Legal instruments of secondary environmental legislation – planning and policy making

1. Legal instruments of secondary environmental legislation – planning and policy making Prof. Gyula Bándi

2. 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

3. 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

4. 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

5. Planning, policy making Four fundamental elements : • planning assumes an assessment of the state of environment, • adequate objectives need to be set, • implementing instruments have to be rendered to this, and • one should monitor the implementation

6. Example: water framework directive EU water policy (EU Water Framework Directive 2000/60 (October 23, 2000). The directive’s general objective is the development of the water protection policy, achivement of greater sustainability and greater integration, as well as laying the foundation of the coherence of legal regulation. The water policy directive embraces the entirety of the realization of the objectives in the catchment area (river basin) management plan. The programmes are drawn up in the interest of the following environmental objectives: • to prevent the deterioration of the ecological quality of waters and their pollution, and ensure the restoring of polluted surface waters in the interest of achieving good quality surface waters within the time determined in the plan; • to prevent the deterioration of underground waters, clean polluted underground waters, and ensure a balance between the abstraction and return of underground waters in the interest of achieving good quality underground water within the time determined in the plan; • to establish protected territories where all limit values and requirements have to be observed in the given time; • to eliminate the pollution caused by certain polluting substances, as well as • to ensure conformity with all community regulations related to territorial and sea waters, taking all measures prescribed by international law in order to prevent, reduce, and control the pollution of the sea environment from any source using the best practice instruments.

7. Example: industrial accidents Significant accident risks connected to dangerous industrial activities, (Directive 96/82/EC) - planning obligation on the user of the environment, such asthe preparation of an internal emergency plan. The goals of the emergency plan are: • a possibility to control the occurrence of events, which reduces their impact and harms done to humans, the environment and property; • use of measures that serve the protection against impact from significant accidents on humans and the environment; • ensuring appropriate flow of information necessary to inform the population and the public administration; • ensuring restoration and cleaning of the environment following a significant accident.

8. Requirements Plans and programmes are obligatory and shall be specific to the legal requirements C- 26/04, Commission vs. Kingdom of Spain, • “26      The Kingdom of Spain maintains, in the alternative, that it has adopted an overall programme to reduce pollution in the Ría de Vigo and that a programme of gradual pollution reduction measures has been drawn up. Consequently, the Spanish authorities have acted in accordance with Article 5 of Directive 79/923. • 29      Since the pollution reduction programmes referred to by the Kingdom of Spain in its defence are not specific programmes in order to reduce the pollution of shellfish waters, the alleged failure is established. C- 207/97, Commission vs. Belgium • 39. On that point it should be noted that, according to established case-law, the programmes to be established under Article 7 of the Directive must be specific. Thus, the objective of reducing pollution pursued by general purification programmes does not necessarily correspond to the more specific objective of the Directive (Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraph 35).”

9. C- 282/02, Commission vs. Ireland • „68    As a preliminary point, it should be noted that, as the Court has already ruled on numerous occasions, it follows inter alia from Article 7(2) of the Directive that authorisations must contain emission standards which are applicable to authorised individual discharges and which have been calculated in accordance with the quality objectives previously laid down in a programme established pursuant to Article 7(1) to protect the expanses of water and watercourses in question … Because of the absence of a coherent and general system of quality objectives, the other elements of a programme (authorisations and emission standards based on the objectives) cannot be defined in such a way as to comply with the requirements of the Directive.” C- 130/01, Commission vs. Republic of France • 59. It is also settled case-law that the programmes in question must specifically form a comprehensive and coherent approach, covering the entire national territory and providing practical and coordinated arrangements for the reduction of pollution caused by any of the substances in List II which are relevant in the particular context of each Member State, in accordance with the quality objectives fixed by those programmes for receiving waters • 60. Consequently, neither general rules nor ad hoc measures adopted by a Member State which, though comprising a wide range of standards aimed at protecting waters, do not lay down quality objectives relating to a given watercourse or body of water can be deemed to constitute a programme within the meaning of Article 7 of Directive 76/464 (Commission v Germany, paragraph 58).

10. C- 6/04, Commission of the European Community vs. United Kingdom • „44      As to those submissions, Article 6(3) of the Habitats Directive provides that any plan or project not directly connected with or necessary to the management of a site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, must be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. • 45      In the present case, it is not disputed that, at the end of the period laid down in the reasoned opinion, no legal provision expressly required water abstraction plans and projects to be subject to such an assessment. … • 47      … Consequently, in merely defining potentially damaging operations for each site concerned, the risk is run that certain projects which on the basis of their specific characteristics are likely to have an effect on the site are not covered.”

