Undestanding EU Environmental Law

1. Undestanding EU Environmental Law Prof. Gyula Bándi

2. TFEU Article 288 (ex Article 249 TEC) To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force.

6. Some preliminary considerations: • „EU legislation lies behind some 80% of national environmental legislation.”[1] • The great majority of EU environmental law is directive • Proper interpretation is a must! • ECJ/CJEU is the most important source of interpretation • „The precedents of the Court’s judicial practice are important sources of shaping and interpretation of the law.”[2] • “Due to the framework nature of the EC Treaty, the European Court of Justice has played an active role in “filling in the gaps” and, accordingly, has created law in a brave and innovative way. The Court interprets the Treaty and other pieces of community legislation in such a way that it rather pays attention to the spirit, not the letter of the Treaty. The Court views the Community as a living and growing organisation, thinks and interprets in terms of the Treaty’s and the Community’s secondary law, and reacts in a flexible way.”[3] [1] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-term review of the Sixth Community Environment Action Programme, COM(2007) 225 final, p. 3. [2] Alexandre Kiss, Dinah Shelton: Manual of European Environmental Law, Grotius Publications, Cambridge, 1993, p. 22. [3] Allan F. Tatham: EC Law in Practice, A Case-Study Approach, HVGORAC, 2006., p. 21.

7. “In reality, the Court has generally interpreted regulations related to environmental protection in a broad way (emphasis added by the author), where possible making decisions at the environment’s advantage, and being innovative in the interest of improving current regulations.” Ludwig Krämer: Casebook on EU Environmental Law, Hart Publishing, 2002, p.V. „One essential difference between the judgments given by the Court of Justice and judgments given by a national supreme court is that the Court of Justice’s judgment is given in an area in which different legal cultures exist.” Ludwig Krämer: EC Environmental Law, Sixth Edition, Thomson, Sweet and Maxwell, London 2007, p. 51.

8. Interpretation of directives as summarized in C-60/01, Commission v. French Republic (18 June 2002 – topic: municipal waste incineration plants) On the various functions of directives in environmental protection: • “24. As to those arguments, first of all, the third paragraph of Article 249 EC provides that 'a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods'. It follows that one of the principal characteristics of directives is precisely that they are intended to achieve a specified result. • 25. However, Community legislative practice shows that there may be great differences in the types of obligations which directives impose on the Member States and therefore in the results which must be achieved. • 26. Some directives require legislative measures to be adopted at national level and compliance with those measures to be the subject of judicial or administrative review (...misleading advertising ...) • 27. Other directives lay down that the Member States are to take the necessary measures to ensure that certain objectives formulated in general and unquantifiable terms are attained, whilst leaving them some discretion as to the nature of the measures to be taken (... waste ...). • 28. Yet other directives require the Member States to obtain very precise and specific results after a certain period (... quality of bathing water ...).”

9. Different forms of interpretation A case in front of the Court of First Instance[1] . • 92. In order to examine the merits of the arguments put forward by the parties, the Court considers it necessary to provide a literal, historical, contextual and teleological interpretation of criterion 10 of Annex III to Directive 2003/87 … Literal interpretation of criterion 10 of Annex III to Directive 2003/87 • 95. For the purposes of a literal interpretation, it must be borne in mind that Community legislation is drafted in various languages and that the different language versions are all equally authentic; an interpretation of a provision of Community law thus involves a comparison of the different language versions … On the historical interpretation of criterion 10 of Annex III to Directive 2003/87 [1] Case N. T‑374/04 - Federal Republic of Germany vs. Commission, November 7, 2007. The subject of the case is Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community. The substance of the issue is to make a judgement on Germany’s scheme for greenhouse gas emission allowance trading.

10. Contextual interpretation of criterion 10 of Annex III to Directive 2003/87 • 118. Having regard to all the foregoing, the Court concludes that a contextual interpretation of criterion 10 of Annex III to Directive 2003/87 in the light of the directive’s other provisions and the Commission guidance cannot provide a clear and precise answer to the question whether or not it is open to a Member State, following approval of its NAP by the Commission and adoption of the allocation decision, to adjust the individual allocation of allowances to the installations downwards. Teleological interpretation of criterion 10 of Annex III to Directive 2003/87 • 124. It follows that the principal declared objective of Directive 2003/87 is to reduce greenhouse gas emissions substantially in order to be able to fulfil the commitments of the Community and its Member States under the Kyoto Protocol. This objective must be achieved in compliance with a series of ‘sub-objectives’ and through recourse to certain instruments. ...

11. Major instruments of EU environmental law 1 1. Explanatory instruments • Preamble and objectives • Scope and definitions • Principles 2. General requirements related to planning, policy-making • strategies and policies, • plans and/or programmes, as well as • codes of conduct/behaviour

12. Major instruments of EU environmental law 2 3. Administrative procedures and instruments • notification, • registration, • classification, • authorisation, • product classification, • prohibitions, obligations, • control, monitoring, • voluntary instruments, • economic instruments, • public participation • procedural issues

13. Major instruments of EU environmental law 2 4. Contextual issues, environmental substance • standards (best known are limit values) • technological and similar general requirements. • information, • Labelling 5. Designation of a competent organ or authority 6. Liability, responsibility