EEL News Service Issue 2012/5 of 15 May 2012

Added to Case LawProducts not killing algae still are biocides

Case C-420/10, Söll Gmbh v Tetra Gmbh, 1 March 2012

The Biocides Directive defines biocides as active substances and preparations containing one or more active substances, intended to destroy, deter, render harmless, prevent the action of, or otherwise exert a controlling effect on any harmful organism by chemical or biological means. It obliges member states to ensure that only authorized biocidal products are placed on the market and used in their territory.

The Court considered the definition’s scope in its preliminary ruling in a case between German manufacturers of anti-algae products for use in ponds. Aluminium chlorohydrate, the active substance in the product in question, has not been notified under the EU review procedure of Regulation no 1451/2007. The producer, Tetra, argued that its product could not be classified as biocidal substance since it does not kill the algae but only facilitates their removal; when poured into water, the active substance takes the form of a net that in which the algae stick together, making it easy to remove them. Tetra’s competitor, Söll, argued that a product with a non-notified active substance cannot be legally placed on the market, and that Tetra engaged in unfair competition. According to the referring German court, if the product in question were to be classified as a ‘biocidal product’ within the meaning of the Biocides Directive, the marketing of that product would indeed be unlawful.

While contending that products destroying organisms like algae fall under the definition of biocides, the ECJ considered whether the same holds true for products which only affect the environment of the harmful organism, and not the organism itself. Following the Advocate General’s opinion, the Court pointed out a discrepancy between different language versions of the definition of biocides, focusing on the wording “exert a controlling effect”. Some versions are believed to suggest that a biocidal product must be intended to have a direct effect on the target organism. Other versions are said to refer to a broader controlling effect of such products on the organism.

Having recognized these semantic differences between the different language versions of the directive, the Court placed interpretative emphasis on its “purpose and general scheme” to determine the scope of the biocides definition. It found that the objective of providing a high level of protection for humans, animals and the environment would be compromised if the biocides definition excluded products of indirect biological or chemical impact on the target harmful organism. The ECJ also pointed out that exerting greater control over the target harmful organisms or facilitating their elimination is sufficient to say that the substance has a controlling effect. It concluded that such products must be seen as falling under the concept of biocides when they trigger a “chemical or biological action which forms an integral part of a causal chain, the objective of which is to produce an inhibiting effect in relation to those organisms.”

Principle of useful effect ignored by the General Court?

Cases T-120/10 and T-449/10, ClientEarth and others, 9 November 2011

The EU General Court handed down two rulings in cases brought by four environmental NGOs versus the Commission. In December 2009 and June 2010, they had requested access to documents regarding biofuels. In February 2009 and July 2010, the Commission expressly decided to grant access to only four documents, and withheld another two-hundred for the purpose of protecting public and commercial interest. Later (in July and December 2010 respectively), upon the commencement of proceedings before the Court, the Commission issued express decisions of refusal concerning the withheld documents. In both cases, the NGOs had applied for annulment of the Commission’s initial decision, implicitly rejecting their confirmatory applications, as well as for ordering the Commission to provide them with the remaining documents.

Under Regulation (EC) No 1049/2001 regarding public access to documents, citizens may access any type of documents, subject to a number of conditions and exceptions. The applicants argued that the Commission’s decisions did not follow the procedure for answering the confirmatory application set out in the regulation due to its failure to disclose documents or justify the withholding within a time limit of 15-days from the date of registration; to provide reasons for withholding each document based on individual assessment; and to edit sensitive parts of withheld documents, releasing those falling outside the exception. Demonstrating that the document or information contained therein would undermine the Commission’s decision-making process is in fact a pre-condition for using an exception under article 4(3) of the regulation to withhold it.

