Dear members of the EEL Network,

This issue focuses on the case law of the Court of Justice, with a lot to discuss since the last News Service. Perhaps most strikingly, the Court’s rulings in cases C-673/13 P and C-442/14 broaden the scope of ‘emissions into the environment’, restricting the possibility to invoke protection of commercial interests as a justification for refusing access to information. Notably, the Court of Justice also interpreted the notion of ‘specific act of national legislation’ under Article 1(5) of the EIA Directive, and ruled on the scope of ‘packaging’ in the Packaging Waste Directive as well as ‘plans and programmes’ under the SEA Directive. Furthermore, an AG recommended the Court to find certain provisions of Regulation (EU) No 601/2012 implementing the ETS Directive invalid for widening the concept of ‘emissions’. Finally, there were international cases, including an Article 8 environmental case at the ECtHR, and an Appellate Body Report in the WTO’s EU-Argentina biodiesel dispute.

Additionally, several pertinent news items are discussed. Particularly interesting developments include the entry into force of the Paris Agreement and the subsequent Marrakech Climate Conference, the Signature of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU, and the implications of a Trump presidency for climate action. Moreover, the UK lost a high-profile air pollution case against ClientEarth, a lawsuit was filed by an alliance including Greenpeace against the Norwegian state for its arctic oil exploration, and the Wildlife Justice Commission held its first public hearing at the Peace Palace on wildlife trafficking in Vietnam.

We are also happy to have the confirmed participation of Ronald Roosdorp (Dutch Ministry of Foreign Affairs), Laurens Ankersmit (ClientEarth) and Joris Larik (Leiden University) at the conference “Trade and Sustainability: CETA Dissected”, which will take place on 26 January 2017 at the Asser Institute.

Best regards,

Wybe Douma

EU Court judgments

CJEU rules Spain has violated the Birds Directive and the Habitats Directive

CJEU judgment: Case C-461/14 Commission v Spain (24/11/2016)
The Court of Justice ruled that Spain has failed to fulfil its obligations under Article 4(4) of Birds Directive 2009/147/EC and Article 6(2) of Habitats Directive 92/43/EEC. Spain violated the Directives in question by failing to take adequate measures to prevent the deterioration of natural habitats and species habitats as well as alterations affecting species in the special protection zone of ‘Campiñas de Sevilla’.

Court of Justice interprets the EIA Directive

CJEU judgment: Case C-645/15 Bund Naturschutz in Bayern and Wilde(24/11/2016)
In this case, the CJEU answered a number of preliminary questions relating to Annex I of EIA Directive 2011/92/EU, which lists the projects that are subject to an EIA under Article 4(1) of the Directive. The questions arose in a case relating to a decision approving the improvement of certain parts of a regional road in Germany, which the applicants argued should be annulled since an EIA had not been performed.

Court of Justice rules on ‘emissions into the environment’ under Aarhus Regulation

CJEU judgment: Case C-673/13 P Commission v Stichting Greenpeace Nederland and PAN Europe (23/11/2016)
The CJEU ruled that certain documents regarding glyphosate, which the Commission denied access to, constitute ‘information relating to emissions into the environment’ under Article 6(1) of Aarhus Regulation (EC) No 1367/2006. According to the Court, this concept must be interpreted broadly, restricting the discretion to refuse access on the basis of protection of commercial interests.

The case at hand concerns an appeal against the General Court’s prior judgment in case T-545/11, which annulled a Commission decision refusing access to documents relating to glyphosate on the basis of protection of commercial interests. The Commission argued that the General Court had misinterpreted the concept of information relating to emissions into the environment. Essentially, it is possible to refuse access to information using commercial interests as a justification, but not where information relating to emissions within the meaning of Article 6(1) of Regulation 1367/2006 is concerned.

In its judgment, the Court clarified that the concept of information relating to emissions into the environment should be interpreted broadly, since a strict interpretation would be inconsistent with the Aarhus Convention. Additionally, the Court found that this concept is not limited to emissions from industrial installations in view of the text of the Aarhus Convention and Regulation 1367/2006. As was also confirmed in the Court’s judgment of the same day in Bayer CropScience and De Bijenstichting (C-442/14), such an interpretation would conflict with Article 4(4) of the Convention, which states that ‘information on emissions which is relevant for the protection of the environment shall be disclosed’ since, where environmental protection is concerned, discharges from non-industrial sources can be equally important as industrial emissions. Moreover, the Court ruled that emissions into the environment under Regulation 1367/2006 do not have to be actual emissions. Whereas Article 6(1) does not cover purely hypothetical emissions, information concerning foreseeable emissions that will be released into the environment under normal or realistic conditions are included under this provision.

