EEL News Service Issue 2011/7 of 3 October 2011

Added to ECJ Case Law


* Foodstuff with involuntary GMO traces subject to safety assessment

ECJ Case C-442/09 Bablok and others vs. The Land of Bavaria, 6 September 2011

The preliminary ruling answers questions of the Bayerische Verwaltungsgerichtshof (Germany). The domestic proceedings arose between the Land (Region) of Bavaria and several beekeepers (Bablok and others) regarding traces of genetically modified corn in honey and the classification of that honey. The Court had to decide whether such honey falls within the scope of the EU regulations requiring prior approval for placing on the market and labeling of products containing GMOs. The Court considered that pollen derived from genetically modified corn fall outside the meaning of ‘GMO’ due to the total loss of the ability of transferring the genetic material. However, even where the pollen is incapable of transferring the genetic material, the honey containing the pollen constitutes a foodstuff ‘containing ingredients produced from GMOs and is accordingly subject to EU pre-market safety assessment requirements. Such a classification is necessary since the potential risk to human health is present despite the unintentional entering of the pollen into the honey. There is no tolerance threshold applicable to the authorization and supervision obligation regarding foodstuffs containing GMOs. The Court, following the opinion of Advocate General Y. Bot, made the labeling of unintentional GMO traces in foodstuffs obligatory, thus emphasizing the objective of protecting human health of the EU regulatory framework.


As a result of this ruling, beekeepers could face considerable impairments to their honey sales due to the obligation of prior approval and labeling if their honey shows traces of GMOs. Given the involuntary change in position, beekeepers might lodge claims for damages against those who introduced the GMOs into the nature, as Mr. Bablok did. The judgment could also impact the import of foodstuffs with traces of GMO that have not been authorized within the legal order of the EU.


* Netherlands Emission Trading Scheme constitutes State Aid

ECJ Case C-279/08 P  European Commission vs The Netherlands, 8 September 2011

The ruling addresses the appeal of the Commission to the judgment of the General Court on the Dutch NOx emissions trading scheme. The case originated in a decision adopted by the Commission that the Dutch emission trading scheme for nitrogen oxides constitutes State aid.  The scheme sets an emissions ceiling for large industrial facilitates. A company which stays below this limit may sell the surplus emissions, which can be quite profitable. Companies exceeding the emissions cap escape fines by buying emission allowances. The General Court decided that the scheme did not constitute State aid, as it applies to all NOx facilities and as it is justified in terms of environmental protection. The Court of Justice overturned this judgment, ruling that the Court must look at the impact of the scheme and not the objective of environmental protection. The scheme provides an advantage to a small group of large companies with high emissions, and hence is selective, as these companies can trade emission rights which constitute State resources. The judgment suggests that State resources are involved if a company complies with emissions limits through the acquisition of emission allowances in order to avoid fines. As most schemes would include fines as a sanction, emission trading schemes might need to be redesigned.



*Seal product ban remains in place

General Court case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council, 6 September 2011

The Court ruled that the motion for the cancellation of the European ban as laid down in Regulation (EC) No 1007/2009 on seal products is inadmissible. Seventeen organisations, including Inuit Tapiriit Kanatami which is Canada’s largest Inuit group, lodged their appeal against the regulation, which established the embargo, of the Parliament and Council. The groups argued that the embargo would destroy the local indigenous people’s seal-hunting, making them directly affected and being therefore admissible. The Court had to establish whether the applicants were indeed directly affected. The Court noted that the regulation directly affects only the legal situation of those who are active in the placing on the market of the European Union of seal products. The regulation does not prohibit seal hunting, which takes place outside the European market. Thus, the general prohibition of placing on the market established by the regulation may have consequences for the business activities involved, in this case seal hunting, but cannot be regarded as resulting directly from the regulation itself. The Court concluded that possible economic consequences of the prohibition of the placing on the market do not affect the applicant’s legal situation, but only their factual situation. The Court consequently deemed the complaint as inadmissible.



Added to WTO Case Law


* WTO Dispute Settlement Panel on Tuna – Dolphin

DS 381 Us – Tuna II (Mexico), 15 September 2011

The Panel ruled on US dolphin protection measures, a topic that already lead to two unadopted decisions in the pre-WTO period. The WTO Panel ruled that the US rules on a voluntary labelling scheme, allowing for labelling of tuna caught without killing dolphins when detailed requirements are met, were constituting mandatory technical standards under the TBT Agreement that were unnecessarily trade restrictive. A dissenting Panel member pointed out that in a voluntary labelling scheme, labelling requirements are not mandatory for marketing products and thus do not constitute mandatory technical requirements. The US policy disallowed “dolphin-safe” labeling on tuna caught in the eastern Pacific with purse-seine nets. Those nets can entrap, in addition to the targeted tuna, unwanted marine life such as dolphins, and are used by Mexican fishermen.

The Panel did find that the measures applied by the US were not discriminating against Mexican products, and that the use of international fishing standards was not effective enough to achieve the US objective. Nevertheless, the US measure was found to be WTO inconsistent as it was disproportionate to the legitimate objectives pursued according to the Panel. The labeling provisions were found to be more trade-restrictive than necessary in the light of the objectives of informing consumers and protecting animal health. A less trade-restrictive alternative that would achieve a level of protection equivalent to that achieved by the US measure was available, the Panel concluded. It also found that the label only partly fulfilled the aim of dolphin protection as it fell short of addressing the mortality caused by other tuna fishing methods outside the eastern Pacific. The USA can appeal the Panel report.

