Leading cases on Art. 34 TFEU.

EU Environmental Law
Group 3: Is a focus on courts in environmental
law just an obsession with legal centralism?
Artem Anyshchenko
Hanna Kemp
Ailie Isdale
Felix Runer
Alexandra Schwarz
Friday, November 23, 2012
Presentation Overview
The Problem Question
Layout of the Issue
Relevant Law
Application of the Law to the Issues
Analysis of the Case Law
Analysis of Gaps and Suggestions for
The Problem Question
• Environmental law is generally accepted as public
law involving administrative decisions of public
authorities. Therefore, the way to challenge the
environmental decisions of public authorities is
through (administrative) judicial procedure rather
than through civil law dispute resolution. The role of
courts can’t be overestimated since they execute:
• Judicial review;
• Gap filling;
• Protection of fundamental rights.
A Layout of the Issue
“The focus on courts in environmental law can be
explained by that ‘terms such as rules, principles,
legal principles, objectives and guidelines are used
incoherently to mean similar and different things’”
“Hence the significance of considering
environmental case law where these concepts have
been raised as it is only here that one will begin to
discern their true legal nature in practice by seeing
how they are handled and treated by the judiciary
in influencing the outcome of disputes”
In Other Words…
What is the courts’ true objective? What are
they aiming to achieve?
Article 19: The Court of Justice of the European Union shall include
the Court of Justice, the General Court and specialised courts. It
shall ensure that in the interpretation and application of the
Treaties the law is observed.
The Relevant Law
• Article 11 TFEU (ex Article 6 EC)
Environmental protection requirements
• Articles 191-193 TFEU (ex Articles 174-176
EC) the EU’s powers
• The extent of “legal centralism” in relation
to the courts’ role
Application of the Law to the Issues
• Maintaining balance between environmental
protection and the freedoms of internal market.
• Is the objective of environmental protection sought
by the measure acceptable under the applicable
• If that objective is acceptable, are the measures
adopted proportionate, that is, are they the most
effective to achieve that objective while the least
harmful to other interests and values?
Application of the Law to the Issues
• At the EU level, there is a wide margin of discretion
in adopting legislative measures in the field of
environmental law that involve complex political and
economic choices.
• The Court can extensively expand its own
jurisdiction and employ a “generous” approach to
interpretation of EU law in order to enhance
environmental protection.
Leading cases on Art. 34 TFEU
8/74 Dassonville
The court grants itself broad powers to supervise national measures
Art. 34 – traditional view of free trade and equal treatment.
C-120/78 - Cassis de Dijon
Principles of mutual recognition
Discriminatory recognition
Rule of reason
267/91 – 268/91 Keck and Mithouard
To have an effect on trade a selling arrangement a measure must:
– Have a greater effect on foreign goods than domestic.
– Effectively prevent the sale of certain imports.
Increasing Acceptance?
C-315/86 Commission v Denmark
• Environmental protection can be considered a mandatory requirement.
• Measure not within Art. 36 exceptions: rule of reason not applicable..
C-309/02 Radlberger Getränkegesellschaft
• A more accepting weighing of environment v. trade.
C-67/97 Bluhme
• Protection of biodiversity under “protection of animals” in Art. 36 TFEU.
• Introduced international conventions as a context.
C-2/90 Walloon Waste
• Overtly discriminatory measure – prohibited in Art. 34
• Did not fall under mandatory requirements (Cassis) or Art.36
• ECJ: Non-discriminatory considering the nature of the goods. A strange
wording with unclear meaning for future cases.
C-379/98 PreussenElektra
Environmental derogation available in the Treaty. A stretch of the “protection of
human life”?
Like Bluhme, the court was very context aware, seeing as the current
environmental situation may be a sensitive issue.
C-203/96 Afvalstoffen Dusseldorp
Export restriction – unfair advantage to local company coupled with lack of
evidence of an export resulting in a health risk.
C-142/05 Mickelsson and Roos/ C-110/05 Commission v. Italy
Limitations on use may constitute a “considerable influence” on consumers, and
hereby fall under Art. 34 TFEU.
Customers have a “limited interest” in buying the product – quasi ban due to
limited possibilities of use in the Mickelsson case.
The Proportionality Test: Case-Law
C-240/83 ADBHU
• Directive regulating the disposal of waste oils found to be respecting
the principles of proportionality and non-discrimination and was not
contrary to the free-trade principles.
C 389/96 Aher-Waggon
• The German legislation on noise control found proportionate.
C-473/98 Toolex
• a measure imposing a total ban on the industrial use of a particular
carcinogenic substance found proportionate to the aim of protecting
public health and environment.
C-284/95 Safety Hi-Tech
• A regulation prohibiting the use of HCFCs found
proportionate to its aim of protecting the ozone
C/27/00 Omega Air
• Regulation aiming at reduction of noise caused by
jet aeroplanes proportionate.
Lacunas in the Applicable Legal System
• Lack of Treaty explicit provision regarding the
protection of the environment (Article 36 TFEU: “the
protection of health and life of humans, animals or
• Lack of cooperation (in this respect, difficulties in
balancing of conflicting interests).
• Lack of harmonization (in this respect, more
stringent measures set up by Member States).
Conclusions and Suggestions for

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