Ultimately, the Court did consider that the General Court made an error of law by suggesting in paragraph 53 that it suffices for information to relate in a sufficiently direct manner to emissions in the environment for it to be covered by Article 6(1). Thus, the CJEU has referred the case back to the General Court, which should release its final judgment on the matter in approximately nine months.

Court of Justice rules on ‘emissions into the environment’ under Directive 2003/4

CJEU judgment: Case C-442/14 Bayer CropScience and De Bijenstichting(23/11/2016)
In this ruling, which was delivered on the same day as the related judgment in case C-673/13 P (Commission v Stichting Greenpeace Nederland and PAN Europe), the CJEU confirmed that ‘information relating to emissions into the environment’ under Article 4(2) of access to environmental information Directive 2003/4/EC should be interpreted broadly. According to the Court, information relating to actual or foreseeable release under normal or realistic conditions of plant protection products or biocides into the environment, as well as substances contained in those products, is covered by this concept. Member States can therefore not rely on the protection of commercial interests to deny access to this kind of information.

The case in question concerns preliminary questions about access to information relating to the effect of the neonicotinoid imidacloprid on bees. De Bijenstichting, a Dutch association for the protection of bees, had requested the information to be disclosed on the basis of Directive 2003/4, whereas Bayer argued that disclosure would inter alia infringe upon the company’s commercial interests. Hence, the Dutch court sought clarification on nine points, of which the key question was whether the discharge of plant protection products, biocides, or substances contained in those products are included in the concept of ‘emissions into the environment’ under the second paragraph of Article 4(2) of Directive 2003/4. This provision states that Member States may not refuse a request to information on the basis of protection of commercial interests where the information relates to emissions into the environment.

Using similar logic to that in case C-673/13 P, the Court found that emissions into the environment under Directive 2003/4 are not limited to industrial emissions, and that both actual and foreseeable emissions are covered. Additionally, the Court clarified that the concept does not cover only information on emissions as such, but also information enabling public checks of whether an assessment of emissions is correct, and data on medium to long-term environmental impacts.

Following this CJEU judgment, the case will go back to the Dutch Court for a final ruling. The judgments in this case and case C-673/13 P constitute landmark rulings for the freedom of information in the EU, and confirm the Court’s role as a guardian thereof. Also noteworthy in this regard is the General Court’s September ruling in case T-51/15 (PAN Europe v Commission), where the protection of the decision-making process as a justification for precluding access to environmental information was interpreted strictly (see previous News Service).

France has violated the Urban Waste Water Directive

CJEU judgment: Case C-314/15 Commission v France (23/11/2016)
The CJEU has ruled that France has not met the requirements of article 4, paragraphs 1 and 3 of Urban Waste Water Directive 91/271/EEC. These provisions stipulate that Member States must ensure that urban waste water is subject to secondary treatment or an equivalent treatment prior to discharge, and meet a number of additional requirements under Annex I.B of the Directive. The Court found that France had violated these provisions with regard to a number of agglomerations.

CJEU interprets concept of ‘specific act of national legislation’ under EIA Directive

CJEU judgment: Case C-348/15 Stadt Wiener Neustadt (17/11/2016)
The Court ruled that EU law precludes a legislative provision stipulating that a project that was subject to a decision breaching the obligation to perform an EIA for which the time limit for an annulment action has expired, must be regarded as lawfully authorised. Additionally, it was found that Article 1(5) of EIA Directive 85/337/EEC as amended by Directive 97/11/EC, which excludes ‘projects the details of which are adopted by a specific act of national legislation’ from the scope of the Directive, does not apply to this type of measure.

The preliminary questions asked in this case were raised in relation to a decision granting consent for an increase in the processing capacity of a fuel processing plant without subjecting the extension of the project to and EIA. The decision was justified under Austrian law by reference to a provision stipulating that, when a three year time period has expired, a project must be considered lawfully authorised even if it breaches the obligation to perform an EIA.

Using a two-step test developed in earlier case law in C‑435/97 (WWF and Others) and Joined Cases C‑128/09 etc. (Boxus and Others), the Court assessed whether the article 1(5) exclusion is applicable to a provision like the one in Austrian law. It was enumerated that the provision must 1) display the same characteristics as a consent within the meaning of article 1(2) of the Directive, and 2) the objectives of the Directive must be achieved through the legislative process. Noting that it was ultimately for the national court to ascertain whether these conditions were satisfied, the Court stated that the requirements were most likely not met in the case at hand.

