EEL News Service Issue 2012/3 of 05 April 2012

Added to Case Law

‘Required’ not compulsory & ‘modifying’ includes repealing under SEA Directive

Case C-567/10, Inter-Environnement Bruxelles and Others, 22 March 2012

This case concerned the interpretation of the SEA Directive 2001/42/EC. An amendment to the Belgian regional planning act was contested by NGO’s that addressed the Belgian constitutional court claiming that under the amendment, an environmental impact assessment for the total or partial repeal of a land use plan is no longer required, contrary to the requirements of the Directive 2001/42/EC. Following the approach proposed by Advocate-General Kokott in her Opinion (discussed in EEL News Service 2012/01), the Court noted that Directive 2001/42 refers only expressly to modifying measures, but found that its object and purpose support a broader interpretation that in principle includes total or partial repealing measures. The ECJ came to this conclusion after considering that the partial or total repeal of a plan or programme can have significant effects on the environment, since it may involve a modification of the planning envisaged in the territories concerned. It did add one exception. Repealing a measure might not require an SEA if it falls within a hierarchy of town and country planning measures, and those measures lay down sufficiently precise rules governing land use, they have themselves been the subject of an assessment of their environmental effects, and it may reasonably be considered that the interests which Directive 2001/42 is designed to protect have been taken into account sufficiently within that framework.

As for a question regarding the interpretation of the provision on plans and programmes ‘required by legislative, regulatory or administrative provisions’ (Article 2(a) of the Directive, emphasis added), the ECJ explained that this covers not only plans and programmes the adoption of which is compulsory, but also those ´whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them.”

The ECJ thus interpreted the provisions of the SEA Directive in a manner that contributes to reaching the goal of this instrument, namely ensuring that a high level of protection of the environment is achieved.


Added to Climate Change

Recent developments on ETS and trialogue on the Energy Efficiency Directive

On 28 February 2012, the Parliament’s Industry, Trade and Research Committee (ITRE) voted through a rapporteur Claude Turmes’ draft report on the Energy Efficiency Directive. The report provides for a temporary removal of allowances from the ETS auctioning cap, also known as a set-aside with a purpose of boosting carbon prices. The ITRE acknowledged that dropping carbon prices within the EU’s system discourage green investment and result in higher industrial emissions. On 15 March, the European Parliament by large majority adopted a resolution of the Committee on the Environment, Public Health and Food Safety endorsing the Commission’s communication “Roadmap for moving to a competitive low carbon economy in 2050” (7505/12) that envisages further changes to the ETS system. The Parliament called for an improvement of the system by the Commission and implementation in full of the legislation on aviation in the ETS by the member states. It also stressed the need for reinvesting of at least 50% of auctioning revenues in climate action in order to make realistic the long-term GHG reductions. The Parliament supported the roadmap’s objective of a cost-effective transition to 2050, marked by several milestones for domestic emissions reductions: 25% by 2020, 40% by 2030, 60% by 2040 and 80% by 2050, compared to 1990 levels. The EU ETS scheme in its current form creates the legal framework for the EU’s independent commitment to reducing its emissions by 20% by 2020. While the Parliament’s resolution has no legal force, it serves as a political encouragement to the Commission.

The roadmap was also debated at a meeting of EU environment ministers on 9 March, where Poland single-handedly vetoed the EU’s ambitious CO2 emission reduction milestones.

The beginning of the trialogue to reach agreement on the energy efficiency directive between the European Council, the European Parliament and the Commission (DG Energy) as a moderator is scheduled for 11 April 2012. Ideally, an agreement is reached before the Parliament’s plenary vote on 11 June 2012 so that the legislation can be put to vote by qualified majority and adopted at first reading at the Council’s meeting on 15 June. However, in the event that the conclusions adopted by the Parliament and the Council differ, a second reading will take place at the Parliament within 3 months from the Council’s meeting. The Parliament could then (1) agree or not object to the Council’s conclusions; (2) reject it through an absolute majority vote; (3) propose amendments by absolute majority. The last scenario would be followed by the Commission’s opinion and a second reading at the council during which it could vote in favour or against the amendments. The procedure would move the potential entry into force of the directive to the second half of 2013.



