EU Court rules on confidentiality in waste shipment obligation
Case C-1/11, Interseroh Scrap and Metals Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM), 29 March 2012
On 29 March 2012, the Court of Justice of the EU issued a preliminary ruling in case C-1/11 regarding requirements for shipment of waste set forth in Regulation (EC) No 1013/2006 of 14 June 2006 as amended by Commission Regulation (EC) No 308/2009 of 15 April 2009. The case was brought to a German court by a steel and metal scrap dealer claiming that an obligation to reveal the names of its waste suppliers to the consignee of the waste infringed its right to the protection of business secrets, impeded its economic activity and in effect caused a loss of clients.
The ECJ was asked to interpret article 18 of the Regulation to answer whether such obligation is not qualified by confidentiality requirements under EU and national law, as well as EU primary law in order to protect business secrets. While the Court recognized the protection of trade secrets under Germany’s basic law and general principles of EU law, it emphasized the non-derogatory character of Regulation No 1013/2006. As a consequence of the tracking procedure provided for in article 18, even when non-disclosure might be necessary to protect the business interest of the intermediary dealer, shipment documents including the waste producer’s name must be available to both the authorities of the countries of dispatch and destination, and all the natural or legal persons involved in the shipment of waste.
Dutch Supreme Court: President-director Trafigura can be prosecuted
Supreme Court (Hoge Raad) 30 January 2012, case nr. R.1115-10, LJN BV2230
The Supreme Court of the Netherlands decided that the president-director of Trafigura can be prosecuted for his share in the ordering for or directing of the illegal export of hazardous waste from The Netherlands to Ivory Coast in August 2006. His lawyers had pleaded that criminal prosecution should be dismissed, notably because a case against him in Ivory Coast had already been dropped. The defender pleaded that instigating his prosecution in the Netherlands would constitute a violation of the ne bis in idem principle. It was also brought forward that the Dutch judiciary has no jurisdiction in the matter. Finally, it was pleaded that it would be very unlikely that a judge would find him guilty since evidence for his involvement is lacking.
The ne bis in idem claim was rejected by the Supreme Court, notably because the decision in Ivory Coast where the cargo of the Probo Koala was dumped, did not touch upon the same facts as the ones for which the Dutch public prosecutor seeks a conviction. Since the illegal export (violating Dutch rules based on the applicable EU Regulation on export of waste) took place from the Netherlands to a state from the African, Caribbean and Pacific (ACP) Group, the Dutch courts have jurisdiction to deal with the case. Finally, the Supreme Court took note of the conviction of the company Trafigura of 23 December 2011 by the District Court of Amsterdam (Hof Amsterdam, case nr. 23-003334-10, LJN BU9237, MenR 2012/42 with annotation by Douma en Van Ham) in which a fine of 1.000.000 Euro was imposed and found that it was not very unlikely that the evidence would lead to the conclusion that the suspect, although he had the authority and was obliged to do so, refrained from taking measures that would prevent the illegal export and thus consciously accepted the significant chance that the illegal activities would take place and/or ordered them to take place.
Added to Legislation
Council and Parliament Reach agreement on Seveso III
On 27 March 2012, the European Parliament and Council have reached agreement on successor legislation to the Directive 2003/105/EC (Seveso II Directive) on major accidents and hazards, which applies to around 10,000 designated sites across the EU. The revision based on the Commission’s proposal (18257/10), aims to replace the Seveso II Directive by 1 June 2015, tightens the requirements of the directive aimed at preventing and mitigates the consequences of accidents with hazardous chemicals such as oil and petrol, toxic chemicals, or fireworks. On 11 June 2012 the EU Parliament is scheduled to vote on the revised directive. Environment ministers will most likely finalize the procedure in the second half on 2012.
Among the main stumbling blocks during negotiations were the scope of the directive and rules on public access to information and justice. Adjustments to the scope were necessary in order to align the substances falling in scope of the directive with new rules on the classification, labelling and packaging (CLP) of chemical substances.
Under revised requirements on public access to safety information, disclosure rules will cover also lower tier sites. Member states authorities are required to make available online information about recent inspections and following major accidents, location of Seveso sites in their territory as well as emergency procedures for citizens.
Access to justice provisions implementing elements of Aarhus convention have raised concerns among the Member States. The new rules will enable EU citizens to go to court when they think they have not been consulted on the establishment of a new designated establishment in their neighbourhood.
With the aim of improving the level of safety of Seveso sites, each of them will have to prepare an accident prevention policy, including stricter standards for inspections of installations. Here, the divisive determinations included the extent to which operators should take into account non-Seveso sites in the vicinity that potentially pose further risks in event of an incident. The fact that necessary information on such sites is not always available has been accounted for in the final text.
