The insertion of the precautionay principle in the environment pretection as a legal norm in the european countries
| Author | Amelia Diaconescu |
| Position | Senior Lecturer, PhD, Spiru Haret University, Romania, Faculty of Juridical, Economical and Administrative Sciences, Craiova |
| Pages | 85-92 |
The insertion of the precautionary principle in the environment pretection... 85
THE INSERTION OF THE PRECAUTIONAY PRINCIPLE IN THE
ENVIRONMENT PRETECTION AS A LEGAL NORM IN THE
EUROPEAN COUNTRIES
Amelia DIACONESCU,
Senior Lecturer, PhD
Spiru Haret University, Romania,
Faculty of Juridical, Economical and Administrative Sciences, Craiova
amy_bbe@yahoo.com
Abstract
The article examines the nature of the precautionary principle ,with reference to the
international legal debates and to the European national legislation, as well as the precaution in the
international law in connection with the Europe.
Tacit approval of the administrative procedure was introduced in the Romanian law and
practice by Emergency Ordinance no. 27/2003, as an instrument of administrative efficiency in
meeting citizens fundamental rights and interests.
Keywords: environmental protection, comparative legislation, emergency Ordinance
no. 27/2003, community legal system
Due to the specific regulatory provisions, as the competent public authority's
decision on their request for issue must always be express, tacit approval
inadmissible . Tacit approval of the administrative procedure was introduced in
the Romanian law and practice by Emergency Ordinance no. 27/2003, (approved
with amendments by Law no. 486/2003) as an instrument of administrative
efficiency in meeting citizens' fundamental rights and interests. According to art. 1
para. 1 of the ordinance is approved, the aims of setting alternative ways that
issuance or renewal of permits by government authorities are as follows:
- Removing administrative barriers to business;
- Accountability of government authorities to meet the deadlines set by law for
issuing permits;
- Boosting economic development by providing more favorable conditions as
entrepreneurs, with costs as low approval;
- Combating corruption by reducing the arbitrariness in the decision of the
administration;
- Promotion of quality public services by streamlining administrative
procedures tive.
Also, note that under Art. 1 alin. 1 paragraph. 2 of the ordinance, its provisions
apply, as appropriate, procedures for issuing permits (lit. a) procedures for
Law Review vol. VII, special issue, December 2017, p. 85-92
86 AMELIA DIACONESCU
renewal of their (lit. b) and renewal procedures due to the expiry of the suspension
of permits or performance measures established by the competent control bodies
(lit. c). The definition of permit is provided by art. 3 of the ordinance approved and
amended, in that it is an administrative document issued by the competent
government authorities, which allow the applicant an activity, a service or exercise
a profession, stating that the terms permit includes approvals, licenses, permits,
approvals or other similar administrative operations prior or subsequent approval.
We appreciate that it requires a first remark on the extension of the concept of
administrative acts and operations not the legal nature of administrative act
themselves irrelevant. In these circumstances the question arises whether in this
proceeding, we consider that the legislature proposes a simple convenience of
terminology, no specific legal implications of the theory concerning the conditions
for issuing administrative documents (prior conditions and concomitant posterior)
or not?
We believe that it can not be accepted the argument that "the legislature has
attempted to partially remedy the situation" passivity of the government "but only
for a narrow category of administrative acts."
We hold, contrary, even if we consider that a simple definition of
terminological convention, acts that are covered are numerous . It is no less true
that, through art. 2 in order to restrict the scope of them, but only with respect to:
a) documents issued in the nuclear activities of the regime relating to firearms,
ammunition and explosives, and drug precursors and the national security permits
and b) exceptions established by the Government, by decision in a reasoned
proposal by the administration of each authority involved.
In light of the nature of legal and administrative functions thereby conferred
on such a definition covers the obvious category of "regulatory acts" in the
environmental field, but this procedure is not admissible on their special
considerations .
