On 31 January 2020, the French Constitutional Court ruled (in French) that the protection of the environment, principle enshrined in the preamble of the Environment Charter, constitutes a constitutional goal. Hence, its application can lead to the limitation of the freedom of entrepreneurship, even if the adverse consequences of the business activities carried out are extraterritorial.
The protection of the environment as a limitation to the freedom of entrepreneurship
The Constitutional Court, seized in the context of a Request for a preliminary ruling of constitutionality had to determine whether Article L.253-8 of the rural and sea fishing code (in French) complied with the freedom of entrepreneurship. In fact, this article encompasses the prohibition of the production, storage and circulation of plant protection products containing substances prohibited under EU Regulation n°1107/2009 because of their harmful effects on health or on the environment.
According to the Union of plant protection industries association, the export ban of plant protection products outside the EU violated the freedom of entrepreneurship. The claimants argued the absence of link between the prohibition and the protection of the environment and health to the extent that importing countries will keep buying such products from competitors industries settled outside of France.
Analysing the constitutionality of the article, the Constitutional Court, for the first time asserted that “the protection of the environment, mankind common heritage, constitutes a goal of constitutional value”. Furthermore, the Court recalled the constitutional value of the protection of health. Finally, the judges acknowledged that the legislator aimed at preventing harmful effects to the environment and health caused by the dissemination of dangerous substances.
A protection irrespective of the location of the adverse impacts
Based on those conclusions, the Court declared that, irrespective of the location the adverse impacts of plant protection products resulted, the limitation of the freedom of entrepreneurship was based on the protection of goals of constitutional value, and that the conciliation of such goals and the freedom at stake was proportionate.
The importance of this decision is twofold. First, it acknowledges the constitutional value of the protection of the environment. Second, it extents the scope of this protection outside of the EU. Freedom of entrepreneurship can no longer be invoked to produce and export harmful plant protection products which use has been prohibited in the EU for years, to developing countries notably in Africa.
This ruling may open doors to further limitations of activities carried out in France having adverse environmental impacts abroad.