EU environmental law

Setting the Scene
EU Environmental Law
– Competences, principles, human rights, law-making
implementation and enforcement, standing
– Descriptive, purposive and jurisprudential approach
EU Environmental Law
• Based on a EU administrative law
– Rights, decision-making procedures,
standing, enforcement = EU law based
• The importance of legal culture
Origins of EU Law
• Law-centered union
– Treaty of Rome (1958)
– Single European Act (1987)
– Treaty of Maastricht (1992)
– Constitutional Treaty (2004 - failed)
– Treaty of Lisbon (2009)
• From simple €€€ rights to social rights
The Importance of Competences
• Principle of Conferred Powers
• Art 13 TEU: ‘Each institution shall act within the limits of
the powers conferred on it in the Treaties’
• Shared Competence
• Art 4(2)(c) TFEU
• Principle of subsidiarity
• Article 5(3) TEU: the Union shall act only if and insofar
as the objectives of the proposed action cannot be
sufficiently achieved by the Member States
Environmental Competences
• Article 3 TEU
– sustainable development
• Article 21(2)(f) TEU
– sustainable management of global natural resources
• Article 11 TFEU
– integration principle
• Article 191-193 TFEU
– Environmental legal base
• Title XXI
– energy policy
• Article 37 Charter
– Environmental Protection
Chapter XX TFEU
• Article 191 TFEU
– Objectives (NB ‘climate change’), principles, policies,
harmonisation, external relations
• Article 192 TFEU
– Ordinary legislative procedure
– Derogations from art. 289 TFEU
– Implementation
Competences and External Relations
Article 191 (4) TFEU
• Cooperate with 3rd countries/international org.
• ‘without prejudice to Member States’ competence to negotiate
in international bodies and to conclude international
• Mixed agreements
Environmental Principles
• Art 191(2) TFEU
– Precautionary principle
– Prevention principle
– Ratification at source
– Polluter pays
• Sustainable development
• Subsidiarity principle
• Integration principle
e.g. Precautionary Principle
• Justifies legal action also in cases of lack of causality according to:
– ‘available scientific and technical data’
– NB Trade consequences
• C-121/07 Commission v France
– ‘fundamental principle’ of environmental protection
• T-74/00 Artegodan v Commission
– ‘general principle of Community law’
e.g. Integration Principle
• ‘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’ (Art 11
– Chernobyl I case
• E.g. “The main and predominant objective and component of this
Regulation is the protection of the environment, its effects on
international trade being only incidental.” (Regulation 2013/2006 re the banana sector)
e.g. Polluter pays
Assumingly straightforward but not easy to determine, e.g. who
is the polluter? can we pierce the corporate veil? competition
e.g. Sustainable Development
Brundtland Report
Rio de Janeiro ’92
‘Development that meets the needs of the current generation without endangering
those of future generations’ (Brundtland Commission, 1983)
Three pillars: economic development, social development and environmental
• Codified in :
– Art. 3(3) TEU
– Art. 11 TFEU
– Art. 37 Charter
• C-371/98 First Corporate Shipping, AG Léger:
– Sustainable development means ‘the necessary balance between various
interests which sometimes clash, but which must be reconciled’
An Environmental Rights’ Revolution?
