This issue of the EEL News Service is the last one before the summer break. We will resume our services in the September 2012, and wish all our subscribers a nice summer.
Please note that at the end of this issue, there is a vacancy advertised for a trainee position at the T.M.C. Asser Institute dealing with environmental law.
Added to Case Law
EU admissibility requirements for NGOs violate Aarhus Convention
Case T-396/09, Stichting Natuur en Milieu & Pesticide Action Network Europe v Commission, 14 June 2012
Case T-338/08, Vereniging Milieudefensie & Stichting Stop Luchtverontreiniging Utrecht v Commission, 14 June 2012
The General Court handed down judgments in two cases on access to environmental justice for non-governmental organizations. The cases were brought by environmental NGOs which had requested the Commission to review its (1) Regulation (EC) nr. 149/2008 to relax the standards on maximum residue limits for pesticides in food (T-338/08); and (2) decision C(2009)2560 to grant the Netherlands a temporary exemption from the obligations set down by the Air quality directive 2008/50/EC (T-396/09). Both requests were rejected, as the contested regulation and the decision did not constitute measures for which internal review is foreseen in the eyes of the Commission. Under articles 2(1)(g) and 10 of the Aarhus Regulation No 1367/2006, only administrative acts of ’individual scope’ can be subject to review.
The Court annulled the Commission’s decisions rejecting the requests for review. While it agreed that the requests did not meet the above criterion, it also held that the latter is too rigid and therefore in conflict with the wording as well as the object and purpose of the Aarhus Convention. Under Article 300(7) EC Treaty (now 216(2) TFEU), EU institutions are bound by international agreements concluded by the Community (now: EU) and, consequently, that those agreements prevail over secondary Community legislation.
Normally, it would need to be examined (1) whether the nature and the broad logic of the Aarhus Convention do not preclude testing the validity of a provision in an EU regulation or decision, and, in addition, (2) whether the provisions of that treaty appear, as regards their content, to be unconditional and sufficiently precise. However, where the measure makes an express renvoi to particular provisions of an international agreement, the General Court – drawing on a range of ECJ judgments that mostly dealt with WTO/GATT issues – submitted that it can review the legality of the measure in question in the light of the rules laid down in that agreement without first having to determine whether the conditions set out above are satisfied.
For the test itself, the General Court first found that the objective of the European Aarhus Regulation is to contribute to the implementation of the obligations arising under the Aarhus Convention by granting, inter alia, ‘access to justice in environmental matters at European Union level under the conditions laid down by this Regulation’. The Court then sets out to examine whether ‘acts’ in Article 9(3) of the Aarhus Convention can be construed as covering only measures of individual scope. It held that the condition of ‘individual scope’ considerably limits the possibility of internal review, as most acts adopted in the field of the environment are of general scope.
This finding eases up the admissibility requirements for NGOs requesting an internal review of the Commission’s acts based on the Aarhus Convention. The Commission did appeal against both judgments, so it will be up to the ECJ to decide whether it agrees with the General Court on this important issue.
The hurdle that remains is that also under the Aarhus Regulation, an NGO that asked for an internal review can only bring a case to the General Court if that is in line with the relevant provisions of the Treaty, which includes art. 230 EC (now: 263 TFEU) and that thus “the conditions for admissibility laid down in Article 230 EC must always be satisfied if an action is brought before the Courts of the European Union.”
It can be added that in July 2012, the European Environmental Bureau (EEB) has proposed the strengthening of the provisions of the Aarhus Regulation 1367/2006 as one of the priorities of the new Cypriot EU presidency (see under “General”). Such a move would amend the shortcomings signaled in an IEEP report on Compliance by the European Community with its Obligations on Access to Justice under the Aarhus Convention from 2008. This report states that the internal review procedure instituted by the Aarhus Regulation falls far short of what is required to achieve full compliance with the Convention. The report argues that the Regulation in its present form makes little difference to NGO’s ability to challenge acts by EU institutions seeing that dismissed requests for internal review appealed before the ECJ are subject to the same restrictive standing criteria. These findings are similar to the ones of the Compliance Committee of the Aarhus Convention (see report). While this Committee did not conclusively determine that EU law is in conflict with the Convention, it did find that a continuation of the current EU jurisprudence without instituting adequate administrative procedures would amount to a violation of the Convention’s Articles 9(3) and 9(4). The Committee held that the present interpretation by the EU Courts of the condition of individual concern makes it nearly impossible for members of the public to challenge community acts. Their legal situation pursuant to that act must, namely, be altered in a way that differentiates him or her from all other persons which, in turn, excludes the possibility of challenging acts and decisions whose effect is defined as an objective legal or factual situation. It called for that a new direction of the EU Courts’ jurisprudence.
