Dear Members of the EEL Network,

This issue of the EEL News Service looks at new environmental case law from March 2017. The CJEU dismissed appeals by Hitachi and Polynt, which sought the review of two General Court rulings in favour of ECHA regarding substances of very high concern (SVHC). Furthermore, the Court ruled that national laws providing for the confiscation of unused emissions allowances are compatible with the ETS Directive, and interpreted the concept of ‘hydropower’ under the Renewable Energy Directive. It was also established that Spain failed to fulfil obligations under the Waste Framework Directive, and Greece violated the Energy Performance of Buildings Directive. An AG recommended the Court to confirm the validity of the Commission’s ETS Benchmarking Decision. The annotated cases can also be found in our renewed EEL case law database, which spans over 20 years. Besides search options for sectors (water, waste etc.), we added several topics, including case law in which the precautionary principle, financial sanctions, or Aarhus played a role.

Some noteworthy news developments include the adoption of a Council negotiation position on ETS reform, the EP vote on an integrated EU policy for the Arctic, and the release of a new ECHA study that concluded that there is insufficient evidence to establish the carcinogenicity of glyphosate. The EP’s INTA Committee also adopted recommendations on using the CCP to tackle wildlife trafficking, the EMIS Committee adopted its final inquiry report, and the EP adopted legislative proposals in plenary aimed at increasing recycling and reducing food waste, as well as regarding conflict minerals; we added a link to our colleague Steffen van der Velde’s policy paper on the latter topic.

Last but not least, the Aarhus Compliance Committee issued a report confirming that the EU is not living up to its obligation to allow the public effective access to justice in environmental matters.

Best regards,

Wybe Douma and Olivier van Geel

CJEU judgments

Appeals on substances of very high concern (SVHC) dismissed

CJEU judgments: Case C‑324/15 P Hitachi Chemical Europe and Polynt v ECHA and Case C-323/15 P Polynt v ECHA (15/03/2017)
The CJEU has dismissed the appeal against the General Court’s ruling in Case T-135/13, in which Hitachi and Polynt sought partial annulment of an ECHA Decision concerning the inclusion of certain substances of very high concern in the list of candidate substances, in accordance with Article 59 of REACH Regulation (EC) No 1907/2006. In particular, the case concerned the substances that together form the compound methylhexahydrophthalic anhydride (MHHPA), which is classified as a category 1 respiratory sensitiser under Annex VI of Classification, Labelling, and Packaging Regulation (EC) No 1272/2008, meaning that inhalation may cause allergy or asthma symptoms or breathing difficulties.

The judgment was delivered on the same day as the dismissal in Case C-323/15 P, which concerned a similar appeal brought by Polynt against the General Court’s ruling in Case T-134/13. The claim, which sought the partial annulment of the same ECHA Decision, related to the substance of very high concern Hexahydrophthalic anhydride (HHPA).

For more information on these cases see the summary of the AG Opinion in our previous News Service of 11 October 2016.

Spanish waste dumps violate EU waste law

CJEU judgment: Case C‑563/15 Commission v Spain (15/03/2017)
The Court ruled that Spain failed to fulfil its obligations under Article 13 and Article 15(5) of the Waste Framework Directive 2008/98/EC by failing to take adequate measures to ensure sound waste management at various garbage dumps.

The Spanish authorities had neglected to take the necessary measures to ensure that waste management occurred without endangering human health or preventing environmental harm. Furthermore, the necessary measures were not taken to ensure that the treatment of waste was carried out by the original producers or other holders of the waste, handled by a dealer or waste treatment establishment or undertaking, or arranged by a private or public waste collector in accordance with Articles 4 and 13 of the Directive.

Confiscation of unused allowances compatible with ETS Directive

CJEU judgment: Case C-321/15 ArcelorMittal Rodange and Schifflange(08/03/2017)
The Court ruled that national legislation providing for the confiscation of unused allowances is compatible with ETS Directive 2003/87/EC where an operator failed to inform the competent authority of ceased operations in the installation concerned. Such allowances do not classify as “allowances” under Article 3(a) of the ETS Directive.

