Chapter XVI
The EU Green Deal and the Principle of Proportionality as the Main Principle of Environmental Safety
p. 325-346
Résumé
This article examines approaches to understanding the principle of proportionality in the context of balance between private and public interests in the use of natural resources in accordance with the legislation of the EU and Ukraine. It was established that, in general, in the conditions of the integration of modern legal systems and the existing convergence of legal systems, the formation and establishment of the science of comparative jurisprudence is becoming increasingly relevant. However, in order to optimally understand the content of the principle of proportionality in the use of natural resources, it is advisable to outline the key aspects of the EU’s environmental policy. According to EU legislation, when making managerial decisions in the field of environmental protection, the principle of proportionality between public and private interests, enshrined in the Aarhus and Stockholm conventions, must be observed. However, it was established, according to the legislation of Ukraine, that the principle of proportionality in the use of natural resources is not observed. It was concluded that the normative consolidation of the principle of proportionality as a prospect for the development of the national legislation of Ukraine establishes the imperative of the State’s ability to achieve a balance of private and public interests in general, and in particular, in the field of ecology.
Note de l’auteur
This article was written with the support of researchers from the British Academy, under the Risk Fellowship scheme, in association with Cara.
Texte intégral
І. Introduction
1In the conditions of the rapid development of energy consumption, and the growing technogenic and anthropogenic load on the environment, the issue of solving environmental problems ceases to be a domestic problem and requires the effective use of international and interstate levers of influence.
2Research and the application of the experience of public management in the field of the use of natural resources of EU Member States can help in the modern optimisation of the national environmental protection system.
3Undertaking such a study, we will direct our attention to the analysis of the EU and Ukrainian legislation accordingly, through which we will endeavour to reveal the principle of proportionality between private and public interests in the use of natural resources.
4In general, in the conditions of the integration of modern legal systems and the existing convergence of legal systems, the formation and establishment of the science of comparative jurisprudence is becoming increasingly relevant. However, in order to optimally understand the content of the principle of proportionality between private and public interests in the use of natural resources, it is advisable to outline the key aspects of the EU’s environmental policy.
5Methodology. The methodological bases for the article are general and special methods of legal science, in particular: the method of dialectical analysis, the method of prognostic modelling, as well as formal and logical, normative and dogmatic, sociological methods.
IІ. The Concepts and Principles of the EU Environmental Policy
6The environmental Policy is one of the most important and far-reaching areas of European Union legislation. The EU is a leading authority in the environmental field. It is competent to act in all areas of environmental policy, such as air and water pollution, waste management, and climate change. Its scope is limited by the principle of subsidiarity and the requirement of unanimity in the Council in the sphere of fiscal issues, urban and rural planning, land use, quantitative management of water resources, choice of energy sources, and the energy supply structure.1
7European Union citizens enjoy the highest environmental standards in the world. The EU and national governments have set clear goals to guide European environmental policy until 2050, supported by dedicated research programmes, legislation, and funding.
8In particular, in December 2019, the European Commission presented the ‘European Green Deal’,2 which involves the creation of an environmentally neutral EU economy by 2050, by reducing the overall level of emissions, and increasing the absorption capacity of forests and soils.
9In order to achieve this goal, it is planned to change the energy system model, modernise transport infrastructure, optimise investment policy, review the tax burden and customs duties, as well as preserve the ecosystem.
10Therefore, the EU is seeking to become a leader in the process of the restoration of the global ecosystem and stimulate other countries, first of all, by introducing a so-called carbon tax on imported goods, which will be calculated based on the volume of carbon emissions during production and transportation of the resource to the border.
11Environmental protection and innovation help create new business and employment opportunities stimulating further investment. The green economy is at the heart of EU policy to ensure that economic growth in Europe is environmentally sustainable. The EU also plays a key role in promoting sustainable development at the global level.
12The European Union has adopted legislation aimed at improving the quality of water resources, addressing air and noise pollution, ensuring the safety of chemicals, setting standards for waste management, protecting biodiversity, and protecting plants. The European Union plays a leading role in international negotiations for improved environmental protection.3 The objectives of the European Union are legally binding, and their implementation can be considered in the Court of Justice of the EU.
13In general, it should be emphasised that, in the European Union Member States, the principle of ecologically-oriented public administration is aimed at the implementation of ecological modernisation, which is based on an effective system of ecological taxation of activities related to the use of natural resources; on ensuring a transparent mechanism for the implementation of permit and license proceedings; on increasing effectiveness of control and supervision of compliance with the requirements of legislation in the field of natural resource use, including through building a high level of environmental awareness and legal culture.
14The concept of sustainable development, directly related to the natural environment, was first presented at the international level in 1987 in the Report of the World Commission on Environment and Development (the so-called ‘Brundtland Report’).4
15Since the Brundtland Report, the concept of sustainable development has been repeatedly discussed at the international level.
