Making fast fashion out of fashion

Beatriz da Silva Pereira (master’s in European Union Law at the School of Law of University of Minho)

“Make fast fashion out of fashion” is the most recent slogan adopted by the European Commission to promote its new campaign to engage the Europeans in the battle against fast fashion and to raise public awareness about the EU Strategy for Sustainable and Circular Textiles.[1]

The EU Strategy for Sustainable and Circular Textiles arises within the scope of the much-quoted European Green Deal[2] launched in 2018, which marks the beginning of a new age in the environment protection across the EU and imposes a new perspective on the old principle of sustainability, which requires that all political and economic measures undertaken by the EU must consider the impacts and effects that those policies may have on the long run: on the economy, society and the climate.

This means that any initiative taken in order to satisfy a current need of the Europeans must be long-sighted and take in consideration the potential effect it may cause on the economic wealth of the Europeans, ideally resulting in economic growth, increasing monetary resources, in social peace, addressing inequalities, fostering the feeling of belonging and promoting an overall wellbeing to each and every individual, as well as a conscious impact on the environment, preserving ecosystems,  and repairing the damage already caused.

A fourth element of sustainability has been gaining increasing recognition: technology. Society and the evolution of humanity cannot be described without considering the influence of technology. Throughout history, it has been technology that has determined the prevailing social models at any given time.[3]

The principle of sustainability has been established as a fundamental pillar of European integration since the 1980s, having been introduced into the Treaty of Rome by the Single European Act of 1986, which created a single market in the EU by eliminating non-tariff barriers to cross-border trade and investment in the Member States of the Community.

Sustainability has been a concern since the idea of a single market was conceived. Subsequently, the principle of sustainability, more precisely environmental sustainability, was promoted in the Treaty on the Functioning of the European Union (TFEU), in Title XX, and later in Article 37 of the Charter of Fundamental Rights of the European Union (CFREU), which 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.”

The European Green Deal shifts the focus of environmental legislation. Whereas until now European environmental law has mainly targeted individuals – providing citizens with tools to combat climate change, such as information on recycling practices and the implementation of labelling systems to help consumers identify products that are in line with environmental protection goals – the Green Deal shifts the legislative focus. In this new framework, legislative proposals are no longer predominantly aimed at the civic sphere but rather establish the fight against climate change as a fundamental responsibility of states and corporations, presenting a concrete and gradual strategy to reduce greenhouse gas emissions by 75% by 2050, while holding Member States accountable through the establishment of intermediate targets to ensure gradual compliance with the long-term environmental objectives.

Since the Green Deal, the EU has used legal measures to leverage its position as the world’s largest single market to impose the standards of eco-friendly commerce and environmental responsibility on its international partners.

We seek to examine the extent to which industry and trade are open to or resistant to this new paradigm in addressing climate change.

The Union seems to recognise, for the first time, that – when faced with overwhelming data and evidence of natural resource depletion, repeatedly violated tipping points and consistently unmet emission reduction targets; in the face of a relentless race to recover losses and make up for lost time – it is necessary to hold accountable those actors with the structural capacity to simultaneously invest in scientific research, guide professionals and various sectors of society towards a common goal, educate citizens, combat social inequalities, mobilise industries, establish regulatory frameworks and ensure their enforcement.

When we begin to view climate challenges through this alternative lens – as a matter of state responsibility, which was previously mainly a concern of science and civic duty – it evolves into a complex legal-political issue that requires simultaneous consideration of objectives related to economic growth, fundamental rights, social inequality, and the very structure of the jurisdictional framework.

These considerations are not exactly new to the EU, since the principle of sustainability was explicitly introduced into the Treaties of Rome by the Single European Act in 1986, which also introduced the single market in the European Community, removing borders and barriers to the free movement of goods, persons, services and capital, and paving the way for greater political integration and the economic and monetary union that would be enshrined in the Treaty on European Union (TEU) that we know today.

The sustainable development proclaimed by the Single European Act established a principle whereby any political decision must be based on a balance between the needs of a community situated in time and space and the preservation of various aspects of human life, such as cultural heritage, the long-term productive capacity of ecosystems and rational and balanced land-use planning. This notion refers to the principle of intergenerational equity, ensuring that future generations are duly considered in current decisions and that their legitimate interests and expectations are safeguarded.