The preliminary question in this case rose in proceedings before the Luxembourg Constitutional Court. Under Article 13(6) of the Luxembourg ETS law, full or partial cessation of the operations of an emitting installation must be reported to the competent authority. ArcelorMittal had failed to inform the authorities of the cessation of operations at its installation in Schifflange on time, and was thus requested to surrender without compensation 80 922 emissions allowances. The referring court asked the CJEU whether the ETS Directive precludes national legislation that allows the uncompensated confiscation of unused allowances, and if these allowances could be considered emissions allowances under the Directive.

In its judgment, the Court pointed to the “margin for manoeuvre” that member states are granted in the formulation of their National Action Plans (NAPs), referring to earlier case law in Commission v Estonia (C-505/09 P). The fact that the overall scheme of the ETS Directive is based on strict accounting was noted. It was also emphasised, with reference to paragraph 69 of the AG Opinion, that Article 13(6) of the Luxembourg law essentially constitutes a transposition of Article 7 of the ETS Directive, which stipulates that operators must inform the competent authority of changes to an installation that may require updating the emissions permit.

In relation to the second part of the referred question, the Court noted that the allowances in question were improperly allocated and could therefore not classify as emissions allowances within the meaning of the ETS Directive. The final decision on whether the activities at the Schifflange installation were truly suspended at the declared time, and if such a suspension classifies as a cessation of activities under the Luxembourg ETS law is left to the referring Court.

Greece failed to fulfil Energy Performance of Buildings Directive obligations

CJEU judgment: Case C-160/16 Commission v Greece (02/03/2017)
Greece has failed to fulfil its obligations under Article 5(2), second paragraph of Energy Performance of Buildings Directive 2010/31/EU by neglecting to report to the Commission on the calculation of cost-optimal levels of minimum energy performance requirements. The methodological framework for making these calculations is specified in Commission Delegated Regulation (EU) No 244/2012. With buildings accounting for 40 % of total energy consumption in the European Union, the goal of this directive is to reduce energy consumption and stimulate the use of energy from renewable sources in the buildings sector and in that manner reduce the Union’s energy dependency and greenhouse gas emissions.

The Court dismissed the arguments put forward by Greece, recalling that member states cannot rely on provisions, practices or situations of its own internal legal order to justify a failure to respect EU obligations, with reference to earlier case law in Commission v Greece (C-378/13).

Court interprets ‘hydropower’ under Renewable Energy Directive

CJEU judgment: Case C-4/16 J.D. (02/03/2017)
The CJEU ruled that the concept of ‘energy from renewable sources’ in Article 2(a), second subparagraph of Renewable Energy Directive 2009/28/EC covers energy generated by a small-scale hydropower plant, which is not a pumped-storage power station or a hydropower plant with a pumping installation, located at the point of discharge of industrial waste water from another plant.

The Court noted that ‘hydropower’ under Directive 2009/28/EC constitutes an autonomous concept of EU law that must be interpreted uniformly throughout the member states. With reference to existing case law in Ziolkowski and Szeja (C‑424/10 and C‑425/10), it was underlined that the meaning and scope of terms not defined in EU law must be determined by inter alia considering their context and the purposes of the rules that they are part of. Following points 36 and 38 of the AG Opinion, the Court stated that contextual factors suggest that all hydropower constitutes energy from renewable sources, regardless of whether it is generated from natural or artificial water flows, with the exception of electricity generated from pumped storage units using water that was previously pumped uphill.

Additionally, it was suggested that an exclusion of electricity generated from artificial water flows would conflict with the intention of the EU legislature and the achievement of the objectives of Directive 2009/28/EC. Essentially, the fact that hydropower comes from an artificial water flow does not preclude a contribution to the goals of the Directive and, in particular, to the objective of reduced GHG emissions.

For more information on this case see the summary of the AG Opinion in our previous News Service of 1 December 2016.

AG Opinions

Commission Benchmarking Decision valid

AG Opinion: Case C-80/16 ArcelorMittal Atlantique and Lorraine(09/03/2017)
Advocate General Wahl has proposed that the Court confirm the validity of Commission Decision 2011/278/EU on transitional Union-wide rules for harmonised free allocation of emission allowances, as regards the setting of benchmarks for hot metal and sintered ore.

The preliminary questions in this case arose in proceedings before a French Court in which ArcelorMittal claimed that Directive 2011/278/EU is incompatible with ETS Directive 2003/87/EC. ArcelorMittal contended that the benchmark for hot metal is incorrect, as the Commission’s calculation did not take account of emissions related to waste gases used for electricity production, and the best available data was not employed. Additionally, it was argued that the benchmark for iron ore is incorrect, as the emissions of an installation which also produces pellets were included in the calculations.

