Legal instruments of secondary environmental legislation – administrative instruments

1. Legal instruments of secondary environmental legislation – administrative instruments Prof. Gyula Bándi

2. Administrative procedures and instrumentsNotification Seveso II. directive (Council Directive 96/82/EC) the notification shall contain the following details: • the name or trade name of the operator and the full address of the establishment concerned, the company register number, the telephon or telefax numbers, also e-mail address; • the registered place of business of the operator, with the full address, size and land register details; • the name or position of the person in charge of the establishment, if different from (a); • information sufficient to identify the dangerous substances or category of substances involved and which provide assisstance in idetifying the dangerous substance; • the quantity and physical form of the dangerous substance or substances involved; • the actual or proposed activity of the installation or storage facility, the determination of operations, tasks and operating conditions; • the immediate environment of the establishment which could be affected by the likely major accident based upon the similar methods and conditions of determining the impact area along the lines of environmental impact assessment procedure. The operator is obliged to report any significant changes related to the registered activity to the authorities immediately at their occurance, thus, in particular: • significant increase of the quantity of the hazardous substance at issue, or cases of significant change occured in its nature or physical appearance, or cases of change in the utilisation or application process; • in case of temporary closing of the establishment.

3. C-215/04, preliminary ruling Marius Pedersen „49 In that regard, taking account of the fact that the competent authorities must be duly informed, by way of prior notification, of the type, movement and disposal or recovery of the waste, so that they may take all necessary measures for the protection of human health and the environment, including the possibility of raising reasoned objections to the shipment, it is necessary to maintain the rights of those authorities to request additional information when they consider that the notification is incomplete, rights conferred on them by Article 6(4) of Regulation No 259/93.”

4. Registration Case C-270/03, Commission vs. Italy „21 The objective of Directive 91/156 was, inter alia, to reinforce control by the public authorities. The 12th recital in the preamble thus states that, ‘in order that waste can be monitored from its production to its final disposal, other undertakings involved with waste, such as waste collectors, carriers and brokers should also be subject to authorisation or registration and appropriate inspection’. New provisions were inserted into Article 12 of the directive for that purpose. Those provisions specifically state that undertakings which transport waste, where not subject to authorisation, are required to be registered and that the undertakings subject to that obligation are those which carry out such transport ‘on a professional basis’. Directive 91/156 thus replaced mere ‘supervision’, which no longer appears as such in the directive, with an obligation of registration…. 29 It follows from the foregoing considerations that Article 12 of the directive imposes an obligation of registration on establishments or undertakings which, in the course of their activities, normally and regularly transport waste, whether that waste is produced by them or by others. Furthermore, there is no provision in the directive for any exceptions to that obligation, based on the type or quantity of waste.”

5. Case C-354/99, Commission vs. Ireland on animal experiments • „32 … One of the conditions is that the licence holder is to ensure that detailed records are maintained of the source, use and final disposal of all animals accommodated in the establishment for scientific purposes and that these records are available for inspection by the Minister for Health or an inspector appointed by the Minister. • 33 In that connection, it must be pointed out that Article 11 of the Directive has not been implemented in full since the relevant national provisions do not provide for any form of supervision by a competent authority of the setting free of animals.”

6. Classification Classification generally takes place based on the environmental risk or environmental state, thus belonging to various classes, at the same time, provides a basis for a different scope of obligations Case C-67/99, Commission vs. Ireland – Natura 2000 Tthe Court stated that designation – classification - of a SAC territory has four steps, namely: • the Member State proposes the designation of the territory, • the Commission prepares a draft list, • the Commission subsequently accepts the proposal in accordance with a specified procedure, • the Member State designates the territory.