In the field of environmental protection should be exempted from the
procedure established by Government Ordinance no. 27/2003 due to its
outstanding importance and secondly, because of the definitions in Annex 1 of the
Emergency Ordinance. 91/2002 amending and supplementing
Environmental Protection Law no. 137/1995 approved by Law No. 294/2003
15 data issued by the various environmental acts not clear their legal nature, being
qualified legal and technical documents: Environmental opinions, integrated
environmental authorization, permit, integrated environmental agreement (in fact,
only the agreement and environmental permit is administrative).
On this view the occurrence of he was advised, but with the advent of GEO.
195/2005, it has remained somewhat outdated. According to art. 2 section 9 of the
GEO. 195/2005 by environmental authorization means an administrative act
issued by the competent environmental authority, setting out conditions and / or
operating parameters of an existing activities or new activities may have a
The insertion of the precautionary principle in the environment pretection... 87
significant impact on the environment required to put into operation . As in art. 2
of the Emergency Ordinance 27/2003 expressly provides that no environmental
permits are exempted from this procedure I would be tempted to think that per a
contrario, those provisions shall apply to such authorizations.
Another argument in support of it is our opinion that Romania has ratified the
Aarhus Convention by Law no. 86/2000. The parties to the Convention had in
mind that adequate environmental protection is essential for human welfare and
the exercise of fundamental human rights including the right to life itself, also, that
any person has the right to live in an environment adequate to his health and
welfare and that is responsible, both individually and in association with others, to
protect and improve the environment for the benefit of present and future
generations.
However it was ruled that citizens to be able to maintain this right and meet
the objectives of the Convention should have access to information, be entitled to
participate in decision making and to have access to justice in environmental
matters. It was noted in this regard that citizens need assistance to exercise their
rights and the environment that better access to information through public
participation in decision-making improves the quality and implementation of
decisions, contribute to raising public awareness of issues environment, it provides
the opportunity to show their concerns and public authorities are given the
opportunity to take such concerns into account.
It is clear that the area where the Romanian state should be screened this
convention into national law by a higher power bill with the Emergency
Ordinance. 27/2003, it would be mostly applied under Community law principle
that the rules apply immediately.
Under this rule these rules in order of their ranks as a national law Community
law, without requiring any implementation procedure, judges of the Member
States being obliged to apply the Community institutional rules of law. These rules
are applicable from the time of their entry into force, whether there are rules of
national law incompatible with Community law.
The applicability of the principle of primacy of Community law over national
legal systems has led a rich jurisprudence of the Court of Justice.
Thus, in a decision 19 the Court reaffirmed that treaties have the force of law in
all countries, since they have ratified and that they take precedence in their whole
set, the domestic law of states. Moreover, the Community legal acts have not only
a binding law against the states, Community law with a primary character, but
they have enforceable for Member States and the decisions of the Court of Justice,
which ensure respect for law in the interpretation and application of the Treaty of
Lisbon, are binding. Community legal system includes not only the international
treaties concluded between Member States but also other categories of acts of EU
institutions and other bodies under the authority delegated to them under treaties
and general principles that Union action should be subject.
88 AMELIA DIACONESCU
In this analysis the decisive argument is that what is characteristic for permits
(regulatory acts) environment is the need to meet certain procedural requirements
of law relating to rights fundamental to a healthy environment, related to
advertising, consultation and public participation decision making. According to
art. 5 of the Emergency Ordinance. 195/2005 (in accordance with the provisions of
the Aarhus Convention on Access to Information, Public Participation in Decision
Making and Access to Justice in Environmental Matters), the guarantees of the
right to a healthy and ecologically balanced environment (known in the art. 35 of
the Constitution Romania), include access to environmental information [art. 5 lit.
5 letter. a] and consultation in decision-making process for issuing regulatory acts
in the field [mandatory operation procedures for issuing regulatory acts, according
to art. 20 para. (3) of the Act regulatory framework]. Exemplifying, in terms of
advertising (especially needed to ensure public participation in decision), if such a
requirement remains indifferent to the legality and validity of classical
administrative act, affecting only its enforceability, if the procedure for issuing the
"regulatory acts", the environment, that is an essential element of their legality.
