EEL News Service – Issue 2015/13 of 8 October 2015

Dear members of the EEL Network,

Autumn is upon us and we are approaching COP 21 in Paris. Momentum is gaining but uncertainties persist and a lot of work remains to be done. A new negotiation text was released. For this and other climate news, see the ‘Climate’ section below.

Moreover, this issue includes news about the UN Sustainable Development Goals and two recent CJEU judgments on seals and chemicals.

CJEU: C-398/13 P Inuit Tapiriit Kanatami a.o. v Commission(03/09/2015)
Inuit Tapiriit Kanatami a.o. asked the CJEU to set aside the General Court’s judgment in case T-526/10, in which the EU rules banning the sale of seal products (except for products caught by the Inuit) were held to be in conformity with EU law. Like the General Court, the CJEU rejected to adjudge that Regulation 737/2010 laying down detailed rules for the implementation of Regulation 1007/2009 should be annulled and that Regulation 1007/2009 on trade in seal products is illegal. A judgment on the merits of the case, in other words. That could come as a surprise to those aware of the earlier judgment in which the Inuit were told they did not have legal standing when they tried to challenge the basic Regulation 1007/2009. This time around, they targeted the implementing regulation that is of direct concern at least to the appellants selling seal products in the European internal market and requires no further implementing measures in respect of them. Hence, they could use the very last sentence of art. 263 TFEU that allows natural and legal persons to institute proceedings against a regulatory act not addressed to that person “which is of direct concern to them and does not entail implementing measures”. What constitutes a regulatory act was dealt with in the first Inuit case (C-583/11 P).

Referring to settled case law, the CJEU confirmed the validity of the use of the internal market provision art. 95 EC (now 114 TFEU) as a legal bases for the EU measures on the basis of the facts and law pertaining at the time when a legal measure is adopted, rather than at the time when the proposal was adopted as the Inuit claimed. Furthermore, the Court explained that the objective of measures adopted on the basis of the internal market provision must genuinely be to improve the conditions for its establishment and functioning. The CJEU considered that sufficient evidence had been provided to show that, at the time when Regulation 1007/2009 was adopted, differences between member states’ national provisions governing trade in seal products existed, and were impeding the free movement of those products. Moreover, it held that recourse to this legal basis did not depend on the seal market being ‘relatively sizeable’.

The CJEU also held that while the fundamental rights recognized by the ECHR ‘constitute general principles of the Union’s law’ (Article 6(3) TEU), and while Article 52(3) Charter provides that the rights contained in the Charter which correspond to the rights guaranteed by the ECHR must have the same meaning and scope as those laid down by the ECHR, the convention ‘does not constitute, as long as the EU has not acceded to it, a legal instrument which has been formally incorporated into EU law’. Therefore, the General Court had been correct to base its examination on the provisions of the Charter and not the ECHR. As is well known, the Court declared that accession by the EU to the ECHR in the manner envisaged by the Commission was not compatible with art. 6(2) TEU (see CJEU opinion 2/13).

The CJEU rejected the Inuit’s claims on the basis of the right to property, holding that the mere possibility of being able to market seal products in the EU was not sufficient to engage that right. Finally, the CJEU held that the mere referral to the (non-binding) United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the recital to Basic Regulation 1007/2009 did not create an obligation to comply with Article 19 UNDRIP, in which the need for free prior and informed consent is laid down.

europeanlawblog entry: The seal product cases: the ECJ’s silence on admissibility in Inuit Tapiriit Kanatami II (11/09/2015)

CJEU: C-106/14 FCD and FMB (10/09/2015)
This request for a preliminary ruling concerned the interpretation of Article 7(2) and 33 of Regulation 1907/2006 (REACH). Those provisions make it obligatory to provide information on the presence of a substance of very high concern in a concentration above a 0.1% threshold in articles. One question was whether this obligation only covered products as a whole, or also products with individual components crossing the threshold. The CJEU held that the definition of an ‘article’ is applicable to any object meeting the criteria in Article 3(3) REACH, and that there is no need to draw a distinction between articles incorporated as a component of a complex product and articles present in an isolated manner. In relation to Article 7(2) REACH, the CJEU clarified that producers of articles have a duty to notify substances of very high concern that are present in concentrations above 0.1% of the weight in articles that they make or assemble but they are not required to notify the presence of such substances in articles produced by a third party that they use. Importers of products made up of more than one article, on the other hand, must determine for each article, whether a substance of very high concern is present in a concentration over 0.1%. Finally, in relation to the information duty under Article 33 REACH, the CJEU held that the supplier of a product, of which one or more constituent articles contains a substance of very high concern in a concentration above 0.1%, must inform the recipient and, on request, the consumer, of the presence of that substance by providing them, at a minimum, with the name of the substance in question.

