EEL News Service Issue 2011/8 of 28 October 2011

Added to ECJ Case Law


EU Emission Trading Scheme for Aviation in line with International Law

AG Opinion Case C-366/10, Air Transport Association of America and Others, 6 October 2011

The reference for a preliminary ruling is made by the High Court of Justice of England and Wales in a proceeding between the Air Transport Association of America and others against the UK Minister for Energy and Climate Change. The applicants are challenging the measures taken by the UK to implement Directive 2008/101, which includes the aviation sector in the EU emission trading scheme (ETS). They claim that, by including international aviation in the ETS, the EU is in breach of international law. Advocate General Kokott advised on the matter and investigated whether the validity of the Directive can be reviewed against several international agreements (especially the Chicago Convention, the Kyoto Protocol and the ‘Open Skies Agreement’ between the European Union and the United States of America) and customary international law, as well as the compatibility of the measure with those sources. The AG found that only two provisions from the invoked international agreements can serve as a benchmark for review and that customary international law could not be relied upon for a benchmark at all. In her finding, the AG considered that the EU is not a party to some of the agreements invoked, such as the Chicago Convention, and therefore is not bound by its obligations. Also, as a rule, individuals cannot rely upon those sources of law as they primarily establish legal relations between the contracting parties (States), having no legal effect on the status of individuals. Moreover, the AG takes the view that the Directive does not give rise to any legal objections with the sources relied upon. Further, the Directive is not of an extraterritorial character which could infringe the rights of third countries, notably because an adequate territorial link exists for the flights in question (namely the fact that the place of departure or destination is an aerodrome within the territory of the EU), allowing for the flights to be included in the EU ETS.

The final judgment of the ECJ will be of great importance not only to the European climate change policy, but also the relationship between EU law and international law, between the EU and the USA (a topic that is dealt with below) as well as the reliance upon international law by individuals in order to challenge EU legislation.

Whilst various NGOs and the UK’s climate change Ministerwelcomed the conclusion of the AG, the Air Transport Associaiton of America as well as the IATA expressed their disappointment over the opinion and reaffirmed their opposition towards the measure.

Press release


EIA Directive not easily sidestepped by legislative acts

Joint Cases C-128/09 to C-131/09, C-134/09 and 135/09, Boxus and others v. Region Wallone, 18 October 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 act of a legislative authority. Under Article 1(5) of that directive, projects adopted trough a specific act of national legislation fall outside of the scope of the Directive, if certain conditions are met. The references have been made in the course of proceedings brought by persons living near two Belgian Airports and a railway line against the Walloon Region regarding consents for works granted on those installations. The Parliament of the region adopted a Decree in which it ratified several of the administrative planning consents, effectively transforming the administrative decisions into specific acts of national legislation. Thereby the projects were possibly excluded from the EIA Directive by virtue of Art. 1(5). The Conseil d’État referred the matter to the ECJ.

The Court considered that a specific legislative act adopting a project must, if it is to come within the scope of Art. 1(5), be specific and display the same characteristics as a consent of that kind. The project must also be adopted in detail and include all the elements of the project relevant to the environmental impact assessment. Also, the legislative acts are only excluded from the scope of that directive when the legislative body has substantively fulfilled the objectives of the Directive. Accordingly, the Court is of the opinion that it is necessary to consider the wording of the act concerned as well as the substance of the legislative procedure involved. This requirement is to ensure that the safeguards of the Directive are kept in place. Thus, the national court has to verify that those conditions have been satisfied, taking into account both the content as well as the procedure of the act adopted.

Conversely, a legislative act which ‘only’ ‘ratifies’ a pre-existing administrative act without a substantive legislative process, cannot be regarded as an act sufficient to exclude a project from the scope of the EIA Directive. In its ruling, the Court followed the opinion of AG Sharpston.

The ruling of the Court limits the possibility of Member States to exclude EIA obligations by transforming local administrative measures to a specific act of national legislation, as happened in this case, and thereby circumventing the safeguards put in place by the EIA Directive.

Other cases recently decided dealing with the issue of impact assessments and consultations include Case C-53/10 as well as Case C-474/10.