16In June 1992, at the Earth Summit held in Rio de Janeiro, Brazil, more than 178 countries adopted Agenda 21 – a comprehensive action plan to form a global partnership for promoting sustainable development to improve people’s lives and protect the natural environment.5
17Member States unanimously adopted the Millennium Declaration at the Millennium Summit in September 2000 at the UN headquarters in New York. The Summit contributed to the development of eight Millennium Development Goals aimed at reducing extreme poverty by 2015.6
18At the Conference on Sustainable Development (Rio + 20), organised by the United Nations in Rio de Janeiro (Brazil), in June 2012, Member States adopted the outcome document entitled ‘The Future We Want’, in which, in particular, it was decided to launch the process of forming the UN Political Forum on Sustainable Development. The Rio +207 summit also provided for the implementation of other measures for the promotion of sustainable development, including the development of programmes for financing individual initiatives aimed at strengthening sustainable development, primarily in small island developing nations, etc.
19In 2013, the UN General Assembly established a 30-member Open Working Group to develop a proposal on Sustainable Development Goals. In January 2015, the General Assembly launched a negotiation process on the post-2015 development agenda. This process culminated in the adoption at the UN Sustainable Development Summit in September 2015 of the 2030 Agenda for Sustainable Development, which is based on 17 sustainable development goals.
20The 2030 Agenda for Sustainable Development, adopted by all United Nations Member States in 2015, developed a common plan for peace and prosperity for people and the planet, now and in the future. It is based on 17 sustainable development goals, which are a call for urgent action by all countries, both individually and as part of a global partnership. It was determined that strategies to end poverty, improve health and education, reduce inequality, and stimulate economic growth, must be developed simultaneously to addressing climate change and preserving oceans and forests.
21The year 2015 became a significant year from the point of view of the formation of international policy in the field of sustainable development. Several important agreements were adopted in 2015: the Sendai Framework Program for Disaster Risk Reduction 2015–2030 (adopted in March 2015); the action plan adopted during the Third International Conference on Development Financing held in Addis Ababa (adopted in July 2015); Transforming Our World Resolution: The 2030 Agenda for Sustainable Development (adopted in September 2015); the Paris Agreement on Climate Change (adopted in December 2015).
22From now on, the annual High-Level Political Forum on Sustainable Development is the UN’s central platform for developing further actions and revising the Sustainable Development Goals.8
23Today, the Sustainable Development Goals Division of the United Nations Department of Economic and Social Affairs (UNDESA) provides essential support for the development and implementation of the Sustainable Development Goals and related thematic issues, including water protection, energy, climate protection, ocean protection, urbanisation, transport, science, and technology.9
24The term ‘sustainable development’ is used in the foundation agreements of the EU as one of the goals toward which the Communities should strive (Article 11 of the Treaty on the Functioning of the European Union – TFEU). However, the foundation agreements do not contain a definition of what is meant by this term. Although, from the provisions of the founding treaties, it can be concluded that ‘sustainable development’ is closely related to the principle of integration of all EU policies into the environmental policy. The definition of sustainable development was originally included in Regulation 2493/2000/EC (the regulation has since expired), and provided for the policy of integrating all other EU policies into the environmental policy.10
A. The principle of Integration
25This principle requires that environmental protection be integrated into all other sectoral policies in order to promote sustainable development. That is, all government agencies have an obligation to protect the natural environment.
26Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.11
27The principle of integrating environmental policy into the development and implementation of all other EU policies imposes an important legal obligation on EU institutions. According to the founding treaties, the European Union ensures the coherence of its policies and activities.
28In 2005, the Council of the European Union adopted the Declaration on Guiding Principles for Sustainable Development, which should be followed in the achievement of the Sustainable Development Goals. According to this document, the EU aims to adhere to the following political principles, which are relevant to sustainable development as a goal to be achieved: 1) facilitating the implementation and protection of fundamental rights; 2) fair distribution of responsibilities between the current and future generations; 3) an open and democratic society; 4) involvement of citizens; 5) involvement of business and social partners; 6) consistency of policy and management; 7) policy integration; 8) use of best available knowledge; 9) the principle of precaution; 10) the ‘polluter pays’ principle.
B. The principle of Citizen Involvement
29The principle of citizen involvement concerns citizens’ rights to access information and ensure access to justice. All decisions should be made as openly as possible. In order to implement the principle of citizen involvement, secondary EU legislation on the implementation of the Aarhus Convention12 was adopted. The principle of citizen involvement also applies to education and public awareness about sustainable development, as well as the influence of business and social partners on decision-making in the field of environmental protection.
30The principle of an open and democratic society is the involvement of citizens in the decision-making process, and the development of an effective procedure for consultations and participation of all interested parties and associations. It also refers to the strengthening of citizens’ participation in decision-making processes, which is especially important in cases where administrative decisions are met with the criticism of citizens, despite the fact that these decisions contribute to the achievement of sustainable development goals.
