EEL News Service Issue 2011/10 of 14 December 2011

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A new element has been added to the EEL website and News Service. Very important news items are now announced with the help of Twitter. This allows you to stay up to date with development in European Environmental law on an immediate basis. You can follow those announcements on the Twitter of our Editor in-chief Dr. W. Th. Douma by clicking on “Follow” at this link.

Added to ECJ Case Law

Spain held to be in breach of EIA and Habitats Directives

Case C-404/09, Commission v. Spain, 24 November 2011

The Commission claimed that Spain had authorized mining on six sites in violation with EU environmental protection laws. Notably the open-case coal mines in and around the ‘Alto Sil’ special protection area were said to have been illegally granted operation permits as no full environmental impact assessment or measures to protect vulnerable habitats and species were adopted. Accordingly, the Court had to decide whether Spain complied with the requirements imposed by the special protection area designation.

It observed that Spain had the obligation to make projects likely to have significant effects on the environment subject to a requirement of consent and an impact assessment under Directive 85/337/EEC on the effects of certain public and private projects on the environment (EIA Directive). Also, the mining site is subject to the Birds (Directive 97/49/EC) and the Habitats (Directive 92/43/EC) directives, making it necessary for Spain to adopt measures for the prevention of the deterioration of the habitats of the species in the area. The Court took note that the EIA and Habitats directives in conjunction required Spain to evaluate the presence of particularly vulnerable species in the protection area in order to include those in a complete impact assessment.

It became evident that Spain failed to comply with this obligation in regards to the local brown bear. Moreover, the Court considered the assessments to be characterized by gaps and the lack of definitive findings. Because the assessments could not remove all reasonable scientific doubt as to the effects of the projects, the competent national authorities could not have acquired certainty of the operations impacts. Also, the Court regarded the continued inaction of Spain towards the significant disturbances in the protection areas as a failure to take, in good time, necessary measures to cease such situations, as is required by the Habitats Directive.

The Court also ruled upon the possibility of justifying a failure to comply with the Habitats directive by reason of the importance of the mining for the local economy. The Court held that this justification can only be relied upon if the State has fully assessed the impacts on the environment beforehand. As the competent authorities failed to produce a full EIA, Spain could not rely upon this justification.

The Court held accordingly that Spain, by illegally authorizing those operations, breached its’ obligations under the EIA and Habitats directives.


Added to Legislation

Commission adopts Emission Trading Registry Regulation

The Commission has adopted a regulation which established a registry for the European Union for the third trading period of greenhouse gas allowances commencing on 1 January 2013. Regulation No 1193/2011 of 18 November 2011 establishing a Union Registry lays down the general as well as the operational and maintenance requirements for the third trading period. Additionally, the regulation shall details the procedures concerning the independent transaction log for the trading registry.

This regulation forms part of the ongoing preparations for the transition to a single registry. The preparations particular concern the inclusion of the aviation industry in the Emissions Trading System (ETS) for greenhouse gas allowances within the EU. The single registry will be activated in ‘two steps’. In the first step the registry will be partially activated as to allow airlines to open their accounts and receive free allowances. The full activation of the registry marks the second step. The timeline established that the first step is to take place by the end February of 2012, whilst the second step will not take place before June 2012.

This regulation has been adopted pursuant to the ETS Directive 2003/87 and to Decision 280/2004/Econ Monitoring Mechanisms,


Commission proposal for authorizing GMO Cotton

The Commission adopted a proposal for a Council Decision authorizing the placing on the market of GMO cotton products. The authorization concerns food and feed containing, consisting or produced of the genetically modified cotton “281-24-236×3006-210-23”. The request for placing on the market was submitted by Dow AgroSciences Europe to the competent authority of the Netherlands on 22 June 2005, in accordance with Regulation No 1829/2003/EC on genetically modified food and feed (GMO Regulation).

As of Arts. 6 and 18 of that Regulation, The European Food Safety Authority has to assess the safety of the genetically modified organism and deliver an opinion in that regards. On 15 June 2010, the European Food Safety Authority gave a favorable opinion in accordance with the GMO Regulation. It considered that the organism is as safe as its non-genetically modified counterpart regarding the potential effects on human and animal health or environment. It concluded that the placing on the market of the products from the modified cotton is unlikely to have any adverse effects on human or animal health or the environment.

