BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

2. Possible obligations of business entities under Article 8 of the Convention 2.1 Protection of the environment

Although the text of the Convention does not enshrine a right to a healthy environment as such, the Court in its case-law addressed environmental matters on account of the fact that the exercise of certain rights may be undermined by the existence of environmental risks. The Court has dealt with these allegations mostly under Article 2, 26 Article 3, 27 and Article 8 28 of the Convention. As previously stated, we will discuss only the case-law regarding activities of businesses that may result in the abuse of the right to private life. One of the oldest judgments on the subject-matter was rendered in the case of Powell and Rayner v. the United Kingdom of 1990. Here the applicants, who lived in the vicinity of Heathrow airport, complained about the unacceptable air traffic and aircraft noise. This noise was caused partly by the activity of private airlines. At that time the Court and the former European Commission on Human Rights observed that the increasing use of jet aircraft have become necessary in the interests of a country’s economic well- being. The Court concluded that there is no serious grounds for maintaining that the policy adopted by the United Kingdom authorities gives rise to violation of Article 8 of the Convention, whether under its positive or negative head. 29 Eleven years later, the Court chamber made an attempt to change such approach to aircraft noise pollution. The applicants in the case of Hatton and Others v. the United Kingdom alleged a violation of Article 8 by virtue of the increase in the level of noise caused at their homes by using Heathrow airport at night after the introduction of the 1993 scheme. The Court seated in the Chamber concluded that the 1993 scheme failed to strike a fair balance between the United Kingdom’s economic well-being and the applicants’ effective enjoyment of their right to respect for their homes as well as their private and family lives. Accordingly, it found a violation of Article 8 of the Convention. 30 However, the case was referred to the Grand Chamber, which in 2003 rejected the Chamber’s ruling and decided that there had been no violation of Article8 of the Convention. 31 It found, in particular, that the United Kingdom had not overstepped their margin of appreciation as there was an economic interest in maintaining a full service of night flights. The Court noted that only a small percentage of people had suffered from the noise, that the housing prices had not dropped, and that the applicants could move elsewhere without a financial loss. The Court confirmed this approach in 2012 when it ruled that France did not infringe on the rights of the

26 ECtHR, Öneryıldız v. Turkey , Appl. No. 48939/99, Judgment, 30 November 2004, § 118. 27 ECtHR, Elefteriadis v. Romania , Appl. No. 38427/05, Judgment, 25 January 2011, § 55. 28 ECtHR, Tătar v. Romania , Appl. No. 67021/01, Judgment, 27 January 2009, § 125. 29 ECtHR, Powell and Rayner v. the United Kingdom , Appl. No. 9310/81, Judgment, 21 February 1990, § 45. 30 ECtHR, Hatton and Others v. the United Kingdom , Appl. No. 36022/97, Judgment, 2 October 2001, § 107. 31 ECtHR, Hatton and Others v. the United Kingdom , Appl. No. 36022/97, Judgment, 8 July 2003, § 130.

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