The Court subsequently reasoned that a provision like the one in question would constitute a violation of EU law, pointing to the requirements of the EIA Directive, and its earlier case law in case C‑201/02 (Wells), where it was stated that Member States must take all general or particular measures to remedy a failure to carry out an EIA.

Court rules that ‘packaging’ in Packaging Waste Directive includes roll cores

CJEU judgment: Joined Cases C‑313/15 and C‑530/15 Eco-Emballages(10/11/2016)
The Court ruled that the concept of ‘packaging’ defined in Article 3(1) of Packaging Waste Directive 94/62/EC must be interpreted as including roll cores in the form of rolls, tubes or cylinders, around which flexible material is wound and sold to consumers.

Case C-313/15 concerned a preliminary question that arose in proceedings between Eco-Emballages, an organisation that enters into contracts with companies that place packaging on the French market, and meets their obligation to contribute to the elimination of household packaging waste in return for contributions. Eco-Emballages brought charges against a number of parties with whom it had contracted for refusal to pay the financial contributions for certain items that it considered packaging products (i.e. roll cores). The French court opted to ask the CJEU whether Article 3 of Directive 94/62/EC included roll cores.

This case was addressed jointly with case C-530/15, which concerned a preliminary question in relation to another French case, where a number of companies brought an action before the French Council of State. The applicants, who were also involved in C-313/15, sought annulment of the Order transposing Directive 2013/2/EU amending the Packaging Waste Directive into French law. The question here was whether Directive 2013/2/EU had misconstrued the concept of ‘packaging’ in the Packaging Waste Directive by including roll cores.

The Court referred to its earlier case law in C-341/01 (Plato Plastik Robert Frank), where it had already found that the concept of packaging should be interpreted broadly. Additionally, it considered the criteria for packaging as set out in Article 3(1) of Directive 94/62/EC, finding that these criteria were met by roll cores, and they should therefore be included. This ruling also means that Directive 2013/2/EU did not misconstrue the concept of packaging.

CJEU rules that Greece has violated the Habitats Directive

CJEU judgment: Case C-504/14 Commission v Greece (10/11/2016)
The CJEU found that Greece failed to fulfil its obligations under Articles 6(2), 6(3), and 12(1)(b) and (d) of Habitats Directive 92/43/EEC. The Commission had requested the Court to confirm that Greece had violated the Directive by failing to take measures to prevent deterioration of habitats and disturbance of species, permitting without any assessment activities likely to significantly affect a protected site, and failing to establish an effective system of strict protection for the endangered Caretta caretta turtle.

See also the cases C-103/00 Commission v. Hellenic Republic and C-600/12European Commission v. Hellenic Republic, in which it was already found that Greece failed to implement sufficient protection measures for the same sea turtles.

CJEU interprets certain provisions of the SEA Directive

CJEU judgment: Case C-290/15 D’Oultremont and Others (27/10/2016)
The Court has ruled that Articles 2(a) and 3(2)(a) of the SEA Directive 2001/42/EC must be interpreted so that regulatory orders containing provisions on the installation of wind turbines that must be complied with when administrative consent is granted are included in ‘plans and programmes’ under the Directive. The case, which was referred to the CJEU by a Belgian Court, relates to an order of the Walloon government on sector-specific conditions for wind farms with a total power of at least 0.5 MW.

The Court referred to the Inter-Environnement Wallonie and Terre Wallone (C‑41/11), and Inter-Environnement Bruxelles cases (C‑567/10). In these cases, the Court found that assessments of the delimitation of ‘plans and programmes’ under the SEA Directive must be made in view of Article 1 of that Directive, where the specific objective to subject plans and programmes likely to significantly affect the environment to environmental assessment is laid out. Therefore, the scope of this notion must be interpreted broadly.

The Court also addressed a submission of the French Government, which relied on the Aarhus Convention and the Kiev Protocol. According to this argument, the distinction between ‘plans and programmes’, and ‘general rules’, would mean that the order in question would not fall under the SEA Directive, as it would fall into the latter category. The Court rejected this line of reasoning, referring to paragraph 70 of the AG Opinion, where it was pointed out that Directive 2001/42 has no special provisions on policies or general legislation that would distinguish them from ‘plans and programmes’.

Court rules on compatibility of Commission Decisions with ETS Directive

CJEU judgment: Case C‑506/14 Yara Suomi and Others (26/10/2016)
The CJEU confirmed that the correction factor laid down in Article 4 of, and Annex II to Commission Decision 2013/448 on national implementation of emissions allocation measures is incompatible with the ETS Directive 2003/87, since the Commission neglected to specify the maximum annual quantity of emissions allowances pursuant Article 10a(5) of the Directive. However, the Court’s assessment did not find any factor that affects the validity of Articles 10(9), and 15(3) of, as well as Annex I to Decision 2011/278 determining transitional Union-wide rules for harmonised free allocation of emission allowances.

