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CLEER/EEL Upcoming Conference: “EU environmental norms and third countries: the EU as a global role model?” T.M.C. Asser Instituut, The Hague, Friday 19 April 2013 |
Case Law
Sweden taken to Court
Sweden is accused of having failed to properly implement the Waste Electrical and Electronic Equipment Directive (WEEE) into its national legislation. The Commission referred the case to the European Court of Justice (ECJ). The WEEE is in force since 2003 and was lastly modified in 2008. Its purpose is the proper collection of e-waste and the protection of citizens and environment from hazardous e-waste. The EU thus aims to regulate the increasing rate of e-waste in EU and increase the recycling or reuse of products and materials. The final goal of WEEE is to collect 85% of WEEE generated, by 2020.
The Commission initiated an infringement procedure against Sweden due to non-compliance with some of the Directive’s measures, in 2007. In 2009, Sweden sent a reasoned opinion stating that the implementation will be completed by 1 January 2010. The Commission received no notification that the measures were implemented and therefore started the case.
See also: European Commission Press Release
Greece taken to Court over landfill and endangered turtles, again
The Commission is taking Greece to Court because an illegal waste landfill is endangering the environment, people and nesting turtles. The landfill is located within a park that is to protect the endangered species of Caretta Caretta turtle. The Commission asked either to close the landfill or to bring it in line with EU Wastelaw, notably the Landfill Directive 1999/31/EC.
The Landfill Directive aims to protect people and the environment from landfills and sets requirements for “existing” landfills to work properly. In 2009 the Greek authorities were sent a reasoned opinion asking them to take urgent measures because the landfill was working illegally. The landfill has a serious health effect and due to the plastic bags in the landfill, seagulls are attracted that also prey on the turtles’ offspring. Efforts to find a replacement facility or the idea to send waste to mobile units have proven unsuccessful.
This is the second time Greece is called before the Court regarding the Caretta Caretta problem. The ECJ already convicted Greece in 2002 (case C-103/00). Further, it is worth mentioning that according to art. 3(4) Landfill Directive, the MSs have the discretion to exempt islands or isolated settlements to landfills of particular characteristics. Two Member States submitted such lists: Greece and Spain. (See more).
See also: European Commission Press Release
French Court of Cassation recognizes jurisdiction in “Erika” case
M. Giuseppe X. et autres v. L’Office français de la fondation pour l’éducation à l’environnement en Europe et autres, 25 September 2012 (in french)
In France, the Cour de Cassation recognised French jurisdiction for the “Erika” disaster case. The Court justified France’s jurisdiction to deal with international treaties and Public International Law, by referring to the United Nations Convention on the Law of the Sea and the 1992 International Convention on Civil Liability for Damage from oil pollution.
On 12 December 1999, a Maltese boat called “Erika” sank and tons of heavy fuel oil were spilt on the coast of Brittany causing an ecological disaster. Its cargo belonged to a Panama branch of the French company “Total International Ltd” (Total). The case brought about both criminal and civil claims.
The Advocate General (AG) had proposed the Court of Cassation to annul the defendants’ conviction by the Court of Appeal. After analysing international treaties, he concluded that France has no jurisdiction to prosecute oil spills occurring in an exclusive economic zone, but rather that Malta would be the appropriate country.
The accident had already brought about a preliminary ruling (C-188/07) from the ECJ. The Court explained that oil washed up on the shore following the accident classifies as waste under Directive 75/442/EEC on waste. The Court found that in principle, according to the “polluter pays” principle, Total as the producer of the oil, based on its conduct to fail to prevent the oil spill, could also be held responsible and be ordered to finance the clearing up. Further, the Court concluded that the previous holder and ship charterer can be regarded as “previous holders” if they failed to take the appropriate measures and basically contributed to the risk of the pollution. (See EEL Case Database)
See also: Press Release of the Court: “Communiqué relatif à l’arrêt no 3439 du 25 septembre 2012 (10-82.938) de la Chambre criminelle”, 25.09.2012, in French
Shell taken to court for environmental damage in Nigeria
The Anglo-Dutch oil company Royal Dutch Shell Plc. (Shell), headquartered in the Hague, was taken to the Civil Court in the Netherlands, accused of causing environmental damage in Nigeria. The case was initiated by Nigerian farmers and a Dutch environmental NGO (Milieudefensie) claiming that Shell’s Nigerian subsidiary “Shell Petroleum Development Company” (SPDC) neglected to take care of the occurred oil leakage which resulted in the pollution of land and fishing ponds.
Milieudefensie and the individual plaintiffs are also bringing Shell’s Nigerian subsidiary SPDC to court. This was based on a 2009 interim ruling (in Dutch) by the Hague’s Civil Court that accepted the prima facie bundling of the mother company and its subsidiary in one case.
Now, the court is asked to make a decision based on Nigerian Law [because the illegal actions took place there] for both companies. It will be important, whether under Nigerian Law a mother company can be held liable for its subsidiary’s actions. Later on, the Nigerian court will be responsible to decide on the enforcement of the Dutch court’s decision, if SPDC is held liable.
