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ClientEarth Communications

21st October 2016

Rule of law

European Environmental Law Observatory News – September 2016

The observatory covers information about the dapplication of the Aarhus Convention on access to information, participation in decision-making and access to justice in environmental matters; provides updates on judgments of the Court of Justice and the General Court, decisions of the European Ombudsman as well as other official decisions from EU institutions; and highlights questions raised in recent doctrinal contributions, hand-picked by the Observatory’s staff from a selection of major legal journals. The Observatory staff is composed of Anaïs Berthier (coordinator), Ludwig Krämer, Anne Friel and Giuseppe Nastasi. Other staff from ClientEarth contribute on an ad hoc basis. This issue covers materials published between July and September 2016.

There are no new updates specific to the application of the Aarhus Convention subsequent to our edition of July 2016.

Section B: Judgments of the Court of Justice and the General Court

Court of Justice of the EU

B.1 Case C-104/15, Commission v. Romania, judgment of 21July 2016, ECLI:EU:C:2016:581

(Landfill, air pollution, mining waste, substitution obligation for Member States)
The Commission reproached the government of Romania for not doing enough to prevent dust clouds coming from the Bosneag site, where waste from mining activities had been disposed.  The clouds spread over residential areas and caused problems for human health and the environment. Romania defended itself on several grounds, all of which the Court rejected.

The first argument by the Romanian government was that Directive 2006/21 on the extraction of mining waste was applicable only from 1 May 2008. Since no waste had been disposed of on the site since that date, the Directive was inapplicable. The Court found that the site was still subject to an authorisation after May 2008. The fact that no waste was disposed of did not mean that the authorisation did not exist anymore. Therefore, Directive 2006/21 was fully applicable.

Romania argued also that the dust clouds only occurred when there was strong wind, which had to be considered to be an accidental situation. The Court held that under the Directive, Romania was obliged to avoid that waste from the landfill was capable of impairing the environment and human health. This obligation also existed when only periods of strong wind caused the impairment, a situation which could not be compared to an accident.

The Court confirmed its earlier jurisprudence with regard to the waste framework Directive (2008/98), according to which a prolonged situation of impairment of human health or the environment without intervention of the public authorities constituted a breach of the obligations under Article 13 of Directive 2008/98 and Article 4 of Directive 2006/21. It was of no relevance that, as Romania had argued, the limit values of Directive 2008/50 on ambient air pollution were not exceeded, as no lower limit for air pollutants – PM10 in particular – existed. Article 4 of Directive 2006/21 also expressed the precautionary principle, so that Romania was obliged to take preventive measures against the air pollution.

The Court also found that Romania had breached Article 13 of Directive 2006/13. While this provision only obliged Member States to ensure that operators of waste disposals complied with their obligations, Romania was obliged to substitute itself as the operator if he did not comply with his obligations, and charge him with the costs of the substitution. This is an important innovative step taken by the Court which might, in future, also lead to claims for damages.

Ludwig Kramer

B.2 Case C-387/15 Orleans a.o. v Vlaamse Gewest Judgment of 21 July 2016, ECLI:EU:C:2016:583

(Directive 92/43, Article 6)

In this preliminary ruling the Court had to deal with a development plan which had the consequence of destroying part (some 20 hectares) of a Natura 2000 habitat. The Belgian government argued that, in view of the overall development plan, this plan was compatible with Article 6 of Directive 92/43.

The Court argued that Article 6 of Directive 92/43 intended to protect natural habitats and ensure their favourable conservation status. Measures under Article 6 could be divided into conservation measures (Article 6(1)), preventive measures to maintain the status of the site (Article 6(2)) and compensatory measures (Article 6(4)).

As the plan intended to destroy about 20 hectares of an existing habitat, it could not be considered to be a conservation measure. For the same reason, the plan could not either be considered to be a preservation measure, all the more as it would significantly affect the objective of the Directive as a whole. It could possibly constitute a compensatory measure, provided that all conditions of Article 6(4) were complied with. This was for the national court to determine.

