Constitutional Right to a Healthy Environment in Belgium

Transcription

1 RECIEL 16 (3) ISSN Constitutional Right to a Healthy Blackwell ORIGINAL CONSTITUTIONAL Publishing ARTICLES RIGHT Ltd TO A HEALTHY ENVIRONMENT IN BELGIUM Environment in Belgium Marc Martens Since 1994, the right to a healthy environment has been recognized under Article 23 of the Belgian Constitution. It contains a standstill clause, which precludes the authorities from reducing substantially the level of environmental protection without reasons of public interest. The effectiveness of Article 23 of the Constitution has remained unclear for a long period. Therefore, the legal protection of the environment has more often been achieved through reliance on the right to respect for private and family life, guaranteed by Article 22 of the Belgian Constitution and by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), both of which have provisions with direct effect. The scope of protection of Article 23 of the Constitution is broader than the one provided by Article 22 of the Constitution and Article 8 of the ECHR, which is limited to nuisances with an effect on the person s private or family sphere, excluding a more general protection of the environment. However, the standstill provision in Article 23 only precludes the State from decreasing the level of protection of a healthy environment where this protection is provided for by law. It does not preclude retrogressions regarding factual situations. In this regard, claims founded on Article 8 of the ECHR and Article 22 of the Constitution still have their utility. As a result, Article 23 and Article 22 of the Constitution and Article 8 of the ECHR are complementary to a certain degree. INTRODUCTION The purpose of this article is to examine the extent to which the existence of an individual s right to a healthy environment is recognized under Belgian constitutional law and, insofar as it is, the substantive content of such a right. To this end, the article reviews the relevant constitutional provisions, which directly or indirectly address the protection of the environment. It commences with a review of Article 23 of the Constitution, which has provided for the right to a healthy environment since As the effectiveness of Article 23 of the Constitution has remained uncertain for a long period, we shall review the protection of a healthy environment as it was guaranteed by the provisions regarding the right to respect for a private life. Finally, we will assess whether, in light of case law, it is still necessary to rely on the right to respect for private life as means for the protection of environment. CONSTITUTIONAL RIGHT TO THE PROTECTION OF A HEALTHY ENVIRONMENT INTRODUCTION: ENVIRONMENT AS A CONSTITUTIONAL HUMAN RIGHT Since 31 January 1994, the right to the protection of a healthy environment has been provided for in the Belgian Constitution. Article 23 of the Belgian Constitution states the following: Everyone shall have the right to have a decent and dignified life. To this end, the economic, social and cultural rights shall be guaranteed by the federal act, decree or rule referred to in Article 134 [i.e. the ordinance], by which the terms and conditions to exercise such rights are defined, taking the obligations concerned into account. Such rights include in particular: 1 the right to work and free choice of professional activity within the framework of a general employment policy, which is oriented towards guaranteeing an employment level as stable and high as possible, the right to fair labour conditions and a fair remuneration, as well as the right to collect information, consultation and collective bargaining; 2 the right to social security, protection of health and social, medical and legal assistance; 3 the right to decent housing; 4 the right to the protection of a healthy environment; 5 the right to cultural and social development. This provision was subject to intensive discussions in the Belgian Constituent Assembly when the Constitution was being drafted, even though the right to the protection of a healthy environment was not discussed 2007 The Author. Journal compilation 2007 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 287

2 MARC MARTENS RECIEL 16 (3) 2007 much in comparison with the other rights. 1 The provision incontestably has a symbolic importance by introducing the concept of environmental protection in the highest rule of domestic law. This constitutional right is not formulated as a right to a healthy environment as such, but as a right to the protection of a healthy environment, which implies that it guarantees much more of a right of intervention of the competent authorities than a collective right. 2 In the categorization of fundamental rights, 3 the right to the protection of a healthy environment is traditionally classified under the so-called Third-Generation Human Rights. Third-Generation Human Rights are collective rights. The term collective rights refers to rights which are held and exercised by specific groups of persons collectively and aim to guarantee global situations (right of peace, right to self-determination, right to economic and social development, and right to a healthy environment). 4 Their scope is vague. The Belgian Constituent Assembly has however incorporated this right in the category of economic, social and cultural rights, which are considered as Second-Generation human rights. 5 Therefore, the right to the protection of a healthy environment in Belgium benefits from the protection of Second-Generation human rights. 