11. Case N.C- 184/97, Commission vs. Germany Possible alternative solutions? The Ccommunity law obligations, in fact, equally contain the desired results, the intent of achieving an appropriate state of the quality of water, and also the realization of the legal instrument at issue. (water quality) • „42. In view of the need to draw up programmes and quality objectives as established at paragraphs 27 to 36 of this directive, the fact that the result sought by the directive may be attained by an improvement in water quality does not dispense the German Government from its obligation to adopt the measures provided for in Article 7 of the directive. … • 48. The German Government contends that the actual transposition of Article 7 of the directive is secured by the German legislation. In its view, the WHG satisfies the requirements of that article because it constitutes in essence a programme within the meaning of the first paragraph of that article. In order to determine whether the WHG satisfies the requirements of the directive as regards programmes, it is necessary to have regard to their legal nature, their content, their binding force and the period for their implementation. … • 54. As regards this last plea, neither the WHG nor the other measures adopted by the German Government can be deemed to constitute correct implementation of the directive, which requires, as stated in paragraph 28 hereof, the adoption of programmes including the quality objectives laid down therein. … • 58. Consequently, neither general rules nor ad hoc measures adopted by a Member State which, though comprising a wide range of water-protection standards, none the less do not lay down quality objectives relating to a given watercourse or area of water cannot be deemed to constitute a programme within the meaning of Article 7 of the directive. • 59. As to the German Government's argument that so long as there is no water pollution there is no requirement for quality objectives to be laid down, it should be remembered that the purpose of the programmes referred to in the first paragraph of Article 7 of the directive is to reduce water pollution. … • 60. As the Advocate General points out at paragraph 76 of his Opinion, any discharge of one of the substances at issue will inevitably lead, sooner or later, to pollution of the aquatic environment affected by it.”

12. C- 396/01, Commission vs. Ireland • 62 First, as regards the powers granted to local authorities to carry out surveys on farms in order to pinpoint sources of pollution and to compel farmers to prepare nutrient management plans, suffice it to note that, by definition, such surveys cannot be considered to be action programmes within the meaning of Article 5 of the Directive. • 63 Next, as regards the information booklet on good agricultural practice and the Rural Environment Protection Scheme, suffice it to note that, according to statements by the Commission, which are not disputed by Ireland, they do not comprise mandatory measures as required by Article 5 of the Directive. • 64 Finally, … the bye-laws of Counties Cavan, Westmeath and Tipperary do not apply to all farmers in a given zone. In any event, it is common ground that those bye-laws do not cover all the zones which should have been designated as vulnerable zones pursuant to Article 3 of the Directive.

13. C-53/02 and C-217/02, preliminary ruling Commune de Braine-le-Château and others • Plans must have consequences, must be specific • „35 In those circumstances, the answer to the first question must be that Article 7 of the Directive must be interpreted to mean that the management plan or plans which the competent authorities of the Member States are required to draw up under that provision must include either a geographical map specifying the exact location of waste disposal sites or location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to determine whether the site or installation in question falls within the management framework provided for by the plan.” The absense of a plan cannot be an obstacle for the licencing procedure, • „46 In the light of the foregoing considerations, the answer to the second question must be that Articles 4, 5 and 7 of the Directive, read in conjunction with Article 9 thereof, must be interpreted as not precluding a Member State which has not adopted, within the period prescribed, one or more waste management plans relating to suitable sites or installations for waste disposal from issuing individual permits to operate such sites and installations.”

14. C- 292/99, Commission vs. France • 44. … Chief among those objectives is the protection of public health and the environment, which is the essence of Community legislation relating to waste. That is the reason why, according to the case-law, a failure to fulfil the obligation to draw up waste management plans must be regarded as serious, even if the failure relates to only a very small part of a Member State's territory, such as a single department (see, to that effect, Commission v Greece, cited above, paragraphs 94 or 95), or a single area within a valley (see, to that effect, Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 69). • 45. In light of those considerations, it must be held that, … in view of the importance of those plans for attaining the directive's objectives and the fact that the obligation in question was introduced in 1975, the accumulated delays of the French Republic, in this case, cannot in any way be regarded as reasonable. Indeed, when the time-limit laid down in the reasoned opinion expired, that is to say on 5 October 1998, more than seven years had elapsed since publication in the Official Journal of the European Communities of Directive 91/156 and almost seven since publication therein of Directive 91/689.”