Initiated Proceedings

European Commission Press Release: Commission refers Malta to the CJEU over finch trapping (24/09/2015)
The European Commission is referring Malta to the CJEU over its decision to allow the live capture (i.e. trapping) of seven species of wild finches as from 2014. In the EU, the capture and keeping of bird species like finches is generally prohibited.

EurActiv Article: EU states fall short of sustainability goals (09/09/2015)
The Bertelsmann Foundation compared the 34 OECD countries, using 34 indicators within the sphere of the 17 SDGs in its “stress test”. The results revealed that countries like France, Germany, Greece and Hungary are far from reaching their overall targets. The five countries that are most likely to reach the UN targets include four of the Nordic countries: Sweden, Norway, Denmark and Finland, with Switzerland completing the list. Read the report here.

European Commission Fact Sheet: Millennium Development Goals (MDGs) – What has the EU achieved? (25/09/2015)

European Commission Fact Sheet: Sustainable Development Goals and the Agenda 2030
An overview of the SDGs and the EU`s contribution thereto.

UN Sustainable Development: United Nations Sustainable Development Summit 2015 (25/09/2015)
From the 25th-27th September, the UN held its 2015 Sustainable Development Summit, adopting the 2030 Agenda in a UN General Assembly high-level plenary meeting. The new agenda comprises 17 Sustainable Development Goals and 169 targets. A draft outcome document can be accessed here.

EEA Article: Europe continues to phase out ozone layer-damaging chemicals(16/09/2015)
Europe continues to make progress in phasing out chemicals which damage the ozone layer according to a new report from the European Environment Agency (EEA). The report considers the use of more than 200 chemicals controlled by the Montreal Protocol and EU legislation.

European Parliament Press Release: Environment MEPs vote to curb off-road engine pollution (15/09/2015)
A draft regulation aiming to cut emissions of major air pollutants from non-road mobile machinery (NRMM) (such as lawn mowers, tractors, bulldozers and locomotives) was backed by Environment Committee MEPs. NRMM engines account for about 15% of all nitrogen oxides and 5% of particulate emissions in the EU. The draft regulation aims to curb emissions of a number of major air pollutants.

EurActiv Article: Pesticides pose risk to bees, EU watchdog says(27/08/2015)
The European Food Safety Authority (EFSA), which guides EU policymakers, said leaf spray containing three neonicotinoid pesticides could harm bees, whose pollinating role is estimated to be worth billions of euros for the bloc’s farm sector. These widely-used pesticides are made by Bayer CropScience and Syngenta.

Politico Article: EU panel rejects bid to stop Monsanto weedkiller(15/09/2015)
The European Parliament Committee on the Environment, Public Health and Food Safety rejected a proposal to halt an extension in the use of the world’s most popular weedkiller, namely glyphosate (known by the brand name Roundup).
Sales of the herbicide, which is contained in 750 products, must stop in December 2015 if not given re-authorization. The European Commission proposes to extend marketing to June 2016, thus giving EFSA time to finalise its scientific conclusions on glyphosate, in spite of the fact that the WHO’s International Agency for Research on Cancer found, in a 2015 report, “sufficient evidence in animals” to indicate glyphosate is “probably carcinogenic to humans.”

euobserver: Some ‘green’ projects bad for climate, report says (25/08/2015)
The use of carbon credits under the Kyoto Protocol may have worsened climate change instead of reducing emissions of greenhouse gases, according to a Working Paper published by the Stockholm Environment Institute (SEI). The research found that about 75% of the bought carbon credits under a Joint Implementation (JI) scheme “are unlikely to represent additional emissions reductions”. This suggests that the use of JI offsets “may have enabled global greenhouse gas (GHG) emissions to be about 600 million tonnes of carbon dioxide equivalent higher than they would have been if countries had met their emissions domestically”, the authors say.

EurActiv Article: Kyoto protocol’s carbon credit scheme ‘increased emissions by 600m tonnes’ (25/08/2015)
UN officials confirm the findings by the Stockholm Environment Institute that around 600 million tonnes of carbon were wrongly emitted under the UNFCCC’s Joint Implementation (JI) scheme. An estimated 80% of JI projects were of low environmental quality, according to the paper which was published today in Nature Climate Change.

EurActiv Infographic: Financing climate change and development (27/08/2015)

EurActiv Article: COP 21 agreement set to miss CO2 reduction target by 10 gigatons (31/08/2015)
Currently, the submitted intended nationally determined contributions (INDC’s) gives the projection that the commitments will fall 10 gigatons short of the level of emission reductions necessary in order to limit global temperature increases to +2°C. Laurence Tubiana, France’s lead negotiator for the COP 21, commented that ‘we can take immediate action to reduce the ten gigaton carbon gap’, referring to the surge of private companies’ and local communities’ commitments.

