Added to Case Law, ECJ:
* C-176/03, Commission v. Council
ECJ 13-09-2005, nyr
The Council wanted to improve environmental protection in the EU by adopting Framework decision 2003/80/JHA, in which a number of environmental offences are laid down, in respect of which the Member States are required to prescribe criminal penalties. The legal basis for this instrument is Title VI of the EU Treaty in the version prior to the coming into force of the Nice Treaty (i.e. the intergovernmental – 3d pillar – provisions on police and judicial cooperation in criminal matters).
The Commission was of the opinion that a correct legal basis would be Article 175 EC Treaty, and thus that the regular Community method (1st pillar) should be followed. It asked for the annulment of the Framework decision (supported by EP). Also, it initiated a The ECJ found that Articles 1 to 7 of the Framework decision have as their main purpose the protection of the environment, and thus that they could have been properly adopted on the basis of Article 175 EC. It recalled that Article 47 EU Treaty states that nothing in the EU Treaty is to affect the EC Treaty. As the entire framework decision is indivisible the ECJ found that it encroaches on the powers which Article 175 EC confers on the Community and decided to annul it. The judgment is of general importance as it clarifies the limitations to the use of 3d pillar instruments rather than 1st pillar instruments.
* C-281/03, Cindu Chemicals and Others
ECJ 15-09-2005, nyr
Responding to questions posed by a Dutch court for interpretation, ECJ found that the Directive 76/769/EEC on marketing and use of dangerous substances, as amended by Directive 94/60/EC, must be interpreted as not permitting a Member State to impose on the placing on the market and use of products in question any conditions other than those which the directive lays down. At the source of the dispute were two decisions by Holland’s pesticides authorisation board not to permit use of wood preserving chemicals containing coal tar distillates including creosote in one case and copper-chrome-arsenic in the other. Critical to the ECJ’s ruling was the fact that the dangerous substances directive is based on the EU treaty’s article on furthering the internal market.
* C-221/03, Commission v. Belgium
ECJ 22-09-2005, nyr
The Court of Justice condemned Belgium as the Flemish and the Wallonia regions failed to comply with the Nitrates directive 91/676. This directive prescribes various steps that the Member States need to take in order to prevent water pollution by nitrates from agriculture. Inter alia, Flanders did not satisfy the rules on codes of good agricultural practice, of indications of vulnerable zones and of the action programs, and Wallonia did not satisfy the indications of vulnerable zones. The complains about the regions’ legislation adopted after date of the Commission’s reasoned opinion in this case were rejected as inadmissible.
* C-122/04, Commission v. Parliament and Council
Opinion AG, not yet available in English
Advocate General L.A. Geelhoed has recommended annulling one article of the EU’s 2003 forest focus regulation No. 2152/2003 on monitoring environmental conditions in forests. The case was brought by the European Commission against EU governments and the European Parliament. A victory for the Commission, which is not yet assured, would reduce the Parliament’s influence in the comitology procedures.
Added to Case Law, ECHR:
* Application No.36220/97, Okyay & Others v. Turkey
ECHR 12-07-2005, nyr
The case concerns the national authorities’ failure to implement the domestic courts’ order to shut down three thermal-power plants which pollute the environment in the province of Muðla, in south-west Turkey. The European Court of Human Rights judged that according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms a right of ten Turkish nationals to a fair hearing had been breached. The relevant part of Article 6 § 1 of the Convention reads: “In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal…”. The Court awards each applicant the sum of 1,000 EUR.
Added to National case law, The Netherlands:
* Council of State 9 September 2005, Case nrs. 200409630/2 and 31 other numbers
The Dutch Council of State dismissed the appeals against the renewed decisions with regard to the CO2 emission rights lodged by Dutch electricity producing companies and others. The judges ruled that the methods applied in reaching the decisions were in conformity with European law. Consequently, for each company the emission rights for the period 2005 – 2007 have been determined. The method used the years 2001 and 2002 as reference years, which was unfair according to some, because of special circumstances, but the judges agreed that the authorities could use the reference years as a basis for their decisions. Also the way in which “newcomers” fit in to the Dutch system was held to be in order.
The original decisions stemmed from October 2004. Numerous companies complaint about these decisions, some of them with success: the Council of State held in an interlocutory judgment of 8 April 2005 that changes were needed. The renewed decisions have fixed the shortcomings of the original decisions, the Council of State decided.