However, to substantiate and issue regulatory acts should be undertaken by
individuals or legal persons and legal certificates of environmental impact
assessment in the form of environmental impact assessment, environmental audit,
report or report site security .
The objective of our analysis, the important fact remains that environmental
permits (regulatory acts) are issued by the authorities and is the result from a
specific - environmental assessment - with the mandatory elements of
environmental impact assessment or risk, public consultation, taking expertise into
account the conclusions and results of these consultations in decision making and
provide information on the decision - which is reflected in the form of decision -
expressly or tacitly. Must be stated in terms of procedural requirements of law and
fundamental principles (including consultation and public participation in
decision environment essential element of democracy) and, as such, compliance
with the procedural operations that necessarily require an explicit commitment,
continuous and decisive competent environmental authorities, who "led the
regulatory procedure and issue permits, agreements and permits" [art. 8 alin.
Article 8. (1) Emergency Ordinance no. 195/2005] and, accordingly, the exclusion
of the silent approval procedure as an alternative to issue or renewal of
environmental permits by the government authorities. It is clear that, while the
environmental permits have not been expressly exempted from the category of
administrative authorizations tacit approval procedure under the current
regulations they can not follow the procedure under the Emergency Ordinance.
27/2003.
First, in formal terms, in terms of environmental protection can not and does
not set a deadline for issuing the regulations generally (but possibly subsequent
periods for various administrative and technical operations related to the
The insertion of the precautionary principle in the environment pretection... 89
evaluation procedure), and at 30 days after filing stipulated in art. 6 (2) of the
Emergency Ordinance. 27/2003 can not be operated due to the complexity and
nature of the numerous procedural documents included, after which the question
put to trigger a silent procedure.
Secondly, consultation and public participation in decision-making on
regulatory provisions expressly require the development of procedures conducted
by public authorities, which excludes the passive attitude of the administration.
Finally, procedures need to conduct environmental impact assessment under
the control of public authorities and persons (natural or legal) certified,
independent of the plan, program, project or activity subject to review and
approval also eliminates the possibility of silent operation procedure the, field.
ELEMENTS OF COMMUNITY LAW
Court of Justice, in its case law has held that an implied authorization system
is incompatible with the requirements of Directives 75/442/EEC ,76/464/EEC ,
80/68/EEC, 84/360/EEC 85/337/EEC . Directive. 80/68 provides in art. 4 -
among others - that: Member States subject to prior investigation any disposal or
storage for disposal of these substances, which could lead to indirect discharge.
Based on the results of this survey, Member States shall prohibit such action or
issue a permit, provided that all the technical precautions necessary to prevent
such discharges.
The proposed directive aims to protect groundwater in the Union effectively
establishing a specific and detailed provisions requiring Member States to adopt a
series of prohibitions, authorization schemes and monitoring procedures to
prevent or limit discharges of certain substances. The purpose of these provisions
of the Directive is to create rights and obligations for individuals. It was stressed
that a practice is consistent with the protection afforded under the Directive does
not justify a failure to implement the directive into national law through provisions
that are likely to create a situation that is sufficiently precise, clear and open to
allow people to be aware of their rights enforcement. As the Court stated in its
ruling in Case C-339/87
(Commission v Netherlands [1990] ECR I-851, paragraph 25) to ensure full
implementation of directives in law and beyond in fact, Member States should
establish a specific legal framework in the area.
The Court in Luxembourg has decided on this directive that it "always ask
that, after any investigation, according to the results, to have taken an act expressly
authorizing or prohibition. The Court also held that the procedural provisions of
the Directive shall, in order to ensure effective protection of groundwater, precise
and detailed rules are intended to create rights and obligations for individuals. It
follows that they must be incorporated into national law with precision and clarity
necessary to fully satisfy the requirement of legal certainty. In addition, the Court
has consistently held that administrative practices, which are changed at will by
90 AMELIA DIACONESCU
the authorities and are not adequately publicized, can not be regarded as an
appropriate compliance with the obligation imposed on Member States for which a
directive is addressed by Article 189 of the Treaty.
