ECJ Case Law
German public body exempted from access to information requirement (AG opinion)
This reference for a preliminary ruling concerned questions by the German Federal Administrative Court regarding obligations under Directive 2003/4/EC on public access to environmental information. Under the directive, public authorities are required to make environmental information available upon request. However, Member States are allowed to exclude public bodies from this requirement when they are acting in a legislative capacity. In addition, access to environmental information may be refused if disclosure would adversely affect the confidentiality of proceedings of authorities, but only where such confidentiality is provided for by law.
Flachglas Torgau, a glass manufacturer in Germany covered by the EU emissions trading system (EU ETS), requested the Federal Ministry for the Environment to provide information concerning the law on the allocation of EU allowances (and on the legislative process leading to the adoption of this law). The ministry refused to provide those information and the referring German court is asking the ECJ to assess the extent to which this refusal was in accordance with directive 2003/4/EC.
In her assessment, Advocate General Sharpston found that legislative bodies may in accordance with Directive 2003/4/EC be excluded from the definition of ‘public authority’, even when they are merely submitting or commenting on legislative proposals. Consequently they are not under an obligation to provide access to environmental information. She also found that this is only applicable for the time up until the end of the legislative procedure concerned. Questions furthermore arose regarding constitutional provisions that, at the time of the adoption of the directive, allowed for review of the relevant decisions by the Federal Ministry for the Environment. According to Flachglas Torgau, Article 2(2) of the directive prevents Germany from excluding a body from the definition of ‘public authority’ when such review is possible. The Advocate General however embraced a different reading and found that the specific part of the provision that Flachglas Torgau relied on merely represents an option for the Member States. Art. 2(2) then does not stand in the way of denying access to information.
* Case Case C-204/09Flachglas Torgau v Germany22/06/2011
National case law
President District Court The Hague orders Dutch State to refrain from approving Malaysian timber certificate MTCS
(Voorzieningenrechter Rechtbank ’s-Gravenhage), 394978 / KG ZA 11-585 , 20 June 2011
LJN: BQ8470 ( http://www.rechtspraak.nl/ljn.asp?ljn=BQ8470 )
Dutch policy aims at procuring only sustainably produced products. It demands inter alia that wood and wood products bought by government actors is sustainably produced and legally harvested. An independent Timber Procurement Assessment Committee (TPAC) is to advice the Minister on certificates that prove the wood is sustainable by testing it against Dutch criteria. TPAC advised to not approve the Malaysian Timber Certification Scheme (MTCS), notably because the rights of indigenous people are not sufficiently warranted, and because the conversion of forests into other forms of land use (like rubber plantations) is not properly dealt with. The Malaysian stakeholder appealed this negative advise. Meanwhile, the Minister announced that he planned to allow the Malaysian wood certified under the MTCS as of 1 July 2011, in spite of the negative advise. Greenpeace asked in a provisional relief procedure to declare this plan illegal, which the judge agreed to. Together with others organisations, Greenpeace had prepared a report in which satellite images showed that protected forests had in fact been harvested. The Dutch State was ordered to refrain from allowing the MTCS as long as the judicial decision on the advice has not been taken. If that decision would confirm the negative advise and the Minister would nevertheless still want to approve the MTCS, he can do so only six weeks after the judicial decision, in order for Greenpeace to start another provisional relief procedure. The judge was not impressed by the fact that the UK, Denmark, Germany, France and Belgium had allegedly already approved the MTCS under their procurement systems, notably because these countries form only five of the 27 EU member states.
See also the Greenpeace information sheet Malaysian Timber Certification Council – Sustainable Certification Imposters http://www.greenpeace.org/international/Global/international/planet-2/report/2004/2/malaysian-timber-certification.pdf and the detailed report MTCC, Conversie en Inheemse Volken (in Dutch) from Greenpeace Nederland, Stichting Nederlands Centrum voor Inheemse Volken, ICCO, Vereniging Milieudefensie and Wereld Natuur Fonds, http://www.greenpeace.nl/Publicaties-2011/MTCC-Conversie-en-Inheemse-Volken/
Companies in the EU are leading in green energy use
On 28 May 2011 the results of a worldwide survey on energy use (CREX 2011) were made public. The survey showed that about 40% of large companies within the EU have utilized green energy in 2010, compared to 22% and 3% of the companies respectively in the US and in Japan. The survey was executed by Bloomberg New Energy Finance and commissioned by wind-energy company Vestas, it was directed at the 1000 biggest companies in the world and found that the total amount of green energy consumption amounts to 12.1%. Three out of four respondents to the survey indicated that they had increased their usage of green energy between 2009 and 2010.
On 27 May 2011, the European Commission published important key figures on energy consumption in the EU. Total renewable energy consumption for the EU increased from 4 to 9 percent in the last decade and the European Commission confirmed that the EU is currently on track to meet the 20% target.
European Commission publishes the new proposal for energy efficiency Directive
On 22 June 2011 the European Commission published a proposal for a new energy efficiency directive. The Commission brought forward this proposal after a call for action by the European Council, the Energy Council and the European Parliament.
The purpose of this proposal is to increase energy saving measures and reach the 20% decrease in energy usage for 2020. On 8 March 2011 the Commission had already established a new energy efficiency plan (see further on this EEL news service 2011/2) wherein a number of measures were identified by all economic sectors in order to enable further energy savings.