31In general, the principle of engaging business and social partners is to strengthen social dialogue, corporate social responsibility, and private-public partnership, to promote cooperation and shared responsibility for achieving sustainable production and consumption.13
32The European Union considers economic actors as highly significant partners, who help to achieve sustainable development goals. Voluntary commitments are seen as an important contributions to achieving these goals.
C. The Principle of integration of environmental policy
33The principle of integrating environmental policy into the development and implementation of all other EU policies is referred to in a number of directives, for example: directive on the protection of wild birds;14 directive on the protection of natural habitats and wild flora and fauna;15 Eco-design directive;16 Marine Strategy Framework Directive;17 directive on the promotion of the use of energy from renewable sources.18
34The principles of integrating environmental policy into the development and implementation of all other EU policies and policy coherence are to promote coherence between all European Union policies, as well as between local, regional, national, and global actions, in order to increase their contributions to sustainable development. We are talking here about the integration of environmental protection requirements into other EU policies, in particular with the aim of promoting sustainable development (Article 11 TFEU). These principles also address the integration of economic, social, and environmental considerations so they are consistent and mutually reinforcing, making full use of tools for better regulation, such as balanced impact assessment and stakeholder consultation. Integration policy requires that the EU consider all policy objectives in the field of sustainable development in their decisions.
IIІ. The principle of Proportionality and the Principle of the Rule of Law: the Ratio of Categories
35Ukraine’s relations with the European Union were strengthened in 1994, when the Partnership and Cooperation Agreement was signed. Subsequently, the Agreement was implemented within the framework of the European Neighbourhood Policy and the Eastern Partnership. In 2014, both parts of the Association Agreement between Ukraine and the European Union were signed. Given the Russian aggression against Ukraine, the EU’s readiness to admit Ukraine to this organisation is a very important element of support. Ukrainian President Volodymyr Zelenski signed his country’s application for EU membership on 28 February 2022. On 8 April 2022, European Commission Head Ursula von der Leyen handed the Ukrainian President the necessary documents to be completed by the Ukrainian side.
36On 23 June, the leaders of 27 EU Member States decided to grant Ukraine the status of a candidate for EU membership.
37According to Article 8 of the Constitution of Ukraine, the principle of the rule of law is established, which was not actually applied until 1996, and the principle of legality was dominant. So, since the 2000s, the question of applying the rule of law as a priority principle of law enforcement and law-making has arisen.
38It should be emphasised that the Constitution of Ukraine contains a provision not only on the rule of law (Art. 1) – this ‘German invention’ (‘Rechtsstaat’), which has become one of the achievements of the Euro-Atlantic legal civilisation, but also a provision of its no less significant achievement, however, of English origin – the rule of law (‘Rule of law’) – Art. 8.
39Without going into the analysis of the historical peculiarities of the formation and development of the doctrines of the rule of law in Germany and Great Britain, it should be noted that both the principle of the rule of law and the rule of law cover a number of closely related heterogeneous sub-principles – requirements that, in my opinion, provide a fairly complete picture of the content, orientation, and conditions for ensuring these phenomena in modern society.
40It is obviously possible to debate the quantitative indicators of such sub-principles (and some foreign authors number dozens), the content and scope of some of them, but there remains no doubt that the functioning of the rule of law and the establishment of the rule of law are possible under certain conditions when the following basic requirements are consistently and steadily implemented in society: 1) natural and inalienable human rights and freedoms acquire decisive importance in relations between the individual and state power; 2) the principle of separation of powers; 3) limitation of discretionary powers; 4) the supremacy of the Constitution; 5) the principle of certainty; 6) the principle of proportionality; 7) the principle of legal security and protection of faith; 8) independence of the court and judges.
41In particular, the proportionality market concerns the limits of possible restrictions on fundamental human rights. As noted in one of the decisions of the Federal Constitutional Court of Germany, they must be adequate to the specific situation requiring such restriction, i.e., in an acceptable proportion to the weight and significance of the fundamental right.19
42Since the grounds for restrictions on fundamental human rights are formulated both in national constitutions and in international legal documents, in particular, in the Convention for the Protection of Human Rights and Fundamental Freedoms, quite generally, in the form of so-called evaluative concepts, the European Court of Human Rights has repeatedly addressed the use of the principle of proportionality and its interpretation in relation to specific legal situations. In several of its decisions, it has clarified, in particular, the proportionality of interference of state power in individual rights with such evaluative categories as ‘urgent social need’, ‘pursued legitimate goal’, ‘morality of the population’, maintaining a balance between public interests and interests of an individual, etc.20
43The principle of proportionality is also applied in deciding on the conformity of crime and punishment, labour and remuneration for it, etc. This excludes a purely positivist approach to the interpretation and application of the Constitution and laws.
44Key requirements for EU membership, including the rule of law, are set out in the so-called Copenhagen criteria.21
45Two specific negotiating chapters are intended to assist enlargement countries in establishing a society based on the rule of law:
- Chapter 23 – Judiciary and Fundamental Rights;
- Chapter 24 – Justice, Freedom, and Security.