EU fails to meet access to justice obligations under Aarhus Convention

EU Observer: EU environmental policy could face NGO lawsuits
On 17 March 2017, the Aarhus Compliance Committee found that the EU was not living up to its obligation to allow the public effective access to justice in environmental matters. The EU is a party to the Aarhus convention, but the CJEU and the EU legislator failed to fully meet the obligations of the Aarhus Convention.

This was pointed out by academics for a long time, see for instance:
* Geert van Calster: Access to Justice Against European Community Institutions – Using Environmental Litigation as a Focal Point, 2003
* Marc Pallemaerts: Compliance by the European Community with its obligations on access to justice as a party to the Aarhus Convention, 2009

Also see:
*Aarhus Compliance Committee: Findings and recommendations concerning EU compliance

MEPs vote on conflict minerals regulation

European Parliament Press Release: Conflict minerals: MEPs secure due diligence obligations for importers
European Parliament voted in favour of the conflict minerals regulation with 558 in favour, 17 against and 45 abstentions. The regulation obliges all but the smallest importers of tin, tungsten, tantalum, and gold to exercise “due diligence” checks on their suppliers, and encapsulates information obligations for big manufacturers. In the US, the Trump administration is contemplating suspending similar legislation that served as partial inspiration for the EU regulation.

Also see:
*Steffen van der Velde’s policy brief: The End of Conflict Minerals on the EU Market?

MEPs vote on integrated EU policy for the Arctic report

European Parliament Press Release: Arctic: ban oil drilling and mitigate tensions, urge MEPs
On 16 March the European Parliament voted on the report on an integrated EU policy for the Arctic, rejecting a proposal that called for a future total ban of oil drilling and extraction in the Arctic. EUobserver reported that, even though the EP’s resolution is non-binding, in advance of the vote, Norwegian MPs travelled to Brussels to persuade MEPs to remove the controversial references. The call for a ban of “oil drilling in the icy Arctic waters of the EU and the EEA”, which did pass, will not have larger effects according to this article, as Norway already bans drilling in icy waters.

Also see:

European Parliament: Resolution on an integrated European Union policy for the Arctic
EUobserver: MEPs reject ban on Arctic oil drilling

European Parliament’s ENVI Committee votes on sustainable palm oil

European Parliament Press Release: MEPs call for clampdown on the import of unsustainable palm oil
MEP’s in the European Parliament’s ENVI Committee adopted a report advocating a phase-out of the use in biofuels of vegetable oils that drive deforestation by 2020, and a single certification scheme for palm oil entering the EU market. The report will be voted on in plenary during the April 3-6 session.

Also see:
*Jennifer Murnane O’Connor: Commission is not the only culprit in the biofuel shambles, Euractiv opinion piece

French law requires all plastic cups, cutlery, and plates to be compostable

Independent: France bans plastic cups, plates and cutlery
A new French law aims to ensure that all plastic cups, cutlery and plates are compostable and made of biologically sourced materials. Critics of the legislation claim that it violates European Union rules on free movement of goods.

CE Delft publishes handbook on transport emission factors (in Dutch)

CE Delft Handbook: STREAM Goederenvervoer 2016
The Dutch research consultancy firm CE Delft has published a new report with emission factors per Tonne-Kilometre for road, rail, inland waterway, and cabotage transport.

Low risk for users of artificial sports pitches

European Chemicals Agency Press Release: Recycled rubber infill causes a very low level of concern
ECHA has concluded that the concern for players using artificial sports pitches, including children, and for workers who install and maintain them is very low, based on an evaluation of the risk of substances in the recycled rubber used for these pitches. These findings are preliminary, and the evaluation will be updated once new information becomes available. In the USA, the EPA is still investigating the same topic.

Also see:
EPA: Federal Research on Recycled Tire Crumb Used on Playing Fields
RIVM: Rubber granulate FAQs

Concern about ECHA transparency after release glyphosate study

EUobserver: Doubts over EU chemical agency after weedkiller study
Green MEPs and NGOs have expressed concerns over a lack of transparency at ECHA after the release of a new glyphosate study. ECHA concluded that there is insufficient evidence to classify the herbicide as a carcinogen.

