KEY EU ENVIRONMENTAL LAW PRINCIPLES AND OBLIGATIONS OF MEMBER STATES – The ITALIAN CASE

1. KEY EU ENVIRONMENTAL LAW PRINCIPLES AND OBLIGATIONS OF MEMBER STATES – The ITALIAN CASE Alessandra Barreca University of Siena- Venice International University

2. AIM & OUTLINE • Understanding EU Environmental Law principles; • Understanding EU Member States (MS) implementation obligations towards EU Environmental Acquis; • PART I: EU Env Law principles; • PART II: MS obligations and relationship between national and EU Law; infringement procedure; the Italian case

3. Part I:Key EU Environmental Law Principles

5. Which role played by the Environmental Principles? • Inspire EU Environmental Law and Policy; • Represent the grounds on which EU Envlegislationisdeveloped (they are usuallyrecalled in the preamble, recitals and objectives of the Env. acts); • Provide a source for interpretation of environmentalnorms; • Provide a source for filling the gaps in the environmentalnorms

6. The Principle of Integration • Art 11 TFEU: “Environmental protection requirements must be integrated in the definition and implementation of the Union’s policies and activities, with a view to promoting sustainable development”; • Broad definition; • “Environmental protection requirements”refers to all issues, interests, laws, policies and needs related to environmental protection; • No priority or supremacy of environmental requirements over other sectors but rather a continuous greening of other EU policies required; • Promotion of environmental policy not as self standing isolated area; • The application of the principle requires decision making and judiciary Authorities to make a balance between environmental protection requirements and the interests belonging to other policies

7. Links between environmental policy & other policies: main sectors affected

8. The Principle of Sustainable Development (SD) • Art 11 TFEU: “Environmentalprotectionrequirementsmustbeintegrated in the definition and implementationof the Union’s policies and activities, with a viewtopromotingsustainabledevelopment”; • No definitionof SD in TFEU butreferenceto SD in International Law: “A developmentwhichmeets the needsof the presentwithoutcompromising the abilityoffuturegenerationstomeettheirownneeds” (UNCED-Brundtland Report Our Common Future, 1987); • SD addressedby Goteborg European Council-2001: “SD is a fundamentalobjective under the Treaties. Thatrequiresdealingwitheconomic, social and environmentalpolicies in a mutuallyreinforcing way (...)” and by EU Sixth EnvironmentalActionProgramme: “A prudentuseofnaturalresourcesand protectionof the global eco-system togetherwitheconomicprosperity and balanced social development are a conditionfor SD (…); • Extensivereferenceto SD as ultimate objectiveofrecent EU Environmental, Energy and ClimateChangeLaw

9. Strict link between Integration & SD:Integration as bridge to SD

10. The Prevention Principle • Calls for an a anticipatory approach to environmental issues: ACTION TO BE TAKEN AT AN EARLY STAGE BEFORE ENVIRONMENTAL IMPAIRMENT HAS OCCURRED! • Cornerstone of EU Environmental policy from the very beginning of its development: “The best Environmental policy concerns preventing the creation of pollution or nuisance at source, rather than subsequently trying to counterfact their effects”. (EEC First Environmental Action Programme-1970); • Applied in presence of full scientific evidence; • Implemented by means of extensive EU Env. Legislation on industrial permitting (IPPC Directive 2008/01 now IED 2010/75); industrial accidents (EU Seveso Directive); waste management (EU/Directive 2008/98); impact assessment (EU EIA Directive 2011/92)

11. The Precautionary Principle(I) • Firstly developed under International Law, introduced as EU Env Law principle in 1992 (Maastricht Treaty); • “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious damages, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”(Rio Declaration on Environment and Development-Principle 15-1992); • “Measures are taken when there are reasonable grounds for concern that substances or energy introduced directly or inderectly into the environment may bring about damage to human health, or harming living resources, even where there is no conclusive evidence of causal relationship between the inputs and the effects”(OSPAR Convention on the Protection of the Marine Environment in North East Atlantic-1998)

