Produced in partnership with Ardea International
11 pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements came to an end and significant changes began to take effect across the UK’s legal regime.
For further guidance, see Practice Note: Brexit—impact on environmental law.
Sustainable development in the UK, post Brexit
Sustainable development in the UK has been driven in part by EU legislation and funding. The UK’s exit from the EU may have significant implications for sustainable development and it is worth noting that, as of 1 January 2021, the UK is not expected to be involved in the European Commission’s future Sustainable Development Goal (SDG) initiatives discussed in this Practice Note.
Despite no longer being part of EU indexes, the UK will continue to report against the UN’s SDG indicators. As a result, the UK government has not suggested that any dramatic changes to its sustainable development policies are on the horizon.
The UK’s SDG Implementation Strategy gives a more detailed insight into how each government department’s policies contribute towards the goals. Each single departmental plan references the SDGs and outlines a broad commitment to uphold or surpass the current level of contribution after Brexit. Although, UK policies may now shift emphasis towards a particular pillar of sustainability. For example, the UK Voluntary National Review highlights the need to increase focus on the economic pillar and the UN’s Leaving no one behind objective. This is reflected in the policies of the Department for International Development (DFID), which reference the need to remain at the forefront of international contributions to poverty reduction and the SDGs post Brexit.
UK Stakeholders for Sustainable Development (UKSSD) are among the groups to have expressed concerns surrounding Brexit’s impact on the SDGs. These include:
- aspects of the Equality Act which are derived from EU agreements and directives including those on working time, parental leave and pregnant workers being undone (SDG 5)
- how the repeal of the EU Common Agricultural Policy and Common Fisheries Policy will affect the UK’s environmental impact (SDG 14 and 15)
- how the UK will replace the role played by the European Court of Justice (ECJ) and European Commission in the enforcement of environmental standards (SDG 13)
- increasing the cost of developing countries accessing the UK market (SDG 1)
EU funded development projects
The European Structural Funds (ESF) aim is to support equal development across all regions of the EU. In the funding cycle between 2014–20, the EU allocated the UK just over £14bn. The largest contributions have been made to West Wales and The Valleys, and Cornwall and Isles of Scilly. The ESF projects the UK has benefited most from are:
- European Regional Development Fund
- European Social Fund
- European Agriculture Fund for Rural Development
Whilst current EU-funded projects will remain unaffected, the UK will be excluded from future projects. In place of the ESF, the UK government established the UK Shared Prosperity Fund. The government has committed in the March 2020 Budget to ‘at a minimum, match current levels of funding to each nation from EU structural funds’. The Budget also stated that this fund will ‘be realigned to match domestic priorities, not the EU’s’. At present, the domestic priorities are largely undefined and it is unclear how much they will align with those of the global community and the SDGs.
- EU directives, regulations and agreements overlap with the SDGs as they serve to protect human rights and the environment, as well as ensuring sustainable economic growth.
Changes to post-Brexit domestic legislation which could impact sustainable development include:
- the Agriculture Act 2020—see Practice Note: Brexit—impact on environmental law—Agriculture
- the Fisheries Act 2020—see Practice Note: Brexit—impact on environmental law—Fisheries
- the Environment Bill—see Practice Notes: Environment Bill—snapshot and Environment Bill—developments
For more details around legislation to be enshrined in domestic law as retained EU law, see Practice Note: Introduction to retained EU law.
The Political Declaration setting out the framework for the UK’s future relationship with the EU acknowledges sustainable development and the achievement of the SDGs as key overarching objectives. Furthermore, the document states that ‘the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters’. This suggests a broad commitment to enshrining sustainable development in future policies and legislation, although it is not legally binding for future governments.
The EU-UK Trade and Cooperation Agreement also contains wording to ensure a ‘level playing field for open and fair competition and sustainable development’. For more information, see Practice Note: EU-UK Trade and Cooperation Agreement—environmental provisions.