In both cases, the Court ruled that the Commission’s delayed express decisions of rejection “in fact withdrew” the implied decisions against which the applicants appealed. This, in turn, overturned the applicants’ legal interest in bringing proceedings. Since the applicants appealed only against the earlier implied decisions, the Court did not need to adjudicate the claims. Due to the delay in issuing the express decisions, the Commission was ordered to bear the costs of proceedings.

The cases bring out the serious shortcoming of (this interpretation of) Regulation 1049/2001, which foresees no sanction for the Commission’s disrespect of the 15-day time limit for answering confirmatory application. Article 8(3) of the regulation only provides that “failure to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman”. The argument could be made that in the present cases, the General Court’s explanation of the Regulation is depriving it of its useful effect.

The issue was also addressed by the European Ombudsmanand the Parliamentary Committee on Civil Liberties, Justice and Home Affairs. The latter called on the Commission to respect the deadlines set in the regulation and suggested introducing consequences for failures to meet them, such as the obligation to publish the documents. In the special report on lack of cooperation by the European Commission in complaint 676/2008/RT, the European Ombudsman emphasized the principle of sincere cooperation set forth in article 4(3) TEU, according to which the Union institutions are also subject to the duty to cooperate in good faith in their relations with each other.

Poland and Estonia win appeal on Commission’s NAP decisions

Cases C-504/09- Commission v Polandand C-505/09 Commission v Estonia, 29 March 2012,

The ECJ handed down two judgments confirming the Court’s of First Instance (CFI) rulings from September 2009 that the Commission had exceeded its powers by imposing a cap on the GHG emissions of Poland and Estonia in the period 2008-2012. The two judgments annulled the Commission’s decisions on Poland and Estonia’s national allocation plans.

Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community (ETS), requires member states to prepare national allocation plans (NAPs) stating the total amount of allowances to be distributed to national installations for a period of five years. In the event the NAP does not respect the criteria identified by the directive, it may be fully or partially rejected by the Commission.

In the original cases, the two countries notified their NAPs for the period 2008-2012 to the Commission in 2006. The Commission decided that the proposed quantities of emission allowances should be reduced (26.7% by Poland and 47.8% by Estonia), having found that they were incompatible with the directive’s criteria. Poland and Estonia brought an action for annulment of the Commission’s decisions to the CFI which ruled that, in the decision concerning Poland and Estonia, the Commission violated respectively the obligation of motivation and the principle of good administration. Rather than specifying the total quantity of allowances, the Commission is only required to verify the conformity of the measures taken by the member states with the criteria set out in the Directive. The CFI held that the competences to prepare the NAPs and the proposals on achieving the goals of the directive lay solely with member states. Furthermore, the latter enjoy a degree of discretion in choosing a method for drawing NPAQs. These findings were confirmed by the ECJ that turned down the Commission’s appeals against the previous judgments. However, since an agreement on the NAPs for the two countries has been reached in the meantime, the Court recent decisions are of merely procedural character.

See also: CFI judgments in cases T-263/07-Estonia and T -183/07-Poland, 23 September 2009.

Added to Legislation

New Biocides Regulation adopted

On 10 May 2012, the Council of Ministers approved a new regulation (PE-CONS 3/12) concerning biocidal products including insecticides, disinfectants and repellents, but not medicines or agricultural pesticides. The regulation simplifies the authorisation procedures in the internal market, while at the same time raising the level of protection for both human and animal health and the environment. It introduces stricter labeling obligations, prohibits the placing on the market and use of the most harmful chemicals, and calls on the Commission for regularly reviewing the provisions on nanomaterials in the light of ongoing scientific investigations on their potential threats.

The new regulation was proposed by the Commission in June 2009 with the purpose of replacing the current biocides directive (98/8/EC 1). Its adoption was opposed by Denmarkwhich has sought to retain its independent right to restrict or ban biocidal products on its territory due to their risks to human health and the environment. In a similar vein, Austria abstained from the vote arguing for the lack of scientific assessment of the risks of low-risk biocidal products. Another abstainer, Czech Republic, is concerned about the fees for submitting requests for EU market approval that may hurt small and medium-sized businesses.