12. The Precautionary Principle(II) • Differentlyto the PreventionPrinciple, itapplies in absenceof full scientificcertainty; • Potentialcontroversialinterpretation and applicationof the precautionaryprinciplewhichmayriskstopoliticisesdecision-makingtherefore… • …EUCommissionadopted a Communication on the PrecautionaryPrinciple (COM 2000-1) toprovideguidelinesforitsuse and avoiditsabuse: • PrecautionaryPrinciplenottobeusedtojustifyarbitrarydecisions; • Applicableonly in presenceofpotentialrisk; • Riskassessmenttobemade (even in absenceofscientificcertainty, scientificevaluation; hazardidentification and characterisation; appraisalofexposure and riskcharacterisation); • Decisionofwhether or nottoact: Risk management; • Measurestakentobeproportional, non-discriminatory, consistent.

13. The Precautionary Principle(III) • Implemented through EU legislation on GMOs (EU Directive 2009/41) and on Climate Change; • Endorsed by extensive and settled ECJ case law: “Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent” (BSE Case C-180/96 UK/Commission; but see also Pfizer Case T-13/99; Afton Chemical Case C-343/09; Gowan Case C-77/09)

14. The Rectification of Damage at Source • Anticipatory and earlyresponsetoenvironmentalimpairment, pollution or nuisance; • Implementedby EU Env. Legislationsettingemissionstandards (levelsforpollutants or nuisancethatcannotbeexceeded in emissionsfrom industrial installations/economicactivities) and qualitystandards (levelsofpollution or nuisancepermittedthatcannotbeexceeded in environmental media): EU Water Directive 2000/60; EU FrameworkDirective on Waste 2008/98; Seveso Legislation on industrial accidents; • ECJ: “(…) wasteshouldbedisposedofascloseaspossibleto the placewhereisproduced in ordertokeep the transportofwaste the minimum practicable”(Case C-2/90 Commission/Belgium)

15. The Polluter-Pays Principle • A legal principle with a marked economic dimension: costs of preventing or eliminating pollution shall be borne by the polluter, not by the Environment, the whole Society or Public Authorities; • Promotes an “internalization”of environmental costs by preventive channeling them to the polluters; • It does not cover cases of civil or criminal liability; • Extensively implemented by EU Env Legislation on taxes and charges applicable to industrial activities (IED EU Directive 2010/75; EU Directives 2000/53 on End of Life Vehicles and 2002/96 on Electrical and Electronic Waste)

16. Part II:ObligationsofMemberStates

17. Obligations of Member States:introductory remarks • Legalactsadoptedby the Union are binding on the MemberStates (Art 288 TFEU); • No needofstrictlyimplementing the EU Env. Principlesbutratherobligationofimplementing the EU EnvLegislationbased on them and recallingthem; • Duty ofloyalcooperation (ART 4.3 TFEU): “Pursuantto the principleof sincere cooperation, the Union and the MS shall, in full mutualrespect, assist eachother in carrying out taskswhich flow from the Treaties. the MS shall take any appropriate measure, general or particular, toensurefulfilmentof the obligationsarising out of the Treaties or resultingfrom the actsof the Institutionsof the Union. the MS shall facilitate the achievementof the Union’s tasks and refrain fromanymeasurewhichcouldjeopardise the attainmentof the Union’s objectives”

19. The relationship between National & EU Law • Supremacy of Community Law over National Law; • Need of ensuring uniform application of EU Law to attain EU’s objectives; • “The Community constitutes a new legal order of international law for the benefit of which the MS have limited their soveregn rights, albeit within limited fields(…)”ECJ- Van Gend en Loos Case 26/62; • “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on entry into force of the Treaty, became an integral part of the legal systems of the MS (…); the obligations undertaken under the Treaty would not be unconditional, but merely contingent, if they could be called into question by subsequent legislative acts of the signatories (…)”ECJ- Costa/Enel Case 6/64; • Settled ECJ case law making explicit reference to “precedence/prevailing” of Community law over national one (ECJ- Simmental Case 106/77; Factorame Case 213/89)

