EEL News Service Issue 2012 8 of 12 October 2012

Added to Case Law

Diversion of river allowed if numerous conditions are met

Case C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias (Greece), 11 September 2012

The European Court of Justice (ECJ) issued a preliminary ruling in a case about the river Acheloos in western Greece. By a number of legislative acts, Greece aimed at the partial diversion of the upper waters of this river to another river, Pinio. This would serve irrigation needs, produce electricity and supply local towns with water. Numerous organisations and local authorities, notably the Prefectural Authority of Aitoloakarnania, opposed the project. The Simvoulio tis Epikrateias, i.e. the Greek Council of State, asked the ECJ for help in the matter of the interpretation of the Water Framework Directive (WFD), the Habitats and Wild Birds Directives, the Directive on Environmental Impact Assessment (EIA) and the one on Strategic Environmental Assessment (SEA). The latter instrument covers plans and programmes and not projects for the partial diversion of waters of a river, the ECJ found.

According to the ECJ, the WFD does not preclude a priori the diversion of water from one river basin to another. Management plans are only required from 22 December 2009 onwards, so in itself the absence of them does not stand in the way of decision preceding that date. However, it is settled ECJ case law that during transposition and transition periods of directives, member states must refrain from any measures liable to seriously compromise the attainment of the result prescribed by the directive. Hence, the diversion may not seriously threaten the objectives of the WFD. In case a river diversion might have adverse effects on the water status (Article 4(7) WFD), then consent may only be given if at the very least the conditions set out in Article 4(7)(a) to (d) are satisfied. This means inter alia that the MS has taken all the necessary measures to prevent water deterioration. The diversion can be justified by overriding public interest reasons, however.

Adopting the project through legislation means that the EIADirective does not apply, provided that “the objective of this Directive, including that of supplying information, are achieved through the legislative process” (art. 1(5) EIA Dir. 85/337). If such information (detailed in point 85 of the judgment) was not made available to parliament, the exception of art. 1(5) EIA cannot be used.

The ECJ noted that, based on Habitats directive 92/43/EEC, the supply of drinking water can be considered as an “imperative” reason of “overriding public interest” to accept river diversion in Sites of Community Importance (SCI) that host priority natural habitats or species, but in principle irrigation purposes cannot, unless irrigation has beneficial consequences of primary importance for the environment (point 128). It is stressed also that the Habitats Directive in the light of the objective of sustainable development laid down in article 11 TFEU (ex article 6 EC) still allows for the conversion of a natural fluvial ecosystem that forms a part of the Natura 2000 network into a largely man-made fluvial and lacustrine ecosystem, provided the provisions of the directive are satisfied. This means inter alia that (in line with article 6(4) Habitats directive) compensatory measures are to be taken that ensure the integrity of the network (point 139). As for wild birds, the ECJ stressed that development consent for a project that will divert water and is not directly connected with or necessary to the conservation of a special protection area, but likely to have a significant effect on it, may not be given in the absence of information or reliable and updated data on birds in that area (point 117).


Added to ICJ Case Law

Environmental dispute Nicaragua – Costa Rica

The Republic of Nicaragua commenced proceedings against the Republic of Costa Rica at the International Court of Justice (ICJ) regarding violations of Nicaraguan sovereignty and major environmental damages to its territory in December 2011. Nicaragua accuses Costa Rica that due to its construction plans of a road along the borders, the ecosystem and protected wetlands of the San Juan River are seriously threatened.

Previously, Costa Rica had commenced its own proceedings at the ICJ against Nicaragua. The country claimed an alleged incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica. Costa Rica claims that Nicaragua’s army activities at the border have illegally occupied an area due to the construction of a canal in San Juan River and the relevant dredging works. These activities are claimed to form a serious threat to the river’s water flow to the Colorado River, the wetlands and protected wildlife of the area.

Nicaragua asked the ICJ to examine whether both cases could be joined.