Conditions for provisional prohibitions of GM Maize

Joined Cases C-58/10 to 68/10, Monsanto SAS and Others, 8 September 2011

This preliminary ruling has been made in context of multiple proceedings in France between various applicants, amongst others Monsanto SAS, and the French Minister for Agriculture and Fisheries. The domestic dispute concerns the lawfulness of provisional national measures which suspended the transfer and use of GM maize seeds. Accordingly, the ECJ had to decide whether and under what conditions a Member State can adopt provisional suspension or prohibition measures for GMO products. Pivotal to the issue was the question of the correct legal basis for such a suspension. Directive 2001/18/EC allows for such measures by a MS directly and on its own initiative, whilst Regulation 1829/2003 allows for the adoption of such measures only when the Commission has been officially informed of the need for such measures and when the Commission has subsequently failed to act.

The Court took note that in the present cases the GM seeds had previously been authorized for planting and were notified as ‘existing products’ subject to a pending application for renewal of authorization. It decided that in such circumstances Member States may not have recourse to the safeguard clause of Directive 2001/18/EC to adopt provisional suspension measures. However, the Court stated that such emergency measures may be adopted under Regulation 1829/2003, given that both substantive as well as procedural conditions have been complied with. Therefore, regarding the procedural conditions,  Member States must inform the Commission ‘officially’ of the need to take emergency measures. Only if the Commission fails to act, the Member States may adopt interim measures, which must be immediately communicated to the Commission and the other Member States. The ECJ comes to these findings by interpreting these procedural conditions not only in the light of the wording of the applicable provision, but also in the light of the precautionary principle. With regard to the substantive conditions, Member States need to establish, additionally to the urgency, the presence of a situation which is likely to constitute a clear and serious risk to human or animal health or the environment. Here, no reference is made to an interpretation of these substantive conditions in the light of the precautionary principle.

In its judgment, the Court observed that in the light of the overall scheme provided for by Regulation No 1829/2003 and its objective of avoiding artificial disparities in the treatment of a serious risk, the assessment and management of a serious and evident risk ultimately come under the sole responsibility of the Commission and Council, subject to review by the EU Courts. As a consequence of this judgment, national courts do have jurisdiction to assess the lawfulness of measure as in the present case as long as no decision has been taken at the EU level. Accordingly, where a decision has been adopted at the EU level concerning the risk of a GM product, the factual and legal aspects of this decision become binding on all Member States as well as their bodies, including its courts.


Use of human embryos for purposes of scientific research is not patentable

Case C-34/10, Oliver Brüstle v. Greenpeace e.V., 18 October 2011

The reference for a preliminary ruling originates in an issue regarding the validity of a patent by the scientist Mr. Brüstle. Greenpeace applied for annulment of the patent of Mr. Brüstle to the German Federal Patent Court, which the Court granted on the ground that the patent was invalid as it covered processes for obtaining precursor cells from human embryos. The patent holder appealed this verdict at the Federal Court of Justice, which referred the question of patentability of the process to the ECJ. The European Court had to answer what the term “Human Embryos” of Directive 98/44/EC, on the legal protection of biotechnical inventions, entails, as well as whether a process of human embryo removal for scientific purposes is patentable.

Firstly, the Court considers that the concept of “human embryo” must be understood that any human ovum after fertilization and any non-fertilized ovum into which a human cell nucleus has been transplanted as well as non-fertilized ovum whose division and further development have been stimulated constitute a ‘human embryo’. This is due to the context and aim of the Directive, intended to exclude any possibility of patentability where respect for human dignity could be thereby affected.

The Court concluded that scientific research entailing the use of human embryos cannot access the protection of patent law. The Court reasoned that the grant of a patent for an invention implies an industrial or commercial application, as the use of human embryos cannot be separated from the patent itself and the rights attaching to it. Thus, scientific applications of human embryo extractions for scientific aims do not avoid exclusion of the patentability.


Cumulative Interests weighed in access to environmental information

Case C-71/10, Office of Communications v. Information Commissioner, 28 July 2011

This reference for a preliminary ruling has been submitted by the Supreme Court of the United Kingdom following proceedings between the Office of Communications and the Information Commissioner. The issue arose as an epidemiologist requested access to the precise location of mobile phone base stations, which was denied. The ECJ was asked to answer, interpreting Directive 2003/4/EC on public access to environmental information, how exemptions for disclosure had to be weighed against reasons for disclosure.

The Court took note that in the present case, concerns of public security and intellectual property rights were stacked against the public interest of the researcher exploring possible health effects of the masts. Thus, it had to be examined by the Court if the reasons for refusal can be weighed cumulatively against the reason for disclosure. The Court observed that the concept of ‘public interest served by disclosure’ of that Directive must be regarded as an overarching concept which covers more than one ground. Therefore, a number of separate interests, such as awareness of environmental matters, free exchange of views and participation in decision making, may cumulatively militate in favor of disclosure. The Court held that the concept of ‘interest served by refusal’ is an overarching concept as well. Hence a competent public authority may, in considering the overarching reasons for and against the disclosure, evaluate cumulatively the grounds for refusal to disclose.

