EC Environmental Law JUR 5520 International Environmental Law

EC Environmental Law JUR 5520 – International Environmental Law 18 April and 2 May 2008 Catherine Banet Ph. D Research Fellow NIFS – Petroleum and Energy Law Department catherine. banet@jus. uio. no EC Environmental Law – JUR 5520 – Spring 2008

Introduction (i) Is the environment defined under EC law? • Is environmental pollution defined under EC law? • Environmental pollution as a risk that should be tackled by the EU? – Ulrich Beek, Risk Society (1986). – Ex: Risk assessment procedure, as one of the 3 components of risk (with risk management and risk communication). Risk assessment is a scientifically based process composed of 4 steps: hazard identification, hazard characterisation, exposure assessment and risk characterisation. – Different attitudes when confronted to risk: • A posteriori: correct pollution; • A priori: – Evaluate risk – Risk assessment. Ex: EIA Directive 85/337/EEC, SEA Directive 2001/42/EC, Integrated product policy. – Anticipate risk. Precautionary principle. EC Environmental Law – JUR 5520 - Spring 2008

(ii) State of the environment in the EU • Elaboration of environmental indicators See Council Conclusions of 8 December 2003 on Structural Indicators. • European Environmental Agency (EEA) indicators and reports Website: http: //www. eea. europa. eu/ • Eurostat Indicators of sustainable development organised in 10 themes: economic development, poverty and social exclusion, ageing society, public health, climate change and energy, production and consumption patterns, management of natural resources, transport, good governance, global partnership. EC Environmental Law – JUR 5520 - Spring 2008

(iii) Legal basis for Community environmental action – – Articles 2 and 174. 1 EC Treaty Articles 174 and 175 EC Treaty Article 95 EC Treaty Other possible legal basis: articles 37 (agriculture), 80 (transport), 133 (commercial policy), etc. (iv) Objectives of Community environmental policy – Sustainable development (Art. 2 EUT, Arts. 2 and 6 ECT) The Lisbon Strategy (2000) + the Göteborg European Council (EU Sustainable Development Strategy, reviewed in 2006). – Objectives of Articles 174. 1 ECT ≠ principles (see Section 4) (v) Repartition of competences between the EC and Member States EC Environmental Law – JUR 5520 - Spring 2008

1. The actors of EC environmental policy 1. 1. The European Commission (Art. 211 -219 ECT) • • Guardian of the Treaties. Exclusive right of proposal Priotities: - European Action Programmes (VIth EAP) - Annual Policy Strategy for 2008 (COM (2007) 65) - Green/White/Strategy papers EC Environmental Law – JUR 5520 - Spring 2008

1. 2. The European Parliament (Arts. 189 -201) • • Role of the EP: legislative powers, budgetary powers, power of control over the Union’s institutions. Increasing role in promoting environmental issues since the 1970 s. Active role of the Parliamentary Committee on Environmental, Public Health and Consumer Protection (ENVI Committee). Advice from experts: STOA. EC Environmental Law – JUR 5520 - Spring 2008

1. 3. The Council of Ministers (Art. 202 -210 ECT) Role: i. represents MSs’ interests; ii. Adopts or amends the proposals from the Commission; iii. Delegates to Commission the implementation of its decisions 9 Council formations, including one for the Environment. Some greener Member States? EC Environmental Law – JUR 5520 - Spring 2008

1. 4. The consultative organs • • Economic and Social Committee of the Regions 1. 5. The European Court of Justice (ECJ) and the Court of First Instance Role: ensuring that the law is applied. The particular role played by the ECJ in the development of EC environmental law. EC Environmental Law – JUR 5520 - Spring 2008

1. 6. Non institutional actors • • • Professional organisations Non-professional organisations Individuals Ex: application of Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters. See implementation legislation of the Århus Convention: - - Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters. Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. More problematic: access to justice - Proposal for a directive of the European Parliament and of the Council 24 October 2003 on access to justice in environmental matters (COM(2003)624). EC Environmental Law – JUR 5520 - Spring 2008