The judgment responded to several preliminary questions submitted by a Finnish Court in a case brought by four operators of greenhouse gas-emitting installations (Yara Suomi and Ors.). Reference was made to the Court’s earlier case law in Borealis Polyolefine and Ors. (Joined Cases C-191/14, etc.), where the incompatibility of the relevant provisions in Decision 2013/448 with Directive 2003/87 had already been established. The Court specified that the consequences of the declaration of invalidity are to be limited in temporal scope so that they only take effect 10 months after the judgment in Borealis Polyofeline (i.e. 28 December 2016), and that measures based on the invalidated provisions adopted during that time cannot be called into question.

CJEU answers preliminary questions in Belgian renewable energy case

CJEU judgment: Case C‑492/14 Essent Belgium (29/09/2016)
The CJEU has found that two decisions of the Flemish government, which limited free distribution of green power to electricity from generators connected to Belgian distribution systems, were in contravention of the EU law applicable at the time. The Court ruled that these measures violated free movement obligations in Articles 28 and 30 EC (current Articles 34 and 36 TFEU), as well as provisions of Directive 2003/54/EC, Directive 96/92/EC, and Directive 2001/77/EC on the internal energy market, and the place of renewable energy therein.

The preliminary question was raised in proceedings between Essent Belgium and the Flemish government. Essent claimed that, due to the damage done to its business by the allegedly illegal decisions, it is entitled to EUR 15,958,252 in compensation. The energy producer argued inter alia that the measures had treated green energy differently on the basis of origin, and were therefore discriminatory. This argument has been fronted in earlier CJEU case law, notably Ålands Vindkraft (C-573/12) and Essent Belgium (joined cases C-204 to 208/12). However, as the earlier rulings did not find a breach of EU law, this judgment marks the first time that the Court accepts this line of reasoning.

AG Opinions

AG Opinion in case concerning interpretation of term ‘hydropower’ in EU law

AG Opinion: Case C-4/16 J.D. (15/11/2016)
Advocate-General Campos Sánchez-Bordona has recommended the CJEU to rule that the concept of ‘hydropower’ as a renewable energy source under Article 2(1) in conjunction with Article 5(3) and recital 30 of Renewable Energy Directive 2009/28/EC must be interpreted as including energy produced at a hydroelectric power station using wastewater discharged by a third party with no connection to the operations of the station, and unrelated to electricity generation.

The referring court is seeking clarification as to whether the concept of ‘renewable energy sources’ under Directive 2009/28/EC is limited to energy obtained from natural downward flow of surface waters, a detail that, according to the AG, is immaterial. The AG held that all hydropower must be considered energy from renewable sources under the Directive, with the exception of water coming from pumping stations, as stipulated in recital 30 and Article 5(3).

Certain provisions of Regulation No 601/2012 invalid, according to AG

AG Opinion: Case C-460/15 Schaefer Kalk (10/11/2016)
Advocate-General Sharpston recommended the Court of Justice to rule that certain provisions of Regulation (EU) No 601/2012 implementing ETS Directive 2003/87/EC are invalid as they widen the concept of ‘emissions’ as defined in Directive 2003/87/EC. The referring court wants to know whether the second subparagrah of article 49(1), and point 10 of Annex IV Regulation No 601/2012 are invalid and constitute an infringement of the aims of Directive 2003/87/EC.

These questions arose in a case involving Schaefer Kalk, a German company that operates an installation for calcification of lime, an activity subject tot the ETS. Schaefer Kalk challenged the German ETS Authority’s decision to reject its request to subtract from its emissions CO2 that had been transferred to another installation for producing precipitated calcium carbonate (PCC).

The AG opined that the second subparagraph of Article 49(1) of, and the fourth subparagraph of point 10.B of Annex IV to, Commission Regulation (EU) No 601/2012 should indeed be found invalid insofar as they include in the concept of ‘emissions’ CO2 resulting from calcination of lime and transferred to another installation for producing PCC, without regard for whether or not the CO2 is actually released into the atmosphere.

AG recommends CJEU to rule Bulgaria violated ambient air quality Directive

AG Opinion: Case C-488/15 Commission v Bulgaria (10/11/2016)
Advocate-General Kokott has recommended the CJEU to find that Bulgaria has failed to fulfil its obligations under ambient air quality Directive 2008/50. Specifically, the Commission objected to the excessive levels of particulate matter, and the failure to establish and implement air quality plans. These transgressions, according to the AG, constitute a violation of Article 13(1) in conjunction with Annex XI and Article 23(1) of Directive 2008/50. In her reasoning, the AG noted that, according to the EEA, Bulgaria is the country with the worst levels of particulate matter in the EU.

