Quo Vadis, Europe? The Significance of Sustainable Development as Objective, Principle and Rule of EU Law
NON STATE ACTORS, SOFT LAW AND PROTECTIVE REGIMES, Cecilia Bailliet, ed., Cambridge University Press, 2012
Posted: 15 May 2012
Date Written: November 24, 2011
What is the role of supranational law in making national law disciplines such as company law comply with and work towards objectives and principles of international treaties?
In international law and politics, there is a growing recognition of sustainable development as an all-important objective and a general principle of international law. Sustainable development has a strong legal position among the ultimate objectives of the European Union, underpinned by the growing recognition in the EU of the inextricable entity of humanity, our natural environment and our economic system. In the search for the balancing that this goal requires within the nonnegotiable limits of our planet, the principle of sustainable development is the key. This principle requires the integration of environmental protection requirements in all areas, with the aim of achieving a sustainable development. The threat of climate change accentuates the necessity of recognising and respecting the ecological limits within which all social and economic development must take place. The principle of sustainable development is codified, following the changes made by the Lisbon Treaty, in an enhanced version of the rule, now enacted in Article 11 of the Treaty on the Functioning of the European Union.
In practice, however, on national, supranational and international level, actions speak louder than words. In practice the focus is on economic growth and efficiency in a narrow and short-term sense, leading to environmental degradation, loss of biodiversity and dangerous climate change. Although progress is made in some areas, the regulation of companies, these all-important components of our economies, is to a great extent shielded. Talk about voluntary corporate social responsibility seems to be the closest law-makers dare to get to regulating these entities, without which we cannot hope to achieve the overarching global goal of a sustainable development. Modern company law is often seen as matter of private law only, seeking efficient regulation of an instrument perceived to have as its only goal the profit-maximisation of shareholders. The fundamental freedoms of EU law are seen by some as an argument in favour of such a narrowing of the scope of company law and for restricting the room for encompassing other interests.
EU law is, however, not just about free movement and market integration. On a Treaty level, the general objectives of the EU have a strong legal significance, and the codification of the principle of sustainable development entails an all-encompassing legal duty to integrate environmental protection requirements in the policies and activities of the Union. What does this entail for the EU institutions and for the Member States, and specifically for the regulation of companies – and what is the broader, global significance?
In a tentative answer to these questions, this paper first introduces sustainable development as an EU law objective, principle and rule (Section 2). The argument is presented that particularly the codification of the sustainable development principle in Article 11 TFEU has significant legal implications for the institutions of the European Union (Section 3), entailing direct obligations on all levels: Law-making, administration, supervision and judicial control (Section 4). For EU company law, this requires a whole new approach. The implications for the Member States are rather more indirect, but nevertheless highly relevant, influencing the interpretation, implementation and application of EU law; the justification of Member State initiatives that restrict free movement; entailing a possible duty to act to promote overarching objectives under certain circumstances, and perhaps also indicating a coming general principle of sustainable development on Member State level (Section 5). The paper thereby shows how EU Treaty law, taken seriously, may be used as a tool to ensure that EU law itself and the national laws of its Member States truly work towards a global, sustainable development. The paper concludes with some reflections on how EU law already may be influencing national law also beyond the scope of the direct requirements for EU law implementation in national legislation, and how this could impact on both national law and international law (Section 6).
Keywords: Sustainable development
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