The ICJ issued an order on provisional measures on 8 March 2011, demanding inter alia each Party to refrain from sending to, or maintaining in the disputed territory, including the can~o (natural channel), any personnel, whether civilian, police or security.

By an Order of 23 January 2012, the Court fixed 19 December 2012 and 19 December 2013 as the respective time-limits for the filing of a Memorial by the Republic of Nicaragua and a Counter-Memorial by the Republic of Costa Rica in the proceedings initiated by Nicaragua.

See also ICJ Press releases 2011/40 (Nicaragua) and 2010/38 (Costa Rica)


Added to Legislation

EP approves new Energy Efficiency Directive

In September 2012, the European Parliament (EP) voted in favor of the proposed Energy Efficiency Directive (EED). In line with the EU’s climate and energy 20-20-20 targets (20% reduction in greenhouse gas emissions; 20% energy from renewable resources and 20% more energy efficiency by 2020), the EED aims at cutting energy consumption by 20% by 2020, saving the EU €50 billion annually. The new Directive will be repealing both the Cogeneration Directive 2004/8/EC and the Energy Services Directive 2006/32/EC.

The 20% energy savings target is not binding but “indicative” (art.3). It obliges each Member State (MS) to implement its “national energy efficiency targets” based on its “either primary or final energy consumption, primary or final energy savings, or energy intensity” (as defined in article 2 EED).

As for public buildings, MSs must ensure that 3% of the total floor area is renovated per year and meets the minimal energy criteria (established in art. 4 of Directive 2010/31/EUon Energy performance of buildings). At the start, the percentage is calculated on the basis of floor areas over 500m2. From July 2015 onwards, this will change to 250m2, in line with the Commission’s proposal. According to article 9 Directive 2010/31/EU, by 2019 all new public buildings must be nearly zero energy buildings.

With the exemption of armed forces’ contracts that are subject to different regulation, each MS is obliged to purchase goods, services and buildings that meet the EU energy efficiency standards (EED Annex III).

MSs also have to set an “energy efficiency obligation scheme”. This scheme obliges energy companies to reach a “cumulative end-use energy savings target” and manage a decrease of 1,5% of their annual sales to final consumers per year until 2020. Large energy enterprises need to execute high quality energy audits that are accountable to efficiency criteria (EED Annex VI). Competent independent national authorities will supervise the audits. EED establishes the first audit three years after its entry into force (probably by the end of 2015) and following once every four years.

Questions remain though. EP already flagged the EED’s effectiveness vis-à-vis EU industry. Also, while the EED’s goal is 20%, estimates show it will achieve only around 15% reduction in energy consumption. An added 2% is to be achieved through the Fuel efficiency Regulation 2009/443/EC and other rules that are still in the pipeline. Consumers will be effected when energy companies raise their prices in order to meet the EED’s requirements. The EED does underline that energy consumers have the right to receive competitive prices and accurate billing information without extra charges.

See also: “Energy Efficiency: billions to be made in savings”


Added to Air Pollution

Leaked RED draft proposes limit of 5% crops biofuels by 2020

The Renewable Energy Directive demands 10% of transport fuel to be derived from renewable sources such as biofuels, by 2020. According to many, this policy is flawed, because many conventional biofuels are doing more environmental harm than good. The RED does stimulate advanced biofuels (notably by allowing to count advanced biofuels double), but in over 90% of the cases MSs are planning to meet the 10% target with conventional biofuels. This follows from the National Renewable Energy Action plans (NREAPs) that were submitted to the European Commission, a 2012 IEEP report notes. The same report also explains the dangers of Indirect Land Use Change (ILUC) effects of conventional biofuels. The increase of crops biomass contributes disproportionately towards an agricultural use that fails to cover food supply, which in its turn leads to higher food prices, further deforestation and higher greenhouse gas emissions.

