EEL News Service Issue 2011/9 of 21 November 2011

Added to ECJ Case Law

Requirements for revoking food additives permission

Case T-262/10, Microban International and Microban (Europe) v Commission, 25 October 2011

This case concerns the legal basis and procedures which the Commission can use to remove items from the EU list of additives which may be used in the manufacture of plastic materials intended to come into contact with foodstuffs. The Commission Decision 2010/169/EU excluded triclosan from this. The applicants are engaged in the manufacture and sale of antimicrobial and antibacterial additives. As the Commission’s decision revoked the utilization of triclosan for those purposes. Microban filed an action for annulment of the decision revoking the utilization of triclosan for those purposes.

The Court had to decide under what conditions the Commission can remove items from such lists, particularly the legal basis and procedural rules applicable had to be identified. The Court took note that the substance had previously been an approved ingredient and had been removed by the Commission following the expiry of an application for inclusion. The governing legal framework in this case are Directive 2002/72/EC and Regulation 1935/2004 relating to plastic materials and articles intended to come into contact with food. This legal framework provides a basis for securing a high level of protection of human health, granting the Commission the discretion to remove an item from a “positive-list” if the protection of human health is at stake. By interpreting the two legal frameworks, the Court came to the opinion that ingredients can be rejected or removed from the list, following an evaluation of the European Food and Safety Agency with a negative outcome. Moreover, in the absence of an evaluation of the EFSA, the Commission must at least undertake a risk management decision in order to remove an item from the list. Such a risk management is to take into account scientific and technical information regarding the effects of the ingredient on human health.

However, the Commission did not adopt the contested Decision on the basis of human health protection, which would have required a provisional risk management decision. Moreover, the Court pointed out that the EFSA had previously given triclosan a positive evaluation. Hence, the Court annulled the Decision of the Commission due to a lack of a legal basis for its decision.


Shipping waste to third countries both prohibited and allowed for

Case C-405/10, Özlem Garenfeld, 10 November 2011

The waste export regulations of the EU are no light reading, with different regimes depending on the origin and type of waste shipped (red, amber, green), destination (EU, OECD, ACP, countries that indicated they want to receive certain waste after notification and permission etc.) and treatment method (recovery or disposal). A German court asks the ECJ for help in the criminal proceedings in which Ms Garenfeld is accused of illegally trying to ship 3794 used catalytic converters (spent catalysts) from Germany via the Netherlands to Lebanon.

Paradoxically, EU law indicates that exporting such waste (destined for recovery) to Lebanon is prohibited on the one hand, and allowed for following “control procedures in the country of destination under applicable national law” on the other hand. The Court finds that the part expressing the prohibition prevails, notably since Lebanon had indicated to the EU that it did not allow for the import of this type of waste for recovery purposes.

It is up to the national judges to determine whether Ms Garenfeld can be found guilty of committing a crime considering the principle of legality of criminal offences and penalties. The ECJ does explain that this principle demands that provisions of EU law are sufficiently clear as to yield the constituent elements of the national law definition of an offence; the individual concerned must be able, on the basis of the wording of the relevant provision and interpretative guidance by courts, to know which acts or omissions will make him or her criminally liable.

The ECJ’s explanation probably means that future exporters cannot rely on the principle of legality in order to avoid a conviction in a similar case, but it seems likely that Ms Garenfeld will escape a conviction due to the contradictions in the complex EU waste shipments rules.


Added to Case Law of other Courts


European Patent Office forwards Tomato “Patent” Case

Decisions G2/07 and G1/08, Tomato “Patent” Case, 8 November 2011

This case concerns an appeal against a patent which was granted in 2003 to the Israeli ministry of agriculture for a patent on a method for breeding tomatoes with reduced water content, as is important in food processing, and other products of that method. Unilever filed an opposition to the grant of this patent on the ground that it does not fulfill certain patentability criteria under the European Patent Convention (EPC).It claims that the patent relates to an essentially biological process involved in the production of plants, which could not be patented under the EPC. Unilever did not file for an annulment of the patent, but for an amendment which no longer convers the breeding method.

The European Patent Office’s (EPO) technical board of appeal announced on the 8 November 2011 that it will refer the case to the Enlarged Board of Appeal, the highest instance of EPO, to take a decision of settling points of law of fundamental importance regarding the patentability. The Enlarged will have to decide whether the selection and breeding methods used in the present case, consisting of sexually crossing of plants, are patentable. The decision will be binding upon the EPO, resulting in a compliant interpretation of the EPC in future cases.

Many NGOs and “Green-Parties” are critical on the topic of patents on breeds of plants and animals. One report outlinesthat a consequence of excessive seed patenting can provide single companies with dominant positions, leading to increases of seed prices as well as a decrease of seed choices for farmers. The report states that Monsanto has already acquired such a dominant position in the USA. Another report, foreshadows patents on breeding of plants as a GMO variant which is not prohibited in the EU but has nonetheless harmful consequences.


Press Release of the Technical Board of Appeal


Added to Legislation

Commission proposes two draft regulations for EU ETS

The Commission has submitted two draft regulations in lieu of the start of the third trading period of greenhouse gas allowances in 2013. The two regulations form part of the implementing measures of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003, which established the Emissions Trading System (ETS) for greenhouse gas allowances within the EU. One draft regulation relates to the monitoring and reporting of greenhouse gas emissions under the EU ETS, whilst the other specifies the rules on the verification and accreditation of EU ETS emissions.

The monitoring and reporting regulation recognizes the fundamental necessity of a complete, consistent, transparent and accurate monitoring and reporting system of greenhouse gas emissions for the effective operation of the EU ETS. The regulation stems from the experience gained by industrial operators, verifiers and the competent authorities during the second trading period between 2008 and 2012.