It seems there is a lot at stake and media attentions shows. Shell’s Social Corporate Responsibility is discussed extensively. Another case against Shell is pending in the US Supreme Court (Esther Kiobel, at al., v. Royal Dutch Petroleum Co., et. Al.). It is a civil procedure against Shell regarding its alleged involvement with the Nigerian civil authorities in the violation of human rights in the 1990s. The alleged violations occurred during a protest against the environmental degradation of the area because of Shell’s oil extraction activities in the Niger Delta.
In the first case, a verdict is expected early in 2013. A ruling for the second case is expected later in 2013.
“Documents on the Shell legal case”, from Mileudefensie
“Milieudefensie v. Shell: Suing Multinational Corporations”, in Dutch
Liesbeth Enneking, “Multinational corporations, human rights violations and a 1789 US statute: A brief exploration of the case of Kiobel v. Shell”, Nederlands Internationaal Privaatrecht (NiPR) 2012, nr. 3, p. 396-400
Amicus curiae brief filed by Dutch legal scholars in support of plaintiffs/petitioners in the case of Kiobel v. Shell
Air
Many European still exposed to harmful air pollutants
The European Environment Agency published an “Air quality in Europe-2012 report” stressing that almost one third of Europe’s city inhabitants are inhaling harmful substances. One of this is the excessive concentrations of airborne particulate matter (PM) that primarily effects the respiratory system. The EU has already managed to reduce air pollutants, but there is still a lot to be done. In many EU countries the air pollutants concentrations remain above the legal and recommended EU limits. This report is updated each year, and provides information on the “The European environment-state and outlook” of the Agency, containing facts and figures on the environmental status of the EU.
The report contains a detailed analysis of the air pollutants and their effect on our lives. In 2013, the European Commission is planning to review the EU air legislation; a revision of the National Emission Ceilings Directive is very likely. Air quality will be one of the priorities for the next Ireland’s Presidency of the Council of the EU.
See also : “Getting Prepared for 2013, the European Year of Air”, (2012, July), European Environmental Bureau, 66, 5
Climate Change
Eurostat releases the first outcomes of Europe 2020 strategy
“Europa’s 2020” strategy includes employment, research and innovation, education, poverty and social exclusion, climate change and energy targets. For climate change and energy the goal is reduction in greenhouse gas (GHG) emissions by 20% compared with 1990, 20% energy increase from renewable resources and 20% increase in energy efficiency. At the beginning of October, Eurostat released the first outcomes of the “Europa 2020” implementation.
In 2010, the GHG emissions were reduced by 10% compared to 1990. Between 2008 and 2010 there was a substantial decrease of emissions which could be explained by the economic and financial crisis. In order to reach the target, the EU has to further reduce the emissions by 5%.
Eurostat acknowledges that energy consumption has evolved due to a shift from fossil fuels to Renewable Energy Sources (RES) like solar and wind energy and biofuels. This shift is due to the increase of installed capacity for renewable energy and the increase of biofuels use. Therefore, the share of RES in gross final energy consumption increased to 12.5% compared to the 8.1% of 2004. There is a variation in this share of RES amongst the Member States. For instance, Malta has a 0.4% share of RES in final energy consumption while Sweden reaches a 47.9% share. The EU has to further increase its share by 7.5%.
Energy Efficiency is calculated based on the Primary Energy Consumption (PEC) (explained at the Report’s Index) that should show a declining trend. The decline was only apparent after 2009, which could also be attributed to the economic activity. The EU has to achieve further PEC reduction by 13.5%, by 2020.
Energy
Shale Gas
Shale gas is gas extracted from shale rocks. The extraction technique is hydraulic fracturing or fracking (for details, see here). In the US, shale gas has been treated as a revolution in green industry and a prosperous investment for oil and gas companies. Today, China and US are the biggest shale gas exporters, Brazil and Mexico are following.
However, in the EU people seem to be more sceptical about it. On the one hand, Bulgaria and France banned fracking within their territory and on the other side, the UK and Poland are looking for potential investments in the field. The conflict is also apparent in the European Parliament. Last month, the Environmental Committee (ENVI) voted for stronger Shale Gas Regulation while the Energy Committee (ITRE) supported each country to decide independently. An argument was freeing the EU from its dependency on Russian energy supplies. A study by the Commission, though, showed that the best case scenario could be 60% import independence. Furthermore, there are serious environmental and public health concerns. A study by the European Commission manifested the problems; noise and air pollution, ground water contamination, water resource depletion, earthquakes and land take.
