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INTRODUCTION TO EU ENVIRONMENTAL LAW

INTRODUCTION TO EU ENVIRONMENTAL LAW. OVERVIEW. ORIGINS OF EU LAW EUROPEAN INSTITUTIONS ENVIRONMENTAL DECISION-MAKING ENVIRONMENTAL COMPETENCES IMPLEMENTATION AND ENFORCEMENT. I. ORIGINS OF EU LAW. EU ENVIRONMENTAL LAW .

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INTRODUCTION TO EU ENVIRONMENTAL LAW

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  1. INTRODUCTION TO EU ENVIRONMENTAL LAW

  2. OVERVIEW • ORIGINS OF EU LAW • EUROPEAN INSTITUTIONS • ENVIRONMENTAL DECISION-MAKING • ENVIRONMENTAL COMPETENCES • IMPLEMENTATION AND ENFORCEMENT

  3. I. ORIGINS OF EU LAW

  4. EU ENVIRONMENTAL LAW • EU Environmental law is based on a particular administrative law framework • Rights, decision-making procedures, standing, implementation, enforcement = EU law based • The importance of legal culture in understanding EU environmental law

  5. ORIGINS • Law-centered union • Treaty of Rome (1958) • Single European Act (1987) • Treaty of Maastricht (1992) • Constitutional Treaty (2004 - failed) • Treaty of Lisbon (2009) • From simple €€€ rights to social rights

  6. Treaty of Lisbon • Treatyof the European Union (TEU) • Treatyof the Functioningof the EU (TFEU) • Charter

  7. II. EUROPEAN INSTITUTIONS

  8. A sui generis type of union • Key Institutions: • European Council • Council • Commission • Parliament • EU Courts (General Court and Court of Justice) • Institutional cooperation and balance

  9. European Council, Art 15 TEU

  10. COUNCIL, ART 16 TEU

  11. COMMISSION, ART 17 TEU

  12. PARLIAMENT, ART 18 TEU

  13. EU COURTS, ART 19 TEU

  14. WHO BRINGS THE CASES? Pre-Lisbon: Art 230(4) EC ‘Any natural or legal person, may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’

  15. KEY CASE LAW • T-585/93 Greenpeace v Commission • T-219/95 Danielssonv Commission • C-50/00 UPA • AG Jacobs • T-177/01 Jégo

  16. WINDS OF CHANGE? Post-Lisbon: Art 263(4) TFEU ‘Any natural or legal person may…institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’

  17. JURISPRUDENTIAL DEFINITIONS • ‘REGULATORY ACT’: • T-18/10 Inuit v Commission • ‘IMPLEMENTING MEASURES’ • T-16/04 Arcelorv Parliament and the Council

  18. ÅRHUS CONVENTION • Dir 2003/35/EC access to justice • Art 9(2), (4) of Convention • Dir 2003/4/EC access to information • Regulation 1367/2006 • Judicial review provisions

  19. COURT ACCESS VIA NATIONAL COURTS • C-263/08 Djurgården • ‘wide access to justice’ • Render EU law effective • C-115/09 Trianel • C-240/09 LesoochranarskeZoskupenie

  20. III. ENVIRONMENTAL DECISION-MAKING PROCEDURES

  21. EU ENVIRONMENTAL LAWS • Primary • Treaty of the EU • Treaty of the Functioning of the EU • Charter • Secondary • Regulation • Directive • Decision • Recommendations

  22. ‘ORDINARY’ LEGISLATIVE PROCESS: SIMPLIFIED

  23. EFFECT OF EU ENVIRONMENTAL LAW • SUPERMACY • 6/64 Costa vEnel • …the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question • 11/70 Int. Handelsgesellschaft

  24. EFFECT OF EU ENVIRONMENTAL LAW • DIRECT EFFECT • C-26/62 Van Gend den Loos • ‘The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subject of which compromise not only member states but also their nationals. Independently of the legislation of Member States, Community (today EU) law may therefore not only impose obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.’ • FRANKOVICH – PRINCIPLE

  25. IV. ENVIRONMENTAL COMPETENCES

  26. WHY DO COMPETENCES MATTER? THE PRINCIPLE OF CONFERRED POWERS: • Art 13 TEU: ‘Each institution shall act within the limits of the powers conferred by the Treaty’ • LEVEL OF PROTECTION (TO HARMONISE OR NOT TO HARMONISE) • DECISION-MAKING PROCESS