Article 37 of the Charter of Fundamental Rights of the
European Union (Charter) ensures:
“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
Analogous to a ‘plus one’ (Bogojevic forthcoming)
Three key players
The European Parliament
- voice of the people
Martin Schulz, President of
of the European Parliament
Martin Schulz
The European Council and the Council
- voice of the Member States
President of the European Council: Herman Van Rompuy,
followed by Donald Tusk,
expected to take up office on 1 December 2014
The European Commission
- promoting the common interest
President of the European Commission: José Manuel Barroso,
followed by Jean-Claude Juncker,
expected to take up office on 1 November 2014
Adopted after: European Union, The EU in slides
Donald Tusk
Jean-Claude Juncker
How EU laws are made
Law-making in the EU
Citizens, interest groups, experts: discuss, consult
Commission: makes formal proposal
Parliament and Council of Ministers: decide jointly
National or local authorities: implement
Commission and Court of Justice: monitor
• Primary
– Treaty of the EU (TEU)
– Treaty of the Functioning of the EU (TFEU)
– Charter
• Secondary
– Regulation
– Directive
– Decision
General rule (Art 193 TFEU)
As long as national laws have not been harmonised, Member
States are free to pursue any environmental policy of their own,
under the condition that the provisions do not breach the Treaty
Different meanings:
1) Common rules and processes across Member States
2) Harmonisation in terms of end results
3) Harmonisation in terms of market integration (i.e. no barriers)
4) Harmonisation in term of policy norms
Case 6/64 Costa v Enel
…the law stemming from the treaty, an independent source
of law, could not, because of its special and original nature,
be overridden by domestic legal provisions, however
framed, without being deprived of its character as
community law and without the legal basis of the
community itself being called into question
Case C-26/62 Van Gend den Loos
‘The Community constitutes a new legal order of international
law for the benefit of which the states have limited their
sovereign rights, albeit within limited fields, and the subject
of which compromise not only member states but also their
nationals. Independently of the legislation of MS, Community
law may therefore not only impose obligations on individuals
but is also intended to confer upon them rights which
become part of their legal heritage.’
• More than 200 EU environmental laws produced over the
past 30 years – but how about implementation?
• Duty to implement:
– Art. 192(4) TFEU
– Art. 288 TFEU
– Art. 4(3) TEU – duty of cooperation
• ‘Implementation deficit’
– ‘the most serious existing problem of environmental law’
– Political and practical hurdles
• Furthering implementation
– Criminal law, e.g. Eco Crime Directive 2008/99/EC
– Direct effect
– Innovation in regulatory methods (e.g. markets, self-regulation)
– Standing of NGOs
• Commission as the ‘guardian of the Treaties’
– Art. 258 TFEU
» Infringement – duty to take necessary steps to comply
with the judgment
» Financial sanctions (e.g. C-387/97 Commission v
– The Importance of role of the EU courts
» Art. 260(3) TFEU
Further references
• R. Meeus, 'Fill in the Gaps: EU Sanctioning Requirements
to Improve Member State Enforcement of EU
Environmental Law' (2010) 7 Journal for European
Environmental and Planning Law 135
• R. Slepcevic, 'The judicial enforcement of EU law through
national courts: possibilities and limits' (2009) 16 Journal of
European Public Policy 378
• D. Sinclair, 'Self-Regulation versus Command and Control?
Beyond False Dichotomies' (1997) 19 Law and Policy 529
Who is reviewed?
the Council, the
Commission, and the
European Central
…as well as the
European Parliament,
the European Council,
EU bodies, offices, or
Or: non-privileged
What is reviewed?
»Legislative acts
» incl. regulations, decisions, directives
(as listed in Art 288 TFEU)
»Acts which intend to ‘produce legal effects’
» Look at substance (effect), not form
(resolution, letter etc - e.g. Case 22/70
Commission v Council)
»Excludes recommendations and opinions
» that are not legally binding, Article 288
»‘Regulatory acts’
With what effect?
’If the action is well founded, the CJEU shall
declare the act concerned to be void.’
of the
Misuse of
Lack of
of an
Infringement of the Treaty or any rule of law
relating to its application (1)
• Covers all provisions of the Treaties – i.e to ensure that all
secondary law also comply with EU law
• Exact meaning unclear, enabling the ECJ to develop huge body
of jurisprudence inspired by national administrative laws
» Legal certainty and legitimate expectations
» Transparency and non-discrimination
» Precautionary principe
• General principles are used for various purposes:
1. Interpretative guide
2. Grounds of review
3. Basis for damages action
Infringement of the Treaty or any rule of law
relating to its application (2)
Example: proportionality
• Proportionality and discretionary policy
choice – less intensive review
• Proportionality and alleged infringement of
rights of Union citizens – vigorous scrutiny
• Checks and balances re penalities
• Proportionality and Member State action –
e.g. Free movement of goods (balancing
social and economic rights, Viking Line)
Misuse of power
Case C-156/93 Parliament v Commission, para. 31
”the adoption by a Community institution of a measure with
the exclusive or main purpose of achieving an end other
than that stated or evading a procedure specifically
prescribed by the Treaty for dealing with the circumstances
of the case.”