The judgment concerns another attempt by public authorities to consider measures which reduce the surface of a habitat as “mitigation measures”, and it is useful that the Court opposed this attempt. The judgment is important, as it draws a very clear line concerning the application of Article 6(1) and (2). Whenever part of a natural habitat is destroyed, these provisions become inapplicable.

Ludwig Kramer

B.3 Case C-147/15, Mastrodonato, judgment of 28 July 2016, ECLI: EU:C:2016:606

(Backfilling of waste as disposal or recovery operation)
In this preliminary judgment, the Court had to interpret Directive 1999/31 on the landfill of waste. An Italian operator wanted to use a simplified procedure existing under Italian law in order to fill a quarry. The simplified procedure only existed for recovery operations, but not for disposal operations. The question was, whether the operator could only use inert and non-hazardous waste – essentially thus excavated waste from the quarry – or whether he could also use non-inert waste and even hazardous waste and still be considered to exercise a recovery operation.
The Court clarified that backfilling operations which use non-inert waste or hazardous waste could not be considered, under Directive 1999/31, to be recovery operations, so that this Directive was fully applicable.

The judgment is of considerable practical relevance, as it clarifies that the disposal of hazardous or non-inert waste into the soil does not constitute a recovery, but rather constitutes a disposal operation.

Ludwig Kramer

B.4 Court Case C-457/15, Vattenfall, judgment of 28 July 2016, ECLI:EU:C:2016:613

(Time at which the obligation to surrender allowances starts)
The preliminary judgment dealt with the question of when an establishment that comes under Directive 2003/87 on greenhouse gas emission allowances is obliged to comply with the provisions of the Directive and submit trading allowances, i.e. from the time of producing electricity, or from the time that it starts operating.

The Court held that the Directive aimed at the protection of the environment and intended to reduce the emission of greenhouse gases. EU implementing legislation – Regulation 601/2012- clarified that the obligation to surrender allowances did not only refer to normal activities such as the production of electricity, but also to abnormal activities such as the start-up and close-down of the installation. For this reason, a company had already to surrender allowances, even before it generated electricity.

Ludwig Kramer

B.5 Case C-543/14, Ordre des barreaux francophones et germanophone a.o v Conseil des ministres, 28 July 2016, ECLI:EU:C:2016:605

(VAT – Directive 2006/112/EC Validity and interpretation of the directive – Services provided by lawyers – Liability to VAT – Right to an effective remedy – Equality of arms – Legal aid)
In this case the Court of Justice ruled that Article 9(4) and 9(5) of the Aarhus Convention cannot be relied on to challenge the validity of EU secondary legislation. The case concerned the validity and interpretation of Directive 2006/112 on the common system of value added tax, which ended the VAT exemption on services supplied by lawyers and, according to the Ordre des barreaux, consequently increased the costs of hiring a lawyer.

The Belgian Court asked, inter alia, whether this measure was compatible with Articles 9(4) and (5) of the Aarhus Convention in so far as those provisions establish a right of access to justice without the cost of those procedures being prohibitively expensive, including through the establishment of appropriate assistance mechanisms where necessary.

The Court recalled that for the provisions of an international agreement to be relied on in support of an action for annulment of an act of secondary EU legislation, the provision must be unconditional and sufficiently precise (Cases C-401/12 P to C-403/12 P Council and Others v Verenigning Milieudefensie and Stichting Stop Luchtverontreigniging Utrecht). With regard to Article 9(4) of the Aarhus Convention, the Court recalled that it applies only to proceedings referred to in Articles 9(1), (2) and (3). As a consequence of the fact that all three sub-paragraphs refer to criteria to be established by national law, Article 9(4) does not fulfill the conditions to enable it to be relied in an action for annulment. Similarly, the Court held that Article 9(5), in obliging the States to “consider” the establishment of “appropriate assistance mechanisms”, by its very nature does not include an unconditional and sufficiently precise obligation to be relied on.

It is regrettable that the Court has missed another opportunity to give effect to the international obligations that the EU signed up to in the Aarhus Convention.

