Prof. Gyula Bándi

1. Major legal instruments of EU Environmental Law –Explanatory measures (preamble, objectives, scope) Prof. Gyula Bándi

2. Preamble and objectives Different functions of the preamble • Presentation of the legal bases - empowerment, as an independent structural element of the Community regulation, • Setting objectives • The summary of the most important elements of the given piece of environmental regulation. In fact, the preamble offers the essence of the whole regulation • Outliningenvironmental considerations which made it necessary for the given subject to be regulated

3. Objectives • Objectives of primary legislation - Art. 191(1) – general objectives ADBHUCase N. 240/83,preliminary ruling in theProcureur de la République kontra Association de défense des brûleurs d'huiles usagées (ADBHU) case, February 7, 1985. E.C.R. 1985 (00531). „13 ... The directive must be seen in the perspective of environmental protection, which is one of the community' s essential objectives.” Danish bottle caseCase N. 302/86, Commission vs. Denmark, September 20, 1988, E.C.R. 1988 (04607). “8 The Court has already held in its judgment of 7 February 1985 in Case 240/83 Procureur de la République v Association de défense des brûleurs d' huiles usagées (( 1985 )) ECR 531 that the 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.”

4. Objectives • Objectives of secondary legislation An Italian case related to the treatment of waste - Case N. 270/03, Commission vs. Italy, June 9, 2005: “19      The provisions of the directive must be interpreted in the light of its objective which, according to its third recital, is the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and Article 174(2) EC, which provides that Community policy on the environment is to aim at a high level of protection and is to be based, in particular, on the precautionary principle and the principle that preventive action should be taken (see, to that effect, Case C-9/00 Palin Grant and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, paragraph 23).” 24      Contrary to the Italian Government’s submission, the directive’s objective of the monitoring of the waste cycle implies the monitoring of waste from the moment it is produced and, in particular, as Article 12 of the directive provides, the monitoring of the conditions in which it is collected and transported. ...”

5. Objectives Case N. 239/03, Commission vs. Republic of France, October 7, 2004. • „13 The Étang de Berre is a saltwater marsh of 15 000 hectares which communicates directly with the Mediterranean Sea through the Caronte Canal. The volume of water in the Étang de Berre is 900 000 000 m3. • 14 The Commission received a complaint concerning damage to the aquatic environment of the Étang de Berre, principally as a result of fresh water from the Durance being artificially discharged into the Étang de Berre whenever the turbines of the hydroelectric power station at Saint-Chamas run by Electricité de France (‘EDF’) were in operation.” • “46 It is apparent from Articles 1 and 4 of the Protocol that the latter is designed to prevent, abate, combat and control pollution of the Mediterranean Sea area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other land-based sources within the Contracting Parties’ territories. To this end, Article 1 of the Protocol, reiterating the commitments entered into under Articles 4 and 8 of the Convention, obliges the Contracting Parties to take ‘all appropriate measures’.”

6. Objectives The proper interpretation of the effect of bathing water was from the very beginning possible to carry out through objectives - Case N. 307/98, Commission vs. Kingdom of Belgium, May 25, 2000 • „28 It must be borne in mind that, according to the second indent of Article 1(2)(a) of Directive 76/160, 'bathing water means all running or still fresh waters, or parts thereof, and sea water in which bathing is not prohibited and is traditionally practised by a large number of bathers. That definition must be interpreted in the light of the directive's underlying purpose as set out in the first two recitals in the preamble thereto, which state that, 'in order to protect the environment and public health, it is necessary to reduce the pollution of bathing water and to protect such water against further deterioration and that 'surveillance of bathing water is necessary in order to attain, within the framework of the operation of the common market, the Community's objectives as regards the improvement of living conditions, the harmonious development of economic activities throughout the Community and continuous and balanced expansion. • 29 Those objectives would not be attained if the waters of bathing areas which have for years been subject to the controls provided for by Directive 76/160 and in respect of which results have been sent to the Commission for publication in its annual reports on the quality of bathing water in the Member States could be excluded from the scope of the directive solely because the number of bathers was below a certain threshold.”

7. Scope 1: time Case C- 442/06, Commission vs. Italy, April 10, 2008 • „42   Regarding the plea of inadmissibility put forward by the Italian Republic, it should be recalled that it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion. Accordingly, even where the infringement has been remedied after that period has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its infringement, to, amongst others, persons who derive rights from the infringement (see, to that effect, Case C-29/90 Commission v Greece [1992] ECR I‑1971, paragraph 12, and Case C-519/03 Commission v Luxembourg [2005] ECR I‑3067, paragraphs 18 and 19).”