Although environmental sustainability figures prominently in the Union’s political agenda, with a programme aimed at ecological transition and carbon neutrality, as reflected in the extensive legislative package of the Green Deal, in practice, there is still a long way to go to effectively promote environmental sustainability, as well as economic prosperity, for example. In fact, sustainability continues to appear as a secondary objective in public and private measures, often yielding to competing interests, such as the economic imperative of developing the internal market and the commercial freedoms that this presupposes.

The Green Deal itself, which comprises hundreds of instruments designed to regulate broad areas such as climate, energy, agriculture, oceans, industry, transport, architecture and digital transition, among others, has no binding legal force, as it is based on communications and directives that lack direct effect. Once again, the approach taken to persuade Member States to implement its measures was to make alignment with the Pact’s policies a condition for eligibility to receive funds from the Recovery and Resilience Facility.

This reveals, yet again, the persistent difficulty in recognising environmental sustainability as having the same legal dignity as economic and social sustainability, even though without this third pillar, the promotion of sustainable development, as enshrined in Article 3 TEU becomes unfeasible.

The application of Union law and the implementation of measures aimed at protecting supranational interests and legal goods such as environmental protection, which transcends the individual interests of each Member State and requires more than unilateral action, demand the establishment of coordinated objectives and the accountability of States in embracing this shared commitment.

The much-invoked European expression “leaving no one behind”, particularly in environmental and transition-related contexts, means that the changes to be introduced in the interests of sustainability and the resulting benefits must reach all regions and citizens of the Union. Moreover, any burdens arising from this transition must be acknowledged and mitigated, so that no person or region is disproportionately and individually harmed in the name of collective goals. We would argue, however, that this expression should also take another form: not allowing anyone or any region to fall behind by failing to take the lead in fulfilling the responsibilities incumbent upon them in pursuit of a common objective, in accordance with the principle of European loyalty.

This paradigm where environmental sustainability is relegated to soft law undermines the very foundation of the Union as a legal order governed by the rule of law. After all, the EU constitutes an autonomous legal order that creates its own law and is bound by it. The application of Union law does not depend on the will of individual states, nor is it up to each state to determine how European provisions should be interpreted and applied. The principle of the primacy of European Union law dictates the opposite: the application of European law does not depend on the will of the Member States, nor can it be limited by national legal norms.

If, as a rule, Union law defines its own interpretative criteria for its provisions, why should this logic be reversed when it comes to environmental sustainability, a core commitment of the Union itself?

This issue was explored in depth at the 22^nd United Nations Permanent Forum on Indigenous Issues in 2023, where indigenous leaders from around the world drew attention to the phenomenon of “green colonialism”, a term that has been extended to the issue of developing countries, which are making disproportionate efforts to keep up with the challenges of climate change. Indeed, while on the one hand these countries face challenges inherent to their geographical and socio-economic conditions, such as deserts, low soil fertility, limited wealth and low levels of education, all of which render their populations particularly vulnerable to climate change, on the other hand they continue to be exploited by European countries.

In the specific case of the textile industry, for instance, the soils of these nations are still used for raw material extraction; factories have been relocated to these territories to produce garments destined for markets that claim to uphold human rights; and, finally, when these garments are discarded by European consumers, it is not uncommon for them to end up in open-air landfills in countries that lack the infrastructure to properly manage such waste.

The Commission appears determined to downplay the fact that the majority of clothing purchased in the EU is produced abroad, in developing countries to which the EU’s comprehensive and ambitious legislation does not apply, serving, at best, as a utopian model to emulate. The current low-price standards of the fashion industry, largely driven by companies that manufacture outside the EU, result from distortions that are often disregarded: the negative environmental externalities generated during the production process are not internalised in the final price of the product, and the share of labour value relative to capital value is extremely low, being based on underpaid labour, subjected to long working hours and workloads assigned to fewer workers than would be required to carry them out with dignity. While the highest standards of environmental protection and human rights in the world are promoted by the EU, and despite ongoing efforts to mitigate environmental harm and eliminate human rights violations within Europe, there remains a systematic failure to acknowledge that much of the progress achieved within the EU has been made possible through the exploitation of the environmental resources and populations of developing countries.

Developing countries, which already face considerable challenges in overcoming poverty, hunger, and politically unstable or undemocratic regimes, find themselves condemned by Europe to live among the waste of Europeans, in unhealthy environments that pose risks to both physical and mental health, in blatant disregard of the human rights proclaimed by the Union.

