EEL News Service 2005/03, 10 February 2005

Dear Friends of the European Environmental Law Website,
The EEL team is happy to welcome you to the renewed EEL Website, constructed by our colleagues from the T.M.C. Asser Institute. As before, you can still find full text cases, legislation and other documents related to European Environmental Law, as well as several dossiers and articles offering a more in depth view on specific issues. You can be kept informed of updates via this EEL News Service, our free electronic newsletter, which is sent out on a two-weekly basis.
With the renewed Website, the EEL team tried to improve access to the documents available and to facilitate ease of navigation of the Website itself, so as to provide a better dissemination of Environmental Law materials. The new site offers several innovative  features,  including a search engine for all documents on the site (next to the case law database) and  new options to find all information (case law, legislation, policy documents etc.) related to one policy area. Comments and suggestions from your side to improve the EEL Website are welcome. We will be asking you for your reactions to the new website with the help of a questionnaire in the near future.
The EEL Team

Added to Legislation page, Secondary legislation, Air:
* Parliament and Council Directive 2004/107/EC of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air
The new Directive is the fourth derived Directive adopted under the 1996 Air Quality Framework Directive. Member States must transpose it into national law before 15 February 2007. The Directive sets target values “to be attained as far as possible” for all pollutants except mercury. The target will become effective from 31 December 2012. Since industrial installations are the key sources of these pollutants, the Directive specifies that the target values are not environmental quality standards as defined in the Air Quality Framework Directive. Measures to meet the values “would not” involve measures beyond the application of best available techniques (BAT), and in particular “would not lead to the closure of installations”. Governments shall report to the Commission on zones where the target values are exceeded by 30 September 2008.

Added to Case law page:
* C-463/01 Commission v Germany
ECJ 14 December 2004, nyr
MAccording to Directive 80/777, mineral water may only be bottled and transported in the same containers as authorised for distribution to the ultimate consumer. Mineral water falls under the German Packaging Ordinance in which it is stipulated that if during 2 subsequent years less than 72% of reusable packaging is sold, six months after an announcement an obligatory deposit and return system will take effect. According to the ECJ, Directive 94/62, which does not establish a hierarchy between the reuse of packaging and the recovery of packaging waste, merely allows the Member States to encourage, in conformity with the EC Treaty, systems for the reuse of packaging that can be reused in an environmentally sound manner and thus does not harmonise completely the organisation of national systems designed to encourage the reuse of packaging. A violation of Art. 28 EC Treaty is found since the replacement, as regards non-reusable packaging, of a global packaging-collection system with a deposit and return system hinders the placing on the German market of natural mineral water imported from other Member States even though there is no obligation to stop using non-reusable packaging. In fact, an increase could be witnessed in the import of mineral water in such packaging. The rule of reason cannot be invoked as the 6 months period is judged not to be sufficient to enable producers of natural mineral water to adapt their production and their management of non-reusable packaging waste to the new system, despite the fact that this period was already announced in the German Packaging Ordinance from 1998. The ECJ finds this period a violation of the proportionality principle and thus deals another blow to the efforts to curb the ever rising amounts of packaging waste throughout the EU. Also see case C-309/02.

* C-309/02 Radlberger Getraenkegesellschaft mbH & Co. S. Spitz Kommanditgesellschaft v Land Baden-Wuerttemberg (Radlberger Getränke and S. Spitz)
ECJ 14 December 2004, nyr
On the same day that Case C-463/01 was decided, in which the ECJ judged the 6 month transition period in the German Packaging Ordinance a violation of the proportionality principle, in this judgment the 6 month period is found to be possibly too short to comply with the proportionality principle. Here, however, the ECJ says it leaves the final decision on this matter to the national judge referring the matter to the ECJ in this preliminary reference case. The C-463/01 judgment should make it easy for the German judge to determine whether the period is in fact too short. In addition to C-463/01, the ECJ held that, in particular, where the new system is, as in Germany, a deposit and return system, the Member State concerned must ensure that there are a sufficient number of return points so that consumers who have been charged a deposit when buying goods in non-reusable packaging can recover the deposit even if they do not go back to the initial place of purchase.

