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FREE MOVEMENT OF GOODS AND ENVIRONMENTAL PROTECTION

FREE MOVEMENT OF GOODS AND ENVIRONMENTAL PROTECTION. THE BIG PICTURE. INTERLINKS IN EU LEGAL CULTURE BETWEEN: THE INTERNAL MARKET EU COURTS EU ENVIRONMENTAL LAW. Sui generis type of Union/type of market . Developed from sui generis polity in 1958 to an ‘ever closer union’ (1 TEU)

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FREE MOVEMENT OF GOODS AND ENVIRONMENTAL PROTECTION

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  1. FREE MOVEMENT OF GOODS AND ENVIRONMENTAL PROTECTION

  2. THE BIG PICTURE INTERLINKS IN EU LEGAL CULTURE BETWEEN: THE INTERNAL MARKET EU COURTS EU ENVIRONMENTAL LAW
  3. Sui generis type of Union/type of market Developed from sui generis polity in 1958 to an ‘ever closer union’ (1 TEU) Market liberation central: Free movement of goods and factors of production ‘cooperation and integration that would make pan-European armed conflict inconceivable’ ‘we’re not here just to make a single market, that doesn’t interest me, but to make a political union’ (Delors) The internal market has a double edged quality: husbands economic activities and furthers integration
  4. Are markets markets? Narrow definition competition law Broad definition Article 11 TFEU: environmental protection integrated in Union’s policies and activities
  5. What is the internal market? It has the qualities of a Russian dolls (Armstrong) Narrow Article 26 (2) TFEU: ‘internal market shall compromise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.’ Broad abolishing barriers to trade, harmonising and approximating legislation with the aim of facilitating firms work across borders Finalising the market is an ‘ongoing’ project
  6. Prelude to the Free Movement and Environmental Protection Provisions Specific market-based legal framework Agenda set at creating an integrated and competitive market

  7. THE INTERNAL MARKET

  8. FREE MARKET PROVISIONS: GOODS ‘Goods’ Case 7/68 Commission v Italy: that can be ‘valued in money and which are capable, as such, of forming the subject of commercial transactions’ Wallon case Control of fiscal measures: Art. 30, 110 TFEU Quantitative barriers and all measures having equivalent effect: Art 34-35 TFEU Dassonville: ‘capable of hindering directly or indirectly, actually or potentially intra-Community trade’. Danish Bottles case Bluhme case
  9. EXEMPTIONS (I) Art 36 TFEU (health, animals and plants) Direct discrimination Bluhme+ Mickelsson and Roose
  10. EXEMPTIONS (II) Cassis de Dijon exemption Indirect indiscrimination disperse national provisions must be accepted, in so far, as such rules, applicable to national domestic and imported productions without distinction, may be deemed necessary in order to satisfy national mandatory requirements E.g. public health, fairness of commercial transactions, consumer protection Danish Bottles: ‘protection of the environment is one of the Community’s essential objectives, which may as such justify certain limitations of the principle of the free movement of goods’ Walloncase (direct discrimination)
  11. EXEMPTIONS (III) Keck- exemption Selling arrangement (use, not product-related) Applies indistinctly Affecting products in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States, do not fall within Art 34 TFEU Mickelsson and Roos (AG Kokott) New development: access to market (use-requirements)
  12. Speech by Potocnik, EuropeanCommissioner for Environment ’thereis enormous and immediate potential for stimulating investment and new jobs in environmentalsectors…full implementation of the existingwastelegislation by Member States wouldcreate 40,000 jobs and save € 72 billion a yearcomparedto non-implementation’ ’I believethat the economy and the environmentaredeeply inter-linked and inter-dependent. I believethat the onlywaytodevelopsustainably is throughmaking the wayoureconomiesworksustainable. And I believe the Single Market can be a driving force for greening the economy’
  13. The Green Internal Market Commission Communication: Buildingthe Single Market for Green Products E.g. Uniform wayofpromoting green credentials
  14. Just a market? ‘a highly politicized choice of ethos, ideology and political culture’ is crafted, which follows an economic rationale that also seeks to protect high social and environmental standards’ (Weiler) Art. 3(3) TEU: ‘a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.’
  15. ’Gap-filler clause(s)’ Former Article 308 EC, as well as Article 95 EC, which allows harmonisation of national laws on the basis of furthering the establishment of the internal market, and creates residual general powers for the Union to safeguard the functioning of the internal market respectively Art 114(3) TFEU: approximation oflaws, highlevelofenvprotection is required
  16. Examplesoffilling the gap 80/778/EEC DrinkingWaterDirective 89/428 EEC TitaniumDioxideDirective ’Economic Spillovers’ Whatdoes it all mean? The internal market has a kaleidoscope of aims, incl. creating prosperity, social security and environmental protection Market creation is usedtoexpand on environmentallawcompetences