7. „29 With regard to the obligation to transmit the site list referred to in Article 4(1), first subparagraph, of the directive, the Commission points out that each Member State's contribution to the setting up of a coherent European ecological network depends on the representation on its territory of the natural habitat types and species' habitats listed in Annexes I and II to the directive respectively. It is clear from the combined provisions of Article 4(1) of and Annex III to the directive that Member States enjoy a certain margin of discretion when selecting sites for inclusion in the list. The exercise of that discretion is, however, in the Commission's view, subject to compliance with the following three conditions: • - only criteria of a scientific nature may guide the choice of the sites to be proposed; • - the sites proposed must provide a geographical cover which is homogeneous and representative of the entire territory of each Member State, with a view to ensuring the coherence and balance of the resulting network. The list to be submitted by each Member State must therefore reflect the ecological variety (and, in the case of species, the genetic variety) of the natural habitats and species present within its territory; • - the list must be complete, that is to say, each Member State must propose a number of sites which will ensure sufficient representation of all the natural habitat types listed in Annex I and all the species' habitats listed in Annex II to the directive which exist on its territory.”

8. Case C-280/02, Commission vs. Republic of France • 67 The French Government does not dispute that nutrient inputs, in particular nitrogen, from urban sources transported by the Vilaine river play an important role in eutrophication of the bay. • 68 It maintains that it has already classified the Vilaine catchment basin as an area sensitive to eutrophication, so that all agglomerations with a p.e. of more than 10 000 which discharge their effluent into that basin are subject to the provisions of Directive 91/271. The identification of Vilaine bay as an area sensitive to eutrophication is of no importance, inasmuch as no agglomeration with a p.e. of more than 10 000 discharges directly into that bay and, contrary to what the Commission maintains, fluvial inputs from the Loire would not have any influence on that bay, so that the French Government takes the view that it has not failed to fulfil its obligations. • 69 In that regard, even if no agglomeration with a p.e. of more than 10 000 discharges directly into Vilaine bay and, contrary to what the Commission maintains, fluvial inputs from the Loire do not have any influence on that bay, the fact that the catchment basin of the Vilaine river has already been identified as an area sensitive to eutrophication does not warrant not also classifying that bay as such. It follows from Article 5(1) of Directive 91/271, in conjunction with Annex II.A(a), that Member States are required to identify as sensitive areas all eutrophic water bodies. • 70 Therefore, by failing to identify Vilaine bay as an area sensitive to eutrophication within the meaning of Directive 91/271, the French Republic has failed to fulfil its obligations.”

9. Authorisation, Permission Council Directive 96/61/EC determining the system of integrated pollution prevention and control is a good example of how the directive determines the definition of permit in paragraph 9 of Article 2: „'permit` shall mean that part or the whole of a written decision (or several such decisions) granting authorization to operate all or part of an installation, subject to certain conditions which guarantee that the installation complies with the requirements of this Directive. A permit may cover one or more installations or parts of installations on the same site operated by the same operator.” EIA – development consent

10. Case C-290/03, preliminary ruling based on a submission by Diane Barker • „38 By its first question, the national court essentially asks whether classification of a decision as a ‘development consent’ within the meaning of Article 1(2) of Directive 85/337 depends exclusively on national law. • 39 Article 1(2) of Directive 85/337 defines ‘development consent’ for the purposes of the directive as the decision of the competent authority or authorities which entitles the developer to proceed with the project. • 40 Thus, while this term is modelled on certain elements of national law, it remains a Community concept which, contrary to the submissions of Bromley LBC and the United Kingdom Government, falls exclusively within Community law. According to settled case-law, the terms used in a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope are normally to be given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question (see, to this effect, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I-6917, paragraph 43; and Case C-201/02 Wells [2004] ECR I-723, paragraph 37). • 41 The answer to the first question must therefore be that classification of a decision as a ‘development consent’ within the meaning of Article 1(2) of Directive 85/337 must be carried out pursuant to national law in a manner consistent with Community law.”

11. Case 240/83, preliminary ruling in the Procureur de la République vs. Association de défense des brûleurs d'huiles usagées (ADBHU) case, submitted by the Tribunal de grande instance de Créteil, • „25 As has already been emphasized, the main aim of the directive is the disposal of waste oil in a manner which is safe for the environment, and Article 2 makes it incumbent upon the Member States to pursue that aim.… • 27 In order to ensure compliance with those measures, Article 6 provides that any undertaking which disposes of waste oils must obtain a permit granted by the competent national authority, if necessary after an inspection of the installations, with a view to imposing the conditions required by the state of technical development .… • 29 It follows from those provisions that the directive requires Member States to prohibit any form of waste-oil disposal which has harmful effects on the environment. It is to that end that the directive compels Member States to set up an effective system of prior approval and subsequent inspections.”

