Brief Introduction to EU Environmental Law Dr. Kleoniki Pouikli - - PowerPoint PPT Presentation
Brief Introduction to EU Environmental Law Dr. Kleoniki Pouikli Course Director in Public Law, ERA Academy of European Law EJTN ADMINISTRATIVE LAW PROJECT JUDICIAL TRAINING ON EU ENVIRONMENTAL LAW WEBINAR, 25 MAY 2020 1 Outline
Course Director in Public Law, ERA Academy of European Law
EJTN ADMINISTRATIVE LAW PROJECT JUDICIAL TRAINING ON EU ENVIRONMENTAL LAW
WEBINAR, 25 MAY 2020
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, Greenpeace)
conservation)
1992; Desertification Convention 1994)
➢Treaties
➢Regulations, Directives, Decisions & Recommendations
➢MEAs to which EU has become a member; customary international law
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Article 5 TEU: The use of EU competences is governed by the principles of subsidiarity and proportionality
➢In areas which do not fall within its exclusive competence, the EU shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level ➢The content and form of Union action shall not exceed what is necessary to achieve the objectives
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➢Preserving, protecting and improving the quality of the environment ➢Protecting human health ➢Prudent and rational utilization of natural resources ➢Promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change
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➢EU Policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the EU. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
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➢In preparing its policy on the environment, the EU shall take account of: ▪ Available scientific and technical data ▪ Environmental conditions in the various regions of the EU ▪ The potential benefits and costs of action or lack of action ▪ The economic and social developments of the EU as a whole and the balanced development of its regions ➢Within their respective spheres of competence, the EU and the Member States shall cooperate with third countries and with the competent international organizations.
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General legal basis for the adoption of environmental measures by the institutions of the EU
“The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in
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decide how.
electric and electronic equipment; freshwater fish
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➢Very important role of the Court of Justice of the European Union (CJEU) in the interpretation of the EU Law in general ➢The Court relies on a purposive interpretation as well as principles of proportionality, natural justice, certainty, equality and protection of fundamental rights ➢It has significantly contributed to the development
Law / many environmental cases ➢Infringement procedures by the Commission (art. 258 TFEU) or by a Member State (art. 259 TFEU) ➢Judgments on preliminary reference (art. 267 TFEU)
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‘The Union shall work for [..] aiming at a high level of protection and improvement of the quality of the environment’
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Aims at environmental protection through preventive measures → prevention is “better than cure” Traced back to the Trail Smelter arbitration (US v Canada, 1941) → Obligation to protect other states from injurious acts Requires a due diligence/due care of states Requires states to take appropriate measures Enshrined in International Law:
− Principle 21 of the Stockholm Declaration 1972 − Principle 11 of Rio Declaration 1992 − International Court of Justice (ICJ) Pulp Mills case (2010): i. principle of prevention is a binding principle customary international law, ii. its origin ought to be seen “in the due diligence that is required in its territory”
EU Law
− 1st Environmental Action Programme: “best environmental policy consists in preventing...pollution and nuisance” − Numerous EU secondary legislation (EIAD, WFD, IED)
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▪Historic origins are usually traced back to its codification in the German Federal Emission Control Act in 1972 (Vorsorgenprinzip) and in Swedish domestic environmental law. ▪First international endorsement followed in 1982 when the United Nations (UN) General Assembly adopted the UN Charta for Nature ▪Express reference to the precautionary principle was then made in the 1987 London Declaration at the Second International Conference on the Protection of the North Sea. ▪Principle 15 of the Rio Declaration 1992: In order to protect the environment, the precautionary approach shall be widely applied by all States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost‐effective measures to prevent environmental degradation. ▪1993:inserted into the Treaty & numerous EU Secondary laws (REACH) ▪Article 3 UNFCCC
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▪ States should not wait to take preventive measures in case there is no clear or convincing scientific evidence of a clearly established causal link between an activity and its effects to the environment (or health) or between the input of substances and energy in the environment and their effects. Its objective is to avoid potential risks.