Anne Friel

B.6 Case C-304/15, Commission v UK, 21 September 2016, ECLI:EU:C:2016:706

(Failure of a Member State to fulfil obligations — Directive 2001/80/EC — Article 4(3) — Annex VI, Part A — Limitation of emissions of certain pollutants into the air from large combustion plants — Application — Aberthaw Power Station)
The Commission sued the UK for failing to apply Directive 2001/80/EC on the limitation of certain pollutants into the air from large combustion plants to the Aberthaw Power Station. In failing to apply the Directive, the UK was relying on a derogation (“Note (3)) which set a higher limit of nitrogen oxides until January 2018 for plants which, “in the 12 month period ending on 1 January 2001 operated on, and continue to operate on, solid fuels whose volatile content is less than 10%.” The Commission argued the derogation did not apply to the Aberthaw Power Station because it did not and had never operated on solid fuels whose volatile content is less than 10%. Despite the fact that the plant clearly did not qualify for this derogation, The UK put forward a number of reasons for why the higher standard in the Directive should not apply. First, it argued that the derogation should be interpreted flexibly, so as to mean that it did not require that the plant at issue use exclusively solid fuels with a volatile content of less than 10%. Second, the UK stated that there was no correlation between the volatility of the fuel burnt by the plant and the level of nitrogen oxides that it emitted. Therefore, the Commission’s interpretation of Note (3) serves no environmental purpose. Finally, the UK argued, in essence, that the conditions for the derogation did not make economic sense for the plant in question.
The Court found against the UK. It stated that since Note (3) constitutes a derogation from the general rule provided for in Directive 2001/80/EC, it must be interpreted strictly. As such, it did not allow for the flexible interpretation put forward by the UK (in fact, the Court agreed with the Advocate General’s opinion that no legal interpretation could possibly support the UK Government’s argument on this point). In addition, Note (3) indeed serves an environmental purpose by limiting the number of plants that can benefit from the derogation. Importantly, the Court recalled its previous case law which precludes a Member State from invoking reasons of a purely economic nature to dispute the failure of which it is accused.
Anne Friel

B.7 Case T-51/15, Pesticide Action Network Europe v Commission, 20 September 2016, ECLI:EU:T:2016:519

(Access to documents — Regulation (EC) No 1049/2001 — Regulation (EC) No 1367/2006 — Documents relating to endocrine-disrupting chemicals — Partial refusal of access — Exception relating to the decision-making process — Article 4(3) of Regulation No 1049/2001)
In this case the Third Chamber of the General Court annulled the Commission’s decision to withhold information on endocrine-disrupting materials. In particular, the Commission received strong criticism for its use of “general, vague and imprecise statements” to justify its decision.

In January 2014 PAN Europe requested access to all documents held by the Commission relating to endocrine-disrupting chemicals (in the context of specifying scientific criteria for the determination of properties disrupting the endocrine system). The Commission granted partial access to seven documents and withheld seventeen documents. It justified its decision to withhold information on the basis of Article 4(1)(a) of Regulation 1049/2001 (protection of international relations), Article 4(1)(b) (protection of privacy and the integrity of the individual), Article 4(2), first indent (protection of commercial interests) and Article 4(3) (protection of the decision-making process). PAN Europe challenged the decision to withhold information contained in 20 documents based on the protection of the decision-making process.

The Commission justified its recourse to Article 4(3) with the argument that disclosure of the information before the decision-making process had come to an end would result in external pressure and interference, and would reduce its margin of maneuver and its capacity to reach a compromise internally. In support of this claim, the Commission cited the sensitive nature of the subject-matter which had received a lot of external attention.

The Court found that “[s]uch general, vague and imprecise statements do not prove that there is genuine external pressure on the decision-making process…and are not based on any concrete evidence such as to justify them”. According to the Court, the sensitive nature of the dossier was not enough to justify the assertion that the decision-making process would be seriously undermined. Similarly, it found that the Commission failed to produce any evidence to support the assertion that its room for manoeuvre and its capacity to obtain an internal compromise would be reduced, and that such a reduction amounted to a sufficiently serious and reasonably foreseeable risk that the decision-making process would be seriously undermined.