6 We analyse below what the scope of this protection is. As a result of the semantic construction of Article 23 of the Constitution, the economic, social and cultural rights, including the protection of a healthy environment, contribute to a decent and dignified life. The choice of the Belgian Constituent Assembly is not free of some risks. In the traditional concept of the ideologically tinted economic, social and cultural rights, a decent and dignified life will be guaranteed passively (prohibition 1 J. Theunis and B. Hubeau, Het grondwettelijk recht op de bescherming van een gezond leefmilieu, artikel 23, 3de lid, 4, van de grondwet: Draagwijdte en belang voor een goede ordening van de ruimte, TROS (December 1997), Ibid., at The distinction between categories of fundamental rights is relative and subject to criticism. See J. Vande Lanotte and T. De Pelsmaeker, Economic, Social and Cultural rights in the Belgian Constitution, in P. Van der Auweraert (ed.), Social, Economic and Cultural Rights: An appraisal of Current European and International Developments (Maklu, 2002), 263, at 264, especially footnotes 5, 6 and 7; I. Hachez, L Effet de standstill: le pari des droits économiques, sociaux et culturels?, 24:1 Administration Publique (2000), 30, at See, for instance, R. Ergec, Introduction au droit public (Kluwer, 1995), at Which are, for instance, the right to work, the right to social security, protection of health and social, medical and legal assistance, the right to decent housing, and the right to education. See J. Theunis and B. Hubeau, n. 1 above, at 331. M. Kamminga, Mensenrechten en milieubescherming, een nuttige combinatie, 18:3 NJCM (1993), 277; F. Ost, Un environnement de qualité: droit individuel ou responsabilité collective?, in L actualité du droit de l environnement (Bruylant, 1995), at See I. Hachez, n. 3 above, at 30. of slavery, respect of privacy). No positive action of the State is expected, except for its financial intervention for less privileged persons and its guarantee of equal access to education and health. 7 The option chosen by the Constituent Assembly has been criticized by some authors, 8 according to whom the introduction of the right to a healthy environment in the category of economic and social rights provided for by Article 23 does not bring total satisfaction, as it tends to reduce its content to the protection of human health, even if health is understood in its broadest sense. According to these authors, this is the result of an anthropocentric view of environmental law. By limiting this concept to a formal expression of a right, the opinion of the Constituent Assembly would partially contradict a doctrinal tendency that proposes to substitute the combined interest-collective liability to the traditional subjective right-obligation, which characterizes most legal relations. The notion of legitimate interest gives more opportunities for claims and actions for the protection of the environment than the classical view that access to the judge is biased towards private patrimonies. The concept of collective liability gives a much better translation than the concept of a right, of an idea of protection of common patrimony, particularly when it is for the profit of future generations. 9 Based on the preparatory works on Article 23, the right to a healthy environment has to be interpreted broadly. It does not seem that the Constituent Assembly wanted to reduce the scope of the right to protection of a healthy environment to the protection of human health against pollution. Notwithstanding conceptual debates on this, 10 the Constituent Assembly wanted the right to a healthy environment to be interpreted broadly: everyone has the right to (the protection of) a human, healthy and ecologically well-balanced or stable environment. 11 The authorities have this special responsibility to assure that the next generation will 7 P. Orianne, Mythe ou réalité des droits économiques, sociaux et culturels, in Présence du droit public et des droits de l homme. Mélanges offerts à Jacques Velu (Bruylant, 1993), at 1871; P. Martens, L insertion des droits économiques, sociaux et culturels dans la Constitution, 2:1 Rev. B. dr. Const. (1995), 3. 8 B. Jadot and F. Ost, La protection de l environnement: droits ou intérêt, note under Brussels, 2 November 1998, 161 Journal des procès (1 December 1989), 37; F. Ost, Le juste milieu. Pour une approche dialectique du rapport homme-nature, in Ph. Gérard, Fr. Ost and M. van de Kerckove, Images et usage de la nature en droit (FUSL, 1993), J.-Fr. Neuray, Droit de l environnement (Bruylant, 2001), at Ibid., at Révision du titre II de la Constitution, par l insertion d un article 24bis relatif aux droits économiques et sociaux, Parl. St., Senate, B.Z., , No 100-2/3, at 20; and Révision du Titre II de la Constitution, par l insertion d un article 24bis relatif aux droits économiques et sociaux (Droit au travail, à la sécurité sociale, à l assistance, à un logement convenable et à un environnement sain), Parl. St., Chamber of representatives, B.Z , No 381/1, at

3 RECIEL 16 (3) 2007 CONSTITUTIONAL RIGHT TO A HEALTHY ENVIRONMENT IN BELGIUM still have a habitable environment and tasks in this regard are very broad. The authorities not only have the duty to protect the environment but also to fight against water, air or soil pollution, to provide for decent land-use planning and agriculture, and to encourage sustainable development in industry and transport (mobility). 12 LEGAL EFFECTS OF ARTICLE 23 OF THE CONSTITUTION Article 23 of the Constitution offers a framework wherein the different legislators in the country s various federated entities can intervene within their respective competences 13 and choose to concede specific rights to the citizens of Belgium. 14 Its first aim is to influence governmental policy and guide the legislator, 15 even if this aim is not enforceable due to its vague wording. 16 The preparatory documents for Article 23 of the Constitution stress repeatedly that economic, social and cultural rights have no direct effect and that they do not concede any subjective right to the citizens. 17 However, and quite paradoxically, the Constituent Assembly wanted to grant some positive legal effects to the mentioned rights by recognizing (i) that these provisions will serve as a legal basis for the interpretation of the legal framework, statutes, laws and other legal binding texts (in dubio pro natura); 18 (ii) that their combination with Article 10 and 11 of the Constitution implies that they cannot be applied on a discriminatory base; 19 and, finally, (iii) that they have a standstill effect Révision du titre II de la Constitution, par l insertion d un article 24bis relatif aux droits économiques et sociaux, Parl. St., Senate, B.Z., , No 100-2/1, at In Belgium, the federated entities (the Flemish, Walloon and Brussels Capital Region) can enact decrees and ordinances as to the matters within their competence, which are not subordinate to federal laws. They have the same force of law throughout the territory for which they are competent. 