Precautionary principle Prevention principle
✓ Ambiguous cause/effect relation ✓ Risk cannot be calculated ✓ Acting before proof of a future damage ✓ Aims to avoid emergence of an uncertain damage ✓ Unambiguous cause/effect relation ✓ Risk can be calculated ✓ Acting before occurrence of a damage ✓ Aims to avoid emergence of damage
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2000: European Commission Communication on Precautionary Principle:
− pursues the aim to inform all interested parties how the Commission intends to apply the precautionary principle and to establish guidelines on the application of the principle − structured approach to the analysis of risk, including risk assessment, risk management and risk communication − recourse to the principle presupposes that a risk cannot be determined with sufficient certainty − measures taken need to be, inter alia,
➢ proportional: measures have to be put into relation to the chosen level
➢ non‐discriminatory: comparable situations should not be treated differently ➢ consistent with similar measures already taken: comparable measures in equivalent areas with regard to which scientific data is available ➢ based on potential cost/benefit examination: short and long term, also including non‐economic considerations
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❖First mentioned in the Recommendation on Guiding Principles concerning International Economic Aspects of Environmental Policies of the OECD (26 May 1972) ❖Developed in the First Environment Action Programme 1973-76 ❖Introduced into the Treaty 1987 through SEA ❖Features prominently in waste directives, the Industrial Emissions Directive and the Environmental Liability Directive but has less of a role to play in e.g. nature conservation ❖Extremely careful definition provided by Principle 16 of the Rio Declaration (“should endeavour to promote the internalization of environmental costs and the use of economic instruments”, taking into account”, “in principle”, “due regard to the public interest”) indicates that the competent actors enjoy a broad scope of discretion as to how to implement the polluter pays principle.
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Four ‘functions’ 1. Economic integration principle
▪ Used to avoid state aid to national enterprises in the form of anti-pollution measures
2. Cost allocation principle
▪ Seeks to ‘internalise’ externalities, i.e. cost-allocation (redistribution) ▪ Requires the polluter to take responsibility for pollution
3. Pollution abatement principle
▪ A ‘general’ principle whereby pollution control measures are adopted to reduce pollution (preventative function)
4. Liability Principle
▪ Used as a principle of liability when specific incidents of pollution occur
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Problems of definition →
▪ who is the polluter?
▪ How much should he pay?
▪ Wider issues of how to monetise environmental harm
▪ Where used as base for liability
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Introduced into EU law by the Amsterdam Treaty in 1999
▪ Preamble TEU, Art. 3 and art. 11 TFEU (all without defining it) ▪ Lisbon European Council 2000:
economic growth’ ▪ Goteborg European Council 2001:
requires dealing with economic, social and environmental policies in mutually reinforcing ways.’
In 2005 the Commission identified
migration, management of natural resources, global poverty and challenges to development as requiring SD action
2006 Council Declaration laying down SD strategy while also identifying ten principles and seven main challenges
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Brundtland:
▪ ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’
Three ‘pillars’
▪ Economic development ▪ Social development ▪ Environmental protection
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Social development
▪ Equality and justice (intra-generational) ▪ Brundtland pointed out that many environmental problems are associated with poverty ▪ Int. environmental law – common but differentiated responsibility ▪ ‘Social cohesion’ central to EU definition (focus on job and growth creation
Economic development
▪ Art. 3TEU
▪ Adv. General Leger Case C-371-98 SD ‘emphasises the necessary balance between various interests which sometimes clash, but which must be reconciled’
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Inserted into the Treaty in 1987 through SEA → Environmental damage should as a priority be rectified at source Case C-422/92 Commission v Germany
▪ A German provision requiring the disposal of waste to take place in Germany was found to be compatible with the Treaty
Case C-2/90 Commission v Belgium
▪ A ban on the import of waste into the Walloon region was upheld by reference to the principle
Note specific circumstances of cases
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✓Waste Law & Policy ✓Water Law and Policy ✓EU Nature Protection Legislation ✓Air and Noise Pollution ✓Chemicals Regulation ✓Climate Change
✓Environmental Impact Assessment Procedures ✓Industrial Emissions ✓Environmental Liability & Environmental Crime ✓Access to information, public participation in decision-making, access to justice ✓EU Emissions Trade System ✓Ecolabel
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“ensure the application of the Treaties, and of measures adopted by the EU institutions pursuant to them” ➢ Commission as “Guardian of the Treaties” Benefits of ensuring implementation Design of EU policy on implementation and enforcement Better Regulation and Fitness Check: Monitoring role Compliance promoting tools: support to implementation Enforcement: EU Pilot & infringement procedure (258 TFEU)
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2015
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2013
2012
2011
2010
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▪ Non‐transposition ▪ Non-conformity of transposition ▪ EU financial interests ▪ Non‐compliance with Court judgments ▪ Systemic breaches of EU law
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Member States --> ▪ Commission notifies breach to Member States concerned, which may submit observations → Letter of formal notice ▪ If breach is not remedied, Commission may issue ‘reasoned
▪ If breach continues after date set by COM, they may bring Member State before the Court ▪ Member State must comply with Court’s judgment; if it does not, Commission may bring another case and Court may impose fine
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Thank you for your attention! kpouikli@era.int