2. Legal and political evolution of EC environmental law • • Initially, no legal basis for Community action in environmental matters. 1972 European Council – Evocation of Articles 100 (now Art. 94) and 235 (now 308 ECT). – – • • • “They agreed that in order to accomplish the tasks laid out in the different action programmes, it was advisable to use as widely as possible all the provisions of the Treaties including Article 235 of the EEC Treaty”, Meeting of the Heads of State or Government, Paris, 19 -21 October 1972, point 15, last alinea. 1 rst Environment Action Programme (EAP) (1973 -1976) Jurisprudential affirmation and clarification legal basis: • Case 91/79 Commission v Italy: ”Directives on the environment may be based upon Article 100 of the Treaty since provisions which are made necessary by considerations relating to the environment and health may be a burden upon the undertakings to which they apply and if there is no harmonization of national provisions on the matter competition may be appreciably distorted. ” • Case 240/83 ADBHU: […] the perspective of environmental protection, which is one of the Community’s essential objectives. ” (point 13) • Case 302 -86 Commission v Denmark, point 8. Confirmed. First framework directives adopted in the field of the environment. Single European Act (1986) Treaty on European Union – Maastricht – 1992 Treaty of Amsterdam – 1999 NB: Repartition of competences between the Community and Member States in environmental matters EC Environmental Law – JUR 5520 - Spring 2008

3. The manner to reach the goals (1) : the instruments of EC environmental law 3. 1. The different legal instruments … NB: distinction between primary legislation (EC Treaty) and secondary legislation. (i) Regulations (art. 249, al. 2 ECT) Ex: Regulation (EC) No 1013/2006 on shipments of waste; Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). (i) Directives (art. 249, al. 3 ECT) • • Direct effect doctrine. See Van Gen & Loos (Case 26/62); Defrenne (2/74). Framework and daughter directives. Ex: Framework Directive 2006/12 on waste (now under review) + legislation on waste management operations / legislation on specific waste streams. (ii) Decisions (art. 249 ECT, al. 4 ECT) (Ex: VIth Environmental Action Programme (20012010)) (iii) Recommendations (art. 249, al. 5 ECT) … and some additional instruments. - Communications Resolutions EC Environmental Law – JUR 5520 - Spring 2008 - Environmental Agreements (COM(2002)412) - Economic instruments

3. 2. The choice of the legal basis for these instruments • On the importance of the choice of the legal basis. • Should not be left at the entire discretion of the EC institutions. - ”The choice of the legal basis for a Community measure […] must be based on objective factors which are amenable to judicial review and include in particular the aim and content of the measure. ” (Commission v. Council, C-94/03) - Ex: Commission v. Council, C-155/91 in comparison with Titanium dioxide case C-300/89 - “Centre of gravity” theory applied. • Traditional preference for one legal basis. But in case of two policy objectives, at equal weight, preference should be given to the procedure ensuring greater participation of the EP (Commission v Council C-300/89). Should ensure compatibility of decision making procedures (Commission v Council C 300/89, Titanium dioxide case). • However, possible dual legal basis. - When the act simultaneously pursues objectives or when its components are “indissociably linked, without one being secondary and indirect in relation to the other. ” - Ex: Adoption and implementation of the Rotterdam Convention on prior informed consent (PIC) procedure – Case law: C-94/03 and C-178/03. Student presentation EC Environmental Law – JUR 5520 - Spring 2008