46Negotiations cover a wide variety of aspects of justice, internal security, fundamental rights, and the fight against corruption and organised crime.
47Countries wanting to join the EU need to make sure that:
- their judiciary is independent and impartial. This includes, for example, guaranteed access to justice, fair trial procedures, adequate funding for courts, and training for magistrates and legal practitioners;
- their government and its officials and agents are accountable under the law and political leaders and decision-makers take a clear stance against corruption;
- the process by which laws are prepared, approved, and enforced is transparent, efficient, and fair. Laws must be clear, publicised, stable, fair, and protect fundamental rights.
48When countries respect the rule of law, their citizens, businesses, state institutions, and the economy as a whole are protected from crime (including cyber-crime). This means that law enforcement services must be adequately trained and equipped to enforce the law, as regards both fundamental rights and data protection rules.
49According to the first sentence of Article 2 of the Treaty on European Union (TEU),22 the EU ‘is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights, including the rights of persons belonging to minorities’. The second sentence of this provision assumes that all EU Member States respect and observe these values, as emphasised by the Court of Justice of the European Union (CJEU),23 meaning that respect for the law forms the basis for the common trust between Member States. The CJEU has stated that the ‘existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law’.24
50Ukraine, as a country aspiring to become a member of the European Union, also has a normative consolidation of the principle of the rule of law.
51Therefore, the constitutional consolidation of the principle of the rule of law, establishing its place in the national legal system, has priority in general, and in particular, as a component of the establishment of the principles of legal relations in the system, which has marked the vector of the development of the legal science of Ukraine.
52The content of the principle of the rule of law includes the substantial aspect (establishment of a person, their life and health as the highest social value), and the procedural aspect (as the implementation of the principle of compliance of law-making and law enforcement with the established requirements of the prohibition of the retroactive effect of the law, the inadmissibility of the application of responsibility worsening the property or personal situation a person who has already been arrested for a committed offence, etc.). Therefore, the main content of the principle of the rule of law is the establishment of restrictions on the activities of the government, its establishment of coercions, prohibitions, and restrictions on the activities of private individuals. Whereas the implementation of the principle of proportionality in environmental legal relations is in a synergistic relationship with the principle of the rule of law.
53Environmental disputes are disputes considered in the order of administrative proceedings, which means the need to refer to the judicial practice of administrative courts. Thus, establishing the content of the principle of the rule of law and its relationship with the principle of proportionality as components of the implementation of state and regional environmental policy, the formation of the administrative and legal mechanism of national security of Ukraine.
54Ensuring the realisation of the balance of public and private interests is associated with the regulation and application of a set of tools and institutions that should regulate the relevant sphere of public relations. The main means of achieving the effectiveness of the application of the principle of the rule of law include legal norms, in particular, constitutional provisions as an objective reflection of the contract between society and the state. Precisely such a proportionality of interests between public and private is acceptable for this historical and legal period in specific strategic conditions of development. The implementation of the principle of the rule of law means that the dominant principle of the organisation of the activities of state bodies should also include the priority of international law over national law, under the conditions of its implementation, as well as the application of the relevant norms of the current Ukrainian legislation, the content of the provisions of which should ensure the priority of human rights and freedoms as the highest social value.
55The principle of the rule of law, as stated in the report on the rule of law criterion, adopted by the Venice Commission in March 2016, is a criterion for the effectiveness of the exercise of people’s power in the country, one of the European Union’s key values.25
56The understanding of the principle of the rule of law in scientific literature is ambiguous, and is in a state of scientific debate. In particular, the principle of the rule of law is defined through the concept of the rule of law, which is a criterion for the effectiveness of state functions. Difficulties with adapting the principle of the rule of law, understanding its essence, are associated with the need to apply the lexical interpretation of the English-language term and its implementation to current Ukrainian legislation. Therefore, the content of the principle of the rule of law requires defining the understanding of two categories – ‘supremacy’ and ‘law’.26 The Western European tradition is guided by the need to apply the rule of law principle, which has been relayed to the Ukrainian legal space, to the national legal system as the rule of law principle. The development of European law is gradually bringing together such two categories as the ‘constitutional state’ and the ‘rule of law’. European law sets as priorities for the development of a modern state such three constituent elements as the implementation of the rule of law, human rights, and democratic values. At the same time, the implementation of the rule of law cannot contradict the implementation of the principle of proportionality, but, on the contrary, the two complement one another.
57The implementation of the principle of proportionality as the achievement of a balance of the interests of private individuals and public interest is possible if the idea of development in a legal social democratic state is declared dominant, because if such a requirement is not met, the normative basis for limiting the arbitrariness of state power is actually absent. Therefore, in fact, the implementation of the will of the people, that is, in essence, the establishment of the principle of public interest, while not violating the separate interests of a private person, is not possible within the framework of an authoritarian or totalitarian state.