AG Opinion argues General Court judgment misinterpreted Aarhus Convention

AG Opinion: Case C‑60/15 P Saint-Gobain Glass Deutschland v Commission(19/10/2016)
Advocate-General Szpunar has recommended the CJEU to set aside the General Court judgement in Saint-Gobain Glass Deutschland v Commission (T-476/12), and annul Commission Decision GestDem 3273/2012 refusing access to a document relating to allocation of greenhouse gas emission allowances under Article 10a of ETS Directive 2003/87/EC. In its ruling, the General Court found that the Commission had been justified in its refusal of access to a document that it had communicated to Germany in course of the allocation procedure.

The AG argues that the General Court has erred in its reasoning, which is claimed to be incompatible with provisions of the Aarhus Convention and Regulation No 1367/2006 on the application of Aarhus to EU bodies. In the Opinion, it is argued that the judgement relied on a misinterpretation of Article 4(3) of the Aarhus Convention by interpreting its first subparagraph too broadly, and Article 6(1) of Regulation 1367/2006, where it is specified that grounds for refusal should be interpreted restrictively.

International Rulings

ECtHR finds violation of Article 8 in Moldovan contaminated drinking water case

ECtHR judgment: Case of Otgon v. The Republic of Macedonia
The Court ruled that the claimant’s right to respect for private and family life under Article 8 of the ECHR was violated by a State-owned company due to the endangerment of her health as a result of drinking contaminated water. According to the Court, the victim, who had become sick due to the consumption of water that had been flooded with sewage due to a crack in a water pipe, had suffered an interference with her Article 8 rights since her physical integrity was affected by an unhealthy environment.

Reference was made to inter alia Hatton and Others v. the United Kingdom, where it was reiterated that a violation of Article 8 may exist where an individual is directly and seriously affected by pollution. In the same case, it was found that Article 8 may apply in environmental cases where there is direct State responsibility, but also where State responsibility arises from failure to adequately regulate private industry.

WTO Appellate Body report in EU-Argentina biodiesel case

WTO Appellate Body Report: Dispute DS473 EU — Biodiesel (06/10/2016)
The WTO Appellate Body has confirmed that the EU’s anti-dumping duties on Argentine biodiesel are incompatible with the article 9.3 of the Anti-Dumping Agreement, and Article VI:2 of GATT 1994. Upholding the earlier panel report, the Appellate Body also found against Argentina’s claim that Article 2(5) of Council Regulation (EC) No. 1225/2009 on protection against dumped imports was inconsistent ‘as such’ with certain provisions in the Anti-Dumping Agreement, GATT 1994, and the WTO Agreements.

According to the EU, tax breaks in the Argentine national context had allowed biodiesel to be sold at artificially low prices on the European market, putting local producers at a disadvantage. The practical implications of the Appellate Body ruling are that the EU must lower its import duties on Argentine biodiesel to bring them in compliance with international trade law. The findings in this case are relevant to to Dispute DS480, in which Indonesia is bringing similar claims relating to biodiesel against the EU.

ICJ rejects Marshall Islands cases claiming no jurisdiction

ICJ judgments: Marshall Islands v India, Marshall Islands v Pakistan, Marshall Islands v UK (05/10/2016)
The Court ruled that, due to the absence of a dispute concerning nuclear disarmament between the Marshall Islands and the other parties involved prior to the case being brought in 2014, it had no jurisdiction. Since the Marshall Islands failed to prove a prior dispute or evidence of attempts to enter into bilateral negotiations, the ICJ found it could not proceed on the merits, and the cases were dismissed.

The islands initiated legal action against the nuclear powers, alleging that they had failed to comply with the obligations of the 1968 Non-Proliferation Treaty. In the proceedings, evidence was presented on the 67 nuclear tests executed at the Bikini and Eniwetok Atolls, which caused devastating effects for the environmental and public health in the Marshall Islands.

National Cases

Lawsuit filed against the construction of a Hydropower Plant in Albania

38 individual residents of the village of Kutë and three environmental nonprofit organisations have filed suit against the Albanian government over its plans to construct a Hydropower Plant (HPP) along the Vjosa River. The claimants allege that the Ministry of Energy and Industry (MEI), Ministry of Environment and National Environment Agency acted illegally, particularly by disrespecting the spirit of the legal framework concerning public consultation and transparency, and violating administrative law. To substantiate their claim, the plaintiffs pointed to requirements of public consultation and information-sharing in Albanian law, the failure to carry out a Strategic Environmental Assessment, and incompatibilities with a number of administrative provisions. Reference was made to international and EU law, as well as the European Parliament’s April 2016 resolution, which called on Albania in paragraph 23 to control HPP projects in environmentally sensitive areas such as the Vjosa River, and increase transparency through public consultation and participation. As noted in the statement of claim, there is also an ongoing administrative procedure regarding the MEI’s refusal to disclose relevant information in this case.

