Principio di non regressione nell’ordinamento belga e francese, tra formante giurisprudenziale e normativo

rinciple of non-regression in Belgian and French Law, between jurisprudential and normative formants

Abstract

The principle of non-regression is an expression of the mature stage of environmental law in which it is necessary to preserve the achievements of the initial elaboration. It sanctions, in fact, a prohibition of retreat in the level of protection provided for the environment through the synergy of legislators, judiciary and administrative best practices. First formulated in the Stockholm Declaration, it inspires many of the subsequent commitments made by the international community. At the domestic level, its elaboration is entrusted to different formants. Exemplary is the case of Belgium and France characterised, respectively, by the centrality of the jurisprudential and legislative ones. Thus, if the Belgian Council of State has reconstructed the principle in question in terms of standstill, the Loi Biodiversitè, by introducing Article L110-01 in the Code de l'Environnement, has sanctioned the State's obligation to constantly improve its environmental legislation and, therefore, a prohibition on regression in this area. In both cases, however, the principle in question has found wide application in urban planning matters, as a limitation operating in territorial planning. Starting from the search for a constitutional referent - for Belgium, Article 23; the Charte de l'Environnement for France - attention has turned to balancing this principle with other interests of constitutional rank. The Belgian Council of State has, thus, admitted that not every regression is forbidden, but only sensitive regression; the French Constitutional Court, on the other hand, that the principle in question can be derogated in the face of general interest requirements. Ultimately, a comparative analysis shows that the development of the principle of non-regression in the two systems involved different formants, but then posed the same application problems.