EEL News Service Issue 2011/4 of 26 May 2011

ECJ Case Law

European Court of Justice: permits for Dutch coal-fired power stations not at risk

In answer to questions from the Dutch Council of State regarding permits for the construction and operation of three new coal-fired power stations located in the Eemsmond (operated by RWE) and Rotterdam (operated by Electrabel and E.ON), the European Court of Justice announced today that the arguments brought forward by environmental groups do not stand in the way of granting these permits. Dutch environmental groups had argued that the Netherlands was obliged to take into account emission ceilings for atmospheric pollutants in deciding on an application for an environmental permit. Those emission ceilings, for the protection of human health, fall under the National Emissions Ceiling (NEC) Directive that lays down for the Netherlands and for the other EU member states binding maximum emission levels for certain atmospheric pollutants. Because some of these ceilings at the end of 2010 would have been exceeded by the Netherlands, no new permits leading to even more pollution should be allowed, the environmental groups argued.

In her Opinion to the European Court issued on the 16 December 2010, Advocate General (AG) Kokott advised the Court to side with the environmental groups (see EEL News Service 2011/1). According to the AG, the emission ceilings should be taken into account when granting such a permit, pursuant to the general principle of interpretation in conformity with the Directive. This would mean that the permit would have to be denied if it would lead to (a threat of) exceeding the NEC emission ceilings. In the Dutch press, after this opinion, it was mentioned that the permits could not be granted since the Opinions of advocate generals are usually followed by the Court. This is indeed often the case, but not always. In the case of Ms. Kokott, it happens regularly that the Court chooses a different route. This was foreseeable in this instance as well. In my annotation to the Opinion[1], I already doubted whether the Court would agree with Ms. Kokott that emission ceilings can stand in the way of granting permits. The emission ceilings do not stand in the way of granting individual permits, according to the European Court. The Court can however demand that a Member Statemust comply with the obligation arising from the NEC Directive to adopt, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of those pollutants to amounts not exceeding the ceilings. The programmes drawn up for those purposes must be made available to the public by means of clear, comprehensible and easily accessible information. Whether the Netherlands meets these obligations is questionable. New court cases can thus be expected.

Court of Justice EU 26 May 2011, Joined cases C-165/09 tot en met C-167/09, Stichting Natuur en Milieu a.o.

For a Dutch language version of this comment, see Hof van Justitie EU: vergunningen Nederlandse kolencentrales niet in gevaar at the EEL website.

Environmental NGOs to be allowed access to courts

This case concerns a permit for the construction and operation of a coal-fired power station in Lünen, Germany, eight kilometres away from several protected Habitats areas. A preliminary decision (stating that there were no legal objections to the project) and a partial permit were granted by the German local authorities. These measures were challenged by the Nordrhein-Westfalen branch of Friends of the Earth (FoE), an environmental NGO recognized under German national law. FoE claimed that the measures violated Article 6(3) Habitats Directive because the environmental impact assessment of the project at issue did not show that it was unlikely that the power station would have a significant effect on the protected nature areas.

The NGO did not have legal standing at the German administrative court on the basis of domestic law. German law allows only for a right of action if the administrative measure affects the claimant´s rights, that is to say his individual public law rights. The German norms that FoE relies upon do not confer such rights on individuals. The German court decided to ask for a preliminary ruling by the European Court of Justice (ECJ) on the matter.

The ECJ explained that, even where domestic law prohibits this, such an NGO must nevertheless be able to challenge projects likely to have a significant effect on the environment. The German procedural laws run counter to the objective of ‘wide access to justice’ as laid down in the 1998 Aarhus Convention, and the Environmental Impact Assessment (EIA) Directive (85/337/EEC) as amended in 2003 to implement the Aarhus Convention. Special rights are afforded in the EIA Directive to NGOs promoting environmental protection. They are deemed to automatically have sufficient interest and rights capable of being impaired (Art. 10a). The relevant rights that they are deemed to have must necessarily include EU environmental law incorporated into national legislation as well as EU environmental law having direct effect. In this case the Habitats Directive and national laws implementing it were alleged to have been infringed which should provide sufficient grounds for standing before national courts.

The ECJ ruling means a major step forward for environmental NGOs where the ´access to justice´ pillar of the Aarhus Convention is concerned. Member States cannot deprive such organizations of the opportunity of playing the role granted to them in the EIA Directive 85/337 and by the Aarhus Convention.

