Avosetta Group

The topic discussed at the first meeting was "Individual rights to environmental protection in the EU-Constitution".Having discussed the present situation of environmental rights in the national constitutions, in EC-secondary law, in the Aarhus Convention and in EU-primary law as well as the Basic Rights Charter the group formulated a proposal for an amendment to Art. 6 EC-Treaty which should read as follows:

"Subject to imperative reasons of overriding public interests significantly impairing the environment or human health shall be prohibited."

The proposed amendment to the Treaty is inspired by the jurisprudence on the Treaty article 28-30 and has four functions. First, the intention is to ensure, that environmental interests/protection in the balance of interests has at least the same priority as free trade. Second, the intention is to give environmental protection direct effect, requiring EU-instutions as well as Member State to not make decissions or activities which significant impare the environment or human health, unless such impairment can be reasoned by overriding public interests. Third, the scope is limited to "significant impairment" to ensure, that focus in the court of law is on substantial issues, which leave some discretion for minor impairment. Fourth, when the impairing source (the polluter, the project, the use of natural resources and so on) or the effected part of the environment are covered by EC legislation - it is the EC legislation which defines what is acceptable and thereby, what is significant - in the same way as exhaustive harmonization preempt Member States from recalling the Treaty article 30. The Avosetta Group find, that the proposed amendment establish a fair and reasonable balance between environmental protection and the importance of leaving discretion for policy-makers".

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