The verification and accreditation regulation established an overall framework of rules to ensure that the verification of operator’s or aircraft operator’s reports in the framework of the EU ETS in accordance with the monitoring and reporting regulation.

Draft regulation on the monitoring and reporting of greenhouse gas emissions under the EU ETS

Draft regulation on verification and accreditation of EU ETS


Added to Policy

EU finance ministers increase fund for climate change

At a meeting of the EU finance ministers on 8 November 2011, a pledge was made to increase the short term funds to assist developing countries with the effects of climate change by 7.2 billion Euro. The funds are intended to form part of a $100 billion target per year Green Climate Fund, which was agreed upon in the global Copenhagen Accord in December 2009. It was established in light of the ‘common but differentiated responsibilities’ principle, setting off some of the difficulties in finding a global consensus on climate change measures. The fund aims at supporting developing nations to reduce emissions and adapt to some of the already inevitable climate change consequences. The fund will be governed by a board of 24 member, consisting of an equal representation of developed and developing countries.

The action was taken in light of the preparations for the upcoming climate change conference in Durban (28 November – 9 December 2011). Similarly, the EU Parliament’s Environment Committee called for the EU negotiators at Durban to proof the EU leadership in Durban in a Report adopted on 26 October 2011.

Council conclusions on Climate Finance – Fast Start Finance


Added to General

Commission threatens to take France before the ECJ over Algae

France has been asked by the Commission to address the uncontrolled growth of green algae on its coasts. The expansion of the algae is caused by high concentrations of nitrates in the water on which the plant feeds. These algae often reach beaches where they emit toxic gases during decomposition. This situation also attracted media attention in France as dozens of wild boars were found dead because of the algae. The Commission ordered France by a letter of 27 October 2011 to “take stronger measures to combat water pollution caused by nitrates” and to identify all vulnerable areas. The order notes that the French legislation on the spreading of nitrogen-intensive fertilizer is not strict enough. The Commission has also requested information on policies against green algae in Brittany, specifically an appraisal of all the regulatory, administrative and financial measures against green algae.

Much of the legislative framework involved is Directive 91/676/EEC of 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources.

Letter from the Commission to France


ICAO council adopts Airline ETS critical paper

The governing council of the International Civil Aviation Organization (ICAO) adopted a working paper urging the EU to refrain from including flights of non-EU airlines to or from EU airports in its Emission Trading Scheme. The paper was adopted by 26 of the 36 council member states, including India, Japan, Russia, China and the US. It also called on the EU to work collaboratively with the rest of the international community in addressing the emissions of aviation. The paper has no legally binding effect on any member state or the council, but will serve as a reminder of the opposition to the EU’s emissions reduction policy in the aviation sector. The paper will now undergo scrutiny before being turned into an official ICAO Council Declaration. EU Commissioner for climate action Connie Hedegaard stated that the decision will affect neither “the EU’s commitment to the working within ICAO to agree on a global solution” nor the adopted EU legislation which includes aviation in the EU Emission Trading System (ETS). A written statement by the 8 EU representatives at the ICAO Council remarks upon the ‘fundamentally flawed basis’ for the ICAO decision, as well as the compatibility of the EU ETS with international 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 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.

ICAO Council – Working Paper


China has become the world’s largest emitter of carbon

The Chinese emissions of greenhouse gases increased by 33.6 percent from 2006 to 2010, making it the top emitter of carbon, a report of the Chinese Tsinghua University states. Whilst the report, released on 2 November 2011, also indicates an improvement in regards of energy efficiency and reliance upon renewable sources of energy, the cause for pessimism is not diminished. The local governments remain reluctant to use less energy while they pursue economic growth, undermining the central governments’ ability to control coal use. Accordingly, the reliance of the Chinese energy decency upon coal rose from 68 to 70 percent, despite of investments in renewable energy.

China is considered a developing country under the Kyoto Protocol and does not have a ceiling. As a party to the UNFCCC it could be argued that China is violating Article 2, as parties are asked there to achieve “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. The fact that a countries like China does not have a ceiling forms one of the reasons why there is a large opposition against a second commitment period under the Kyoto Protocol, and form one of the reasons why the upcoming conference in Durban will be demanding on negotiators.


Added to Reviews

European Environmental Law

The fourth edition of the standard work on European Environmental law, by Prof. Jan H. Jans & Prof. Hans H.B. Vedder, has been published. The book has been brought up to date to present new legislation, case law and literature as it stood on 1 September 2011. Particularly the new case law of the European Courts, recent environmental directives and regulations, as well as the new provisions of the Lisbon Treaty have been taken into account. The book takes a complete look at the principles and legal basis of European Environmental law as well as the interrelation of environmental law with other core fields of the European Union, such as the free movement of goods and competition. Also, the book considers a vast array of substantive European environmental law, integrating important decisions of the European Courts on their interpretation. The complete and profound legal analysis of manifold aspects of the environmental law of the EU makes this book an essential tool for both students, academics and legal professionals specializing in European environmental law.

The book is available at the publisher, European Law Publishing.


Added to Events

The Green Race to Durban and Beyond

On the 9 November 2011, a debate was organized on comparability, competitiveness and compatibility of climate actions around the world. The event was hosted by The Greens & European Free Alliance of the European Parliament. The debate included topics such as the comparability of implementing climate change policies, the competitiveness of countries in the race for investments in renewable energy generations, the discussion of the requirements of a “Green economy” as a response to global competition and financial crises, as well as the compatibility of low carbon regimes. Special guest speakers included, amongst others, Connie Hedegaard, the EU Climate Commissioner, and Rajendra Kumar Pachauri, the chair of the Intergovernmental Panel on Climate Change (IPCC). Please follow the links to the respective presentations. The video of the entire conference is available here.

Location: Brussels, Belgium

Date: 9 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







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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