In that light, a solution like the one the Commission is considering now might offer solace. A leaked draft proposes limiting the use of crop biofuels (made from rapeseed, wheat etc.) to 5% of the total energy consumption in the EU transport sector by 2020. The latest 2011 figures show that already, 4.5% of EU transport fuels stems from crop-based biofuels. A 5% limit would thus mean that no substantial further increases would occur. Instead, the EU wants to increase the use of non-land using biofuels, made from household waste, algae etc. Such advanced biofuels are to be counted fourfold, meaning that if this would lead to increased use of these biofuels the 10% target would be met with less actual use of biofuels.

The draft also plans to cut all public subsidies as of 2020, and only subsidize biofuels crops resulting in greenhouse gas savings and are not produced from crops used for food and feed.

The draft attempts to manage emissions savings by implementing new ILUC emissions values for the three main crop based biofuels; cereals, sugar and oilseeds. The savings from these values are to be included in the EU fuel quality legislation and aim at reducing emissions by 6% by 2020.

To approach the 2020 goal of 10%, the EU wants to increase the percentage by household waste and algae that are “non-land using biofuels”.

–        See also Dutch PBL report on the Commission’s draft plan (Biobrandstoffenbeleid raakt de kern van duurzame ontwikkeling)”, in Dutch

–                      “Biodiesels pollute more than crude oil, leaked data show”, 27.01.2012, updated 30.01.2012

“Exclusive: EU to limit use of crop-based biofuels-draft law”, 10.09.2012


US Senate decides against EU Emissions Trading Scheme

On 22 September 2012, the US Senate passed a bill asking the Secretary of Transport to prohibit US airlines to participate in the EU Emissions Trading Scheme (EU ETS) “in any case in which the Secretary determines the prohibition to be, and in a manner that is, in the public interest.” In reaching this decision, the impacts on U.S. consumers, U.S. carriers, and U.S. operators; the impacts on the economic, energy, and environmental security of the United States; and the impacts on U.S. foreign relations, including existing international commitments” are to be taken into account. It does not seem likely that the Senate was thinking of the UN Framework Convention on Climate Change here, in which the USA and other parties committed themselves to achieve a stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the world’s climate system.

Europe’s ETS was characterized by a Senate’s member as an “illegal tax” imposed by the Europeans. Interestingly, the Senate provides to the Secretary of Transport the discretion of reassessing this determination in case of either an amendment in EU ETS or of a global agreement or of a national law that addresses aircraft emissions. One year earlier the House of Representatives has already voted for a similar measure that differs in a number of points. Particularly, the House of Representatives expressed their concern that the EU undermines the efforts by the International Civil Aviation Association (ICAO) and theorized that it is uncertain whether the EU ETS revenues will be used for environmental reasons. The differences between the bills of the US Senate and the one of the House of Representatives need to be bridged before there could become a legally binding act.

Under the EU ETS, airlines are required to submit their emissions data per year. All EU airlines and most non-EU airlines – including U.S. based airlines – landing in Europe did so, but Chinese and Indian companies have failed to comply with this obligation. Despite the last EU-China summit and their environmental agreements, there was no mention of the EU ETS. Heads are now turning to the ICAO that could come up with a global framework for an emissions system. The EU has stressed its persistence on the EU ETS unless the ICAO finally arrives at an agreement on such global action. EU Commissioner for Climate Action, Connie Hedegaard, supported the Senate’s bill proposal for an international ETS approach. Up till now, ICAO has only established voluntary measures to reduce greenhouse gas emissions. An international ETS plan could lead avoiding conflicts. So far however, ICAO positions show little progress in spite of years of discussions.

–        See also: “EU Airline Emissions Rule Under Fire by US Senate”, 26.09.2012

–                        “U.S. and E.U. on collision course over aircraft emissions”, 25.11.2011

–                        “Inclusion of aviation into the EU ETS”, 28.03.2012


Added to General

EU investigates dumping of Chinese solar panels

The European Commission launched an anti-dumping investigation against China’s solar panels industry in September 2012. China’s solar panel industry occupies 65% of the global production. Some 10% of its production, worth around €21 billion, is exported to the European Union.