The draft for this Commission decision has been voted for by the Standing Committee on the Food Chain and Animal Health on 9 February 2011. 14 Member States voted in favor, 10 Member States voted against and 3 Member States abstained.

Consequently, the Commission had to submit a proposal relating to the measures to be taken in accordance with Art. 35 of the GMO Regulation, and did so by authorizing the placing on the market of the GMO cotton products in question.

Application for placing on the market

Scientific Report of the EFSA

Proposal for a Council Decision authorizing the placing on the market


Added to Climate Change

Durban: Outcome of the Climate Change Conference

Following two weeks of negotiations on climate change, negotiators in Durban agreed to start a process with the view to adopt a new regime by 2015 at the latest, and on numerous other issues. EU Commissioner for Climate Action, Connie Hedegaard, regarded the adoption of the roadmap to a new agreement as a success for the European Union, ‘having achieved its key goal for Durban’.

The agreement to initiate a process to develop “a new Protocol, another legal instrument or agreed outcome with legal force” that will be applicable to all Parties to the UN climate convention, i.e. both developed and developing states, was reached on the last day of the conference after endless negotiations. All contracting parties to the UN Framework Convention on Climate Change (UNFCCC)will engage in the development of such a regime. The instrument is to be decided upon by 2015 at the latest and come into force in 2020, according to the Durban platform decision .

In the press conference at the end of the conference a question was raised on the difference between the proposed text stipulating the need for a “legally binding” instrument, which India amongst others rejected, and the adopted text of an outcome “with legal force”. As for the legal nature of a new instrument, a host of options is opened up, but whatever option is chosen, it needs to have legal standing, Christiana Figueres (Executive Secretary of the United Nations Climate Change Secretariat), explained. It remains to be seen whether the adopted text will give countries opposing action against climate change ammunition to keep resisting legal obligations.

Delegates also agreed upon a second commitment period of the Kyoto Protocol, although it is not yet decided whether such a period will span 5 or 8 years. According to the decision on the outcome of the AWG-KP, States who are willing to take part in a new commitment period will submit information on their quantified emission limitation and reduction objectives (QELROs) to the UNFCCC by May 2012, scheduled for an adoption by COP18 at the end of next year. The European Union has already committed itself to a 20% greenhouse gas emissions reduction target. However, Canada (that announced its withdrawal from the Kyoto Protocol immediately after the end of the Durban conference), Japan and Russia have already announced that they will not ratify the agreement on the second commitment period.

In the last edition of the EEL News Service of 2011 we will provide you with a first hand assessment on Durban by our Co-Editor in-Chief Leonardo Massai, who worked as negotiator at the conference.

EU Press Release on Durban Outcome


“Anti-EU ETS” Bill enters U.S. Senate

In October 2011 we reported that the lower house of the US House of Representatives passed a bill which prohibits US aircraft operators to participate in the Emission Trading Scheme of the EU. The “European Union Emissions Trading Scheme Prohibition Act of 2011” also instructs US officials to negotiate or take any action necessary to ensure that US aviation operators are not ‘penalized’ by the EU directive. Many members of the House consider the ETS scheme ‘misguided and illegal’.

As the bill received overwhelming support in the House of Representatives, the draft law has been introduced to the US Senate by Republican Senator John Thune on 7 December 2011. The Bill would enable the U.S. Department of Transportation to “take necessary action to ensure America’s aviation operators are not penalized by any tax unilaterally imposed by the E.U.”

Press Release of Senator Thune


Aviation ETS judgment possibly by the end of December

The highly anticipated judgment in case C-366/10 will be rendered already before the end of the year. This is according to an EU diplomatic source at the United Nations climate conference in Durban. The scheme which includes aviation in its regulatory framework as of the 2012 has been challenged before a UK Court which referred the case to the ECJ. As already reported, Advocate General Kokott concluded in her opinion that the EU ETS is in conformity with international law. The ruling has previously not been expected before early 2012. The ECJ Judicial Calendar confirmed that the judgment will be delivered on 21 December 2011. We will report on the findings of the Court in that case in the next edition of the News Service.


Added to General

Commission takes Poland to Court for implementation failures

The Commission is referring Poland to the ECJ for failing to transpose the Air Quality and Marine Policy Directives. The Commission took the decision on 24 November 2011 as Poland did not transpose the Directives by June and July of 2010 and also failed to act according to the final warning of February 2011.