8. Time Case C- 129/96, preliminary ruling submitted by the Belgian State Council in a lawsuit against the Inter-Environnement Wallonie ASBL of the Walloon Province, December 18, 1997. • 40 It should be recalled at the outset that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation … • 42 Here, and in accordance with current practice, Directive 91/156 itself laid down a period by the end of which the laws, regulations and administrative provisions necessary for compliance are to have been brought into force. • 43 Since the purpose of such a period is, in particular, to give Member States the necessary time to adopt transposition measures, they cannot be faulted for not having transposed the directive into their internal legal order before expiry of that period. • 44 Nevertheless, it is during the transposition period that the Member States must take the measures necessary to ensure that the result prescribed by the directive is achieved at the end of that period. • 45 Although the Member States are not obliged to adopt those measures before the end of the period prescribed for transposition, it follows from the second paragraph of Article 5 in conjunction with the third paragraph of Article 189 of the Treaty and from the directive itself that during that period they must refrain from taking any measures liable seriously to compromise the result prescribed.”

9. Time Case C- 282/02, Commission vs. Ireland, June 2, 2005. • 29   Article 12(2) of the Directive requires the Commission to forward to the Council, where possible within 27 months following notification of that directive, the first proposals for comparisons of the programmes established by the Member States pursuant to Article 7(7) of the Directive. • 30  Article 12(2) does not, admittedly, lay down a mandatory time-limit. The expression ‘where possible’ featuring in its wording makes it clear that this is not a period that is binding in nature. None the less, by providing for a relatively short period for the evaluation of the first results of the implementation of the Directive, Article 12 is intended to prevent late application of the Directive’s provisions.… • 33   In the light of those considerations, the view must be taken that, while it is true that, in contrast to normal practice, the Directive does not set out any period for its transposition, that does not mean that the Member States are free to adopt measures for its implementation within periods which they alone consider to be adequate. In view of the need to guarantee the effectiveness of the Directive and of the fact that the dates proposed by the Commission for the progressive implementation of the Directive were not contested at the time by Ireland, that Member State was under an obligation to transpose the Directive within a reasonable period of time. • 34   It must be held that, when the pre-litigation procedure was instituted, a reasonable period of time for transposition of the Directive had already elapsed.”

10. Scope 2 - territorial The Peralta case - Case C- 379/92, preliminary ruling in criminal proceedings initiated by Pretura circondariale di Ravenna against Matteo Peralta, July 14, 1994: • “44 ... All vessels, whichever flag they fly and whichever the nationality of the undertakings operating them, are subject to the prohibition on discharging harmful substances. • 45 Outside territorial sea limits, the Italian legislation distinguishes between foreign vessels and vessels flying the national flag, which are the only ones subject to the prohibition on discharging harmful substances.”

11. Territory Case C- 6/04, Commission vs. United Kingdom, October 20, 2005. • “115   The Commission alleges that the United Kingdom has limited the application of the provisions which transpose the Habitats Directive into national law to just national territory and United Kingdom territorial waters. It contends that within their exclusive economic zones the Member States have an obligation to comply with Community law in the fields where they exercise sovereign powers and that the directive therefore applies beyond territorial waters. In particular, the Commission complains that the United Kingdom has not complied in its exclusive economic zone with its obligation to designate SACs under Article 4 of the directive or the obligation to provide species protection laid down in Article 12 of the directive.”

12. Territory The quasi “inverse” territorial scope appears in nature protection most frequently when Member States are inclined to take out of the scope of protection territories that are worth the protection, - Lappel Bank case. (Case C- 44/95, preliminary ruling in the Regina vs. Secretary of State for the Environment case where the interference was initiated by the Royal Society for the Protection of Birds, July 11, 1996.) • “40 It follows that, even under the Habitats Directive, the classification of sites as SPAs must in all circumstances be carried out in accordance with the criteria permitted under Article 4(1) and (2) of the Birds Directive. • 41 Economic requirements, as an imperative reason of overriding public interest allowing a derogation from the obligation to classify a site according to its ecological value, cannot enter into consideration at that stage. But that does not, as the Commission has rightly pointed out, mean that they cannot be taken into account at a later stage under the procedure provided for by Article 6(3) and (4) of the Habitats Directive.”

