EEL News Service Issue 2011/2 of 31 March 2011

ECJ Case Law

Aarhus Convention ‘access to justice’ no direct effect in EU law

This reference for a preliminary ruling brought by the Slovakian Supreme Court concluded that Article 9(3) of the Aarhus Convention does not enjoy direct effect in EU law. This holding is in line with a previously issued opinion by Advocate General E. Sharpston discussed earlier in EEL news service 2010/12. The EU joined the Aarhus Convention through Council Decision 2005/370/EC. The Convention consists of three pillars: access to information, public participation in decision making and access to justice. The first two pillars are regulated by the EU but the last one, access to justice in environmental matters, is not. A proposal from the Commission to regulate access to justice (COM(2003)624) was never accepted and the Court now passes up on an opportunity to help remedy the situation that access to justice is not regulated by EU law. It did stress that national courts must take into account, ‘to the fullest extent possible’, the requirements of the Aarhus convention. Whether this will make much of a difference remains to be seen since that obligation was already incumbent on the Member States. Further fragmentation of the rules on access to justice could occur as a result of differing interpretations by the national Courts.

* Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, 08/03/2011

French hamster not sufficiently protected (AG opinion)

In a case brought by the Commission against France, on 20 January 2011 Advocate General Kokott advised the Court to rule against France for failing to sufficiently protect the hamster (Cricetus cricetus) within the Strasbourg area. The basis for the finding was a breach of Article 12 (1) of the Habitats Directive (92/43/EEC) which lists several prohibitions that have as their aim the protection of certain animal species (such as a prohibition for deterioration or destruction of breeding sites or resting places). Notwithstanding the fact that there was no breach of these prohibitions on the part of France, the AG did find that certain pro-active or positive obligations arise in the event that a population of a protected species is in a dire condition. The documented hamster population dropped from 1167 in 2001 to about 170 in 2007. The estimated amount for the population to be sustainable in the long run is 1500. France took agricultural and urban-planning related measures to protect the Hamster but these were thought to be either insufficient or incomplete at the critical time for the dispute.

* Case C-383/09 European Commission v. French Republic,20/01/2011 (not yet in English)

Accidental traces of GMO pollen in honey triggers EU permit requirements (AG opinion)

The reference for a preliminary ruling is made by the Bayerische Verwaltungsgerichtshof (Germany) in proceedings between the Land (region) of Bavaria and several amateur beekeepers (Bablok and others). The Advocate General (Y. Bot) had to judge whether honey containing even small amounts of pollen, accidentally received from genetically modified corn, is subject to EU regulations requiring prior approval before bringing GMO products on the market. The AG considered that the pollen is not to be considered an ‘organism’ but inanimate or dead material as it quickly loses its fertility as a result of desiccation. However, even where the pollen is not capable of transferring actively DNA material, the honey containing the pollen nevertheless is a foodstuff ‘containing GMO’ and should consequently be labeled accordingly as per EU rules. The AG suggests that it does not matter that a previous permit had been issued for the corn creating the pollen. The fact that the pollen entered the honey accidentally is moreover not to be relevant since the health risk to humans and animals eating the product would be the same, whether it is purposefully added or not. In the event that the Court follows this opinion, labeling accidental GMO traces in foodstuffs will become an obligation.

* Case C-442/09 Bablok and others v Freistaat Bayern, 09/02/2011 (not yet in English)

Emergency measure Commission on bluefin tuna partly invalid due to incompliance with non-discrimination principle

This reference for a preliminary ruling has been made in proceedings between AJD Tuna Ltd and the Direttur tal-Agrikoltura u s-Sajd (Director for Agriculture and Fisheries) and the Avukat Generali (Advocate General. It concerns a decision whereby the Director prevented AJD Tuna from importing into Malta bluefin tuna for its farming and fattening activities. The decision was intended to give effect to Commission Regulation No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean. The referring Maltese Court, Prim’Awla tal-Qorti Civili, posed several questions for a preliminary ruling related to the validity of this Regulation. In examining these questions, the Court ruled that the validity was not affected by the application of a number of legal principles (such as: legitimate expectation, proportionality, effective judicial protection and a requirement to state reasons). It was found however that the Regulation breached the principle of non-discrimination. It was consequently found to be invalid in so far as the prohibitions it contains took effect from 23 June 2008 for Spanish seiners, but already from 16 June 2008 for other seiners, without such difference in treatment being objectively justified.