12. Case C-127/02, preliminary ruling - Waddenzee • „29 The answer to Question 1(a) must therefore be that mechanical cockle fishing which has been carried on for many years but for which a licence is granted annually for a limited period, with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on, falls within the concept of ‘plan’ or ‘project’ within the meaning of Article 6(3) of the Habitats Directive. … • 36 Authorisation of a plan or project granted in accordance with Article 6(3) of the Habitats Directive necessarily assumes that it is considered not likely adversely to affect the integrity of the site concerned and, consequently, not likely to give rise to deterioration or significant disturbances within the meaning of Article 6(2). … • 56 It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned.”

13. Case C-282/02, Commission vs. Ireland • “77 … the argument put forward by Ireland that the prohibitory regime established by the 1977 Act is a ‘more stringent measure’ within the terms of Article 10 of the Directive. • 78 Although, in principle, a prohibitory regime constitutes an alternative to an authorisation system, in accordance with the requirements of the Directive, Ireland has failed to demonstrate that the prohibitory regime established by the 1977 Act can effectively replace the authorisation system as envisaged by the Directive. • 79 The prohibitory regime set out in section 3(1) of the 1977 Act is accompanied, in section 3(3), by a clause releasing from liability any person concerned who proves that he took all reasonable care to prevent pollutants from entering water. Effective application of this regime is guaranteed by the powers vested in the judicial authorities (section 11) and local authorities (section 12). The latter section allows local authorities to issue notices to persons responsible for a source of pollution enjoining them to take specific measures to counter pollution. By contrast, that statute makes no mention of quality objectives or programmes for the reduction of water pollution. • 80 In the first place, the 1977 Act does not contain precise provisions allowing individuals to refer to a clear, precise and unequivocal legal framework, as required by the Court … the 1977 Act does not contain an enumeration of the pollutants within the terms of List II of the annex to the Directive, which prevents those concerned from knowing the true scope of that prohibition. • 81 Next, the effectiveness of the system rests in large measure on the notices issued by local authorities on foot of section 12. Those notices are, however, issued in a discretionary manner by each local authority in each specific situation, with no relation to any parameter as to water quality, which is lacking in that statute. This absence of uniform statutory criteria does not guarantee a homogenous, comprehensive and consistent application of the Directive…. • 82 Finally, with regard to the exemption clause in section 3(3) of the 1977 Act, that section does not specify the scope and nature of the measures to be adopted for such an exemption, leaving as it does to each local authority, each time that a case arises, the assessment of whether the measures adopted are reasonable. Considered thus, such a system is not equivalent to a system under which all pollution reduction aspects are defined in advance in a manner which is clear, precise and unequivocal.

14. Product classification Analysis of the products’ life cycle One of the best examples is the so-called type approval in the area of EU noise regulation According to the fundamental principles that appear in the regulation related to noise and which are derived from the EU basic structure, • only the trade and use of those products is allowed and cannot be restricted within the EU which products meet the harmonised requirements; • as a result, the trade and use of the products that meet the harmonised requirements is free and cannot be restricted within the EU.

15. C-132/03, preliminary ruling – GMO • 62 The eighth recital to Regulation No 258/97 states that the additional specific labelling requirements laid down by the regulation are intended to ensure that the necessary information about the foodstuffs in question is available to the consumer. It adds that those foodstuffs must be safe for human health and that that assurance is to be provided for by the authorisation procedure set out in Directive 90/220 and/or by the single assessment procedure laid down by Regulation No 258/97. • 63 The GMOs to which Regulation No 1139/98 refers can be placed on the market only if they have first been authorised following a risk assessment intended to ensure that, in the light of the conclusions of the assessment, they are safe for the consumer. The precautionary principle, where relevant, is part of such a decision-making process (see, to that effect, the judgment in Monsanto Agricoltura Italia, cited above, paragraph 133).