Added to Legislation
Diluted agreement on Energy Efficiency Directive
On 13 June 2012, representatives of the Commission, Parliament and the Danish Presidency reached an agreement on the legislative proposal for the Energy Efficiency Directive (EED). The compromise text is expected to repeal the existing Cogeneration Directive 2004/8/EC and the Energy Services Directive 2006/32/EC.
The new directive obliges energy distributors and retail companies to deliver yearly energy savings among end-users equal to 1.5 percent of annual sales. This compromise, reached at the very end of negotiations, is expected to yield energy savings of about 15 percent between 2014 and 2020 across the EU, based on business-as-usual levels. This amounts to two-thirds of the originally envisaged 25% savings. The EU climate and energy package of 2007 assumes a higher, 20-percent energy efficiency target, for 2020. However, according to the Commission’s studies, a further two-percent saving is expected to come from the transport sector covered by stricter emissions standards. Another three percent can be delivered through measures under the ecodesign directive which sets energy consumption requirements on energy-related products such as boilers and lightbulbs.
The new EED further prescribes a 1.5-percent reduction in energy consumption by the industrial sector. Although the document makes no explicit reference to the EU Emissions Trading System (ETS), the Commission is considering possible exemptions for industries already covered by the system in GHG reduction efforts. It is further working on a report linking the directive to the raising of carbon prices.
Under the new directive, large companies will be obliged to undergo energy audits in order to identify possibilities for reduced energy consumption. The same is recommended for small and medium companies.
The compromise text, resulting from many months of negotiations, has been criticized for watering down the ambitious 20-percent reduction target originally proposed by the Commission. Additionally, while the Energy Performance of Buildings Directive 2010/31/EU requires the “near zero energy” consumption of new buildings from 2020, the EED falls short of filling the gap posed by existing buildings, which account for about 40 percent of energy use in the EU. The provision for renovating public buildings has been scrapped from the Commission’s original proposal. Other weakened requirements include those regarding combined heat and power (CHP), and the provision of consumer information through smart meters.
At the Environment Council of 8 June 2012, Poland vetoed the EU’s energy roadmap to 2050, undermining the expectations that the latter would compensate for the EED’s diluted target. Despite its non-binding character, the roadmap has been expected to stimulate ambitious mandatory commitments by guiding investment decisions and identifying cost-effective ways to making buildings more energy-efficient.
Rules on efficiency of battery recycling published
On 11 June 2012, the EU regulation No. 493/2012 was published, setting out detailed rules for calculating the efficiency of recycling processes for batteries and accumulators. Scheduled to take effect on 1 January 2014, the new rules guide recycling companies to comply with minimum efficiency standards laid down in batteries directive (2006/66/EC).
While the directive requires 75% recycling efficiency for nickel-cadmium batteries and 50% for other batteries and accumulators (calculated by average weight), the new regulation provides a long-awaited description of the recycling goals and the ways to achieve them. Among others, it specifies which elements or compounds in the recycling process constitute output fractions. The latter include, for instance, carbon, oxygen and slag components as long as they are used for recycling purposes other than landfill construction or backfilling operations. Water, on the contrary, should not be counted as an output fraction.
In order to enable Member States to monitor compliance with the recycling efficiency requirements, the regulation requires recycling companies to report their annual recycling rates to competent state authorities by 30 April each year. The first deadline for the reports is 30 April 2015.
Earlier this year, the Commission resumed its proposal on a ban on cadmium batteries for cordless power tools (CPT) from 2016. This is one of the last remaining applications of cadmium, classified as carcinogenic material toxic to aquatic organisms, permitted under the batteries directive. The proposed amending directive scrapping the CPT exemption is scheduled for plenary vote in the Parliament in April 2013.
See also: Statement by Energy Commissioner Günther Oettinger.
Added to General
Rio+20 outcomes disappoint despite EU’s active and constructive role in negotiations
On 20-22 June 2012, twenty years after the 1992 Earth Summit, Rio de Janeiro hosted a follow-up Conference on Sustainable Development. While many observers view the meeting as a failure due to the absence of measurable global sustainability targets (see the commentaries from Greenpeace International and WWF), others see the individual voluntary commitments to concrete sustainability action plans announced by governments and corporations as promising.