The definition of sustainable development at EU level
The Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (the EU Treaties) set out the constitutional framework for the EU. The Treaties do not attempt to define sustainable development or impose an EU-wide adoption of a common definition. However, they do give some indication of how sustainable development should be implemented.
By default, EU institutions, such as the European Commission, generally rely on some variation of the Brundtland definition and the three pillars concept (economic, social and environmental), also known as the triple bottom line of sustainable development.
The Brundtland definition and the three pillars of sustainable development
The Brundtland Report, as the report entitled Our Common Future is widely referred to, defines sustainable development as:
‘Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It [sustainable development] contains within it two key concepts:
- the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and
- the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs.’
The United Nations (UN) General Assembly endorsed the Brundtland definition in Resolution 42/187.
The United Nations 2005 World Summit Outcome Document refers to the 'interdependent and mutually reinforcing pillars' of sustainable development, which are:
- economic development,
- social development, and
- environmental protection
See Practice Note: Sustainable development—definition and application at international level.
Sustainable development in the EU treaties
A concept paper by the Centre for International Sustainable Development Law (CISDL) states that sustainable development has shaped international law in part by being increasingly featured in multi-lateral agreements as an object and purpose.
In the Consolidated Version of the Treaty on European Union and the Treaty on the Functioning of the European Union, sustainable development is stated as a clear objective in the preamble. In articles 3(3) and 3(5), respectively, the EU commits itself to work towards sustainable development internally and in its relations externally. This dual objective was previously established in article 2 of the Treaty of Lisbon 2007, in force since 2009. Article 21 also references sustainable development in the context of external action.
Article 3(3) TEU states:
‘The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.’
Article 3(5) TEU states:
‘In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.’
A single reference to sustainable development is made in Article 11 of the Treaty on the Functioning of the European Union (ex Article 6 TEC), which states as follows:
'Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.' (Integration Principle)
It is also referenced in the preamble of the Charter of Fundamental Rights of the European Union. Article 37 of the Charter on environmental protection states that:
‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’
It is also referenced in secondary legislation, for example in the preamble to the Birds Directive 2009/147/EC:
‘The conservation of the species of wild birds naturally occurring in the European territory of the Member States is necessary in order to attain the Community’s objectives regarding the improvement of living conditions and sustainable development.’
Although sustainable development is not defined at the constitutional level, it is a clear objective of the EU Treaties: decision-making at the EU level must account for environmental protection requirements and strive to uphold sustainable development.
This has been so since the Treaty of Amsterdam was signed in 1997.
Sustainable development in EU policy
Unlike EU legislation, EU policy documents provide some insight into the meaning of sustainable development. Most of which also reference the three pillars of sustainable development and the Bruntdland definition.
The European Union is a signatory to the Rio Declaration, product of the 1992 United Nations Earth Summit in Rio de Janeiro (Earth Summit). The Rio Declaration is a statement of 27 principles upon which signatories agreed to base their actions when addressing environmental and development matters.
In ‘Rio +5’ the UN General Assembly held a special session to assess the status of Agenda 21, an action plan for the realisation of sustainable development devised at the Earth Summit. Signatories to the Rio Declaration, including the EU and its Member States, committed to adopt sustainable development strategies.
See Practice Note: Sustainable development—definition and application at international level.
Draft declaration on guiding principles for sustainable development (draft declaration)
In the Draft Declaration adopted in 2005, the European Commission reaffirmed that sustainable development is a key objective of the EU Treaties and all European Community policies falling subject to them.
The document outlines key objectives, which are:
- environmental protection
- social equity and cohesion
- economic prosperity
- meeting international responsibilities
It also contains the guiding principles for better policy development. Amongst these are:
- promotion and protection of fundamental rights
- involvement of businesses and social partners
- make polluters pay
More recently, the European Commission’s Six Priorities for 2019–2024 reaffirm this ongoing commitment, with each of the priorities aligning with one of the SDGs. The Six Priorities are centred around economic and social equality, as well as protecting the environment and strengthening European democracy.