Following the reasoned opinion of the Commission regarding Poland’s failure to implement Directive 2008/50/EC on Ambient Air Quality, the Polish authorities informed the Commission that they were drafting the main transposing measures. However, the law still has not been adopted. Poland also failed to communicate the transposing measures for Directive 2008/56/EC, the Marine Strategy Framework.

The Commission requested the Court to fine Poland a total of €131,000 per day between the date of the judgment of the court and the full transposition of the measures. The Commission acts upon new rules. The new rules, of Art. 260(3) TFEU (ex 228 EC), allow the Commission to ask the Court for such financial sanctions to be imposed at the first referral to the Court, without having to return to the Court for a second ruling, as used to be the case, introduced by the Treaty of Lisbon on imposing lump sum or penalty payments when Member States fail to notify measures transposing a directive.

Moreover, the Commission gave Poland a final warning concerning the failure to identify enough nitrate vulnerable zones under theDirective 91/676/EEC on Nitrates.

Press Release of the Commission


Commission refers Spain to Court

The Commission decided on 24 November 2011 to refer Spain to the ECJ for failure to comply with Directive 2002/91/EC on Energy Performance of Buildings. The Directive requires domestic methodologies and certificates for calculating the energy performance of buildings. The Directive aims to achieve a significant reduction in energy consumption of buildings and in this way combat global warming. However, the Spanish law implementing the Directive only applies to new building and existing building undergoing major renovations, contrary to the Directive which covers all types of buildings. The Commission had already requested Spain to comply with the Directive in November 2010, however, the compliance has not been achieved yet.  Accordingly, the Commission initiated an infringement procedure against Spain before the Court.

Press Release of the Commission


Commission reminds Member States of Environmental Obligations

On 24 November 2011 the Commission reminded a number of Member States of their failure to transpose various EU environmental rules into their domestic law:

France and the Czech Republic have not yet fully implemented Directive 2009/28/EC on the promotion of the use of energy from renewable sources. The directive is intended to remove administrative barriers in order to provide free access of renewable energy to the electricity infrastructure as well as sustainability aspects of the production of biofuels. Neither France nor the Czech Republic have put in place domestic legislation which adequately implements the Directive. The Commission has formally requested both States to bring their national legislation in line with the Directive.

Slovenia has been reminded of the Ecodesign Directive. Directive 2009/125/EC progressively bans low efficiency energy using devices from the internal market and aims to replace such devises with products with a better environmental performance. Preliminary examinations of the implementing measures by Slovenia show that the updated scope of application of the Directive, a wider definition of energy-related instead of energy-using products, has not been transposed yet. Thus, the Commission send a reasoned opinion to Slovenia to bring its national legislation in line with EU rules.

Ireland has been asked to adjust its implantation of the Water Framework Directive. Directive 2000/60/ECestablished a measures for protecting water by imposing the obligation upon Member States to adopt a cost recovery policy for water services based on the “polluter-pays” principle in order to account for environmental and resource costs of water use. Ireland’s measure to implement the Directive however only covers cost recovery to the supply of drinking water and disposal and treatment of wastewater. The Commission is of the opinion that water services have to be seen in a wider notion, including water abstraction for cooling purposes in the industry. Thus, the Commission has asked Ireland to adjust its national rules accordingly.

Finland was asked to demonstrate implementation of Green Vehicles Directive. Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles obliges Member States to utilize its purchasing power to promote ‘green vehicles’. This applies to public purchases of road transport vehicles, setting forth that authorities have to take into account energy consumption and CO2 emissions when purchasing vehicles. Finland failed to inform the Commission of the relevant measures regarding public procurement. It is because of this lack of communication concerning the trans-positioning of the Directive that the Commission has asked Finland for information on how it has implemented the measure.

The Commission also reminded each Member State that it may meet further inaction with referrals to the ECJ.







Wybe Th. Douma (Senior Researcher T.M.C. Asser Institute The Hague and Lecturer of International Environmental Law, The Hague University)

Leonardo Massai (Senior Lecturer on International and EU Environmental Law, University of Lille)



Maximilian L. Garré (T.M.C. Asser Institute, The Hague)



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