Added to Legislation

Calculating cost-optimum levels of minimum energy performance for buildings

On 21 March 2012, European Commission Delegated Regulation 244/2012 of 16 January 2012 establishing a comparative methodology framework for calculating cost-optimum levels of minimum energy performance for buildings and building materials was published. The regulation supplements the Energy Performance of Buildings Directive (2010/31/EU). Initially expected for publication by June 2011, it suffered delays due to protracted negotiations. Under Article 290 TFEU and Article 25 of the directive, EP or the Council could have objected to the regulation until 16 March, acting by a majority and a qualified majority respectively.

The directive 2010/31/EU requires member states to determine cost-optimal levels for buildings, to be achieved through minimum energy performance requirements. The delegated act provides a comparative methodology framework for such determinations, to be completed with the relevant national parameters. The framework further covers the calculation exercise measures necessary for constructing zero-energy buildings which become obligatory by 31 December 2020. From then on, every new building must produce zero net carbon emissions.

The new Regulation requires member states to submit within one year their first report on cost optimality regarding all input data and assumptions used for the calculations, and the results of those calculations. The calculation methodology shall apply as of 9 January 2013 to public authorities’ buildings and as of 9 July 2013 to other buildings.

Council divided on amendments to GMOs directive

The Environment Council of 9 March 2012 failed to reach conclusions on the Commission’s proposal for the amendment of the Directive on the deliberate release into the environment of genetically modified organism (2001/18/EC). The Commission submitted its proposal for the amendment allowing member states to restrict or ban the cultivation of GM crops on their territory previously approved at EU level (12371/10 + ADD1) as far back as July 13, 2010. In July 2011, it was adopted by the European Parliament with 28 amendments.

The proposal was sought to provide a legal basis for restriction or prohibition of GMO cultivation by member states in their territory on grounds other than those covered by EU health and environmental risk assessments, conducted solely by the European Food Safety Authority (EFSA). This would allow a ban on GM crop cultivation based on socio-economic or ethical considerations. The current compromise proposal from the Danish EU Presidency introduced two options for member states to exclude part or all of its territory from cultivation: 1) by adjusting the geographical scope of authorization ‘during the GMO authorization procedure’; 2) and ‘after the authorization procedure provided that the national measure does not conflict with the environmental risk assessment carried out at EU level’.

The blocking minority that allegedly included France, UK, Belgium and Germany, raised concerns regarding the legal compatibility of the amendment with WTO and EU internal market rules, as well as the risk assessment by the EFSA. European environment ministers will discuss the proposal once more at their next meeting in June 2012. To move the matter forward, the Danish presidency will probably engage in bilateral negotiations with the opposing states.

For an earlier report on this issue, see the article More flexibility in GMO legislation at the EEL website.


Added to General

Commission reminds Member States of Environmental Obligations

On the 27 February 2012 the Commission reminded a number of Member States of their failure to transpose various EU environmental rules into their domestic law:

Poland was asked to bring national legislation into line with EU’s Water Framework Directive. Directive 2000/60/EC has the goal to protect Europe’s waters by obliging Member States to gauge the health of their surface and groundwater through monitoring programs in order to establish the state of the water quality. Poland has been lacking to transpose the Directive into national law since its ascension to the EU in 2004 and is now being reminded of its obligations for the third time. Source: European Commission Press Release IP/12/70.

Malta has been urged to improve to transpose the Birds Directive. Directive 2009/147/EC protects European birds, a common heritage of the Member States, by putting in place a comprehensive scheme of protection for all wild bird species naturally occurring in the territory of the EU. Whilst the Directive recognizes hunting as a legitimate activity, it strictly outlaws all forms of non-selective and large scale killing of birds, in order to ensure that the practice remains sustainable. Malta allowed the autumn trapping of four species of birds since it joined the EU in 2004. The Commission now asks Malta to ensure that only small numbers of birds are cached and to supervise the trapping conditions. Source: European Commission Press Release IP/12/171.