58Maintaining such a balance between private and public interests is without doubt a rather dynamic category – it cannot be normatively described by a certain list of socio-historical circumstances of the development of an individual state, and is therefore subject to constant revision both at the level of law-making activity, and at the level of law implementation and enforcement. However, at the same time, it is obvious that the most important priority public interest for a modern civilised society is precisely the development of a social legal state, based on democratic principles, recognising human beings as the highest value. Therefore, recognition of the expediency of observing public interests as normatively permissible can only be possible in the conditions of the development of the rule of law. In the same way, meeting the concerns of private interests, and their priority for the state, can be declared as a strategy for the development of the state, when the understanding of a person as the highest social value is established. Consequently, the implementation of the principle of the rule of law is in a synergistic relationship with the implementation of the principle of proportionality, which is generally correlated with the need to implement the doctrine of the rule of law, and the priority of the rights and interests of the individual as the highest social value. In this aspect, it is appropriate to apply the approach that the rule of law is understood as the ability and opportunity of significant social groups to protect and ensure the implementation of legislative acts in force in this country.27
59Within the framework of environmental law, the implementation of the principle of the rule of law relates to the definition of the limits of the discretionary powers of executive authorities. The implementation of discretionary powers by state executive bodies should not create obstacles in ensuring the effective functioning of the environmental policy of Ukraine, understanding the essence of which is again debatable.
60An encyclopaedic approach to understanding the essence of the principle of the rule of law, which is based on taking into account the results and judicial practice in particular, as well as on the generalisation of the results of scientific research, consists in understanding it as a certain way of organising the life of society on a legal basis; a certain set of moral values of the law, correlated with the categories of justice, proportionality, commensurability, equality, integrity, purposefulness, reasonableness, etc.; a criterion for building a legal system; a means of limiting the state.28 Thus, this approach to understanding the principle of the rule of law is determined by scientists through the principle of proportionality.
61In accordance with the provisions of the 2011 Venice Commission Report,29 such elements of the rule of law are defined as: 1) legality in the sense of transparency and reasonableness of the development and adoption of legislative acts; 2) legal certainty; 3) prohibition of arbitrariness; 4) access to justice, i.e. independence and impartiality of courts, including during the judicial review of environmental disputes; 5) observance of human rights; 6) inadmissibility of manifestations of discrimination and ensuring equality before the law.
62Based on the analysis of the Copenhagen criteria,30 it is permissible to justify the conclusion that the implementation of the principle of the rule of law in environmental legal relations should be based on compliance with such main criteria as: achieving the stability of the system of institutions in the environmental sphere; creating equal economic opportunities as a condition for creating a favourable investment environment and sustainable development of society; implementing the effective administrative reform of state bodies, among the criteria of effectiveness of which is the achievement of transparency, openness, convenience, and ‘usefulness’ of the development of environmental security.
63The implementation of the principle of the rule of law in Ukraine requires the implementation of the priorities of the executive policy of the government, which should be directed toward the creation and introduction of mechanisms of imperative responsibility for the committing of offenses, in general, and in particular, in the environmental sphere. Achieving the implementation of the principle of the rule of law in the context of environmental legal relations is the creation of conditions for the adaptation of the current national legislation to the adaptation of the EU legislation in Ukraine, however, the effectiveness of law-making in this direction is minimal.31
64One of the most effective ways to ensure the rule of law is to create conditions for access to justice, including under martial law. ‘Access to justice is a key prerequisite for the real operation of the rule of law’.32 At the same time, access to justice is not only the possibility of filing an application with the court. This is the creation of a system of guarantees for the protection of violated rights by an impartial independent court, including the validity of the application of what are known as cassation ‘filters’.33 Simultaneously, the availability of justice must be proportional to the burden on the judicial system, by creating effective mechanisms for the protection of property and personal non-property interests of a private person – for example, in an administrative procedure.34 The administrative procedure for appealing the actions, decisions or inaction of state authorities and local governments in Ukraine is not an imperative requirement, which is based, inter alia, on the position of the Constitutional Court of Ukraine, set out in Decision No 15-rp/2002 of 07/09/2002 on the pre-trial settlement of disputes.35
65It is necessary to agree with the conclusion that the implementation of the principle of proportionality is essentially the implementation of certain legal tools of establishing the indicators of compliance with the principle of the rule of law not only in the public sphere, but also in related social/legal relations36). Thus, reaching a conclusion about the proportionality of the actions of the subject of authority means reaching a conclusion about the balance of private and public interests in a specific administrative case.
66The test for the proportionality of a decision, actions or inaction in environmental legal relations, is the search for answers to three questions (the so-called ‘three-component test’37): 1) whether there is a proper basis for the state intervention of a state body in the activities of a private person (factual aspect); 2) whether the purpose of the state body’s intervention is legitimate (substantive aspect); and 3) whether intervention is necessary (procedural aspect). The application of the proportionality test within the judicial protection of the rights of a private person in the field of ecology should be considered an element of the rule of law.