The 53-page long outcome document titled “The Future We Want” outlines a number of proposals, divided into six main categories: our common vision; renewing political commitment; green economy in the context of sustainable development and poverty eradication; institutional framework for sustainable development; framework of action and follow-up; and means of implementation.
The Institutional Framework for Sustainable Development (IFSD) embraces a twofold purpose of strengthening the UN Environment Programme (UNEP) and establishing an intergovernmental high-level political forum to eventually replace the UN Commission on Sustainable Development (CSD).
The “Framework for Action and Follow-up” section goes no further than listing vague commitments, mainly reaffirming those made in existing agreements. They are organized across 26 themes, including biodiversity, forests, mountains, poverty, food security, water, gender, education, health, cities, transport, or mining.
The document reiterates commitment to the means of implementation identified in existing declarations and action plans on sustainability. However, the issues of technology transfer and financing a global agreement were among the most contentious in the negotiations. While proposals for financing contributions to the transition to green economy were rejected out of hand by the delegations of U.S., Canada, Japan, Australia, and New Zealand, the outcome document recognizes the need for additional resources to the implementation of development programmes through South-South and triangular cooperation.
One of the event’s relatively concrete outcomes is an agreement on launching a process to establish a set of Sustainable Development Goals, proposed among others by the governments of Colombia and Guatemala. Likewise, the outcome document includes recognition of the need to create indicators complementary to the GDP, measuring progress in terms of environmental and social costs that accompany economic growth.
Sadly, the conference’s most promising key theme of green economy in the context of sustainable development and poverty eradication fell flat under the opposition from the G77/China. Although the outcome document provides only general, conceptual-level ideas, it does make a powerful case for pursuing green economy, which is largely an achievement of the EU delegation. According to the Environment Commissioner Janez Potocnik, through EU’s persistent negotiation efforts, the green economy is now understood as an important tool for achieving sustainable development. Although the text remains defensive and aspirational rather than prescriptive, some commentators see this as an advantage. According to Romulo S. R. Sampaio of the Getulio Vargas Foundation, the long comprehensive negotiations have encouraged a shift of the green economy to the domestic level where concrete objectives and targets can be formulated along the general lines sketched at the conference.
See also: EEL commentary on the build-up to the conference.
Environmental priorities of Cypriot EU presidency
On 10 July 2012, Cypriot ministers have presented to EU parliamentary committees the priorities of the country’s presidency of the Council of the European Union. In the area of environment, despite the weak results of the Rio+20 summit, particular attention will be given to sustainable development agenda. Water and climate change are high on the agenda in the run-up to the Conference of the Parties to the Convention on Biological Diversity in Hyderabad, India, in October 2012 and the UN Climate Change Conference in Doha in November 2012. The Cyprus presidency has planned major conferences on the future and sustainability of shipping (October 2012) and water policy (November 2012). Furthermore, political agreement will be sought regarding the rules on monitoring emissions from land use, land-use change and forestry (LULUCF), revision of the EIA directive and the EU’s water protection plan.
The European Environmental Bureau (EEB) has published a list of ten benchmarks by which it will assess the performance of the new EU presidency. Among those corresponding to the priorities named by the Cypriot environment minister are the renewed commitment to sustainable development, reform of EU’s water management, as well as biodiversity, climate and energy policy. Other recommended areas of focus include the Common Agricultural Policy (CAP) and Common Fisheries Policy (CFP); strengthening of the regime for the risk assessment of GMOs and harmful chemicals; “greening” of the EU budget; and promoting greater transparency, accountability and access to justice in environmental matters including the strengthening of the Regulation 1367/2006 and reviving negotiations on the Commission’s 2003 proposal for a Directive on Access to Justice.
Next to the expectations for Cyprus, the EEB has issued its assessment of the work of the Danish presidency. While it appreciated Denmark’s strong position on issues of chemical and pollution from shipping, it pointed to the lack of success on fisheries and agriculture. The group applauded the adoption of a Council Common Position on Sulphur in marine fuels that could fully implement the International Maritime Organisation; the work towards the agreement on 7th Environment Action Plan (7EAP); as well as the presidency’s role in negotiations of EU’s position at the Rio+20 Conference. Conversely, the diluted commitments under the new Energy Efficiency Agreement (see below) received criticism.