EurActiv Article: Climate negotiations gain momentum ahead of COP 21(08/09/2015)
After five days of negotiations in Bonn, the United Nations now has a mandate to draft a text for the Paris climate agreement, but deep divides persist.

EurActiv Article: Climate negotiations undermined by doubts over financing(28/09/2015)
‘Developed countries have pledged $100 billion per year to help fight climate change in developing countries. But as the Paris UN climate summit approaches, it is unclear where this money will come from.’

EurActiv Article: France ends coal subsidies for developing countries amid fears of COP 21 failure (11/09/2015)
“We will immediately end export credits for all new coal power stations that are not equipped with CO2 capture and storage mechanisms,” Prime Minister Manuel Valls announced. France hopes its decision to end export credits for coal-fired power stations will breathe life into the sluggish international climate negotiations, which have all but ground to a halt in the EU.
While the announcement is certainly commendable and likely to have a symbolic effect, NGOs and environmental groups have expressed some concerns. Notably, Manuel Valls did not indicate what he means by carbon capture and storage technology (CCS), nor did he mention which countries may be excluded. Moreover, as CCS technology is still in its infancy, it is perceived by some as risky. Finally, as noted by Climate Action Network, the plan will not affect existing coal mines or associated infrastructure.

EurActiv Opinion: France makes a bold move on coal finance: Will other countries follow? (11/09/2015)
By Pascal Canfin, Senior Advisor for Climate at the World Resources Institute.
‘Since last year, France, the US and the UK have been supporting a proposal at the OECD, the club for the 34 rich countries of the world, that would severely restrict OECD export credit agencies from financing new carbon polluting coal plants. Yet this proposal is being vigorously resisted by the governments of Japan, South Korea and Australia, who all have vested interests in promoting coal expansion.’

EurActiv Article: OECD: ‘Ample scope’ for more cuts in fossil fuel subsidies(21/09/2015)
“There is clearly ample scope to save scarce budgetary resources and improve the environment in both advanced and emerging economies” with deeper cuts, OECD Secretary-General Angel Gurria said in a statement. The OECD has been trying for more than a year to reach agreement on phasing out a form of coal subsidy that helps rich nations export technology for coal generation. Recent talks in Paris were again unsuccessful.

European Parliament Press Release: COP 21: environment MEPs adopt mandate for Paris climate talks (23/09/2015)
The environment committee said that Parliament’s delegation to the COP 21 climate talks in Paris must call for a 40% cut in greenhouse gas emissions by 2030, a 40% energy-efficiency target and a binding 30% target for renewable energy. ‘The committee wants climate finance to be included in any agreement reached in Paris and calls on the EU and its Member States to agree on a roadmap to scale up finance towards their fair share of the overall target of $100 billion a year by 2020. It proposes earmarking some of the EU’s Emissions Trading Scheme (ETS) allowances as sources of climate finance, as well as revenues from EU and international taxes on aviation and shipping emissions.’

EurActiv Article: Ministers unite on mandate for Paris climate talks(18/09/2015)
In addition to the commitment to cut greenhouse gas emissions by 40% by 2030, EU Climate Commissioner Cañete indicated that the EU would push for emissions to peak by 2020 at the latest, and have them reduced by at least 50 percent by 2050, compared to the 1990 baseline. “They should be near zero or below by 2100,” he added.

European Commission Press Release: Commission allocates 2016 quotas to companies selling fluorinated gases (23/09/2015)
The European Commission has allocated quotas to companies selling hydrofluorocarbons (HFCs) in the EU in 2016. This is the latest step in a gradual reduction in the amount of the climate-warming gases that can be sold in the EU. It follows the adoption of Regulation 517/2014 on fluorinated gases (F-gases) in 2014, which aims to reduce emissions of the gases by two-thirds by 2030 compared to today’s levels. HFCs, the most common F-gases, are thousands of times more powerful than carbon dioxide (CO2).

Businessgreen Article: UN releases fresh 20-page Paris negotiating text(05/10/2015)
The slimmed-down version of the negotiating text will provide a basis for negotiations at the final round of preliminary talks, to be held in Bonn, Germany, 19-23 October.
The text includes 231 square brackets, meaning that there is still a lot of work to be done. Nevertheless, the co-chairs have taken certain controversial aspects out of the draft agreement, in an attempt to speed up the process. In particular, all mentions of shipping and aviation have been removed. Moreover, while loss and damage receives a mention in the negotiating text, proposals on how to make it work and on creating a mechanism have been removed and reserved for the decision paper.