  17. THE JUDICIARY

  18. The Court’sJurisdictions By 2006 more than 700 judgments, 50 legislative acts that directly or indirectly regulate environmental matters(Jacobs) Art 19 TEU: ‘shall ensure that in the interpretation and application of the Treaties the law is observed.’
  19. What the Court does Promotes European integration also in interpreting environmental laws Has lead to conflicts between free market provisions and environmental protection Balancing act
  20. Balancing: pre EU environmentalcompetences ADBHU case ‘the principle of freedom of trade is not to be viewed in absolute terms but is subject to certain limits justified by the objectives of general interest pursued by the (then-) Community’ EU law must be seen in the perspective of environmental protection, which is one of the Community’s essential objectives’
  21. Balancing: which legal base? Cartagena Protocol– an international agreement, which aimed to control the transboundary movement and management of living modified organisms Trade measure (Art 300 EC, 133 EC) Or environmental agreement (175 EC)
  22. Balancing: freemovement and environmentalprotection Bluhme and Preussen Elektra fall within the scope of Article 34 TFEU justified these on the grounds of protecting and preserving the bee population, and promoting renewable energy Distinctly Indistinctly justified, one of the arguments being that the protection of the environment is one of the Community’s essential objectives.
  23. Discuss Is it fair tosaythat the court is activist? Ought it be?
  24. Discuss Shouldenvironmentalconcerns be resolved at the decision-making or the judiciallevel?
  25. What kind ofcourt? Focus ofcourt is the effective and uniform applicationof EU law (Sobotta)* Art 263 (uniformity) Art 258-260 (effectiveness– most EU envlaws) This has had an effect on EU envlaw It is not an environmentallawcourt Grand Chamber: 2006-2011: 282 cases in total Only 10 raisedenvironmentalquestions C Sobotta, ’CompliancewithEuropeanEnvironmentalLaw – Deficiencies and Approaches. The roleof the CJEU’ (2012) 9 JEEPL 91-107

  26. EU ENVIRONMENTAL LAWS

  27. EU is ‘regulatory in nature’ Internal market is a ‘gigantic regulatory object’, incl. the adoption of 300+ directives and regulations only in the first five years Freer markets, morerules Mainly ’command-and-control’ typeofEU environmentalregulation, and in the form ofdirectives
  28. New viewson environmentalregulation Command-and-control ‘obscure, complex and inaccessible’ Damages the competitiveness of European business, the employment prospects of European citizens and inhibits economic growth
  29. New kids on the (regulatory) block Better Regulation/ Smart Regulation agenda) Following Lisbon Agenda simplify legislation, reduce administrative burdens, and increase economic competitiveness Create ‘win-win’ situations Ecological modernisation Environment + economy go hand in hand Dimas Europe ‘needs to invest more in innovative ways to protect the environment while boosting the EU’s competitiveness.’
  30. The holygrail? Weatherill any assessment and reform of EU legislation is directly linked to EU’s institutional framework i.e. who legislates better? Subsidiarity principle It is based on value judgments ‘Markets exist to serve a purpose which is to deliver sustainable prosperity for all, and they will not always do this on their own. Regulation has a positive and necessary role to play.’ (Commission Communication)

  31. GOODIE BAG

  32. EU constructs the internal market via regulationthat the EU courts interpret EU env law tends to be constructed and reformed so as to help enhance the internal market and its competitiveness Envprotection is used in this trade-liberated context, inter alia, by the EU court to further European integration Balancing act
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