3. 3. Elaboration and adoption of legal norms in environmental matters (i) Elaboration of the legislative proposal - The preliminary necessary step: the adoption by the European Commission of a legislative proposal (monopoly of the right of initiative). EP and Council can request the Commission to submit a proposal: Arts. 192 and 208 ECT. The specific case of comitology procedure. - - Implementing powers conferred on the Commission. 3 categories of comittee: advisory, management, regulatory. See comitology Decision 1999/468/EC as amended by Council Decision of 17 July 2006. Preparatory works conducting to the adoption of a proposal by the Commission. (ii) Decision making procedure for the adoption of the legal text Mainly: consultation (Art. 250), cooperation (Art. 252), and codecision (Art. 251). Codecision as the general rule (Art. 251): see Article 175 ECT. - Details of codecision procedure: see distributed scheme. - Ex: decision making procedure conducting to the adoption of Directive 2003/87/EC of 13 October 2003 of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community. Student presentation EC Environmental Law – JUR 5520 - Spring 2008

4. The manner to reach the goals (2): principles of EC environmental law 4. 1. The principles of action in EC environmental law (i) Precautionary principle Ex: Application of the precautionary principle by the ECJ – Pfizer Case T 13/99 of 11 September 2002. Student presentation (ii) Prevention principle (iii) Rectification of damage at source (iv) Polluter-pays principle Early reference: 1 st EAP, Council Recommendation 03. 1975 See Directive 2004/35/EC on environmental liability. EC Environmental Law – JUR 5520 - Spring 2008

4. 2. The applicable general principles of EC law (i) Subsidiarity principle and proportionality principle (Art. 5) (ii) Integration principle (Art. 6) (iii) Loyalty principle (Art. 10) (iv) Principle of non-discrimination (Art. 12) EC Environmental Law – JUR 5520 - Spring 2008

5. Harmonisation of national environmental laws 5. 1. The different degrees of harmonisation (i) From mutual recognition (Cassis de Dijon 120/78) (ii) Towards minimum harmonisation - Total versus minimum harmonisation • Red Grouse Case C-169/89 Student presentation The ”New Approach” (Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards) 5. 2. The Compassion Case (C-1/96) Distinction between minimum, total harmonisations and exhaustion. EC Environmental Law – JUR 5520 - Spring 2008

6. EC Trade rules and environmental protection • Application of the exhaustion criteria. • Case 1: Absence of harmonised legislation. Application of Articles 28 to 30. • Case 2: Harmonised legislation exists. – Process in establishing the degree of harmonisation. • Criteria: – Scope of application of the directive: • Ex: Toolex – C-473/98 Student presentation • Ex: Balsamo case – Objectives of the directive: • Ex: Holdijk case – Joint cases 141 -143/81 EC Environmental Law – JUR 5520 - Spring 2008

7. Implementation of EC environmental law 7. 1 Evaluation of the implementation and enforcement of EC environmental law: • Primary and secondary law provisions. • IMPEL network. • 2 steps: (i) Transposition/Implementation (ii) Application/Enforcement 7. 2 Sanctions for non-compliance of EC law: (i) Art. 226 (ii) Art. 227 (iii) Art. 228 Possible economic sanctions. Ex: case C-387/97, Commisison v Greece. • Ex: VIIth Annual Survey EC Environmental Law – JUR 5520 - Spring 2008 Student presentation

• State liability for breach of EC environmental law. – State liability doctrine. See Francovich (C 6 & 9/90), Brasserie du Pêcheur/Factortame (C-48/93), British Telecommunications, Hedley Lomas. – Set of criteria for identification of State liability. – Application in environmental law cases? • Actions by individuals. • Commission’s proposal on environmental protection through criminal law. – Previous proposal for a Diretive contested by the Council which adopted Council Decision 2003/80/JHA. – New proposal dated 9. 02. 2007 COM (2007) 51 final. – Commission v Council (C-176/03): Student presentation EC Environmental Law – JUR 5520 - Spring 2008

Concluding comments • Schools of thought in environmental policy: soft ecology, deep ecology, ecofeminism. • Other sub-tendencies: gaia hypothesis, bio-centrism, radical ecology, … Thank you for your attention! EC Environmental Law – JUR 5520 - Spring 2008