Environmental Case Law Database
Environmental case law at your fingertips: The new database provides you with the full text and concise summaries of the most relevant decisions of the Court of Justice of the European Union (CJEU or ECJ) and the General Court (formerly called Court of First Instance, CFI), the European Court of Human Rights (ECtHR), the International Court of Justice (ICJ), the World Trade Organization (WTO), the International Tribunal on the Law of the Sea (ITLOS) and some national courts. The cases can be found by searching full text, using case numbers, names of parties, sector etc.
Commission not obliged to revise its decision allowing for use of endocrine disrupter DEHP, says General Court on 4 April 2019 in case T-108/17
At the request of three waste recycling companies, the European Commission had authorised certain uses of bis(2-ethylhexyl) phthalate (DEHP), an organic compound essentially used to soften polyvinyl chloride (PVC) plastics. The companies had indicated that DEHP did not have a specific functional role for them, and that substance is merely present as a (largely unwanted) impurity in the waste that is collected, sorted, processed and then placed on the market in the form of recyclate. The limited presence of DEHP in the recyclate may facilitate its processing into new PVC articles by reducing the amount of pure or virgin DEHP or other plasticisers that can be added to the compounds before new flexible PVC articles are produced. ECHA identified DEHP as a substance with endocrine-disrupting properties for which there was scientific evidence of probable serious effects on the environment which gave rise to a high level concern. Nevertheless, the Commission authorised some of the requested uses of DEHP. It stressed that this decision encompassed the authorisation to place on the market and use recycled soft PVC compounds and dry-blends containing DEHP to the extent that these ceased to be waste in accordance with Article 6 of the Waste framework directive.
ClientEarth requested the Commission to carry out an internal review of its decision. The Commission rejected that request on the ground that it was unfounded. Thereupon, the NGO asked the General Court to annul the decision on the request for internal review. The General Court presents a detailed and lengthy discussion regarding the manner in which the Commission arrived at its authorisation and aspects of the decision that allegedly violated various REACH provisions and the precautionary principle. REACH was not violated, the Court concludes. Where the latter point is concerned, the Court finds that the precautionary principle cannot be interpreted as allowing the Commission to refuse an authorisation which could be granted on the basis of Article 60(4) REACH. If the conditions of that provision are fulfilled, the Commission cannot refuse an authorisation, if it is not to breach the principle of proportionality. The proportionality principle trumps the precautionary principle, in other words, according to the General Court. Since such a line of reasoning stands in the way of the useful effect of the precautionary principle, I hope that ClientEarth appeals this judgment, so that the reasoning employed here can be scrutinised further.
Ireland violates Urban waste water directive
On 28 March 2019, the Court of Justice in case C-427/17 found that Ireland did not ensure that the waters collected in a combined urban waste water and rainwater system are retained and conducted for treatment in compliance with the requirements of the Urban waste water treatment directive 91/271 , as amended, in a number of the agglomerations. The country also did not put in place secondary or equivalent treatment in certain agglomerations, it did not ensure that urban waste water entering collecting systems from certain agglomerations, before discharge into sensitive areas, were made subject to more stringent treatment. Finally, Ireland did not ensure that the disposal of waste water from urban waste water treatment plants of two agglomerations is subject to prior regulations and/or specific authorisation.
EU pesticides law does not violate precautionary principle, AG Sharpston sets out
In case C-616/17, a French court asks advise on the compatibility of several aspects of Regulation (EC) No 1107/2009 on plant protection products with the precautionary principle. The French case concerned damage caused by activists protesting against, notably, the glyphosate containing pesticide Roundup.