The Court also looked at the argument put forward in the Commission’s defence that disclosure of the documents would alter the nature of communications between members of its services and would hamper and have a dissuasive effect on the free exchange of ideas. It found that the Commission’s claim was unsubstantiated by evidence, since it did not contain a specific argument or precise and specific information. The decision was annulled and the Commission was invited to undertake a fresh examination of the documents requested.

This judgment will come as a great relief to those members of civil society who are all too familiar with the Commission’s “general, vague and imprecise statements” when withholding information based on Article 4(3), first indent. Indeed, it often seems that the Commission cuts and pastes a template response. Therefore, it is a positive development to see the General Court requiring the Commission to produce evidence to support its claims.

It should be noted that this decision seems to go against the judgment of the General Court’s Second Chamber in joined cases T-424/14 and T-425/14 ClientEarth v Commission, which is currently under appeal to the Court of Justice. In that case, the General Court agreed with the Commission, stating that there is no requirement to submit evidence to establish the existence of a risk to the decision-making process, as long as it presents “tangible elements” and objective reasons from which the risk can be inferred. It can only be hoped that the General Court will continue to apply this stricter standard requiring evidence from the Commission, and that the Court of Justice will confirm this position in due course.

Anne Friel

B.8 case T-382/15 Greenpeace Energy eG a.o. v. Commission, Order of 26 September 2016,ECLI:EU:T-2016:589

The applicants are all undertakings which produce and market electricity from renewable sources of energy. They applied to the General Court, because they opposed the Commission  decision by which the Commission had declared the State aid which the United Kingdom intended to grant to the nuclear power plant Hinkley to be compatible with EU law.

The Court found that the Commission decision was addressed to the United Kingdom, but not to the applicants; the first alternative of Article 263(4)TFEU was therefore inapplicable. The Court then examined, whether the applicants were individually and directly concerned by the  Commission decision which was addressed to the United Kingdom. It found that the applicants were competitors of the future Hinkley plant on the energy market. However, they had not proven that their market position would be substantially affected by the Hinkley competitor. Thus, they were in a position of all other competitors on the energy  market. This did not bring them into a position, where they would be “individually” affected by the Commission decision. Consequently, the Court rejected the application of the second alternative of Article 263(4) TFEU and held the application to be, insofar, inadmissible.

The Court then started to examine,  whether the applicants were directly affected by a regulatory act which did not require implementation measures (third alternative of Article 263(4)TFEU). Here, the Court found that the Commission decision concerned one individual competitor which was named in the decision. Thus, the decision was not a regulatory act, but an individual decision. Therefore, the third alternative of Article 263(4) TFEU was held inapplicable and the whole application was rejected as inadmissible.

The General Court did not discuss the question, how the applicants could prove to be substantially affected by a State aid measure, when the State aid was granted for a plant that was not even constructed. It is obvious that the guarantee given by the British Government to the Hinkley developers, to take the electricity generated by the plant at a fixed price and for several years, facilitates the competitive situation of the Hinkley plant. To what extent this benefit will influence the market (until 2040!), is speculation and at this time not foreseeable: it depends on numerous economic, social, environmental, legal and political factors, within the UK and on the energy market in general. The question then is, whether State aid should be granted to the entrance on the market of a new competitor, and whether existing market competitors have no means to defend themselves  against this competition.

In law, the General Court referred at several occasions to the Plaumann doctrine of the ECJ. This doctrine states that a person is individually concerned by an act which is not addressed to it, if it is in a situation which differentiates it from all other persons, just in the way of an addressee of the act. If this doctrine were applied consequently, all applications by competitors under Article108 TFEU would have to be held inadmissible, because the competitors are numerous and it cannot be argued that one of them is so different from the others that he is in a position like that of an addressee of the measure. And the requirement that the competitive position must be “substantially” affected, is not of help. Indeed, this criterion is arbitrary: what is “substantial”?  The ECJ and the General Court carefully avoided in the past to quantify this requirement by a percentage. When three or four applicants claim to be substantially affected, how could they all be in a position just as the addressee?