In turn Directive. 85/337 shall be subject to environmental impact assessment
in accordance with art. 5-10, Member States shall take the measures necessary to
ensure that the developer supplies in an appropriate manner, the information
specified in Annex III. Member States shall take measures necessary to ensure that
the authorities might be interested in the project by reason of their specific
responsibilities for the environment have the opportunity to express their opinion
on the request, in connection with the application. Member States shall designate
the authorities to be consulted for this purpose in general terms or in each case,
when the request for authorization. Detailed arrangements for consultation shall
be set by Member States.
For this purpose Member States shall ensure that:
- Any request for authorization and the information gathered pursuant to
Article 5 are made available to the public;
- Target audience has the opportunity to express your opinion before the
project is initiated.
The detailed procedure information and consultation shall be determined by
Member States, which may, in particular, according to the characteristics of the
projects or sites concerned;
- To determine the public concerned;
- Specify the places where they can be consulted;
- Specify the way in which the public may be informed, for example, display a
certain radius, publication in local newspapers, organization of exhibitions with
plans, drawings, tables, graphs, models;
- Determine how the public will be consulted, for example, through written
communications or survey;
- Fix appropriate time limits for various stages of the procedure to ensure a
decision within a reasonable period.
When taking a decision, the authority or authorities shall inform the public
concerned with:
- Content of the decision and any conditions attached thereto;
- The reasons and considerations on which it based its decision in cases where
state law so provides.
Regarding the Directive 85/337, noted that its main purpose is that, before
granting a permit, projects likely to have significant environmental incidents,
particularly because of the nature, size or location, that they are subject to an
assessment on impact, which is not possible for tacit approval. The Commission
argued that the Court has held that a tacit approval system is incompatible with
the requirements of Directive 80/68 (C-360/87, Commission v Italy [1991] ECR I-
791, paragraph 31). This law should also apply to the authorizations referred to in
The insertion of the precautionary principle in the environment pretection... 91
Directives 75/442, 76/464, 84/360 and 85/337. Court held unequivocally that, as
shown in the art. 2 alin. 2. (1), the primary objective of the Directive is that before
consent is given, projects likely to have significant effects on the environment by
virtue, inter alia, by their nature, size or location would be subject to an assessment
of their effects .
Community law of the court, it not possible that the contradiction is not
compatible with the tacit approval of the five requirements of Community
environmental directives, since they provide or, in respect of Directives 75/442,
76/464, 80/68 and 84 / 360, prior approval mechanisms, or in respect of Directive
85/337, assessment procedures prior to granting a permit. The national authorities
have, therefore, according to all these directives, the obligation to consider requests
case by case approval addressed to them .
In line with legal armor (the letter and spirit) of Community law and ECJ case
law findings, the national laws of Member States of the European Union supports
the exemption rule of environmental regulations or administrative provisions of
the tacit approval.
The principle of public participation, widely accepted (as both a procedural
right to a healthy and ecologically balanced environment, recognized the
constitutional and legislative) is made by the public inquiry procedure such as
forms, consultation (discussion) that exclude the public and local referendum to
express a decision simply by passing a silent period and competent administration.
Evoke the fact that this is true in other branches of law (the right planning), which
permits the material is subject of investigation, public projects subject to special
rules for the scheme or the historical and archaeological monuments are in a or a
natural reserve area to protect the architectural heritage, urban and landscape.
In light of the foregoing is imperative, consistent implementation of the
provisions of Emergency Ordinance no. 27/2003 with legal armor in the field.
Once modified internal legislative act, and would avoid inconsistencies arising in
case law, especially since the Environmental issues, albeit of cardinal importance,
is not known in practice. Institutional actors such apathy note with regard to the
provisions of art. 2 alin. 2 of the Emergency Ordinance. 27/2003 that the
Government may, by decision in a reasoned proposal by the administration of each
authority concerned and other exceptions to the silent approval procedure.
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