* C-15/02 Commission v Austria
ECJ 27 January 2005, nyr
See the comment to the next judgment.
* C-92/03 Commission v Portugal
ECJ 27 January 2005
Austria and Portugal have joined a long list of EU Member States condemned by the European Court of Justice for failing to give priority to the recycling or “regeneration” of waste oils under Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils. The rulings’ impact could be negligible, however, since the European Commission – which brought the cases – has now indicated that it wants to scrap the very requirement breached by the two Member States.

* C-416/03 Commission v Greece
ECJ 27 January 2005, nyr, not yet available in English
The European Court of Justice condemned Greece for failing to transpose the “deliberate release” Directive 2001/18/EC on use of genetically modified organisms in the environment. Greece is at least the fourth EU state to be rapped over this directive.

* C-186/04 Housieaux
Opinion of 27 January 2005, not yet available in English
ECJ Advocate General Kokott criticised Belgian procedures enabling tacit rejection by authorities of environmental information requests. The precise questions dealt with relate to a national dispute and were referred for a preliminary ruling by a Belgian court.

* C-441/03 Commission v Netherlands
Opinion of 3 February 2005, not yet available in English
Advocate General Kokott has backed European Commission complaints that the Netherlands has still not properly transposed the EU Wild Birds Directive 79/409/EEC and Habitats Directive 92/43/EEC some 24 and some 11 years respectively after the legal deadlines. The Netherlands broadly agreed that it had failed to fully transpose the directives. However Ms. Kokott rejected Dutch claims that there was possible ambiguity in parts of the Habitats Directive.

Added to Events page, upcoming conferences:

* 7-8 March 2005, Fresh Perspectives on Human Behaviour and the Environment, Prague, Czech Republic

* 29 March 2005, European IALE Congress 2005: Landscape Ecology in the Mediterranean, Faro, Portugal
* 31 March 2005, Inaugural Conference of the Association for the Study of Literature and the Environment, Australia
* 2 April 2005-10 May 2005 XI European Students Symposium on Environment, Sevilla, Spain

* 7-8 April 2005, The Future of Rural Development – Making It Simpler, More Coherent and Effective, Seminar I, Maastricht, the Netherlands

* 12-13 April 2005, Native flora for the future, Reading, UK

* 12-14 April 2005, Urban Transport 2005, Algarve, Portugal

* 14 April 2005, Euro Sustainability 2005, Aalborg, Denmark
* 17 April 2005, International Conference on Coastal Conservation and Management in the Atlantic and Mediterranean, Algarve, Portugal
* 19-20 April 2005, Water 2005, London, UK
* 24-25 May 2005, 2nd Annual Preparing for REACH Conference, Brussels, Belgium
* 27-28 May 2005, Regional Trade Agreements and the WTO Legal System, Edinburgh, UK
* 22-25 August 2005, COHAB 2005 – Conference on Health and Biodiversity, Galway, Ireland
* 22-24 September 2005, 6th Annual Conference on Environmental Taxation, Leuven, Belgium
* 29-30 September 2005, The Future of Rural Development – Making It Simpler, More Coherent and Effective, seminar II, Maastricht, the Netherlands

Added to Dossiers/Links page, Introduction to EEL:
* Russian translation EEL: an introduction
A short introduction on the part of the law of the European Community that refers to the protection of the environment and sustainable development, and the case law on these matters. Inter alia, the main provisions in the EC and EU Treaties dealing with the protection of the environment and with sustainable development are introduced. Also, the different treaties that altered the original European Economic Community (EEC) Treaty into the present European Community (EC) Treaty (SEA, Treaties of Maastricht, Amsterdam and Nice) are touched upon and also, attention is paid to the draft European Constitution.

Added to Reviews page:
* Trade and Energy: Investment in the Gas & Electricity Sectors, 2004
* Berscherming van flora en fauna, serie: EU-Wetgeving, Rechtspraak en Documentatie, deel 18, 2004
* Europa in beweging & EU forum, 2004

Wybe Th. Douma (T.M.C. Asser Institute, The Hague)
Jens Hamer (Academy of European Law, Trier)

Daria Ratsiborinskaya (Institute of European law, MGIMO, Moscow)

Technical realisation:
Marco van der Harst, Julien J.M. Simon
(T.M.C. Asser Institute, The Hague)