Whilst the judgment of the Court might appear restrictive, it has to be acknowledged that it also reaffirmed that reasons for disclosure can be considered cumulatively.


Added to Legislation

Eurovignette directive entered into force

The new framework Directive 2011/76/EU on the charging of heavy good vehicles for the use of certain infrastructuresentered into force on 15 October 2011. The Directive, which revised the “Eurovignette” directive of 1999, aims at reducing pollution from road freight transport as well as improving the traffic flow by introducing levying tolls that factor in the cost of air and noise pollution due to traffic. Also, the levying is to reduce road congestion, reducing the risk of “unnecessary” pollution. In contrast with the former framework directive which was limited to trans-European roads, the new rules may now be extended to cover all motorways. Member States may apply an “external cost charge” on lorries in order to achieve those goals. The level of tolls will be dependent upon the emissions of the vehicle, the distance travelled, as well as the location and time of the road use. Hybrid and electrical heavy goods vehicles are exempted from the measure. The differentiated tolls are intended to stimulate the transition to transport patterns which are more environmentally friendly. The Directive must be transposed into domestic law of the Member States by 16 October 2013.

Directive 2011/76/EU


Special Conditions on Feed and Food from Japan

The European Commission adopted Implementation Regulation No 961/2011 imposing special conditions governing the import of feed and food originating in or consigned from Japan following the accident at the Fukushima nuclear power station. The Commission acted in light of information regarding contamination of certain foodstuffs and feeds, such as milk, spinach and crops. The Regulation stipulates that all food of animal origin must be introduced through a Border Inspection Post and all other food through a Designated Point of Entry. Additionally, prior notification must be given in both cases two weeks before the estimated entry. Importations of foodstuffs and feeds from prefectures which are likely to have been affected by the accident must be accompanied by an analytical report containing the results of sampling and analysis. Foods exceeding the maximum levels of contamination set out in the Regulation are not to be placed on the market and must be safely disposed of or returned to the country of origin.

Implementation Regulation No 961/2011


Commission adopted Nanomaterial Recommendation

The Commission has adopted a Recommendation (2011/696/EU) ‘on the definition of nanomaterial’. The common definition sets out that “Nanomaterials” are materials whose main constituents have a dimension of between 1 and 100 billionth of a meter. The field of application of those materials is very wide, ranging from large scale industrial utilization to foodstuff alterations. Especially the latter sparked the Commission’s action, bearing in mind possible risks for the environment and human health. The theoretical food alterations include lowering the fat, sugar or salt content of foodstuffs. The scientific community is uncertain what effect nanomaterial have on the environment and the body and what long term effects of exposure to nanomaterial could be. The Recommendation therefore marks a pre-emptive step towards greater protection of citizens by providing EU legislators a reference for nanomaterial when adopting new legislation. An earlier Communication COM(2008)366 reviewed the applicability of existing EU regulations to the potential risks of nanomaterials.

Recommendation ’on the definition of nanomaterial’ – 2011/696/EU



Added to Policy

EU Conditions for prolonging the Kyoto Protocol commitment period

At the meeting of the EU environment ministers in Luxembourg on 10 October 2011,  the possibility of a second commitment period of the Kyoto Protocol beyond 2012 was discussed. The Council agreed in confirming the EU’s openness to a second commitment period. It has been reaffirmed that a single legally-binding instrument would be the best framework for the period after 2012. Generally, ministers agreed that Europe will only sign up to a second commitment period if other nations adopt a roadmap and timetable for agreeing on a comprehensive, global and legally binding climate deal in Durban. It has been stressed that a global framework must include all Parties, in particular all major economies, in line with the principle of common but differentiated responsibilities. The Council adopted conclusions which establish the EU position at the 17th Conference of the Parties of the UNFCCC in Durban in December.

