|
Dear members of the EEL Network, In this issue we look back on the summer, especially focusing on the case law of the Court of Justice. We summarise judgements on diverse topics, such as national information requirements for emissions allowances, foreign cosmetic animal testing, and the interpretation of Article 6 of the Habitats Directive. The Court also fined Greece for violating EU waste management rules, and found that the UK and Romania have failed to fulfil their obligations under EU law on industrial emissions and management of extractive waste respectively. The General Court ruled on public access to documents relating to endocrine-disrupting substances, an AG discussed the identification of “substances of very high concern” under Article 57(f) REACH, and the WTO Appellate Body ruled on India’s Solar cells appeal. Despite the focus on case law, there are some news items that cannot be overlooked. Particularly significant stories include the EU ratification of the Paris Agreement, the outcome of the CITES conference in Johannesburg, the new aviation emissions deal reached by the ICAO Assembly in Montreal, and exciting FLEGT news. A few interesting new publications are mentioned, including a contribution on the WTO and climate change, and a report on the outcome of the EP’s glyphosate workshop, which took place in May. In light of some of the exciting new developments that happened over summer, we trust that this will be an informative issue of the EEL News Service, and hope that it will make for interesting reading. Best regards, Wybe Douma P.S. You can still join in for the HELF lecture on 12 October at Hague University on Europol/Interpol and Environmental Crime (see details at the bottom of this News Service) |
 |
|
EU Court JudgementsCosmetic animal testing ban extends to foreign tests The Court ruled that the ban of cosmetic products tested on animals under Article 18(1)(b) of Regulation No 1223/2009 extends to products tested outside of the EU. This provision makes market access dependent on non-animal testing. A trade association for cosmetics producers in the EU questioned whether Article 18(1)(b) barred animal testing in foreign jurisdictions. The Court reasoned that the Article in question does not distinguish according to location, and that the objective of Regulation No 1223/2009 (to phase out animal testing in the cosmetics sector) would be compromised if animal testing abroad were permitted. Thus, there will be no market access for animal-tested cosmetics, regardless of where such testing occurred. UK failed to fulfil Large Combustion Plant Directive obligations The UK has incorrectly applied Directive 2001/80/EC to the Aberthaw Power Station and, in doing so, failed to fulfil its obligations under Article 4(3) of the Directive, jo Annex VI, Part A, obliging Member States to achieve significant emission reductions, and limiting NOx emissions to a level that was exceeded by the Aberthaw Power Station. Documents withheld in contravention of EU law The Court has annulled a Commission decision refusing access to documents on endocrine-disrupting chemicals (EDCs) insofar as it relied on the protection of the decision-making process as a justification. Pesticide Action Network (PAN) Europe applied for access to all documents relating to EDCs under Regulation (EC) No 1049/2001, and Regulation (EC) No 1367/2006 on access to information. Though granting full or partial access to some documents, the Commission refused access to several relevant documents. This decision, which employed Articles 4(1)(a), 4(1)(b), 4(2), and particularly 4(3) (protection of the decision-making process) as justification, was challenged by PAN Europe. PAN Europe, with Sweden intervening in its favour, alleged that the Commission was in breach of both Regulations. Whereas the argument relating to Regulation No 1367/2006 was dismissed, the Court upheld PAN Europe’s claim that the Commission’s decision breached Article 4(3) of Regulation No 1049/2001. The Commission would have to provide precise and specific information to invoke Article 4(3) as a justification to block public access, which it had not done in this case. Therefore, the Commission was wrong to refuse access to several documents on this basis, and the Court ordered the relevant decision annulled in so far as it employed Article 4(3) as a justification. ‘Documents’ includes emails, according to General Court The Court found that the Commission’s reliance on the legal advice exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 was justified, and that it was therefore within its rights to withhold wider access to documents concerning the presentation and sale of tobacco and other products. Interestingly, in this ruling, the General Court extended the scope of ‘documents’ even to inter-institutional emails between the Commission, and the Parliament and Council. More stringent national info requirements for emissions allowances This preliminary ruling concerned the interpretation of Decision 2011/278/EU determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC. The question, which was raised in proceedings regarding the scope of E.ON Kraftwerke’s