20. Concrete obligations of MS:general principles • General obligation of actively contributing to the achievement of EU’s objectives and goals through implementing EU’s legislation; • General obligation of abstaining from actions jeopardising the attainment of EU’s goals

21. Concrete obligations of MS:!…the implementation challenge! IMPLEMENTING EU LAW INTO THE NATIONAL LEGAL SYSTEM: • Formalfull&timelytransposition-tobefulfilledbymeansofanadequatelegalinstrument, i.e.: a legallybinding legislative or regulatorynationalact(legalcertaintytobeensured); • No suitabilityofadministrativecirculars or multiannualplans“Tosecure full implementationofDirectives in law and notonly in facts”, ECJ- Commission/Germany Case C-131/88; • Practicalapplication (put in placeall the Bodies, mechanisms, tools and procedurestoensure the concrete implementationof the law); • Reportingduties on MemberStates (EC Directive 91/692)

22. Member States failure to comply with EU Law obligations&EU enforcement actions against Member States:THE INFRINGEMENT PROCEDURE

23. The conditions: Article 258 TFEU • “If the Commission considers that a MS has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the ECJ”.

24. Different reasons of MS breach of EU Law; • Commission competence to act deriving from its Guardian of the Treaty role; • Several investigation files opened by the EU Commission but no proper investigation tools; • (Alleged) Violations detected through MS reporting obligations outcomes and/or EU citizens complaints filed to the EU Ombudsman; • Only MS (allegedly) in breach and EU Commission parts of the procedure; • Other MS intervents supporting Parties allowed in the judicial stage

25. The stages(I) • 4 distinctstages: • Initialpre-contentiousstage: MS diplomaticnegotiationswith EU Commission to explainits position and reach an accomodation (pre-judicial, compulsory stage); • Formal Notification stage: the matterisnotsolved under stage 1, the Commissionformallynotifies the MS concerned of the specificinfringementalleged by means of a formalletter, the MS isgivenpossibility to reply (pre-judicial, compulsory stage ifmatternotsolved under 1) • MS time to reply: usually 2 months; • Commissiondecision on whether to close the case or proceed: usually 1 year; • Commissionformalletterform and content to be accuratelydesignedasitdetermines the object of litigationeven in the (possible) forthcomingstages of procedure; ECJ Cases C-266/94 Commission/Spain and C-337/89 Commission/UK

26. The stages(II) • The Reasoned opinion stage: matterstillnotsolved (allegedinfringementpersists, Commissionnotsatisfied with MS explanations), Commissionissues a reasoned opinion clearlystating the groundsand substance of the allegedinfringement and specifiesthe time period for remedying thebreachof EU Law (pre-judicial, compulsory stage ifmatternotsolved under 2 and Commissiondecides to proceed) • Reasoned opinion in writtenform(contentshall be clear and based on issuesraised under formalnotice stage); • Grounds of complaintagainst MS to be statedclearly, no additionalpoint of complaintallowed, no general or ambiguousreasonsallowed,object of litigation to be clearlyidentified and determined; • Time span for MS to remedy the (alleged) violation of EU Law to be determined; • Respect of principles of naturaljustice and right of defense of MS

27. The stages(III) • The referralof the matterto the ECJ: matternotsolved under stage 3, MS hasnotcompliedwith the conditions set in the reasoned opinion and remediedto the (alleged) violation. The Commissionfinds the violationpersists and decidestobring the MS before the ECJ (judicial stage, notcompulsory); • High degreeofdiscretionof the EU Commissionretaining the powerto decide whethertoproceed; • Rightsofdefensetobeensured (sameobjectoflitigationstated in the formalnotice+reasoned opinion); • Burdenofproof on Commission (incumbent on Commissionto prove the allegedviolation); • Declaratorynature of the rulingof the ECJ