13. Scope 3 - Personal Case C- 263/99, Commission vs. Belgium, July 6, 2000. • “21 While it admits that it has failed to fulfil the obligation laid down in Article 17 of the directive, the Belgian Government claims in its defence, first, that the difficulties created by the process of institutional reform which it has had to carry out over the last 30 years in order to preserve the unity of the State and the fundamental principles of a State founded upon the rule of law constitute exceptional circumstances which explain and justify the problems experienced by the Brussels-Capital Region. Those circumstances constitute a case of force majeure, since they give rise to exceptional difficulties which are beyond the control of the Kingdom of Belgium. • 22 In that regard, it should be pointed out that the difficulties to which the Belgian Government refers are of a purely domestic nature, since they result from its political and administrative organisation and, accordingly, do not constitute a case of force majeure. • 23 Furthermore, according to settled case-law, a Member State may not plead situations in its internal legal order, including those resulting from its federal organisation, in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, in that regard, Case C-326/97 Commission v Belgium [1998] ECR I-6107, paragraph 7, and Case C-274/98 Commission v Spain [2000] ECR I-0000, paragraphs 19 and 20).”

14. Scope 4 – material + definitions • Directly or indirectly, definitions сonstitute the essential part of each EU environmental rule. • The lack of transposition of definitions in itself creates an unlawful situation because by this the provisions of the directive cannot be applied in practice, as held by the Court in a case - Case C- 32/05, Commission vs. Grand Duchy of Luxemburg, November 30, 2006 - related to the framework directive on the Community water policy. The directive recognizes and applies a number of definitions since its objective is the revival of the whole Community water policy. • “61  As regards, in the first place, Article 2 of the directive, the Commission maintains that the definitions set out in it have not been transposed into national law. The Law of 1993 defines only ‘discharges’, ‘pollution’ and ‘groundwater’. The Commission refers in particular to the terms ‘river basin’, ‘good ecological potential’ and ‘good chemical status’ which, although they feature in Article 2 of the directive, are all absent from the Law of 1993.… • 65  It must be held that, by excluding from the Law of 1993 the definitions of the terms in Article 2 of the directive and the timescales within which the standards of water quality are to be met, as set out in Articles 4 to 6 and 8 of the directive, the obligations under Article 2, read in conjunction with the latter provisions, have not been implemented with the binding force required. The Commission’s argument based on infringement of Article 2 of the directive must therefore be held to be well founded.”

15. ‘Significant effect’ The case between the Commission and Ireland in the matter of implementation of the impact assessment rules Case C- 392/96, Commission vs. Ireland, September 21, 1999. • “22 The second factor is that the legislation fails to take account of the cumulative effect of projects. A number of separate projects, which individually do not exceed the threshold set and therefore do not require an impact assessment may, taken together, have significant environmental effects. … • 64 As far as the objection to thresholds is concerned, although the second subparagraph of Article 4(2) of the Directive confers on Member States a measure of discretion to specify certain types of projects which are to be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion lie in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment (Kraaijeveld, cited above, paragraph 50)

16. Significant effect • 65 Thus, a Member State which established criteria or thresholds taking account only of the size of projects, without also taking their nature and location into consideration, would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive. • 66 Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. • 67 Similarly, a project is likely to have significant effects where, by reason of its nature, there is a risk that it will cause a substantial or irreversible change in those environmental factors, irrespective of its size. … • 76 That would be the case where a Member State merely set a criterion of project size and did not also ensure that the objective of the legislation would not be circumvented by the splitting of projects. Not taking account of the cumulative effect of projects means in practice that all projects of a certain type may escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the Directive.”

17. Definitions - waste • Council Directive 75/442/EEC , later Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste “Article 1 1. For the purposes of this Directive: (a) "waste" shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard;” Case C‑188/07, preliminary ruling Commune de Mesquer v Total France SA, Total International Ltd, 24 June 2008  • 24      On 12 December 1999 the oil tanker Erika, flying the Maltese flag and chartered by Total International Ltd, sank about 35 nautical miles south-west of the Pointe de Penmarc’h (Finistère, France), spilling part of her cargo and oil from her bunkers at sea and causing pollution of the Atlantic coast of France.

19. Waste • 59      It is common ground that the exploiting or marketing of such hydrocarbons, spread or forming an emulsion in the water or agglomerated with sediment, is very uncertain or even hypothetical. It is also agreed that, even assuming that it is technically possible, such exploiting or marketing would in any event imply prior processing operations which, far from being economically advantageous for the holder of the substance, would in fact be a significant financial burden. It follows that such hydrocarbons accidentally spilled at sea are to be regarded as substances which the holder did not intend to produce and which he ‘discards’, albeit involuntarily, while they are being transported, so that they must be classified as waste within the meaning of Directive 75/442 (see, to that effect, Van der Walle, paragraphs 47 and 50). • 63      Consequently, the answer to the second question must be that hydrocarbons accidentally spilled at sea following a shipwreck, mixed with water and sediment and drifting along the coast of a Member State until being washed up on that coast, constitute waste within the meaning of Article 1(a) of Directive 75/442, where they are no longer capable of being exploited or marketed without prior processing.