In her opinion of 12 March 2019, advocate general Sharpston admits that an EU act can violate that principle by being too restrictive or by not being restrictive enough, while pointing out the discretion of the EU legislator in matters like pesticides, which implies that only manifest errors could mean that such an act would violate EU law. She sets out that the applicable Regulation states that the its provisions are underpinned by the precautionary principle in order to ensure that active substances or products placed on the market do not adversely affect human or animal health or the environment, and summarises the manner in which the approval process works and the safeguards it contains. She attaches importance to the fact that the regulation establishes a system of prior approval, states that it is based on the precautionary principle and that measures adopted under it are to be based on that principle. However, if that approval system would rely heavily on ‘sound science’ in practice, and ignore potential negative effects, the precautionary principe could still be violated. A specific concern raised were ‘cocktail effects’.
The AG finds that “it seems to me that the PPP Regulation and its related secondary legislation taken together should ensure that the possible ‘cocktail effects’ of both an active substance and a plant protection product will be included in the overall risk assessment conducted by the relevant authorities”, notably because attention is to be paid to cumulative and synergistic effects.
As for a question regarding lack of access to full information and the possibility to verify tests underpinning the safety of products, she finds that “[a] third party does not have an absolute right to conduct a counter risk assessment by reference to the industry applicant’s dossier of raw data. The role of third parties in the risk assessment process is however guaranteed through other mechanisms within the PPP Regulation, such as the public dissemination of the industry applicant’s summary dossier … and of the draft assessment report with a timeline for comments…” She refers to the CJEU case law, notably the case of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe, C‑673/13 P, EU:C:2016:889. As I explain below, following that CJEU judgment, contradictory cases were decided by the General Court’s Eight Chamber (cases T-716/14 and T-329/17, ECLI:EU:T:2019:141 and ECLI:EU:T:2019:142, Tweedale and Hautala a.o. v EFSA) on the one hand and by its Fourth Chamber on the other hand (case T-545/11 RENV, ECLI:EU:T:2018:817, Greenpeace Nederland and PAN Europe v European Commission).
The AG briefly discusses the European Parliament’s ‘Report on the Union’s authorisation procedure for pesticides’ which notes that ‘although the EU has one of the most stringent systems in the world, both the regulation as such and its implementation need to be improved for it to achieve its purpose’. She finds that laws can always be improved, that the EU legislator has discretion when it comes to a topic like pesticides and that the regulation is not vitiated by a manifest error and that, accordingly, no issue arises as to its validity.
Information about active substance glyphosate needs to be published
On 7 March 2019, the Eight Chamber of the General Court in the cases T-716/14 and T-329/17 annulled decisions by the EU food watch agency EFSA refusing access to the toxicity and carcinogenicity studies on the active substance glyphosate. This information is to be regarded as information relating to emissions into the environment. That kind of information must be made public, regardless of commercial interests. What makes these judgments especially interesting is that they contradict an earlier verdict by the Fourth Chamber of the same General Court of 21 November 2018 in case T-545/11 RENV. In that case, it was assumed by that Chamber that such information did not form information relating to emissions into the environment, since the active substance glyphosate is not intended to be released into the environment as such, but may be released only once integrated in a plant protection product subject to authorisation by national authorities. The information thus formed mere theoretical and not concrete information, it found. It is respectfully submitted that when the CJEU discussed theoretical information not forming information on emissions into the environment, other types of information were meant. The Fourth Chamber is thus too restrictive in its interpretation of what constitutes information relating to emissions into the environment.
No organic farming label for animals slaughtered without first being stunned
In case C-497/17, the CJEU decided on 26 February 2019 that the label ‘organic farming’ cannot be placed on meat of animals that were ritually slaughtered without first being stunned. Such slaughtering is authorised by way of derogation in the European Union and solely in order to ensure observance of the freedom of religion. It is insufficient to remove all of the animal’s pain, distress and suffering as effectively as slaughter with pre-stunning, hence it does not meet the ‘organic label’ requirement that “any suffering” of animals “shall be kept to a minimum at the time of the slaughter.” The CJEU thus rejects the opinion of Advocate General Wahl who had advised the Court to allow the label to be used for meat of animals that were slaughtered without being stunned first. For a discussion in Dutch of the AG’s opinion, rejecting his line of reasoning and advice, see my annotation in JM 2019/18.