The European Fund for Sustainable Development (EFSD)
The EFSD is one of the EU financial instruments that promote a pro-active development aid policy. It is part of the complex European external investment plan to support investments primarily in the EU and Africa. The EFSD applies the same financial model as the European Fund for Strategic Investments. As of 2020, the initiative has generated €44 billion in investments to help create jobs and economic opportunities, address the socio-economic causes of migration, and contribute to the achievement of the UN SDGs.
Five investment windows were identified shortly after the launch of the EFSD:
- sustainable energy and connectivity
- financing of micro-, small and medium-sized enterprises (MSMEs)
- sustainable agriculture, rural entrepreneurs and agro-industry
- sustainable cities
- digitalisation for sustainable development
The EU Sustainable Development Strategy (EU SDS):
In 2001 the European Union adopted its first Sustainable Development Strategy in Gothenburg. The strategy was renewed in 2006 for an enlarged EU.
The renewed EU SDS reiterated the key objectives and principles listed in the Draft Declaration from 2005.
The document also considers:
- the key challenges to consolidating the EU’s commitment to sustainable development
- corresponding operational targets and objectives for overcoming each challenge
- what the actions in response to each challenges should include
- inter-sectoral measures and the role of education and training, research and development, and different financial mechanisms
The main challenges foreseen by the European Commission are as follows:
- climate change and clean energy
- sustainable transport
- sustainable consumption and production
- conservation and management of natural resources
- public health
- social inclusion, demography and migration
- global poverty and sustainable development challenges
Since 2007 the EU SDS has been accompanied by progress reports identifying progress on policy under the governance structure implemented by the 2006 EU SDS. However, this has not necessarily translated into concrete action.
The 2009 review of the EU SDS looks at mainstreaming sustainable development into EU policies and examines the progress made in relation to each key challenge and associated targets, objectives, and actions listed in the 2006 EU SDS. The review also pinpoints matters of urgent action and takes stock of what is required to take the EU SDS into the future.
A staff working document, accompanying the 2019 review provides detailed information on progress made under each SDG, including specific examples of action from the EU and Member States. Considerations for implementing effective SDS include:
- programmes must link actively and explicitly to SDG implementation
- the EU and its Member States need to step up efforts to work better together for the SDG, for instance through joint programmes and joint results frameworks
- more integrated approaches are needed to ensure that limited resources deliver on multiple SDG, for instance by further mainstreaming of environment and climate or integrating labour and environmental dimensions in trade policies
- engagement with partner countries should be comprehensive, with policy dialogues based on SDG as a key entry point, building on national development plans and Voluntary National Reviews, while respecting the specificities of the ENP
- support for developing countries in collecting, analysing and using disaggregated data should be stepped up
Linkage with the Europe 2020 Strategy
A key issue in the EU is to mainstream sustainable development thinking into the Europe 2020 Strategy. The 2020 Strategy, adopted in 2010, aimed to move Europe out of the financial crisis while ensuring a more sustainable future. It put forward three priorities:
- smart growth—developing an economy based on knowledge and innovation
- sustainable growth—promoting a more resource efficient, greener and more competitive economy, and
- inclusive growth—fostering a high-employment economy delivering social and territorial cohesion
At the close of the Europe 2020 strategy, the European Commission stated: ‘substantial progress had been made in the areas of employment and education, where the EU has already reached the target for tertiary education attainment and is within reach of the target on early leavers from education and training. However, the targets on R&D investment and poverty alleviation are still at a distance, and progress towards the climate change and energy targets has not been consistent.’ As the aims of Europe 2020 broadly aligned with Agenda 2030, it has been superseded by the UN initiative and will provide the basis for accelerating progress.
EU Better Regulation Agenda
The European Commission’s Better Regulation Agenda is a statement of intent to mainstream sustainable development into EU policies and legislation. Launched in 2018, the initiative was promoted as a means of enacting necessary regulatory change by engaging stakeholders in transparent policy making. The origin of the initiative is given as ‘the desire for better European governance and for anchoring sustainable development in the Union’s policy making’.
