume of environmentally significant activities of the European Union is constantly growing and, accordingly, the financial, human and legal resources involved are increasing.

The fundamental treaties of the EU provide Community bodies with very broad competence to create legal acts that are directly applicable in member states and “displace” national law. The law of the European Union (Community) occupies a special place among traditionally distinguished legal systems. S.Yu.Kashkin defines
the law of the European Union as an independent legal system that arose as a result of efforts to build a “united Europe” and highlights such features as integration, the spread of action to the territory of all states that are members of the EU (now there are 25 of them), independence in relation to public international law, supranationality (transnationality, supranationality). In this case, one must keep in mind the difficulties associated with the distinction between the law of the European Community and the European Union.

The literature emphasizes that taking into account the competence of EU bodies in the field of lawmaking, management and judicial activity, as well as the complex interweaving of the structure of national European legal proceedings in judicial control of the application of European law, allows us to understand European law as a separate, independently existing legal order, which in its fundamentals has managed to separate from designs of international treaties and develop independently of the legal order of the EU member states. All of the above fully applies to European environmental law. The above general provisions allow us to move on to considering its connections with the environmental policy of the European Union, its member states, their regions and cities.

Without dwelling specifically on questions about the sources of EU law, its system and structure, since they are covered in detail not only in foreign,
but also in domestic literature, we will only point out the fundamental importance of the Treaty establishing the European Community and the norms contained therein, first of all, Art. 174. It should be taken into account that types of legal acts, legal forms, i.e. named in the Community Treaties do not correspond in their characteristics and content to the categories common in the member states.

The meaning of goals and principles. The goals and principles of the environmental policy of the European Union (Community) are guided by Art. 174 of the Treaty establishing the European Community. It reads:

"1. The Community's environmental policy aims to:

Protection, protection and improvement of the environment;

Protecting people's health;

Reasonable and rational use of natural resources;

Providing measures at the international level related to solving economic problems on a regional and global scale.

2. The Community policy in the field of environmental protection aims to reach a qualitatively different level of protection, taking into account the differences in situations in the regions. It is based on the principles
prevention and preventive action, compensation for environmental damage, mainly by eliminating its causes, and payment for damage to those who caused it.

In these circumstances, harmonization measures that meet modern environmental protection requirements include, where appropriate, protection provisions authorizing Member States to adopt, based on economic considerations, temporary restrictions subject to Community control.

3. When developing a policy for environmental protection, the Community shall take into account:

Obtained scientific and technical data;

State of the environment in different regions of the Community;

Potential benefits and costs that may result from actions or lack thereof;

Economic and social development of the Community as a whole and the balanced development of its regions.

4. Within the framework of their respective competences, the Community and

Member States cooperate with third countries and competent international organizations. The forms of Community co-operation may be the subject of agreements between it and other

interested parties, they are developed and concluded in accordance with Article 300.

The previous paragraph does not affect the powers of member states to negotiate in international bodies and conclude international agreements."

Thus, in the first paragraph of this subsection textually

the main goals are formulated, and the second paragraph additionally indicates

another goal of environmental policy, but mainly determined by

principles of environmental policy. In addition, criteria are specified that

The community must be taken into account when formulating environmental policies. In that

sense, the practice of implementing environmental policy, and theory 159

environmental law consider this article as a starting point for making various kinds of management decisions, including those of a legal nature, and for the development of relevant scientific research. Based on it, let us first consider the objectives of the environmental policy of the European Union, as they are determined by EU law.

Goals of European environmental policy. The goals pursued by European environmental policy are usually understood in relation to the above wording of Parts 1 and 2 of Art. 174. This alone allows us to consider them, without further reservations, as legal, having the properties of legal regulations. However, in the literature these goals are sometimes formulated somewhat differently. At the same time, it seems to us that in the overwhelming majority of cases there are only minor editorial deviations from the text of the law. We came across such formulations as: a) environmental protection, as well as improving its quality; b) protection of human health; c) careful and rational use of natural resources; d) support for measures at the international level to overcome regional and global environmental problems.

But, one way or another, the use of this kind of formulation makes it possible to develop a general, although not controversial, approach to determining the content of the goals of European environmental policy. These goals will be discussed in detail below, but here it should be recognized that the concept of environmental protection includes, among other things, the protection of human
health. This is specific, since in other cases Community law is based on a different understanding of this term. For example, when assessing national trade restrictions, the European Court distinguishes between measures adopted on the basis of protecting human health and measures adopted on the basis of protecting the environment. Also Art.

95 of the Treaty establishing the European Community distinguishes between health protection and environmental protection when it comes to assessing the appropriateness of stricter national environmental legislation than that provided for in the relevant Community directive. In other words, the question of whether the Community's concept of environmental protection also includes human health continues to be debated by experts. However, the literature usually considers the goals of environmental policy in the sequence as they are formulated in Art. 174 and taking into account the disagreements that exist here.