Added to General
Independent Expert on human rights and the environment established by UN Human Rights Council
On 20 March 2012, at its 19th session the UN Human Rights Council adopted a resolution (A/HRC/19/L.8/Rev.1) to appoint an independent expert on human rights obligations related to the enjoyment of a safe, clean, healthy and sustainable environment. Under the document, co-sponsored by over 80 states and adopted by consensus, the expert will be appointed for a period of 3 years. Among his tasks, the study of obligations, including non-discrimination obligations, relating to the enjoyment of a safe, clean, healthy and sustainable environment; identifying and promoting best practices relating to the use of human rights obligations to support environmental policymaking and, in particular, environmental protection; and submitting annual reports to the Council starting at its 22nd session. The resolution draws on the work of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes. The UN system took account of the link between human rights and the environment during the Earth Summit in Rio de Janeiro in 1992. The resolution calls on the Independent Expert and the Higher Commissioner for Human Rights to contribute to the human rights insights at the upcoming United Nations Conference on Sustainable Development to be held in Rio de Janeiro, Brazil in June 2012 (Rio+20 ) and the follow-up processes.
Planet under Pressure conference formulates challenges for Rio+20
On 26-29 March 2012 in London, the Planet under Pressure conference brought together a range of stakeholders from international and national senior policymakers, through industry leaders and NGOs, to representatives from development and business sectors do discuss solutions to move societies on to a sustainable pathway. The main objective was to provide scientific guidance towards the 2012 UN Rio+20 conference in June 2012 through a comprehensive update on global sustainability research of the Earth system. Among the themes considered in the conference were climate change, ecological degradation, planetary thresholds, food security, energy, and poverty alleviation. The International Council for Science has identified five challenges that guided the conference’s agenda: observations, forecasting, thresholds, governance and economic requirements, and innovation (technological, political and societal).
The outcome of the conference was the adoption of a declaration by its co-chairs, setting forth a number of initiatives as recommendations for the Rio+20 Summit. These include (1) a replacement of GDP with an alternative measure of progress that incorporates environment and social equity; (2) development of a framework for global sustainability, taking account of synergies and trade-offs in and between areas such as food, water and energy security, maintenance of biodiversity, sustainable urbanisation, social inclusion and livelihoods; (3) creation of a UN Sustainable Development Council to integrate social, economic and environmental policy at the global level; (4) launch of an international research initiative, Future Earth, to address global environmental change in an integrative, solutions-oriented way; (5) development of a a framework for regular global sustainability analyses that link existing assessments. The declaration is accompanied by a supporting statement from the UN Secretary General Ban Ki-moon who expressed his readiness to work with the scientific community on the launch of a large-scale scientific initiative towards sustainability.
Added to Climate Change
US airlines drop lawsuit against EU ETS among growing global opposition
The Air Transport Association of America, under the new name Airlines for America (A4A), dropped the case at the High Court of Justice of England and Wales against their inclusion in the EU emissions trading scheme. Directive 2008/101 took effect on 1 January 2012 and requires all air companies flying to and from EU airports to purchase GHG emissions permits (EU allowances). The A4A’s unexpected announcement came shortly after it had filed a request at the high court to add new claims.
In December 2009, the association had brought a case against the UK Minister for Energy and Climate Change to challenge measures taken by the UK to implement the directive. The UK high court referred the matter to the European Court for a preliminary ruling to examine the validity of the Directive against several international agreements and customary international law. In its ruling of 21 December 2011, the Court allowed the applicant to rely on certain principles of customary international law as benchmarks for an act of the EU, finding, however, that neither relevant customary principles nor treaty provisions had been violated by the measure in question. The ECJ observed that the EU ETS is only applicable to the foreign and domestic airline operators when their aircraft is physically in the territory of one of the Member States of the EU and thus subject to the unlimited jurisdiction of the EU.
The association is planning to instead pursue its claim through the political route, calling on the US government to take over the case. Other non-EU states such as China, India, Canada and Russia, have expressed their opposition to the inclusion of aviation in the EU ETS.. These states and the non-EU airline operators, concerned about additional costs, argue that reducing emissions is a global responsibility and should be tackled globally through the International Civil Aviation Organization (ICAO). Although the EU directive allows for exemption from ETS requirements of countries which have enacted “equivalent measures,” the latter has not yet been defined by the Commission. The ICAO, having considered various options for emissions reduction for over a decade, is still to create its own framework.
In reaction to the European Court’s decision, the subsequent entry into force of the ETS requirements and in the absence of an agreed position of the ICAO, representatives of 26 non-EU states met in Moscow on 21-26 February 2012 to discuss countermeasures to the ETS. The meeting was concluded with a Joint Declaration stating that EU ETS obstructs the progress of ICAO’s work which should constitute the primary route to address emissions reduction. In addition, it accused the EU ETS of causing market distortions and unfair competition. The agreed countermeasures include the use of retaliatory measures against EU, such as suspending the enhancement of operating rights of EU companies or charging them additional fees, and the use of domestic measures to prohibit domestic airline companies from participating in the EU ETS. On 6 February 2012, the Civil Aviation Administration of China gave effect to the latter option, prohibiting Chinese airlines from participating in the scheme and raising fares or passenger charges to recover the cost of taking part in ETS. Recently, India has followed suit, giving a directive for its airlines to not participate. Indian operators have consequently not submitted emissions details of their aircrafts by the deadline of 31 March 2012.