EurActiv Article: EU calls into question Germany’s brown coal compromise(15/09/2015)
An article (German text) in the Frankfurter Allgemeine Zeitung (FAZ) on the 14 September 2015, which relies on Commission sources, says that the European Commission has concerns that the new electricity market proposals will infringe upon EU guidelines, by providing brown coal (lignite) power plants with special treatment.

EurActiv Article: EU ban on aging boilers expected to bring ‘mammoth’ energy savings (16/09/2015)
New energy standards for home boilers entering into force this month are expected to take offline the equivalent of 47 Fukushima-type nuclear power stations in Europe by 2020, according to official EU data compiled by the European Environmental Bureau (EEB).
The stricter Ecodesign standards for home boilers will enter into force on 26 September. As of that date, only gas boilers and water heaters using energyefficient condensation technology will be allowed for sale in the EU.

European Commission Article: New measures for heaters could save up to 20% of a household’s energy bill (26/09/2015)

European Parliament Article: EP wants animal cloning ban extended to offspring and imports (08/09/2015)
Parliament beefed up the Commission’s initial proposal to ban animal cloning to include the cloning of all farm animals, their descendants and products derived from them, including imports into the EU, in a vote on the 8th September 2015. The European Parliament points to findings by the European Food Safety Authority (EFSA) from 2008 that the health and welfare of clones are adversely affected, often severely and with a fatal outcome. MEPs also refer to consumer research findings indicating that a majority of EU citizens strongly oppose the consumption of food from animal clones or from their descendants and that a majority also disapprove of the use of cloning for farming purposes, on animal welfare and general ethical grounds.

EurActiv Article: Parliament deals heavy blow to Commission’s cloning proposal (08/09/2015)
While members of the European Parliament are broadly opposed to the sale of meat, eggs or milk from cloned animals in Europe, the European Commission supports a more flexible approach, whereby these restrictions would not apply to the descendants of cloned animals. The two institutions also clashed over MEPs’ demands for greater traceability for meat imported from outside the EU. Many MEPs believe that the Commission is hesitant to take a hard line on imports due to the ongoing TTIP negotiations, although this suspicion was denied by the Health Commissioner.

European Parliament Article: MEPs toughen EU ban on the sale of seal products
‘Fewer seals could be hunted for their fur thanks to a stronger EU ban on the trade in seal product, approved in plenary on the 8th September (631 MEPs in favour, 31 against, 33 abstentions). The new rules will extend the ban to products resulting from hunts to protect fishing stocks, although Inuit and other indigenous communities will continue to be exempt from the ban. These changes, already agreed with EU governments, are needed to bring EU regulation in line with World Trade Organization rules.’
See also our coverage of the latest Inuit case C-398/13P at the CJEU in this issue of the EEL News Service.

Council of the EU: Extraordinary Agriculture and Fisheries Council Meeting(07/09/2015)
In an extraordinary meeting of the Agriculture Council, ministers expressed strong concerns about recent developments in a range of agricultural sectors, in particular the dairy and pigmeat sectors. It put forward a support package of measures and made €500 million available to farmers.
Access the outcome of the meeting here.

EurActiv Article: Commission proposes ‘flexible’ use of new agriculture aid (16/09/2015)

EurActiv Article: Climate change threatens European wine production(14/09/2015)
The EU is the world’s biggest wine producer, producing 7 billion litres of wine per year (45% of the global total). A recent publication (Threats to wine. The challenges of climate change) has revealed the extent to which the wine sector is under threat from climate change.
France’s most important wine region, Bordeaux, could become too hot to produce quality wine by the end of the century. Climatologists predict that the average temperature will rise from 14°C to 18.8°C. Temperatures are rising faster in the region of Bordeaux than in almost any other French region.

EUrActiv Article: European Commission, don’t ‘chicken’ out on a sustainable food strategy (23/09/2015)
The Commission must develop a strategy towards a sustainable EU food and farming system, including the introduction of a target to reduce the consumption of animal products by 30 percent by 2030, writes Joanna Swabe, Executive Director for Humane Society International/Europe. ‘It is mindboggling to consider that animal agriculture presently accounts for 12.8 percent of greenhouse gas emissions in the EU. Yet there is a very simple solution: a recent study found that a 50 percent reduction in our consumption of meat, dairy and eggs in the EU could bring those emissions down to much more sustainable levels.’