At the recent celebrations of Portugal and the Portuguese Communities National Day, formerly a vast colonial empire, Lídia Jorge, the guest speaker invited by the Portuguese State, emphasised that the Portuguese, like Europeans, as they did five centuries ago during the era of maritime globalisation, are now undergoing a period of transition. We are witnessing the end of a cycle and, amid growing awareness of this transformation, explicit warnings are being issued about the current crisis, which is unfolding under the forces of digital globalisation.

The speaker further remarked that, nowadays, the prevailing public discourse is undoubtedly centered on the negative impacts of the age of maritime expansion, rather than on the transformative greatness it once represented. It is true that the collective movement that enabled the establishment of maritime connections between continents, the economic and scientific growth it promoted, and the encounter between different peoples and cultures it allowed, followed a strategy of subjugation and appropriation, slavery, which remains one of the painful topics of contemporary debate.

Perhaps for this reason, the Commission refrains from making value judgments about the very facts it presents. According to the Commission, 60% of the clothing sold in the EU, by value, is produced outside EU territory. Furthermore, 85% of the primary use of raw materials, 93% of land use, and 76% of greenhouse gas emissions associated with textile production occur outside the Union, which imports the majority of its clothing from China, Bangladesh, Turkey, India, Cambodia, and Vietnam.[4] The selective recycling rate of textiles is only 20%. This recycling process entails a loss of value and is mostly destined for use as industrial wipes, while the remainder is lost. Moreover, the export of textile waste outside the EU – to developing countries that do not observe proper waste treatment regulations – has been increasing, reaching 1.4 million tons in 2020.

Against this backdrop, the European Union is enacting a series of legislative acts and campaigns, such as the Corporate Sustainability Due Diligence Directive (on corporate sustainability due diligence), to promote sustainable and responsible behaviour in companies’ operations and across their global value chains; Regulation (EU) 2024/1157 on the shipment of waste, with the aim of preventing or reducing any damage to health or the environment during the transport and treatment of waste at its destination; or the latest campaign, “Make Fast Fashion Out of Fashion”, which calls on digital influencers across Europe to promote a clean transition and change consumer behaviour away from the fast fashion model and towards more sustainable and responsible practices in the fashion industry.

Along the lengthy “legislative train” that carries the European Green Deal, no value judgment is made regarding the fact that the clothes Europeans wear are produced outside Europe. No one raises their voice to point out that European children – who are guaranteed the rights to education and a healthy environment – are dressed in garments made by children elsewhere in the world who do not have access to schooling. That the cheap clothes worn by Europeans who advocate for workers’ rights and gender equality are manufactured in factories in countries where the rights of children and women are not respected, in places where there are reports of unsafe and unsanitary working conditions in factories, as well as the absence of decent working hours. And that same piece of clothing that started on a cotton plantation in Africa, was manufactured in Asia, worn in Europe, will probably end up in a landfill in South America, forcing other people to live among our rubbish.

Europe may pride itself on being the greenest of continents, leading the green and digital revolution, the guardian of human rights, and while we believe that is true, we acknowledge that it would not be so if Europe did not displace all the economic factors it condemns to other countries, while profiting from its results.

Much of the progress achieved by Europeans in Europe is a direct result of the damage caused to other peoples around the world, subjugating others to our interests, in a new form of oppression.

[1] European Commission, “Reset the Trend: EU Calls on young people to promote circular and sustainable fashion”, News Article, Directorate-General for Environment, 26 January 2023, https://environment.ec.europa.eu/news/reset-trend-2023-01-26_en.

[2] Communication from the Commission, The European Green Deal, Brussels, 11.12.2019, COM(2019) 640 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52019DC0640.

[3] Márcio Paulo Cruz and Gabriel Real Ferrer, “Direito, sustentabilidade e a premissa tecnológica como ampliação de seus fundamentos”, in Sustentabilidade tecnológica: o papel das tecnologias digitais na promoção do desenvolvimento sustentável, ed. Alessandra Silveira, Joana Covelo de Abreu, Larissa Araújo Coelho (Braga: Pensamento Sábio – Associação para o conhecimento e inovação, 2020), 17.

[4] Communication from the Commission, EU Strategy for Sustainable and Circular Textiles, Brussels, 30.3.2022, COM(2022) 141 final.

Picture credit: by Tirachard Kumtanom on pexels.com.