The Commission acts upon a complaint filed by the “EU Pro Sun” industry association that represents 25% of EU production. The association accused China of exporting its solar energy products in a price below the market value due to illegal state subsidies and asks for tariff increases up to 120% (see summary). China opposes the accusations and thus the dispute created problems in trade relations between EU and China. The investigation will last for 15 months. China is number one in anti-dumping cases investigated by the European Union.

–        See also: “Summary of the Anti-Dumping Complaint” by the “Alliance for Affordable Solar Energy” (AFASE)

–                       “EU launches China anti-dumping probe”, 06.09.2012

–                       “Trade spat escalates on eve of summit”, 19.09.2012

–                       “Chinese solar panel firms fear Europe trade war”, 26.07.2012


Added to Reviews

The Toxic Truth

“The Toxic Truth. About a company called Trafigura, a ship called The Probo Koala, and the dumping of toxic waste in Côte d’Ivoire” is an extensive report released by Amnesty International and Greenpeace Netherlands about one of the world’s largest oil trade companies, Trafigura, and its alleged responsibility for dumping dangerous toxic waste in Abidjan, Ivory Coast, in 2006. The waste was stored in the “Probo Koala” boat and wandered around Europe and Africa because the company, as the report explains, was unwilling to pay the high costs of proper disposal. By using illicit means, the report claims, the company managed to get rid of it in Ivory Coast. There, some 100,000 people are believed to have suffered illnesses as a result of the dumping of the hazardous waste at regular household waste dumps in and around the city, and 17 persons allegedly died. Trafigura settled a lawsuit in London by making a large amount of money available to the claimants, but many of the victims themselves remain uncompensated. The report reveals the facts of the case, the company’s responsibilities, the inefficiencies of the enforcement systems in countries involved, its impact in the environment and humanity, and presents recommendations that could contribute to avoiding similar situations in the future.

The full report (232 p., 6,87 Mb) can be downloaded for free in Pdf format at the website of Amnesty International.


Added to Events

EEB annual conference 2012: “Renewing Europe’s commitment to sustainable development in the aftermath of Rio+20”

On 1 October 2012, the European Environmental Bureau(EEB) annual conference took place in Brussels. The outcomes of post Rio+20 were described by most speakers as disappointing, though some saw it as the best that was to be expected in the current situation. The conference provided a unique opportunity of an exchange of views among politicians, representatives of international and EU institutions, officials representing EU member States, NGOs, trade union, academia, business etc.

The most important outcome of Rio+20 is the need to focus on sustainability, including environmental sustainability, and the need to develop and implement strategies respecting the boundaries of our world.

–              See also our own EEL Network report on Rio+20: will it green economies?


Introduction to the EU’s climate policy acquis: policy gaps?

This Autumn, the Institute for European Studies organizes a series of lectures that focus on “EU energy policy: On the Road to Decarbonisation”. The European Union has the ambition to drastically reduce greenhouse gas emissions. To do so, decarbonisation in the energy sector is essential. The first lecture took place on 10 October and examined the necessary strategies to achieve this goal and assess the dependency of climate change to energy policy.


Decarbonisation by 2050: Roadmaps and scenarios compared

This lecture will concentrate on various published scenarios of how to achieve decarbonisation by 2050. Questions, such as why it is essential to decarbonise the energy sector or how the decarbonised EU will look like and what technologies will play a leading role, will be discussed.

Location: Institute for European Studies, Karel Van Miert Building, Conference Rooms Rome & Lisbon, Pleinlaan 5, 1050, Brussels

Date: 17 October 2012


Decarbonising the power sector: opportunities and challenges

In a decarbonised world, renewable energy resources will play a primary role in electricity generation. The lecture will discuss the opportunities and challenges that appear from decarbonising the energy sector.

Location: Institute for European Studies, Karel Van Miert Building, Conference Rooms Rome & Lisbon, Pleinlaan 5, 1050, Brussels

Date: 24 October 2012




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)



Petroula Lisgara (T.M.C. Asser Institute, The Hague)



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