16. Prohibition and obligation Case C-98/03, Commission vs. Federal Republic of Germany • 66      According to settled case-law, Articles 12, 13 and 16 of the Directive form a coherent body of provisions (see, Commission v United Kingdom, paragraph 112). Articles 12 and 13 require Member States to establish a system of strict protection for animal and plant species. • 67 Paragraph 6(1) of the PflSchG, by listing the situations in which the use of pesticides is prohibited, does not express in a clear, specific and strict manner the measures laid down in Articles 12 and 13 of the Directive which prohibit protected species from being adversely affected. … • 76      It is clear from the file that, when the period set down in the reasoned opinion expired, Bremen’s legislation authorised, inter alia, the capture of fish all year round so long as no fishing bans were issued. Coregonus oxyrhynchus is not the subject of a fishing ban. In Brandenburg neither that species nor unio crassus are the subject of a fishing ban. As to Bremen’s legislation, the German Government has acknowledged that it is not in accordance with the Directive.… • 78      In those circumstances, it must be stated that the legislative framework existing in Germany, in which regional provisions which infringe Community law coexist with a Federal law which complies with it, does not ensure effectively, and in a clear and precise manner, in respect of the three animal species at issue in this case, the strict protection required by Article 12(1)(a) of the Directive, with respect to the prohibition of all forms of deliberate capture and killing of specimens of those species in the wild.”

17. Control, monitoring Case C-6/04, Commission vs. United Kingdom • „21 Under the third paragraph of Article 249 EC, a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods for implementing the directive in question in domestic law. However, in accordance with settled case-law, while the transposition of a directive into domestic law does not necessarily require that the content of the directive be incorporated formally and verbatim in express, specific legislation and, depending on its content, a general legal context may be adequate for the purpose, that is on condition that that context does indeed guarantee the full application of the directive in a sufficiently clear and precise manner … • 23 The United Kingdom’s argument that the most appropriate way of implementing the Habitats Directive is to confer specific powers on nature conservation bodies and to impose on them the general duty to exercise their functions so as to secure compliance with the requirements of that directive cannot be upheld. • 24 First, it is to be remembered that the existence of national rules may render transposition by specific legislative or regulatory measures superfluous only if those rules actually ensure the full application of the directive in question by the national authorities. • 25 Second, it is apparent from the 4th and 11th recitals in the preamble to the Habitats Directive that threatened habitats and species form part of the European Community’s natural heritage and that the threats to them are often of a transboundary nature, so that the adoption of conservation measures is a common responsibility of all Member States. Consequently, as the Advocate General has observed in point 11 of her Opinion, faithful transposition becomes particularly important in an instance such as the present one, where management of the common heritage is entrusted to the Member States in their respective territories … • 26 It follows that, in the context of the Habitats Directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise, including with regard to the fundamental surveillance and monitoring obligations, such as those imposed on national authorities by Articles 11, 12(4) and 14(2) of the directive.”

18. Voluntary instruments • On November 27, 1996, the Commission adopted the communication on environmental agreements between environmental authorities and the industry and on the unilateral assumption of obligations by the industry, which aims at the promotion of the application of legal instruments. • It is a fundamental requirement that the agreement should be as specific as possible, and its promotion can be served by, among others, the determination of specific quantitative objectives. The communication outlines directives for agreements to be made between authorities and the industry in the area of environmental protection. The regulation on packaging waste (94/62/EC)is a good example of the significance of voluntary instruments. Already in its preamble, it indicates the application of these possibilities: • „Whereas the management of packaging and packaging waste requires the Member States to set up return, collection and recovery systems; whereas such systems should be open to the participation of all interested parties and be designed to avoid discrimination against imported products and barriers to trade or distortions of competition and to guarantee the maximum possible return of packaging and packaging waste, in accordance with the Treaty;” • The definition of voluntary agreement that is included among the definitions of Article 3(12): • “12. 'voluntary agreement` shall mean the formal agreement concluded between the competent public authorities of the Member State and the economic sectors concerned, which has to be open to all partners who wish to meet the conditions of the agreement with a view to working towards the objectives of this Directive.”