14 L. Lavrysen, De ontwikkeling van het Europese, Belgische en Vlaamse milieurecht in een wijzigende institutionele context (Kluwer, 1998), at See Révision du titre II de la constitution, par l insertion d un article 24bis relatif aux droits économiques et sociaux, n. 11 above, at 13; and Parl. St., Chamber of representatives, B.Z , No 381/1, n. 11 above, at K. Deketelaere (ed.), Handboek Milieurecht (Die Keure, 2001), at See Parl. St., Senate, B.Z., , No 100-2/1, n. 12 above, at 4; Parl. St., Senate, B.Z., , No 100-2/3, n. 11 above, at 4, 11 and 20; and Révision du titre II de la Constitution, par l insertion d un article 24bis relatif aux droits économiques et sociaux, Parl. St., Senate, B.Z., , No 100-2/4, at 5, 14 and In dubio pro natura means if any doubt should occur, the rule must be interpreted to the advantage of nature. If a rule can be interpreted in different ways, one should always privilege the interpretation which is the most advantageous to the environment. 19 See Parl. St., Chamber of representatives, B.Z , No 381/1, n. 11 above, at See Parl. St., Senate, B.Z., , No 100-2/3, n. 11 above, at 13; and Parl. St., Chamber of representatives, B.Z , No 381/1, n. 11 above, at 8. Due to this ambiguity, the exact legal effectiveness of this provision remained uncertain, especially in as far as the direct effect provision is concerned, and further developments and clarifications must be looked for in case law. No Direct Effects Even if it is not always clear what is meant by direct effect, Vande Lanotte and De Pelsmaeker expound that, in essence, it refers to the question whether the invoked provision is sufficiently clear and unconditional to be applied by the courts without further elaboration. 21 Based on the preparatory documents regarding Article 23 of the Constitution, the rights provided for in this article do not have direct effects. As a consequence, no subjective rights can emanate or result from this article and individuals cannot rely on it to claim an infringement of such rights by public authorities or third parties. 22 Apparently, the Constituent Assembly feared to grant these rights without the State being able to realize them and wanted to prevent public authorities from being confronted with liability claims. On the other hand, the granted rights had to acquire a certain positive legal effect, without being regarded as subjective rights. Article 23 of the Belgian Constitution was not meant to impose any directly enforceable obligations on the State (there was no intended vertical direct effect), nor to impose obligations on private persons (no direct horizontal effect). In the meantime, some courts and tribunals have interpreted this legal concept broadly and some authors have pertinently identified a possible evolution in the case law, which would tend to transform slowly a guaranteed legitimate interest into a subjective right. 23 Function of Interpretation A key aspect of economic, social and cultural rights is their use as a constitutional basis for the interpretation of laws, decrees and ordinances. When a rule is open to different interpretations, a judge will have to give preference to the interpretation that conforms with the Constitution 21 See J. Vande Lanotte and T. De Pelsmaeker, n. 3 above, at See Parl. St., Senate, B.Z., , No 100-2/1, n. 12 above at 4; Parl. St., Senate, B.Z., , No 100-2/3, n. 11 above, at 4; and No 100-2/4, n. 17 above, at 5, 14, 20 and Fr. Tulkens, L accès à la justice en matière d environnement au regard du droit constitutionnel à la protection d un environnement sain, in C. Larssen and M. Pallemaerts (eds), L accès à la justice en matière d environnement Toegang tot de rechter in milieuzaken (Bruylant, 2005), 179, at Some judgments have recognized a direct effect to Article 23 of the Constitution. See, for instance, Liège, 29 January 1998, JLMB 1998, 470; Civ. Bruxelles (réf.), 29 July 2004, Amén.-Env., 2005/1, at 84. The judge of Marche-en- Famenne has even recognized a direct horizontal effect to Article 23, subsection 3, no 4 of the Belgian Constitution. See J.P. Marche-en- Famenne, 21 February 1995, 104 JLMB (1995),

4 MARC MARTENS RECIEL 16 (3) 2007 over the interpretation that does not. In the instance of doubt, an environmentally friendly interpretation will prevail (in dubio pro natura). 24 According to some authors, this criterion also limits the power of the authorities decisions, for instance when granting permits and authorizations that could have an effect on the environment. A permit application should be refused, following this view, if it is likely to affect human health and environment. 25 Others are more nuanced by insisting on the programmatic function of the discussed provision. In this view, Article 23(4) of the Constitution is meant for the legislators more than for the judges. Moreover, Article 23(1) recognizes the right to work and to free choice of a professional activity, which could not, according to these scholars, be assured without intensive economic development that could enter into conflict with the right to the protection of a healthy environment. As a consequence, the balancing scales (environment versus economic development) should carry the same weight. 26 Equal Treatment and Non-Discrimination Another key issue regarding economic, social and cultural rights lies in their combination with the principle of non-discrimination and equal treatment set out in Articles 10 and 11 of the Constitution. 27 The protection of a healthy environment has to be guaranteed on a non-discriminatory basis, guaranteeing legal equality. Following the preparatory documents, the violation of these constitutional principles by a legal norm is subject to annulment by the Constitutional Court, 28 which has been confirmed by the case law of this court itself. 29 The Constitutional Court is only competent (i) to determine whether a law, decree or ordinance is compliant with the allocation of powers provided under the Constitution and, since 1988, (ii) to review its compliance with the constitutional equality and 24 See Parl. St., Senate, B.Z., , No 100-2/3, n. 11 above. 