28. …Whatif? • IT ISN’T OVER TILL IT’S OVER!: Art 260 TFEU: “If the ECJ findsthat a MS hasfailedtofulfilanobligation under the Treaties, the MS shallberequiredto take the necessarymeasurestocomplywith the judgementof the Court. If the Commissionconsidersthat the MS concernedhasnottaken the necessarymeasurestocomplywith the judgementof the Court, itmaybringthe case before the ECJ aftergiving the State the opportunitytosubmititsobservations. Itshallspecify the amountof the lump sum or penalty paymenttobepaidby the MS concernedwhichitconsiders appropriate in the circumstances. If the ECJ findsthat the MS concernedhasnotcompliedwithitsjudgementitmay impose a lump sum or payment on it. (…)”; • MS failuretocomplywithanearlier ECJ ruling; • EU Commissionactiverole in detecting the MS failure and starting the art 260 TFEU procedure; • Discretionof EU Commission; • MS rightsofdefensetobeensured; • Declaratory and sanctionatorynature of ECJ ruling

29. The pecuniary penalty • Sanctiontobedeterrent and notpurelysymbolic; • Lump sum or daily sum penalty; • Guidelinestocalculateamountof penalty developedby EU Commissionbutcertaindegreeofdiscretionretainedby ECJ; • 3 criteria: penalty tobeproportionatetoseriousnessofviolation; durationofviolation; likelyhoodtoactas a deterrentfor future infringements; • Uptodate 3 art 260 ECJ judgementsimposingfinancialpenalties in caseshandledby the EU Commission-DGEnvironment: Cases C-387/97 Commission/Greece (wasteDirective, 20.000€/dayofdelay in implementingmeasurestocomplywithearlier ECJ judgement); C-278/01 Commission/Spain (qualityofbathing water Directive, 624.150€/yearuntil the earlier ECJ judgementisfullycompliedwith); C-121/07 Commission/France (GMOsDirective, lump sum=10.000.000€)

30. Some figures… (Source: EU Commission-DGEnvironment, 13/09/2012)

36. The Italian Case

37. Member State of the EU since 1957 (foundingMemberofformer CEE, then the EU, now“the Union”); • Supremacyof EU LawovernationalonerecognisedaseffectofArticle 10 Constitutionof the Italian Republic: “The Italianlegal system isconsistentwith the International Lawnormsgenerallyrecognised”. (“L’ordinamento giuridico Italiano si conforma alle norme di Diritto Internazionale generalmente riconosciute”); • Supremacy EU Lawalsorecognisedaseffectofruling 170/1984 ItalianConstitutional Court, where the Supreme Court foundthat in case ofcontrastbetweenan EU and a nationalnormregulatingsectors under EU competenceasenvisaged in the Treaty, the EU normshallhave immediate effectivenesswithconsequentdisapplicationby the ordinarynationaljudgesof the nationalnorm in contrastwith the EU one; • Furhtermore, Article 117 ItalianConstitutionprovidesthat the legislative powerisimplementedby the State and the RegionalInstitutions, accordingto the Constitution and the International and EU obligations; • Environmental and ecosystemprotection under exclusivecompetenceof the central State aseffectofArticle 117 ItalianConstitution (legislative powerretainedbyParliament and National Government)