Summary of key Commission infringement decisions

European Commission Fact Sheet: November infringements package: key decisions
This fact sheet summarises Commission infringement decisions for November 2016. Notable are a CJEU action against Spain for non-compliance over poor waste water collection and treatment, as well as reasoned opinions requesting compliance of Greece with the Floods Directive, Finland with the Seveso III Directive, and France and Croatia with EU waste legislation. Also significant is the Commission’s request for Spain, Poland, Bulgaria, and the UK to transpose the Offshore Safety Directive.

EU and Canada sign CETA

Council of the EU Press Information: EU-Canada summit, Brussels, 30/10/2016
On 30 October 2016, the EU and Canada signed the Comprehensive Economic and Trade Agreement (CETA), an agreement that has faced broad criticism over inter alia environmental concerns, at a delayed summit. The signature occurred after a last-minute struggle to reach a consensus in the EU that featured the initial refusal to sign of a Walloon parliament, which eventually caved after a Belgium-specific declaration on the agreement.

Also see:
* Office of the Canadian Prime Minister: EU-Canada Summit Joint Declaration
* Council of the EU: Joint Interpretative Instrument CETA
* International Economic Law and Policy Blog: Belgian CETA Declaration (Informal Translation)

UN adopts new Urban Agenda

Habitat3 website: The New Urban Agenda
During the Habitat III Conference in Quito, Ecuador, which took place from 17 to 20 October 2016, the Member States of the UN adopted a new Urban Agenda. It is noteworthy in this regard that the EU has its own Urban Agenda (“the Pact of Amsterdam”), through which the EU also contributes to the international approach.

Also see:
* Urban Agenda for the EU website: Pact of Amsterdam

Outcome of the 17/10/2016 Environmental Council

Council of the EU Press Information: Environment Council, 17/10/2016
At this meeting of the Environment Council, the main discussion points were emission reductions, sustainable water management, and the Convention on Biological Diversity (CBD).

Also see:
* Council conclusions: Sustainable Water Management
* Council conclusions: Convention on Biological Diversity

EEA report finds tougher measures needed on air pollution

EEA News: Stronger measures needed to tackle harm from air pollution
An EEA report published on the 23rd of November 2016 confirms that air pollution remains the single largest environmental health hazard in Europe, causing an estimated 467,000 premature deaths a year, especially in urban areas. Current emissions reductions were considered insufficient to tackle the root causes of air pollution, and it was found that new, stronger measures are required.

Also see:
* EEA Report: Air quality in Europe — 2016

UK government loses High Court air pollution case

The Guardian: High court rules UK government plans to tackle air pollution are illegal
The UK High Court has ruled in favour of ClientEarth in an important air pollution case. The Court found that the UK has not done enough to tackle air pollution. The case is a follow-up on an earlier judgment in April 2015 in which the government was ordered to draw up a new air pollution plan, which has now been ruled illegal. The environment department has until April 2017 to publish a new draft air quality plan.

Also see:
* The Guardian: High court gives ministers deadline for tougher air pollution plan

Commission kicks off consultation for REACH review

Bloomberg BNA: EU Asks for Public Input in Five-Year Review of REACH Law
The Commission has started the review process of REACH by opening a public consultation through a 43-page questionnaire aimed at identifying needs for adjustment and proposing recommendations to improve implementation. The consultation, which will last through 28 January 2017, is a precursor to the review that is to be delivered by 1 June 2017.

Also see:
* European Commission DG Growth: Public Consultation in relation to the REACH REFIT evaluation

Risk to consumers of pesticide residues in food remains low, according to EFSA

EFSA News: Pesticide residues in food: risk to consumers remains low
EFSA released its annual report of pesticide residues in food on October 26 2016. According to the findings in this document, 97 percent of food samples collected in the EU were free of pesticide residues, or only contained traces within the legal limits.

Marrakech Climate Conference takes place, focus on implementation Paris Agreement

UNFCCC website: Marrakech Climate Change Conference – November 2016
The Marrakech Conference (COP22), which took place between 7 and 18 November 2016, focused on strengthening and implementing global climate action, particularly in view of the recent entry into force of the Paris Agreement. The outcome of the conference, which yielded a number of decisions, as well as proclamation and a ‘partnership for global climate action’, has been welcomed by some and criticised by others for not achieving sufficient progress.