20. Waste Case C- 206/88 and Case C- 207/88, preliminary ruling which was initiated by Pretura di Asti (Italy) in the criminal case against the G. Vessoso and G. Zanetti waste sites, March 28, 1990. • “9 The answer to the first part of the question must therefore be that the concept of waste within the meaning of Article 1 of Council Directive 75/442 and Article 1 of Council Directive 78/319 is not to be understood as excluding substances and objects which are capable of economic reutilization. Case C- 2/90, Commission vs. Belgium, July 9, • 28 It must therefore be concluded that waste, whether recyclable or not, is to be regarded as "goods" the movement of which, in accordance with Article 30 of the Treaty, must in principle not be prevented.”

21. Waste The Palin Granit case - Case C- 9/00, preliminary ruling submitted by Korkein hallinto-oikeus (Finland) in a case between Palin Granit Oy and the Vehmassalon kansanterveystyön kuntayhtymän hallitus, April 18, 2002 The essense of the issue is the fate of the leftover stone and breakstone excavated from a granite mine on the surface and awaiting further reuse, as well as its legal judgement. • „32 … As the Commission observes, in the case at issue in the main proceedings the production of leftover stone is not Palin Granit's primary objective. The leftover stone is only a secondary product and the undertaking seeks to limit the quantity produced. According to its ordinary meaning, waste is what falls away when one processes a material or an object and is not the end-product which the manufacturing process directly seeks to produce. • 33 Therefore, it appears that leftover stone from extraction processes which is not the product primarily sought by the operator of a granite quarry falls, in principle, into the category of [r]esidues from raw materials extraction and processing under head Q 11 of Annex I to Directive 75/442.

22. Waste • 37 It therefore appears that, in addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is waste for the purposes of Directive 75/442 is the degree of likelihood that that substance will be reused, without any further processing prior to its reuse. If, in addition to the mere possibility of reusing the substance, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to discard, but as a genuine product.

23. Waste - recovery • ASA decision is also significant - Case C- 6/00, preliminary ruling submitted by the Verwaltungsgerichtshof, Austria in a legal dispute between Abfall Service AG (ASA) and Bundesminister für Umwelt, Jugend und Familie, February 27, 2002, • The facts of the ASA case are briefly as follows: • “19 According to that notification, the waste in question was slag and ashes produced as a by-product in the operation of waste incinerators and transformed into a 'specific product at a waste-treatment plant in Vienna, Austria. The waste was to be deposited in a former salt mine at Kochendorf, Germany, to secure hollow spaces (mine-sealing). • 20 In the notification documents, Abfall Service classified the treatment of the waste to be shipped as a 'recovery operation coming within the scope of the operation referred to in R5 of Annex II B to the Directive.”

24. Waste • “58 It must be observed, at the outset, that neither the Regulation nor the Directive contains a general definition of disposal or recovery of waste, but merely refers to Annexes II A and II B to the Directive, in which various operations falling within the scope of those concepts are listed. • 59 As is stated in the introductory note to Annexes II A and II B to the Directive, each of those annexes is intended to list disposal or recovery operations as they occur in practice. Moreover, it is clear from the wording of the operations in those annexes that some of them are described in very general terms and in fact cover categories of operations, with examples of operations sometimes provided to illustrate the relevant category of operation. • 60 It must therefore be concluded that the intention of Annexes II A and II B to the Directive is to list the most common disposal and recovery operations and not precisely and exhaustively to specify all the disposal and recovery operations covered by the Directive.

25. Waste • 63 Therefore, for the purpose of applying the Directive and the Regulation, it must be possible to classify any waste treatment operation as either a disposal or a recovery operation, and a single operation may not be classified simultaneously as both a disposal and a recovery operation. … • 71 In view of the considerations set out above, …the deposit of waste in a disused mine does not necessarily constitute a disposal operation within the meaning of D 12 of Annex II A to the Directive. The deposit must be assessed on a case-by-case basis to determine whether the operation is a disposal or a recovery operation within the meaning of that Directive. Such a deposit constitutes a recovery if its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose.”