Indicators and monitoring
In 2007 Eurostat published a monitoring report producing statistical material on the progress of the EU SDS. The data takes into account a set of EU-established sustainable development indicators (SDIs). This report constituted a significant input when developing the first progress report on the EU SDS.
The report was published every two years. The last Eurostat Monitoring Report available was published in 2015, which looks at data from 1990 to the most recent available period. Eurostat will no longer produce new monitoring reports of the EU SDS as the EU SDG indicator set is now used to produce EU SDG monitoring reports.
The EU SDG indicator set for 2020 is available.
According to the European Council’s 2019 report, integrating Member States into monitoring and reporting frameworks is a top priority for accelerating progress towards the 2030 goals.
Some major challenges have been identified in relation to monitoring to:
- extend the use of results systems
- align them with the SDGs, and
- progressively work towards a common results framework for the EU and its Member States
The EU and its Member States have increased the statistical capacity of developing countries to produce and analyse data, so as to inform policy and decision-making. However, more needs to be done, including building capacity for disaggregated data to help to ensure that no segment of society is excluded from progress towards poverty eradication and sustainable development.
See Practice Note: Sustainable development—indicators and goals.
European Commission’s response to progress towards SDGs
Significantly, the 2019 SDG progress report noted the fact that no EU country has achieved or is on course to achieve the SDGs by 2030. This was acknowledged by the European Council with a statement of support for the UN Decade of Delivery and Action for the implementation of the 2030 Agenda.
According to the report, Member States face the greatest challenges on goals related to climate, biodiversity, and circular economy, as well as achieving the convergence in living standards, both within each country as well as across countries and regions. It also found that the EU generates large, negative spillovers that impede other countries’ ability to achieve the SDGs. The largest negative impacts are caused by unsustainable demand for agricultural, forest, and fishery products.
The report outlines six transformations that together can achieve all 17 SDGs and applies them to the European Union. It offers practical recommendations for how the EU and its Member States can achieve the SDGs with a focus on three broad areas:
- internal priorities
- diplomacy and development cooperation
- tackling negative international spillovers
December 2019 saw the European Commission’s European Green Deal, followed by action plans to be formalised throughout 2020. In March 2020, the European Commission published details of the Circular Economy Action Plan, the first of its kind globally, which introduces measures to:
- make sustainable products the norm in the EU
- empower consumers
- focus on sectors that use the most resources and where potential for circularity is high
- ensure less waste
For a breakdown of the ten priorities of the Green Deal, see: LNB News 12/03/2020.
For more details on the Circular Economy Action Plan, see: LNB News 24/03/2020.
In July 2020, the European Commission and the European External Action Service launched a targeted consultation to assess development needs and options for the EU’s international ocean governance agenda.
Ocean governance concerns the international and regional processes, agreements, rules and institutions that allow the international community to coordinate and work together for conservation and sustainable use at sea, where challenges cannot be tackled by one country alone.
The consultation seeks to identify relevant actions in light of challenges and opportunities to deliver global sustainability objectives for oceans in particular the SDG on the oceans (SDG14) under the 2030 Agenda in support of the European Green Deal.
Proposal for a new European Consensus on Development—Our World, Our Dignity, our Future
Since the 2017 European Consensus on Development, the European Parliament and European Commission have been committed to align existing and future sustainable development policies with the UN’s 2030 Agenda. The consensus provided the framework and action plan to implement the 2030 Agenda on Sustainable Development. It also reaffirms poverty eradication as the EU’s primary development objective, while integrating the economic, social, and environmental dimensions of sustainable development. The 2030 Agenda is the international community’s response to the challenges of sustainable development and has the SDGs at its core.
In the Consensus, the EU affirms its support of the 2030 Agenda and its commitment to transparent and accountable monitoring of sustainable development indicators. It supports the use of the SDGs to measure development of its Member States.
The actions the EU will take are in line with the 2030 Agenda centre around these themes:
The key objective of the consensus is to: ‘do more, do it better and do it differently’. There is an increased focus on gender equality, supporting youth opportunities, managing migration and sustainable energy.