De facto, the requirement that a competitor must be substantially affected allows the General Court and the Court of Justice, to declare applications inadmissible, when it suits them, as they have a large discretion to decide, whether the competitive situation of an applicant is “substantially” affected or not. This is the reason, why there are numerous cases decided by the Courts, where the criterion of “substantially” affected was not examined at all. In other cases, no clarification was given, what “substantial” meant in the specific case.

Ludwig Krämer

Section C: Decisions of the European Ombudsman

C.1 Decision of the European Ombudsman setting out proposals following her strategic inquiry OI/8/2015/JAS concerning the transparency of Trilogues – 12 July 2016

As commented in the issue of July 2016, the EU institutions replied to the Ombudsman’s inquiry on the transparency of trilogues by challenging her competence on the matter. The Ombudsman adopted her decision on 12 July 2016, making several recommendations to the institutions. First, in response to the institutions’ concerns about her mandate, the EO stressed that the scope of the inquiry did not include the organisational aspects of the legislative procedure, but was concerned with the proactive transparency of trilogues. The EO then welcomed the institutions’ commitment to legislative transparency under the new Interinstitutional Agreement on Better Law-Making and finally set out her proposals for enhancing transparency in trilogue negotiations.
The Ombudsman recommended that the EU institutions proactively disclose the following documents: A “Trilogue Calendar” identifying forthcoming Trilogues (also to be referred to in databases on legislative files);

  • The institutions’ positions on the Commission’s proposal, before the trilogue negotiations begin;
  • General summary agendas before or shortly after Trilogue meetings take place;
    All four column documents as soon as possible after the negotiations have been concluded;
    Links to any minutes or videos of the institutions’ public meetings where a Trilogue has been discussed;
  • A list of the representatives who are politically responsible for decisions taken during a Trilogue, including the identity of civil servants where the power to take decisions has been delegated;
  • Lists of documents tabled during Trilogue negotiations, with a view to facilitating requests for access to documents;

The Ombudsman also recommended that the institutions work together to make as much trilogue information and documentation as possible publicly available through a joint database.
The decision highlights that EU citizens must have access to information if they are to hold elected representatives to account. Nevertheless, the Ombudsman also acknowledges “the very careful judgment calls that must be made in order to strike the right balance between transparency and other legitimate and important public interests, including the need to protect the negotiating strategies of the institutions while trilogues are in progress.” This is why she only calls for the most important trilogue documents, the so-called four column documents, to be published once the negotiations have been concluded. This is disappointing. Contrary to what the Ombudsman says, by the time the trilogue negotiations have been concluded there is no longer any possibility for citizens and civil society to participate in the decision-making process.

The EO asks the institutions to inform her of the actions they take in relation to her proposals by 15 December 2016.

José Antonio Campos

C.2  Decision of the European Ombudsman in cases 803/2012/TN and 369/2013/TN concerning the Commission’s refusal to grant public access to documents related to its investigation of the shipment of live bluefin tuna in the Mediterranean – 28 July 2016

This case concerns a refusal by the Commission to grant access to documents relating to a fisheries control procedure concerning an irregular shipment of live bluefin tuna to Malta. The complainant (Greenpeace) submitted two different requests for access to documents. Both applications were rejected by the Commission on the ground of protecting the purpose of the investigations.

Five years after the first request, the Commission granted access to documents it had created but refused to disclose those documents that Malta had sent to the Commission.
The complainant turned to the Ombudsman, who recommended that the Commission grant access to the requested documents and particularly to the action plan drawn up by the Commission under the Fisheries Control Regulation. The EO considered that the fisheries control procedure, when considered in the light of Article 4(4)(c) of the Aarhus Convention, falls outside the scope of the exception which aims at protecting the purpose of inspections, investigations and audits. The Commission did not agree with this conclusion and held that the fisheries control procedure is very similar in nature to an infringement proceeding. It further stated that Article 4 of the Aarhus Convention is not sufficiently precise and unconditional to have direct effect.