See also: press releases by the Council and the Parliamentand case C-420/10 on the interpretation of the old Biocides Directive above

Added to Energy

EU Parliament votes against revised energy tax directive

On 19 April 2012, the European Parliament voted 374-217, with 73 abstentions, against the Commission’s proposal for revision of Energy Taxation Directive, including recommendations from the economic and monetary affairs committee adopted in February 2012.

The Commission´s proposal requires member states to stop differentiation in tax rates between private and commercial use, as well as to erase tax reductions for diesel fuel and unleaded petrol. The revision proposes splitting the minimum tax rate into two elements: one based on CO2 emissions of the energy product, fixed at €20/ton of CO2; and another based on energy content, fixed at €9.6/GJ for motor fuels, and €0.15/GJ for heating fuels. The increase in carbon price from €15/ton CO2and limiting optional reductions and exemptions from taxation aim at helping the delivery of actual emissions reductions outside the EU ETS, by promoting alternative energy sources such as bio fuels to compete on a larger scale with fossil fuels. The text includes the option for Member States to offer an exemption or tax reduction for biofuels by 2023.

The present 2003 Energy Taxation Directive provides for minimum taxes for motor fuels, heating fuels and electricity, while leaving the member states a possibility to deviate from them within several categories: household heating, public transport, rail transport and biomass-based fuels. Taxation of aviation and shipping fuels is prohibited. The revision is an important step for the EU towards aligning its targets on energy and climate change, as requested in the March 2008European Council conclusions. It also reflects the outcome of the 2010 UN Climate Change Conference held in Cancun.

The opposition in the Parliament, led by centre-right, concentrated on the “direct negative social impact” of the rising prices for coal, heating oil and diesel fuel. Amidst the economic crisis, consumers would experience the price hike ever more severely and economic growth would likely be stalled.

The revision is based on the taxation article 113 TFEU, a provision that does not give European Parliament the right to act as co-legislator but merely allows it to issue an advice on the matter. The Parliament’s vote provides recommendations to the Council of Ministers, which must decide unanimously at its next meeting for the revision to take effect. The Parliament advises, among others, against abolishing tax reductions for households and charitable organisations in a short term, or erasing zero-tax rates for agriculture or forestry activities as long as energy efficiency efforts are made in these sectors.

Many member states including the United Kingdom, Germany, The Netherlands, and Luxembourg disapprove of the plan, seeing the minimum CO2 tax rates as EU-wide carbon tax and thus a step towards a common EU tax policy.

See also: European Parliament press release

Added to Air Pollution

Agreement reached on the new Gothenburg Protocol

On 4 May 2012, EU member states and four other parties to the Convention on Long-range Transboundary Air Pollution (LRTAP) reached agreement on stricter emissions ceilings for four air pollutants as part of revisions to the Gothenburg Protocol. The new national emissions reduction targets are set to be reached in 2020 and will provide input for revisions to the national emissions ceilings directive, to be proposed by the Commission in 2013.

Parties to the revised agreement commit to cut sulphur dioxide (SO2) emissions by 59% below 2005 levels by 2020, nitrogen oxides (NO^x) by 42%, volatile organic compounds (VOCs) by 28%. Coming mostly from agriculture, ammonia emissions (NH₃), which are difficult to measure and constrain, will be cut by mere 6%. Notably, the revised protocol introduces reduction by 22% for fine particulate matter below 2.5 micrometres in diameter (PM 2.5) that includes both solid particles and liquid droplets found in the air. As a component of PM 2.5, the Protocol for the first time includes black carbon (or soot), known as a short-lived climate forcer, with its lifetime shorter than that of CO2 but heat-trapping properties 680 higher. The revised technical annexes bring up to date the emission limit values for stationary sources of air pollution such as industrial installations, as well as mobile sources such as vehicles or agricultural and forestry mobile machines.

