Sustainable Development and the Legal Protection of the Environment in Europe

Abstract

The concept of sustainable development as a paradigm for balanced development has made its way into the constitutional regimes of national legal systems in the past several decades. However, the justiciability of the concept of sustainable development, particularly in the context of the legal protection of the environment, remains problematic for many legal systems, including Mexico. This paper traces the evolution of the concept of sustainable development in the international order and studies its incursion into the treaties leading to the European Union before it focuses in in the use of the concept in the legal protection of the environment by the Court of Justice of the European Union. An analysis of the interplay of the concept of sustainable development in the primary and secondary legislation of the European Union as interpreted by the Court of Justice of the European Union leads us to the conclusion that, regarding the legal protection of the environment, sustainable development may be viewed as a general principle of law in the European legal order that articulates a series of sub-principles contained in the treaties such as the precautionary principle and the “polluter-pays” principle. We also conclude that the complex use of these principles in the primary and secondary legislation raises a problem of coherence in the formulation of secondary legislation that weakens the Court of Justice’s coherent handling of the concept in its decisions. This paper also suggests that a careful study of the articulation of the concept of sustainable development by the Court of Justice of the European Union might be helpful to Mexican judges dealing with constitutional or international collective environmental claims which most certainly arise under the recent amendments to the Amparo law.