The Ombudsman found maladministration on the part of the Commission arising from its continued refusal to grant access to those documents originating in Malta. She recalled that Regulation 1049/2001 does not confer on a Member State a general and unconditional right to veto access to its documents. Rather, Member States have the right to participate in the Commission’s decision as to whether to disclose the documents. The Commission is responsible for its decisions, and must ensure that the Member State has based its decision on one of the exceptions provided in the Regulation and that it has given proper reasons for its position. The Commission must also make sure that those reasons exist and have some substance.

As regards the documents created by the Commission itself, the EO considered that the Commission relied on the very general argument that premature disclosure would expose the action plan to undue external pressure, whereas the Commission should have explained why such pressure would actually undermine the protection of the purpose of the fisheries control procedure and why it was reasonably foreseeable that such pressure would actually undermine the protection of the purpose of the fisheries control procedure. Finally, the EO found the delay in disclosing the documents to be unsatisfactory.

José Antonio Campos

Section D: Decisions of other EU Institutions

European Commission, European Parliament, Council of the EU

European Commission

D.1 Implementing Regulation 2016/1141 adopting a list of invasive alien species of Union concern, OJ2016, L 189 p.4

The Regulation is a follow up to Regulation 1143/2014 on invasive alien species. It lists 37 invasive alien species of fauna and flora, which are considered undesirable immigrants. The value of the list for citizens is almost zero, as the names of the species are only given in Latin.

Ludwig Kramer

European Commission

D.2 Implementing Regulation 2016/1313 concerning the conditions of approach of the active substance glyphosate, OJ 2016, L208 p.1.

The use of glyphosate in pesticides is heavily disputed within the EU. In order to accommodate public opinion, the Commission adopted the present Regulation which, however, does not concern the conditions of use of glyphosate. The present authorisation for glyphosate as an active substance ends either on 31 December 2017 or six months following the Commission’s reception of a report from the ECHA Committee for Risk Assessment. Regulation 2016/1313 asks Member States to ensure that pesticides containing glyphosate do not contain POE-tallowamine as co-formulant and, furthermore, to pay particular attention to the risks of glyphosate for groundwater in vulnerable areas, for risks from use in parks, gardens, school grounds, children’s playgrounds etc, vulnerable water or nature protection areas and some areas accessible to agricultural workers; they also should pay attention to compliance of its pre-harvest use with good agricultural practices.

These vague provisions, which can hardly be enforced in practice, mean that it is dependent on each Member State if and to what extent the use of glyphosate is restricted. Thus, the battle on glyphosate is bound to continue. At present, the EU has not restricted its use.

Ludwig Kramer

D.3 Proposal for a Regulation on binding annual greenhouse gas emission reduction targets until 2030, COM(2016) 482

The EU committed itself, in a policy statement by the European Council, to reduce its greenhouse gas emissions until 2030 by 40 per cent compared to 1990. The present proposal tries to provide, in the tradition of two earlier effort sharing decisions, to fix emission reduction targets for all 28 Member States. The reference period is, though, 2005 and not 1990, and several adjustments are proposed by the Commission in order to facilitate reaching the objectives, in particular for the Member States which joined the EU since 2004.

The reductions proposed are the following:

Belgium – 35%         Bulgaria  0%     Czechia  -14%    Denmark-39%       Germany – 38%

Estonia   -13%         Ireland   -30%   Greece  – 16%   Spain       – 26%      France      -37%

Croatia   –  7%         Italy        -33%  Cyprus    -24%    Latvia        -6 %    Lithuania     -9%

Luxembg -40%       Hungary  – 7%   Malta     – 18%   Netherld   -36%     Austria      -36%

Poland     – 7%       Portugal  -17%  Romania  -2%     Slovenia     – 15%  Slovakia     -12%

Finland   – 39%      Sweden   -40%  UK            -37%

The proposal is based on Article 192(1) TFEU which provides for majority decisions. However, it remains to be seen whether some Member States – Poland might be a candidate – will  not invoke Article 192(2) which requires unanimous decisions, arguing that the decision significantly affects their choice between different energy sources and the general structure of their energy supply.