25 B. Jadot, Le droit à l environnement, in R. Ergec (ed.), Les droits économiques, sociaux et culturels dans la Constitution (Bruylant, 1995), at D. Lagasse, Le Conseil d Etat et la protection de l environnement, in Les juges et la protection de l environnement (Bruylant, 1998), 158, at Article 10 of the Constitution states : There are no class distinctions in the State. Belgians are equal before the law; they are the only ones eligible for civil and military service, but for the exceptions that could be made by law for special cases. Article 11 of the Constitution states: Enjoyment of the rights and freedoms recognized for Belgians should be ensured without discrimination. To this end, laws and decrees guarantee notably the rights and freedoms of ideological and philosophical minorities. 28 See Parl. St., Chamber of representatives, B.Z., , No 381/1, n. 11 above, at Constitutional Court, No 50 and 51/2003, 30 April non-discrimination principles (Articles 10 and 11 of the Belgian Constitution) and (iii) to review its compliance with the right and freedom of education (Article 24 of the Belgian Constitution). Through an extensive interpretation of the equality and non-discrimination principle, the court has extended its own jurisdiction considerably, and has verified whether legislative acts do not violate constitutional equality and non-discrimination when further elaborating the rights provided for in Article 23 of the Belgian Constitution. According to the case law of the Constitutional Court (as well as of the two other superior courts the Court of Cassation and the Council of State), these constitutional principles do not prohibit different treatment if there is an objective and reasonable justification to do so. 30 The existence of such a justification must be assessed in relation to the aim and the effects of the measure under consideration. The principle of equality is violated when there is no reasonable proportion between the means employed and the aim pursued (principle of proportionality). This principle of proportionality which means that there must exist a reasonable relationship between the means used and the objective to be obtained is used to assess the appropriate authority s minimum level of power of decision. The significance of the combination of Article 23 of the Constitution with the principle of non-discrimination has lost its importance since the Constitutional Court has become competent under the Special Law of 9 March to review directly the compatibility of legislative acts with Article 23 of the Constitution, amongst others. As Vande Lanotte suggests, it can be concluded that this compulsory detour via the constitutional equality and non-discrimination principles needlessly complicated the judicial review and has led to overexposure of these principles in Belgian Constitutional law. 32 STANDSTILL EFFECT The Hesitance of the Constitutional Court Notwithstanding the explicit absence of direct effect of Article 23 of the Constitution, the preparatory documents explicitly confer to these rights a standstill effect. 33 We will see hereafter that the Belgian Constitutional Court did not explicitly recognize a standstill effect to Article 23 of the Constitution until Nevertheless, 30 Constitutional Court, No 37/97, 8 July Special Law of 9 March 2003 amending the Special Law of 6 January 1989 regarding the Court of Arbitration, BG 11 April See J. Vande Lanotte and T. De Pelsmaeker, n. 3 above, at 285, in particular note See Parl. St., Senate, B.Z., , No 100-2/3, n. 11 above, at

5 RECIEL 16 (3) 2007 CONSTITUTIONAL RIGHT TO A HEALTHY ENVIRONMENT IN BELGIUM it defined its scope and characteristics in several decisions before this time. Standstill precludes measures containing a regression or a deterioration of the actual level of protection... but it does not deny the authorities to decide how that right should be guaranteed most efficiently. 34 This obligation must leave a certain discretionary power to the State; however, it must be oriented upwards : 35 the State has the liberty to decide whether a positive obligation will be guaranteed and in which way and to what extent. It is, however, commonly assumed that the margin of discretion is very strictly downwards : Article 23 of the Belgian Constitution is said to contain a standstill clause. 36 Standstill can be described as a guarantee of effectiveness of normative provisions, providing for an objective to achieve or require implementation measures of the State before being enforceable before the courts. 37 Measures containing a substantial (see below) regression of the protection level will be sanctioned by the courts. 38 Environmental policy should not only aim for a healthy environment, but also for an environment which is not less healthy than the existing environment. Taken as such, the legal concept of standstill is nothing more than a specific form of a self-executing provision. 39 Where it makes it clear that a law is changeable, and that it does not confer a subjective right to the preservation of the existing rules, the standstill precludes the State to use its normative power in a way that would reduce the existing level of protection. 40 However, the protection is vulnerable to non-policy factors as, for instance, an appalling economic situation, which raises the question of the achievability of an absolute and inflexible standstill provision. The Council of State has, for instance, judged that a relaxing of the environmental regulations could be justified by peremptorily reasons. 41 This raises the question whether it would not be better to submit the environmental policy to judicial control of its proportionality rather than to the standstill requirements Constitutional Court, No 169/2002, 27 November 2002, B In a sense of increasing the protected rights. 36 See n. 34 above. 37 G. Maes, De afdwingbaarheid van sociale grondrechten (Intersentia, 2003), at See, for instance, Constitutional Court, No 33/92, 7 May A. Alen, Handboek van het Belgisch Staatsrecht (Kluwer, 1995), at S. Wyckaert, Het standstill effect in de milieurechtspraak van de Raad van State, 6 AJT ( ), Council of State, Jacobs, No , 29 April K. Rimanque, Algemene situering van de sociale grondrechten in de Belgische rechtsorde, in B. Hubeau and B. De Lange (eds), Het grondrecht op wonen (Maklu, 1995), 37 48; J. Theunis, Het grondrecht op de bescherming van een gezond leefmilieu, in K. Deketelaere (ed.), Commentaar Milieurecht, Algemeen deel (Die Keure, 1996), 1 26; and see I.Hachez, n. 3 above, at 54. Constitutional protection of a healthy environment and its possible recognition by the different courts has been subject to mainly two major influences: 43 (i) the recognition by the courts of the standstill effect of Article 23 and (ii) the case law of the European Court of Human Rights regarding Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). 