obligation to provide information for the free allocation of emission allowances, was whether Article 24(1) of the Decision limited the information that Member States may require to changes affecting the allocation of emissions allowances, since this limitation applies to the data that should be provided to the Commission under Article 24(2). The Court ruled that Article 24(1) left implementation to the Member States, and that the gathering of additional information is permitted if it is provided for under national law. It was found that the restrictions stipulated in Article 24(2) were not applicable to information requirements imposed by Member States under Article 24(1). CJEU answers questions concerning allocation of emissions The Court addressed several preliminary questions about inter alia the application of the correction factor (cf. decisions 2011/278/EU and 2013/448/EU) in light of the EU ETS Directive 2003/87/EC. Reference was made to the related judgement in the Borealis Polyolefine cases (C-191/14, C-192/14, etc.) The Court found that certain provisions of decision 2013/448 were invalid, and interpreted decision 2011/278. Other issues included the allocation of free allowances for the consumption and export of heat to private households. Greece fined again for violating EU waste management rules In case C-584/14, the Court found that Greece had failed to adopt the measures necessary to comply with the judgement of 10 September 2009 in Commission v Greece (C-286/08) and ordered Greece to pay for non-compliance both a lump sum and a penalty payment. In 2009 Greece was convicted because of non-implementation of certain provisions of the Directive 2006/12/EC on waste, Directive 1999/31/EC on landfill waste, and Directive 91/689/EEC on hazardous waste. Greece did not adopt a hazardous-waste management plan, in accordance with the requirements in the legislation, and it also failed to establish an integrated and adequate network of disposal installations for hazardous waste in order to ensure a high level of protection for public health and the environment. Greece had failed to take the necessary measures that would bring it in compliance with the judgement, and thus violated Article 260(1) of TFEU. For having delayed implementation, the Court ordered Greece to pay a lump sum payment of € 10 million; additionally, it has to pay a penalty payment of € 30 000 per day of delay – from the date of delivery of the judgement of the current case C-584/14, until full compliance with the judgement in C-286/08. Greece was the very first EU member state that had to pay for not complying with an earlier judgment. That was in the Chania waste case (ECJ 4 July 2000, case C-387/97, Commission v. Hellenic Republic), which also involved the management of waste in Greece. Emission trading obligations of installations According to the CJEU’s ruling, Annex I to Directive 2003/87/EC must be interpreted in such a way that, for installations that combust fuels with thermal input exceeding 20MW, the emissions trading obligation for the generation of electricity starts when the first greenhouses gases are emitted. Therefore, this obligation could precede the first generation of electricity. Unlawful national measure provisionally maintained to protect environment The CJEU found that an illegal national provision can be temporarily maintained if there is an overriding consideration linked to environmental protection. The case concerned Articles 1 and 7 of French Council of State Decree No 2012-616, which a national court found incompatible with Directive 2001/42/EC (the SEA Directive). The French court considered that the retroactive effect of a partial annulment could present a risk to legal certainty and create a legal vacuum with negative effects for environmental protection. The CJEU was asked to clarify whether the measures could be provisionally maintained. The Court ruled that such a measure can be taken exceptionally on a case-by-case basis where an overriding environmental concern exists and the four conditions enumerated in Inter-Environnement Wallonie (C-41/11) are met. It was also found that, in view of Cilfit and Others (C-238/81), a preliminary reference is in principle required in such cases, barring the lack of any reasonable doubt concerning the application of the Inter-Environnement Wallonie conditions. CJEU answers question on waste management The Court ruled that Article 10(2) of Directive 2006/21/EC on management of waste from extractive industries does not make the backfilling of waste other than extractive waste subject to Directive 1999/31/EC on the landfill of waste, where the operation entails waste recovery. This determination is to be made by the national courts. Romania failed to fulfil EU waste management obligations Romania has failed to fulfil its obligations under article 4 and 13(2) of Directive 2006/21/EC on management of waste from extractive industries by neglecting to take appropriate measures to prevent dust pollution in the Bosneag basin. CJEU interprets Article 6 of Habitats Directive A proposal, put forward as part of a project not directly connected or necessary for the conservation of