See C-84/94 Re Working Time Directive
Lack of competence
• In short: no attributed competence to legislate on the
• See Art 2 TFEU
– Exclusive
– Shared
– Supporting competences
Infringement of an essential procedural
Union definition, examples include:
– Right to be heard
– Consultation and particulation
» Eg. Roquette Frères v Council where the Council failed
to consult the Parliament – even if only consultation!
– Duty to give reasons
» To enhance transparency
» Test legislator’s rationale (correlation with
Non-privileged applicants
Art 263(4) TFEU
‘Any natural or legal person may…institute
proceedings against an act addressed to that
person or which is of direct and individual
concern to them, and against a regulatory act
which is of direct concern to them and does
not entail implementing measures’
NGOs as non-privileged applicants
“wilderness areas adversely affected should be assigned to NGOs,
who then can act as guardians and speak for nature in the same way
as lawyers speak for corporations, infants, or municipalities before
set judiciaries” (Stone 1972)
• Common and shared interests (not economic)
• Legal expertise, know-how
• Stream-lining litigation
• Effective implementation
• NB: Should NGOs be the voice of the environment?
Defining ‘direct concern’
T-585/93 Greenpeace
‘affect Greenpeace as a representative of its members on
the Canary Islands only indirectly.’
C-386/96 Société Louis Dreyfuse v Commission
such measures ’must directly affect the legal situation of the
individual and leave no discretion to the addresses of that
measure who are entrusted with the task of implementing
Defining’individual concern’
25/62 Plaumann v Commission – still good law!
either a decision addressed to the applicant, or a decision
that affects the applicant by: reason of circumstances in
which they are differentiated from all other persons and by
virtue of these factors distinguishes them individually’
NB – application of the test: activity carried out can only be
done by one person at any time
NB C-309/89 Codorniu property right matters?
Defining ‘regulatory act’
• T-18/10 Inuit v Commission
• ‘only against a specific category of acts of general application,
namely regulatory acts’ – defined these as ‘non-legislative acts’
• Focus on procedure, Art. 288 TFEU
Defining ‘implementing measures’
T-16/04 Arcelor v Parliament and the Council
• measures that carry out the instructions of the legislator, or
qualify as the logical consequence of the contested act
• eg. Commission regulations and decisions, as well as specific
decisions of the European Chemical Agency (ECHA)
– C-380/11 Palirria, T-262/10 Microban
• What about delegated acts?
Complete System of judicial protection?
• Articles 263(4) and 267 TFEU – two sides of the same coin?
• Article 267 TFEU enables individual applicants to use EU
law both as a ‘shield’ – defending themselves from Member
State actions that are contrary to EU law – and as a ‘sword’
– challenging national measures on the basis of
incompatibility of EU law
• there is ‘no reason to fear a gap in the legal remedies
available to individuals’ AG Kokott Opinion to Inuit
– Any issues with this approach ?
NB Århus Convention
Three-pillar system:
• the right of access to environmental information
• assuring public involvement in environmental
decision-making processes
• Enabling environmental NGOs to challenge
decisions concerning the environment
Århus Regulation No 1367/2006
• establishes a direct venue to access to justice by
enabling NGOs as defined in the Regulation
• to make a request for internal review of
administrative acts adopted under environmental law
by EU authorities
• In cases where the authorities fail to comply, the
NGOs are able to institute proceedings before the
ECJ in accordance with the Treaty
• Command-and-control type of laws, policies and
environmental programs, institutions (DGs),
• Range of issues: air quality, biodiversity, pollution control,
waste, climate change, water pollution, land management
NB: also principles, policy, concerns of public health (or, all
EU policies) not apt for strict definitions
a) market integration: early years (market hurdle), REACH, EU
ETS, Lisbon Strategy, Growth Strategy 2020 etc.
b) Progressive environmental protection (independent from
a.) , incl. precautionary principle, Århus , global environmental
NB: operate together but not always in tune
• Example: C-368/10 Commission v Netherlands (eco labeling,
sustainability of purchases, procurement law)
• Coherent body of legal principles
• Dependent on the jurisprudence of the EU courts
– Preliminary reference (Article 267 TFEU)
– Annulment actions (Article 263 TFEU)
– Infringement actions (Article 258 TFEU)

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