Following those shortcoming of those Member States in implementing the EU environmental legislation into their national law, the Commission decided to send each Member State a reasoned opinion and asked for compliance within two months. If they fail to do so, the Commission may refer the cases to the EU Court of Justice and ask for immediate financial penalties without having to return to the court for a second ruling. The possibility to do so was introduced by the Treaty of Lisbon in Articles 258 juncto 260 TFEU.

As for France, the European Commission announced it will refer this country to the ECJ for failing to adopt measures to effectively address water pollution by nitrates. By failing to designate zones vulnerable to pollution by nitrates and to take measures to abate it, and by not implementing legislation and action plans to alleviate nitrate pollution, France has not complied with the 1991 Nitrates Directive, the Commission claims. The most common sources of nitrates, which stimulate plant growth, are fertilizers and livestock manure. In excess, they cause damage to freshwaters and the marine environment, as well as to human health. Urgent steps to redress pollution damage were requested earlier by the Commission in its reasoned opinion of 26 October 2011, and France did agree to amend its legislation, but slow progress and insufficient proposed changes have led the Commission to refer the case to the EU Court of Justice.

The objective of the Nitrates Directive is to decrease water pollution caused by nitrates from agricultural sources by reducing the use of fertilizers and promoting good farming practices in vulnerable areas. The Directive requires Member States to designate such areas and protect them through limiting the conditions for fertilizer application, limiting the time when fertilizers can be applied on land, and requirements for a minimum storage capacity for livestock manure. Source: European Commission Press Release IP/12/170.


Added to Events

The EU and China – Partners for a Green World

The College of Europe and the Committee of the Regions will organize an international conference on the bilateral interaction between the EU and China on environmental policy. This two day high-level conference aims at examining the current and potential impacts this cooperation has related to the fight against climate change. Moreover, the conference seeks to catalyse the establishment of a long-term network for bilateral exchange and communication. The conference will be comprised of seven panels which will analyse the current policy dialogue and the achievements, obstacles and future perspectives of the bilateral cooperation. The topics include, amongst others: Public diplomacy and civil society dialogue in relation to green economy; Green urbanisation & manufacturing; Renewable and nuclear energy and Green agriculture. Participation is free of charge and registrations can be submitted here.

Location: Rue Belliard 99-101, 1040 Brussels

Date: 19 – 20 April 2012


Climate Change and European Energy Law

This seminar aims to provide environmental law practitioners with an analysis of recent legislation and on going policy developments at EU level in the field of European climate change and energy law.The following key topics will be discussed:

•           Energy and climate change issues after the Lisbon Treaty

•           The Commission’s Roadmap 2050 and the new Energy Efficiency Directive

•           Current status of implementation of the 3rd Energy Package in the EU Member States

•           Expansion of the transmission network and its legal challenges

•           Smart metering and smart grids

•           Energy taxation and carbon capture and storage


More information on:

Brussels, 26-27 April 2012


Presentation of the Energy Law Yearbook 2011

The Flemish Organization for Energy law and the Institute for Environmental and Energy law host the presentation of the Energy law Yearbook 2011. The presentation will include, amongst other things, a discussion of recent development in the European energy law, given by Ms. Inge Bernaerts from the DG Energy. Information can be found on the website of the host (in Dutch).

Location: Auditorium Provinciehuis Leuven – Provincieplein 1 – 3010 Leuven

Date: 16 May 2012



Greenpeace European Unit is recruiting an EU legal advisor. Closing date for applications: Friday 20 April 2012. For information, see





Wybe Th. Douma (Senior Researcher, T.M.C. Asser Institute and Lecturer of International Environmental Law, The Hague University)

Leonardo Massai (Senior Lecturer on International and EU Environmental Law, University of Lille)



Maximilian L. Garré (T.M.C. Asser Institute, The Hague)

Agata Walczak (T.M.C. Asser Institute, The Hague)



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