Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

(anymore). 384 The principle could be seen as a concretization of the prevention principle: it can only
be applicable if there are clear sources of pollution (puntbronnen). Moreover, it is applied in a later
stage than the prevention principle; while the prevention principle will try to prevent pollution in
advance (by e.g. taking technical measures), the rectification at the source-principle will implicates
that pollution has already occurred (or is occurring) after which measures will be taken to prevent
and restrict the pollution as much as possible (from the source). It is often questioned whether the
rectification at the source should not be interpreted stricter in order to prevent the pollution entirely.
In EU legislation, this principle can mainly be found in the Industrial Emissions Directive. In EU
legislation it is often stated, with reference to this principle, that emission norms are preferred
above quality requirements. 385 With regard to shale gas, it can be argued that the rectification at
the source principle is not (yet) applicable, since shale gas extraction has not (yet) occurred. The
later stage in which the rectification at the source principle can be of relevance is not entered into.
It is currently better in place to focus on prevention instead of curing at the source. There is nothing
(yet) to cure, but there is already a lot to prevent.
5.7.2 Dutch level
In Dutch legislation there is not an explicit reference to or a definition of the prevention principle
included. While the precautionary principle mostly came alive through case law, the prevention
principle gets most of its interpretation through laws, regulation and policy documents of which it is
the underlying objective. Some articles herein implicitly refer to the prevention principle. 386 There
can be made a distinction between material and procedural regulations. Article 1.1a of the
Environmental Management Act (Wet milieubeheer) includes a general duty of care and is an
example of a procedural regulation of the principle. It states that anyone who knows or reasonably
suspects that by his acts or omissions detrimental effects on the environment can be caused, is
required to desist from such action to the extent that can be reasonably demanded, or to take
measures that could reasonably be expected of him in order to prevent such consequences, or, to
the extent that these consequences cannot be avoided, to minimize it as much as possible or to
undo all measures. Other duties of care also have this principle as its underlying aim, such as the
ones included in the Soil Protection Act (Article 13) or the Water legislation. References can also
be found in other articles of the Environmental Management Act. 387 Art. 2.22 Wabo contains
several environmental quality requirements that have to be reviewed before granting a license.
This is a material application of the principle. The prevention principle is also important for Chapter
7 of the Environmental Management Act, concerning the EIA, which is a (clear) procedural
appearance of the principle in regulation. All of these regulations should be taken into account
when making a decision. If aspects are forgotten, the decision will be annulled; on ground of the
legislation itself or due to an infringement of Article 3:2 Awb on careful decision-making.
Most of the Dutch case law, which implicitly touches upon the prevention principle, concerns cases
on this regulation, e.g. on the application of EIA, discharges of waste, and IPPC-establishments
and their use of the BAT and compliance with the Industrial Emission Directive, of which the
prevention principle is one of the underlying objectives. In none of these Dutch cases is the
principle independently used or is special attention paid to the prevention principle, nor is the
scope of the principle discussed. 388 The principle is always debated in the context of the national
laws and regulations of which it is the underlying principle. Hence, it seems from the Dutch and
European case law that the principle itself is not explicitly part of the court's review, but the
Directives and national law that prescribe preventive measures to be taken is central. Parties,
competent authorities and courts should be aware that certain Directives have direct effect in the
384
Fennis (2012), p. 29.
385
Fennis (2012), p. 56.
386
Backes et al. (2002), pp. 86-89.
387
See e.g. Art. 5.1(2), Art. 8.11(3) (now Article 2.22 jo. Art. 1.1 of the Environmental Permitting (General Provisions) Act),
Art. 8.8(1)(e), Art. 8.40(2)(d), Art. 8.49 and Art. 10.1.
388
Fennis (2012), p. 51.
75