an area of public interest, to create new habitat as a replacement for habitat lost as a result of the project, cannot be classified as a mitigating measure under the Habitats Directive where part of the Special Area of Conservation (SAC) concerned is lost. Instead, it must be classified as a compensatory measure under Article 6(4) of the Directive. This judgement answered a preliminary question of the Belgian Council of State concerning a port area near a Nature 2000 zone. The ruling builds on the Briels case (C-521/12), with the important difference that the proposal in the judgement at hand (C-387/15 and C-388/15) occurred before the loss of the original habitat. AG OpinionsAG agrees with General Court and ECHA on SVHC Advocate General Mengozzi delivered an Opinion concurring with the findings of the General Court in cases T‑134/13, and T‑135/13 concerning the identification of “substances of very high concern” (SVHC) pursuant Article 57(f) of the REACH Regulation. Polynt SpA has launched an appeal against the General Court’s rulings, claiming among other things that Article 57(f) was misinterpreted as not requiring a risk assessment for the purposes of identifying a substance as being of very high concern, and that the Court’s reasoning in paras. 71 and 73 is contradictory. The Advocate General argued that these arguments should be rejected, and recommended the Court dismiss the appeal. AG delivers Opinion on the interpretation of the EIA Directive Advocate General Kokott has advised the Court to rule that a statutory fiction that regards a project as having been granted consent after a three year time lapse is incompatible with the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC), as well as the principle of effectiveness. The case concerns a statutory provision in Austrian law that prevents Austrian authorities from revoking consent for projects after a three year period. Whereas the AG noted that there are exceptions to the assessment requirement in Article 2(1) of the Directive, she argued that such an exception did not exist in the case at hand. AG Opinion on the Scope of the SEA Directive Advocate General Kokott advised the Court to find that the SEA Directive is in compliance with the ‘high level of environmental protection’ pursuant Article 191(2) TFEU. Two additional questions concerning the interpretation of Article 3(3) of the Directive were addressed. Specifically, the AG argued that the application of Article 3(3) is limited to plans and programmes falling within the competence of a local authority, and that the meaning of ‘small area’ in this context excludes areas which exceed a guideline value of 5% of the territory over which the administrative authority in question has competence. Opinion on applicability of ‘similar rights’ concept to GHG allowances Advocate General Wathelet has advised the Court to find that the concept of ‘similar rights under Article 56(1)(a) of the VAT Directive (Directive 2006/112/EC) should also apply to greenhouse gas allowances as defined in Article 3(a) of Directive 2003/73/EC. International RulingsIndia loses solar panel appeal at WTO The WTO Appellate Body upheld a ruling that found India’s domestic content requirements (DCRs) violated trade rules, specifically the “national treatment” obligation. The US initiated this case in 2013, claiming that India’s favourable treatment of nationally produced solar cells and modules over foreign ‘like’ products was unlawful. A WTO panel confirmed this view in February 2016, and these findings were upheld by the Appellate Body. Recently, India has filed a similar dispute against the US, claiming that DCRs and subsidies in renewable energy programmes across eight states violate WTO law. |
|
|
|
|
Main results of the Environment Council At this meeting of the Environment Council, the main discussion point was climate change. The Council focused on the Paris Agreement, and the upcoming Marrakesh climate change conference on issues of action of implementation, which will take place from 7 to 18 November 2016. EP plenary highlights 3-6 October 2016 Watch the highlights of the EP plenary session of 3-6 October, which resulted in the EU’s ratification of the Paris Agreement. Car emissions discussed at EP plenary session During the EP plenary session of 12-15 September, the inquiry committee investigating how car emissions are measured indicated that it urgently required more information from the Commission. The final report is due in Spring 2017. |
|
|
|
|
9 out of 10 people breathe substandard air The WHO report on ambient air quality published on 27 September 2016 found that 92% of people live in areas where air quality is below WHO standards. Countries of concern include EU Member States such as Bulgaria and Latvia. This interactive map shows ambient air quality estimates by location on the World Map. download the full report |
|
|
|
|
EFSA to release raw data used in recent glyphosate evaluation In response to a public access request, EFSA has agreed to release the raw data used in its recent safety evaluation of glyphosate, as part of its commitment to open risk assessment. See also: events & publications section for more news on glyphosates |