See also: “We need an honest debate”, 21.11.2011
“Shale gas will not cut EU import dependence: study”, 07.09.2012
“Climate impact of potential shale gas production in the EU”, 30.07.2012
“The Shale Gas Secret: Why did drilling boom in America, while it struggles in Europe?”, 13.07.2012
Dangerous Substances
European Commission troubled with the regulation of nanomaterials
A team of environmental, consumer and labour organizations sent an open letter to the European Commission expressing their concerns for the regulatory approach on nanomaterials by mentioning the scientific deficiencies of the legal framework. Particularly, the letter states that the European Commission omitted to take into consideration the recent conclusions by the International Agency for Research on Cancer and thus wrongfully described nanomaterials as harmless. Nevertheless, nanomaterials are key components in the clothes, cosmetics and consumer electronics industry. Earlier, the “Center for International Environmental Law” (CIEL) conducted a relevant report and proposed the implementation of a “nano-patch” solution that would cover the regulatory loopholes. Today, CIEL is attempting to coordinate with scientist and governments to implement a “precautionary approach” towards nanotechnologies and nanomaterials.
See also: “Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, Regulatory Review on Nanomaterials”, COM(2012) 572 final, COM(2012) 572 final
General
Communication on improving the delivery of benefits from EU environment measures
In March 2012, the European Commission adopted the Communication “Improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness”, COM (2012) 95 final, to supplement two previous relevant Communications. Its goal is to build confidence through better knowledge and responsiveness. To improve knowledge, the Commission proposes the improvement of the EU level information systems and the provision of help to obtain national, regional and local information confidence. Further, the Commission suggests to fill the information gaps related to compliance promotion, enforcement and land-cover monitoring. To build confidence through responsiveness, the Commission suggests the implementation of a more effective justice system by the improvement in inspections, in complaint handling, in access to justice, in relative capacity building and the implementation of binding agreements among the Member States.
See also previous Communications: COM 2007, 0502, Communication for the Commission: A Europe of results-Applying Community Law
Proposal for directive on financial statements and related reports
The European Commission’s Proposal “on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings”, COM (2011) 684 final, will replace the old Accounting Directives, and introduces a specific regime for small companies that will considerably reduce the administrative burden currently borne by these companies when they prepare their financial statements. It also seeks to improve the comparability and clarity of financial statements prepared by medium-sized and large companies.
Furthermore, in order to promote governments’ accountability and good governance, the proposal introduces new reporting requirements for large companies active in the extractive industry or in the logging of primary forests. These companies are to disclose the payments they make to governments in each country where they operate and for each project, where the payment has been attributed to a certain project and when that payment is material to the recipient government. This obligation also applies to operations and projects outside the EU.
Events
EU environmental norms and third countries: the EU as a global role model?
This conference will highlight the role of the EU in the field of the promotion of sustainable development worldwide (art. 3 para 5 TEU) and global environmental governance. Topics covered include the legal basis for action and conditions imposed, the different means available to the EU for policy diffusion, and examples like FLEGT, biofuels, the European Principles for the Environment used by the EBRD, EIB a.o., and the inclusion of aviation in EU ETS. More information will be announced on the EEL, CLEER and Asser websites.
Location: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22, 2517 JN, The Hague, The Netherlands
Date: 19 April 2013
Annual Conference on REACH 2012: Preparing for the 2013 registration deadline
The Conference will focus on the main issues that stakeholders and actors have faced with the first REACH registration back in 2010 and examine any potential improvements for the next registration by 2013. The fields of Law discussed at this Conference are Environmental Law, Food Law, Health and Pharmaceutical Law, Agricultural law and Consumer Protection Law. The main topics to be discussed are the REACH Directive and notably the 2013 registration deadline, the disclosure of information under REACH, legal remedies and recent cases in the ECHA Board of Appeal (BoA) and Nanotechnologies under REACH.
Location: Management Centre Europe, Rue de l’Aqueduc 118, B-1050 Brussels, Belgium
Date: 29-30 November 2012
Given the “Roadmap to a Resource Efficient Europe” presented by the Commission, and the “German Resource Efficiency Program”; the German Federal Environment Agency is hosting the first European Resources Forum in Berlin. The Conference will focus on the appropriate measures for a sustainable use of resources and the promotion of cooperation among stakeholders. Main topics to be discussed are the EU perspective of Resource Efficiency, the promotion of a green economy, the problems and solutions towards sustainable land use etc.
Location: Best Western Premier Hotel Steglitz International, Schlossstraße/Albrechtstraße 2,
12165 Berlin, Germany
Date: 12-13 November 2012
20 years of Habitats Directive: European Wildlife’s Best Hope?
The Flemish Environmental Law Association organises the international conference related to the Habitats Directive and its outcomes 20 years after its implementation. The conference will focus on the drawbacks and advantages of the Directive under the European “no net loss” approach. The conference will mainly examine legal issues and its further implications to the environment.
Location: KBC-building, Auditorium 3th floor, Schoenmarkt 35, B-2000 Antwerpen, Belgium
Date: 12-13 December 2012
Editor-in-Chief
Wybe Th. Douma (Senior Researcher, T.M.C. Asser Instituut and Lecturer of International Environmental Law, The Hague University)
Leonardo Massai (Senior Lecturer on International and EU Environmental Law, University of Lille)
Editors
Petroula Lisgara (T.M.C. Asser Instituut, The Hague)
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