The Principle of Proportionality

‘The extent of the action must be in keeping with the aim pursued’.

There has to be access to the ‘reasons and considerations of the decision’, such that in the Article 3 step the environmental issues are independently weighed up and concluded on. This then leads on to the broader issue of decision-making and the fact that you as a citizen have to have full access to those facts if you are to be in a position to challenge the ‘reasons and considerations used to form the decision’:

One can only question as to how on earth is it lawful to approve a project with very significant environmental impacts, such as on landscape, human health (noise), flora and fauna, etc, without assessing any of the reasons and considerations for offsetting these impacts. Indeed, at no stage was any effort made to demonstrate what alternatives were considered to achieve some alleged environmental benefit, which at no stage was even assessed.

 This then comes back to the principle of ‘reasonableness’ under Common Law or under the Civil Law tradition of Central Europe, that of the Principle of Proportionality, which requires each decision and measure to be based on a fair assessment and balancing of interests, as well as on a reasonable choice of means. In layman’s terms, the extent of the action must be in keeping with the aim pursued. This Principle plays a central role in the case law of the European Court of Justice, regardless of whether the case involves agriculture, free movement of goods, citizenship, etc.

 Indeed, when applying the general principle of proportionality, the European Court of Justice frequently states that the principle requires an act or measure to be “suitable” to achieve the aims pursued, or it rather concludes that a decision is disproportionate because it is “manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue”. For instance in Case C-2/10[1] in relation to the prohibition of wind turbines in an area protected by the Natura 2000 legislation, the Court stated:

 

• “In this regard, the principle of proportionality referred to in Article 13 of Directive 2009/28, which is one of the general principles of European Union law, requires that measures adopted by Member States in this field do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued”.

 

It is therefore worth pointing out in full the wording of Article 13 of Directive 2009/28/EC, the 20% renewable energy by 2020 Directive, which states:

1. Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources, and to the process of transformation of biomass into biofuels or other energy products, are proportionate and necessary.

 2. Member States shall, in particular, take the appropriate steps to ensure that:

 (d)  rules governing authorisation, certification and licensing are objective, transparent, proportionate, do not discriminate between applicants and take fully into account the particularities of individual renewable energy technologies;

 

It is fully recognised and accepted that the under established case law under the European Court of Justice, the environmental impact assessment procedure “prescribes an assessment of the environmental impact of a public or private project, but does not lay down the substantive rules in relation to the balancing of the environmental effects with other factors or prohibit the completion of projects which are liable to have negative effects on the environment”[2]. However, by failing to assess the alleged environmental benefits of a project and any alternative measures to achieve it, a project which has considerable and significant negative environmental impacts, there is a clear legal breach, not only in relation to the environmental impact assessment procedure, but also in relation to Common Law ‘reasonableness’ and the Principle of Proportionality.

 [1] http://curia.europa.eu/juris/celex.jsf?celex=62010CJ0002&lang1=en&type=NOT&ancre=

 

[2] See page 11: http://ec.europa.eu/environment/eia/pdf/eia_case_law.pdf