38. The implementationof EU Law in Italy • Implementation procedure regulatedbyLaw n.11/2005; • Everyyear the ItalianParliamentadopts a framework“EU Law” (Legge Comunitaria) spelling out the methods, legislative tools and timeframestobeusedtoimplementall the EU legislation and ECJ rulingsadopted in thatyearby EU Institutions; • The yearlyItalianLegge Comunitaria isdraftedby the ItalianMinisterfor the EU Policiesaccordingto the guidelinesof the National Parliament and in cooperationwithotherinterestedDepartments and Regional Legislative Institutionsthatmaysubmittheirobservations/opinionsto the Ministry; • Itidentifies the single EU Lawstobeimplemented in separatedAnnex/Annexes; • Itcontainsdetails on: delegationof legislative powertospecificallyidentifyied National/RegionalAuthorities in chargeofimplementing the EU Lawsaccordingto the nationaldistributionof legislative competence and consistentlywith the nationalrules on powerofdelegationof legislative competence; the single legislative instrumentstobeadopted (Law, Decree, Legislative Decree+anyfurtheradministrativeactnecessarytoachieve full implementation); the timespanforadoptionof the implementingactsenvisagedtherein; • Itusuallyalsoincludes some express provisions and guidelines on the specificrules/amendmentstobeadopted (definitions; obligations; rights; prohibitions…)

39. The legislative iter in detail IF ITER OK: PROMULGATION BY PRESIDENT OF REPUBLIC & PUBLICATION IN ITALIAN OFFICIAL JOURNAL(OG) FOR ENTRY INTO FORCE ☺!

40. An Italian case(I) • Case C-297/08 Commission/Italy (Art 258 TFEU); • Italian alleged breach: failure to fulfill obligations envisaged in Artt. 4,5 Directive 2006/12/EC (now Dir. 2008/98) on Waste management: i.e.: failure to adopt Waste Management plan & Integrated and adequate network of waste disposal installations with consequent alleged danger for human health or the environment and violation of principles of self sufficiency and proximity in waste management and disposal; • Matter not solved under pre-litigation procedure (1:exchange of memorandum and written explanations between Italy and Commission, May-July 2007; 2:Commission letter of formal notice to Italy & reply by Italian Ministry for the Environment, August-December 2007; 3:Commission reasoned opinion, February-March 2008; Commission action brought before ECJ in July 2008; ECJ ruling in March 2010

41. An Italian case(II) • Some of the Italian Republic arguments: it cannot be held responsible for the alleged failure to fulfil obligations, which is attributable, rather, to certain events which constitute force majeure, such as the opposition of the local inhabitants to the establishment of landfills in their municipalities, the presence of criminal activity in the region and the failure by public contractors to meet their contractual obligations to construct certain essential installations in the region; • MAIN FINDINGS OF THE COURT: • “The principle that environmental damage should, as a matter of priority, be remedied at source – laid down in Article 191 TFEU as a basis for Community action in relation to the environment – entails that it is for each region, municipality or other local authority to take appropriate steps to ensure that its own waste is collected, treated and disposed of and that waste must accordingly be disposed of as close as possible to the place where it is produced, in order to limit as far as possible the transportation of waste. Member State cannot rely on provisions, practices or situations in its domestic law to justify non-compliance with obligations or time-limits laid down in a directive”; • ECJ ruling: “(the Court) Declares that, by failing to adopt, for the region of Campania, all the measures necessary to ensure that waste is recovered and disposed of without endangering human health and without harming the environment and, in particular, by failing to establish an integrated and adequate network of disposal installations, the Italian Republic has failed to fulfil its obligations under Articles 4 and 5 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste”.

42. Concludingremarks • The Key EU EnvironmentalPrinciples are guiding and inspiringruleswhoseprimaryfunctionistoprovide the grounds and the vision for EU EnvironmentalLawmeasures & targets; • Theyshallrely on aneffective EU Environmentallegislationfullyimplementing and recallingthem in ordertobefully operative; • The EU MemberStatesimplementation challenge shallnot turn intoanimplementation gap! in ordernotto compromise the achievementof EU Environmental Policy goals

43. KEY EU ENVIRONMENTAL LAW PRINCIPLES AND OBLIGATIONS OF MEMBER STATES – The ITALIAN CASE Alessandra Barreca University of Siena- Venice International University alessandra.barreca@gmail.com

44. KEY EU ENVIRONMENTAL LAW PRINCIPLES AND OBLIGATIONS OF MEMBER STATES – The ITALIAN CASE Alessandra Barreca University of Siena- Venice International University alessandra.barreca@gmail.com