67It is worth pointing out that the application of the principle of proportionality in the conditions of martial law does not mean a rejection of the priority of achieving the rule of law in the field of environmental legal relations, because the latter should be aimed at taking measures to limit the absolute power of the state in order to ensure the protection of both private and public interests. Therefore, the principle of proportionality does not deny the application of the principle of the rule of law, both in normal conditions, and in conditions of martial law. Implementation of the rule of law in the environmental sphere means creating conditions to ensure the legal certainty of the ecosystem protection mechanism, including in conditions of martial law, inadmissibility of discrimination, etc.
68All of the above is correlated with the need to legislate the principle of proportionality, i.e., the balance of the interests of private individuals and public interests in Ukrainian legislation.
IV. Ecological Proportionality
69The essence of the principle of proportionality was determined both by representatives of domestic jurisprudence and foreign legal science. The issue of achieving a balance of private and public interests as an implementation of the principle of proportionality is constantly in the circle of problems of scientific research by scientists.
70The legal term ‘interesse’ was used even in the times of ancient Roman law to refer to the interest charged for granting a loan. In the second half of the eighteenth century, the concept of interesse was borrowed from Western European canon law to use in the distinction between the legal fee for granting a loan and the ‘sin of usury’. In accordance with the provisions of canon law, the term was borrowed from German jurisprudence – where it was used in the sense of ‘benefit’ and ‘usefulness’.38
71The actualisation of the study of the ‘interest’ category, the distinction between private and public interest, relates to the adoption of the Concept of Administrative Reform of Ukraine in 1998,39 where the movement of the state towards its development in the public-service conceptual model of action was defined. Accordingly, the adoption of the Concept of Administrative Reform of Ukraine in 1998 substantiated the expediency of intensifying research on establishing directions for its implementation, creating a theoretical and legal basis for the development and implementation of state and regional policy, including issues of establishing the essence and content of the system of legal principles, and searching for its optimal structure.
72The intensification of research devoted to establishing the essence of understanding the principle of proportionality, determining its place in the system of principles of law, is conditioned by several reasons of normative, general, theoretical, and praxeological content. Argumentation from the point of view of the expediency of carrying out general theoretical research is justified by the need for efforts to introduce into the national constitutional space the idea of proportionality as the balance of private and public interests, which should be considered as a guideline for the functioning of the administrative-legal mechanism for ensuring the rights and interests of the individual.
However, as some scientists point out:
Ukraine, while quite actively developing legislation on judicial power, at the same time does not always comply with relevant world and European standards in this area, which is confirmed at the level of official documents of the Council of Europe,
73thus emphasising the need to intensify law-making activities from the review of approaches to the development of the national legal system and its principles.40
74The regulatory and legal reasons for the intensification of research on the establishment of the essence and content of the principle of proportionality must determine the need to adapt the national legislation of Ukraine to European legal standards as a certain vector of development. In particular, we are talking here about the provisions of the Treaty on the Establishment of the EU (as amended by the Treaty of Lisbon),41 and the Charter of Fundamental Rights of the European Union (Art. 49, 52),42 which was further detailed in Art. 4 of the Association Agreement between the European Union and Ukraine.43 The principle of proportionality is an unconditional characteristic of the law of the Council of Europe (in particular, the expediency of applying the test for the proportionality of state actions is contained in Recommendation No R (92) 16 of the Committee of Ministers to Member States on the application of public sanctions and measures dated 10.19.199244).
75The principle of proportionality is considered to be one of the principles of the practice of the European Court of Human Rights,45 which applies the ‘three-component test’ as a determining principle for evaluating decisions, actions, or inaction of the state regarding its interference with human rights, i.e. ‘private life’. At the same time, the principle of proportionality is not permanently enshrined in the norms of the Constitution of Ukraine, but its feasibility comes from its provisions. The principle of proportionality was introduced into national judicial practice, in particular, in accordance with the Decision of the Constitutional Court of Ukraine dated 11.10.2018, No 8-r/2018, in the case of appeals by persons recognised by the court as incapacitated. It was determined that ‘restrictions on the exercise of the constitutional right to appeal cannot can be associated only with recognition of a person as incapacitated. Such restrictions should be established exclusively based on the provisions of the Constitution of Ukraine, pursue a legitimate goal, be conditioned by the social necessity of achieving this goal, and be proportionate and justified’.46
76The principle of proportionality is established in accordance with the provisions of Part 2 of Art. 2 of the Civil Code of Ukraine, where it is established that, in cases concerning the appeal of decisions, actions or inaction of subjects of authority, administrative courts must determine: 1) the basis for the implementation of the competence of the administrative body; 2) the purpose of the decision, action or inaction of the body; 3) the justification of the body’s decision, action or inaction; 4) impartiality of the adoption of an administrative act; 5) integrity; 6) prudence; 7) observance of the principle of equality before the law; 8) proportionality of the content of an administrative act or administrative action (inaction); and 9) the administrative competence capacity of the administrative body.
77In accordance with the current legislation of Ukraine, there is a distinction between the principles of proportionality and the principle of the rule of law, which is provided for in Part 2 of Art. 2 and CAS of Ukraine,47 which is a component of the latter whereas, at the same time, its other components are neglected.