The Consensus states that the EU and Member States will implement the 2030 Agenda across all internal and external policies in a comprehensive and strategic approach, integrating in a balanced and coherent manner the ‘three dimensions of sustainable development’, and addressing the interlinkages between the different SDGs, as well as the broader impacts of their domestic actions at international and global level.
Sustainable development in EU law
Sustainable development was initially reflected in EU law through the above-mentioned 'integration principle'. The integration principle provides for environmental protection through inclusion of, for example, environmental considerations at the earliest stage of the legislative process.
There continues to be no hard law definition, nor are there any provisions which establish sustainable development as a legal principle.
However, in recent years, the EU has mainstreamed the objective of sustainable development by incorporating it into a broad range of laws. For instance, the Institute for European Environmental Policy estimates the body of EU environmental law amounts to well over 500 Directives, Regulations and Decisions.
From a procedural perspective, the integration principle has been given effect through the various Directives on Environmental Assessment, such as article 1 of the Strategic Environment Assessment Directive (2001/42/EC).
The EU has expanded environmental reporting regulation for instance, the EU regulation on disclosures relating to sustainable investment and sustainability risks—Regulation (EU) 2019/2088. The regulation, effective 10 March 2021, compels professional investors and financial advisors to disclose, in quite some detail, how the risks of negative environmental, social and governance (ESG) impacts may affect the value of a new investment.
The European Commission’s March 2020 proposal for COM(2020) European Climate Law was also significant, setting into legislation the political ambition of being the world's first climate neutral continent by 2050. The proposal cites the 2030 Agenda for sustainable development and the objectives of the Paris Agreement. The purpose of the law is drawn directly from the concept of Sustainable Development to: ‘maximize prosperity within the planetary boundaries, to increase resilience and reduce the vulnerability of society to climate change’.
See: LNB News 11/03/2020 24.
Without an official definition under primary EU law, the Court of Justice of the European Union has no means or base from which to interpret the objective of sustainable development under the EU Treaties. The Court of Justice of the European Union has not elaborated a definition beyond what is found in the EU Treaties and other legislation and policies.
To date, very few references have been made to sustainable development in EU case law. The main references have been made in the following:
- Greece v Council (Case C-62/88), which confirmed the integration principle
- Artegodan v Commission (Case Number T 74/00/2002), in which the Court of First Instance stated that the principle on ‘the protection of public health, safety and environment” is to take precedence over economic reform
- Commission v Council (Case C-91/05), also known as the ECOWAS small arms case
- Afton Chemical Limited vs Secretary of State for Transport (Case C‑343/09), the CJEU affirmed the level of judicial review to be applied to institutional actions relying on complex environmental issues while further clarifying the role of the precautionary principle under European legislation. Afton, a chemical company was seeking to invalidate the limits imposed by Directive 2009/30/EC to the additive methylcyclopentadienyl manganese tricarbonyl on grounds of the precautionary principle, pending a full assessment of its health and environmental impacts.
- Raffinerie Meditarranee (Case C-378/08), the Court interpreted the polluter pays principle under Directive 2004/35/EC, which outlined the environmental liability surrounding the prevention and remedying of environmental damage
- in 2017, the Court delivered its landmark Opinion (Avis 2/15) on the powers to conclude the EU-Singapore Free Trade Agreement (FTA). The Court ruled that sustainable development is an integral part of the common commercial policy. Further, the ruling essentially confirmed that an FTA can potentially suspend the agreement for a breach of the sustainable development provisions
For information on the treatment of EU case law following IP completion day, see Q&As:Are UK courts and tribunals bound by decisions of the Court of Justice of the European Union post-Brexit? and What is the position on the interpretation of EU case law relating to EU Directives post IP completion day? In cases concerning retained EU-derived domestic legislation which implements an EU Directive, are UK courts and tribunals bound or permitted to have regard to EU case law on that Directive even though the Directive itself is not retained?.