EurActiv Article: Civil aviation falling short of climate commitments(08/09/2015)
Energy efficiency in aviation is improving too slowly, and the sector is set to miss its climate objectives, a recent study/PDF by the International Council on Clean Transport has found.
“With new aircraft having a lifespan of 20-30 years, falling efficiency returns could lock in unnecessary fossil fuel consumption for decades to come, greatly undermining global efforts to decarbonise and limit a temperature increase to under 2 degrees”, commented Andrew Murphy, the sustainable aviation officer at the NGO Transport and Environment.

EurActiv Article: Nine out of ten new diesel cars exceed EU pollution limits, report finds (15/09/2015)
Nine out of 10 new diesel cars break new EU pollution limits when tested on roads rather than test tracks. On average, the cars emit seven times the permitted level of NOx gasses, with the worst car producing 22 times the legal limit. Models from every major motor manufacturer breached the limit when they were evaluated in real-world conditions.
From 1 September 2015, new diesel cars in the EU have had to comply with emissions rules called ‘Euro 6’ (Regulation 715/2007, Annex I Table 2). However, carmakers can use a whole range of techniques to ensure that their cars perform far better under test conditions than when driven by ordinary drivers.
The report (Don’t Breathe Here: Tackling air pollution from vehicles), from sustainable transport group Transport & Environment (T&E), compiled recent data to show that when diesel vehicles are tested in normal driving conditions they emit much greater levels of NOx gases (mono-nitrogen oxides). NOx gases and other vehicle-related pollution are estimated to cause half a million premature deaths every year in the EU.

European Parliament Press Release: MEPs discuss Volkswagen emission “defeat devices” with EU Commission (18/09/2015)

EurActiv Article: VW scandal prompts calls for EU-wide inquiry (23/09/2015)

European Parliament Press Release: Car emissions: MEPs push for “real-life” test protocol (24/09/2015)
The environment committee adopted a draft legislative text that would update EU car emission rules, setting limits on certain pollutants including NOx. Additionally, they called for a new, real-life, emissions test procedure to be enforced by 2017 and for fuel consumption meters and gear-change indicators to be fitted to all new cars by 2019.

European Commission Statement: European Commission statement on air pollutant car emissions (24/09/2015)
European Commission calls for full disclosure, zero tolerance and strict compliance with EU rules on pollutant emissions.

EurActiv Article: Only one third of EU’s e-waste recycled properly(01/09/2015)
‘Almost five million tonnes of e-waste were mismanaged or traded under the table within the EU in 2012, and 1.3 million tonnes were illegally exported out of the EU, mostly to Africa and Asia. Only one third of Europe’s e-waste is properly recycled.’
Report: Countering WEEE Illegal Trade

EurActiv Article: Italy reluctant to tackle illegal landfills (15/09/2015)
After the CJEU imposed heavy fines on Italy in 2014 (C-196/13) because of 198 illegal landfills, only 13 have actually been brought up to code. The fine amounted to an initial €40 million, plus €42 million for every six months Italy failed to clean up the illegal dumps. After the first six months had elapsed, only 13 sites had been cleared by the authorities.
This is not the only instance of Italy’s persistent violation of the Waste Framework Directive and inability to execute CJEU judgments. As discussed in the previous News Service 2015/12, the CJEU handed down a similar judgment on the 16th June 2015 (C-653/13, judgment in French and Italian).

EurActiv Article: Recycling industry under pressure from falling raw material prices (17/09/2015)
The price of virgin raw materials started falling in 2014, a trend that continued in 2015. As raw materials become rarer, businesses should in theory be forced to recycle more. But in the short term, cost is a more persuasive factor than any environmental benefit of recycling. Hence, businesses are abandoning recycled materials in favour of cheaper virgin materials. As an example, the French recycling industry’s profits fell by 2% in 2014.

European Parliament: Right2water citizens’ initiative: Commission must act, say MEPs (08/09/2015)
The European Commission’s response to the first EU citizens’ initiative (ECI) petition, on the “Right2Water”, lacks ambition and failed to meet the demands of the organizers, said MEPs in a resolution voted on 8 September 2015. “The Right2Water citizens’ initiative was the first successful example of this democratic mechanism. Ownership and management of water services are clearly key concerns for citizens that cannot be ignored”, said lead MEP Lynn Boylan (GUE/NGL, IE), whose report was approved by 363 votes to 96, with 261 abstentions. MEPs call on the Commission to table legislative proposals, including a revision of the EU Water Framework Directive if appropriate, in order to recognise that affordable access to water is a basic human right.

Editors-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, Catholic University of Lille)

Editors

Katarina Hovden (T.M.C. Asser Instituut, The Hague)

Steffen van der Velde (Researcher, T.M.C. Asser Instituut, The Hague)