Constitutional Framework For The Protection Of The Environment From The Romanian Experience

Constitutional Framework For The Protection Of The Environment From The Romanian Experience Presented by: Dr. Benke Date: 29 August 2024 Constitutional Framework - Constitution of Romania 1991 - Right to private property - State obligations in the field of economy - Constitutional amendments 2003 - Right to a healthy environment • (1) The State shall acknowledge the right of every person to a healthy, well preserved and balanced environment. • (2) The State shall provide the legislative framework for the exercise of such right. • (3) Natural and legal entities shall be bound to protect and improve the environment. - Guarantees of the right • The access to environmental information in compliance with the requirements of confidentiality; • The right of association in environmental protection organizations; • The right to be consulted in the decision-making process concerning environmental policies, programs and legislation; • The right to address to the administrative and judicial authorities in environmental matters, whether or not an environmental damage has occurred; • - The right to compensation for damages. Aarhus Convention - DCC 7/2001 (public - population) Legislative Framework For The Exercise Of This Right - The general law on the protection of the environment is the Government Emergency Ordinance no.195/2005 - Environment represents the set of conditions and natural elements of the Earth: air, water, soil, subsoil, characteristic aspects of the landscape, all atmospheric layers, all organic and inorganic substance, as well as living beings, natural systems interacting including the listed elements and some material and spiritual values -, quality of life and conditions that may affect human well-being and health - Civil code + GEO 68/2007 on environmental liability with regard to the prevention and repair of environmental damage - Criminal Code + article 98 GEO 195/2005 - Positive obligations • The legislator may impose to those economic operators who pollute the environment to pay a tax / contribution to the Environmental Fund. Establishing an environmental tax, the state fulfilled its obligation enshrined in art. 35 para. • (1) and (2) of the Constitution (waste taxation) 485/2017, para.23 • building permit (142/2019, para.41) • Environmental permit and the integrated environmental permit (92/2015, para.14, 774/2014, par.19) • Hunting permit (54/2022, para.66) • Restrictive regulation of the areas in which smoking is allowed (29/2016, para.28) • Preservation of biodiversity = national interest - harvest quota of migratory bird species (54/2022, para.58) • Animals can be seen as an integral part of a sustainable and ecologically balanced environment - healthy nature - will benefit both present and future generations (511/2017, par.14) Relation With Other Constitutional Rights - The most relevant relationship - right to private property - Article 555 para.1 of the Civil Code defines private property as "the right of the owner to own, use and dispose of an asset exclusively, absolutely and perpetually, within the limits established by law". - Harmonize the incidence and other fundamental rights of citizens other than property rights, in a systematic interpretation of the Constitution (824/2008, 1416/2008) - A law that bans the change of the destination of the lands arranged as green spaces and/or provided as such in the urban planning documents, the reduction of their surfaces or their relocation is limiting the right of property, but .... - Ownership of forests - Ownership of a land that is part of a hunting fund - Sanitation activity on private properties (358/2021) - Building permit (356/2019, par.41, 43, 55) - Article 34 guarantees the right to protection of health and there is a direct link between a healthy environment and a healthy person - Article 45 of the Constitution guarantees the free access of persons to an economic activity, free enterprise, and their exercise under the conditions prescribed by the law - Change of the boundaries of protected natural areas of national interest - mining (313/2018, para.25-27) article 35+45+135 Relationship with EU law – CJEU - The contradiction between the national and the EU norms does not per se constitute a breach of the norm of reference in the review of constitutionality, namely the Constitution, but may be an argument to demonstrate a breach of the Constitution (CCR - 668/2011) - Constitutional relevance of EU norm is absorbed by the constitutional norm, which enshrines the protection of the fundamental right to a healthy environment (313/2018, para.32-33) - AIR - Failure to submit the National Air Pollution Control Programme of Romania pursuant to the National Emissions Ceiling Directive (C-69/22) - Failing to fully comply with the Court judgment of 18 October 2018, which found that Romania failed to meet its obligations under the Landfill Directive (C-109/22) - ECJ judgement - 638/18-30.04.2022 = failure to fulfil its obligations. Ambient air quality. Systematic and constant exceedance of the limit values for micro particles (PM10) in Zone RO32101 (Bucharest, Romania) - C-301/17-18.10.2018 - Operation of landfill sites. Closure of sites which have not been granted a permit to operate a landfill. Closure and after-care procedures ECHR - Tătar vs. Romania – 2009 • Environmental accident a dam had breached, releasing about 100,000 m3 of cyanide-contaminated tailings water into the environment • Pollution could interfere with a person's private and family life by harming his or her well-being, and that the State had a duty to ensure the protection of its citizens by regulating the authorizing, setting- up, operating, safety and monitoring of industrial activities, especially activities that were dangerous for the environment and human health. • Authorities had to ensure public access to the conclusions of investigations and studies. • The State had a duty to guarantee the right of members of the public to participate in the decision- making process concerning environmental issues. • The failure of the Romanian Government to inform the public, in particular by not making public the 1993 impact assessment on the basis of which the operating license had been granted, had made it impossible for members of the public to challenge the results of that assessment. • The Romanian authorities had failed in their duty to assess, to a satisfactory degree, the risks that the company's activity might entail, and to take suitable measures in order to protect the rights of those concerned to respect for their private lives and homes, within the meaning of Article 8, and more generally their right to enjoy a healthy and protected environment. Mechanisms of control - Inquiry committees of the Parliament • Rosia Montana case (goldmining) - Ombudsman - 99 petitions/2021 - 174 petitions/2020 - UNESCO's world heritage list (Rosia Montana) - dos. 2663/2021 - Special report on the protection of the forestry areas in Romania (2020) - Administrative bodies - Prosecution • Environmental offences committed between 2011-2016 - a solution of indictment was disposed in only 4 cases out of 822 solved cases by the prosecution units • Forestry offences - 429 convictions (2011-2016)