44 As mentioned above, the Belgian Constitutional Court did not explicitly recognize any standstill effect to Article 23 of the Constitution until 2006, despite the preparatory documents of this provision, and contrary to the opinions of a majority of scholars, several opinions of the Legislation Section 45 of the Council of State, as well as decisions of the Administrative Section 46 of the Council of State. 47 The Constitutional Court adhered to this peculiar methodology by refusing to admit explicitly that a specific principle does find application in casu the standstill obligation by observing that this principle would not be violated in the case under review. 48 However, this methodology did not prevent the Constitutional Court from defining the scope and characteristics of the standstill clause. The court changed its reasoning and found explicitly that Article 23 of the Constitution contains a standstill obligation in its decisions nos 165/2006 and 137/ L. Lavrysen and J. Theunis, Het recht op de bescherming van een gezond leefmilieu: een blik over de grenzen en een blik achterom, in G. de Leval, M. Pâques and V. d Huart (eds), Liber Amicorum Paul Martens. L humanisme dans la résolution des conflits. Utopie ou réalité? (Larcier, 2007), 363, at European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950). 45 Council of State (Legislation Section) L /9, 22 April 1996, Parl. St. W. Parl , No 47/97; Council of State (Legislation Section) L /9, 20 June 1996, Parl. St. W. Parl , No 196/1. 46 In a judgment Jacobs, of 29 April 1999, the Administrative section of the Council of State admitted the standstill effects of Article 23, subsection 3, no 4 stating: this fundamental right seems to imply inter alia that the relaxation of the existing environmental laws can be deemed compatible with the Constitution, only if there are compelling reasons; as far as the Flemish Region is concerned, the standstill clause contained in this provision was laid down in the Environmental Policy Decree of 5 April 1995;... The Flemish Government must respect these principles when it enacts general measures.... See Council of State, Jacobs, n. 41 above, n. 62, at 343. See also S. Wyckaert, n. 40 above, at The Council of State has two sections: the Legislation Section, having a advisory task on legislation by way of non-binding Advisory Opinions, and the Administrative Section, having a judicial task, being responsible for the annulment of administrative acts. 48 S. Van Drooghenbroeck, La proportionnalité dans le droit de la Convention européenne des droits de l homme. Prendre l idée simple au sérieux (Bruylant, 2001), at

6 MARC MARTENS RECIEL 16 (3) 2007 both of 14 September In these decisions, the Constitutional Court stated that: Article 23 of the Constitution implies, with regard to the protection of the environment, a standstill obligation which precludes the competent legislator to reduce substantially the level of protection guaranteed by the current legislation, without reasons of public interest. 50 One can assume that these decisions will put an end to the debates regarding the question of whether Article 23 contains a standstill clause or not. Scope of the standstill Four principles with regard to the standstill requirements are generally deduced from the case law: (1) prohibition from lowering the existing level of protection (retrogression); (2) non-substantial retrogression is admissible; (3) retrogression is admissible if it is justified by public interest; (4) retrogression is assessed based on the function of the applicable rules just before the alleged modification. Each will be discussed below. Prohibition from reducing the level of legal protection: while this principle prohibits the authorities from reducing the level of protection, it does not deny the authorities the ability to decide how the environmental right should be guaranteed most efficiently; in other words, to go forward or to move laterally. 51 To paraphrase Hachez, the supremacy of the constitutional provision is the basis of the prohibition made by the legislator from decreasing the level of protection. 52 The judicial assessment of the level of protection must, however, only take the normative legal situation into consideration and not the factual situation. 53 The environmental right must be recognized by a specific legal provision before the standstill can be brought 49 Constitutional Court, 14 September 2006, Decision Nos 135/ 2006, B.10 and 137/2006, B.7.1.; later confirmed by Constitutional Court, 28 September 2006, No 145/2006, B.5.1. For a review of the evolution of the case law regarding the standstill clause, see I. Hachez, n. 3 above, at 30 57; G. Maes, n. 37 above, at and ; I. Hachez, La Cour d Arbitrage et l Article 23 de la constitution: Cachez ce standstill que je ne saurai voir!, 2 Aménagement- Environnement (2005), 132 (Note under Constitutional Court, 15 September 2004, No 150/2004); B. Jadot, La Cour d Arbitrage ne cache plus l obligation de Standstill résultant de l Article 23 de la constitution, 1 Aménagement-Environnement (2007), Constitutional Court, 14 September 2006, Decision Nos 135/ 2006, B.10 and 137/2006, B Constitutional Court, No 169/2002, 27 November See I. Hachez, n. 49 above, at G. Maes, Het standstillbeginsel in verdragsbepalingen en in art. 23.: progressieve (sociale) grondrechtenbescherming, 69:28 Rechtskundig Weekblad ( ), 1081, at into action, and the Constitutional Court has refused to assess a (new) legal provision in the light of a factual legal protection, i.e. when it is not recognized explicitly by a (national or international) 54 legal provision. 