LLM 2010/11

EU ENVIRONMENTAL LAW I

Session I

Structures

Core Institutional Actors

European Commission

DG Environment (Janez Potočnik)

DG Climate Change (Connie Hedegaard)

DG Energy (GuntherOettinger)

Secretariat General (Catherine Day)

European Parliament

Council of the European Union

Permanent Representatives (eg UKREP)

Court of Justice of the European Union

PHASE I 1972-1987

• Economic basis for most environmental laws• Emphasis on legal standards• Council of Ministers unanimous voting and very much in

charge• Rapid creation of new body of law discrete to environment

(waste, water, air)• Little on integration• Little on enforcement

PHASE II 1987-2000

• Explicit environmental basis in Treaty• Developing ECJ case-law• Procedural emphasis in laws• European Parliament more co-decision• Implementation and Enforcement

Phase 3 2000- 2007

• Limits of traditional regulation (search for other solutions - agreements, economic instruments, information)

• Integration into other areas• More emphasis on governance and rights• Coping with new wave of accession states

Phase 4 2007 -

• Global leadership and then loss of confidence on climate change (Copenhagen, emissions trading etc.)

• Secretariat General pushes for regulatory reform, more focused enforcement

• CAP Reform 2010 onwards and Common Fisheries Reform 2012

• Coping with enlargement• More cooperative approaches with Members States and

more opportunity for diversity• Constitutional Treaty and Lisbon build up

ENVIRONMENT AND THE TREATIES

• EC Treaty 1957• 1972 Heads of Government call for environment action

programme from the Commission• First programme [1973] OJ C 112/1• Legal measures started in 1975 based either on Art 94

(single market) or Art 308 (reserve power)• Unanimous voting by Council and consultation only with

European Parliament

Acceleration 1987 - 1992

• Single European Act 1987 Environment provisions (Art 130 r )

Maastricht 1991

• Art 2 fundamental task “sustainable growth…respecting the environment”

• Art 3(k) ‘a policy in the sphere of the environment”• Integration principle strengthened• Adds precautionary principle in Art 130r (2)• Environmental Policy now ‘contributes’ to objectives• Measures at international level now explicit.• Subsidiarity principle becomes overarching• Qualified majority voting except for certain defined areas (fiscal,

land use planning, general structure of energy• Co-decision for single market measures• Action programme now decided by Co-decision with Parliament

AMSTERDAM 1997 (in force 1999)

• ‘balanced and sustainable development’ objective in TEU• High level of environmental protection in Art 2 TEC• Environmental integration principle moves up to Art 6• Co-decision procedures for most environmental measures

(Art 175 and Art 95 aligned)• Strengthens market based provisions concerning higher

standards for Member States and makes procedures explicit

• No right to healthy environment

NICE 2003

• Charter of Human Rights agreed 2000• NICE Failed to clarify legal status of Charter of

Human Rights• Some loosening up of voting procedures but

confusion• Declaration in importance of promoting

environmental protection globally

LISBON 2007 (came into force December 2009)

• Recasts Treaties. EU and EC merge into European Union TEU and TFEU

• Objectives of Union (Art 3) now include “work towards sustainable development of Europe”

• Integration principle still present (Art 13 TFEU) but now equal status with other integration principles

• Environmental principles Art 191-193• Climate change enters language of fourth goal• New title on Union Energy Policy (Title XXI)• Enforcement procedures before ECJ strengthened• Direct access to ECJ may be opened up a little

CHOICE of LEGAL BASIS

• Why the obsession with legal basis?

CHOICE - General approach by Court

• Must be based on objective criteria• Merely because measure has environmental goals doesn’t

make it environmental • Merely because environmental measure has market

implications doesn’t make it market• If legislative procedure incompatible, only one legal base• Centre of gravity test.

TO2 Case C 300/89 1991 ECR I-2867

• Choice of legal basis objective factor not choice of parties - based on aims (recitals) and contents

• Main or incidental purpose core test - centre of gravity doubted

• But if two aims then two legal basis - here aims inextricably linked

• But cooperation procedure and unanimity procedures not compatible so has to be one

TO2 Case

• Legislative procedure under 100A 「 cooperation)

• “…participation reflects a fundamental democratic principle that the peoples should take part in the

exercise of power through the intermediary of a representative assembly”

Commission v Council (Energy Star) C 281/01• Agreement with US and Community on recognition of

energy labelling office equipment• Commission based on Art 133 (CCP), Council 175

(environment)• Preamble stresses energy saving and environment• Two legal bases if inseparably linked objectives but

predominant objective determines• Agreement has direct impact on trade in office equipment -

environmental effects indirect and distant. Commercial policy objective predominant.

• Opinion 2/00 Catagena Protocol on trade in GMOs - environment predominant so Art 175

C-155/91 Commission v Council [1993] ECR I-939

• Waste Framework Directive• Many individual waste laws based on single

market. • But ECJ hold that central concerns of Directive

with environment and rectification at source

C-42/97 Parliament v Council (Linguistic Diversity) [1999] ECR I-869

• Linguistic programme - industrial policy or culture?

• Fact that measure has twin goals does bring it outside the predominant purpose rule

• Each component had to equally essential and dissociable

• Reg 842/2006 states that Art 175 basis but for 3 Articles Art 95 (single market)

• C-178/03 Reg 304/2003 on export of chemicals held by court to be based on both Art 133 (external trade) and 175 (environment). But co-decision procedure chosen no reason

• Split directives - eg directive on waste from electrical products (art 175) but directive on banning hazardous products in electrical products (Art 95) but conflicts with End of Life Vehicles Directive (Art 175)

Current Position

• Products (single market)• Production (environment)• Procedures (environment)• Nature protection (environment)• Waste - inconsistencies)• Other Treaty provisions (agriculture energy etc.) -

predominant goal and note integration principle)

Community law

• Regulations - immediate effect within legal systems

• Directives (unique to EU) obligation of Member State to do what is necessary to achieve goals but discretion as to how.

Directives

• Old view “helpful if eccentric recommendations to be gently eased into the scheme of things, ideally by circular and ideally without costs” (D Wyatt)

• ECJ insists that most provisions must be transposed by law not administrative practice

• ECJ develops direct effect doctrine - some precise and certain provisions by be invoked in national courts against the State

Legislative Acts

• What should guide choice of Directive or Regulation?

Directive or Regulation?

• Treaty does not give real guidance• ECJ no principles• Regulations tend to be used for novel areas or where

cross border direct implications (shipment of wastes) • Directives where process and procedure involved• Lisbon PROTOCOL ON THE APPLICATION OF THE

PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY may push towards directives