* Case C-530/08 AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd17/03/2011

Malta fails to fulfil inland water obligations

In proceedings brought by the Commission against the Republic of Malta, the Court had to rule on the failure of Malta to fulfill obligations in respect to Directive 2000/60/EC establishing a framework for Community action in the field of water policy and the status of inland surface water. The Commission alleged that Malta should have established monitoring programmes on the status of inland surface water and submitted summary reports thereon. The Court dismissed certain pleas by Malta as late which were only advanced for the first time in the rejoinder. Since at the critical date for ascertaining the case the failure of Malta is undisputed, the court ruled in favor of the Commission.

* Case C-351/09 European Commission v Republic of Malta, 22/12/2010

Nickel carbonates carcinogenic and toxic

Nickel carbonates were classified as carcinogenic and toxic, to the dislike of its producers. In a British case, the High Court of Justice (England and Wales) asked the ECJ whether the Commission directives regulating this classification was valid or not. The AG finds that the Commission did not manifestly exceed the bounds of its discretion where it based its nickel carbonates decision on findings with regard to other nickel compounds. This method of predicting properties of chemicals based on the “read-across” method is generally accepted as scientifically valid, and is explicitly endorsed in REACH and implicitly in the EC rules at stake in this case. As for the accusation that the risks during normal handling or use of the substances were not assessed (some nickel carbonates were said to be used only in laboratories) , the AG notes that in his view, hazards and risks are being confused here. The EU system for classifying and labelling substances is based on the reporting of information relating to the hazards associated with substances, as is stated expressly in Commission Directive 93/67/EEC laying down the principles for assessment of risks to man and the environment of notified substances. Under Article 2(2) of this Directive, ‘hazard identification [of a substance]’ is defined as ‘the identification of the adverse effects which [that] substance has an inherent capacity to cause’. Hazards must therefore be classified independently of the manner or location in which the substance is used. Risk assessment on the other hand is concerned with the likelihood that one of the hazards associated with a substance will occur as a result of human or environmental exposure to that substance. Risk management measures thus may vary considerably depending on the conditions and types of use. Other arguments also did not disclose issues that could affect the validity of the contested Commission directives.

* Case C-14/10 Nickel Institute v Secretary of State for Work and Pensions 24/03/2011

Fine for airport noise likely to be upheld (AG opinion)

This reference for a preliminary ruling is made in proceedings between European Air Transport (EAT), an airline forming part of the DHL group and Institut Bruxellois de Gestion de l’Environnement (IBGE), a regional body responsible for supervising environmental legislation. The latter imposed an administrative penalty of EUR 56.113 on EAT for noise levels measured at the ground in excess of the allowed levels set. AET appealed claiming that not the measurement ‘at the ground’ but measurement ‘at source’ is the mandatory criterion under international law. The AG considered that the limits on noise levels at issue were not ‘operating restrictions’ within the meaning of Directive 2002/30/EC on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports. The AG therefore concluded that Member States are free to establish such noise limits at airports as no conflict arises with EU harmonization rules.

* Case C-120/10 European Air Transport SA v Collège d’Environnement de la Région de Bruxelles-Capitale, Région de Bruxelles-Capitale, 17/02/2011

Brussels Airport not a ‘project’ but EIA Directive may still be applicable

These proceedings for a preliminary ruling were brought by Brussels Hoofdstedelijk Gewest (Brussels Capitol Region) and a number of other applicants against the Vlaams Gewest (Flemish Region). The case concerned a decision relating to the operation of the Bruxelles-National Airport. One of the questions posed asked whether two separate permits are required for the infrastructure works (i.e. the construction of a runway) for an airport and the operation of that airport. It also asked if the term ‘construction’ in the EIA Directive 85/337/EECshould be interpreted as meaning that an environmental impact report should be compiled not only for the execution of the infrastructure works but also for the operation of the airport. The Court ruled that the renewal of the existing permit, in the absence of any works or interventions, cannot be classified as a ‘project’. The permit for the operation of the airport would consequently not be subject to an EIA under the Directive. It did point out that the cumulative effect of a number of works (such as the infrastructure works) may trigger the Directive and that this is for the national court to decide.