See also: Opposition to EU ETS is staggering up
Denmark to transition to 100% Renewable Energy by 2050
On 22 March 2012, the Danish parliament has passed an ambitious energy plan facilitating the country’s transition to a low-carbon economy. The plan implies that by 2020 Denmark’s share of renewable energy will rise to 35%, 50% of which coming from wind and the rest from renewable heat, biogas, smart grid and other green technologies. In addition, by the same year, Denmark’s gross energy consumption is expected to be reduced by 12% in comparison with the peak year 2006, while its CO2 emissions by 34%, compared to the 1990 levels. The ultimate goal is to cover the country’s entire energy supply with renewable energy by 2050.
The plan outlines goals and funding strategies for every sector of society including industry and transportation. It envisages, for example, incentives for energy companies to convert from coal to biomass by increasing their efforts by 100% in 2020 compared to 2010-2012, as well as committing funds to promoting geothermal energy and subsidizing households and businesses. The 50% wind energy share will be achieved by developing onshore and offshore wind turbines with a total capacity of 1,800 MW and 1,500 MW respectively by 2020. Funds will be allocated to facilitate the phasing-out of oil-fired and natural gas boilers in existing buildings. Installation of such boilers in new buildings will be banned from 2013 and in existing buildings with district heating available – from 2016. The scheme provides subsidies also to energy efficiency investments in industry as well as the use of renewable energy in production processes. It calls for a strategy on establishing smart grids powered by renewables and on implementation of the plan increasing the use of biogas in industrial processes. Finally, the plan envisages a radical conversion in the transport sector from fossil fuels to electricity and biofuels through, inter alia, subsidies for recharging stations for electric cars and infrastructure for hydrogen. By 2020, fuels must contain 10% biofuels.
The decision of the Danish parliament came amidst the Danish EU presidency’s efforts to reach agreement on reducing EU energy consumption through the energy efficiency directive and the Commission communication “Roadmap for moving to a competitive low carbon economy in 2050.”
EU Commissioner congratulates Mexico on climate bill
The EU Commissioner for Climate Action, Connie Hedegaard, congratulated Mexico on its national climate-change law. The comprehensive law was passed unanimously on 19 April 2012 by Mexico’s Senate. In her tweet, Hedegaard expressed hope for the country´s “northern neighbour” to follow suit, referring to the failure to pass America’s climate bill in the Senate in July 2010. Mexico is the first developing country and third country after the United Kingdom and Denmark to establish legally binding emission reduction targets.
The new law establishes a 30% emissions reduction target from business-as-usual level by 2020 and 50% cut from the 2000 baseline by 2050. By 2024, 35% of Mexico’s energy supply should come from renewable sources. Furthermore, the law establishes a national registry of emissions to which the country´s biggest polluters will report their emissions and fossil fuel subsidies. It institutes, moreover, a commission to oversee its implementation and proposes a creation of a National Institute of Ecology and Climate Change to conduct research on technology for environmental protection and preservation of ecological balance.
Added to Events
Summer Course on EU Environmental Law
Between 2–6 July 2012, the Academy of European Law (ERA) will organize a five-day summer course providing an introduction to EU environmental law. The course will cover its major principles and sources, as well as its relationship with national environmental law. Discussed areas will include nature and biodiversity, waste management, climate change and environmental impact assessment. In addition, the curriculum will include topics of environmental law enforcement and within it, procedural rights in environmental matters and environmental liability. The course is addressed to lawyers in private practice regulatory authorities and public administration seeking an introduction to European environmental law.
Location: Metzer Allee 4 54295 Trier, Germany
Date: 2–6 July 2012
Workshop – Exploring a legal framework for Toxic Remnants of War
On June 22, the Freie Universität in Berlin will host a workshop aimed at examining the potential for phrasing a legal approach on toxic remnants of war (TRW). A TRW approach would seek to consider the use, health impact and environmental behaviour of a range of substances, including heavy metals, chemical obscurants, explosives and propellants, fuels and other conflict residues. Much remains to be done on documenting both the range of toxics that could be considered as TRW and their potential civilian and environmental impact. Nevertheless, there is merit in running a parallel exploration of the feasibility of a legal approach to the issue. The breadth and novelty of the subject has inspired this interdisciplinary workshop, departing from international humanitarian law, and reaching out to domestic environmental law.
Location: Freie Universität Berlin, Garystraße 35, 14195 Berlin Dahlem, Germany
Date: 22 June 2012
Wybe Th. Douma (Senior Researcher, T.M.C. Asser Institute and Lecturer of International Environmental Law, Hague University)
Leonardo Massai (Senior Lecturer on International and EU Environmental Law, University of Lille)
Agata Walczak (T.M.C. Asser Institute, The Hague)
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