Member States referred to ECJ for breaching environmental obligations
On 21 June 2012, the Commission has referred a number of Member States to the European Court for their failure to transpose various EU environmental rules into their domestic law:
In Ireland, legislation on environmental impact assessment continues to fall short of the standards demanded by the EIA Directive (2001/42/EC), despite repeated communications from the Commission and an earlier Court ruling of March 2011. The latter addressed the incomplete transposition of the Directive’s Article 3 on the assessment of direct and indirect effects of projects on a number of factors; the problem of split decision making between Irish planning authorities and the Irish Environment Protection Agency; and the exclusion of demolition works from the scope of the Irish EIA regulations. Until now, Ireland has failed to comply with the Court’s 2011 decision. The EU executive is now asking the Court to fine Ireland with a lump sum of over €1.800.000 and a daily penalty payment of over €19000 for each day after the second Court ruling until the infringement ends.
As for Italy, the European Commission said the country has failed to adopt measures to ensure that waste water from agglomerations with more than 10,000 inhabitants discharged into sensitive areas is properly treated. Since 1998, the Urban Waste Water Directive 91/271/EEC requires agglomerations of more than 10,000 inhabitants to put in place systems for collecting and treating their waste water. In addition, a secondary treatment removing pollutants from the water entering collection systems before it is discharged into sea or freshwater, is a responsibility of Member States. Fourteen years after the original deadline and one year after receiving a reasoned opinion from the Commission, Italy has not fully implemented the Directive, with 143 towns across the country not yet connected to an appropriate sewage system and/or lacking secondary treatment facilities. In a separate case in 2010 concerning water discharged by large towns into non-sensitive areas, the ECJ has ruled that Italy had failed to fulfill its obligations under Integrated Pollution Prevention and Control Directive 2008/1/EC. Simultaneously, the Commission has closed a case initiated against the country in 2007, after waste management plans had finally been adopted for the Lazio region in March 2012. The Commission has assessed the plans as in line with the Waste Framework Directive 2008/98/EC and the Hazardous Waste Directive91/689/EEC.
Poland is being taken to the Court for failing to communicate what measures were being taken to conduct safety investigations pursuant to serious accidents at sea. Such measures, required under the Directive 2009/18/EC on the Investigation of Accidents at Sea, aim at establishing the cause of an accident and identifying new preventive procedures. Member States were required to bring them into force by 17 June 2011.
Finally, the Commission has addressed the non-compliance by two Member States with EU waste laws. Cyprus has been referred to the ECJ for violating the Landfill Directive1999/31/EC whose objective is to reducing the adverse effects of landfills on surface water, groundwater, soil, air and human health. In Cyprus, six landfills continue to operate that have been found in violation of the directive. Two of them absorb the waste produced by the country´s largest municipalities, Nicosia and Limassol. In reply to the reasoned opinion from January 2012, Cyprus authorities indicated that full compliance with the directive would not be possible before 2015 since adequate waste infrastructure needs yet to be built.
Lithuania has received a reasoned opinion that requests amendments to its national legislation implementing the Directive on Packaging and Packaging Waste 94/62/EC. The country is expected to introduce a requirement for packaging to comply with the relevant harmonized EU standards, central to the functioning of EU’s internal market. The country has been given two months to reply, before the case is also referred to the Court.
Added to Climate Change
Recent developments in the EU ETS in aviation
After failing to meet the initial March 2012 deadline for submitting their 2011 CO2 emissions data under the EU emissions trading scheme (ETS), eight Chinese and two Indian airlines have missed the extended deadline of 15 June 2012. The two countries are the only ones out of 23 states that formed the so-called “coalition of the unwilling” (see EEL News Service 2012/4 of 27 April 2012) with airlines not participating in the EU scheme. In total, some 1,200 world airlines are covered by and participating in the scheme. For not meeting the new deadline, the airlines, including Air China and Air India, face one-off fines from Member States of no more than 50,000 EUR. Next year, missing the deadline for 2012 data will be penalized with a considerable amount of 100 EUR/ton CO2 and possibly even an operating ban from the Commission, as specified in the directive including aviation activities in the EU ETS 2008/101/EC. The airlines have been forbidden to participate by their respective national authorities who argue that the EU ETS encroaches on national sovereignty.