78The idea of implementing the principle of proportionality is constantly being introduced in accordance with the classic German theory of proportionality, which is employed in the activity of the European Court of Justice as a set of three elements: a) the conformity of the measures applied by the administrative body (for example, the application of a sanction for an environmental offense must be carried out in compliance with reasonableness, the balance of private and public interest); b) the expediency of intervention measures of the subject of authority or administrative court; and c) the appropriateness of measures (‘proportionality in the narrow sense’).
79The principle of proportionality is not a special principle characterising the field of legal relations in the environmental sphere alone, it should be defined as a general principle of law. The general legal nature of the principle of proportionality is determined by several factors. Attribution of the principle of proportionality to general legal principles is determined by its conceptual, fundamental meaning, which means its presence in the same categorical row as such principles as justice, integrity, humanism, and reasonableness.
80Therefore, it can be seen that the principle of proportionality as a principle of law enforcement in the environmental sphere can manifest itself in an unjustified choice of sanctions for committing an offense where it borders on the principle of justice; the unlawful restriction of the procedure for the exercise of rights and interests, where it borders on the principle of justice; unjustified limitation of the initiative to implement subjective public rights, which is connected with the principle of discretion of administrative-legal relations.
81The principle of proportionality is a principle of law enforcement, and should be applied when considering and resolving environmental disputes, when taking measures aimed at restoring a violated subjective public right, i.e. its universal common law character.
82The principle of proportionality is, to a certain extent, both a principle of material and of procedural law.48 Compliance with the principle of proportionality is required both in the development of administrative and legal acts of the current legislation of Ukraine, and in the adoption of procedural acts.
83However, there is a correct suggestion that this principle should not only be applied to governmental activities that intrude on citizens’ rights, but also to those citizens’ activities that intrude on nature. As the author points out:
This analogy is justifiable because the two areas of application have a common denominator, that is the limitation of power. In the first case it is state power over society (or the collective over the individuals) that must be tamed; in the second it is societal power over nature that must be tamed. Proportionality in the second sense would be a requirement of justifying uses of nature by society. ‘Society’ would include individual persons and enterprises, but also governmental bodies in their capacity not as regulators but as direct users of nature. For the sake of clear terminology I shall refer to the two kinds of proportionality as sociological and ecological. While sociological proportionality (or in short socio-proportionality) shall primarily protect basic rights of citizens against governmental intrusions, ecological proportionality (or eco-proportionality) shall protect nature against intrusions by society (including nature-consuming governments).49
V. Conclusion
84Eco-proportionality is proposed as a possible framework for balancing the interests of exploitation and the protection of nature, thereby limiting the freedom of action built into concepts such as nature rights, nature contract, sustainability, and cost-benefit analysis. Eco-proportionality is analogous to the principle of proportionality, called social proportionality here. Both principles have a common denominator in that they test the power of the state over society and society (both individual and collective) over nature, respectively. As in the case of socio-proportionality, eco-proportionality requires four tests, namely justified goals of action and efficiency, necessity, and weighting of means. It has been shown that the principle already exists as both a social and a legal norm. There is reason to believe that it should penetrate more areas of social practice and the rule of law, while taking more differentiated and ambitious forms.
85The normative consolidation of the principle of proportionality as a prospect for the development of the national legislation of Ukraine establishes the imperative of the state’s ability to achieve a balance of private and public interests generally, and particularly in the field of ecology.
Notes de bas de page
1 Environmental policy: general principles and basic: www.europarl.europa.eu/ftu/pdf/en/FTU_2.5.1.pdf.
2 Commission, ‘The European Green Deal’ (Communication) COM(2019) 640 final.
3 Towards a greener and more sustainable Europe: https://european-union.europa.eu/priorities-and-actions/actions-topic/environment_en.
4 World Commission for the Environment and Development, Our Common Future, UN General Assembly, Doc. A/42/427, Sect. 4: https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf.
5 United Nations Conference on Environment and Development (UNCED), Earth Summit: https://sustainabledevelopment.un.org/milestones/unced.
6 News on Millennium Development Goals: www.un.org/millenniumgoals/.
7 High-Level Political Forum: sustainabledevelopment.un.org/hlpf.
8 Ibid.
9 Department of Social and Economic Affairs: www.un.org/development/desa/en.
10 Sustainable Development Goals: https://sdgs.un.org/goals.
11 Article 11 (ex Article 6 TEC) of the Treaty on the Functioning of the EU (TFEU – Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47).
12 The Aarhus Convention: https://unece.org/info/Environment-Policy/Public-participation/pub/2289.
13 M. Kenig-Witkowska, ‘The Concept of Sustainable Development in the European Union Policy and Law’ (2017) 1(1) Journal of Comparative Urban Law and Policy.
14 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (Codified version) OJ [2010] L 20/7.
15 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora OJ [1992] L 206/7.
16 Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products (recast), OJ [2009] L 285/10.