55 In case 137/2006, regarding the requirements for a differed zone of industrial character in a sector plan (global area plan in the Walloon region), the Constitutional Court found that the provision revoking the requirement of the prior existence of a local district land-use plan, by replacing it with a system where only a specific justification was required, violated Article 23 of the Belgian Constitution. As a result of the revocation of the condition of a pre-existing district land-use plan, guarantees attached to the application procedure of such plans (specifically the guarantee of an environmental impact study and a public enquiry) were abandoned. Considering this, the court judged that the neighbours and local residents of such zones were confronted with a (substantive) regression of their level of protection offered by the previous legislation, and concluded that Article 23 of the Constitution was violated. 56 Furthermore, this substantive regression of the protection level (the withdrawal of the environmental impact study and the public enquiry) could not be compensated by the new requirement (in substitution) that imposes a specific justification regarding some criteria as the localization of the zone, its neighborhood, costs and needs of the concerned region, existing transport infrastructures, etc. 57 This raises the question of whether a regression of the level of protection could be compensated, and hence be admissible, by an increase of protection of another right. Some authors tend to argue in favour of this possibility. 58 Moreover, the compensation could be achieved outside the field of the right for which regression is under review and be performed on other rights: from environment to housing, from social to labour. 59 In this view, a regression of the protection of one of the rights, subject to a standstill clause, may be 54 For an analysis of the recognition of a right to a healthy environment under international law, see M. Pallemaerts, The Human Right to a Healthy Environment as a Substantive Right, in M. Déjeant-Pons and M. Pallemaerts (eds), Human Rights and the Environment: Compendium of Instruments and Other International Texts on Individual and Collective Rights Relating to the Environment in the International and European Framework (Council of Europe, 2002), 11; B. Pâques, L Environnement, un certain droit de l homme, 29:1 Administration Publique (2006), Constitutional Court, No 40/94, 19 May Constitutional Court, 14 September 2006, Decision 137/ Constitutional Court, No 137/2006, 14 September 2006, B See B. Pâques, n. 54 above, at 62; G. Maes, n. 53 above, at 1092; G. Maes, n. 37 above, at Ch. Darville-Finet, Quelques réflexions, in R. Ergec (ed.), Les droits économiques, sociaux et culturels dans la Constitution (Bruylant, 1999), at 297, cited in B. Pâques, n. 54 above, at

7 RECIEL 16 (3) 2007 CONSTITUTIONAL RIGHT TO A HEALTHY ENVIRONMENT IN BELGIUM compensated by an increase in the guarantees of another right, 60 which must also have the same overall objective as the retrogressive right: the right to lead a decent and dignified life. 61 In this view, compensation should be possible between the categories of rights, which are considered to be necessary for the achievement of a decent and dignified life. Other authors reject this possibility of compensation inside the rights guaranteed by Article 23(3). For them, no retrogression could be compensated by an increase of another of these rights. 62 Another question arises from this first characteristic of the standstill. The standstill clause is said to impose a negative obligation on the State, the violation of which can be sanctioned by the judiciary. Some authors also deduce from the standstill a potential positive obligation to the State. According to these authors, this positive approach can force the State, in specific economic and social circumstances, to take some measures for specific categories of groups in society. State negligence in this regard could be adjudicated and sanctioned by the judiciary, 63 even where the legislature s omission or refusal to enact rules cannot be the direct object of judicial review by the Constitutional Court. This court has in a number of cases decided that a lacuna of legislation is incompatible with the equality and nondiscrimination principles. 64 Only substantial retrogressions are prohibited: under the case law of the Constitutional Court, a retrogression must be sensible or substantial in order to infringe the standstill clause. 65 This tempering of the standstill by the Constitutional Court s case law is criticized by some authors who consider that restrictions to the standstill requirements regarding the protection of a healthy environment are already sufficiently broadly admitted when they are justified by reasons of public interest. Moreover, this substantiality criterion regarding the retrogression results in an excessive focus on the justification of the intensity of the decrease of protection instead of on the justification of the decrease itself and could lead to 60 Y. Trillet, Vers une nouvelle effectivité des droits économiques, sociaux et culturels?, 27 DQM (2000), See G. Maes, n. 37 above, at 136; F. Fierens, L Article 23 de la Constitution. Une arme contre la misère?, 3 DQM (1994), F. Delperee, L insertion dans la Constitution des droits économiques et sociaux, in M. Stroobant (ed.), Sociale grondrechten (Maklu, 1995), at 26; S.-P. De Coster, La mise en œuvre des droits culturels pour les pouvoirs locaux: l exemple de l audiovisuel, 6 Rev. Dr. Commun. (1997), 121; and see Y. Trillet, n. 60 above, at See G. Maes, n. 53 above, at See J. Vande Lanotte and T. De Pelsmaeker, n. 3 above, at Constitutional Court, No 169/2002, 27 November 2002, B.6.6.; Constitutional Court, No 5/2004, 24 January 2004, B.25.3.; Constitutional Court, No 150/2004, 15 September 2004, B.12; Constitutional Court, No 59/2005, 16 March 2005, B.7.2 an erosion of the concept. 66 This criterion should therefore be abandoned. 67 Moreover, some consider that this criterion makes successive, not substantial, retrogressions possible, which could also lead, in the end, to an erosion of the concept. 68 Substantial retrogression is admissible if justified by public interest: the Constitutional Court has stated, since 2004, that general interest can justify a substantial attempt to invoke the standstill requirement, in particular with regard to the protection of a healthy environment. 