19. EMAS REGULATION (EC) No 1221/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2009 on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS) • (8)Organisations should be encouraged to participate in EMAS on a voluntary basis and may gain added value in terms of regulatory control, cost savings and public image provided that they are able to demonstrate an improvement of their environmental performance. Article 1 Objective • A Community eco-management and audit scheme, hereinafter referred to as ‘EMAS’, is hereby established, allowing voluntary participation by organisations located inside or outside the Community. • The objective of EMAS, as an important instrument of the Sustainable Consumption and Production and Sustainable Industrial Policy Action Plan, is to promote continuous improvements in the environmental performance of organisations by the establishment and implementation of environmental management systems by organisations, the systematic, objective and periodic evaluation of the performance of such systems, the provision of information on environmental performance, an open dialogue with the public and other interested parties and the active involvement of employees in organisations and appropriate training.

20. Economic instruments Case C-213/96, preliminary ruling - Outokumpu Oy case „30. As regards the compatibility of such a duty with Article 95 of the Treaty, it is settled case-law, first, that in its present state of development Community law does not restrict the freedom of each Member State to establish a tax system which differentiates between certain products, even products which are similar within the meaning of the first paragraph of Article 95 of the Treaty, on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed. Such differentiation is compatible with Community law, however, only if it pursues objectives which are themselves compatible with the requirements of the Treaty and its secondary legislation, and if the detailed rules are such as to avoid any form of discrimination, direct or indirect, against imports from other Member States or any form of protection of competing domestic products.”

21. Case C‑201/08, preliminary ruling, Plantanol • 35      It must be pointed out that Directive 2003/30 also does not impose any requirements on the Member States in regard to the method of attaining those indicative targets, but leaves them freedom of choice in this regard as to the type of measures to be adopted, thus leaving them a wide discretion to take account, in particular, of the availability of resources and raw materials and of national policies to promote biofuels, as can be seen from recital 20 to the directive. • 36      It follows that the provisions of Directive 2003/30 do not require the Member States to introduce, or maintain in force, a tax exemption scheme for biofuels. It is clear in that regard from recital 19 to the directive that, although a tax exemption scheme is one of the means available to the Member States for attaining the objectives laid down in the directive, other means may also be envisaged, such as financial assistance for the processing industry and the establishment of a compulsory rate of biofuels for oil companies. • 37      Moreover, it is apparent from Article 3(4) of Directive 2003/30 that the Member States also enjoy a wide discretion with regard to the products which they wish to promote in order to attain the objectives laid down in the directive, since they may choose to give priority to the promotion of certain types of fuels by taking account of their overall cost-effective climate and environmental balance, while also taking into account competitiveness and security of supply. • 38      In those circumstances, it must be decided that no right to a tax exemption can be deduced from the provisions of the directive, particularly in regard to a specific product. • 39      Quite the contrary, it is clear from Article 1 of Directive 2003/96 that the Member States are, in principle, required to tax a product such as the one at issue in the main proceedings, … • 40      However, Article 16(1) of Directive 2003/96 provides that the Member States may apply an exemption or a reduced rate of taxation on such energy products …

22. Case C‑254/08, Futura Immobiliare srl Hotel Futura, and others • 19      Futura Immobiliare and Others are hotel businesses in the municipality of Casoria. On that basis, they must pay the waste tax. However, under the latter tax, hoteliers are taxed more heavily than individuals occupying residential premises. • 44      Accordingly, in circumstances such as those in the main proceedings, where holders of waste have it handled by a collector, Article 15(a) of Directive 2006/12 provides that, in accordance with the ‘polluter pays’ principle, the cost of disposing of the waste must be borne by those holders. • 54      In that regard, it must be found that, when calculating a waste disposal tax or charge, a distinction drawn for fiscal purposes between categories of users of the urban waste collection and disposal service – like that drawn by the national legislation at issue in the main proceedings between hotel undertakings and individuals – which is based on objective criteria having a direct relationship with the cost of the service, such as their waste-production capacity or the nature of the waste produced, may prove appropriate for achieving the objective of financing the service. • 55      While the distinction drawn for fiscal purposes must not go beyond what is necessary in order to achieve that financing objective, it is however to be noted that here, as Community law currently stands, the competent national authorities have a broad discretion when determining the manner in which such a tax or charge is calculated.