* Case C-275/09 Brussels Hoofdstedelijk Gewest and others v Vlaams Gewest 17/03/2011

Failure to transpose EIA Directive into Irish legal order

The Commission brought an action against Ireland for failure to ensure full and correct transposition of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. Ireland had several laws in place that aimed to transpose this Directive, but the Court found that these were not sufficient. Judgements from the Irish Supreme Court which found that there should be a consistent interpretation of Irish law with the Directive also did not constitute sufficient grounds for the Court to find that the Directive was correctly transposed into the Irish legal order. One bone of contention was overlap of decision making by respective authorities. This is in principle allowed under the Directive. In the present case however, one of the authorities responsible for licensing a project may make its decision without an EIA being carried out. This situation, possibly leading to a project being undertaken without an environmental assessment, was deemed irreconcilable with the Directive. Also the exclusion of demolition works from the scope of the Irish EIA regulations was found to constitute a failure to correctly transpose the EIA Directive.

* Case C-50/09 European Commission v Ireland, 03/03/2011

Flanders, Brussels and Wallonia in breach of EIA rules

The Commission brought these proceedings against Belgium for an alleged failure in the Flemish, Brussels and Wallonia regions to give full effect to EIA Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. The Flemish decree transposing the EIA Directive is too concerned with the ‘size of the project’ and does not pay enough attention to other criteria such as the possible cumulative effects of one project with other projects. The use of natural resources, production of waste etc. was also not sufficiently taken into account. The Court mentioned that even a small project may have a significant effect on the environment. In relation to the Brussels Region it ruled similarly. The Wallonia Region was found to not have enough laws in place to ensure that information would be provided concerning the nature of a decision to be taken in relation to the EIA Directive. As a result of the Judgment the present laws in the Belgian regions will need to be modified accordingly.

* Case C-435/09 Commission v Kingdom of Belgium, 24/03/2011 (not yet in English)

WTO case law

Panels established in two seal cases against EU

The WTO Dispute Settlement Body has established two panels to deal with the complaints by Canada about Belgium’s and The Netherlands’ import ban on seal products (case DS369) and the EU-wide import ban on seal products (case DS400). In the latter case, Canada claims that its seal harvest is lawful, sustainable, strictly regulated and guided by rigorous internationally recognised animal welfare principles, that the seal population was healthy and abundant and that the seal harvest provided thousands of jobs in its remote coastal and northern communities where few economic opportunities exist.

Iceland, a country aspiring to become an EU Member State, said this dispute was not just about seal products but also related to the principle of sustainable utilisation of all living marine resources and the ability to market the products resulting from hunting and fishing. The country claimed that there were no justifiable grounds for the ban imposed by the EU, while adding that the seal population was not in any way threatened. Colombia, Japan, Mexico, Norway, Iceland, China and the US reserved their third-party rights.

The first case might be solved soon. It concerns Dutch and Belgian legislation stricter than the EU rules. The Dutch government has already signed a decree withdrawing its national prohibition on 15 March 2011, which was expected to be published in the Dutch Official Bulletin within two weeks and would enter into force eight weeks after this publication. The EU explained that Belgian authorities would repeal their measure or amend it so that it was limited to implementing the EU regulation, and concluded that pursuing this dispute would serve no useful purpose and trusted that Canada would abandon its claims as soon as the Belgian and Dutch measures were effectively repealed.

Policy

EU Council meeting environment: WEEE focus and emission reductions in sight

The main focus at a meeting held on 14 of March 2011 of European environment ministers has been modification of the WEEE Directive (2002/96/EC) on waste from electrical and electronic equipment. Support also increased for a sharpening of greenhouse gas reduction targets by 2020 from 20% to 30%. The reduction was promoted by a group of seven countries led by the UK. Other issues discussed included possible EU wide actions against the use of plastic carrier bags (an issue discussed further under the heading ‘Waste’) and reform of the common agricultural policy.

General

Multiple applications for CSS projects received by Commission

Before the 9^th of March 2011 deadline, a large amount of applications were sent by the Member States to the Commission for funding of carbon capture and storage (CSS) projects. These CCS projects fall under the NER300 programme and constitute green projects in four permitted categories: pre-combustion; post combustion; oxy-fuel; and industrial applications.