1. Preservation, protection and improvement of the environment. The first goal, named in Art. 174 of the Treaty establishing the European Community, notes Y.Kh. Jans, is framed in a general and vague manner. He connects this precisely with the fact that the concept of “environment” is not defined in the Treaty establishing the European Community. On the one hand, this has the advantage that the stated goal can be interpreted dynamically, reacting to new developments and new requirements in the field of environmental protection. On the other hand, this has the disadvantage that it is impossible to say with certainty what is meant by environmental policy in Community law. Such uncertainty gives rise to problems of interpretation. It is also relatively simple to answer the question: does the purpose of Article 174 cover the protection of nature and landscapes? The Directive on the Protection of Flora and Fauna contains an argument in favor, because according to it, the conservation and improvement of environmental quality, including the protection of the habitat of wild animals and plants, is “an essential goal of the Community and is consistent with universal
interests." But not only those definitions that are directly aimed at improving the environment correspond to the first goal. It is also met by those that indirectly lead to its achievement (see, for example, the Preamble of Directive 90/313 on free access to environmental information). This purpose may also cover decisions on procedural aspects of environmental legislation, i.e. legal protection issues, licensing procedures; definitions relating to the organization of environmental management. Before the conclusion of the Maastricht Treaty, there was discussion of limiting this Community environmental goal (as well as others) on a territorial basis. It has been debated whether the Community should act only to protect its own environment or also outside the European Union, whether it should respond to global and regional environmental problems or even try to advocate for the protection of the environment of other states. Within the framework of the Maastricht Treaty, this issue has almost been resolved. It is formulated by the 4th goal in Art. 174- “support for measures at the international level to combat global and regional environmental problems.” The question of whether the Community has the right to deal with regional and local environmental problems is also being discussed. Art. 174 of the Treaty establishing the European Community does not contain corresponding restrictions. But the principle of subsidiarity adopted in European law requires some caution. The next problem is the interpretation of the concepts “preservation”, “improvement”, “protection” of the environment. This formulation is very broad and makes it possible to cover conservation as curative, limiting, preventive and active measures for environmental protection. These measures are not limited to a specific form. So the link to conservation protection improvement
environment contains the Preamble to Directive 93/12 on lead in liquid fuels.

2. Protecting human health. When interpreting this goal, it is important to decide what is meant more broadly than “protection of human health” in the sense of Art. 174 or the concept of protecting “public health” in the sense of Art. 152. First, according to Y.Kh. Jansa, wider. Protecting public health requires measures that address the collective interests of citizens and society. According to Art. 174 actions of the Community are also possible when the collective interest is fundamentally replaced by the interest of a certain individual or a separate social group. But even in this case, it is necessary to take into account the principle of subsidiarity. . When interpreting, it must be taken into account that Art. 174 covers only human health, not animal and plant health. But since the protection of fauna and flora is provided for in Art. 174, this limitation established by the European Court is regarded by experts as controversial.

3. Careful and rational use of natural resources. The inclusion of this goal in the Treaty was accompanied by the following explanation: “The Conference decides that Community activities in the field of environmental protection should not interfere with national policies on the use of energy resources.” This statement is not given much significance. This is due to the fact that such statements stand outside the Treaty establishing the European Community in the normative hierarchy and, in the event of a contradiction, do not have a significant impact on its interpretation. One practical example for using their content is indicated in Art. 6 Directive 88/609 on the limitation of emissions of harmful substances in large areas
waste incineration facilities into the air. There is debate in the literature about the concept of natural resources in the sense of Art. 174. From the point of view of international law, the 2nd principle of the Stockholm Declaration could help in interpreting this concept. It defines natural resources as: lands, including the air, water, land as such, flora and fauna contained in them, and in particular, representative specimens of the natural ecosystem. In the literature they are also called: forest, mineral resources, oil, gas, water bodies, chemical substances. On this basis, we can assume that this goal is being realized very widely. The Kyoto Protocol plays an important role in achieving this goal.

During the debate between politicians and environmentalists, the issue of limiting the Community's environmental goals arose. An important part of the environmental policy of the European Community in practice covers not only the protection of the EU's own environment, but also the environment beyond its borders. I. Jans cites the following examples: Determination on the export of waste to third countries according to Regulation 259/93 on the supervision and control of the transport of waste within, to and from the European Community; Regulation 338/97 on the protection of specimens of wild animals and plants by controlling their trade. The attitude towards the global environment is also expressed in some directives, which in principle protect the Community environment. Thus, the purpose of the Directive

1999/31 on waste disposal is the global prevention and reduction of negative consequences for the global environment, including the effect of greenhouse gases. In addition, the Community is a party to treaties, numerous agreements pursuing extra-territorial purposes.