69 The Constitutional Court has applied this regarding internationally guaranteed socio-economic rights (in particular with regard to Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)). 70 The court recognized when assessing a violation of the standstill clause provided for by Article 13 of the ICESCR that retrogression could be acceptable under certain circumstances, taking the economic capacities of the State into consideration by admitting that substantial retrogression can be justified by reasons of public interest. 71 Hence, the court recognizes the relative character of the standstill and makes it possible to assess retrogressive measures in light of the principle of proportionality. Economic, social and cultural rights are not only dependent on political will but also on the economic situation and on the available means. Moreover, retrogressive measures need to be justified by reference to the totality of the other fundamental rights. It has to be stressed, however, that the standstill criterion has not been used by the Constitutional Court for other social rights provided for by Article 23(3), except in cases regarding social rights and the right to education provided for by Article 24 of the Constitution. 72 Based on this, some authors 73 seem to deduce from the case law of the Constitutional Court a preclusion of any substantial retrogression for rights of social assistance See G. Maes, n. 53 above, at See I. Hachez, n. 49 above, at See L. Lavrysen and J. Theunis, n. 43 above, at See, for instance, Constitutional Court, No 130/2004, 14 July 2004, B.5; Constitutional Court, No 150/2004, 15 September 2004, B.12; Constitutional Court, No 59/2005, 16 March 2005, B.7.2.; Constitutional Court, No 189/2005, 14 December 2005, B International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966). 71 See Constitutional Court, No 33/92, 7 May 1992, B Ibid.; Constitutional Court, No 40/94, 19 May 1994; Constitutional Court, No 35/98, 1 April See L. Lavrysen and J. Theunis, n. 43 above, at Constitutional Court, No 169/2002, 27 November 2002, B.6.6; Constitutional Court, No 5/2004, 14 January 2004, B.25.3.; Constitutional Court, No 123/2006, 28 July 2006, at B.14.3, cited in: L. Lavrysen and J. Theunis, n. 43 above, at

8 MARC MARTENS RECIEL 16 (3) 2007 The reference norm in time: there was a debate in the past regarding the reference norm to be considered: was it the legislation applicable when Article 23 of the Belgian Constitution entered into force (fixed reference) or was it the legislation applicable just before the new rule entered into force that had to be taken into account (mobile reference) for the assessment of the regression of the level of protection of a healthy environment. Even if there is no absolute certainty, the Constitutional Court seems to plead for the mobile reference. Hence, the new legislative act under review has to be compared to the legislative act that was applicable just before it entered into force (reference norm) to determine whether it is retrogressive or not. The court takes the level of protection as reference of the applicable legislation, i.e. the level of protection that was existent just before the modification under review. As a consequence, achieved progressions of the level of protection will also be taken into account in the meantime. CONSTITUTIONAL PROTECTION OF PRIVACY AND THE PROTECTION OF A HEALTHY ENVIRONMENT INTRODUCTION As the effectiveness of Article 23 was not certain for a long period, the legal protection of the environment has been achieved indirectly in the past through the application of Article 8 of the ECHR and Article 22 of the Belgian Constitution, which are both with direct effect. 75 Article 8 of the ECHR and Article 22 of the Constitution guarantee the right to respect for private and family life. Moreover, according to the preparatory documents, Article 22 of the Constitution has to be interpreted in light of case law regarding Article 8 of the ECHR. 76 This has been confirmed by several decisions of the Constitutional Court. 77 Therefore, this article will first consider the scope of Article 8 of the ECHR. We will then consider Article 22 of the Constitution and its use in relation to Article 23 of the Constitution. 75 Regarding the recognition of the direct effect of these provisions in internal law, see J. Bodart, La protection de l environnement par le biais du droit au respect de la vie privée et familiale et du domicile, 25:4 Amén.-Envir. (2003), Révision du titre II de la Constitution en vue d y insérer un article 24 quater relatif au respect de la vie privée, Parl. St., Chamber of representatives, , No 997/5, Constitutional Court, No 50/2003, 30 April 2003, B.8.3; No 51/ 2003, 30 April 2003, B.4.5; 94/2003, 2 July 2003, B ARTICLE 8 OF THE ECHR Short Overview of the Scope of Article 8 In the field of environment protection, it is the right to respect for private life and for home guaranteed by Article 8 of the ECHR that has so far been the most fruitful. Article 8 of the ECHR provides that everyone has the right to respect for his private and family life, his home and his correspondence. It is not the purpose here to analyse the case law of the European Court of Human Rights in great detail but considering its undeniable effects on the protection of the environment in national law, we will overview it briefly. The court has considered that Article 8 applies to the following environmental nuisances: 78 airplane noise around Heathrow airport (Powell and Rayner), 79 odours and health troubles related to the immediate neighbourhood of a waste water and waste products treatment plant (Lopez Ostra), 80 lack of information to residents concerning a risk-bearing industrial activity (Guerra), 81 night-time airplane noise around Heathrow airport (Hatton I and II), 82 noise from dance halls (Moreno Gomez), 83 disturbances related to the exploitation of a gold mine, notably the use of sodium cyanide (Taskin), 84 air deterioration related to the activities of a steel industry complex (Fadeyeva) 85 and electrosmog related to the presence of a mobile telephony antenna (Luginbühl 86 and Gaida) For a more detailed analysis of Article 8 of the ECHR; see J. Bodart, n. 75 above, at 211; and see B. Pâques, n. 54 above, at ECHR 21 February 1990, Powell and Rayner v. UK, ECHR Series