* AWB 04/1003, International Paint a.o. v. College voor de Toelating van Bestrijdingsmiddelen (Pesticides authorisation board)
College van Beroep voor het Bedrijfsleven (Trade and industry appeals tribunal) 26 May 2005
The Dutch Pesticides authorisation board decided on the use of certain copper-containing and antifouling paints. The appellants claimed that these decisions form a forbidden quantitative restriction ex art. 28 EC Treaty and cannot be justified by art. 30 EC. They argued that the decisions were based on outdated documents and that the risk analysis on copper was not made in accordance with the latest scientific knowledge. The judges pointed out that before the disputed decisions were taken, a discussion had taken place between the European Commission, the Scientific Committee on toxicity, eco-toxicity and the environment (SCTEE) and the Dutch government about the scientific aspects of risk analysis. The SCTEE found that the Dutch system did not provide an adequate scientific basis and pointed out that the biological availability of copper needed to be taken into account, even when this is difficult. The disputed decisions were made without asking the Commission and/or the SCTEE for clarification. The decisions of the Dutch Pesticides authorisation board were annulled as these had not been prepared in a careful manner.
Added to Case Law, WTO:
* US — Gasoline, Dispute DS2
Venezuela and Brazil complained that a US gasoline regulation discriminated against complainants’ gasoline in violation of Articles I and III GATT and Article 2 TBT. The Panel found the US regulation to be inconsistent with GATT Article III:4, and rules that the Article XX exception could not be used. The US appealed and the Appellate Body modified the panel report on the interpretation of GATT Article XX(g), but concluded that Article XX(g) was not applicable in this case.
* US — Shrimp, Dispute DS58
In 1996 India, Malaysia, Pakistan and Thailand alleged violations of Articles I, XI and XIII of GATT 1994, as well as nullification and impairment of benefits, due to a US ban on importation of shrimp and shrimp products from these countries. The Panel found that the import ban as applied by the USA was inconsistent with Article XI:1 of GATT 1994, and cannot be justified under Article XX of GATT 1994. The Appellate Body reversed the Panel’s finding that the US measure at issue was not within the scope of measures permitted under the chapeau of Article XX of GATT 1994, but concluded that the ban, while qualifying for provisional justification under Article XX(g), fails to meet the requirements of the chapeau of Article XX.
* EC — Hormones (USA) Dispute DS26
In 1996 the USA claimed that EC measures taken under the Hormones Directive restrict or prohibit imports of meat and meat products, and are inconsistent with GATT Articles III or XI, SPS Agreement Articles 2, 3 and 5, TBT Agreement Article 2 and the Agreement on Agriculture Article 4. The Panel found that the EC ban was inconsistent with Articles 3.1, 5.1 and 5.5 of the SPS Agreement. The EC appealed. The Appellate Body upheld the Panel’s finding that the EC ban was inconsistent with Articles 3.3 and 5.1 SPS, but reversed the Panel’s finding that the EC ban was inconsistent with Articles 3.1 and 5.5 SPS. On the general and procedural issues, the AB upheld most of the findings and conclusions of the Panel, except with respect to the burden of proof in proceedings under the SPS Agreement. See also `WTO news` on this web site.
* EC — Hormones (Canada) Dispute DS48
In 1996 Canada claimed that EC measures taken under the Hormones Directive restrict or prohibit imports of meat and meat products, and are inconsistent with GATT Articles III or XI, SPS Agreement Articles 2, 3 and 5, TBT Agreement Article 2 and the Agreement on Agriculture Article 4. The Panel found that the EC ban was inconsistent with Articles 3.1, 5.1 and 5.5 of the SPS Agreement. The EC appealed. The Appellate Body upheld the Panel’s finding that the EC ban was inconsistent with Articles 3.3 and 5.1 SPS, but reversed the Panel’s finding that the EC ban was inconsistent with Articles 3.1 and 5.5 SPS. On the general and procedural issues, the AB upheld most of the findings and conclusions of the Panel, except with respect to the burden of proof in proceedings under the SPS Agreement. See also `WTO news` on this web site.
* WTO hearing on EU’s US beef ban
On 12 September 2005 the WTO opened its first public trade dispute process in Geneva. The subject is trade in hormone-treated beef between the EU, the USA and Canada. Use and thus importation of such meet was banned in EU since mid-1980s, but in cases DS48 and DS26 the USA and Canada the WTO Appellate Body decided that the EU’s scientific methods used to arrive at the hormones ban were insufficient. The dispute went on, and US and Canada imposed trade restrictions on the EU as retaliation for the hormones ban. The question at stake now is whether to reverse these duties and end the trade restrictions.