For news on the EU protection of dolphins, see Commission COM(2011)578 of 21 September 2011 on the implementation of certain provisions of Council Regulation (EC) No 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98.



Added to Legislation


*Commission adopts benchmark rules for allocation of free emissions allowances to airlines

The Commission adopted a decision on 26 September 2011 regarding the aviation industry and the fight against climate change. The decision includes benchmark values which indicate to airlines how many emission allowances they will receive for free each year up to 2020, allowing airlines to make determination upon investments in modernising their fleets and improving fuel efficiency. Aviation is a new economic sector included in the EU’s emissions trading system as of 2012. The formal allocation of free emission allowances will be carried out by Member States. The Commission expects that the impact on ticket prices will be limited, the costs per ticket of a transatlantic flight increasing by 2 Euro.

The EU measures are objected to by some non-EU countries, as shows from a shared declaration published on 30 September 2011 by the Indian government. A group of 26 countries, including China and the USA, claims that the EU measures violate international law (which the EU denies) and plan to issue a formal complaint at the upcoming ICAO meeting in November.


Commission Decision 2011/638/EU



Added to Policy


* Barrosos plea for the Durban climate change conference

J.M. Barroso outlines requirements for a comprehensive, robust and most importantly legally binding framework for Durban for post Kyoto (2012). It is vital that the agreements reached in Cancun are being made more concrete and no hesitations occur in going further in Durban as not to compromise a global agreement on climate change post – 2012. The Commission’s President stated that a new agreement must include all major emitters as well as a clear roadmap and timeline, the EU being willing to consider a second (Kyoto) commitment period. Mr. Barroso also pointed out certain ‘gaps’ which need to be addressed. Those include a gap in the greenhouse gas reduction targets, market sectors as agriculture and air transport, as well as a ‘funding gap’ which in his view is an essential part to catalyze investments for the future global agreement.



Added to General


* Europe financing destructive land investments

A recent report by Oxfam (Land and Power) illuminated that investments in land in developing countries lead to widespread dispossessions, violations of human rights and undermine the livelihood of rural communities. An area of 227 million hectares (the size of Western Europe) of land has been sold or leased over the past ten years, mostly to international investors. Many of those investments occur in a manner which undermines and ignores the principle of free, prior and informed consent of land users. The land users often lack the power to claim their rights effectively or to defend their interests, resulting in forced evictions – many of them violent – with little or no compensation at all. The report points to a Ugandan example where 20.000 land users have been forcefully evicted to make way for the plantation of a UK based forestry company utilizing the land for carbon credit production. Strikingly, this investment has been supported by EIB financing which should mean that the EU standards are to be applied as far as possible. Particularly large land investments are being made due to biofuel demand, leaving eleven villages in Indonesia struggling for their farm land as investors expand their palm oil plantations. The Inequity of power between the investors and local communities place European foreign investment standards on a stress test, as they are not followed through by local authorities and private investors.


Oxfam – Land and Power



Added to Agriculture


* EU Agri-Environment support poorly designed

The European Court of Auditors reports that ambiguous objectives and prioritization issues cause aid to be spent inefficiently, hampering the success of the Agri-Environmental support. The Agri-Environement scheme, as part of the Common Agricultural Policy, provides farmers with financial incentives and support to commit themselves to agricultural practices protective of the environment. The auditors were tasked to assess whether the scheme was well designed and managed. The auditors found that the objectives determined by Member States are rarely verifiable to allow for progress and efficiency to be measured. The objectives are too numerous and not specific enough for assessments, making it difficult to monitor potential achievements. Moreover, the policy implementation didn’t occur on a basis of clearly identified environmental issues, 39% of the aid contracts failing to address specific environmental issues in the area around the farm. The auditors also observed that there is a lack of a selection process of beneficiaries, 90% of the aid being given on a non-priority basis. The auditors concluded that the policy fails to address main concerns such as biodiversity and climate change, and that the current design isn’t capable of delivering tangible environmental benefits.


European Court of Auditors Special Report No7/2011



Added to Events

* UPEACE Symposium on Climate Change, Water Stress, Conflict and Migration

The symposium focused on climate change as one of the causes of conflicts and migration in various parts of the world. The key topics included the legal, policy and scientific aspects of climate change induced migration and the responsibility of the international community in this changing world. The recommendations of the working groups can soon be found at .

Location: International Institute of Social Studies, The Hague

Date: Wednesday, 21 September 2011


*Recent Jurisprudence of the European Court of Human Rights on Environmental Law

This two day seminar is hosted by the Academy of European Law and aims at providing in-depth knowledge of the increasing body of case law by the ECHR in the field of environmental law. Key topics include the obligation on state authorities, the most important sources of pollution subject to legal proceedings as well as the right to access information on environmental matters. The seminar will include a visit to a hearing before the ECHR. Information on the conference are available here.

Location: Strasbourg, France

Date: 29-30 November 2011






Wybe Th. Douma (T.M.C. Asser Institute, The Hague)

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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