Also see:
UNFCCC: Marrakech Action Proclamation for our Climate and Sustainable Development
UNFCCC: Marrakech Partnership for Global Climate Action
The Independent: Marrakesh climate conference: Campaigners react with ‘extreme disappointment’ over lack of progress

Paris Agreement enters into force, important milestone for climate action

UNFCCC website: Paris Agreement – Status of Ratification
On 4 November 2016, the Paris Agreement entered into force, exactly a month after reaching the required ratification threshold. Whereas the agreement constitutes an important step forward in climate action, much is down to implementation and the hardest work is thus yet to be done.

Donald Trump’s views on climate change

The Atlantic: What Does Trump Think About Climate Change? He Doesn’t Know Either
Much has been said about the potential impact of a Trump presidency on global climate action. This article takes a critical view, focusing on the president-elect’s latest statement: “I think there is some connectivity” between humans and climate change.

Norway climate case kicks off

The Guardian: Norway faces climate lawsuit over Arctic oil exploration plans
A lawsuit has been filed alleging the illegality of the Norwegian government’s oil exploration plans in the Barents Sea in a case brought by an alliance including Greenpeace. The claim is that the plan violates Article 112 of the Norwegian Constitution, and jeopardises the Paris Agreement.

Commission proposes new energy efficiency targets

European Commission Press Release: Clean Energy for All Europeans – unlocking Europe’s growth potential
On Wednesday 30 November 2016, the Commission proposed new energy efficiency targets as part of the ‘Winter Package’ of new energy legislation. The energy reforms, which aim at energy efficiency and leadership in renewable energy, met mixed responses, facing criticism from ClientEarth among others.

Also see:
* ClientEarth: EU energy package disappoints with weak laws and strong industry influence
* EUobserver: EU tries to reduce share of ‘food-wasting’ biofuels

EU strategy for liquefied natural gas (LNG) discussed in EP

European Parliament Press Release: Gas: use EU storage capacity efficiently and forge trade partnerships, urge MEPs
The EP discussed the EU’s LNG strategy in plenary session on the 25th of October. One of the points raised was that the EU LNG strategy should cut carbon emissions, and aim to reduce the EU’s dependency on gas by gradually phasing out fossil fuels.

MEPs adopt Catherine Bearder’s wildlife trafficking report, call for ivory trade ban

European Parliament Press Release: MEPs call for ivory trade ban, penalties against wildlife trafficking
On 23 November, MEPs adopted rapporteur Bearder’s report, which assesses what the EU and its Member States can do to address illegal wildlife trafficking. Wildlife trafficking is the fourth most lucrative illegal business, and, over the past century, the tiger population, for instance, has declined roughly from 100,000 to 3,500. Bearder’s report sets out the Parliament’s response to the Commission’s EU Wildlife Trafficking Action Plan. The MEPs also called for a ban on ivory trade, and common sanctions at EU level against wildlife trafficking.

Also see:
* European Parliament Press Release: Making a killing: how to stop the lethal practice of wildlife trafficking
* Draft report: on EU action plan against wildlife trafficking
* European Parliament Press Release: Wildlife trafficking: “It is easier to smuggle rhino horn than drugs” (interview with Catherine Bearder)
* Commission Communication: EU Action Plan Against Wildlife Trafficking

First Wildlife Justice Commission (WJC) takes place at the Peace Palace in the Hague

WJC website: Independent panel confirms that immediate action by the Vietnamese government is required to shut down wildlife trafficking networks in Viet Nam
The WJC held a public hearing on a wildlife trafficking network with a major hub in the Northen Vietnamese village of Nhi Khe. The traffickers used social media such as the Chinese WeChat (comparable to WhatsApp or Facebook Messenger) and Facebook to sell their illegal products. At the end of the hearing, the independent accountability panel found inter alia that immediate action should be taken by the Vietnamese authorities to tackle wildlife trafficking.

Also see:
* The Guardian: Wildlife smugglers using Facebook to sell ivory and rhino horn
* WJC: Accountability Panel Decision

Agreement in Council on TAC for deep-sea fish stocks

Council of the EU Press Release: Deep-sea fish stocks: agreement on catch limitations over 2017 and 2018
At the Agriculture and Fisheries Council meeting of 14 November 2016, an agreement was reached on total allowable catches (TACs) and quotas for deep-sea fish stocks in the EU and international waters of the North-East Atlantic for 2017 and 2018.