A, No ECHR 9 December 1994, Lopez Ostra v. Spain, ECHR Series A, No 303-C. 81 ECHR 19 February 1998, Guerra v. Italy (1998), 26 EHRR ECHR 2 October 2001, Hatton et al. v. UK (2002), 34 EHRR ECHR 16 November 2004, Moreno Gomez v. Spain (2004), 38 EHRR ECHR 10 November 2004, Application No 46117/99, Taskin v. Turkey, [2005] EHRLR ECHR 9 June 2005, Fadeyeva v. Russia (2005), 40 EHRR ECHR 17 January 2006, Luginbühl v. Switzerland (not yet reported). In this electrosmog case situation of scientific uncertainty, the court ruled that the competent authorities had duly applied the relevant provisions and that they had not exceeded their assessment margin conferred by the Swiss legislation. Since the harm to public health was not scientifically demonstrated and therefore remained to a large extent speculative, it could not be imposed upon the defendant to adopt more extensive measures in favour of the persons falling in the category of the persons particularly vulnerable in this respect. The court noted further that Swiss legislation would allow taking adequate measures if a serious risk was demonstrated in the future. Finally, the court ruled that the extended assessment margin is not violated by referring to the interest that the modern society has for an integral mobile telephony network. The court concluded that: the obligation to take more extensive measures to protect plaintiff s rights could not be considered as reasonable nor adequate in the sense of the here above quoted case law. 87 ECHR 3 July 2007, Gaida, not yet reported. 294

9 RECIEL 16 (3) 2007 CONSTITUTIONAL RIGHT TO A HEALTHY ENVIRONMENT IN BELGIUM In the Gaida decision, the European Court of Human Rights stated that: The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorized entry into a person s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person s right to respect for his home if it prevents him from enjoying the amenities of his home The courts have also often refused to draw a distinction between positive and negative obligations relating to environment violations, considering that the effect was sensibly the same (Powell and Rayner, 89 Lopez Ostra, 90 Hatton II 91 and Luginbühl): 92 Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities adopting measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants rights under paragraph 1 of Article 8 or in terms of interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (See Hatton, cited above, 98; Moreno Gómez, cited above, 55; López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, 51; and Giacomelli, cited above, 76). The court considers that in a case such as the present one, which involves government decisions affecting environmental issues, there are two aspects to the examination which it may carry out. First, it may assess the substantive merits of the government s decision, to ensure that it is compatible with Article 8. Second, it may scrutinize the decision-making process to ensure that due weight has been accorded to the interests of the individual (see Hatton, cited above, 99; and Giacomelli, cited above, 79). In relation to the substantive aspect, the court has held on a number of occasions that in cases involving environmental issues the State must be allowed a wide margin of appreciation (see Hatton and Others, cited above, 100; Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 88 Ibid. 89 See Powell and Rayner, n. 79 above, para See Lopez Ostra, n. 80 above, para See Hatton, n. 82 above, para See Luginbühl, n. 86 above; B. Pâques, n. 54 above, at 41; see also F. Sudre, Les obligations positives dans la jurisprudence européenne des droits de l homme, 6 Rev. Trim. D. H. (1995), IV, pp , 74 77; Taskın and Others v. Turkey, no /99, 116; Luginbühl, cited above; and Giacomelli, cited above, 80). 93 In the Guerra judgment, it is however the positive obligation that has been ignored: pursuant to Article 8 of the ECHR, the State should have provided information to the population along with the risk-bearing installation. In the Moreno Gomez judgment, administrative authorizations to run dance halls were not considered as authority interferences. However, established violations of internal legal norms were not sanctioned. The administration showed passivity by not ceasing the violations caused by third parties to plaintiff rights. The positive obligation presents a particular interest when the origin of the nuisance does not find its immediate cause in the State action in the large sense but in a private action. In this case, it can be held against the State that it has not taken any action to protect the right. More recently, the positive obligation has been related with the necessity to act before that the risk is realized (Taskin). 94 Limits to the Protection of a Healthy Environment via Article 8 of the ECHR The right is not absolute and some authors have pointed out the limits of the protection of the environment via the right to respect for private and family life. 95 Only an individual who suffers direct harm is subject to the protection of private and family life. Therefore, harm of a more general nature, such as to biodiversity, does not permit the individual to establish a close enough proximity to it and prevents the individual from being able to establish a valid claim under the ECHR. This has been clearly confirmed in the Kyrtatos judgment, wherein the court draws the distinction between neighbourhood damage and the other environmental harm: The Court notes that the applicants complaint under Article 8 of the Convention may be regarded as comprising two distinct limbs. First, they complained that urban development had destroyed the swamp which was adjacent to their property and that the area where their home was had lost all of its scenic beauty. Second, they complained about the environmental pollution caused by the noises and night-lights emanating from the activities of the firms operating in the area. With regard to the first limb of the applicants complaint, the Court notes that according to its established case-law, severe environmental pollution may affect individuals well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, 93 See Gaida, n. 87 above. 94 See Taskin v. Turkey, n. 84 above. 95 See, for instance, J. Bodart, n. 75 above; B. Pâques, n. 54 above, at