Ludwig Kramer

D.4 Action plan to improve the fight against wildlife trafficking, COM(2016)87

The action plan against wildlife trafficking suggests 32 concrete actions to be undertaken in particular by the Commission and the Member States. These actions include a better implementation of existing rules, better international cooperation, better fight against organized crime in wildlife trade and better support of rural communities in third countries. The plan is silent on the supplementary financial means which would need to be made available for authorities within the EU, in third countries and with Europol. It can only be hoped that the action plan will be taken seriously by the Member States and does not remain a list of good intentions, as wildlife trafficking has increased dramatically these last years.

Ludwig Kramer

D.5 Annual Report 2015 on monitoring the application of EU law, COM(2016) 463; SWD (2016)230; SWD(2016)231

The annual report which the Commission publishes gives general data, but does not really allow conclusions to be drawn on the protection of the environment. The Commission received, in 2015, 3450 new complaints, out of which 363 from the environmental sector, the lowest figure in years (604 in 2011). It handled, in this period, 3315 complaints. For 2843 of them, there was no breach, no substance or no Commission competence. For 101 environmental cases, the Commission opened a pilot procedure. These figures show that civil society appears to be losing confidence in environmental complaints being able to change the environmental reality in Member States. As the Commission does everything to monitor the application of EU law on its own and keep civil society as well as the European Parliament out of the process, the monitoring process inevitably concentrates on failure to transpose EU environmental law into the national legal order, as well as on incomplete transposition. The bad application, i.e. the non-respect of EU environmental law in practice, is necessarily treated as a low priority.

Document SWD (2016) 231 contains details of the monitoring of application in the 28 Member States, without though, allowing conclusions on the application of environmental law.

Ludwig Kramer

D.6 Annual report for the year 2015 on the application of Regulation 1049/2001 on access to documents, COM(2016) 533

The annual report gives a general overview of the application of Regulation 1049/2001. 6752 applications were received during the year, out of which 5.79% were on environmental issues. The Commission gave full access to the requested documents in 68.8% of the cases, and partial access in further 15.3% cases. In 15.9% of all cases, access was denied. The appeal (confirmatory application) was fully successful in 41.3%, and partly successful in a further 31.7% of the cases. This confirms that a request for a confirmatory decision is worthwhile. The report does not contain data from the European Parliament and the Council.

Ludwig Kramer

D.7 Proposal for an Interinstitutional Agreement on a mandatory Transparency Register, COM(2016) 627

Based on Article 295 TFEU and 106a Euratom, the Commission published the proposal for a binding Transparency Register which is to replace the present voluntary Lobbying Register. Annexed to the proposal is a code of conduct which the persons, companies and groups that register, have to comply with. Non-compliance can be sanctioned by a formal warning, a suspension of the registration (15 days to one year) and the exclusion from registration for a time between 15 days and two years. The decision may be reviewed and against the review decision, access to the ECJ or the Ombudsman is possible, according to Articles 263 and 228 TFEU.

The Register shall be monitored by a secretariat, consisting of staff of the three institutions -European Parliament, Council and Commission – to which it applies. A Management Board, consisting of the Secretaries General of the three institutions, shall have the overall supervisory function.

The weakness of the proposal is that only contacts with the top hierarchy of the Commission and the Council – members of the Commission, members of their Cabinets, Directors General (Commission), Permanent Representatives, Secretary-General, Directors General (Council) – shall be covered. For the European Parliament, meetings with the MEPs are covered, but not meetings with their staff. If one imagines that by far the greatest number of contacts between lobbyists and the institutions takes place at the level below the Director General – that might be 90 per cent or even more of all contacts – one can imagine that this lobbying register is not yet ideal.

The Register shall be open to other EU institutions, bodies, agencies etc.