* Commission Decisions adopted pursuant to Article 9 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC
These decisions relate to National allocation plans notified by Member States to the Commission for the trading period 2005 to 2007
* Council Decision 2005/673/EC of 20 September 2005 amending Annex II of Directive 2000/53/EC of the European Parliament and of the Council on end-of-life vehicles
Decision updated exemptions to a general EU ban on the use of six heavy metals in vehicles exemptions passed under the EU end-of-life vehicles directive in 2002. Most controversial among the changes is an extension by 3 years, until 1 July 2008, for continued use of nickel cadmium (NiCad) batteries in electric vehicles. The decision also extends by 1 year to 1 July 2006 allowable uses of lead in certain applications. It introduces an entirely new exemption, running to 1 July 2007, for cadmium in certain optical components. It also closes from 1 July 2008 a previously open ended exemption for the use of lead in bearing shells and bushes and further tightens a strict limit on lead content of copper used in brake linings, effective from 1 July 2007.
Added to Policy areas, Air, Policy Documents:
* Communication from the Commission Thematic Strategy on air pollution, COM (2005) 446 final of 21 September 2005
EU action has focused on establishing minimum quality standards for air. This Strategy sets out a long term perspective for cleaner air in Europe and it will be reviewed in 2010 and this will be part of the final evaluation of the 6th EAP.
Added to Policy areas, Climate Change, Policy Documents:
* Communication from the Commission Reducing the Climate Change Impact of Aviation,
COM(2005) 459 final, 27 September 2005
Emissions from international flights from EU airports will by 2012 have increased by 150 % since 1990. This growth in the EU’s international aviation emissions would offset more than a quarter of the reductions required by the Community’s target under the Kyoto Protocol. This Communication is a basis for discussion with other European institutions and stakeholders on internalising the environmental costs of aviation emissions into the EU Emission Trading Scheme.
Added to Policy areas, General, Policy Documents:
* Communication from the Commission Outcome of the screening of legislative proposals pending before the Legislator COM(2005) 462 final, 27 September 2005
Commission aims to ensure that all pending legislative proposals are fully consistent with the political priorities of the Commission and to check whether changed circumstances justify a review of the initial approach followed. Two types of action are envisaged: a) 68 proposals considered not to be consistent with the Lisbon objectives or Better Regulation principles are to be withdrawn. b) 5 proposals (on Fluorinated gases, Shipment of waste, Signature of convention on aircraft mobile equipment, VAT travel agents and VAT Administrative cooperation) are to be maintained in the legislative process but with economic analys is to be presented to the assessment of the legislative authority.
Added to Reviews:
* Regulating Modern Biotechnology in a Global Risk Society. Challenges for Science, Law and Society, 2005
J. Somsen, Vossiuspers UvA, Amsterdam, 2005, 35 pages
Text of the inaugural lecture delivered on the occasion of the appointment to the chair in Biotechnology and Law at the University of Amsterdam.
* Report on the Green Paper on Energy. Four Years of European Initiatives. 2005
DG Energy and Transport, Commission of the European Communities, 2005, 20 pages
The Green Paper entitled `Towards a European Strategy for the security of energy supply` was published in 2000. Over four years many measures have been taken to meet with key challenges such as managing demand, development of internal resources and diversifying the external resources – analysed in this report.
Added to Upcoming Events:
* 11 October 2005, Natuurbeschermingsrecht. Basiscursus,Utrecht, Netherlands
* 12 October 2005, Eco-taxes in the New EU Member States, Berlin, Germany
* 17-18 October 2005, Nuclear Energy in Europe Conference, Brussels, Belgium
* 31 October – 1 November 2005, Carbon Finance 2005, London, UK
* 21 November 2005, Reducing Greenhouse Gas Emissions from Aviation, London, UK
* 24 November 2005, Environmental decision-making exemplarily applied to dockyard waste waters, Hamburg, Germany
* 24 – 25 November 2005, Renewable Energy in Europe, London, UK
* 29 November – 2 December 2005, Pollutec, Paris, France
* 27 February – 2 March 2006, European Wind Energy Conference, Athens, Greece
Added to Who’s Who, National Editors:
* Maribel Rodrigues
The EEL Team is glad to welcome Maribel Rodrigues who has taken upon herself the task of keeping up to date the national page on Spain.
Added to Dossiers:
* Updates to the Environmental Liability Dossier
Links to some new publications on Environmental Liability were added.
Added to Job Postings:
* Economic Analyst
The Environment Agency has a visible impact on areas such as infrastructure and economic policy. Needed is a person playing a major role: using economics to inform problems, and enjoy the unique challenges to this field. More information at http://www.environment-agency.gov.uk/jobs
Wybe Th. Douma (T.M.C. Asser Institute, The Hague)
Jens Hamer (Academy of European Law, Trier)
Daria Ratsiborinskaya (Institute of European law, MGIMO-University, Moscow)
Marco van der Harst, Julien J.M. Simon
(T.M.C. Asser Institute, The Hague)