A number of non-EU states and airline operators, concerned about additional costs implied in the EU scheme, claim that reducing emissions is a global responsibility and should be tackled globally through the International Civil Aviation Organization (ICAO). The organization is currently considering four market-based measures for reducing the sector’s GHG emissions. Those include (1) mandatory offsetting of emissions from airlines; (2) mandatory offsetting system with an extra transaction fee for increased climate funding; and (3) two ‘cap-and-trade’ trading schemes, one of which would allow the trading of all aviation emissions while the other – only of deviations from an emissions baseline.
Among other discussed issues are possible exemptions and revenues, as well as the question of whether the chosen scheme should be based on national or airline-level participation. By now, the ICAO’s working group has rejected the imposition of a central carbon price instead of transaction fees. The head of the International Air Transport Association (IATA), Tony Tyler, and the European Commissioner for Climate Action, Connie Hedegaard, have urged the ICAO to adhere to the agreed timetable since delays only aggravate the current deadlock between the EU and the non-EU countries, and pose a threat of a trade war. However, although subsequent outcomes will be presented at the next meeting of ICAO in November 2012, the organization scheduled the publication of a draft global plan to reduce aviation emissions only for March 2013.
Added to Reviews
Environmental Finance and Socially Responsible Business in Russia – Legal and Practical Trends (Russian language edition)
This book focuses on the legal and practical aspects of environmental finance and socially responsible business practices in Russia since the 1990s. Related publications to date, tend to give a rather one-sided and negative picture. The authors in this book, however, provide a more positive and balanced outlook. Over half of them are from Russia, and most of the non-Russian authors have worked there extensively. As experts in their respective fields, they discuss a myriad of separate, but interrelated issues from an economic, legal or practical perspective. Topics include environmental law, pollution abatement, climate change and the Kyoto Protocol, renewable energy opportunities, NPAF, TACIS and EBRD projects, corporate social responsibility, environmental management systems, integration of EU environmental standards and adherence to the European Principles of Environmental Protection, environmental education and philanthropy. Giving a valuable introductory insight into the progress of environmental and socially responsible business practices in Russia, this book is essential reading for investors, academics, practitioners and those interested in sustainable development in Russia.
“????????????? ?????????? ?????????? ? ??????????????? ?????? ? ??????”, Pankina, Galina; Mucklow, Fiona M.; Douma, Wybe Th. (Eds.), Moskow: ACMC, 2011.
For English edition see the entry in EEL section on publications.
Added to Events
This advanced training programme provides timely, comprehensive and professional information to trade diplomats and attorneys. It aims at equipping participants with the knowledge, insights and practical skills on the implementation of global trade rules, as well as raising awareness about topical areas of the global trade relations and obligations. The training will enable participants to better represent and promote their countries’ and clients’ interest in trade relations, as well as provide networking opportunities. Issues to be dealt with include, among others, trade remedies, recent trends in trade in service and trade-related aspects of intellectual property; and expansion of market access to foreign companies in public procurement.
More information can be found at Asser Instituut’s website.
Location: T.M.C. Asser Institute, The Hague
Date: 17-21 September 2012
In July 2012, the Centre for the Law of EU External Relations (CLEER) at the Asser Institute was awarded a Jean Monnet grant under the European Commission’s Lifelong Learning Programme to organise two workshops under the project titled ‘Commercial power Europe – advancing societal and environmental goals through trade relations’.
More information on both workshops will follow shortly on the Asser Institute’s website and on the EEL website.
Location: T.M.C. Asser Institute, The Hague
Dates: The first workshop will take place on 9 November 2012, the second one in April 2013.
Added to Vacancies
Internship at the European Environmental Law Network
The T.M.C. Asser Institute in The Hague, The Netherlands offers advanced law students specialized in EU law with a good command of the English language the opportunity to enrich their knowledge with the practical experience of working in the field of European and International Environmental Law. The intern will be considered a full member of our research team, assisting it with:
· Legal research and position papers;
· Assisting in editing the EEL News Service;
· Assisting in editing the European Environmental Law website www.eel.nl;
· Assisting in educational events and special projects.
The intern position, for which a small remuneration is available, is offered for a period of 3-6 months, starting around September 2012. Interested candidates can send their letter of motivation and CV, in English, to email@example.com.
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)
Agata Walczak (T.M.C. Asser Institute, The Hague)
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