Over 131 ‘innovative’ renewable energy technologies and 22 proposals for CCS projects have been submitted. Of these, at least 34 renewable energy technologies and 8 CCS proposals are intended to be funded by the commission. Funding will come from the sale of 300 million Phase III EU ETS allowances, expected to earn an estimated € 4 to 5 billion. At least half of the funding per project must however come from other sources. Decisions on financing by the Commission will be made in 2012 and the selected projects are intended to be up and running before 2016.

Funding for research projects to be revamped

On the 9^th of February 2011 the Commission issued a green paper proposing a broad “Common Strategic Framework” that is to radically reform the way in which the EU funds research and innovation. A desire was expressed to break away from traditional approaches which are often very complex and sectoral.

A better link must be established to address climate change, resource efficiency as well as other major issues such as food security. Consultation was requested on the green paper and will continue until the 20^th of May 2011. A follow-up conference will be held on the 10^th of June 2011.

Air

EU limit on sulphur not cause of deposits in UK oil burners

Recent build-up observed in the UK of deposits in oil burners was suspected to have resulted from a 0.1% limit on sulphur content on domestic heating oil which has been in effect for the EU since January 2008. In response to a question from the Parliament, the Commission cited evidence from the UK Petroleum Industry Association and stressed that the sulphur limit cannot be the cause of the boiler problems; as was suggested by some UK press. “The nature of the increased carbon deposits in AGA cookers therefore remains unclear” says the Commission.

Chemicals

Criteria for hand dishwashing detergents and all-purpose cleaners to be revised

Revision of the environmental criteria to carry the EU ecolabel for hand dishwashing detergents and all-purpose cleaners is due to be adopted this spring. Existing criteria are only valid untill June 2011. However, the decision on reform was delayed due to internal disagreement concerning the support of a ban of nanomaterials as well as the difficulties in establishing a correct definition for ‘nanoforms’ (as they are now called in the latest draft). In a position paper issued by EEB and BEUC (an environmental and consumer association respectively), it was proposed that the criteria should be stricter as to only allow the most environmentally friendly products to carry the ecolabel. The current draft criteria would permit around three quarters of the products on the market to cary an ecolabel.

REACH substance bans are underway

The first two substances placed on the REACH authorization list (Annex XIV) and which are going to be banned are musk xylene and MDA. Companies may apply for derogations for specific uses at the European Chemicals Agency (ECHA). The deadline for such applications is set on the 21th February 2013. The Commission furthermore issued guidance for submitting authorization applications a month before. According to a regulation published on the 17^th of February 2011, the ban will take effect on the 27^th of August 2014. Phthalates DEHP, BBP and DBP will be also banned from 21 February 2015 and flame retardant HBCDD will be banned six months later. All of these six substances are ‘of very high concern’ and they are carcinogenic, toxic for reproduction or persist in the environment and accumulate in living organisms.

Widespread quality problems found in REACH registration dossiers

On the 28^th of February 2011, the European Chemicals Agency (ECHA) issued a press release stating that two-thirds of the REACH registration dossiers that were evaluated by the agency last year did not comply with data requirements. Evaluation by the ECHA must be done for 5% of the dossiers pursuant to Art. 54 of the REACH Regulation. The dossiers were evaluated to find if sufficient data was provided. Verification of the data itself however will be undertaken by the Member States next year. Amongst the most common issues was mentioned that the identity of the registered substance needs to be clearly described; a proposal to do animal testing must be submitted before the test is done. Doing a test before getting ECHA’s decision may lead to legal action. Registrants have an obligation to share data resulting from animal tests and to share the costs before submitting the dossier.

Climate Change

China set to trump EU environmental ambitions in five-year plan

Targets set forth in a draft for China’s 12^th five-year plan trump EU ambitions. A report that was issued in February 2011 by E3G, a consultancy working with sustainable development issues, discusses several energy and climate policy objectives in the 5 year plan that are more ambitious than the current EU standards. ‘China’s low carbon ambition presents both opportunities and risks to Europe’, the report concluded. On the one hand a vast market for green technologies will open up but Europe’s worldwide leadership role in environmental and energy policy may be challenged.

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