Ludwig Kramer

Court off Auditors

D.8 Court of Auditors: Special Report 18/2016 of 21 July 2016: The EU system for the certification of sustainable biofuels

Directive 2009/28 on renewable energy requires that Member States cover, by 2020, ten per cent of their fuel consumption in transport by renewable energies. This requires the use of biofuels. Only biofuels that come from sustainable production may be taken into account. As regards biofuel production, within the EU and in third countries, the Commission is charged to certify so-called voluntary schemes which shall ensure that biofuels only stem from sustainable production. This is in particular a problem in countries such as Indonesia, where large areas of land are used for the production of biofuels which are then exported to the EU.

The Court of Auditors found that the Commission’s certification system omitted to cover important elements of biofuel production. This includes land tenure conflicts, forced labour, child labour, poor working conditions for farmers and risks to health and safety of persons. The impact of indirect land use change – land used for food production is now used for biofuel production and forests or grassland is newly used for food production – was not considered either. Perhaps the most serious omission found was the fact that the functioning of the voluntary schemes, once they were certified, was not supervised by the Commission, and no complaint system was set up. This casts doubt on the sustainability of biofuel production. Data on the sustainability of biofuels were not always reliable.

The Court of Auditors made a number of recommendations. It went beyond its mandate to question whether a voluntary scheme is really apt to monitor the sustainable production of biofuels.

Ludwig Kramer

Section E: Journal articles

E.1 Ilina Cenevska, A Thundering Silence: Environmental Rights in the Dialogue between the EU Court of Justice and the European Court of Human Rights, J Environmental Law (2016) 28 (2): 301-324

This article discusses the absence of judicial dialogue on environmental rights between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). While the two courts typically refer to each other’s jurisprudence in cases before them, interaction is limited in the field of human rights linked to environmental protection.

The article recalls that the European Convention of Human Rights (ECHR) does not expressly recognise environmental rights. However, the ECtHR has interpreted existing Convention rights in an expansive manner, bringing environmental considerations within their scope, and thus responding to society’s demand for environmental protection. In particular, Article 8 ECHR (right to respect for private and family life) has been recognised as endorsing the right to a healthy environment. In applying this provision, the Court’s case law (recalled in some detail in the article) has established a three-step standard for environmental protection claims. First, the ECtHR verifies if there is a sufficiently close link between the environmental damage at issue and the applicant’s private and family life, in order to determine if the damage has actual effects on the applicant’s health and living situation, or if there is a serious risk thereof. Second, the ECtHR investigates the substantive merits of national authorities’ decisions, and whether the procedure followed was adequate to protect the applicant’s interests. Finally, the ECtHR controls if the national authorities struck a fair balance between public and private (i.e. the applicant’s) interests. In this way, the Court’s ‘activist jurisprudence’ has sanctioned the existence of enforceable procedural rights relating to environmental protection.

In addition to this, while the ECtHR’s earlier jurisprudence treated substantive environmental rights (i.e. rights to an environment of a certain quality) as predominantly a matter of national law, later case law has brought them within the remit of Article 8 ECHR, thus starting a process which could one day lead to the recognition of a fully-fledged right to a clean environment.

The article thus considers the ECtHR as ‘the frontrunner in Europe’ in forging a rights-based approach to environmental protection. It finds instead that the CJEU has been less pro-active in this regard. From the procedural point of view, the conditions, elaborated in the CJEU’s case law, to raise environmental claims have been considered as too restrictive to guarantee effective access to justice. At the same time, the CJEU’s has instructed national court to ensure effective access to justice in environmental matters within the Member States. From the substantive point of view, the article notes that the CJEU appears more comfortable to talk about environmental “standards” and “rules”, rather than “rights”. The CJEU thus seems further from recognising a substantive right to a clean environment.

The fact that the two courts are at different stages in the development of environmental rights is seen as a possible reason for the lack of dialogue between the two courts in this field. The article concludes that the CJEU could start such dialogue from recognising the environmental dimension of certain rights protected by the EU Charter of Fundamental Rights, either by referring to the ECtHR’s interpretation of equivalent ECHR rights, or by following a similar rationale without express reference.

Giuseppe Nastasi

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