  27. ENVIRONMENTAL LEGAL BASIS: TITLE XX • ARTICLE 191 TFEU • Objectives (NB ‘climate change’), principles, policies, harmonisation, external relations • ARTICLE 192 TFEU • Ordinary legislative procedure • Derogations from art. 289 TFEU • Implementation

  28. EXTERNAL COMPETENCES • Art 191 (4) TFEU • Cooperate with 3rd countries/int. organisations • NB: Art 191(4) ‘without prejudice to Member States’ competence to negotiate in int. bodies and to conclude international agreements’ • Mixed agreements • IMPLICIT: case law • Art 2 (d) and (f) TEU

  29. HARMONISATION General rule: • As long as national laws haven’t been harmonised, MS are free to pursue any environmental policy of their own, under the condition that the provisions do not breach the Treaty • Art 193 TFEU Total harmonisationv minimal harmonisation • Case C-329/95 VAG Sverige AB

  30. V. PRINCIPLES IN EU ENVIRONMENTAL LAW

  31. ENVIRONMENTAL PRINCIPLES IN EU LAW • Art 191(2) TFEU • Precautionary principle • Prevention principle • Ratification at source • Polluter pays • Sustainable development • Subsidiarity principle • Integration principle

  32. PRECAUTIONARY PRINCIPLE • Justifies legal action also in cases of lack of causality according to: • ‘available scientific and technical data’ • C-121/07 Commission v France • ‘fundamental principle’ of env protection • T-74/00 Artegodanv Commission • ‘general principle of Community law’

  33. PREVENTION PRINCIPLE • ‘Prevention is better than cure’ • Dir 94/62 on packing waste RECTIFICATION AT SOURCE • Dir 2008/105 on water standards (end-of pipe regulation) • Wallon Waste case

  34. POLLUTER PAYS • 1stEnv Action Programme • Environmental protection versus ‘unburdened’ trade • Dir 2003/87 – state aid and polluter pays concerns

  35. SUBSIDIARITY PRINCIPLE • Art. 3 TFEU – exclusive competence • Art. 4 TFEU – shared competence; incl. the environment • Art. 5 (3) TEU – subsidiarity • Art. 5 (4) TEU – proportionality

  36. INTEGRATION PRINCIPLE • Art. 11 TFEU • ‘Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting Sustainable Development’ • Chernobyl I case • Art. 37 Charter • Only re ‘Union policies’, and ‘a high level of environmental protection’

  37. SUSTAINABLE DEVELOPMENT • Brundtland Report Rio de Janeiro ’92 • Codified in the Lisbon Treaty: • Art. 3(3) TEU • Art. 11 TFEU • Art. 37 Charter • C-371/98 First Corporate Shipping, AG Léger: • SD means ‘the necessary balance between various interests which sometimes clash, but which must be reconciled’

  38. VI. IMPLEMENTATION AND ENFORCEMENT

  39. IMPLEMENTATION • More than 200 EU environmental laws produced over the past 30 years - which require implementation? • Duty to implement: • Art. 192(4) TFEU • Art. 288 TFEU • Art. 4(3) TEU – duty of cooperation

  40. IMPLEMENTATION • ‘Implementation deficit’ • Political and practical aspects • national obligation • Innovation in implementation • Criminal law • Direct effect • Administrative methods • Innovation in regulatory methods

  41. ENFORCEMENT • Obligation on the MS • Commission as the ‘guardian of the Treaties’ • Art. 258 TFEU • Infringement – duty to take necessary steps to comply with the judgment • Financial sanctions • C-387/97 Commission v Greece • Art. 260(3) TFEU

  42. GOODIE BAG

  43. SUMMERY • EU environmental law is based on an administrative law framework • Importance of legal culture: • Intersections between environmental law, the internal market, and the court • Explains why we regulate • Challenges of EU environmental law

  44. POSSIBLE SOURCES FOR RESEARCH • JOURNALS • Journal of Environmental Law • European Environmental Law Review • RECIEL • Yearbook of European Environmental Law • European Energy and Environmental Law Review • COMMISSION WEBSITE • http://curia.europa.eu • SSRN • googlescholar.com

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