Also see:
* The Fish Site: Reduction in Deep-Sea Fishing Quotas Not Enough, say Environmental Organisations

WWF publishes Living Planet Report 2016

WWF News: World’s food and energy systems key to tackling global biodiversity decline
On 27 October 2016, the WWF published its Living Planet Report for 2016, which demonstrates a persistent downward trend in global biodiversity, and a dramatic increase in the (unsustainable) use of natural resources. Considering the significant human impact, the report points to a possible transition from the Holocene into the ‘Anthropocene’, in which humans are overpowering the environment. The WWF sets a dual aim of resilience through 1) maintaining nature, and 2) creating an equitable home for people on a finite planet.

Also see:
* WWF: Living Planet Report 2016

MEPs endorse new rules on influx of plant pests in the EU

European Parliament Press Release: Plant health: MEPs step up fight against influx of pests to the EU
On Wednesday 26 October 2016, a new Regulation on protective measures against plant pests was adopted by the EP. New rules include a preliminary assessment mechanism for identifying plant products from third countries likely to pose a risk, and the extension of the ‘plant passport’ system to all movements of plants for planting within the EU.

Also see:
* Council of the EU and European Parliament: Regulation on protective measures against pests of plants

What does dieselgate imply for low emission zones?

EUObserver: Dieselgate casts doubt over low emission zones
This article discusses the implications of the revelations of dieselgate for low emissions zones. In particular, it is questioned whether the so-called ‘Euro standards’ for emissions, which are not being achieved on the road, are still a good way to determine which cars to ban.

IMO agrees on sulphur emissions cap, falls short CO2 emissions deal

The Guardian: Shipping industry criticised for failure to reach carbon emissions deal
After the International Civil Aviation Organisation (ICAO) emissions deal in October 2016 (see last News Service), the question was whether the shipping industry is next. Therefore, the IMO faced critique when it neglected to take immediate action on emissions. A roadmap for reducing greenhouse gas emissions was adopted, which effectively delays the introduction of a global mechanism for ensuring IMO CO2 reduction commitments are actually delivered until 2023.

Also see:
Climate Home: EU focused on shipping climate deal by 2018

Commission press release on Food Waste plans

European Commission Press Release: Reducing food waste: the EU’s response to a global challenge
The Commission published a press release on its food waste strategy on 28 November 2016, outlining current and potential future action. Notably, the EU Platform on Food Losses and Food Wastes also met for the first time on 29 November 2016.

Also see:
* European Commission: EU Platform on Food Losses and Food Waste
* European Commission: Speech by Commissioner Vytenis Andriukaitis at the launch meeting of the “EU Platform on Food Losses and Food Waste”

EEA briefing on municipal waste management in EU

EEA Briefing: Municipal waste management across European countries
According to a new EEA briefing, European countries are improving methods for preventing household and other municipal waste from ending up in landfills. The past decade has seen a marked increase in recycling, due in part to EU environmental policies.

Ross Sea becomes World’s largest Marine Protected Area

BBC News: World’s largest marine protected area declared in Antarctica
On 28 October 2016, the Ross sea was made the largest Marine Protected Area (MPA) in the World at a meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). The agreement, which was reached by delegates from 24 countries and the EU, will enter into force on December 1 2017.

Also see:
New Zealand Ministry of Foreign Affairs and Trade: Ross Sea region Marine Protected Area

EEA publishes report on lakes and rivers in European cities

EEA News: Restoring European rivers and lakes in cities improves quality of life
The EEA has published a report on the water quality of rivers and lakes in European cities. The Agency found that water quality of rivers and lakes in European cities is improving due to better wastewater treatment and restoration projects. However, key challenges remain, relating to water quality and availability, as well as modified water bodies.

Also see:
* EEA Report: No 26/2016 (Rivers and lakes in European cities)

26 January 2017

Programme update

Event: HELF/VMR Conference “Trade and Sustainability: CETA Dissected”

Confirmed speakers:
Joris Larik (Leiden University)
Ronald Roosdorp (Dutch Ministry of Foreign Affairs)
Laurens Ankersmit (ClientEarth)
Wybe Douma (T.M.C. Asser Instituut)

Venue: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22
2517 JN, The Hague, The Netherlands

Time: 14:00-16:00 hrs

Click here for more information

Call for intern: Centre for the Law of EU External Relations (CLEER)

The Centre for the Law of EU External Relations (CLEER), hosted by the T.M.C. Asser Instituut in The Hague, is looking for an intern starting in January 2017 for a period of at least three months, preferably full-time.

Are you interested in EU external relations, a student or recent graduate in European law/studies or international relations, and do you have strong writing and editing skills? Click on the link below for more information!

Vacancy notice

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)