But the main and decisive question, according to many experts, is how far the competence of the European Community in the field of environmental protection extends beyond its borders. I. Jans believes that since the Maastricht Treaty was signed, it can be assumed that the Community's competence includes the ability to fight for environmental protection beyond its borders. But at the same time, we must not lose sight of the fact that environmental protection outside the Community conflicts with the legal requirements and rights of third countries and can lead to conflicts. The legal argument for the Community to limit itself to regulating its own problems is, first and foremost, the territorial principle. When the Community's actions affect issues that fall under the sovereign authority of third countries, it violates international law. Not everyone agrees with this opinion of the famous Dutch scientist. Many experts believe: Art. 174 is too narrow, but still the territorial principle and the limitations of international law must be taken into account.

Main directions of environmental policy European Union (EU): constantly increasing attention to environmental issues; transition from mentioning environmental problems in EU documents to the adoption of special extensive acts and action programs; consolidation of environmental policy among other policies pursued and supported by the EU and its bodies and member countries; creation of special entities to solve problems of environmental policy and control in this area; increasing the scale of financing of environmental activities.

According to the Treaty establishing the European Economic Community The EU's goals in this area are :

– preserve, protect and improve the environment;

– contribute to the protection of human health;

– achieve reasonable and rational use of natural resources;

– promote at the international level measures related to interregional and global environmental problems.

In general, Community environmental policy in the field of environmental protection and environmental management is defined as aimed at achieving a high level of protection, taking into account the diversity of situations in different EU regions.

EU Environmental Policy Principles, further developed in the draft EU Constitution:

– the principle of preventive action;

– the principle of compensation for environmental damage, mainly by eliminating its sources;

– the principle of payment for damage by those who caused it (“the polluter pays”);

– the principle of sustainable development, i.e. taking into account the interests of present and future generations when using natural resources;

– the principle of choosing the best possible protection of the environment, according to which member countries can introduce more stringent measures than those provided for in EU acts.

This list of principles is not exhaustive.

The EU environmental policy is carried out along with and in coordination with such areas of activity as: industrial policy; energy policy; transport policy; agricultural and forestry policy; tourism policy; trade policy.

The greatest attention in EU member countries is paid to the development economic mechanisms for environmental protection(investments, grants, etc.).

In order to implement policies in the field of environmental protection and rational use of natural resources and legal requirements of an environmental nature in EU law, they are widely used permitting and notification procedures. Notification obligations apply to the creation and use of genetically modified organisms.

According to EU law, there are several types licensing: for emissions, for deterioration of environmental quality, for production and other turnover of products - permits for the supply to the market of pesticides, biocides, import and export of ozone-depleting substances, specially protected species of flora and fauna and a number of others.

Specific legal instruments – prohibitions and obligations to act– are regulated in detail in EU law. This is the permissibility of import restrictions due to production that harms the environment under international trade law.

The principles on which European environmental policy is based:

a) the principle of a high level of environmental protection;

b) the precautionary principle;

c) the principle of preventive action;

d) the principle of eliminating sources of damage;

e) the “polluter pays” principle.

The principle of a high level of environmental protection is one of the most important and fundamental principles of Community environmental law. The principle applies not only to the activities of the Commission, but also to the legislative activities of the European Parliament and the Council. However, the application of the principle is limited by the large differences in the capabilities of different Member States.

The precautionary principle. Its essence lies in the fact that if there is a suspicion that certain actions may have a negative impact on the environment, then it is better not to perform these actions at all than to wait for scientific research to prove a causal link between these actions and negative consequences for the environment. The principle may, in some cases, justify overly strict protectionist measures by Member States aimed at preventing environmental damage, even if there is no causal link between these measures and the possibility of the expected harm.

The principle of preventive action. Its meaning lies in the approach in which “it is better to take preventive measures to protect the environment than to restore the environment.” The need to restore the environment after damage is no longer a priority. Instead, the principle involves taking measures that will eliminate the possibility of harm occurring at all.

The principle of eliminating sources of damage. According to this principle, environmental damage should, if possible, be eliminated at the very beginning of its occurrence. The principle provides for the preference of the legislator to set standards for emissions and discharges of pollutants rather than standards for the environmental quality of products, especially when it comes to water and air pollution.

The “polluter pays” principle – the polluter must pay the cost of eliminating the damage he has caused, which forces environmentally unsafe industries and individual enterprises to use less harmful substances and technologies in production. In addition to the use of fines, the principle also works when introducing environmental standards. Companies that are forced to meet accepted standards are beginning to use the best available technology and invest in their production process, making it less harmful to the environment.