Council Meeting Conclusion



Added to General

EU well on track to reach Kyoto goals

The European Commission published a report on 7October 2011 which evaluates the progress of the Union and its Member States towards the Kyoto Protocol obligations, as required by Decision 280/2004/EC. The projections indicate that the EU-15 is well on track to reach its Kyoto target. The report shows that total emissions of in the EU-15 have fallen for the sixth consecutive year, being 12.7% below the base year in 2009. The Commission observed that the declining greenhouse gas emissions of the EU-15 occurred parallel to a GDP growth of those States by almost 37% since 1990. The total EU-27 greenhouse gas emissions in 2009 were 17.4% lower compared to the 1990 levels. However, this does not take into account emissions and removals from land use, land use change and forestry. All in all, the Commission’s report indicates that the EU-15 is well on track to reach its Kyoto target, estimates showing that the target is indeed likely to be overachieved.

Report of the Commission


US lower house allowing airlines to disregard EU ETS

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’. Climate change Commissioner Connie Hedegaard said in that regards “We are confident that the US will respect EU law, as EU always respects US law. […]”.

The scheme which includes Aviation in its regulatory framework as of the 2012 has already been challenged before a UK Court which referred the case to the ECJ. As we already reported, Advocate General Kokott concluded in her opinion that the EU ETS is in conformity with international law. ENDS Europe has recently hosted a seminar on aviation and the ETS. Excerpts of this seminar can be watched on the website of ENDS.



Added to Waste

Environment Committee Aggress on Changes to Tackle E-Waste

The Environment Committee reached a near-unanimous reading on changes to the current waste electrical and electronic equipment Directive. The MEPs aim to simplify the return of small products for consumers and to put in place obstacles for operators who attempt to ship e-waste illegally out of the EU. The Committee agreed that consumers should be allowed to hand in very small appliances to most electrical shops for free in order to establish an alternative to dedicated facilities accepting domestic e-waste. Also, MEPs are in favor of recovery and recycling rates in order to prolong the utilization of functional goods instead of an early scrapping. Importantly, the Committee agreed on measures to prevent illegal shipments of e-waste to developing nations. Illegally exported shipments for processing, notably to Asia and Africa, often fail to respect the health of the workers and the environment. Accordingly, the burden of proof is to be shifted to exporters in order to ensure that their shipment to non-OECD countries only contain reusable goods and no waste.

Press Release



Added to Events

Protection of the Environment in Armed Conflict: Testing the Adequacy of International Law

On 7 November, the T.M.C. Asser Institute, in cooperation with the two other pillars of HILAC (the Hague Initiative for Law and Armed Conflict), the (Amsterdam Center for International Law of the) University of Amsterdam and the Netherlands Red Cross, will organize a conference concerning the protection of the environment in armed conflict. Amongst other things, the conference intends to examine the extent to which the environment could be protected during armed conflict today by analyzing the existing legal framework of international humanitarian and international environmental law. Speakers include Prof. Michael Bothe (keynote speaker), Prof. Terry Gill, Dr. Karen Hulme, Tara Smith, Dr. Erik Koppe, Carl Bruch, Dr. Phoebe Okowa, Vikram Kolmannskog, Adam Koniuszewski, Natalie Barefoot and Wouter Veening. Registration information, route descriptions and a preliminary programe can be found here.

Location: T.M.C. Asser Institute, The Hague

Date: 7 November 2011



Energy Law Research Network Fourth Annual Conference

Energy Law Research Network, a network of lawyers specialized in energy law, will hold its fourth annual conference on 5 December 2011. At the conference, topics include, amongst others; Production (e.g. nuclear and offshore wind), Transmissions, Supply & Consumption, Competition law as well as Regulators role. The conference will end with a debate and a roundtable with the topic “The 20-20-20 targets by 2020 – are we still on track”. Detailed information can be found here.

Location: Leuven, Belgium

Date: 5 December 2011



The Legal Dimension of Global Governance: What Role for the EU?

On 13-14 October 2011, the Faculty of Law of the University of Copenhagen hosted a conference dealing with the EU’s role as a global actor, and several environmental issues were discussed in this respect. Amongst others, the inclusion of aviation in the EU Emission Trading Scheme was discussed. Doubt exist as to whether the EU ETS is in line with the principle of common but differentiated responsibilities, whereas developing countries are equally subjected to the new rules. Furthermore, it was argued that there is a lack of overarching coordination of the major Multilateral Environmental Agreements with regard to the objective of sustainable development. For example, regulatory gaps exist with regard to biofuels, which were mentioned both as contributing to the mitigation of climate change and as a threat to biodiversity. To conclude, the need for more qualified majority voting in determining the EU position and for more clarity on who is to negotiate in international environmental fora was emphasized.

Location: Alexander Hall, Copenhagen

Date: 13-14 October 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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