The directive does not establish any legally binding target but it lays down specific requirements on the public sector regarding the renovation of buildings (3% of buildings must be renovated from 2014 onwards) and setting high energy-efficiency standards in the purchase of new buildings. Governments must install a number of additional efficiency measures for the energy supply sector. These should include national plans to ensure that energy retailers reduce customer consumption by 1.5 percent, compared to the previous year.
Nature and Agriculture
European Parliament in favor of national right to ban GMOs
On 5 July 2011, the European Parliament voted on a draft regulation that is geared towards providing member states with more flexibility to independently ban genetically modified crops (GMOs). According to the proposed regulation, Member States should have the possibility to, within their borders, ban GMOs that are permitted within the EU by the European Food Safety Authority (EFSA). The proposal provides for restrictions on the basis of, environmental grounds but also socio-economic impacts of GMO cultivation and grounds related to land use. An addition was further added which provided for the imposition of bans in the event of persistent scientific uncertainty. To give more weight to bans based on environmental concerns, the legal basis of the proposal was altered, from Article 114 (internal market) to Article 192 (environment). The draft amendment received wide support and was adopted with 548 votes in favour, 84 against and 31 abstentions. It will now go to the Council for further deliberation.
The proposal had earlier met with quite some contention as it was thought to possibly erode the internal market (through allowing for differing rules regarding the movement of goods within the member states) and possibly fall foul of international trade rules imposed by the WTO. For more on this see further News Service 2011/3 and a discussion on the initial proposal by the Commission on the EEL website. The Commission’s initiation proposal did not include the option for member states to ban GMO crops on environmental grounds but the Parliament is now set to incorporate this into the regulation through their amendments.
Mainstreaming Climate Change in Development Cooperation
Theory, Practice and Implications for the European Union
Cambridge University Press
Joyeeta Gupta and Nicolien van der Grijp (eds)
This book explains the linkages between climate change, development and development cooperation and tackles the politically delicate, complex questions related to these selected fields. In doing so it combines theoretical, political, and practical perspectives. The book looks at the development of aid theory and at lessons learned from climate assistance. It provides a valuable resource for anyone working in connected areas, be they politicians, academics, or non-state actors.
Nicolien van der Grijp is a senior researcher at the Institute for Environmental Studies at the VU University Amsterdam, where she coordinates the European Law and Policy cluster.
Joyeeta Gupta is professor of climate change law and policy at the VU University Amsterdam and of water law and policy at the UNESCO-IHE Institute for Water Education in Delft.
See for further details Cambridge University Press
Michael-Kloepfer prize and colloquium of the Institute for Environmental and Technology Law (IUTR) of the University of Trier
Michael-Kloepfer prize of the Institute for Environmental and Technology Law of the University of Trier
The IUTR offers a prize of 4000 euro for the best German language legal monograph on environmental law. Deadline is 31 March 2012. For details see the website www.iutr.de .
Colloquium of the IUTR (Trier)
On 1 and 2 September 2011 the 27th colloquium of the IUTR will take place. This German language conference deals with substances law. For more information see www.iutr.de .
4th International Conference ‘Nuclear Dilemmas: Present and Future’ (Asser Instituut)
Date: Tuesday 30 August 2011
Location: Peace Palace – Carnegieplein 2 The Hague
· Uri Rosenthal, Minister of Foreign Affairs of The Netherlands
· Kanat Saudabayev, Secretary of State of Kazakhstan
· Disarmament challenges in a changing world
· Non proliferation: strengthening the enforcement regime
· Nuclear renaissance: need for a new safety & security pillar?
· Panel discussion
The full programme is available at: www.asser.nl/events.aspx
Protection of the Environment in Armed Conflict: Testing the Adequacy of International Law’ (Asser Instituut)
Date: Monday 7 November 2011
The conference will deal with the adequacy of international law in protecting the environment during situations of armed conflict.
More information will follow shortly and be made available at: www.asser.nl/events.aspx
Trainee European Environmental Law Network (EEL)
The European Environmental Law Network (EEL) is looking for an enthusiastic trainee to support the general activities of the Network, including editing the EEL website and News Service. Applicants are sought with a strong English language proficiency and familiarity with European Law. Experience with European environmental law is considered to be an asset.
Location: Asser Instituut, The Hague
Starting date: 1st September
Applicants are requested to submit their applications (including a CV and motivation) here
(Dutch) Themacoördinator/Woordvoerder Verkeer (0,8 fte) – Milieu defensie
Milieudefensie (Friends of the Earth Netherlands) is looking for a theme-coordinator and representative for the transportation department. The successful candidate will have chief responsibility for the theme transportation which is one of the three principal themes that Milieudefensie is currently working on. He will actively contribute to the general vision of Milieudefensie and to the development of the transportation theme, determine the strategy, lobby and represent Milieudefensie towards the public, media and other relevant parties.
Location: Amsterdam, Netherlands
Deadline: 25 July
Wybe Th. Douma (T.M.C. Asser Institute, The Hague)
Leonardo Massai (Senior Lecturer on International and EU Environmental Law, University of Lille)
Han van Gellecum (T.M.C. Asser Institute, The Hague)
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