ECJ Case Law
Inadequate protection for European hamster in France
The European Court of Justice declared that France failed to ensure strict protection of the European hamster (Cricetus cricetus). The case arose out of infringement procedures instigated by the Commission. We have previously discussed the Opinion of Advocate General Kokott on the matter in our newsletter (issue 2011/2), her advice was largely followed by the court.
Results of a count of the European hamster made it clear that this species was possibly threatened with extinction in the near future. There were no populations above the minimum viable threshold of 1 500 and the number of burrows observed fell from more than 1 160 to less than 180 between 2001 and 2007. By letter of 5 June 2008, the Commission sent a reasoned opinion to the French Republic claiming that the Member State had failed to fulfil its obligations under Article 12(1)(d) of the Habitats Directive (92/43/EEC). Hereunder, Member States are required to take measures to establish a system of strict protection for certain animals in their natural range, prohibiting deterioration or destruction of breeding sites or resting places.
Considering that the measures that were taken by France were inadequate to mediate the loss in breeding sites, the Court upheld the Commission’s action stating that France failed to establish a programme of measures to ensure strict protection. The claim that the usage of nitrates in agriculture led to deterioration of breeding sites was rejected however.
* Case C-383/09 Commission v. France09/06/2011
This reference for a preliminary ruling concerns the question whether obligations under the Environmental Impact Assessment (EIA) Directive 85/337 may be excluded through a formal move of a legislative authority. Under Article 1(5) of that directive, projects adopted trough a specific act of national legislation are excluded from the EIA Directive. This could lead to Member States excluding EIA obligations by elevating local administrative measures to a specific act of national legislation, as happened in this case.
The applicants in the case brought actions at the Belgian Conseil d’État (Council of State) against administrative planning consents for projects centered around the development of airports. The Parliament of the Walloon Region adopted a Decree in which it ratified several of the administrative consents. Thereby it effectively transformed the administrative decisions into specific acts of national legislation. The measures are thus possibly excluded from the EIA Directive by virtue of Art. 1(5). The Conseil d’État referred the matter to the ECJ.
Advocate General Sharpston is of the opinion that legislative acts are only excluded from the scope of that directive when the legislative body has substantively fulfilled the objectives of the Directive. This entails that, by some means, the safeguards as provided under the Directive need to be kept in place. To that end, she finds that it is necessary to consider the wording of the act concerned but also the substance of the legislative procedure in order to determine whether those objectives have been fulfilled. If they have not been fulfilled, the legislative act should be disregarded by the national court and the legality of the administrative consents should be examined as such. She adds that article 10a of the EIA Directive and article 9 of the Aarhus Convention require that a national court must be able to ascertain, either of its own notion or by reference to another court enjoying appropriate jurisdiction, whether or not the act is excluded because the legislative procedure has achieved the objectives in question.
Cases C–128/09 to C–131/09, C–134/09 and C–135/09 Boxus and others v. Region Wallone12/05/2011
The International Energy Agency (IEA) has estimated that energy related CO2 emissions for 2010 have been the highest in history. 80% of projected emissions for 2020 have furthermore already been locked in for the power sector, as they come from plants that are already existing or under construction. This substantial increase in CO2 emissions and the locking in of future emissions indicates a severe setback to reaching the global climate goal of a rise in temperature to no more than 2ºC. These are some of the main findings in the annual ‘World Energy Outlook’ an important energy market analysis and projections publication by the IEA. The EU Commissioner for climate action Hedegaard has responded with worry to these numbers. “One wonders how many more worrying figures the world needs,” she said. She pressed for more action while noting that the EU has seen a decrease in emissions that are regulated by the ETS system, the EU’s emission trading scheme. From 7 until the 17 June 2011, the UNFCCC will also hold an intermediary climate change conference where these issues are discussed further.
Nature and Agriculture
EP backs CAP report leaving budget unchanged
On 25May 2011, the agriculture committee of the European Parliament said that the budget for EU agriculture needs to remain as it currently stands in order to enable farmers to meet challenges they face in producing enough food while contributing to environmental protection. The report was issued by the German MEP Albert Dess from the European Peoples Party (EPP) and represents the EP’s first response to the European Commission paper on the Common Agricultural Policy (CAP) in 2020. Evidenced by no less than 1267 amendments that were proposed for the report, it received mixed appreciation and was not without controversy.
The parliamentarians support leaving the EU agriculture budget intact, but propose reforming the Common Agricultural Policy (CAP). Therein direct investments will be coupled to European goals of innovation and sustainability. A fairer distribution of the CAP budget amongst the member states was another aspect of the report. Currently older member states receive for instance more support than the latest twelve EU members that acceded to the Union. The lawmakers also stood behind an EU-wide “incentivisation” system, completely financed by the EU. This system is to support farmers engaging in sustainable production methods and sound management of resources such as water, soil and energy.
Commission want to bring down noise levels for cars
By September 2011 the EU Commission is expected to bring forth a review of the current EU noise pollution norms for cars, lorries and buses. Environmental groups and health organizations have welcomed a Commission’s announcement at a conference organized by Transport & Environment (T&E), the European Environmental Bureau (EEB) and the Health and Environment Alliance (Heal) but at the same time asked for standards that approach more the World Health Organization’s (WHO) recommendations for avoiding dangerous health impacts from traffic noise pollution. The announcement came after a publication study that was ordered by the EU by consultant TNO which found that implementing vehicle noise limits that cut in half traffic noise is beneficial to society and outweighs the costs of introducing quieter vehicles by a factor of twenty to one. New limits will come into force within four years of a new Vehicle Noise Directive being agreed, the Commission’s representative said.
Reducing plastic bags in Europe, Commission seeks views
The Commission started a public web-based consultation running until August 2011 wherein it asks if charging and taxation would be effective to reduce plastic bag usage, or if other options such as an EU-level ban on plastic carrier bags would be better. Opinions will also be sought on increasing the visibility of biodegradable packaging products, and boosting the biodegradability requirements for packaging. European rules lay down that in 2012 one fifth of all plastic waste needs to be recycled. Action has already been taken by some member states to reduce the use of plastic carrier bags through e.g. pricing measures and bans on certain types of bags, like the ban by Italy on the sale of non-biodegradable shopping bags (discussed in our news service 2011/3).
Each year the average EU citizen consumes approximately 500 plastic carrier bags, and most of them are used only once. Currently no specific measures exist at the EU level. In March 2011 EU environment ministers discussed the environmental impact of plastic carrier bags and the concerns they raised indicated that effective EU action is needed (see news service 2011/3). The consultation suggests a first step towards an EU wide policy on the usage of plastic carrier bags.
– Regulation for nuclear energy: ready for an adequate testing of a new generation of nuclear power plants? –
Amsterdam, June 22
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Wybe Th. Douma (T.M.C. Asser Institute, The Hague)
Han van Gellecum (T.M.C. Asser Institute, The Hague)
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