|
|
|
|
EU Ratifies the Paris Agreement On 5 October 2016, the EU ratified the Paris Agreement, and the 55% threshold for entry into force was achieved. After the EU’s ratification, 58.82% of global emissions in 74 States are covered. Pursuant Article 21 of the Agreement, the entry into force will be 30 days after the threshold is achieved, on 4 November 2016. Also see: |
|
|
|
|
Eurostat publication on energy statistics A new Eurostat publication seeks to address questions concerning the energy union often asked by EU citizens through simple statistical answers presented in a user-friendly way. |
|
|
|
|
EU contribution to wildlife trade rules at CITES CoP17 Press release outlining the EU’s position going into the CITES conference in Johannesburg. The EU participated as a full member for the first time, and especially pushed for stricter controls on wildlife trafficking. Consequences of the CITES conference Summary of some of the most influential decisions made at the CITES conference in Johannesburg. Breakthroughs include enhanced protection for the pangolin, the most traded wild mammal, and the extension of trade restrictions to all 300 species of rosewood. Indonesia to export first FLEGT certified wood Indonesia is to become the first country to export “verified legal” timber to the EU using the Forest Law Enforcement Governance and Trade (FLEGT) licensing system under the Indonesia-EU Voluntary Partnership Agreement (VPA). Licensing is set to begin on November 15 2016. |
|
|
|
|
New EEA noise pollution report The European Environment Agency has published a new report on areas unaffected by noise pollution in the EU. The report provides a picture of the extent of noise pollution in Europe, as well as the areas where such pollution has not yet made an impact, and which thus may be considered for protection. |
|
|
|
|
New ICAO agreement on aviation emissions The ICAO Assembly has agreed on the first international agreement to cut aviation emissions. From 2020 onward, airlines will have to offset their CO2 emissions by investing in green projects. How will the aviation industry contribute to achieving climate targets? This infographic seeks to outline how the global aviation deal will contribute to climate action. The EU played a critical role in the negotiations, pushing for more stringent emission reductions. Also see: |
|
|
|
|
Four proposals on waste as part of Circular Economy Package The Commission has made four legislative proposals to improve waste management as part of the shift towards a circular economy. Better waste management could deliver positive effects for the environment, climate, public health, and the economy. |
|
|
|
Events12 October 2016 Event: HELF Lecture “Europol and INTERPOL and the Fight against Environmental Crime and Corruption” Organiser: The Hague University of Applied Sciences, the Institute for Environmental Security, the Peace Palace Library and T.M.C. Asser Instituut Venue: The Hague University of Applied Sciences, Johanna Westerdijkplein 75 2521 EN The Hague Netherlands Time: 17:00 hrs Register via Events-LAW@hhs.nl 26 January 2017 Save the date Event: HELF/VMR Seminar “Trade and sustainability: CETA, TTIP and other trade agreements dissected” Venue: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22 Time: 13:00-18:00 hrs |
PublicationsEU’s pesticide risk assessment system: the case of glyphosate On 24 May 2016, the European Parliament’s Committee on Environment, Public Health and Food Safety hosted a workshop on ‘the EU’s pesticide risk assessment system: the case of glyphosate’. Asser Institute senior researcher Wybe Douma gave a presentation on the precautionary principle in EU risk assessment, and participated in the discussion. The proceedings of the workshop are available online, and Dr. Douma’s intervention is summarised on pages 12-13 thereof. CETA, TTIP and the precautionary principle This study was commissioned by the NGO foodwatch, and comprises a legal analysis of certain parts of the draft CETA agreement and EU text proposals for TTIP, seeking to answer the question whether the application of the precautionary principle is secure in view of these proposed new Free Trade Agreements. Encyclopedia of Environmental Law: Climate Change Volume I of the Encyclopedia of Environmental Law (Edited by Daniel A. Farber and Marjan Peeters) provides an overview of the state of the art of discussions on climate change. It contains and article on the WTO and climate change by Douma, discussing linkages between international trade law under the WTO regime, and climate change, building on the existing body of academic literature on the topic. A key point in this field is whether the question to ask is how the WTO can adapt to climate change law rather than asking how climate change law can be adapted to WTO law. |
|
|
Editors-in-ChiefWybe Th. Douma (Senior Researcher, T.M.C. Asser Instituut and Lecturer of Leonardo Massai (Senior Lecturer on International and EU Environmental Law, Catholic University of Lille) EditorsOlivier van Geel (T.M.C. Asser Instituut, The Hague) Steffen van der Velde (Researcher, T.M.C. Asser Instituut, The Hague) |