17 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), OJ [2008] L 164/19.
18 Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (recast), OJ [2018] L 328/82.
19 Leitsätze: www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2020/05/rs20200519_1bvr283517.html.
20 W. Birkenmaier, ‘“Rechtsstaаt” The rule of law in the Federal Republic of Germany’ in The rule of Law (Bonn, Konrad – Adenauer-Stiftung, 1997) 56–57.
21 Copenhagen criteria: https://eur-lex.europa.eu/browse/summaries.html.
22 Consolidated Version of the of the Treaty on European Union [2012] OJ C 326/13.
23 Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, ECLI:EU:C:2018:117.
24 Ibid.
25 CDL-AD(2016)007-e ‘Rule of Law Checklist’, adopted by the Venice Commission at its 106th Plenary Session (2016): www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)007-e.
26 P. M. Rabinovych, ‘Verkhovenstvo prava (za materialamy praktyky Strasburzkoho Sudu ta Konstytutsiinoho Sudu Ukrainy)’ (2006) 2 Visnyk Akademii pravovykh nauk Ukrainy 3–16.
27 P. Hauder ‘Verkhovenstvo prava v realnomu sviti’ in D. Vovk, V. Honcharov, K. Horobets, D. Luchenko; D. Vovk (eds) Pravo Ukrayiny (Kharkiv, Pravo, 2018) 392.
28 Velyka ukraïnska yurydychna entsyklopediia: (Nats. akad. pravovykh nauk ; In-t derzhavy i prava imeni V. M. Koretskoho NAN Ukraïny; Nats. yuryd. un-t imeni Yaroslava Mudroho, 2017).
29 CDL-AD(2016)007-e ‘Rule of Law Checklist’ (n 26 above).
30 L. Falalieieva ‘Rol kopenhahenskykh kryteriiv u realizatsii tsinnostei Yevropeiskoho Soiuzu’(2017) Naukovi zapysky Instytutu zakonodavstva Verkhovnoi Rady Ukrainy 114, 122.
31 Guidelines for Ukrainian Governmental Administration on approximation with EU law: https://eu-ua.kmu.gov.ua/node/4375.
32 O. M. Ovcharenko, Dostupnist pravosuddia ta harantii yoho realizatsii (Kharkiv, Pravo, 2008).
33 O. Drozd, Y. Dorokhina, Y. Leheza, M. Smokovych and N. Zadyraka, ‘Cassation filters in administrative judicial procedure: a step in a chasm or a novel that Ukrainian society expected?’ (2021) 10(40) Amazonia investiga 222–33.
34 O. M. Ovcharenko, Dostupnist pravosuddia (n 33 above).
35 Rishennia Konstytutsiinoho Sudu Ukrainy (2002) vid 09 lypnia 2002 roku no 15-rp/2002: https://zakon.rada.gov.ua/laws/show/v015p710-02#Text.
36 Yu. O. Yevtoshuk, Pryntsyp proportsiy̆nosti yak neobkhidni skladova verkhovenstva prava (PhD Thesis, Kyiv, 2015) 8.
37 S. P. Pohrebniak, Osnovopolozhni pryntsypy prava (zmistovna kharakterystyka) (Kharkiv, Pravo, 2008).
38 IV Venediktova ‘Geneza interesu yak pravovoi katehorii v riznykh krainakh svitu v period do XIX ct.’ (2011) 3 Forum prava 119–125.
39 Pro zakhody shchodo vprovadzhennia Kontseptsii administratyvnoi reformy v Ukraini (1998). Ukaz Prezydenta Ukrainy vid 22 lypnia 1998 roku no 810/98: https://zakon.rada.gov.ua/laws/show/810/98#Text.
40 R. S. Melnyk, V. M. Bevzenko, Zahalne administratyvne pravo (Kyiv, Vaite, 2014).
41 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ [2007] C 306/1.
42 Charter of Fundamental Rights of the European Union, OJ [2016] C 202/389.
43 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, OJ [2014] L 161/3.
44 Rekomendatsii R(92) 16 Komitetu ministriv derzhavam chlenam pro zastosuvannia hromadskykh sanktsii ta zakhodiv vid 19.10.1992: https://rm.coe.int/168047ebb5.
45 Ibid.
46 Association Agreement between the European Union and Ukraine (n 44 above).
47 M. M. Luchenko, Pryntsyp proportsiy̆nosti v administratyvnomu sudochynstvi (PhD Thesis, Zaporizhzhia, 2019): http://phd.znu.edu.ua/page/dis/07_2019/Luchenko.pdf.
48 Yu. O. Yevtoshuk, Pryntsyp proportsiy̆nosti (n 37 above), 18.
49 Ch. Voigt, Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge, Cambridge University Press, 2013): https://assets.cambridge.org/97811070/43268/frontmatter/9781107043268_frontmatter.pdf.
Auteur
-
Yuliia Volkova
PhD, Professor, Taras Shevchenko National University of Kyiv, Ukraine
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