* Case C-115/09 Trianel Kohlekraftwerk Lünen 12/05/2011

T.M.C. Asser Press – publications

The Kyoto Protocol in the EU

European Community and Member States under International and EuropeanLaw

Leonardo Massai

Abstract

The participation of the European Community and the Member States in the international climate change regimes is a complex issue in the case of the Kyoto Protocol. This is rendered even more complicated by the fact that for the purposes of Article 4 of the Kyoto Protocol, the membership of the European Community and Member States is ‘frozen’ at a particular point in time.

The result of this is that under International Law the European Community and a part of the Member States (EU15) have agreed to jointly fulfil some of those obligations whereas under Community Law all Member States share a certain degree of responsibility to meet the obligations created by the Kyoto Protocol.

This book analyses in great detail the Kyoto Protocol and its obligations, as well as the discrepancies between International Law and Community Law in that regard. The book is a useful tool for academics, practitioners, consultants and all stakeholders operating in the field of environmental law and climate change.

Leonardo Massai is a legal expert and lecturer in International and EU Environmental Law and Climate Change.

www.asserpress.nl

General

Dutch environmental protection organization files complaint at Commission

On the 5^th of May 2011, Dutch environmental organization ‘Vereniging Das & Boom’ filed a complaint at the Commission against the Dutch State. The NGO aims to impede budgetary cuts in environmental protection and management. According to the complaint several international and European laws are breached as a result of proposed cuts by the Dutch government. Obligations stemming from the Convention on Biological Diversity (CBD), the Bern and Ramsar Conventions (on natural habitats and wetlands respectively) as well as the European Birds and Habitat Directives are alleged to have been breached by the Netherlands. The complaint concerns Dutch policy plans which includes up to 60% cuts in environmental management. It also addresses Dutch policy in regard to one species in particular: the hamster (Cricetus cricetus). The hamster already formed the subject of proceedings against France, threatened with fines for a failure to sufficiently protect the hamster within its territory, see EEL news service Issue 2011/2.

Nature and agriculture

Commission presents strategy to halt biodiversity loss in the next decade

On 3 May 2011 the Commission presented a strategy geared towards halting the ever increasing loss of biodiversity within Europe. Several EU actions to combat biodiversity loss, such as the EU 2010 biodiversity target set in 2001 and the Natura 2000 network (establishing protected areas), could not prevent further loss of biodiversity. The biodiversity strategy which was presented for 2020 indicates that up to one in four of all European animal species risk extinctionandfurther suggests financial incentives for combating biodiversity loss. The EU insect pollination sector for instance (estimated at €15 billion per year) could incur great economic losses if the continued decline in bees and other pollinators is not halted. Six targets were set for 2020, including full implementation of the Habitat and Birds directives and sustainable use of fisheries resources. The biodiversity strategy forms an integral part of the broader Europe 2020 growth strategy and, in particular, the resource efficient Europe flagship initiative. It further pursues to meet global commitments that were assumed in 2010 during the tenth Conference of the Parties to the Convention on Biological Diversity (CBD) held in Nagoya.

Parliament agrees to global measures to fight illegal fishing

On the 10^th of May 2011, the European Parliament (EP) agreed that measures aimed to stop illegal, unregulated and unreported (IUU) fishing should be applicable worldwide. The EP backed the international Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing by the Food and Agriculture Organization (FAO). The agreement has as a key aim for port-states worldwide to prevent, deter and eliminate IUU-fishing by actively ensuring long-term conservation and sustainable exploitation of maritime resources and ecosystems. The new agreement will be applicable to all port-states that ratify it, for all their ports and for all vessels that do not fly their flags but seek to enter and use their ports. An exception is left only for vessels from neighbor-states engaged in artisanal fishing for subsistence and for container vessels not carrying fish.

The agreement will come into force after it has been ratified by a minimum of 25 countries.

EU Strategy for Danube Region approved

The Council formally endorsed, on the 13^th of April 2011, the European Strategy for the Danube Region. The Strategy was proposed December last year by the Commission and has since been approved by the European Parliament. The Strategy focuses on four main pillars: Connecting the Danube Region, Protecting the environment in the Danube Region, Building prosperity in the Danube, and strengthening the region.

The region covers a fifth of the EU (100 million inhabitants) and concerns 14 countries, 8 of which are member states. The strategy is based on a new working method based on a “macro-regional” approach, in line with the EU Strategy for the Baltic Sea Region.