The agreed targets are more ambitious than those proposedby the Commission and Danish presidency in March 2012. There are, however, considerable differences between individual targets for EU member states, in particular regarding sulphur. Cyprus, for instance, accepted an 83% reduction goal for SO2 while Latvia merely 8%.

At this point, apart from 27 EU member states, only four LRTAP parties – Belarus, Croatia, Norway and Switzerland – have adopted the new targets. In order to accede to the revised protocol, the parties to the Convention – the United States, Canada, the Russian Federation, and countries and South-Eastern Europe and the Caucasus – will be required to deliver data on their respective 2005 emission levels and commitment values.

Added to National Page Russia, policies

New Environmental Policy adopted in Russia

On 30 April 2012, outgoing President Dmitry Medvedev approved the “Principles of State policy in the area of environmental development of the Russian Federation for the period up to the year 2030”. The document was published on the Kremlin website in Russian language only. We prepared an English translation available here. Does the policy offer any prospects for a change to the better in Russia under President Putin, who resumed the office of Russia’s President on 7 May 2012?

Interesting in the light of the Russia’s refusal to commit to new obligations in international climate negotiations is that the document admits that “global environmental problems associated with climate change, biodiversity loss, desertification and other negative environmental processes” have an impact on Russia and its citizens (point 1). Noteworthy as well are references to the facts that a large percentage of Russia’s urban population is faced with high and even very high air pollution, and that some 100 million hectares are threatened by desertification (point 3). Industrial pollution is to be reduced to a level similar to that “in economically developed countries” (point 13.c).

In 2010, President’s Medvedev had called for an improved, consolidated environmental policy. This is reflected in the new Environmental Policy where it calls for the establishment of an integrated and coherent system of environmental laws (point 11.b). Medvedev had pointed out correctly that Russia’s environmental laws are isolated and at times contradictory. Another problem is that fines for violation of environmental laws and permit conditions are too low, and enforcement is frequently flawed. Medvedev called for ensuring that observance of environmental protection legislation becomes a standard practice – implying that this is not the case so far. The new policy document stresses that liability for violations of environmental legislation are to be increased and punishment for environmental crimes is to become inevitable (point 11.d).

Indeed, much will depend on whether concrete steps will be taken that would actually deal with the issues outlined by former President Medvedev. The EU has been instrumental in analysing where improvements to aspects of Russia’s environmental law system are possible, notably through the Harmonisation of environmental standards projects that were convened between 2003 and 2009. Not much was done with the recommendations formulated by Russian and EU experts in those projects, however. The new Environmental Policy could be a step in the right direction, but only if President Putin is willing and able to seriously improve his environmental record.

See also: full article, English translation and further links at EEL Blog

Added to General

Four countries taken to Court over Waste Directive

The European Commission has referred four member states to the ECJ for their failure to transpose the Waste Framework Directive 2008/98/EC into national law within the December 2010 deadline. In line with article 260 (3) TFEU, the Commission asked the Court to impose financial sanctions already at the first referral. The requested daily penalty payments, to be made until the transposition is complete, take into account the size of the country and the duration and gravity of the violation, amounting to € 15,220 for Bulgaria, € 17,136 for Slovakia, € 27,316 for Hungary, and € 67,314 for Poland. If the Court upholds the Commission’s request, the fines will apply from the day of the ruling.

The objective of the Waste Framework Directive is to minimize the adverse effects of waste generation and management on human health and the environment by establishing a legal framework for waste management within the EU. It establishes waste treatment principles such as “polluter pays” and “extended producer responsibility;” and a binding hierarchy for managing waste. In addition, the directive includes a clarification of the distinction between waste and non-waste, provisions on hazardous waste and waste oils, as well as targets for recycling and recovery to be accomplished by 2020. Under the directive, Member States are obliged to adopt waste management plans and waste prevention programmes.