Also see:

*ECHA Press Release: Glyphosate not classified as a carcinogen by ECHA

Council agrees on its negotiating position for ETS reform

Council of the EU Press Release: Revision of the emissions trading system: Council agrees its position
On 28 February, the Council agreed on its negotiating position for the ETS reform that seeks to implement commitments made under the Paris Agreement. Negotiations will proceed in trialogue meetings between the European Parliament, European Council, and European Commission.

Also see:
The Guardian: Reform of EU carbon trading scheme agreed
Council of the EU: General approach on the revision of the ETS

EU allows extension of Hungarian nuclear plant to move forward

EUobserver: EU gives green light to Hungary’s nuclear plant
The European Commission gave the final green light for the controversial extension of Hungary’s Paks nuclear plant, concluding that the project, which envisions construction of two new nuclear reactors, had not received illegal state aid. The “Paks II” extension is being financed and built by Russia.

EP INTA adopts recommendations on using trade tools against wildlife trafficking

European Parliament Press Release: Using EU trade tools to combat wildlife trafficking
On 2 March, the European Parliament’s International Trade (INTA) Committee adopted recommendations on using trade tools to combat wildlife trafficking, and called on the EU and its member states to consider a full ban on trade in elephant ivory within and outside the EU. Rapporteur Emma McClarkin made the following statement before the vote: “my report stresses the importance and need to use trade policy to address this problem, through a comprehensive approach that tackles supply-side issues, and demand in domestic markets and other destination countries”.

Also see:
*European Parliament Resolution: Common Commercial Policy in the context of wildlife sustainability imperatives

EMIS Committee adopts final inquiry report on emissions measurement

European Parliament Press Release: Car emissions: MEPs adopt inquiry conclusions and call for improving the systemThe European Parliament’s Emission Measurement in the Automotive Sector (EMIS) inquiry Committee adopted its final report and draft recommendation, calling for a new EU road agency. MEPs are set to vote on the Committee’s draft recommendation in plenary at the early April session in Strasbourg.

Also see:
Euractiv: Parliament Dieselgate committee closes with call to set up EU road agency
EP EMIS: Report on the inquiry into emission measurements in the automotive sector
*EP EMIS: Draft recommendation following the inquiry into emission measurements in the automotive sector

Commission official comments on ‘strategic advantage’ of biofuels in aviation

Euractiv: EU sees ‘strategic advantage’ of biofuels in aviation
Euractiv reports that a Commission official said that there is a ‘strategic advantage’ in encouraging the use of biofuels in sectors where decarbonisation options are limited, such as aviation. However, as is expanded on in the article, not all biofuels are the same, and some may actually result in higher GHG emissions than their fossil fuel equivalents.

MEPs vote for increased recycling and reduced food waste

European Parliament Press Release: Waste: boost recycling, cut landfilling and curb food waste, Parliament says
On 14 March, MEPs voted on four “waste package” legislative proposals in plenary that would see an increase in the share of recycled waste to 70% by 2030, and a 50% reduction in food waste by 2030. Negotiations will follow with the Council of Ministers, which still has to adopt its negotiating position.

29 March 2017

▪ Event: Nature’s Rights: The Missing Piece of the Puzzle
▪ Organiser: Nature’s Rights
▪ Location: European Parliament, Room: JAN4Q2, 60 Rue Wiertz, 1047 Brussels, Belgium
▪ Click here to register

29 March 2017

▪ Event: Creating Networks for the Transition to a Bio-based and Circular Economy – BioSTEP Forum
▪ Organiser: Ecologic Institute, Germany
▪ Location: Mundo-b, Rue d’Edimbourg 26, 1050 Brussels, Belgium

17-18 May 2017

▪ Event: International VDI Conference 2017: Sewage Sludge Treatment
▪ Organiser: Association of German Engineers (VDI)
▪ Venue: Park Inn by Radisson Copenhagen Airport, Engvej 171, 2300 Copenhagen, Denmark
▪ Click here to register

21 September 2017

▪ Event: First Postgraduate Colloquium on Frontiers of International Environmental Law
▪ Organiser: PluriCourts Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order and University of Oslo Faculty of Law
▪ Venue: Kjerka, Domus Media, The Faculty of Law, University of Oslo, Karl Johans gate 47, 0162 Oslo
▪ Click here for the announcement and call for papers

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

Olivier van Geel (T.M.C. Asser Instituut, The Hague)

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